Winston v. Kelly

Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

LEON J. WINSTON, 
Petitioner-Appellant,
v.
 No. 09-2
LORETTA K. KELLY, Warden,
Sussex I State Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(7:07-cv-00364-sgw-mfu)

Argued: September 23, 2009

Decided: January 27, 2010

Before MICHAEL, GREGORY, and DUNCAN,
Circuit Judges.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Michael wrote the opinion, in which Judge
Duncan joined. Judge Gregory wrote a separate opinion con-
curring in part and dissenting in part.
2 WINSTON v. KELLY
COUNSEL

ARGUED: Jennifer Leigh Givens, FEDERAL COMMU-
NITY DEFENDER’S OFFICE, Philadelphia, Pennsylvania,
for Appellant. Steven Andrew Witmer, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellee. ON BRIEF: James H. Moreno, FED-
ERAL COMMUNITY DEFENDER’S OFFICE, Philadelphia,
Pennsylvania, for Appellant. William C. Mims, Attorney
General, Jerry P. Slonaker, Senior Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL OF VIR-
GINIA, Richmond, Virginia, for Appellee.

OPINION

MICHAEL, Circuit Judge:

Leon J. Winston was convicted of capital murder and sen-
tenced to death by the Circuit Court for the City of Lynch-
burg, Virginia. After failing to obtain relief in state post-
conviction proceedings, he petitioned the district court for a
writ of habeas corpus. He now appeals the district court’s
denial of the writ. Winston presents the following issues, as
authorized by the certificate of appealability: (1) whether he
received ineffective assistance of counsel at the guilt phase of
his trial; (2) whether the state trial court unconstitutionally
denied his request for a lesser included homicide instruction;
(3) whether Atkins v. Virginia, 536 U.S. 304 (2002), prohibits
his execution because he is mentally retarded; (4) whether he
received ineffective assistance when his counsel failed to
argue that Atkins prohibits his execution; and (5) whether he
otherwise received ineffective assistance at the sentencing
phase of his trial.

We affirm the district court’s denial of Winston’s ineffec-
tive assistance claims for both the guilt and sentencing phases
 WINSTON v. KELLY 3
of his trial; we also affirm the denial of his jury instruction
claim. On Winston’s Atkins and Atkins-related claims, how-
ever, we conclude that further proceedings in the district court
are required. As the district court recognized, because Win-
ston presented material evidence in his federal habeas hearing
with respect to the Atkins-related claims that was not consid-
ered by the Supreme Court of Virginia, these claims present
complex questions concerning the application of the Antiter-
rorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (AEDPA). A district court may not
consider additional evidence in a federal habeas proceeding
unless the petitioner has satisfied AEDPA’s dual requirements
of exhausting state remedies and developing the factual record
in the state courts. While these requirements present a high
bar for the petitioner, we conclude in this case that Winston
cleared the bar. Winston’s counsel for both his state and fed-
eral habeas applications did not find records of a test score
relevant to proving his retardation until two weeks before the
evidentiary hearing held by the district court. We hold that it
was error for the district court to refuse to consider this evi-
dence because the score does not fundamentally alter Win-
ston’s claims and because habeas counsel was diligent in
searching for it. We therefore vacate the district court’s judg-
ment insofar as it denies Winston’s Atkins and Atkins-related
claims, and we remand for further proceedings on these
claims.

I.

A.

On the morning of Friday, April 19, 2002, two men broke
into Rhonda and Anthony Robinson’s house. After confront-
ing the Robinsons near their daughters’ second-floor bed-
room, one of the men followed Anthony Robinson
downstairs. There, the man shot Anthony several times. He
then returned upstairs and shot Rhonda in front of her daugh-
ters, Niesha and Tiesha Whitehead. After the shootings the
4 WINSTON v. KELLY
men left, leaving Rhonda and Anthony to die from their
wounds. Leon Winston was later arrested and tried for the
murders.

At trial two witnesses gave essentially uncontradicted testi-
mony that Winston was present at the Robinsons’ when the
murders occurred. Michelle Lipford, who had been sexually
intimate with Winston, testified that she drove him and a man
named Kevin Brown to the Robinson house at about 5:00 a.m.
on the morning of the murders. After waiting nearby in the car
for an indeterminate time, Lipford heard gun shots and then
drove off. Tranika Turner, Winston’s girlfriend, testified that
in response to a telephone request from Winston at 6:00 a.m.
that same morning, she picked him up at a carwash near the
Robinson house. Turner noted that when she picked him up,
Winston was wearing a black hoodie with gray stripes.

To establish that Winston actually shot the Robinsons, the
prosecution offered physical evidence, eyewitness testimony,
and a confession. For physical evidence, the prosecution
introduced a gun that forensic experts had identified as the
murder weapon and on which Winston’s DNA — and only
Winston’s DNA — was found. Robin Wilson testified that
shortly after the murders Winston had given him the gun to
keep.

For eyewitness testimony, the prosecution relied on nine-
year-old Niesha Whitehead. While Niesha witnessed many of
the events that transpired the morning of the murders, her tes-
timony was somewhat inconsistent, and she could not directly
identify Winston. She did, however, testify that her mother’s
voice woke her on the morning of the murders and that upon
waking, she saw two black-skinned men outside her second
floor bedroom. She saw one of the men, whom she called
"Mr. No Name," follow Anthony Robinson downstairs. She
then heard gunshots and saw Mr. No Name return to shoot her
mother, Rhonda Robinson. On direct examination Niesha tes-
tified that Mr. No Name had a tattoo that looked like a "big
 WINSTON v. KELLY 5
dog," J.A. 39, and wore all black. It is undisputed that Win-
ston has a tattoo on his arm matching the one described by
Niesha, but Niesha could not remember whether Mr. No
Name’s clothing had any stripes on it. On cross examination
she answered "Yes" twice when asked whether one man wore
all black and one wore black with white stripes. She also
answered "Yes" when asked whether the man in white stripes
tried to stop Mr. No Name from shooting her mother. Finally,
Niesha contradicted her testimony on direct by identifying the
man with white stripes as the one with the tattoo.

For evidence of a confession, the prosecution called Nathan
Rorls, a long-time friend of Winston’s, as a witness. Rorls tes-
tified that Winston called him in April of 2002 and told him
that he had "slumped two people" in Lynchburg — meaning
he had "murdered somebody, killed somebody." Id. at 94.
Rorls further testified that the day after he received the call,
he saw Winston and Winston’s cousin Pego (Peyton Carter)
at a friend’s house. There, Rorls said that Winston told him
he had "killed two people and robbed them and stuff." Id. at
98. Rorls recounted that Winston proceeded to describe the
crime in detail, noting that he (Winston) and "his codefen-
dant" had taken two thousand dollars and two ounces of
cocaine from the Robinsons. Id. at 101.

Winston did not take the stand. His counsel thus focused on
undermining the credibility of the prosecution’s witnesses and
highlighting inconsistencies in the physical evidence. Pointing
to Niesha Whitehead’s testimony concerning the shooter’s
appearance, defense counsel contended that another man,
Tywan Turner, was the likely shooter, and that Winston had
tried to prevent the shooting. Counsel also challenged Rorls’s
testimony as fabricated and given to avoid the long prison
term he was facing on drug charges. Finally, counsel chal-
lenged the testimony of Lipford and Wilson as unreliable and
implausible.

The jury returned a verdict of guilty, convicting Winston of
capital murder, robbery, and several lesser crimes. In the sen-
6 WINSTON v. KELLY
tencing phase defense counsel presented testimony from Win-
ston’s family describing his troubled childhood. Winston’s
mother testified that he had never known his father, that she
had been in and out of prison for much of his childhood, and
that she regularly used PCP, marijuana, cocaine, and alcohol
both before and after Winston was born. Winston’s grand-
mother testified that she had frequently taken a very young
Winston with her when she committed various larcenies.
Finally, defense counsel introduced three psychological eval-
uations of Winston along with some related records, all from
Winston’s childhood.

The psychological evaluations, however, were not intro-
duced to prove that Winston was mentally retarded under Vir-
ginia law. Rather, they were admitted as ordinary mitigating
evidence, describing Winston’s sub-average intellectual func-
tioning and troubled childhood. Defense counsel took this
approach despite the bounty of evidence in those evaluations
and related records relevant to a determination of retardation
under the applicable Virginia statute. The evaluations were
accompanied by I.Q. scores of 77, 73, and 76, respectively. In
one of the evaluations the psychologist commented that Win-
ston was functioning in the "[b]orderline range of abilities"
and that his "ability to recall specific verbal facts which are
typically acquired through education and experience is
extremely deficient and falls within the Mentally Retarded
range (1st percentile)." J.A. 2133. In another the psychologist
found that Winston had "borderline intellect and severe verbal
processing problems." Id. The psychologist also noted that
Winston’s immaturity and passiveness "place him at a risk to
be easily manipulated by others. He is likely to always follow
the easiest path, the strongest leader." Id.

Also in defense counsel’s possession, but not submitted to
the jury, were additional records from the Fairfax County
Department of Student Services and Special Education (Fair-
fax County). These records showed that Winston was eligible
for special education due to "mild retardation," that he "de-
 WINSTON v. KELLY 7
monstrate[d] a reduced rate of intellectual development and a
level of academic achievement below that of age peers," and
that he "concurrently demonstrate[d] deficits in adaptive
behavior." Id. at 2133-34. Unlike the psychological evalua-
tions presented to the jury, these records did not include an
I.Q. score. An affidavit from a Fairfax County special educa-
tion professional — obtained long after Winston’s trial —
indicated that while an additional psychological evaluation
and I.Q. test would necessarily have accompanied the Coun-
ty’s conclusions about Winston, these additional items had
likely been destroyed.

In determining not to pursue a sentencing strategy based on
mental retardation, defense counsel apparently relied primar-
ily, if not solely, on the advice of Dr. Evan Nelson, the clini-
cal psychologist appointed to assist Winston during the
sentencing phase. Dr. Nelson did an assessment of Winston
for use at his sentencing. He reviewed the psychological eval-
uations and records forwarded to him by counsel and inter-
viewed Winston and members of his family. Dr. Nelson did
not interview Winston’s teachers and social workers, and he
cannot recall whether he saw the Fairfax County record
changing Winston’s disability classification to mild retarda-
tion. Based on the materials before him at the time, Dr. Nel-
son told defense counsel that "he did not think [they] could
prove [that Winston] was mentally retarded as defined by the
Virginia statute." J.A. 2135.

Defense counsel were almost completely dependent on Dr.
Nelson’s analysis. They did not read Winston’s psychological
records in their entirety before forwarding them to Dr. Nel-
son, nor is there any evidence that they reviewed them after
receiving Dr. Nelson’s opinion. The lawyer tasked with gath-
ering mitigation evidence admitted that he had been unable to
review all the records and had "relied on Dr. Nelson to thor-
oughly review the records and tell [him] what [he] needed to
know." J.A. at 2134. Neither of Winston’s lawyers read the
8 WINSTON v. KELLY
records containing Fairfax County’s change of Winston’s dis-
ability classification to mild retardation.

After considering the evidence relevant to sentencing, the
jury recommended a sentence of death for each of the mur-
ders, 73 years for the robbery and related crimes, and
$400,000 in fines. The trial court sentenced Winston accord-
ing to the jury’s recommendations, except for suspending the
fines. The Supreme Court of Virginia affirmed Winston’s
convictions and sentence, Winston v. Commonwealth, 604
S.E.2d 21 (Va. 2004), and the United States Supreme Court
denied certiorari, Winston v. Virginia, 546 U.S. 850 (2005).

B.

Winston later petitioned for habeas relief in the Supreme
Court of Virginia. Winston v. Warden of the Sussex I State
Prison, No. 52501, 2007 WL 678266 (Va. Mar. 7, 2007). In
his petition Winston requested an evidentiary hearing and
raised multiple claims centering on actual innocence, Atkins,
and ineffective assistance of counsel. The Virginia Supreme
Court denied all relief without allowing an evidentiary hear-
ing. Id. at *18. It concluded that Winston’s actual innocence
claim was not cognizable in habeas, that his Atkins claim had
not been raised on direct appeal and therefore was procedur-
ally defaulted, and that his ineffective assistance of counsel
claims failed on the merits. Id. at *1, 3, 6-17. The Virginia
Supreme Court did not then have before it Winston’s claim
that the trial court erred in denying his requested jury instruc-
tion on lesser included homicide charges.

Following the denial of his state habeas petition, Winston
filed the pending petition in federal district court. In its first
opinion, dated May 30, 2008, the district court rejected on the
merits Winston’s claims of actual innocence, ineffective assis-
tance of counsel at the guilt phase, failure to instruct the jury
on lesser offenses, and ineffective assistance of counsel in
presenting mitigation evidence at the sentencing phase. How-
 WINSTON v. KELLY 9
ever, with respect to Winston’s Atkins and Atkins-related inef-
fective assistance of counsel claims, the court reserved
decision and ordered an evidentiary hearing. The district court
"d[id] not decide that Winston [wa]s entitled to an evidentiary
hearing, but rather exercise[d] its discretion" to order one.
J.A. 617.

At the hearing the district court heard from nine witnesses
over two days and received documentary evidence not pre-
sented to the state courts. Of particular importance was the
introduction of Winston’s missing 1997 psychological evalua-
tion and I.Q. test score from Fairfax County. Just two weeks
before the hearing, Winston’s habeas counsel found Marilynn
Schneider Lageman, the psychologist who administered the
test. Lageman testified that she had kept personal copies of
Winston’s records, and she produced documentation reflect-
ing Winston’s I.Q. score of 66. Dr. Daniel Reschly, a mental
retardation expert, testified for Winston, opining that "to a
reasonable degree of psychological certainty," Winston was
mentally retarded under Virginia law before he reached the
age of 18. J.A. 2141. After Reschly made what he concluded
were proper adjustments for both the Standard Error of Mea-
surement (SEM) and the Flynn effect, the low ranges for Win-
ston’s other I.Q. scores were more than two standard
deviations below the mean. Reschly further opined that Win-
ston had conceptual, social, and practical adaptive deficits
before age 18. In response to Dr. Reschly, the Commonwealth
offered an expert, Dr. Leigh Hagan. Dr. Hagan opined that
Winston was not mentally retarded before age 18, that there
was no basis for adjusting Winston’s I.Q. scores due to SEM
or the Flynn effect, and that limitations in Winston’s adaptive
behavior did not significantly impair his functioning.

Winston’s trial counsel and mitigation expert also testified
at the district court hearing. Counsel admitted that if they had
seen the additional I.Q. score of 66, they would have argued
that Winston was retarded and therefore ineligible for the
death penalty under Atkins. Dr. Nelson testified that, in addi-
10 WINSTON v. KELLY
tion to not having access to the Fairfax County records and
I.Q. score, counsel had not provided him with information
from certain teachers, social workers, and family members
that was relevant to Winston’s adaptive functioning. Nelson
acknowledged that his prior opinion — that a mental retarda-
tion defense was not sustainable — might have been different
had he possessed this information.

Following the hearing the district court issued a second
opinion, dated March 6, 2009, denying Winston’s remaining
claims. While the district court reaffirmed its decision to grant
an evidentiary hearing, it refused to consider the additional
records from Fairfax County, including the I.Q. score of 66,
because Winston had failed to exhaust that aspect of his inef-
fectiveness claim in the state courts. The district court further
noted that while Winston had diligently pursued his ineffec-
tiveness claim in the state courts, he had failed to subpoena
Lageman or the records of Winston’s fourth I.Q. test. After
rejecting the additional records from Fairfax County, the dis-
trict court concluded that nothing excused Winston’s proce-
dural default of his Atkins claim and that his ineffective
assistance claim failed on the merits. This appeal followed.

II.

We first consider Winston’s claims that his conviction
should be vacated because he received ineffective assistance
of counsel at the guilt phase of his trial or because the trial
court erroneously refused to give a lesser-included homicide
instruction. We affirm the district court’s decision to reject
these claims.

A.

Winston claims that his Sixth and Fourteenth Amendment
right to effective assistance of counsel was violated during the
guilt phase of his trial. He argues that his trial counsel failed
(1) "to prove, as they easily could have, that Rorls’ testimony
 WINSTON v. KELLY 11
was a lie" and (2) to pursue effectively their strategy of "t[y-
ing] [Tywan] Turner to this crime any and every way [they]
could." Appellant’s Br. at 11, 13. We agree with the district
court that the state court did not unreasonably apply federal
law in denying this ineffective assistance claim.

When a state court has adjudicated a claim on the merits,
a federal court may grant a writ of habeas corpus only if the
state court decision "was contrary to, or involved an unrea-
sonable application of, clearly established Federal law" or
"was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d). We "review[ ] de novo the district
court’s application of the standards of 28 U.S.C. § 2254(d) to
the findings and conclusions of the [state] court." McNeill v.
Polk, 476 F.3d 206, 210 (4th Cir. 2007). To prevail on an
ineffective assistance claim, a petitioner must establish (1)
that counsel’s performance was deficient and (2) that the defi-
ciency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). To establish deficient performance, a
petitioner "must show that counsel’s representation fell below
an objective standard of reasonableness." Id. at 688. Courts
"indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance"
to "avoid the distorting effects of hindsight." Yarbrough v.
Johnson, 520 F.3d 329, 337 (4th Cir. 2008) (quoting Strick-
land 466 U.S. at 689). To establish prejudice under Strick-
land, the petitioner "must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different." Strick-
land, 466 U.S. at 694.

Rorls, in a recent affidavit, said that his testimony at Win-
ston’s trial was "made up" to get a "bigger sentence cut" in his
own drug case. J.A. at 325. Winston argues that Rorls’s fabri-
cation would have been apparent to the jury if his counsel had
presented testimony from Winston’s cousins, Peyton Carter
and Joe Lewis. Carter and Lewis attest in affidavits that they
12 WINSTON v. KELLY
were present at the small gathering at which, according to
Rorls’s trial testimony, Winston confessed his role in the mur-
ders to Rorls for the second time. Both Carter and Lewis
swear that they were with or within earshot of Winston the
entire time at the gathering, and they did not witness a confes-
sion or overhear any private conversation between Winston
and Rorls in which Winston confessed. Counsel’s failure to
interview Carter and Lewis and call them as witnesses, Win-
ston argues, constituted deficient performance that prejudiced
his defense.

As the district court observed, Winston’s claim that defense
counsel should have called Carter and Lewis boils down to
the argument that counsel "should have further emphasized
that Rorls lied about Winston’s admissions in order to reduce
Rorls’ own prison time." J.A. 594. Defense counsel devoted
considerable effort to attacking Rorls’s credibility. The very
first questions to Rorls on cross-examination were successful
in getting him to admit that he was facing a potential life sen-
tence on cocaine conspiracy charges and that he had
"dangle[d] out" information to the authorities about the Rob-
inson murders in an effort to shorten his sentence. J.A. 110.
Rorls, who had been released from custody, admitted to the
jury that he had "bought [his] freedom" with his cooperation.
J.A. 109-10. Defense counsel "clearly and repeatedly" used
Rorls’s admissions to press to the jury the theme that Rorls
was lying to reduce his prison time. J.A. 594.

It is easy for Winston to argue now that the testimony of
Carter and Lewis should have been offered as part of the
attack on Rorls’s credibility. But trial strategy decisions are
not evaluated "through the distorting effects of hindsight."
Yarbrough, 520 F.3d at 337. Defense counsel’s strategy of
attacking Rorls’s credibility in the manner chosen, which was
undeniably focused and aggressive, "falls within the wide
range of reasonable professional assistance." Id.

Winston challenges another strategy decision of defense
counsel in arguing that they did not sufficiently develop the
 WINSTON v. KELLY 13
theory that Tywan Turner committed the murders. Specifi-
cally, Winston argues that counsel should have called Patti
Whitehead, the sister of one of the victims and the mother of
Turner’s children, because she had made a statement to police
that Turner was in Lynchburg at the time of the murders.
However, one of Winston’s defense counsel explained by
affidavit that while he and his co-counsel had subpoenaed
Whitehead, they did not call her as a witness because they
"were unable to talk to her beforehand" and "were unsure
what she would say." J.A. 1881. "On habeas review, a federal
court generally credits plausible strategic judgments in the
trial of a state case." Vinson v. True, 436 F.3d 412, 419 (4th
Cir. 2006). Here, because defense counsel could not deter-
mine beforehand what Whitehead’s testimony would be, their
decision not to call her was a plausible strategic judgment.

We conclude that defense counsel’s representation was not
deficient at the guilt phase of Winston’s trial. We likewise
conclude that the state court did not unreasonably apply
Strickland in denying Winston’s ineffective assistance claim
with respect to the guilt phase.

B.

Winston next argues that his due process rights were vio-
lated when the state trial judge refused to instruct the jury on
lesser included homicide charges. Although Winston did raise
this claim on direct appeal, he did not raise it with the
Supreme Court of Virginia in his state habeas petition. The
state did not argue in the district court, however, that the
claim was unexhausted. Because we conclude that the claim
should be denied on the merits, we need not reach exhaustion.
See 28 U.S.C. § 2254(b)(2).

"In capital cases, due process requires the court to give an
instruction on any lesser included offense when the evidence
warrants such an instruction." Bates v. Lee, 308 F.3d 411, 418
(4th Cir. 2002) (citing Beck v. Alabama, 447 U.S. 625, 637-38
14 WINSTON v. KELLY
(1980)). "Beck requires a lesser-included offense instruction
when the evidence at trial . . . casts ‘some doubt’ on a neces-
sary element of the capital charge." Hyatt v. Branker, 569
F.3d 162, 174 (4th Cir. 2009). Because each state inevitably
has its own rule for when its courts should instruct a jury on
lesser included offenses, a federal court first determines
whether the state rule offends the federal rule. See Hopper v.
Evans, 456 U.S. 605, 611-12 (1982); see also Beck, 447 U.S.
at 628-29. Here, there is no material distinction between the
Virginia rule and the federal one. See Remington v. Common-
wealth, 551 S.E.2d 620, 632-33 (Va. 2001) ("[a] second
degree murder instruction is only appropriate where it is sup-
ported by the evidence"); Briley v. Commonwealth, 273
S.E.2d 48, 54 (Va. 1980) (noting that Beck left the Virginia
rule unchanged). The Virginia rule therefore poses no consti-
tutional problem on its face; indeed, its application is equiva-
lent to application of the federal rule for the purposes of
AEDPA. Accordingly, we consider only whether the state
courts’ application of the Virginia rule was reasonable.

Winston argues that the evidence permitted the inference
that he was not the triggerman and therefore supported an
instruction on non-capital murder. Except in the case of mur-
der for hire, Virginia law bars conviction of a capital crime
when the accused was not the actual perpetrator. Frye v. Com-
monwealth, 345 S.E.2d 267, 280 (Va. 1986). Given Tranika
Turner’s unrebutted description of Winston’s clothing that
evening as being black with grey stripes, Winston contends
that a reasonable jury could have concluded from Niesha
Whitehead’s testimony that his accomplice fired the fatal
shots. Winston points specifically to Niesha’s testimony that
the shooter wore all black and the other man present wore
black with white stripes. The jury could therefore have cred-
ited Niesha’s testimony and disqualified Winston as the trig-
german.

Winston ignores the fact that the state court considered this
slice of testimony in the context of a wealth of evidence indi-
 WINSTON v. KELLY 15
cating that he was the shooter. As the Virginia Supreme Court
held on direct appeal, "[i]n light of the overwhelming evi-
dence indicating that Winston was the triggerman responsible
for Rhonda’s death, we cannot say that a short passage
excerpted from Niesha’s testimony was sufficient to merit
jury instructions on first or second degree murder, or acces-
sory after the fact." Winston, 604 S.E.2d at 44. The evidence
at trial pointing to Winston included: Rorls’s testimony that
Winston confessed to being the shooter; testimony that the
gun used in the killings was in Winston’s possession and had
his DNA on it; Niesha’s testimony that a man with a tattoo
matching Winston’s was the shooter; and Winston’s own
admission that he was present when the shootings occurred.
When the several pieces of evidence pointing to Winston’s
guilt are measured against the small portion of Niesha’s testi-
mony concerning the shooter’s clothing — which is itself
inconsistent — we cannot conclude that the trial court unrea-
sonably applied controlling law by failing to give the lesser-
included offense instruction.

The dissent reaches the opposite conclusion by minimizing
the significance of relevant evidence and failing to exercise
sufficient deference under AEDPA. The dissent argues that
Niesha Whitehead’s testimony was consistent with Winston
not being the triggerman. However, there is little doubt that
Niesha’s testimony was inconsistent, with even the dissent
noting that Niesha identified both the man in black and the
man with stripes as having the "big dog" tattoo. This inconsis-
tency tends to undermine Niesha’s testimony as a whole
rather than provide reliable evidence supporting the inference
that Winston was not the triggerman. Similarly, Niesha’s ini-
tial failure to remember whether the shooter wore white
stripes undermines the black and white distinction defense
counsel tried to draw between the two perpetrators.

The dissent appears not to be troubled by the weaknesses
in Niesha’s testimony because it concludes that "[o]ther than
the testimony of Rorls, whose credibility was questioned at
16 WINSTON v. KELLY
trial, no evidence relied on by the majority can be character-
ized as ‘overwhelming’ evidence that Winston was the trig-
german." Infra at 48. While the dissent is quick to minimize
Rorls’s testimony, it was properly admitted into evidence and
clearly implicates Winston as the shooter. The fact that Rorls
later recanted is irrelevant to our analysis under AEDPA. See
Holland v. Jackson, 542 U.S. 649, 652 (2004) ("[W]hether a
state court’s decision was unreasonable must be assessed in
light of the record the court had before it."). Similarly, the
presence of Winston’s DNA on the murder weapon, which
was itself entrusted to another by Winston after the murders,
permits an inference that Winston was the triggerman. In light
of this additional evidence, it was not unreasonable for the
Virginia Supreme Court to characterize as "overwhelming"
the evidence that Winston was the triggerman.

We cannot see how the dissent can conclude otherwise
under AEPDA’s deferential standard. The dissent states that
"the state court made an unreasonable determination of the
facts" when it found that there was overwhelming evidence
that Winston was the triggerman. Infra at 48-49. The "find-
ing" that the dissent points to is a legal determination that the
evidence did not support giving a lesser included homicide
instruction. Proper consideration of this determination is
under § 2254(d)(1) rather than § 2254(d)(2). But even if the
dissent has identified the correct standard, it has not demon-
strated why the state court’s determination was not only
incorrect but also unreasonable. The Virginia Supreme Court
concluded that no rational juror could have discounted Rorls’s
testimony, the evidence concerning the murder weapon, and
Winston’s presence at the scene and still credited Niesha’s
testimony that a man with white-striped clothing and a tattoo
tried to stop the shooting. Assuming this conclusion was error
because it crossed the line between making the legal determi-
nation of whether an inference is rational and weighing the
 WINSTON v. KELLY 17
evidence, it was not an unreasonable conclusion at variance
with AEDPA.1

Finally, we disagree with Winston that we should grant him
relief because the facts here closely resemble the facts of
Beck. In Beck the evidence was sufficient to establish that the
defendant was guilty of a serious, violent offense but left
some doubt as to whether he had committed a capital offense.
The jury, however, was instructed only on the capital charge.
Thus, the jury potentially faced the choice of either convicting
the defendant of capital murder because it believed that he
was "guilty of some serious crime and should be punished" —
an impermissible reason — or acquitting because "whatever
his crime, the defendant does not deserve death" — an equally
impermissible reason. Beck, 447 U.S. at 642. The Supreme
Court held that an instruction on the lesser included offense
was necessary in these circumstances. Winston’s jury, how-
ever, did not face the choice of death or acquittal because it
was also instructed on robbery and related charges. More
important, unlike the state court in Beck, the Supreme Court
of Virginia concluded that the evidence against Winston on
the capital charge was overwhelming. This reasonable conclu-
sion did not leave room for the quantum of doubt required by
Beck. Accordingly, Beck did not mandate a lesser-included
offense instruction.

III.

We next consider Winston’s claims that his sentence should
be vacated because: (1) Atkins v. Virginia, 536 U.S. 304
(2002), bars his execution; (2) he received ineffective assis-
tance when his counsel failed to argue that Atkins barred his
1
The dissent stresses that Beck does not present a sufficiency of the evi-
dence issue. We agree. The fact that the evidence supported the jury’s ver-
dict is not dispositive. However, we disagree with the dissent to the extent
it assumes that evidence besides Niesha’s testimony is irrelevant to
answering the Beck inquiry.
18 WINSTON v. KELLY
execution; and (3) he received ineffective assistance when his
counsel failed to adequately present mitigating evidence dur-
ing the sentencing phase. Our treatment of Winston’s Atkins-
related ineffective assistance claim renders analysis of Win-
ston’s Atkins claim unnecessary. Winston concedes that his
Atkins claim is procedurally barred absent a valid excuse, and
ineffective assistance is one such excuse. Because we vacate
the district court’s decision and remand on Winston’s Atkins-
related ineffective assistance of counsel claim, we need not
decide on this appeal whether any other excuse applies.

A.

Winston claims that he received ineffective assistance
when his counsel failed to mount a defense under Atkins v.
Virginia, 536 U.S. 304 (2002). In Atkins the Supreme Court
held that the Eighth Amendment prohibits the execution of
the mentally retarded, but it left to the states the task of
enforcing the constitutional restriction. Id. at 306, 317. The
Virginia legislature enacted a statute defining mental retarda-
tion shortly after Atkins was decided. To prove mental retar-
dation under the statute, the accused must establish a
disability, "originating before the age of 18 years," character-
ized by both

(i) significantly subaverage intellectual functioning
as demonstrated by performance on a standardized
measure of intellectual functioning administered in
conformity with accepted professional practice, that
is at least two standard deviations below the mean
and (ii) significant limitations in adaptive behavior
as expressed in conceptual, social and practical adap-
tive skills.

Va. Code. Ann. § 19.2-264.3:1.1(A). The Supreme Court of
Virginia later held that "[w]hether [a defendant] is mentally
retarded [is] a factual issue for the jury to determine." Atkins
v. Commonwealth, 631 S.E.2d 93, 98 (Va. 2006).
 WINSTON v. KELLY 19
The district court rejected Winston’s Atkins-related ineffec-
tive assistance claim, concluding that Strickland’s prejudice
requirement had not been satisfied. Proving prejudice required
Winston to demonstrate a reasonable probability that a fact-
finder would have determined he was mentally retarded under
Virginia law. In rejecting Winston’s claim in his state habeas
proceeding, the Virginia Supreme Court focused on whether
Winston had demonstrated "significantly subaverage intellec-
tual functioning." To this end, Winston had presented the state
court with I.Q. scores of 77, 73, and 76 as well as evidence
that Fairfax County had diagnosed him with mild retardation
in 1997. The Virginia Supreme Court rejected the three I.Q.
scores as evidence of retardation because it had previous held
"that the maximum score for a classification of mental retar-
dation [was] an I.Q. score of 70." J.A. 305. The court rejected
the Fairfax County diagnosis because it had been made for the
purpose of establishing special education eligibility, and the
definition of mental retardation used by the county did not
require an I.Q. score below 70. The district court concluded
that the Virginia Supreme Court’s determination was not
objectively unreasonable.

In reaching its decision, however, the district court refused
to consider new evidence that Fairfax County did indeed give
Winston an I.Q. test and that the score was 66 — clearly
below 70. In Winston’s state habeas proceedings, the Virginia
Supreme Court had denied, without explanation, his motion
for discovery and an evidentiary hearing to further develop
the factual basis of his claims. Consequently, it was not until
two weeks before the evidentiary hearing scheduled by the
district court that Winston, through the efforts of his counsel,
was able to obtain the additional test score. The district court
noted that the new evidence "rais[ed] interrelated questions of
whether Winston failed to develop in state court proceedings
the factual basis he now relies on to support his ineffective
assistance claim and whether Winston has failed to exhaust
that claim." J.A. 2148. After the evidentiary hearing, how-
ever, the district court concluded that both questions were
20 WINSTON v. KELLY
"perhaps best viewed analytically as exhaustion questions."
Id. It determined that the potentially dispositive new evidence
should not be considered on the merits because it rendered
Winston’s claim unexhausted.

The application of AEDPA is, of course, implicated in the
question of whether the district court should have considered
Winston’s new evidence. We agree with the district court’s
original observation that the question raises both an exhaus-
tion issue and a failure-to-develop issue. We disagree that the
two issues should be collapsed into an exhaustion issue post
hearing, and we therefore consider each in turn. See Boyko v.
Parke, 259 F.3d 781, 788-92 (7th Cir. 2001). Finally, we note
that because mental retardation is at bottom a factual issue,
review of Winston’s new evidence implicates § 2254(d)(2)
and § 2254(e)(1), both provisions of AEDPA governing fed-
eral habeas review of state court factual findings. Because we
conclude that the district court should have considered the
evidence, we will discuss the appropriate application of these
provisions on remand.

1.

"An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State."
28 U.S.C. § 2254(b)(1). The exhaustion requirement applies
as much to the development of facts material to a petitioner’s
claims as it does to the legal principles underlying those
claims. See Breard v. Pruett, 134 F.3d 615, 619 (4th Cir.
1998). For a claim to be exhausted, "both the operative facts
and the controlling legal principles must be presented to the
state court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.
1997) (quotation marks and citations omitted). If the rule was
otherwise, petitioners could "expedite federal review by delib-
erately withholding essential facts from the state courts," thus
upsetting the careful balance struck by Congress between
 WINSTON v. KELLY 21
respecting the finality of state court judgments and enforcing
federal rights. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).
The exhaustion requirement does not, however, prohibit a dis-
trict court from considering evidence not presented to the
state courts. "[S]upplemental evidence" that does not "funda-
mentally alter the legal claim already considered by the state
courts" can properly be considered by a district court. Id. The
question of when new evidence "fundamentally alters" an oth-
erwise exhausted claim "is necessarily case and fact specific."
Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005).

In Vasquez v. Hillery the Supreme Court addressed the ten-
sion between the exhaustion requirement and consideration of
new evidence. In that case the petitioner alleged that African-
Americans had been systematically excluded from the grand
jury that indicted him. In the federal habeas proceeding, the
petitioner introduced two categories of evidence that had not
been presented to the state courts: (1) affidavits stating that
qualified African-Americans had been available but had not
been called; and (2) statistical evidence — based on census
data that had been available to the state courts — assessing
the mathematical probability that chance could have
accounted for the exclusion of African-Americans from grand
jury panels. The Court held that the affidavits supported a
proposition already well-substantiated by the record before
the state courts and that the statistical analysis "added nothing
to the case that th[e] Court had not considered intrinsic to the
consideration of any grand jury discrimination claim." 474
U.S. at 259. Without further explanation, the Court concluded
that this evidence could be considered because it did not fun-
damentally alter the petitioner’s equal protection claim.

We read Vasquez to permit a district court to consider new
evidence if it supports factual allegations for which there is
already at least some support in the state record. The evidence
in Vasquez was supplemental insofar as there was already evi-
dence in the state record from which a fact-finder could rea-
sonably determine the existence of facts essential to the
22 WINSTON v. KELLY
petitioner’s claim. This reading is consistent with circuit pre-
cedent requiring petitioners to present the operative facts of
their claims to the state courts. Matthews, 105 F.3d at 911.
We note that the strength of the evidence in the state court
record is irrelevant to our interpretation. Suppose, for exam-
ple, that a petitioner on federal habeas introduces new evi-
dence to establish the existence of fact X, a fact required to
prove his claim. The claim will inevitably be stronger, regard-
less of the evidence the petitioner presented to the state
courts. However, if the petitioner presented no evidence to the
state courts to establish the existence of fact X, the claim will
be fundamentally altered by the new evidence presented to the
district court.

The district court concluded that the addition of Winston’s
1997 I.Q. score of 66 fundamentally altered his ineffective
assistance of counsel claim under Vasquez. It relied primarily
on two rationales, the first centering on the potentially dispo-
sitive nature of the evidence:

Had the Supreme Court of Virginia confronted a
full-scale I.Q. score of 66, it might have viewed the
Strickland prejudice prong differently. Instead, Win-
ston presented three scores over 70 and evidence that
a likely non-retrievable fourth score might have been
under 70. Therefore, there is a substantial difference
between the operative facts that the Supreme Court
of Virginia confronted and the operative facts here.

J.A. 2150. As an alternative rationale, the district court cited
counsel’s failure to ask the Virginia Supreme Court for sub-
poena power. With that power, counsel could have subpoe-
naed Lageman and discovered the score during state habeas
proceedings. Because counsel could have obtained and pre-
sented the score to the state court, the district court reasoned
that they cannot now present it to the federal courts.

We conclude that the district court erred in its analysis.
First, it is irrelevant to the "fundamentally alters" inquiry
 WINSTON v. KELLY 23
whether the Virginia Supreme Court would have decided the
claim differently had it seen the new evidence presented by
Winston. As noted above, whether new evidence fundamen-
tally alters a claim does not depend on whether it makes the
claim stronger. The key is whether Winston offered some evi-
dence in state court to support the factual claim that he pos-
sesses significantly sub-average intellectual functioning as
measured by a standardized test. Winston presented evidence
to the Virginia Supreme Court that Fairfax County had diag-
nosed him as mentally retarded based on standardized testing,
that one I.Q. score should be considered below 70 due to the
Flynn effect, and that he possessed substantial deficits in
adaptive behavior. While the Virginia Supreme Court was
unpersuaded in the absence of an actual score below 70, the
court’s determination was based on the weight of the evidence
rather than the lack of any evidence to support Winston’s
claim.

Wise v. Warden, Maryland Penitentiary, 839 F.2d 1030
(4th Cir. 1988), a case cited by the district court, does not pre-
clude our analysis. In Wise the petitioner claimed that the
prosecution had violated Giglio v. United States, 405 U.S. 150
(1972), by withholding a cooperation agreement with a key
witness. In the state courts the petitioner had offered little
more than "bald assertions" and the affidavit of a fellow
inmate attesting to the existence of the agreement. Wise, 839
F.2d at 1032, 1034. In the district court, however, the peti-
tioner presented the agreement itself as well as statements by
the inmate-witness to the police. Wise held that the claim had
not been exhausted, noting that there was "a world of differ-
ence between conjecture and proof" and that mere conjecture
was all that supported the petitioner’s claim when it was pre-
sented to the state courts. Id. at 1034. While Wise did refer to
the "significantly different and stronger evidentiary posture"
of the petitioner’s claim in the district court, id. at 1033 (quot-
ing Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983)), it
used the words "significantly different and stronger" to distin-
guish a claim without evidentiary support from one with evi-
24 WINSTON v. KELLY
dentiary support. Unlike the case before us today, no
reasonable fact-finder in Wise could have found the facts nec-
essary to support the petitioner’s claim from the evidence
presented to the state courts.

The district court’s alternative rationale fares no better.
Winston’s failure to request a subpoena from the Virginia
Supreme Court is simply not relevant to the "fundamentally
alters" inquiry. Indeed, considering this "failure" conflates the
exhaustion inquiry with the standard for obtaining an eviden-
tiary hearing under 28 U.S.C. § 2254(e)(2), which we discuss
below. We note, however, that even if Winston’s efforts in the
state proceedings were relevant, the district court would have
been wrong to hold Winston responsible for failing to seek a
subpoena. Death penalty habeas petitioners seeking discovery
in Virginia are required by statute to request an evidentiary
hearing from the Virginia Supreme Court. See Va. Code.
§ 8.01-654(c)(1); see also Hedrick v. Warden of the Sussex I
State Prison, 570 S.E.2d 840, 862 (Va. 2002). Only if that
court grants the hearing request and refers the petitioner to a
circuit court for discovery would a subpoena request be
appropriate. Here, Winston did request an evidentiary hearing
from the Virginia Supreme Court, and that hearing was
denied. Requesting a subpoena directly would have been pro-
cedurally improper, and Winston cannot be faulted for failing
to take that step.

2.

In district court the state did not argue that the introduction
of the 1997 I.Q. score fundamentally altered Winston’s inef-
fective assistance claim. Instead, it argued that the court could
not consider the score because Winston had failed to develop
the factual basis of his claim in the state courts. At oral argu-
ment before us, the state continued to advance this failure-to-
develop argument despite tacit acknowledgment that the dis-
trict court had correctly applied the "fundamentally alters"
test. We agree that the question of whether Winston failed to
 WINSTON v. KELLY 25
develop the factual basis of his claim in the state courts is
independent of the exhaustion question. We conclude, how-
ever, that Winston did not fail to develop the factual record
in state court.

The requirement that petitioners develop the factual basis
of their claims in the state courts has its source in 28 U.S.C.
§ 2254(e)(2):

(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim
unless the applicant shows that —

(A) the claim relies on —

(1) a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was pre-
viously unavailable; or

(ii) a factual predicate that could not
have been previously discovered through
the exercise of due diligence; and

(B) the facts underlying the claim would
be sufficient to establish by clear and con-
vincing evidence that but for constitutional
error, no reasonable factfinder would have
found the applicant guilty of the underlying
offense.

The Supreme Court has held that the word "failed" in the
opening line of this section connotes fault. Michael Williams
v. Taylor, 529 U.S. 420, 431-32 (2000). Specifically, it held
that "a failure to develop the factual basis of a claim is not
established unless there is a lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel."
26 WINSTON v. KELLY
Id. at 432. If a district court concludes that the petitioner was
diligent in developing the factual basis of his claim, it may
grant an evidentiary hearing as an exercise of discretion.
Schriro v. Landrian, 550 U.S. 465, 473 (2007) ("Prior to
[AEDPA], the decision to grant an evidentiary hearing was
generally left to the sound discretion of district courts. That
basic rule has not changed."). This discretion should, how-
ever, be exercised with restraint. "[F]ederal evidentiary hear-
ings ought to be the exception, not the rule." Pike v. Guarino,
492 F.3d 61, 70 (1st Cir. 2007). They are not "intended to
provide a forum in which to retry state cases," but rather their
"prototypical purpose [is] to fill a gap in the record or to sup-
plement the record on a specific point." Id. As the Supreme
Court has said: "Because the deferential standards prescribed
by [AEDPA] control whether to grant habeas relief, a federal
court must take into account those standards in deciding
whether an evidentiary hearing is appropriate." Schriro, 550
U.S. at 474.

In its first opinion the district court concluded that it had
discretion to grant Winston a hearing on his Atkins and
Atkins-related ineffective assistance claims, and it exercised
that discretion. After citing to the requirements of
§ 2254(e)(2), the district court held that: "(1) Winston dili-
gently pursued his habeas corpus claims that Atkins bars his
execution and that he received ineffective assistance of coun-
sel through the failure to investigate this claim; and (2) it is
not wholly implausible that he could establish his claims even
in light of AEDPA’s deferential standards." J.A. 617. In its
post-hearing second opinion the district court declined to
reconsider its finding of diligence. It is therefore somewhat
puzzling that the state goes so far as to declare in its brief that
"[t]he district court’s finding with respect to Winston’s failure
to develop this claim is exceptionally clear: Winston did not
exercise due diligence." Appellee’s Br. at 37. The state is
wrong.

Perhaps the district court confused the state by considering
Winston’s failure to seek a subpoena in its analysis of the
 WINSTON v. KELLY 27
exhaustion question. Whether Winston could have or should
have sought a subpoena is relevant to the issue of Winston’s
diligence, not the issue of exhaustion. In any event, we do not
read the district court’s discussion of the subpoena matter as
a retreat from its otherwise clear finding of diligence. More-
over, as we have noted, whatever fault the district court
assigned to Winston for failing to seek a subpoena was simply
misplaced.

Finally, we cannot say that the district court abused its dis-
cretion in holding an evidentiary hearing. The district court
specifically considered whether to hold a hearing in light of
AEDPA’s deferential standards, and the court concluded that
it was not implausible that Winston would succeed if he
proved the facts alleged in his petition. Winston had never
had a hearing on his Atkins and Atkins-related ineffective
assistance claims because the Virginia Supreme Court denied
him one, and the district court acted properly to provide him
such an opportunity on a colorable claim. The district court
narrowly tailored the hearing to supplement the record on a
particular issue, and there was no attempt to retry the entire
case against Winston.

Because we can find no legitimate justification for the dis-
trict court’s exclusion of Winston’s 1997 I.Q. score, we con-
clude that remand is appropriate so that the court can
reconsider Winston’s Atkins-related ineffective assistance
claim with the score in evidence. The district court was wrong
to exclude the score on the ground that it rendered Winston’s
claim unexhausted, and the state is wrong that the score
should have been excluded because the hearing in which the
score was introduced was improperly granted. Winston is
entitled to a decision on his claim based on all of the admissi-
ble evidence in the record. We remand for the district court
to make this decision in the first instance.

3.

The issue remains as to what standard of review the district
court should apply on remand. Winston insists that the district
28 WINSTON v. KELLY
court should apply § 2254(e)(1) because that provision applies
exclusively when an evidentiary hearing is appropriate in fed-
eral court. The state counters that the district court was right
to apply § 2254(d)(2). While we reject Winston’s argument
that § 2254(d)(2) will never apply once the district court has
granted an evidentiary hearing, we conclude that it does not
apply in this particular case. The district court should still
apply § 2254(e)(1) to any factual findings made by the state
court and make any additional findings necessary to resolve
Winston’s claims. Once the facts are determined, the district
court should apply Strickland’s standards without any defer-
ence to the decision of the Supreme Court of Virginia. The
Virginia court had its opportunity to consider a more com-
plete record, but chose to deny Winston’s request for an evi-
dentiary hearing. Accordingly, comity and finality do not
require deference when material evidence later surfaces in a
federal habeas hearing.

i.

Section 2254(d) provides AEDPA’s framework for review-
ing habeas petitions:

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judg-
ment of a State court shall not be granted with
respect to any claim that was adjudicated on the mer-
its in State court proceedings unless the adjudication
of the claim —

(1) resulted in a decision that was con-
trary to, or involved an unreasonable appli-
cation of, clearly established Federal law,
as determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was based
on an unreasonable determination of the
 WINSTON v. KELLY 29
facts in light of the evidence presented in
the State court proceeding.

Section 2254(d)(1) describes the standard of review to be
applied to claims challenging how the state courts applied
federal law, while § 2254(d)(2) describes the standard to be
applied to claims challenging how the state courts determined
the facts. Both provisions direct federal courts to assess the
reasonableness of the state court determinations, and both
assessments must be made in light of the evidence the state
courts had before them. Holland, 542 U.S. at 652. The only
limitation on § 2254(d)’s application is that the claims sub-
mitted must have been "adjudicated on the merits" in state
court. When a claim has not been adjudicated on the merits
by the state court, a federal court reviews the claim de novo.
Cone v. Bell, 129 S. Ct. 1769, 1784 (2009); Monroe v. Ange-
lone, 323 F.3d 286, 297 (4th Cir. 2003); Wilson v. Workman,
577 F.3d 1284, 1290 (10th Cir. 2009); Pike, 492 F.3d at 67;
Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003).

A state court’s judgment is unreasonable under
§ 2254(d)(1) "if the state court correctly identifies the govern-
ing legal principle from [Supreme Court] decisions but unrea-
sonably applies it to the facts of the particular case." McNeill
v. Polk, 476 F.3d 206, 211 (4th Cir. 2007) (quotation marks
and citations omitted). The state court’s application, however,
"must have been more than incorrect or erroneous. . . . [It]
must have been ‘objectively unreasonable.’" Wiggins v.
Smith, 539 U.S. 510, 520 (2003) (quotation marks and cita-
tions omitted); accord Terry Williams v. Taylor, 529 U.S.
362, 410-12 (2000). A similar analysis naturally applies to the
analogous and adjacent language in § 2254(d)(2). For a state
court’s factual determination to be unreasonable under
§ 2254(d)(2), it must be more than merely incorrect or errone-
ous. Schriro, 550 U.S. at 474. It must be sufficiently against
the weight of the evidence that it is objectively unreasonable.

An apparent tension between § 2254(d)(2) and § 2254(e)(1)
arises because the latter section provides an alternate and
30 WINSTON v. KELLY
seemingly inconsistent standard for review of state court fac-
tual determinations:

(e)(1) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determi-
nation of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correct-
ness by clear and convincing evidence.

This section does not concern itself with the reasonableness
of factual determinations by the state courts but with the cor-
rectness or incorrectness of those determinations. It further
assigns a burden of proof to the petitioner — clear and con-
vincing evidence — for negating them. Finally, unlike
§ 2254(d), there are no limitations on the application of
§ 2254(e). The precise interplay between these provisions has
split the courts of appeals. See Lambert v. Blackwell, 387 F.3d
210, 234 (3d Cir. 2004) ("a comprehensive interpretation of
AEDPA’s factual review scheme has yet to emerge from the
federal courts"); Wood v. Allen, 542 F.3d 1281, 1303-05 &
n.23 (11th Cir. 2008);2 Teti v. Bender, 507 F.3d 50, 57-58 (1st
Cir. 2007); Guidry v. Dretke, 397 F.3d 306, 324-27 (5th Cir.
2005); Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir.
2004).

The Supreme Court has held that § 2254(d)(2) and
2
The Supreme Court granted certiorari in Wood v. Allen and issued its
decision on January 20, 2010, without addressing the question we consider
above. The Court acknowledged that "[a]lthough we granted certiorari to
resolve the question of how §§ 2254(d)(2) and (e)(1) fit together, we find
once more that we need not reach this question, because our view of the
reasonableness of the state court’s factual determination in this case does
not turn on any interpretive difference regarding the relationship between
these provisions." Wood v. Allen, No. 08-9156, 558 U.S. __, slip op. at 9
(Jan. 20, 2010). Nothing in our opinion today is inconsistent with the
Court’s decision.
 WINSTON v. KELLY 31
§ 2254(e)(1) provide "independent requirements" for review
by the federal courts. Miller-El v. Cockrell, 537 U.S. 322, 341
(2003). The sections should not, for instance, be merged to
"require [the] petitioner to prove that a decision is objectively
unreasonable by clear and convincing evidence." Id. Both
provisions apply independently to all habeas petitions. "To
secure habeas relief, petitioner must demonstrate that a state
court’s [factual] finding . . . was incorrect by clear and con-
vincing evidence, 28 U.S.C. § 2254(e)(1), and that [it] was
‘objectively unreasonable’ in light of the record before the
court." Id. at 348 (emphasis added); accord Miller-El v.
Dretke, 545 U.S. 231, 266 (2005). The Supreme Court has
nevertheless left open the precise question of when and how
§ 2254(e)(1)’s presumption of correctness applies. See Rice v.
Collins, 546 U.S. 333, 339 (2006).

Given these principles, we conclude that § 2254(d)(2) and
§ 2254(e)(1) will both ordinarily apply even after a district
court has properly held an evidentiary hearing. First, we can
discern nothing inconsistent with the concurrent application
of § 2254(d)(2) and § 2254(e)(1) after a district court has held
an evidentiary hearing. If a petitioner succeeds under
§ 2254(e)(1), he has merely proven that the state court finding
was incorrect. To satisfy § 2254(d)(2), the petitioner must
prove that the state court was not only incorrect, but also
objectively unreasonable. Second, § 2254(e)(1) should apply
because there is no limitation in the section’s text. While there
might a situation when it would be improper to apply a pre-
sumption of correctness to state court factual findings, for
example, when the state proceedings violated due process,
this would be the exception rather than the rule. See Taylor,
366 F.3d at 1000; see also 1 Randy Hertz & James S. Lieb-
man, Federal Habeas Corpus Practice and Procedure § 20.2c.
Third, the only limitation on § 2254(d)(2) — that the claim
have been adjudicated on the merits — will not automatically
apply simply because the district court held an evidentiary
hearing. If the record evidence after the hearing is substan-
tially the same as the evidence presented to the state court,
32 WINSTON v. KELLY
there is no reason why the district court cannot assess whether
the state court made an "unreasonable determination of the
facts in light of the evidence" presented to it.

When, however, the petitioner offers, for the first time in
federal habeas proceedings, new, material evidence that the
state court could have considered had it permitted further
development of the facts, an assessment under § 2254(d) may
be inappropriate. The requirement that § 2254(d) be applied
only to claims "adjudicated on the merits" exists because
comity, finality, and federalism counsel deference to the judg-
ments of state courts when they are made on a complete
record. Cf. Michael Williams, 529 U.S. at 436. "In this
respect, the ‘exhaustion’ and ‘adjudicated on the merits’ ele-
ments of federal habeas practice are mirror images." Wilson,
577 F.3d at 1292. Exhaustion requires that the state courts
have an opportunity to apply the law and consider all the evi-
dence relevant to the petitioner’s claim. Baldwin v. Reese, 541
U.S. 27, 29 (2004); Vasquez, 474 U.S. at 257. When a state
court refuses to opine on the merits of a claim properly pre-
sented to it, exhaustion is satisfied. Cone, 129 S. Ct. at 1784;
Pike, 492 F.3d at 67. Similarly, when a state court forecloses
further development of the factual record, it passes up the
opportunity that exhaustion ensures. Wilson, 577 F.3d at
1292-93; Drake, 321 F.3d at 345; see also Monroe, 323 F.3d
at 297-98. If the record ultimately proves to be incomplete,
deference to the state court’s judgment would be inappropri-
ate because judgment on a materially incomplete record is not
an adjudication on the merits for purposes of § 2254(d). Wil-
son, 577 F.3d at 1292; Drake, 321 F.3d at 345. New, material
evidence, introduced for the first time during federal habeas
proceedings, may therefore require a de novo review of peti-
tioner’s claim.

Our conclusion is not new to this circuit. In Monroe v.
Angelone, 323 F.3d 286 (2003), we held that "AEDPA’s def-
erence requirement does not apply when a claim made on fed-
eral habeas review is premised on Brady material that has
 WINSTON v. KELLY 33
surfaced for the first time during federal habeas proceedings."
Id. at 297. In Monroe the petitioner had sought habeas relief
from the Supreme Court of Virginia for violations of Brady
v. Maryland, 373 U.S. 83 (1963), based on nine categories of
exculpatory evidence allegedly withheld by the prosecution.
The petitioner had also sought discovery to seek disclosure of
additional evidence that might have been withheld. The state
court denied his claims and "refused, without explanation, to
authorize . . . discovery." Monroe, 323 F.3d at 294. The fed-
eral district court, however, granted discovery and an eviden-
tiary hearing, and the petitioner uncovered several additional
categories of withheld exculpatory evidence. On appeal we
held that de novo review was appropriate for those portions
of petitioner’s Brady claim that were based on the new evi-
dence. Id. at 297. In addition, we held that it was necessary
to consider all the evidence in the record — not just the new
evidence — because the materiality element of a Brady claim
requires a collective assessment of whether introduction of the
exculpatory evidence might have affected the outcome of the
trial. As a result, we could not "accord AEDPA deference on
an item-by-item basis to the . . . items of exculpatory material
considered in state court." Id. at 298.

Our conclusion in this case is also consistent with holdings
reached in similar cases in the Second and Tenth Circuits. In
Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2003), the Second
Circuit concluded that de novo review of the petitioner’s due
process claim was appropriate when "the state courts did not
permit the development of the factual record" and therefore
relied on an incomplete record in denying the claim. Id. at
345. Indeed, the Second Circuit actually remanded the case
for discovery and an evidentiary hearing. In Wilson v. Work-
man, 577 F.3d 1284 (10th Cir. 2009), the Tenth Circuit, sit-
ting en banc, concluded that de novo review of the
petitioner’s ineffective assistance claims was appropriate
because the Oklahoma state courts denied the claims based
"on a factual record that was, solely as a result of [a] state
procedural rule, incomplete." Id. at 1290-91. Like the Virginia
34 WINSTON v. KELLY
Supreme Court in this case, the Oklahoma Court of Criminal
Appeals denied the petitioner an evidentiary hearing and
therefore passed up any opportunity to consider evidence
material to the petitioner’s ineffective assistance claim.

The court in Wilson also addressed what might be an addi-
tional concern with our conclusion today: that habeas petition-
ers seeking de novo review of their claims need only produce
some small sliver of new evidence in federal court. Like the
Wilson court, we conclude that this concern is "greatly exag-
gerated." Id. at 1294. As we have emphasized above, the
requirements that petitioners exhaust their state remedies and
diligently develop the record in state court are exacting bur-
dens. Even if the state courts deny a petitioner’s request for
an evidentiary hearing, new evidence surfacing in federal
court that fundamentally alters a claim will render the claim
unexhausted. Similarly, while requesting an evidentiary hear-
ing from the state courts may be necessary to satisfy
§ 2254(e)(2)’s diligence requirement, it may not always be
sufficient. See Michael Williams, 529 U.S. at 437 ("Diligence
will require in the usual case that the prisoner, at a minimum,
seek an evidentiary hearing in state court in the manner pre-
scribed by state law.") (emphasis added). "In light of these
safeguards, we see little risk that habeas petitioners will mis-
apply [our] holding to obtain unwarranted de novo review in
the federal courts." Wilson, 577 F.3d at 1295.

ii.

Turning more specifically to this case, we hold that
§ 2254(d) does not apply to Winston’s Atkins-related ineffec-
tive assistance claim and that the district court should not
afford deference to the Supreme Court of Virginia’s applica-
tion of Strickland. Winston’s additional I.Q. score is material
to whether he is retarded under Virginia law and therefore
material to whether he was prejudiced under Strickland by his
counsel’s conduct. Moreover, like the petitioner in our Mon-
roe opinion, Winston requested discovery and an evidentiary
 WINSTON v. KELLY 35
hearing from the state court to further develop the factual
record. Like the state court in Monroe, the Virginia Supreme
Court denied Winston’s request and passed on the opportunity
to adjudicate Winston’s claim on a complete record. Finally,
as in Monroe, the state court adjudicated a claim that was
materially incomplete. The deficient performance and preju-
dice inquiries under Strickland present mixed questions of law
and fact, Smith v. Moore, 137 F.3d 808, 817 (4th Cir. 1998),
that require a collective evaluation of the evidence rather than
an analysis confined to a subset of the facts. See Kyles v.
Whitley, 514 U.S. 419, 436-37 (1995); see also Cargle v. Mul-
lin, 317 F.3d 1196, 1206 (10th Cir. 2003). Consequently, the
Virginia Supreme Court’s legal conclusions are not neatly
separable into those based on a complete record and those
based on an incomplete record. Accordingly, on remand the
district court should not afford any deference under AEDPA
to the Virginia Supreme Court’s application of the Strickland
standards.

AEDPA deference under § 2254(e)(1), however, will be
appropriate to any relevant factual findings made by the Vir-
ginia Supreme Court. While that court does not appear to
have found that Winston was not mentally retarded — a fac-
tual matter — we note that it did make several factual find-
ings concerning the tests Winston took and the Fairfax
County assessment procedures. On remand these findings are
entitled to a presumption of correctness, and should Winston
wish to overcome this presumption, he will have to do so by
clear and convincing evidence. Where the Virginia Supreme
Court did not make a factual finding, the district court must
make its own without regard to what the state court might
have done.

Finally, in making its factual determinations, the district
court should not only consider Winston’s 1997 I.Q. score, but
also decide whether to consider Winston’s proffered evidence
concerning the Flynn effect and SEM. The only time the Vir-
ginia Supreme Court has even mentioned the Flynn effect in
36 WINSTON v. KELLY
a published opinion was in this case, and it has never consid-
ered the effect of SEM. The Virginia court did not discuss the
Flynn effect beyond stating that Winston had offered evidence
concerning it. The court concluded that:

This Court has previously held that the maximum
score for a classification of mental retardation is an
I.Q. score of 70. Petitioner provides no documenta-
tion that he was diagnosed as being mentally
retarded before the age of 18 in accordance with the
legal definition of mental retardation established by
the legislature. Thus, petitioner has failed [to satisfy
the requirements of Strickland].

J.A. 305-06 (citations omitted). The most that can be reason-
ably inferred from this holding is that the Virginia Supreme
Court was unconvinced by Winston’s evidence concerning
the Flynn effect and SEM. While a federal court sitting in
habeas could not conclude that such a holding violated
§ 2254(d), see Green v. Johnson, 515 F.3d 290, 300 n.2 (4th
Cir. 2008), the district court will not be applying Section
2254(d) on remand. Instead, it will be weighing Winston’s
expert evidence, documentary evidence, and proffered testi-
mony — taking § 2254(e)(1) into account when necessary —
to determine the facts. Once determined, the district court will
consider de novo whether there is a reasonable probability
that, but for his counsel’s deficient performance, Winston
would have succeeded on his Atkins claim.

B.

Lastly, we affirm the district court’s denial of Winston’s
claim that he received ineffective assistance when his counsel
failed to present an adequate case in mitigation. The Supreme
Court of Virginia held that Winston had failed to demonstrate
deficient performance and prejudice, and the district court
held that this was not an unreasonable application of Strick-
 WINSTON v. KELLY 37
land. We affirm because it was not unreasonable to conclude
that there was no prejudice.

Because a verdict recommending death in Virginia must be
unanimous, Va. Code Ann. § 19.2-264.4(E), the prejudice
inquiry requires Winston to demonstrate that there was a rea-
sonable probability that, but for his counsel’s failures, a single
juror would have voted against death. Each juror has discre-
tion to vote for death provided that: (1) the prosecution proves
one of Virginia’s statutory aggravating factors beyond a rea-
sonable doubt; and (2) the jury considers all the evidence in
mitigation. See Watkins v. Virginia, 331 S.E.2d 422, 437-38
(Va. 1985). Winston does not argue that either of these
requirements was not satisfied. Accordingly, we consider
whether the Supreme Court of Virginia unreasonably applied
federal law when it concluded that no juror would have exer-
cised his or her discretion to vote against death.

Winston argues that the Virginia Supreme Court unreason-
ably applied federal law because at least one juror would have
exercised his or her discretion to vote against death if: (1) his
trial counsel had elicited facts concerning his sub-average
intellectual functioning through live witnesses rather than
through the written psychological reports that were submitted
to the jury; (2) the jury had seen Winston’s 1997 psychologi-
cal records and I.Q. score of 66; and (3) his trial counsel had
presented a more detailed narrative of his traumatic child-
hood. In rejecting these arguments, the Virginia Supreme
Court emphasized that Winston "does not identify the sub-
stance of any additional evidence he contends counsel should
have presented and does not explain how such evidence
would not have been cumulative." J.A. 306; accord id. at 308.

In rejecting Winston’s first argument about the need for
live witnesses on the issue of low functioning intelligence, the
Virginia Supreme Court rested its determination primarily on
the rich content of the written psychological reports. The
reports contained many assessments easily understood by the
38 WINSTON v. KELLY
lay juror, including findings that Winston was of "mentally
deficient to average intelligence" with "extreme problems
maintaining attention and effort" and "many emotional con-
cerns resulting from his abandonment and rejection from vari-
ous family members." Id. at 306. Hence, the core of
Winston’s mitigation case was before the jury. Also, Winston
had not shown that any particular testimony would have mate-
rially added to the reports.

Winston responds by arguing that the manner rather than
the substance of counsel’s mitigation case is the critical fac-
tor. He argues that the district court "treats manner of presen-
tation as a complete irrelevancy." Appellant’s Br. at 77.
Winston does not, however, cite any case law in this circuit
to support his argument. Moreover, what case law Winston
does cite does not stand for the proposition that ineffective
assistance follows from a failure to present evidence through
live witnesses. See, e.g., Gray v. Branker, 529 F.3d 220, 234-
38 (4th Cir. 2008) (prejudice found when counsel offered no
medical explanation for defendant’s behavior); Williams v.
Allen, 542 F.3d 1326, 1342 (11th Cir. 2008) (prejudice found
when counsel failed to discover evidence that "paint[ed] a
vastly different picture" than that presented to the jury). While
we acknowledge that there might be a case when the manner
in which counsel presents evidence is so abysmal that it sup-
ports a finding of prejudice, the line would have to be drawn
carefully so as not to conflate deficient performance with
prejudice. We simply cannot conclude in this case that the
Virginia Supreme Court unreasonably applied federal law by
discounting the manner in which counsel presented mitigation
evidence.

Winston’s second argument — based on counsel’s failure
to introduce his 1997 psychological records and I.Q. score —
does not survive a careful comparison of the psychological
records the jury did see and the records it did not. Winston’s
1997 psychological evaluation reads very much like his previ-
ous evaluations. Both his 1995 and 1997 evaluations agree
 WINSTON v. KELLY 39
that Winston was "cooperative" but very "immature." J.A.
1917, 1979. Where Winston largely disclaims responsibility
for his own bad acts in the 1995 evaluation, he "reports that
he does not feel guilty after doing something wrong" in the
1997 evaluation. J.A. 1919, 1981. With regard to I.Q. scores,
his verbal I.Q. for both the 1995 and 1997 evaluations was
consistent at 60, which both evaluations describe as being
within the range of "mild mental retardation". J.A. 1918,
1980. His performance I.Q. scores on his 1987 and 1990 tests
were actually lower than his score on the 1997 test, and his
1990 and 1997 evaluations both describe his nonverbal skills
as "borderline." J.A. 1913, 1980. Finally, each of the evalua-
tions describes his intellectual functioning at various points as
"limited", "borderline", or "mentally deficient." J.A. 1910,
1915, 1921, 1982.

Despite these similarities between what was introduced and
what was not, Winston argues that "the information possessed
by the jury was tremendously incomplete." Appellant’s Br. at
77. The question, of course, is whether the information pos-
sessed by the jury was materially incomplete. Although the
jury did lack certain details, Winston cannot suggest prospects
for the material omission category except for the single one-
page document in which Fairfax County changed his primary
disability classification to "mild retardation", J.A. 1876, and
the 1997 I.Q. score of 66. While Winston’s classification and
1997 I.Q. score are material to his Atkins claim, there is no
reason to believe that these items would have been persuasive
to the jury as ordinary mitigating evidence. With all of the
similarities between the submitted and unsubmitted evalua-
tions described above, the question is whether the classifica-
tion and the additional low score would have made a
difference. Because the reports before the jury had already
classified Winston’s verbal abilities as mildly retarded, we
cannot conclude that a more general classification of mild
retardation would have made a material difference. Similarly,
we cannot conclude that the difference between a score of 73
and 66, while perhaps critical to a finding of mental retarda-
40 WINSTON v. KELLY
tion under Atkins, would have made a material difference to
a lay juror considering a broader range of mitigation evidence
about intellectual functioning.

The dissent contends that the jury did not possess at least
ten items of material information. In most of the instances
cited, however, the jury either had the information or had
information that was essentially indistinguishable. Items 3
(deficient verbal skills) and 5 (twice failing kindergarten)
cited in the dissent were noted in Winston’s 1995 and 1987
evaluations. J.A. 1909, 1918. Items 4, and 6-10 all comment
on various specific deficiencies, some of which were dis-
cussed in the other evaluations, J.A. 1920-21 (items 7 and 9
— failure to understand social expectations or properly handle
money), while others such as item 4 (evenly delayed function-
ing in all areas) are merely syntheses of previous observa-
tions. This again leaves only Fairfax County’s retardation
classification and the 1997 I.Q. score, and, as explained
above, these omissions were not material.

Winston’s third and final argument — that his trial counsel
did not adequately present the jury with evidence of his trau-
matic childhood — also fails. Defense counsel called four
witnesses to illustrate his traumatic childhood: a social worker
who testified as to his itinerant experience in foster care; and
his mother, grandmother, and great-grandmother, who testi-
fied as to his poor upbringing and his exposure to drugs and
crime at a very young age. While we have no doubt that Win-
ston’s counsel could have painted a more detailed picture of
his childhood, we cannot conclude that the picture they did
paint was somehow materially incomplete. Winston’s argu-
ment appears to be that further embellishments, greater detail,
and more forceful advocacy would have changed at least one
juror’s mind. He does not argue, however, that the mitigation
case or traumatic childhood his counsel did present to the jury
was misleading or that it left out critical facts. Cf. Williams,
542 F.3d at 1342-43 (finding prejudice when counsel put on
testimony describing defendant’s childhood beatings as "ordi-
 WINSTON v. KELLY 41
nary parental discipline" that occurred occasionally, rather
than testimony describing the beatings as "serious assaults"
involving "deadly weapons" that occurred "on a near constant
basis"). The jury heard testimony concerning Winston’s aban-
donment by a drug-abusing mother and his exposure to crimi-
nal life by his grandmother. It also saw documentary evidence
describing his many difficulties coping with his sub-average
intellectual functioning. Because the jury still recommended
death in light of this evidence, we cannot conclude that the
Supreme Court of Virginia unreasonably applied Strickland
when it held that a more detailed mitigation case would not
have changed even a single juror’s mind.

In reaching a contrary conclusion, the dissent gives inade-
quate consideration to AEDPA’s standard of review. The dis-
sent does argue that it "can find no reasonable theory under
which the evidence disregarded could be considered cumula-
tive," infra at 61, because Winston’s counsel left out "even
the most basic details of Winston’s childhood," infra at 63. As
we explained above, however, we do think that such a reason-
able theory existed and that counsel did present the basic
details of Winston’s admittedly troubled childhood to the
jury. Again, the Virginia Supreme Court may have been
wrong to adopt such a theory, but we cannot conclude that it
acted unreasonably.

In summary, even if we assume deficient performance by
Winston’s counsel, we conclude that the Supreme Court of
Virginia did not unreasonably apply federal law when it held
that counsel’s performance did not prejudice Winston’s case
in mitigation.

IV.

For the foregoing reasons we affirm the district court’s
denial of Winston’s claims except with respect to his Atkins
and Atkins-related ineffective assistance claims. With respect
to the Atkins and Atkins-related claims, we vacate the district
42 WINSTON v. KELLY
court’s decision and remand for further proceedings consis-
tent with this opinion.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
WINSTON v. KELLY 43
Volume 2 of 2
44 WINSTON v. KELLY
GREGORY, Circuit Judge, concurring in part and dissenting
in part:

Today’s decision overlooks the prejudice that Leon Jermain
Winston suffered from the utter failure of counsel to investi-
gate and present mitigating evidence at the penalty phase
where he received a capital sentence. If we are to safeguard
the Sixth Amendment right to effective assistance of counsel
in criminal cases, then we must conduct a meaningful review
of the record when, as here, there is a vast quantity of unques-
tionably mitigating evidence that was never presented to the
jury. Moreover, while it appears that Winston failed to raise
the issue in his state habeas petition, I disagree with the
majority’s merits-inquiry denying Winston’s claim that his
due process rights were violated by the state court’s refusal to
instruct the jury on lesser included homicide charges. The
majority misinterprets the evidence at trial by equating evi-
dence placing Winston at the scene with evidence that Win-
ston was the triggerman. Only the latter satisfies Virginia’s
requirement for a capital conviction. Therefore, I respectfully
dissent from the portions of this opinion denying those two
claims, but I concur in the majority’s judgment as to the
remaining issues.

I.

In section II.B, the majority concludes that Winston’s due
process rights were not violated when the state court denied
his request for instructions on lesser included homicide
charges. I agree that Winston did not raise this issue in his
state habeas petition. Because the majority proceeds to reach
the merits and because the Commonwealth did not raise the
issue of exhaustion in the district court or before this Court,
I note my disagreement with the majority’s assessment.

The merits inquiry is guided by the Supreme Court’s deci-
sion in Beck v. Alabama, 447 U.S. 625 (1980). In Beck, the
Court announced the principle that
 WINSTON v. KELLY 45
capital defendants have a constitutional right to
receive a jury instruction on a lesser-included
offense "when the evidence unquestionably estab-
lishes that the defendant is guilty of a serious, violent
offense-but leaves some doubt with respect to an ele-
ment that would justify conviction of a capital
offense."

Hyatt v. Branker, 569 F.3d 162, 174 (4th Cir. 2009) (quoting
Beck, 447 U.S. at 637); Bates v. Lee, 308 F.3d 411, 420 (4th
Cir. 2002). The Court concluded that finding otherwise would
"enhance the risk of an unwarranted conviction." Beck, 447
U.S. at 637.

The Supreme Court subsequently explained that "due pro-
cess requires that a lesser included offense instruction be
given only when the evidence warrants" it. Hopper v. Evans,
456 U.S. 605, 611 (1982). I agree with the majority that Vir-
ginia’s rule poses no constitutional problem because it is con-
sistent with the federal rule and that the application of the two
rules is identical. What the majority fails to appreciate is that
this Court has found that whether the evidence warrants the
instruction is not a sufficiency of the evidence question. See
Hyatt, 569 F.3d at 174. Instead, "Beck requires a lesser-
included offense instruction when the evidence at trial merely
casts ‘some doubt’ on a necessary element of the capital
charge." Id.; cf. Taylor v. Workman, 554 F.3d 879, 887 (10th
Cir. 2009) (finding that Beck clearly holds that courts are not
to determine which instruction they feel is most warranted but
instead must give the lesser included offense instruction in
every case where the evidence supports it).

Under Virginia law, the "element that would justify convic-
tion of a capital offense," Beck, 447 U.S. at 637, in this case
is that Winston is a principal in the first degree. Frye v. Com-
monwealth, 345 S.E.2d 267, 280 (Va. 1986). Winston argues
that because there was evidence that he was not the trigger-
man, and therefore not a principal in the first degree, he was
46 WINSTON v. KELLY
constitutionally entitled to lesser included offense instructions
on non-capital murder. The majority today agrees with the
Supreme Court of Virginia that there was "overwhelming evi-
dence . . . that Winston was the triggerman responsible for
Rhonda’s death." Winston v. Commonwealth, 604 S.E.2d 21,
44 (Va. 2004). When a state court has decided whether a
lesser included offense instruction is necessary, this Court has
unmistakably affirmed that federal court review in the habeas
context is limited by the Antiterrorism and Effective Death
Penalty Act of 1996. See Hyatt, 569 F.3d at 166. Even given
this deferential standard, I find the state court’s determination
of the facts to be unreasonable.1

Evidence at trial supported Winston’s requested instruc-
tions for lesser included homicide charges and his theory that
he was present at the scene but was not the triggerman, cast-
ing "some doubt" on one element necessary for his capital
conviction. Niesha Whitehead, the only eye witness, testified
on direct and cross to facts showing Winston was not the trig-
german. In fact, Niesha, the government’s witness, did not
identify Winston. On the stand, Niesha testified that it was the
1
Contrary to the majority’s assertion, the state court’s determination that
there was "overwhelming evidence" pointing to Winston as the triggerman
is not exclusively a legal determination. Supra at 16. The state court cor-
rectly identified the applicable law to resolve this issue. However, the
court’s reading of the facts is what I find not only incorrect but also unrea-
sonable.
If the majority does read the court’s statement as a legal determination,
then the state court engaged in an unreasonable application of clearly
established federal law. "Under Beck, courts are not directed to evaluate
the evidence to determine whether it would support a first degree murder
conviction, or even whether a conviction for first degree murder or a
lesser-included offense is better supported." Taylor, 554 F.3d at 887.
Rather, "[t]he proper inquiry is whether the defendant presented sufficient
evidence to ‘allow a jury to rationally conclude’ that the defendant was
guilty of the lesser-included offense." Id. at 888 (citation omitted). Thus,
if, as the majority suggests, the state court determined that the lesser
included offense instruction was not warranted "in light of" the evidence
supporting the capital murder charge, it unreasonably applied Beck.
 WINSTON v. KELLY 47
man wearing all black that shot her mother. J.A. 37, 45-46.
She also testified that the other man was wearing stripes and
tried to stop the shooter. J.A. 45. Unrebutted evidence existed
that Winston was wearing stripes. Winston, 604 S.E.2d at 44.
Contrary to the majority’s contention, Niesha’s testimony was
not inconsistent concerning the clothing of the two men.
When first asked what the shooter was wearing, Niesha
responded, "All black." J.A. 36. At that time, on direct, she
stated that she could not recall whether the clothing had
stripes in it. J.A. 37. Throughout the rest of her testimony,
Niesha stated that there was one man in "all black" and one
wearing stripes. J.A. 42, 44, 46-48. She testified that it was
the man in "all black" that pulled the trigger. J.A. 44-46.

Niesha also testified that the shooter was taller than her
father, Anthony Robinson. J.A. 48-49. Winston was shorter
than Robinson. J.A. 216, 222. The majority relies on Niesha’s
testimony that a man with a tattoo was the shooter. However,
Niesha was shaky on which man in the house had a tattoo,
testifying both that it was the shooter and the non-shooter.
J.A. 38-39, 47-48. Thus, that Winston had a tattoo is not
determinative of which person was the triggerman.2

The majority finds that I am not "troubled" by the weak-
nesses in Niesha’s testimony. Supra at 15. However, the fact
that Niesha’s testimony is inconsistent on which man had a
tattoo does not signify that it lends no support to Winston’s
requested instructions. In fact, the main inconsistency in
Niesha’s testimony, which person had the tattoo, undermines
the majority’s position, not Winston’s. If Niesha’s testimony
were truly undermined as a whole, as the majority suggests,
supra at 15-16, it seems unusual that the majority cites to her
testimony in support of its position. Thus, given the dearth of
evidence directly proving that Winston was the triggerman,
2
Other than which person at the scene had a tattoo, Niesha’s testimony
was consistent with the fact that Winston was not the triggerman.
48 WINSTON v. KELLY
Niesha’s testimony cast some doubt on an element necessary
for Winston’s capital conviction.3

Other than the testimony of Rorls, whose credibility was
questioned at trial, no evidence relied on by the majority can
be characterized as "overwhelming" evidence that Winston
was the triggerman on April 19, 2002.4 The majority cites to
evidence that only places Winston at the scene, which is
insufficient for a capital conviction under Virginia law. While
there was testimony that Winston’s DNA was on the gun
used, this does not prove that Winston pulled the trigger on
the date in question.5 For example, Winston could have sup-
plied the gun or he could have simply hidden the gun after the
shootings to cover up his complicity. Neither of these scenar-
ios would have made Winston death-eligible. Additionally,
Niesha testified that both men were wearing gloves. J.A. 42.

Because the evidence in this case casts some doubt that
Winston was the triggerman, an element necessary for convic-
tion of the capital offense in Virginia, Winston was entitled
to an instruction on the lesser included homicide charges.
Some doubt is all that is required. In finding that there was
"overwhelming evidence . . . that Winston was the triggerman
responsible for Rhonda’s death," Winston, 604 S.E.2d at 44,
3
Niesha’s testimony was not the type of self-serving testimony of a
criminal defendant or of an incredible witness with a bias towards the
defendant. Her testimony in favor of Winston was first elicited by the
Commonwealth.
4
Contrary to the majority’s assertion, I do not minimize the significance
of relevant evidence. In fact, it is not our job to weigh the evidence or
search for evidence to support the instruction given. While I recognize that
there is evidence in support of the jury’s verdict, this is not a sufficiency
of the evidence issue. The question is whether the evidence at trial cast
some doubt that Winston was the triggerman—whether the state court
made an unreasonable determination of the facts in finding that the evi-
dence that Winston was the triggerman was "overwhelming."
5
The majority cannot simply draw "inferences" in only one direction.
Supra at 16. Again, this is not a sufficiency of the evidence issue.
 WINSTON v. KELLY 49
the state court made an unreasonable determination of the
facts.

II.

In section III.B, the majority inadequately considers Win-
ston’s claim that his counsel was constitutionally ineffective
by not reading relevant records in his possession, passing
along four incomplete psychological reports to jurors without
explanation, failing to mention Winston’s classification as
mentally retarded, failing to present evidence of Winston’s
adaptive deficits and cognitive difficulties, and presenting
extraordinarily minimal mitigating evidence about Winston’s
childhood in a generalized and unpersuasive manner given the
reasonably accessible material available. Rather, the majority
puts forth alleged arguments made by Winston that fail to rep-
resent his entire claim. Looking at the whole record and Win-
ston’s complete argument, I must depart from the majority
and find that the state court was unreasonable in dismissing
Winston’s claim that he received ineffective assistance of
counsel at the sentencing phase of his trial.

A.

In this case, the performance prong of Strickland entails
assessing whether counsel satisfied his duty to consider and
investigate mitigating evidence for sentencing in a capital
case. It is a "well-defined norm[ ]" that "investigations into
mitigating evidence ‘should comprise efforts to discover all
reasonably available mitigating evidence.’" Wiggins v. Smith,
539 U.S. 510, 524 (2003) (quoting American Bar Association
("ABA"), Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.4.1(C) 93 (1989) (herein-
after Guidelines)). According to the ABA Guidelines in effect
at the time, counsel had a duty to consider presenting medical
evidence, educational history, and family and social history,
especially in a capital case. Guidelines 11.8.6. Counsel plainly
50 WINSTON v. KELLY
cannot perform this duty when not reasonably informed about
the case.

Although courts cannot second-guess the strategic choices
of counsel, counsel must be informed to act strategically. See,
e.g., Rompilla v. Beard, 545 U.S. 374, 389-90 (2005) (con-
cluding a decision not to pursue certain mitigating evidence
cannot be strategic if it is based on inadequate investigation);
Wiggins, 539 U.S. at 527-28 (finding a cursory investigation
insufficient to support any tactical decision). Here, counsel
was in no way informed. Counsel testified he had no strategic
reason for not pursuing further mitigating evidence. J.A. 656,
674-75, 677, 681. Furthermore, counsel failed to read records
in counsel’s possession and made no reasonable effort to dis-
cover mitigating evidence that was unmistakably available.
While Winston’s counsel had the assistance of an investiga-
tor, no mitigation investigation occurred nor was a mitigation
specialist provided. Instead of reviewing the records regarding
Winston’s case in his very possession, counsel abdicated his
constitutional duty by relying on Dr. Nelson, who had been
appointed to evaluate Winston, to review them.

When analyzing whether counsel’s deficient performance
was cause for the procedural default of Winston’s Atkins
claim, the district court correctly recognized that "capital trial
counsel cannot outsource their fundamental responsibilities."
Winston v. Kelly, 600 F. Supp. 2d 717, 732 n.14 (W.D. Va.
2009). The court added that "[a]lthough counsel’s ‘strategic
choices made after thorough investigation . . . are virtually
unchallengeable,’ [Strickland v. Washington, 466 U.S. 668,
690 (1984)], contextually, simply not reading essential docu-
ments that are facially significant to competent capital defense
counsel did not seem to this court to be any choice at all." Id.
at 732. The court inexplicably and inappropriately failed to
apply this logic when deciding whether the same counsel was
ineffective in failing to investigate and present mitigating evi-
dence. See Winston v. Kelly, 624 F. Supp. 2d 478, 512 (W.D.
Va. 2008).
 WINSTON v. KELLY 51
While the Supreme Court has recognized that "the duty to
investigate does not force defense lawyers to scour the globe
on the off chance something will turn up," the Court has also
found failure to review relevant files that are easily accessible
can be objectively unreasonable and that reasonable counsel
would investigate further in the absence of "good reason to
think further investigation would be a waste." Rompilla, 545
U.S. at 382-83, 389-90. Without reading the records, counsel
had no strategic reason to think further investigation was
unnecessary. Additionally, unreasonableness can be height-
ened by the easy availability of the mitigating evidence. See
id. at 389-90. Here, counsel had the documents in his posses-
sion containing mitigating evidence and leads to easily-
located evidence. Even a cursory review of this record shows
that the district court erred when it held that the state court
was reasonable in finding that counsel’s limited efforts at sen-
tencing were not deficient.

B.

On the second prong of Strickland, the state court unrea-
sonably determined that Winston was not prejudiced by coun-
sel’s deficient performance. A thorough review of the record
demonstrates that but for counsel’s deficient conduct, a rea-
sonable probability exists that at least one juror would have
voted against the death penalty. At sentencing, counsel pre-
sented a few witnesses, asked them yes or no questions span-
ning less than thirteen transcript pages, threw several incom-
plete psychological evaluations at the jury without
explanation or context, and hoped for the best. The minimal
evidence counsel did present is at stark contrast with the
mountain of mitigating evidence that was readily available,
including evidence of mental deficiencies and evidence of
Winston’s emotional distress, neglect, and abandonment
throughout childhood.

Setting aside whether Winston satisfies the Virginia defini-
52 WINSTON v. KELLY
tion of mental retardation,6 evidence of mental deficiencies is
certainly mitigating. Counsel here undisputably failed to pre-
sent to the jury a classification of Winston as mentally
retarded that was in counsel’s possession. The majority appar-
ently finds this harmless, reasoning that "there is no reason to
believe that these items [the classification of mental retarda-
tion and 1997 I.Q. score of sixty-six] would have been persua-
sive to the jury as ordinary mitigating evidence." Supra at 39.
This assertion misses the mark, and despite the majority label-
ing the classification a "single one-page document," supra at
39, it is the only classification of Winston as mentally
retarded that existed and was thus supremely relevant to
assessing mitigating evidence. While a specific score may or
may not be influential to a lay juror,7 a classification as men-
tally retarded certainly would have been materially significant
to the jury when considering evidence about Winston’s sub-
average intellectual functioning. The majority finds the classi-
fication immaterial by characterizing it as "more general" than
the classifications of Winston’s verbal abilities that the major-
ity assumes the jury read and could correctly interpret. Supra
at 39-40. However, the 1997 evaluation in pertinent part states
that

Leon earned a Verbal IQ score of 60 and a perfor-
6
Based on the evidence before this Court, Winston has a strong claim
that he is mentally retarded under Virginia law and that the default of that
claim should be excused based on cause and prejudice resulting from inef-
fective assistance of counsel. I therefore fully concur with our decision
today to remand this case to the district court so that it may properly con-
sider evidence that came to light at the evidentiary hearing.
7
The majority cites to several of Winston’s verbal I.Q. scores as evi-
dence before the jury of Winston’s deficient verbal abilities. If these
scores are material to the jury’s evaluation, then surely the same must be
said of an overall I.Q. score of sixty-six, lower than all the overall I.Q.
scores contained in the reports handed over to the jury. And if the majority
assumes the jury could interpret the verbal I.Q. scores and classifications,
by the same token we should assume the jury understands that a full scale
I.Q. score is the score used to classify a person as mentally retarded.
 WINSTON v. KELLY 53
mance IQ score of 77, resulting in a Full Scale IQ
score of 66. Based on his Full Scale score, Leon is
currently functioning in the Mentally Deficient range
of intelligence, and might be expected to achieve
better than one percent of his age group in academic
areas.

J.A. 1980. Thus, it is clear that a juror reading such evaluation
would place more importance on a full scale classification and
score than that of a sub-part. It is the full scale score that is
used to classify a person as mentally retarded.

Beyond the failure to present the classification, counsel did
not provide the jury with information from certain teachers,
social workers, and family members whose input would have
been essential to evaluate Winston’s mental state and adaptive
functioning. The majority concludes that Winston is asserting
that his counsel was constitutionally inadequate purely
because live witnesses did not present the information. Supra
at 37-38. This conclusion is incorrect. Winston’s argument is
that the information was not presented at all because (1)
counsel’s investigation was unreasonably wanting, Petr.’s Br.
78, and (2) "the information possessed by the jury was tre-
mendously incomplete," id. at 77. It is undisputed that, as dis-
cussed above, counsel did not read records in his possession
nor conduct a full investigation.

As for information regarding Winston’s low intellectual
functioning, the majority relies heavily on the psychological
reports entered into evidence. The majority finds that the
reports contained "rich content" "describing [Winston’s]
many difficulties coping with his sub-average intellectual
functioning." Supra at 37, 41. However, to clarify, the evalua-
tions constantly referenced external documents,8 and there-
8
Historical and detailed information about Winston was referenced in
the documents, but not provided. As an example, the 1995 evaluation
states that "[d]etails of Leon’s family life are available to the court, and
so will not be reported here in great detail." J.A. 2075. The "details"
referred to were never provided to the jury.
54 WINSTON v. KELLY
fore, the jurors received incomplete information even if we
assume that they read and understood the evaluations. Coun-
sel presented Crystal Carper from the Fairfax County Depart-
ment of Family Services to authenticate the evaluations. As
Carpenter had no personal knowledge of the evaluations, she
could not speak to their information, and the documents were
merely entered into evidence. Simply sending incomplete
records back with the jury without explanation or context
does not save counsel’s constitutionally deficient performance
in this case. See Johnson v. Bagley, 544 F.3d 592, 602 (6th
Cir. 2008) (finding that "an unreasonably truncated mitigation
investigation is not cured simply because some steps were
taken prior to the penalty-phase hearing and because some
evidence was placed before the jury").

The information before the jury concerning Winston’s sub-
average intellectual and adaptive functioning was also materi-
ally incomplete because counsel failed to seek out those most
familiar with Winston in these areas. If the jury had this infor-
mation, there is a reasonable probability that at least one juror
would have voted against the death penalty. That the state
court found otherwise is unreasonable. As an example, two of
the people that counsel did not speak with were Kirsten Jack-
son and Denise King. Jackson, Winston’s aunt, who was three
years his junior, was never contacted by counsel despite living
with Winston for almost ten years until Winston was age sev-
enteen. Among Jackson’s testimony at the evidentiary hearing
is the following:

you could tell him to wash the dishes, and you would
come back and the dishes weren’t done, and he was
just standing there trying to figure out what he was
supposed to be doing. Anything, any chore he was
supposed to be doing, you had to constantly go back
and remind him. . . .

....
 WINSTON v. KELLY 55
His hygiene was good when he lived with us because
my mom constantly made sure he took a bath. . . .
And afterwards, it was—when he moved out, it was
something totally different. He always looked dirty,
like just smelled nasty, just untouchable. You didn’t
want to touch him; that’s how dirty he looked.

....

I think my mom bathed him until he was about 10,
11. He had to be watched until he was about that
age.

....

. . . we had one incident where he fell asleep in the
tub and had a bowel movement in the tub. And we
were trying to figure out where he was at and what
was going on. We went upstairs, and he told us it
was just toys, and he started playing with it.

....

You couldn’t have a conversation with him. He
couldn’t comprehend what everyone was saying.
Talking to him was talking on a different level. It
was like you were talking to someone like—that was
five or six years old, that he constantly was—like he
would joke at the wrong times, or he could—if he
couldn’t comprehend, like, or have the conversation
that we were having, he would like sort of mimic
what everyone was saying and converse in that way,
and just—it was impossible.

....

His idea of friendship was if he did something for
them, that that was his way of getting them to like
him[.]
56 WINSTON v. KELLY
....

He was never able to do his homework. Things that
his teacher would send him home with, he couldn’t
comprehend it, he didn’t understand it. Even if it was
told to him how to do it at school, he would still
come home and couldn’t figure it out, and I would
have to explain to him what the teacher meant and
what he was supposed to be doing. And he would
generally get frustrated, agitated, and get upset, want
to fight just because he didn’t know it. Just spelling
and all of that, he didn’t have a good subject in
school.

J.A. 725-31.

Denise King was Winston’s teacher for four years at the
Leary School, a school of last resort for students in Fairfax
County who were experiencing learning and behavior diffi-
culties. King spent on average seven hours a day with Win-
ston, then age eight, and yet she was never contacted. At the
evidentiary hearing, she testified that Winston had great diffi-
culty reading and following directions. Among King’s testi-
mony about Winston at the hearing is the following:

He posed a particular dilemma to me because I
thought I came equipped to help students with spe-
cial needs, and I could not teach Leon to read; he
was a particularly difficult student to teach. . . .

....

I always felt like Leon was not very well cared for.
He was interested in school, but I think he had a lot
of things going on at home. . . . I think even his
physical needs weren’t taken care of. His clothes
didn’t seem to be his own; they appeared too big for
 WINSTON v. KELLY 57
him. And we didn’t have a lunch program at the
school, and Leon didn’t come with food.

....

I think he had auditory processing problems. He
didn’t understand a lot of what he heard. If it was
more than one or two directions, he had trouble fol-
lowing it. He misinterpreted social cues. He misin-
terpreted what people said. He took things very
literally. I think his abstract reasoning and long-term
memory were probably very limited as well.

....

Leon was the lowest student for the whole four years
that I had him. . . .

....

I don’t think he knew what a reciprocal friendship
was like. A friend was somebody who was, if you
were hungry, would give you a cookie, or if you
were thirsty, would give you a soda. But other than
that, I don’t think that he even understood what
friendships and that kind of thing were all about.

....

He had no real sense of time. You know, it’s dark
outside or it’s light outside, but other than that, not
really.

....

And Leon did not have any idea where the school
was in reference to where he lived. . . . And he
58 WINSTON v. KELLY
wouldn’t leave early because he didn’t know how to
get home.

....

I saw very small changes in his academics. . . . There
are students that, yes, would adapt to the situation,
and once they got into sort of the groove of how the
school goes, that’s when they catch on and they
really start to learn. That was not the case with Leon.
He never got it. He never understood how school
went and how—it was every day was a new day,
every day.

J.A. 741-54.

In addition to testimony from Kirsten Jackson and Denise
King, other evidence of mental deficiencies not presented due
to counsel’s failures includes the following:

1. Fairfax schools classified Winston as mentally
retarded in 1997, as mentioned above, J.A.
1876;

2. The 1997 classification, as well as other docu-
ments in counsel’s possession, identified Mari-
lynn Schneider Lageman ("Lageman") as a
psychologist and a member of the Special Edu-
cation committee that recommended the 1997
evaluation. Winston produced a 1997 evaluation
by Lageman conducted on Winston, which
included a verbal I.Q. score of sixty and a full-
scale I.Q. score of sixty-six. This full-scale score
is more than two standard deviations below the
mean, compelling evidence of mental retarda-
tion under the Virginia definition. Lageman was
never contacted, J.A. 1232, 1876;
 WINSTON v. KELLY 59
3. By 1997, sixteen year-old Winston demon-
strated "verbal cognitive skill development
within the mild range of mental retardation for
his age," J.A. 1980;

4. Winston’s 1997 "evaluation [showed] a fairly
evenly delayed profile of cognitive, social, and
emotional functioning, generally within the mild
range of mental retardation," J.A. 1982;

5. Winston failed kindergarten twice and had
severe academic struggles, J.A. 1909;

6. By age fourteen-and-a-half, Winston had not
developed age-appropriate ability to tell time or
learn the months of the year, J.A. 751-52;

7. Lageman noted "[i]t [was] particularly surpris-
ing how little Leon appear[ed] to understand
social expectations and the reasons behind social
practices." J.A. 1980;

8. After being placed in the custody of Fairfax
County, Winston "had extremely low intellec-
tual functioning" and experienced severe emo-
tional distress, J.A. 1359, 1799;

9. Winston’s handling of money was "inadequate
by almost any standard" and he "never had a
checking account, a savings account, a credit
card, an apartment/home lease or ownership in
his name," J.A. 1257;

10. Winston never had a job of any type other than
selling drugs on the street; even at this, other
persons gave him instructions and the drugs in
60 WINSTON v. KELLY
pre-divided quantities with set prices, J.A. 896-
97, 1258.9

Additionally, because not reasonably informed, counsel
failed to present consequential evidence of Winston’s child-
hood of emotional distress, neglect, and abandonment, includ-
ing the following:

1. Winston’s mother could not stand to be around
him and was violent with her children, J.A. 429;

2. The "void left by his mother’s absence was
never filled, and the negative influence(s) of her
criminal activity were never replaced with posi-
tive ones," J.A. 1358;

3. While the jury did hear that Winston’s grand-
mother ran a shoplifting operation, it did not
hear that it was Winston who blew the whistle
on the operation when he was picked up by Fair-
fax County Juvenile Detention after his family
left him behind and fled as the operation was
busted, J.A. 1352;

4. Because Winston had no real caretaker in his
life, he "was denied a real feeling of family and
belonging," J.A. 1358;
9
Despite the majority’s herculean efforts to comb the record and find
some of the facts listed buried in the reports entered into evidence, supra
at 40, the jury found no mitigating factor. Thus, we cannot ascertain
whether the jury glanced at the reports, much less considered the reports
in depth as the majority has. The jury was given little reason to read the
reports. The reports were given no context or explanation. Not one witness
spoke personally to any of the information contained in the reports. Fur-
thermore, as mentioned previously, the reports were materially incom-
plete.
 WINSTON v. KELLY 61
5. At age fifteen, Winston was "struggling signifi-
cantly with trust versus mistrust issues due to all
the abandonment and loss in his lifetime." J.A.
72;

6. At the Leary School, Winston was "struggling to
make sense out of the world" because of his
abandonment and upbringing, J.A. 1345;

7. A teacher at Leary noticed that "Leon’s concept
of right and wrong never stood a chance," J.A.
1347;

8. Winston was easily manipulated, had few or no
friends, and was never fully accepted by any
peer group, J.A. 1347, 1370;

9. Winston was consistently described by family,
counselors, and teachers as a child characterized
by gullibility, immaturity, passiveness, a lack of
self-esteem, and a desperate need for peer
acceptance, J.A. 1255-56;

10. Winston was diagnosed with Fetal Alcohol Syn-
drome, J.A. 1271.

In spite of all the above evidence not presented to the jury, the
state court found no prejudice on the ground that the evidence
was cumulative. I can find no reasonable theory under which
the evidence disregarded could be considered cumulative.

The negligible evidence of Winston’s childhood that was
before the jury gave an "incomplete and misleading under-
standing of [Winston’s] life history." Williams v. Allen, 542
F.3d 1326, 1331, 1340 (11th Cir. 2008). As I found previ-
ously, the evaluations were both unexplained and incomplete.
Also, counsel presented three witnesses to speak solely on
Winston’s social history: his mother, grandmother, and great
62 WINSTON v. KELLY
grandmother. In totality, these witnesses represent less than
thirteen transcript pages and provided only vague generalities
about Winston’s upbringing, generally through yes or no
answers. Consider an excerpt from Winston’s mother’s testi-
mony at sentencing:

Q. And how old was he when you went to the pen-
itentiary?

A. Six and a half.

Q. Okay. And what are you in the penitentiary for?

A. Malicious wounding, firearm and robbery.

....

Q. Was Leon with you when that crime was com-
mitted?

A. Yes, sir.

....

Q. Has Leon’s father ever been involved in his
life?

A. No, sir.

....

Q. When you became pregnant with Leon, what
were some of your habits?

A. You mean as —

Q. Well, did you stick strictly to drinking tea and
milk and things like that or did you drink some-
thing else?
 WINSTON v. KELLY 63
A. Alcohol. I did drugs.

J.A. 240-41. When contrasting the one- or two-word answers
by three witnesses with the mitigating evidence available, the
state court unreasonably determined that but for counsel’s
deficient conduct, a reasonable probability did not exist that
at least one juror would have voted against the death penalty.
For example, Winston’s mother never described him as a
child, never told a story of him growing up, nor provided any
examples to humanize him. Astoundingly, she was never
asked to. This dearth of even the most basic details of Win-
ston’s childhood10 stands in stark contrast to his mother’s affi-
davit, submitted two years later:

I was 15 years old when I got pregnant with Leon.
I was never in a relationship with his father, Leon
Johnson. I knew his father because he was a junkie
and I was doing a lot of drugs and drinking at the
time. When Leon Johnson found out that I was preg-
nant, he denied that it was his baby. I have never
seen him since then.

I remember that it took Leon a long time to learn
how to use the toilet by himself. After he stopped
using diapers, he used to wet the bed a lot as a child.
He also had problems talking—he stuttered a lot.
Leon had a really hard time understanding directions
I would give him. For instance, I remember that I
would often ask him to get me "the chair," and I
would point toward the chair that we kept next to the
refrigerator in the kitchen. He did not seem to under-
stand what I was talking about; he would just look
10
The majority finds that "counsel did present the basic details of Win-
ston’s admittedly troubled childhood to the jury." Supra at 41. It is diffi-
cult to imagine a capital case in which less testimony at sentencing was
presented by defense counsel. The thirteen transcript pages relied on by
the majority is bereft of anything approaching the meaning of "details."
64 WINSTON v. KELLY
back at me and say, "which chair," even though it
was the only chair in the kitchen and the same chair
I always wanted him to get for me. . . .

....

I continued to drink and use drugs after Leon was
born and during and after I was pregnant with my
other two sons. During the times that I was living
with my children, I would drive them to school.
After I dropped them off at school, I would go to the
liquor store when it opened at 10:00 a.m. I would
buy a pint of Barcardi rum and go to my friends’
house and drink it during the day. Sometimes I
would finish it by the time I went to pick up the kids,
and sometimes I wouldn’t. I would usually go get
some food at Burger King or McDonalds to try to
bring down my high around the time I picked up my
kids. I was also using still using [sic] drugs when the
kids were in school. . . .

Leon started school before I went to prison. On some
days, I was sober enough in the afternoon to try and
help Leon with his homework. He had a really hard
time with it, and I always thought that he was going
to have problems learning. Leon had these ABC
blocks, but he could never manage to put them in the
right order. . . .

There were times when we lived with my family
members and times when we lived with my boy-
friends. We moved around a lot. . . . I often left Leon
with my family so that I could go hang out with my
friends and get drunk and high.

....

When I was dating Raymond Jackson, Leon told me
once that Raymond beat him when I wasn’t around.
 WINSTON v. KELLY 65
. . . I saw marks and bruises on his back once. . . .
I just wasn’t much of a parent to my children. I did
not give them the love and attention they deserved to
have. Two of my three children are currently in
prison.

J.A. 1361-62. The dramatic detail contained in this affidavit
plainly was not presented to the jury. Rather, counsel’s pre-
sentation about Winston’s childhood was haphazard and woe-
fully incomplete.

Given the evidence cited herein of Winston’s mental defi-
ciencies and traumatic childhood, coupled with the absence of
evidence that Winston was the triggerman, there is a reason-
able probability that at least one juror would have voted
against the death penalty.11 As the Supreme Court found in
Rompilla, 545 U.S. at 393 (citations omitted), the evidence
now before this Court

adds up to a mitigation case that bears no relation to
the few naked pleas for mercy actually put before the
jury, and although . . . it is possible that a jury could
have heard it all and still have decided on the death
penalty, that is not the test. It goes without saying
that the undiscovered "mitigating evidence, taken as
a whole, ‘might well have influenced the jury’s
appraisal’ of [Winston’s] culpability," and the likeli-
hood of a different result if the evidence had gone in
11
To exacerbate this prejudice, the nature of the information not pre-
sented is exactly the type that jurors find persuasive. Evidence of a dimin-
ished mental capacity, along with evidence of a traumatic childhood is
precisely the kind of evidence that reduces a defendant’s moral culpability
and provokes sympathy from the jury. This Court has found that evidence
of mental deficiencies "can be persuasive mitigating evidence for jurors
considering the death penalty, and this evidence can determine the out-
come." Gray v. Branker, 529 F.3d 220, 235 (4th Cir. 2008); cf. Smith v.
Mullin, 379 F.3d 919, 942 (10th Cir. 2004) (finding that evidence of men-
tal deficiencies "garners the most sympathy from jurors").
66 WINSTON v. KELLY
is "sufficient to undermine confidence in the out-
come" actually reached at sentencing.

III.

In this capital case, the performance of counsel was abys-
mally deficient. Had the jury been able to place Winston’s
troubled childhood and background, along with the evidence
of his mental deficiencies, "on the mitigating side of the scale,
there is a reasonable probability that at least one juror would
have struck a different balance." Wiggins, 539 U.S. at 537.
Additionally, I would find that Winston was unconstitution-
ally denied lesser included homicide instructions. Accord-
ingly, I would reverse the state court’s adjudication of
Winston’s ineffective assistance of counsel claim and due
process claim as unreasonable and remand for resentencing.
On this basis, I dissent.