Young v. Sirmons

FILED
United States Court of Appeals
Tenth Circuit

December 16, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JULIUS RECARDO YOUNG,

Petitioner-Appellant,

v. No. 07-5130

MARTY SIRMONS, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. CV-00-310-P)

Steven M. Presson of Presson Law Office, Norman, Oklahoma, for Petitioner-Appellant.

Seth S. Branham, Assistant Attorney General (W. A. Drew Edmondson, Attorney
General, with him on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before HENRY, Chief Judge, BRISCOE, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

In 1995, Julius Recardo Young was convicted in Oklahoma state court of two

counts of first degree murder for beating to death a six-year old child and the child’s

mother. Young was sentenced to death for these murders. He appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas petition. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

I.

Factual background

The relevant underlying facts of this case were outlined in detail by the Oklahoma

Court of Criminal Appeals (OCCA) in addressing Young’s direct appeal:

Julius Recardo Young was convicted of murdering his girlfriend’s
daughter and six year old grandson. The murders occurred two days after
his girlfriend, Joyslon Edwards, advised him she wanted to cool their
relationship, and he would not get a key to her new apartment. She was not
giving him a key, because she wanted her daughter and grandson to “feel
safe” when they visited her. They did not like Young. Young had a key to
the apartment Edwards had been sharing with her daughter, Joyland
Morgan, and her grandson, Kewan Morgan. The day before the murders
Edwards demanded the key from Young, but he did not return it.

Joyland and Kewan Morgan were beaten to death in their Tulsa
apartment on October 1, 1993. Their wounds indicated the murder weapon
was a blunt instrument similar to a baseball bat, but the murder weapon was
never found. Ms. Morgan sustained defensive wounds to her hands and
arms, and at least thirteen blows to her face and head. These blows broke
her jaw, tore open her scalp, and fractured her skull. She was found
slumped against a living room wall. Kewan Morgan died in his bed. He
sustained massive head fractures caused by two separate blows.

Every night before she went to bed Joyland Morgan secured her front
door with two locks and a security chain. The intruder opened both locks
with a key and pushed through the security chain, breaking it. A piece of
the broken chain was missing from the apartment.

No eye-witnesses were found. However, a downstairs neighbor was
awakened at 3:40 a.m. by a single loud bump from Morgan’s apartment.
Joyslon Edwards testified she saw a baseball bat in Young’s trunk the night
before the murders, but the next day it was gone.

2
 Young always drove Edwards to work and the day of the murders he
arrived at 4:15 a.m., earlier than usual. Edwards asked him for change so
she could use the vending machines at work. When Young pulled out the
contents of his pocket, Edwards saw a piece of security chain similar to the
one she had installed on her daughter’s door. Later that day when Edwards
learned of the murders, she reported this evidence to the police.

Young lived with his mother at the time, and the police obtained a
warrant to search the mother’s home. Edwards told them what Young had
worn the previous evening. The police recovered the shoes described by
Edwards and these bore a visible spot of blood. Young accompanied the
police during the search. He volunteered the drop was fish blood. DNA
testing revealed the drop was human blood consistent with that of Joyland
and Kewan Morgan. The police also recovered a freshly laundered shirt
which tested positive for blood when it was exposed to luminal [sic].

Young v. State, 992 P.2d 332, 336-37 (Okla. Crim. App. 1998) (Young I) (internal

paragraph numbers omitted).

State court proceedings

On February 22, 1994, Young was charged by information in the District Court of

Tulsa County, Oklahoma, with two counts of first degree murder (under alternative

theories of malice aforethought and felony murder) and one count of first degree burglary.

On May 5, 1994, the State filed a bill of particulars asserting that Young should be

punished by death for the murder offenses “due to and as a result of” four aggravating

circumstances: (1) “The defendant knowingly created a great risk of death to more than

one person”; (2) “The murder was especially heinous, atrocious, or cruel”; (3) “The

murder was committed for the purpose of avoiding or preventing a lawful arrest or

prosecution”; and (4) “The existence of a probability that the defendant would commit

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criminal acts of violence that would constitute a continuing threat to society.”1 State

Court ROA, Vol. I at 41.

On June 17, 1994, Young’s counsel presented to the state trial court, during a

motions hearing, a pleading entitled “Application for Psychological Evaluation and

Permission to Interview Defendant.”2 Id. at 70; Tr. of Jun. 17, 1994 Motion Hearing at

14. The pleading sought authorization from the state trial court to allow two licensed

professional counselors3 to interview Young and conduct a psychological evaluation. As

a basis for the request, the pleading stated that “[i]t [wa]s necessary, due to the very

nature of this case, that the Defendant be evaluated prior to the time of trial.” State Court

ROA, Vol. I at 70. When asked by the state trial court during the hearing what the

purpose of the requested evaluation was, Young’s counsel stated that it was not for

purposes of developing an insanity defense, but rather “to make certain that the defendant

is psychologically and mentally stable at this point in time of the proceedings and at some

point in time it may be necessary even for mitigation or defense in the fact that he didn’t

1
The bill of particulars did not identify to which of the two murders the second
and third alleged aggravating circumstances were referring. The prosecution
subsequently filed a “notice of evidence in aggravation of punishment” that indicated the
“heinous, atrocious or cruel” aggravator referred to the murder of Joyland, and that the
“avoiding or preventing lawful arrest or prosecution” aggravator referred to the murder of
Kewan. State Court ROA, Vol. I at 73-74.
2
According to the state court record, Young’s trial counsel did not formally file
the application with the clerk of the court until August 5, 1994.
3
The two counselors named in the pleading were “Linda Palmer, MS, LPC, LMFT
and Sandra Caster, MS, LPC,” both of Tulsa, Oklahoma. State Court ROA, Vol. I at 70.

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fit the personality to do the same.” Tr. of Jun. 17, 1994 Motion Hearing at 15. The state

trial court denied the motion “as being premature . . . .” Id.

On September 21, 1994, Young filed a “Notice of Mitigation in the Event of

Conviction” that listed nine witnesses who would testify in mitigation in the event Young

was convicted of one or both murders. State Court ROA, Vol. I at 83. The notice further

stated that, “in the event of a conviction,” “[e]vidence w[ould] be introduced as a matter

of law to generalities and specifics of the good person that Julius Young ha[d] been.” Id.

at 84. On September 30, 1994, Young filed a “Supplement to Notice of Mitigation in the

Event of Conviction” stating that, of the nine witnesses listed in the original notice, the

first seven would “testify substantially as to generally the good things that [Young] ha[d]

done and their belief concerning that he [wa]s not a future danger to the community,

along with past good deeds.” Id. at 85. The Supplement further indicated that the eighth

and ninth witnesses listed in the original “Notice,” i.e. the two licensed professional

counselors that were originally listed in Young’s application for psychological evaluation,

would testify regarding the results of psychological testing on Young. Id. According to

the state court record, however, Young’s counsel never renewed their application for

psychological evaluation. Thus, the two licensed professional counselors listed as

witnesses in the Supplement to Notice of Mitigation never interviewed or evaluated

Young.

The case proceeded to trial on September 5, 1995. At the conclusion of the first-

stage proceedings, the jury found Young guilty of two counts of first degree malice

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aforethought murder (Counts I and II of the information) and one count of first degree

burglary (Count III). At that time, the prosecution filed a notice of intent to offer

evidence in rebuttal of any mitigating evidence that Young might present. State Court

ROA, Vol. III at 435.

The second-stage proceedings occurred the following day, September 21, 1995.

During the second-stage proceedings, the prosecution incorporated by reference all of the

first-stage evidence. In addition, the prosecution presented victim impact testimony from

a relative of the two victims. Young elected not to testify in his own behalf or present

any mitigation witnesses. In light of Young’s decision in this regard, Young’s counsel

entered into a stipulation with the prosecution, which was read to the jury, that Young

was “42 years of age and . . . ha[d] been a life-long resident of Tulsa,” “ha[d] family,

relatives that love[d] him,” “ha[d] been a minister in a church for 11 years,” and was “a

veteran, having served in the U.S. Army and was honorably discharged.” ROA, Tr. Vol.

III at 918-19. At the conclusion of the second-stage proceedings, the jury found the

existence of three aggravating circumstances (that Young knowingly created a great risk

of death to more than one person; the murder was especially heinous, atrocious or cruel4;

and the existence of a probability that Young would commit criminal acts of violence that

4
Consistent with the bill of particulars, the jury’s verdict form did not specify
which of the two murders this aggravating circumstance pertained to. Although the
prosecution had filed a “notice of evidence in aggravation of punishment” indicating that
this aggravating circumstance related only to the murder of Joyland, “[a]t trial the
prosecutor ignored this self-imposed limitation and argued each aggravating circumstance
as to each murder count.” Young I, 992 P.2d at 343.

6
would constitute a continuing threat to society) and fixed Young’s punishment at death

for the two murder convictions. As for the burglary conviction, the jury fixed Young’s

punishment at fifty years’ imprisonment.

The state district court conducted sentencing proceedings on September 28 and

October 4, 1995. During the September 28th proceeding, Young’s counsel asked the state

district court to sentence Young to life imprisonment without the possibility of parole. In

support of this request, Young’s lead counsel, Jim Fransein, asserted that he had planned

to introduce witnesses and evidence in mitigation during the second-stage proceedings,

but that the mitigation witnesses “had been advised without [his] permission, [his] request

or [his] recommendation not to appear,” and that Young likewise had determined not to

take the stand in his own defense. ROA, Tr., Vol. III at 937. In response to this request,

the prosecution noted that it had agreed, after Young’s counsel learned that Young would

not be testifying or presenting any mitigation witnesses, to stipulate regarding certain

mitigating evidence. Young himself addressed the state district court and asserted his

factual innocence of the crimes. Young did not, however, offer any explanation for his

decision to forego mitigation testimony. During the October 4th proceeding, the state

district court imposed the sentences fixed by the jury.

Young’s direct appeal and state post-conviction proceedings

Young filed a direct appeal challenging his convictions and sentences. On

November 6, 1998, the OCCA affirmed Young’s convictions and sentences. Young I,

992 P.2d at 336, 348. Young filed a petition for rehearing asserting that the OCCA failed

7
to consider his request for an evidentiary hearing on his claim of ineffective assistance of

trial counsel. On February 19, 1999, the OCCA granted Young’s petition for rehearing

and, on the merits, denied his request for an evidentiary hearing. Young filed a petition

for writ of certiorari with the United States Supreme Court. That petition was denied by

the Supreme Court on October 4, 1999. Young v. Oklahoma, 528 U.S. 837 (2001).

While his direct appeal was still pending before the OCCA, Young, in accordance

with Oklahoma procedural rules, filed an application for post-conviction relief with the

OCCA. Young’s application alleged, in pertinent part, that he was denied the effective

assistance of trial counsel. In support of that claim, Young submitted “the affidavits of a

mitigation expert, Dr. Wanda Draper, . . . and a mental health expert, Dr. Philip J.

Murphy.” App. for Post-Conviction Relief at 14. The OCCA denied the application for

post-conviction relief on April 28, 1999, in an unpublished opinion. Young v. State, No.

PC-97-884 (Okla. Crim. App. Apr. 28, 1999) (Young II).

Young’s federal habeas proceedings

On April 17, 2000, Young initiated this federal habeas action by filing a pro se

motion to proceed in forma pauperis and a motion for appointment of counsel. Young’s

motion for appointment of counsel was granted and, on October 3, 2000, Young filed a

preliminary petition for writ of habeas corpus asserting eighteen tentative grounds for

relief. On December 4, 2000, Young filed an amended petition asserting only seven

grounds for relief.

On September 23, 2005, the district court issued an opinion and order denying

8
Young’s petition. The district court subsequently granted a certificate of appealability

(COA) with respect to four issues: (1) ineffective assistance of trial counsel for failing to

adequately investigate and present mitigation evidence during the second-stage

proceedings; (2) improper victim impact evidence; (3) improper admission of Young’s

“fish blood” statement; and (4) cumulative error. On appeal, Young has abandoned his

challenge to the admission of his “fish blood” statement, but continues to pursue the

remaining three issues.

II.

Our review of Young’s appeal is governed by the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696

(10th Cir. 2007). Under AEDPA, the standard of review applicable to a particular claim

depends upon how that claim was resolved by the state courts. Id.

If a claim was addressed on the merits by the state courts, we may not grant federal

habeas relief on the basis of that claim unless the state court decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2). “When reviewing a state court’s application of

federal law, we are precluded from issuing the writ simply because we conclude in our

independent judgment that the state court applied the law erroneously or incorrectly.”

McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003). “Rather, we must be

9
convinced that the application was also objectively unreasonable.” Id. “This standard

does not require our abject deference, . . . but nonetheless prohibits us from substituting

our own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal citation

and quotation marks omitted).

If a claim was not resolved by the state courts on the merits and is not otherwise

procedurally barred, our standard of review is more searching. That is, because §

2254(d)’s deferential standards of review do not apply in such circumstances, we review

the district court’s legal conclusions de novo and its factual findings, if any, for clear

error. McLuckie, 337 F.3d at 1197.

III.

Introduction of victim-impact evidence

Young contends that the introduction of victim impact evidence during the second-

stage proceedings violated his rights under the Eighth and Fourteenth Amendments. This

evidence came in the form of testimony from Catherine Morgan, the maternal aunt of

Joyland. Morgan testified that she was selected by members of the victims’ family to

prepare a victim impact statement for the trial court. ROA, Tr., Vol. III at 913. At the

request of the prosecution, Morgan read her statement into the record:

The tragic [sic] of Joyland and Kewan’s death affected more than 55
members. The effect on the family was devastating, shocking, hurt and
anger as to why this happened.
Each family member was affected by this differently. Some were very
emotionally upset, some had to be strong for others and for Lavada Grant,
the aunt of Joyland and Kewan, she had a heart attack and died the night of
the murders.

10
 James Ella, Joyland and Kewan’s grandmother, had some health
problems with her nerves, sleepless nights, crying and worrying. She did
the best to be strong for other family members, but of her closeness with
Joyland and Kewan, this was very difficult at the time.
Joyland and James Ella were very close. Joyland would come into
James Ella’s room and lay across the foot of her bed and share her thoughts
and feelings about things.
They would talk about Joyland’s goal for her life. James Ella would
offer Joyland advice as grandmothers and granddaughters would do. James
Ella now misses those sharing times.
Kewan was James Ella’s little boy. He spent a great deal of time with
her. Kewan would look forward to Friday evenings to go spend with
grandma. He would pack his little blue overnight case and stand in the
doorway for her to pick him up. He would say, ‘I wait on maw-maw’.
They would start the weekend singing, playing and laughing. Kewan
was always ready to go to church with grandma so he could sing and clap
his hands with the choir.
Joyslon Edwards, the mother of Joyland and the grandmother of Kewan,
was affected by hurt, guilt, anger and shock. The first year after Joyland
and Kewan’s death, Joyslon was unable to work at the daycare center where
Kewan once attended.
Caring for the kids was a constant reminder of things her and Kewan
[did] in the day care. Additionally, Joyland helped to decorate her class
room at the center. Joyslon would think of things and begin to cry and the
children wanted to know what’s wrong with Miss Joy and asked questions
about Kewan so for the best interest of the children she took a leave of
absence.
Joyslon wasn’t able to sleep at night, she would always see their little
faces as she closed her eyes. Stress and depression caused various illnesses
such as headaches. Because of her illness and her emotional state, she had
to stay with James Ella, her mother.
Joyslon and Joyland were building an even closer relationship. They
had become more like sisters and best friends instead of a mother-daughter
relationship. They shared feelings, laughter, smiles, thoughts, problems,
did a lot of girl talk both bad and good.
Kewan was Joyslon[’]s little baby boy. He will be missed very much for
his laughter, singing with him and teaching him new songs that he loved to
do.
Kewan would walk around singing “Jesus Love Me”, “I’m climbing up
on the Rough Side of the Mountain”, and “That Holy Spirit”.
You would think, okay, he will be a singer some day, but because of his

11
 slow learning disability and understanding words, he never had the
opportunity to express what he wanted to be when he grows up.
I believe what we miss most is how Joyland also kept you laughing.
There was never a dull moment. She would say funny things or do
something not trying to be funny which would be [sic] a smile to your face.
Joyland was a good mother to be as young as she was. She was always
there to help you. She was willing to share what she felt or had with those
that she loved and trusted.
If she didn’t know you she would try and say something nice. Joyland
was setting some goals in her life to go back to school to enhance her
knowledge with Kewan’s learning disability.
She wanted to prepare Kewan for the public school system while making
a better life for her and Kewan. Kewan will be missed for his singing that
everyone which I feel he had – is how he expressed himself.
We miss his little feet running through the house and his laughter. We
miss Kewan when he spent the weekend with James Ella. Kewan would
always race her to bed and try to beat her by getting in bed first.
We miss hearing his laughter when he one [sic]. Joyslon and Kewan had
a song they would sing together. Joyslon would lead and Kewan would be
the background singer. Kewan would be singing “That Holy Spirit All In
My Feet”. He would touch different items in the apartment and say “that
holy spirit in this chair” as an example.
Each family member will all have very special memories of Joyland and
Kewan that will never be forgotten.

Id. at 913-17.

Young argues that this victim impact testimony “was not properly restricted to

financial, emotional, psychological, and physical effects on the surviving family

members.” Aplt. Br. at 49. Instead, he notes, it included “[r]eferences to conversations,

hyms [sic] sung by the victim [Kewan], and the victim’s future goals,” none of which

“were . . . authorized by statute or constitutionally admissible.” Id. Young argues that

these references were “designed to elicit, and likely did elicit, a strong emotional reaction

in the jury and introduced the spectra [sic] of arbitrariness” in the jury’s second-stage

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verdict. Id. Young also complains about the references to Lavada Grant having a heart

attack and dying shortly after learning of the murders. Young argues that this “[e]vidence

[suggesting] that [he] caused a third death could be viewed as nothing but aggravation,

particularly in the absence of any instructional guidance . . . .” Id. at 50.

a) Clearly established federal law

Young identifies Payne v. Tennessee, 501 U.S. 808 (1991), as providing the

“clearly established federal law” applicable to this claim. See Aplt. Br. at 49. In Payne,

the Supreme Court clarified the scope of admissible victim impact evidence during the

sentencing phase of a capital trial. More specifically, the Supreme Court overruled its

prior precedent and held that it was constitutionally permissible for a state to “conclude

that for the jury to assess meaningfully the defendant’s moral culpability and

blameworthiness, it should have before it at the sentencing phase evidence of the specific

harm caused by the defendant,” including evidence of how “the victim [wa]s an

individual whose death represent[ed] a unique loss to society and in particular to his

family.” 501 U.S. at 825 (internal quotation marks omitted). In other words, the Court

held, “[a] State may legitimately conclude that evidence about the victim and about the

impact of the murder on the victim’s family is relevant to the jury’s decision as to

whether or not the death penalty should be imposed.” Id. at 827; see also id. at 830 (“A

State may decide . . . that the jury should see a quick glimpse of the life petitioner chose

to extinguish, . . . to remind the jury that the person whose life was taken was a unique

human being.”) (internal citation and quotation marks omitted) (O’Connor, J.,

13
concurring). “In the majority of cases,” the Court held, “victim impact evidence [thus]

serves entirely legitimate purposes.” Id. at 825. Notwithstanding this holding, however,

the Court acknowledged the possibility that victim impact evidence could be “so unduly

prejudicial that it renders the trial fundamentally unfair . . . .” Id. In such instances, the

Court held, “the Due Process Clause of the Fourteenth Amendment provides a

mechanism for relief.” Id.

b) OCCA’s rejection of Young’s Payne-based arguments

Young argued in his direct appeal, citing Payne, that the prosecution’s use of

Morgan’s victim impact statement violated his rights under the Sixth, Eighth, and

Fourteenth Amendments of the United States Constitution. Young Direct Appeal Br. at

77. The OCCA rejected Young’s arguments, stating as follows:

Trial counsel objected to the introduction of the statement on the
grounds it was unconstitutional, more prejudicial than probative and a
denial of due process. . . .

Title 21 O.S.Supp.1995, § 701.10(C) provides the State may present
evidence “about the victim and about the impact of the murder on the
family of the victim.” This evidence is subject to the limitations imposed
by the Oklahoma Evidence Code as well as the state and federal
constitutions. [citation omitted]. Young argues the statement in his case
went beyond these parameters. We have examined the victim impact
statement delivered at Young’s trial and find it to be squarely within the
confines articulated by this Court and the Oklahoma Legislature. The
statement explained succinctly the relationships enjoyed by family members
with the victims. The statement focused on the effect of the murders on the
family of the victims. This is permissible under § 701.10(C).

Young objects to that part of the statement which included the fact an
aunt of the deceased, upon hearing of the murders, suffered a heart attack
and died. He argues a causal connection was not proven. This argument is

14
 appropriate for trial, not appeal. The presenter of a victim impact statement
is subject to cross-examination, and this issue properly could have been
plumbed at trial. [citation omitted].

Young I, 992 P.2d at 341-42 (internal paragraph numbers omitted).

c) Applying the AEDPA standards to the OCCA’s analysis

In this federal habeas appeal, Young does not challenge the OCCA’s analysis in

terms of the AEDPA standards of review. Indeed, he makes no mention at all of the

OCCA’s analysis. Instead, he simply repeats, in summary fashion, the arguments he

made on direct appeal. Out of an abundance of caution, we will assume that Young is

implying by his arguments that the OCCA unreasonably applied Payne in rejecting his

constitutional challenge to the admission of the victim impact statement.

After carefully examining the record on appeal, we conclude that the OCCA’s

rejection of Young’s constitutional challenge to the victim impact statement was neither

contrary to, nor an unreasonable application of, Payne. To be sure, the OCCA did not cite

directly to Payne. It did, however, cite its own decision in Toles v. State, 947 P.2d 180,

189 (Okla. Crim. App. 1997), which in turn acknowledged and applied Payne. As for the

specific components of the victim impact statement challenged by Young, the references

to conversations that Joyland had with her mother, her future goals, and Kewan’s love of

singing hymns simply provided a “quick glimpse” into the lives of the two people that

Young murdered, and thus did not violate Young’s due process rights. Payne, 501 U.S. at

830 (O’Connor, J., concurring). The only other specific part of the statement challenged

by Young, i.e., the portion that referred to Lavada Grant, an aunt of the two victims,

15
having a heart attack and dying after she learned about the murders, fell within the scope

of Payne’s holding allowing the admission of evidence “about the impact of the murder[s]

on the victim[s’] family . . . .” Id. at 827. Although Young complains that this portion of

the statement implied he was responsible for a third death, we note, as did the OCCA, that

his trial counsel made no attempt to cross-examine Morgan on this point. More

importantly, having reviewed the entirety of the trial transcript, we are not persuaded that,

even in the absence of such cross-examination, this challenged evidence was “so unduly

prejudicial that it render[ed] the trial fundamentally unfair . . . .” Id. at 825.

In sum, we conclude Young has failed to establish his entitlement to federal habeas

relief on the basis of the admission of the victim impact statement.

Ineffective assistance of trial counsel

Young next contends that his trial counsel was constitutionally ineffective for

failing to adequately investigate available mitigating evidence and present that evidence

during the second-stage proceedings. In support of this contention, Young notes that

“[n]o social history investigation was performed; no psychiatric or psychological testing

was done; no medical examinations were conducted; [and] almost no argument was made

to the jury to spare [his] life.” Aplt. Br. at 18. He further notes that “[f]amily members

and known friends were not interviewed and prepared to testify by explaining the need

and importance of their testimony.” Id. at 18-19. He argues that defense counsel’s failure

prejudiced him “by ensuring that the jury had no evidence to weigh against the

aggravating factors or to use to show mercy.” Id. at 19.

16
 a) Clearly established federal law

The “clearly established federal law” applicable to this claim is the Supreme

Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the

Supreme Court held that “[a] convicted defendant’s claim that counsel’s assistance was so

defective as to require reversal of a conviction or death sentence has two components.”

466 U.S. at 687. “First,” the Court noted, “the defendant must show that counsel’s

performance was deficient.” Id. “This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. “Second,” the Court noted, “the defendant must show that the

deficient performance prejudiced the defense.” Id. “This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id. “Unless a defendant makes both showings,” the Court held, “it cannot be

said that the conviction or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.” Id.

b) OCCA’s rejection of Young’s claim

Young first raised the issue of ineffective assistance of trial counsel on direct

appeal. The OCCA summarily rejected Young’s claim:

As his fourth allegation of ineffective assistance of counsel, Young
argues trial counsel failed to investigate mitigating evidence. This issue is
not supported by the record. The record indicates counsel was prepared to
call seven witnesses in mitigation.

Young I, 992 P.2d at 347 (internal paragraph number omitted). The OCCA also

17
summarily rejected Young’s related factual assertion that he waived the presentation of

mitigation evidence5:

Young did not waive mitigation, but opted to introduce it through
stipulation. As the State cogently argues, the State had given notice of
damaging rebuttal evidence, and Young’s stipulation strategically avoided
this risk as well as the risk of cross-examination.

Id. at 341 (internal paragraph number omitted).

After the OCCA denied his direct appeal, Young filed a petition for rehearing

asserting that the OCCA failed to consider his request for an evidentiary hearing in

connection with his ineffective assistance claim. The OCCA granted Young’s petition for

rehearing and, on the merits, denied his request for an evidentiary hearing:

In support of his application for a[n] [evidentiary] hearing, Young offers
several affidavits and a transcription of an interview with trial counsel.
Some of the affidavits are from family members and friends who stated that
they were willing to testify at trial, but were never contacted to testify.
Other affidavits are from purported experts in the field of human behavior,
capital murder cases and mitigating evidence [Linda Palmer, the licensed
professional counselor who Young’s counsel originally sought permission
from the state trial court to evaluate Young, and Dr. Ann Taylor, a
psychologist who had functioned as an expert mitigation witness in other
death penalty cases]. The mitigating evidence contained in the affidavits
show that witnesses would have testified that Young was a loving father
and a nice person; that Young was discharged from the Army because he
was determined to be mentally unfit; that Young had lost a brother and son
to sickle cell anemia; and that Young still lived with his domineering
mother. The interview with trial counsel shows that both Young and his
mother indicated that they did not want family and friends called to present
mitigating evidence.

5
Young made this factual assertion in connection with an argument on direct
appeal that the state trial court failed to ensure that he intelligently and knowingly waived
his constitutional right to present mitigation evidence.

18
 The trial record revealed that trial counsel negotiated a stipulation
regarding mitigation. Therefore, Young did not waive mitigation. (citation
omitted). This stipulation contained a statement that Young’s family and
relatives love him; Young has been a minister for eleven years; and that
Young is a[n] honorably discharged veteran of the Army. In our Opinion
we concluded that this stipulation strategically avoided the risk of damaging
rebuttal evidence and the risk of cross-examination. (citation omitted).

Upon review of the application and the supporting affidavits and
evidence, we find [Young] has shown this Court that trial counsel could
well have utilized this evidence and that it may have been prudent for him
to do so. However, Young has not shown by clear and convincing evidence
a strong possibility that defense counsel was ineffective for failing to utilize
or identify this evidence. Accordingly, we decline to grant [Young]’s
application for an evidentiary hearing. (citation omitted).

Young v. State, No. F 95-1142 at 2-4 (Okla. Crim. App. Feb. 19, 1999) (Order Granting

Rehearing and Denying Relief).

Young reurged his ineffective assistance of trial counsel claim in his application

for state post-conviction relief, but argued for the first time that his trial counsel should

have investigated and presented testimony from “mitigation expert” Dr. Wanda Draper

and psychologist Dr. Philip Murphy. The OCCA rejected the claim as procedurally

barred:

Young argues he was denied effective assistance of trial . . . counsel
regarding the issue of the presentation of mitigation evidence. After
reviewing the record, we find Young’s ineffective assistance of trial counsel
claims do not turn on facts or information unavailable at the time of his
direct appeal. Consequently, Young has not met the prerequisites for
review of this claim on the merits. This claim is barred.

Young II at 3 (internal citations omitted).

19
 c) The district court’s analysis

In reviewing Young’s ineffective assistance claim in the federal habeas context,

the district court rejected respondent’s argument that Young had procedurally defaulted

the portions of his ineffective assistance claim that were raised for the first time in his

application for post-conviction relief. Although the district court conceded “that the

OCCA’s procedural bar based on [Young]’s failure to raise the claim in a direct appeal

[wa]s an ‘independent’ state ground,” ROA, Doc. 58 at 18, it concluded “that the

procedural bar imposed by the OCCA . . . was not adequate to preclude federal habeas

review.” Id. at 19. More specifically, the district court noted “that the resolution of

[Young]’s allegations concerning trial counsel’s failure to investigate psychological

evidence and present expert mitigation witnesses [Draper and Murphy] [wa]s not

apparent from the trial record,” and thus could not have been raised by Young on direct

appeal. Id. at 20.

As for the OCCA’s rejection of Young’s claim on direct appeal, the district court

concluded that the OCCA failed to properly apply the second prong of the Strickland test.

Id. at 17. In particular, the district court concluded that the OCCA erroneously “required

[Young] to show by ‘clear and convincing evidence’ that he was prejudiced by [trial]

counsel’s failure to utilize available mitigation evidence.” Id.

The district court then proceeded to conduct its own de novo review of Young’s

ineffective assistance claim. In analyzing the first prong of the Strickland test, the district

court concluded “there [wa]s little doubt that [Young]’s trial attorney stopped short of

20
making a reasonable investigation for purposes of uncovering relevant mitigating

evidence that could have been useful in (1) fully informing [Young] of all available

mitigating evidence and his opinion of its potential effectiveness; and (2) persuading the

jury that [Young]’s moral culpability was not sufficient to warrant the death penalty.” Id.

at 22. In other words, the district court concluded that trial counsel’s “failure to

adequately investigate mitigation evidence and present it to the jury constituted deficient

performance under the first prong of the Strickland test.” Id. at 23.

Turning to the second prong of the Strickland test, the district court concluded,

after considering the strength of the prosecution’s case, the number of aggravating

circumstances found by the jury to exist, the mitigating evidence actually presented by

Young’s trial counsel, and the available mitigating evidence cited by Young in support of

his habeas petition, that Young was not prejudiced by trial counsel’s failure. Id. at 28. In

reaching this conclusion, the district court acknowledged that the mitigation evidence

cited by Young “would have shown favorable aspects of [his] character and provided

insight into his upbringing and grief related to deaths in his family . . . .” Id. at 27.

However, the district court concluded there was not a “reasonable probability that its

introduction would have caused the jury to decline to impose the death penalty.” Id. In

particular, the district court concluded that the fact that Young’s mitigation witnesses

“considered [him] to be a good person would not have supported the notion that the

murder of Joyland Morgan was not committed in a heinous, atrocious or cruel manner” or

“negated or affected in any way the fact that [he] knowingly created a great risk of death

21
to more than one person.” Id. at 27-28. Lastly, the district court concluded that “the

opinions offered by Dr. Draper” would not have caused the jury to “spare[] Young the

death penalty had [Draper] been allowed to testify.” Id. at 28.

d) Standard of review on appeal

Before turning to the specific arguments raised by Young in his appeal, we note

our agreement with the district court that we must apply de novo review in evaluating

Young’s ineffective assistance claim. To be sure, the OCCA purported to address

Young’s ineffective assistance claim on the merits when it affirmed his convictions and

sentences on direct appeal. But it is clear from the record on appeal that it did so on the

basis of a limited factual record; in particular, the OCCA did not consider the available

mitigating evidence cited by Young in support of his request for an evidentiary hearing on

his ineffective assistance claim. When Young subsequently petitioned the OCCA for a

rehearing, the OCCA proceeded to examine the mitigating evidence cited by Young, but

it viewed that evidence solely in terms of whether Young had satisfied the standard

outlined in OCCA Rule 3.11(B)(3)(b)(i), i.e., whether Young had presented “clear and

convincing evidence” establishing “there [wa]s a strong possibility trial counsel was

ineffective for failing to utilize or identify the complained-of evidence.”6 Okla. Stat. tit.

6
Although the district court concluded that the OCCA erroneously “required
[Young] to show by ‘clear and convincing evidence’ that he was prejudiced by counsel’s
failure to utilize available mitigation evidence,” ROA, Doc. 58 at 17, we agree with
respondent that the OCCA was instead determining merely whether Young was entitled
to an evidentiary hearing pursuant to OCCA Rule 3.11(B)(3)(b) on his ineffective
assistance claim. At no point, as far as we can determine, did the OCCA actually apply
(continued...)

22
22, ch. 18, App. Rule 3.11(B)(3)(b)(i). As a result, “we cannot conclude” that the OCCA

“necessarily decided that,” “the [Strickland] standard was not satisfied” when the OCCA

considered the mitigating evidence cited by Young with his request for an evidentiary

hearing and denied Young’s request for an evidentiary hearing.7 Wilson v. Sirmons, 536

F.3d 1064, 1081 (10th Cir. 2008).

We also note that the OCCA refused to consider the affidavits from Drs. Draper

and Murphy that were obtained and submitted by Young in connection with his

application for post-conviction relief. In doing so, the OCCA concluded that Young’s

ineffective assistance claim “d[id] not turn on facts or information unavailable at the time

of his direct appeal,” and was therefore procedurally barred. Young II at 3. We have,

however, repeatedly questioned whether this Oklahoma procedural rule, requiring

ineffective assistance of counsel claims to generally be brought on direct appeal, “can be

deemed adequate and independent to bar habeas review.” Cummings v. Sirmons, 506

F.3d 1211, 1224 (10th Cir. 2007) (internal quotation marks omitted). We have thus, in

turn, “held that th[is] Oklahoma procedural bar will apply [only] in those limited cases

meeting the following two conditions: trial and appellate counsel differ; and the

6
(...continued)
the Strickland standard in light of the additional mitigation evidence presented by Young
in connection with his request for an evidentiary hearing.
7
Even if we were to assume otherwise, we would still apply a de novo standard of
review to Young’s Strickland claim due to the OCCA’s failure to consider the mitigating
evidence presented by Young in his application for post-conviction relief (i.e., the
affidavits of Drs. Draper and Murphy).

23
ineffectiveness claim can be resolved upon the trial record alone.” Id. (internal quotation

marks omitted). “All other ineffective assistance claims, we have held, are procedurally

barred only if Oklahoma’s special appellate remand rule for ineffectiveness claims is

adequately and evenhandedly applied.” Id. (internal quotation marks omitted).

Young’s case does not fall within the limited subset of cases subject to procedural

bar because, even though his trial and appellate counsel differed, his ineffectiveness claim

was clearly incapable of being resolved on direct appeal based upon the trial record alone.

Nor, we note, would the granting of an evidentiary hearing by the OCCA on direct appeal

have produced the evidence now proffered from Drs. Draper and Murphy. Lastly, we are

not persuaded that, as of the time Young’s direct appeal was decided, Oklahoma’s special

appellate remand rule for ineffectiveness assistance claims was adequately and

evenhandedly applied. See id. (noting that “Oklahoma rarely, if ever, remands cases for

such a hearing”) (internal quotation marks omitted).

e) Young’s arguments on appeal

In his federal habeas appeal, Young argues that the district court was correct in

concluding “that trial counsel’s performance was . . . constitutionally deficient,” but erred

in concluding that “Young had not demonstrated prejudice.” Aplt. Br. at 22. For the

reasons outlined below, however, we conclude the district court was correct in its analysis

of both prongs of the Strickland test.

1. Trial counsel’s deficient performance

“In assessing [defense] counsel’s investigation” of available mitigating evidence in

24
a capital case, a federal habeas court “must conduct an objective review of [defense

counsel’s] performance, measured for ‘reasonableness under prevailing professional

norms . . . .’” Wiggins v. Smith, 539 U.S. 522, 523 (2003) (quoting Strickland, 466 U.S.

at 688). Those prevailing professional norms, according to the Supreme Court, include

the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases (ABA Guidelines). Id. at 524. Under the ABA Guidelines, “investigations into

mitigating evidence ‘should comprise efforts to discover all reasonably available

mitigating evidence and evidence to rebut any aggravating evidence that may be

introduced by the prosecutor.’” Id. (quoting 1989 version of ABA Guidelines). Among

the topics defense counsel should investigate and consider presenting include medical

history, educational history, employment and training history, family and social history,

prior adult and juvenile correctional experiences, and religious and cultural influences.

Id. (citing 1989 version of ABA Guidelines).

In this case, Young submitted, in connection with his direct appeal and request for

evidentiary hearing, a transcript of a tape-recorded interview that his appellate counsel

conducted with his lead trial counsel, Jim Fransein. In that interview, Fransein stated that

he had “briefly” “talked with a couple” of the proposed second-stage mitigation witnesses

prior to trial, but that his plan had been to interview each of the mitigation witnesses in

somewhat greater depth immediately prior to the start of the second-stage proceedings.

ROA, Vol. II, Doc. 23, Exh. 3 at 12. Fransein stated that his plan was derailed, however,

when he was informed by Young’s mother on the morning of the start of the second-stage

25
proceedings that she had sent all of the mitigation witnesses home. When asked about the

possibility of presenting expert psychological witnesses during the second-stage

proceedings, Fransein counsel stated that he had considered obtaining such testimony, but

that Young’s family was either unable or unwilling to pay for such services, and he

believed the trial judge “probably would [have] denied” an application for funding for

such services. Id. at 5. Fransein further stated that he had not ordered or obtained any

relevant records regarding Young. Lastly, Fransein stated that he and Young had not

talked about mitigation evidence or strategy because, “quite frankly,” Young was

convinced “there was no way that [the jury was] going to find [him] guilty” during the

first-stage proceedings. Id. at 12.

We conclude, as did the OCCA and the district court, that the investigatory efforts

of Young’s trial counsel fell far short of the prevailing standards for capital defense work

outlined by the Supreme Court in Wiggins. As the interview transcript makes clear,

Young’s trial counsel engaged in almost no efforts to investigate and develop mitigating

evidence. At best, the transcript indicates that trial counsel spoke briefly with a few

unnamed individuals who were presumably Young’s friends or family members. As a

result, Young’s trial counsel completed the first-stage proceedings and began the second-

stage proceedings generally unfamiliar with nearly all of the potential sources of

mitigating evidence from Young’s background. In turn, it is not surprising that trial

counsel’s second-stage “strategy” focused simplistically on highlighting “the good things

that [Young] ha[d] done” in the past and the “belief[s]” of Young’s friends and family

26
members “that he [wa]s not a future danger to the community . . . .” State Court ROA,

Vol. I at 85. In short, Young’s trial counsel did not “fulfill [his] obligation to conduct a

thorough investigation of [Young]’s background.” Williams v. Taylor, 529 U.S. 362, 396

(2000).

2. Prejudice

That leads us to the second prong of the Strickland test, i.e., whether Young was

prejudiced by his trial counsel’s constitutionally deficient investigatory efforts. In

conducting our second prong analysis, we must first address the effect, if any, of Young’s

decision at trial to forego presenting the mitigation witnesses his trial counsel had

subpoenaed and instead rely on a written stipulation of mitigation. More specifically, we

must determine whether Young’s decision in this regard forecloses the possibility of him

establishing prejudice.

As to this question, respondent argues that the Supreme Court’s recent decision in

Schriro v. Landrigan, 127 S.Ct. 1933 (2007), is controlling. In Schriro, the defendant

“refused to allow his counsel to present the testimony of his ex-wife and birth mother as

mitigating evidence at his sentencing hearing for a felony-murder conviction.” Id. at

1934. The defendant “also interrupted as [his] counsel tried to proffer other [mitigating]

evidence, and he told the Arizona trial judge he did not wish to present any mitigating

evidence and to ‘bring on’ the death penalty.” Id. The defendant was subsequently

sentenced to death. In a state post-conviction proceeding, the defendant argued that his

trial counsel “was ineffective for failing to conduct further investigation into mitigating

27
circumstances.” Id. The Arizona state courts denied that claim, “finding that he had

instructed counsel at sentencing not to present any mitigating evidence at all.” Id. The

defendant then filed a federal habeas petition, reurging his ineffective assistance claim.

Although the district court denied relief, the Ninth Circuit reversed, holding that the

defendant was entitled to an evidentiary hearing “because he raised a ‘colorable claim’

that his counsel’s performance” was constitutionally deficient. Id. at 1939. In particular,

the Ninth Circuit found that defense counsel “did little to prepare for the sentencing

aspect of the case,” “and that investigation would have revealed a wealth of mitigating

evidence, including the family’s history of drug and alcohol abuse and propensity for

violence.” Id. (internal quotation marks omitted). The Ninth Circuit also concluded,

citing Wiggins, that the defendant’s “apparently last-minute decision” to forego

mitigating evidence could not “excuse his counsel’s failure to conduct an adequate

investigation prior to the sentencing.” Id. at 1942 (internal quotation marks omitted).

The Supreme Court granted certiorari and reversed the Ninth Circuit’s decision. In

doing so, the Court noted that “[n]either Wiggins nor Strickland addresse[d] a situation in

which a client interfere[d] with counsel’s efforts to present mitigating evidence to a

sentencing court,” and that, “[i]ndeed, [it] ha[d] never addressed a situation like th[at]”

before. Id. Thus, the Court held, “at the time of the Arizona postconviction court’s

decision, it was not objectively unreasonable for that court to conclude that a defendant

who refused to allow the presentation of any mitigating evidence could not establish

Strickland prejudice based on his counsel’s failure to investigate further possible

28
mitigating evidence.” Id. Continuing, the Court also emphasized that it “ha[d] never

imposed an ‘informed and knowing’ requirement upon a defendant’s decision not to

introduce evidence.” Id. Nor, the Court noted, had it ever “required a specific colloquy

to ensure that a defendant knowingly and intelligently refused to present mitigating

evidence.” Id. at 1943. Lastly, the Court held that, “[e]ven assuming the truth of all the

facts [the defendant] sought to prove at the evidentiary hearing, he still could not be

granted federal habeas relief because the state courts’ factual determination that [he]

would not have allowed counsel to present any mitigating evidence at sentencing [wa]s

not an unreasonable determination of the facts under § 2254(d)(2) and the mitigating

evidence he s[ought] to introduce would not have changed the result.” Id. at 1944.

Respondent argues that, like the defendant in Schriro, Young “cannot demonstrate

prejudice from trial counsel’s failure to investigate, develop and present all of the

mitigation evidence he now embraces” because “[i]t is clear [Young] would not have

allowed that evidence to be presented under any circumstances.” Aplee. Br. at 30.

Rather, respondent argues, Young “demanded that the case in mitigation be limited to the

stipulation actually presented to the jury.” Id.

We reject respondent’s arguments and conclude that Young’s case is

distinguishable from Schriro. Unlike the defendant in Schriro, who waived his right to

present mitigating evidence, thereafter refused to allow his counsel to present any type of

mitigating evidence on his behalf, and all but asked the trial court to sentence him to

death, Young simply chose to forego the presentation of testimony from the handful of

29
friends and family members that his trial counsel had lined up to testify. Further, as the

OCCA expressly found, “Young did not waive mitigation, but [rather] opted to introduce

it through stipulation.” Young I, 992 P.2d at 341. In light of these circumstances, we

find it impossible to predict with any degree of certainty what Young would have done

had his trial counsel investigated and prepared to present all of the available mitigating

evidence that Young now points to. In particular, we do not believe that Young’s

decision to forego the live testimony of his friends and family members allows us to

accurately predict what he would have done had his trial counsel planned to present

mitigating testimony from Drs. Draper and Murphy. Thus, we conclude that Young’s

decision to forego live mitigation witnesses and rely on the written stipulation of

mitigating evidence does not prevent him, in the context of these federal habeas

proceedings, from establishing prejudice under the second prong of the Strickland test.

Turning directly to the issue of prejudice, Young argues initially “that the

inadequacies of his counsel [we]re so severe as to dispense with the need to show

prejudice under Strickland.” Aplt. Br. at 33. In support of this argument, Young cites to

a single case, Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997). As outlined in greater

detail below, however, a review of Rickman reveals that it is factually inapposite.

The state habeas petitioner in Rickman, Ronald Rickman, was charged in

Tennessee state court with first-degree murder for his participation in a murder-for-hire

scheme that resulted in the rape, abduction, and death of a female victim. Attorney

Robert Livingston was appointed by the state trial court to represent Rickman.

30
Livingston conducted an initial interview with Rickman, during which he confirmed that

a statement given by Rickman to authorities was true (it is unclear from the Rickman

opinion what the nature of the statement was; presumably, it was an admission of guilt).

From that point forward, “Livingston assumed that there was no defense to the charge of

first-degree murder and failed to conduct any investigation.” 131 F.3d at 1157. In

particular, “Livingston did not interview any witnesses, conduct any legal research, or

obtain and review any records, including those regarding Rickman’s employment,

education, mental health, social services contacts, military service, or prison experience.”

Id. “By Livingston’s account, he spent a total of sixteen hours preparing for Rickman’s

trial.” Id.

At trial, “Livingston was not content with mere nonfeasance,” and instead

“embarked on a course of attempting to persuade the jury that his client, although judged

legally competent to stand trial, [was], in fact, abnormal and should not be judged as a

normal person.” Id. (internal quotations marks omitted). In doing so, Livingston

“convey[ed] to the jurors an unmistakable personal antagonism toward Rickman,

characterized both by attacks on Rickman and by repeatedly eliciting information

detrimental to Rickman’s interests.” Id. at 1158. According to the Sixth Circuit,

“Livingston’s attacks on Rickman took the form of portraying him as crazed and

dangerous.” Id.

The Sixth Circuit ultimately concluded, relying primarily on United States v.

Cronic, 466 U.S. 648, 659 (1984) (“if counsel entirely fails to subject the prosecution’s

31
case to meaningful adversarial testing, then there has been a denial of Sixth Amendment

rights that makes the adversary process itself presumptively unreliable”), that not only

was Livingston’s performance constitutionally deficient, but that it was “so egregious as

to amount to the virtual or constructive denial of the assistance of counsel, and thus

implicate [a] presumption of prejudice . . . .” Id. at 1156. More specifically, the Sixth

Circuit concluded that because “Livingston succeeded in presenting a terrifying image of

Rickman, and thereby aligned himself with the prosecution against his own client,” the

prejudice to Rickman was “patently inherent” and thus it could “dispense[] with the

necessity of a separate showing of prejudice . . . .”8 Id. at 1159.

Although Young’s counsel was obviously neglectful in his investigation of

potential second-stage mitigating evidence, his conduct at trial was substantially different

than that of Rickman’s counsel. Most notably, a review of the trial transcript confirms

that Young’s counsel vigorously challenged the prosecution’s evidence, particularly

during the first-stage proceedings, and in no way “acted with reckless disregard for

[Young]’s best interests” or “with the intention to weaken [Young]’s case.” United States

v. Collins, 430 F.3d 1260, 1265 (10th Cir. 2005). Even during the second-stage

proceedings, Young’s counsel attempted to present some type of mitigating evidence (in

the form of a stipulation) after learning that Young’s mother had sent all of the planned

8
Rickman filed his application for federal habeas relief on March 5, 1985, more
than a decade prior to the implementation of the AEDPA. Thus, the Sixth Circuit, in
affirming the grant of Rickman’s request for federal habeas relief, was not bound by
AEDPA’s deferential standards of review. See Rickman, 131 F.3d at 1153-54 (outlining
standards of review).

32
mitigation witnesses home and, during closing arguments, pleaded for the jury to spare

Young’s life. In sum, a review of the trial transcript confirms that Young was not

subjected to a constructive denial of counsel. Thus, we conclude Young is not entitled to

a presumption of prejudice.

Alternatively, Young asserts that he “was indeed prejudiced by his counsels’

deficiencies.” Aplt. Br. at 34. “In assessing prejudice” in the context presented here, we

must “reweigh the evidence in aggravation against the totality of available mitigating

evidence.” Wiggins, 539 U.S. at 534. To establish prejudice, Young must demonstrate

there is “a reasonable probability that, absent [counsel’s] errors, the sentencer–including

an appellate court, to the extent it independently reweighs the evidence–would have

concluded that the balance of aggravating and mitigating circumstances did not warrant

death.” Strickland, 466 U.S. at 695. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at 694.

In his effort to establish prejudice, Young points to proposed testimony from

family members, friends, and expert witnesses that his trial counsel failed to discover and

present. The proposed testimony from each of these witnesses was outlined in affidavits

that were originally submitted in connection with Young’s application for state post-

conviction relief. The following is a summary of each of those affidavits:

Reverend William Hamilton: Hamilton “did not know [Young] personally,”
but rather “was acquainted with him because he had preached at
[Hamilton’s] church on occasion . . . .” ROA, Vol. II, Doc. 23, Exh. 4 at 1.
If he had been called as a witness, he “would have been willing to testify
that [Young] always seemed like a nice man.” Id.

33
T. B. Lockridge: Lockridge “was acquainted with [Young] because he had
served as a resident pastor at [Lockridge’s] church, preaching on the first
and third Sundays of the month.” Id., Exh. 5 at 1. If he had been called as a
witness, he “would have been willing to testify that . . . there were no
problems with [Young] during his time of ministry with [Lockridge’s]
church.” Id.

Cornelius Young II: Cornelius Young II was “the father of Julius Young . . .
.” Id., Exh. 6 at 1. He “would have been willing to testify and assist in the
investigation of [his] son’s life had [he] been asked to.” Id. Further, he
“would have cooperated fully in order to and persuade jurors to assess a
sentence less than death for [his] son Julius.” Id. at 2.

Alene Young: Alene Young was “the mother of Julius Young . . . .” Id.,
Exh. 7 at 1. She “would have testified in [her] son’s behalf and would have
assisted in any investigation into his life in order to present evidence so that
[her] son would not be sentenced to death.” Id. She alleges she “had no
understanding of mitigation and the ability to present evidence which would
move a jury to extend mercy to [her] son.” Id. at 2.

Gertrude Deadmon: Deadmon knew Young “when he was a Youth
Guidance Specialist . . . for a year or two,” and “she remembered him as a
person who spoke very intelligently and very well.” Id., Exh. 8 at 1. She
“was willing to testify that [Young] was an impeccable dresser, was well-
mannered, and articulated well.” Id.

Dr. Mozelle Lewis: Lewis is “a long-time friend of [Young]’s family and
ha[s] known [Young] since he was a child.” Id., Exh. 9 at 1. If called as a
witness, Lewis “would have been willing to testify that [Young] had a very
mild personality, was rather withdrawn, but was a very courteous child who
was willing to do what was asked of him.” Id. Further, Lewis would have
been willing to testify she “always knew [Young] to be a nice gentleman.”
Id.

Cornelius Young III: Cornelius Young III is “the older brother of Julius . . .
Young.” Id., Ex. 10 at 1. If called as a witness, he would have testified that
he and his brother “suffered and grieved together when [their] younger
brother Terry died of sickle cell anemia,” id., and that “Terry’s death . . .
had a devastating effect on [their] family.” Id. at 2. He would have further
testified that Julius also “lost his young son . . . to sickle cell anemia,”
which resulted in “another devastating loss to [their] family and particularly
for Julius.” Id. In addition, he would have testified that “Julius was a good

34
father to his sons,” and “took care of [his] mom and dad by doing the lawn
work and acting as a handy-man around the[ir] house.” Id. Lastly, he
would have testified about his childhood memories and how he and Julius
“depended on each other and . . . always helped each other out when there
was a difficulty.” Id.

Derrick Young: Derrick is one of Julius Young’s sons. Id., Exh. 11 at 1. If
called as a witness, he would have testified that his “mother and father got
divorced when [he] was about four or five years old,” but that his father
remained “an active participant in [his] life . . . especially during the years
between the second and eighth grade[s].” Id. at 2. In particular, Derrick
would have testified that his “father coached [his] T-Ball team and actively
supported [his] interest in sports,” but “never pressured [him] in any sport
in which [he] participated.” Id. Further, Derrick would have testified that
his father “was very strict” and “had high expectations about school work
and insisted that [they] do good in school.” Id. Derrick also would have
testified “[t]hat it was [his] Dad who would take [him] out on country roads
to teach [him] how to drive and but for that time [he] would not have had
the confidence to take [his] driving test to get [his] driver’s license.” Id. In
Derrick’s view, his paternal grandmother “made a lot of the decisions in
[her] family,” and his “Dad usually went along with [those] decisions.” Id.
at 3. It was also Derrick’s view “that [his] Dad’s family did not always see
the reality of their lives,” and attempted to portray themselves as “perfect
people always successful which was simply not true.” Id. According to
Derrick, “[t]wo of the most hurtful times in [their] family that particularly
affected [his] Dad were when [his] younger brother Dominque died of
sickle cell anemia and [when his] Uncle Terry” also died of the same
disease. Id. He remembers his “Dad crying hysterically and screaming at
Dominque’s funeral,” and “grabbing the casket.” Id. He “know[s] [his]
Dad was [also] crushed over Terry’s death.” Id. Derrick “believe[s] the
person [his] Dad most admired in his life was [his] great, great Grandfather
the Reverend McDaniels,” and that his “Dad became a minister hoping it
would straighten out his life.” Id. Lastly, he “believe[s] [his] Dad’s life has
worth and would have liked to share [his] Dad’s humanity with the jury so
that they could see the value his [Dad’s] life holds for [him].” Id. at 4.

Julius Young, Jr.: Julius Young, Jr. is the second-oldest son of Julius
Young. Id., Exh. 12 at 1. If called as a witness, he would have testified that
his father “was an active and vital participant in [his] life as [he] was
growing up,” id., serving as a “cub scout leader in the troop to which [his]
brother and [he] belonged,” and as coach of the “T-ball team on which [his]
brother and [he] played.” Id. at 2. According to Julius Jr., he “knew [he]

35
could always go to [his] father to discuss problems and that [his father]
would listen carefully and help [him] decide the best course of action.” Id.
He would have testified that he “share[d] holidays with [his] dad and
grandparents in which [they] ate lots of good food and visited with each
other,” that his “dad would help [him] whenever [he] was in trouble,” and
“[t]hat [his] Dad would do nice things like get [him] gifts for [his]
birthday.” Id. He also would have testified that “[w]henever [he] got out of
line [his] Dad did not hesitate to discipline [him] and [he] understood it was
because [his Dad] cared.” Id. According to Julius Jr., “the best times [he]
had with [his] Dad were when [they] were fishing,” something they did
together “on the weekends.” Id. He would have testified that “one of [his]
most poignant and painful memories . . . is when [his] little brother
Dominque died of sickle cell anemia when he was about two years old,”
and that “[a]t the funeral [his] Dad tried to pick up Dominque’s casket and
run away with it.” Id. at 3. He would also have testified that his “Uncle
Terry Young, [his] father’s brother, . . . died of sickle cell anemia about two
years before [his] father was charged with” the murders in this case. Id.
Julius Jr. “feel[s] if [he] had been allowed to testify [he] could have helped
the jury to see [his] Dad through [his] eyes as a caring father who tried to do
his best for [him], as someone who had suffered terrible losses in his own
life, and as a man who became a minister so that he could help other people
through their hurts.” Id. Finally, Julius Jr. “would have testified that [his]
father had never been violent with [him],” “[t]hat his [Dad’s] life has
worth” and “if [his Dad] were allowed to live he would still be a supportive
father,” and “[t]hat [his] Dad’s life has value.” Id.

Lorean Laws: Laws is Young’s maternal aunt. Id., Exh. 13 at 1. If called
as a witness, Laws would have testified that she “ha[d] known [Young] all
of his life and that he ha[d] always been a very gentle person with a good
upbringing from a supportive family.” Id. She would have further testified
that she “had frequent contact with [Young] in the past and kn[e]w him
very well,” and that she “was shocked with evidence presented at trial of
any anger or violence on [his] part because that is not the person [she]
kn[e]w.” Id. Additionally, she would have testified that Young “ha[d]
always had a loving relationship with both of his parents,” was “particularly
close to his mother,” and had “suffered significant losses in his life,
including the death of his young son and his brother, Terry, both of whom
died of Sickle Cell Anemia.” Id. at 2. Lastly, she would have testified that
Young “had a strong desire to be successful in life,” and “had a zest for life
which was best expressed through music.” Id.

Richard McDaniel: McDaniel is Young’s uncle and has “known [Young]

36
since he was a child.” Id., Ex. 14 at 1. Had he been called as a witness,
McDaniel “would have been willing to testify that [Young] was a very mild
young man, was never a violent person, and . . . helped out his mother by
doing chores like driving and handiwork around the house.” Id. He “would
have also testified that [he] did not believe [Young] committed the crime in
question.” Id.

Linda Palmer: Palmer is “a licensed professional counselor with a Master’s
Degree in Psychology and [was] pending certification as both a Criminal
Justice Specialist and Master Addiction Counselor.” Id., Ex. 15 at 1.
According to Palmer, “during the pendency of . . . Young’s capital trial,”
she “was contacted by defense counsel . . . about doing a psychological on .
. . Young.” Id. She allegedly “took initial steps and met with . . . Young’s
family,” but was later advised by defense counsel “that the family did not
have the funds to pay for [her] services.” Id. Had she “been retained [she]
was prepared to conduct psychological testing, do a clinical interview with .
. . Young, as well as gather a relevant social history in order to present
evidence in mitigation of the death penalty and to rebut the aggravating
circumstances alleged by the State based upon [her] findings.” Id. at 2.

Wanda Draper, Ph.D.: Draper is “a developmental epistemologist” who
“hold[s] the position of Clinical Professor, Emeritus, in the Department of
Psychiatry and Behavioral Sciences in the College of Medicine at the
University of Oklahoma Health Sciences Center.” Id., Exh. 17 at 1. Her
“work in the field of child development is interdisciplinary, covering
psychology, sociology, anthropology, medical psychiatry, and related
cultural and behavioral disciplines.” Id. Draper “performed a study of the
family and personal background of . . . Young at the request of” his post-
conviction counsel. Id. at 2. Of note in her study was that “Young was
recognized by his family and community as a well-behaved, responsible,
and caring individual who made many contributions to the well-being of
others.” Id. at 5. In particular, “[h]e served as a minister for eleven years
prior to his arrest,” and “was active in providing help such as replacing
roofs and making renovations on church buildings.” Id. at 6. In 1990,
while he was “employed as a houseman at the Holiday Dome in Tulsa,”
Young “rescued a mother and her child from the swimming pool where he
was cleaning at the time,” and then refused to accept a “monetary reward”
offered to him by the mother. Id. The study further indicates that “Young
suffered cumulative emotional trauma as a result of the loss of four close
family members [maternal grandmother and grandfather, brother, and son]
during a seven year period in his adulthood” which, in Draper’s opinion,
caused him “to experience a breakdown of his compulsively ordered life.”

37
 Id. at 10. More specifically, Draper opined that “[t]he emotional impact of
these losses produced a severe stress and trauma psychologically,” and “his
thought processes obscured reality and he suppressed his deepest feelings of
loss.” Id. According to Draper, “[w]hen . . . Young was threatened with
another loss, that of rejection by his girlfriend, one could expect that he
would experience severe emotional trauma as he began to, again, lose
control.” Id. That is, “[w]hen he faced losing his most recent emotional
connection to his love, Joyslon, it was beyond the scope of his ability to
adapt.” Id. at 12-13. Thus, Draper opined, “it is conceivable that he acted
in concert with a deep subconscious need to protect his ego and thereby
move outside the realm of his conscious awareness of moral justice.” Id. at
13. “From a neurological perspective, it is [Draper’s] opinion that on a
conscious level, he would not be aware of what he had done.” Id. In
Draper’s opinion, the murders “could have been the result of distortion in
his rational thinking” “set into action by the combination of severe
emotional trauma and use of alcohol which dulled the inhibitions.” Id. In
other words, she “believe[s] it was an act committed by a person under
severe emotional stress, most likely unable to fully comprehend the nature
of his actions or the consequences of what was taking place.” Id. at 13-14.

Philip Murphy, Ph.D.9: Murphy is a licensed clinical psychologist in the
State of Oklahoma. App. for Post-Conviction Relief, Exh. 6 at 1. Murphy
“performed a comprehensive psychological evaluation upon . . . Young . . .
on the premises of the Oklahoma State Penitentiary on 5/6/97 during a 4
hour full-contact visit.” Id. at 2. Murphy’s “[i]ntellectual estimates show
that [Young] operates at the low end of normal range of intellectual
functioning.” Id. According to Murphy, “[t]he most remarkable finding
from [Young’s] cognitive testing was the difference between his memory of
previous events of an emotionally neutral nature and memories of an
emotional nature.” Id. at 3. “Within the same testing modality, after a two
hour delay, [Young] could remember 90% of a 23 item emotionally neutral
passage, but zero % of the same length emotionally laden passage.” Id. In
Murphy’s opinion, “[t]he effect is most probably due to the use of extreme
repressive defense mechanisms . . . .” Id. With respect to Young’s

9
As we have noted, Murphy’s affidavit was obtained by Young’s state post-
conviction counsel and submitted in connection with the application for state post-
conviction relief. Curiously, however, Young makes no mention of Murphy’s affidavit in
his appellate brief, and thus it is unclear if he intended to abandon reliance on it. Out of
an abundance of caution, we will consider it in determining whether Young can establish
prejudice under the second prong of the Strickland test.

38
 personality, Murphy opined that Young “likely had his emotional needs
well-met and well-challenged during his childhood formative years, but a
more recent event or condition has produced the need for his personality to
engage in defensive operations via withdrawal within himself and histrionic
devices of a repressive nature.” Id. at 4. “Psychological diagnostic trait
testing suggests that [Young] suffers from no Axis I psychiatric condition
of either a severe or milder type.” Id. Young likely does have a
“Compulsive Personality Disorder . . . .” Id. at 6. Notably, however, “[t]his
type of psychiatric disorder is not typically associated with the commission
of homicide.” Id. “Other factors found some mild impulsiveness and
possible low frustration tolerance but none connected with aggressive
intentions.” Id. Young “has no significant substance abuse history or sign
of it from th[e] evaluation.” Id. at 7. In Murphy’s opinion, Young “likely
would not aggress against any man in any situation,” and “[t]herefore a case
could have been made that [Young] does not serve a continuing thereat [sic]
to society and much more strongly in an all male prison society.” Id.

In addition to the mitigation evidence that Young’s trial counsel failed to discover

and present, the record on appeal establishes that Young’s trial counsel actually presented

the following stipulation of mitigating evidence to the jury during the second-stage

proceedings:

That [Young] is 42 years of age and he has been a life-long resident of
Tulsa;
[Young] has family, relatives that love him;
[Young] has been a minister in a church for 11 years;
[Young] is a veteran, having served in the U.S. Army and was honorably
discharged.

ROA, Tr., Vol. III at 919.

Having recounted all of the available mitigating evidence, we next consider the

evidence in aggravation presented by the prosecution. During the second-stage

proceedings, the prosecution was permitted to incorporate by reference all of the first-

stage evidence. This included testimony from various police witnesses describing the

39
crime scene, as well as testimony from the Oklahoma State Medical Examiner describing

the injuries suffered by Joyland and Kewan and the manner of their deaths. In addition to

the incorporated first-stage evidence, the prosecution presented the testimony of

Catherine Morgan, who, as we have discussed, read into the record a victim impact

statement she had prepared. Lastly, the state court records indicate that at the conclusion

of the first-stage proceedings, the prosecution filed a notice of intent stating that, in the

event Young offered mitigating evidence, it intended to offer testimony from the

following witnesses in rebuttal of Young’s mitigating evidence:

Joyslon Edwards: The prosecution’s notice stated that Edwards would
testify “that during March or April of 1993 . . . Young . . . attempted to
force his way into Apartment #5, 115 East 16th St., Tulsa, OK after
previously being denied entry and after being informed that she did not
wish to speak with him.” State Court ROA, Vol. III at 435.

Dedra Morgan, Joyslon Edwards, or Jerry Griggs: According to the
prosecution’s notice, these witnesses10 would “testify to statements made by
Joyland Morgan prior to her death regarding the nature of her relationship
with [Young].” Id. at 435-36. In particular, the prosecution’s notice stated
that these witnesses would “testify to allegations made by Joyland Morgan
regarding sexual contact between [Young] and Joyland Morgan.” Id. at
436.

Pam Floyd: The prosecution’s notice stated that Floyd “w[ould] testify to
an attack by [Young] in 1981 on her automobile after she refused to have
sex with him. The existence, location, and specific information to be
provided by this witness was not discovered until after the [first stage
proceedings had] commenced.” Id.

Before proceeding to “reweigh the evidence in aggravation against the totality of

10
The prosecution’s notice erroneously listed Joyslon Edwards as “Joyslon
Morgan.” State Court ROA, Vol. III at 435.

40
available mitigating evidence,” Wiggins, 539 U.S. at 534, we pause briefly to highlight

the jury’s second-stage findings and the OCCA’s subsequent treatment of those findings.

The jury, at the conclusion of the second-stage proceedings, found the existence of three

aggravating circumstances: (1) that Young knowingly created a great risk of death to

more than one person; (2) the murder was especially heinous, atrocious or cruel; and (3)

the existence of a probability that Young would commit criminal acts of violence that

would constitute a continuing threat to society. On direct appeal, the OCCA concluded

that the jury’s verdict form “[wa]s subject to only one reasonable interpretation: the jury

found these three aggravating circumstances for each murder Count.” Young I, 992 P.2d

at 343. The OCCA further concluded that this constituted plain error because the

prosecution “was permitted to charge and present evidence to support the ‘heinous,

atrocious or cruel’ aggravating circumstance as to Count II [the murder of Kewan], even

though no notice had been given to the defense.” Id. at 344. “To remedy this error,” the

OCCA struck “the ‘heinous, atrocious or cruel’ aggravating circumstance from Count II”

and “reweigh[ed] the aggravating and mitigating evidence as to this Count . . . .” Id. The

OCCA also concluded that the evidence presented at trial was insufficient to support the

continuing threat aggravating circumstance. Id. Citing one of its prior decisions holding

“that in order to prove continuing threat the State must present evidence concerning prior

convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely

continue in the future,” the OCCA noted that “the only evidence introduced of [Young’s]

past bad acts was five counts of uttering a forged instrument, and the fact Young became

41
‘snappy’ and had an ‘attitude’ when he drank.” Id. The OCCA therefore struck the

continuing threat aggravator as “invalid.” Id. Finally, conducting its own reweighing of

the valid aggravating factors and the mitigating evidence, the OCCA found “beyond a

reasonable doubt” that, “[h]ad the jury considered only the valid aggravators,” it “would

have sentenced Young to death in both Counts.”11 Id. at 345.

We now turn directly to the process of reweighing the evidence. In doing so, we

readily conclude that none of the available mitigating evidence would have prevented the

jury from finding that Young knowingly created a great risk of death to more than one

person, or from finding that Joyland’s murder was especially heinous, atrocious or cruel.

Those aggravating circumstances were clearly established by the prosecution’s first-stage

evidence, which was incorporated by reference into the second-stage proceedings, and

nothing in the available mitigating evidence remotely touches on these two

circumstances.

We further conclude that, had all of the available evidence been presented to the

jury, not only would the jury have found the existence of the continuing threat aggravator,

the OCCA would not have stricken it on direct appeal. To be sure, Dr. Philip Murphy

opined in his affidavit that Young was unlikely to commit future violent acts, particularly

in an all male prison setting. Thus, Murphy’s testimony could arguably have operated to

11
As we have already noted, the OCCA’s independent reweighing of the
aggravating and mitigating evidence is not entitled to deference on federal habeas review
because the OCCA did not take into account all of the mitigating evidence that Young’s
counsel failed to discover and present at trial.

42
rebut the evidence cited by the prosecution in support of the continuing threat aggravator.

That said, however, the state court record indicates that, had Young presented mitigating

evidence, including the testimony of Dr. Murphy, the prosecution would have presented

rebuttal testimony from three additional witnesses that would have provided additional

support for the continuing threat aggravator. That evidence would have indicated that

Young attempted to forcibly enter Joyslon Edwards’ apartment in the spring of 1993,

made sexual advances towards Joyland Morgan prior to her death, and attacked a woman

in 1981 after she refused to have sex with him. Based upon this evidence, the jury could

reasonably have found the existence of the continuing threat aggravator and, given the

prosecution’s proposed rebuttal evidence establishing Young’s commission of two prior

violent acts, the OCCA would not have stricken the continuing threat aggravator on direct

appeal. Moreover, had the jury heard this additional rebuttal evidence, we are persuaded

it would have viewed Young in a more negative light than it already did having heard

only the evidence of Young’s involvement in the two murders. That is, we are persuaded

the state’s rebuttal evidence would have reduced, if not eliminated, the possibility of the

jury concluding that Young’s killing of Joyland and Kewan was a one-time event

resulting from extreme stress, and would, in turn, have increased the likelihood of the jury

concluding that the murders were part of a pattern of violent conduct by Young towards

women who rejected his sexual advances.12

12
In contrast to the situation in Williams, where the evidence indicated that the
defendant’s “violent behavior was a compulsive reaction rather than the product of cold-blooded
(continued...)

43
 In sum, we conclude that, even if Young’s trial counsel had presented all of the

available mitigating evidence now cited by Young, the jury would still have found the

existence of at least two, and perhaps three, aggravating circumstances, and in turn would

have been required to weigh those aggravating circumstances against any mitigating

circumstances it may have found.

That leads to the question of whether the presentation of the available mitigating

evidence would have caused the jury to find the existence of one or more mitigating

circumstances.13 Had Young’s trial counsel presented all of the mitigating evidence now

cited by Young, it is likely that the jury would have found some mitigating circumstances.

To begin with, the testimony from Young’s family members could have, as argued by

Young, “painted a picture of [him] that was [at least somewhat] sympathetic . . . .” Aplt.

Br. at 34. In particular, the jury could reasonably have found that Young had a family,

including parents, brothers, and sons, that loved and cared for him, and that, in turn,

Young loved and cared for his family. Further, the jury could reasonably have found that

Young had performed good deeds in his life, both inside and outside his ministry. In

addition, the jury could reasonably have found that Young, as an adult, suffered from, and

12
(...continued)
premeditation,” 529 U.S. at 398, we note the opposite was true in Young’s case. Although the
evidence indicates that Young’s actions were in reaction to Joyslon’s efforts to alter the nature of
their relationship (as well as possibly in reaction to Joyland’s rejection of his sexual advances),
the actual murders were clearly not “a compulsive reaction” occurring in the moment, but rather
demonstrated a degree of planning on Young’s part, and thus could reasonably be described as
“the product of cold-blooded premeditation.”
13
We note that the jury in Young’s case was not asked to specify whether it found
the existence of any mitigating factors.

44
was negatively impacted by, the loss of both his brother and a son to sickle cell anemia.

Finally, the jury could also have found that Young attempted to deal with his emotional

distress from these losses by self-medicating with alcohol.

Importantly, however, we conclude that none of these potential mitigating

circumstances substantially reduce Young’s “moral culpability” for the two murders.

Williams, 529 U.S. at 398. Indeed, none of these mitigating circumstances are so unusual

as to place Young outside the realm of the average person. Relatedly, unlike many

capital defendants, Young’s childhood appears to have been generally normal and happy

(aside from, according to Dr. Draper, the controlling nature of Young’s mother), and thus

could not reasonably serve to reduce Young’s moral culpability. As for Dr. Draper’s

opinions regarding Young’s psychological and emotional attributes, none of those were

particularly insightful or persuasive. For example, Dr. Draper opined that the murders

were “an act committed by a person under severe emotional distress [presumably from

the losses in his life, combined with the possible rejection from Joyslon Edwards],” and

Young was “most likely unable to fully comprehend the nature of his actions or the

consequences of what was taking place.” ROA, Vol. II, Doc. 23, Exh. 17 at 13-14.

While this may well be true, the causes of Young’s emotional distress were not

substantially out of the ordinary. Moreover, Young’s reaction to his emotional distress

could have been viewed by the jury as a negative factor, i.e., it could have been

considered by the jury as making Young a particularly dangerous person, capable of

extreme violence in reaction to relatively common life events.

45
 Similarly, nothing in Dr. Murphy’s affidavit provides a compelling or sympathetic

explanation for Young’s violent behavior. Indeed, Murphy concluded that Young’s

“emotional needs [were] well-met and well-challenged during his childhood formative

years,” and his psychological testing of Young revealed “no Axis I psychiatric condition

of either a severe or milder type.” App. for Post-Conviction Relief, Exh. 6 at 4.

Although Murphy did conclude that Young likely suffers from a “Compulsive Personality

Disorder,” he noted that “[t]his type of psychiatric disorder is not typically associated

with the commission of homicide.” Id. at 6.

In sum, we are not persuaded, weighing all of these factors together, that there is a

reasonable likelihood that the jury would have reached a different second-stage outcome

had it heard all of the available mitigating evidence now cited by Young. Thus, we

conclude Young has failed to establish he was prejudiced by his trial counsel’s deficient

performance, and in turn we conclude he is not entitled to federal habeas relief in the

form of a new second-stage proceeding.

f) The dissenting opinion

The dissenting opinion in this case suggests that, because “neither the jury, a state

court, nor the federal district court ever heard the mitigating evidence that Mr. Young

seeks to present,” Dissent at 1, we should “remand the case to the district court for an

evidentiary hearing on the prejudice component of Mr. Young’s ineffective assistance of

counsel claim,” id. at 9. As we outline below, this suggestion has neither procedural nor

substantive support.

46
 Young asserted, in Ground Seven of his amended federal habeas petition, that he

was entitled to a federal court evidentiary hearing in connection with his ineffective

assistance claim. He did not otherwise indicate, however, whether his purpose in seeking

such a hearing was to focus on the first Strickland prong, the second Strickland prong, or

both. The district court, in its Opinion and Order denying relief, rejected Ground Seven

on the merits, stating:

In his request for relief (Dkt. #22 at 78-80), Petitioner asks for an
evidentiary hearing on his ineffective assistance of counsel proposition. As
the disposition of Petitioner’s habeas corpus petition does not require
reference to any materials beyond those that are available and currently
before the Court, this Court finds that there is no need for an evidentiary
hearing in this case. There are no disputed factual questions remaining that
could possibly entitle Petitioner to habeas corpus relief. Petitioner has
failed to demonstrate the need for an evidentiary hearing under either 28
U.S.C. 2254(e)(2) or any other governing principle of law. Williams v.
Taylor, 529 U.S. 420 (2000). Accordingly, Petitioner’s request for an
evidentiary hearing is denied.

ROA, Vol. I, Doc. 58 at 48.

After filing his notice of appeal, Young filed an application for COA with the

district court. The application asked the district court to issue a COA “on Grounds One

[ineffective assistance], a portion of Ground Two [victim impact statement], Ground Five

[admission of Young’s “fish blood” statement] and Ground Six [cumulative error].” Id.,

Doc. 63 at 8. Notably, the application did not seek a COA with respect to Ground Seven

of the amended habeas petition.

In his appellate brief, Young makes two fleeting references to his request for an

evidentiary hearing. First, in outlining the procedural history of his case, Young notes

47
that the district court denied his request for an evidentiary hearing. Aplt. Br. at 6

(“Although Mr. Young had requested an evidentiary hearing on his ineffective assistance

of counsel claim, none was granted.”). Second, in the “SUMMARY OF THE

ARGUMENT” section of his brief, Young states: “An evidentiary hearing, if held, would

have conclusively demonstrated that trial counsel failed in all respects to follow ABA

guidelines for capital defense work and would have revealed powerful evidence that Mr.

Young could have used to convince a jury that the state had not met its burden to show

that aggravating circumstances outweighed mitigating circumstances, or in the

alternative, to show mercy despite its verdict on the weighing decision.” Id. at 19. The

remainder of Young’s brief is silent with respect to the evidentiary hearing issue. In

particular, Young offers no reasons why, in his view, the district court abused its

discretion in rejecting his request for an evidentiary hearing, nor does he expressly

request a COA with respect to the issue.

Thus, from a procedural standpoint, the issue of whether the district court abused

its discretion in denying Young’s request for an evidentiary hearing in connection with

his ineffective assistance claim is not properly before us. No COA has been requested or

granted on this issue.

Even if we were, as the dissent essentially proposes, to ignore Young’s failure to

be granted, or to even request, a COA, there are a host of reasons why the dissent’s

proposal for an evidentiary hearing should not be adopted. To begin with, the dissent

mistakenly asserts “that the proper standard for assessing Mr. Young’s claims of

48
prejudice is whether ‘his allegations, if true and not contravened by the existing factual

record, would entitle him to habeas relief.’” Dissent at 3 (quoting Bland v. Sirmons, 459

F.3d 999, 1033 (10th Cir. 2006)). The problem with this assertion is that it conflates the

pre-AEDPA standard that we apply “when ‘a habeas petitioner has diligently sought to

develop the factual basis underlying his habeas petition, but a state court has prevented

him from doing so,’” Bland, 459 F.3d at 1033 (quoting Miller v. Champion, 161 F.3d

1249, 1253 (10th Cir. 1998)), with the clearly established Strickland prejudice inquiry.

Young is entitled to an evidentiary hearing if “his allegations, if true and not contravened

by the existing factual record, would entitle him to habeas relief.” Id. at 1033. But he is

only entitled to habeas relief if his allegations establish “a reasonable probability that,

absent [counsel’s] errors, the sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at

695. Thus, the Bland and Strickland standards work in conjunction with each other.

Here, as we have shown, Young’s allegations, even assuming them to be true, are

insufficient to demonstrate prejudice under Strickland. Therefore the district court was

not required to hold a hearing. See Schriro, 127 S.Ct. at 1940.

Relatedly, the dissent is mistaken in suggesting that “the flaw in” the majority’s

prejudice analysis is our reliance “on information that was never presented from the

witness stand,” including not only the prosecution’s proposed rebuttal testimony, but also

the testimony of Drs. Draper and Murphy. Dissent at 3. By necessity, a claim that

counsel was ineffective for failing to investigate and present available mitigating

49
evidence focuses on information that was never presented to or heard by the jury.

Nothing in controlling Supreme Court precedent, however, requires presentation of that

evidence to a factfinder before the Strickland prejudice inquiry is resolved. To the

contrary, the Court in Strickland emphasized that “[i]neffectiveness is not a question of

‘basic, primary, or historical fac[t],’” but rather “is a mixed question of law and fact.”

466 U.S. at 698 (quoting Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963)). In turn, the

Court in Strickland, consistent with its characterization of the issue as a mixed question of

law and fact, conducted its own prejudice analysis, as we have done here, by accepting

the proffered evidence at face value. See id. at 675 (noting that, in his state collateral

proceedings, Strickland “submitted 14 affidavits from friends, neighbors, and relatives,”

as well as “one psychiatric report and one psychological report”), 678 (noting that the

federal district court “held an evidentiary hearing to inquire into trial counsel’s efforts,” at

which Strickland “offered the affidavits and reports he had submitted in the state

collateral proceedings,” and “also called his trial counsel to testify”), 699-700

(concluding that “[t]he evidence that [Strickland] says his trial counsel should have

offered at the sentencing hearing would barely have altered the sentencing profile

presented to the sentencing judge”).

The dissent is also mistaken in implying that our prejudice analysis is dependent in

large degree on the “potential testimony of the prosecution’s three rebuttal witnesses.”

Dissent at 2. The fact is that the outcome of our prejudice analysis would be the same

even if, in reweighing the evidence, we were to consider only the aggravating evidence

50
that was actually relied on by the prosecution at trial, i.e., all of the first-stage evidence

that detailed the brutal and callous nature of the two murders that Young committed.

That first-stage evidence, standing alone, was clearly sufficient to establish the

aggravating factors found by the jury and affirmed by the OCCA (i.e., the knowing

creation of great risk of death to more than one person, and that Joyland Morgan’s murder

was committed in a heinous, atrocious or cruel manner), and we are not persuaded that

there is a reasonable probability that the presentation of testimony from Drs. Draper and

Murphy would have caused the jury to conclude “that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695. As for the

three rebuttal witnesses proposed by the prosecution, our point in discussing it was simply

to highlight the fact that, had Young’s trial counsel presented testimony from Drs. Draper

and Murphy, the prosecution in turn would have presented additional, highly prejudicial

evidence that would likely have supported a finding that Young was a continuing threat.

The limited scope of the dissent’s proposed evidentiary hearing is also

problematic. According to the dissent, “both Mr. Young and the government” should be

allowed “to present evidence regarding the prejudicial effect, if any, of the deficient

performance of Mr. Young’s trial counsel.” Dissent at 1. As we see it, however, that

would necessitate allowing the government to put on all of the evidence that was

originally presented during the first-stage of Young’s trial. More specifically, because

such evidence was incorporated by reference during the second-stage proceedings of

Young’s trial, it was, and remains, relevant to the aggravating factors alleged by the

51
prosecution, and in turn is relevant to the determination of whether Young was prejudiced

by his trial counsel’s failure to present the mitigating evidence to which he now points.

Thus, the proposed evidentiary hearing would, in the end, effectively amount to a new

second-stage proceeding, albeit with a judge acting as factfinder, rather than a jury. In

other words, in the name of resolving the prejudice component of Young’s ineffective

assistance claim, we would, in effect, be granting him the exact type of relief that he

seeks in these federal habeas proceedings.

It is also apparent that the dissent has failed to carefully consider what its proposed

evidentiary hearing would mean for the ultimate resolution of Young’s ineffective

assistance claim on appeal. Presumably, the dissent would allow the district court to

make credibility findings regarding Drs. Draper and Murphy, as well as to the other

witnesses presented by Young and the prosecution. In turn, those findings, which would

be factual in nature, would presumably be reviewable on appeal only for clear error. In

short, the dissent’s proposed evidentiary hearing would transform what the Supreme

Court has clearly stated is a mixed question of law and fact into a purely factual issue and,

in doing so, would improvidently shift to the district court the great weight of the burden

of resolving Strickland-based claims such as the one asserted by Young.

Finally, it bears mentioning that if an evidentiary hearing is warranted in this case,

then it would presumably be warranted in any habeas proceeding in which a capital

defendant asserts his counsel was ineffective for failing to present available mitigating

evidence. Nothing in Supreme Court precedent mandates such a result.

52
 Cumulative Error

Lastly, Young argues that “[b]oth of the errors complained of” in this appeal, “and

alternatively each of the errors complained of in the district court petition[,] warrant . . .

habeas corpus relief in the form of a new sentencing proceeding.” Aplt. Br. at 50-51.

Young also offers a third cumulative error theory in support of his request for a new

sentencing proceeding, asserting that we should “cumulatively assess the impact of the

[trial] errors” found by the OCCA on direct appeal “and grant habeas relief accordingly.”

Id. at 52. In this regard, Young notes that on direct appeal, the OCCA “determined that

the trial court failed to remove two venire members for cause, that misleading statements

were contained in the affidavit for probable cause supporting the request for a search

warrant, the trial court did not provide the jury with a proper form for finding aggravating

circumstances as to each murder count, and the trial court failed to give an instruction

limiting the jury’s use of victim impact evidence.” Id. at 51-52.

“‘A cumulative-error analysis aggregates all errors found to be harmless and

analyzes whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.’” Brown v. Sirmons, 515

F.3d 1072, 1097 (10th Cir. 2008) (quoting United States v. Toles, 297 F.3d 959, 972

(10th Cir. 2002)). Notably, in the federal habeas context, cumulative error analysis

applies only to cumulative constitutional errors. See Jackson v. Johnson, 194 F.3d 641,

655 n.59 (5th Cir. 1999) (“The cumulative error doctrine provides relief only when the

constitutional errors committed in the state court trial so fatally infected the trial that they

53
violated the trial’s fundamental fairness.”) (emphasis added).

Addressing Young’s theories in order, it is clear that cumulative error analysis

does not apply to the two substantive issues raised in his federal habeas appeal because

only one of those issues, i.e., the ineffective assistance claim, has any merit. Thus, there

is “nothing to cumulate.” Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007)

(internal quotation marks omitted).

Young’s second cumulative error theory is unusual in that it relies not only on the

two substantive issues upon which a COA were granted, but also upon all of the other

issues raised in his federal habeas petition. Young does not cite to any cases to support

this theory, and our own research has not produced any. In the end, we conclude there is

no basis for us to consider that theory because the other issues raised in Young’s federal

habeas petition were rejected by the district court and neither the district court nor we

have granted a COA with respect to those issues.

That leaves Young’s final theory, which posits that we must consider the

cumulative impact of all the errors recognized by the OCCA on direct appeal. That

theory is even more problematic than the second in that it relies in part on state law issues

that were not, and could not provide, a legitimate basis for federal habeas relief, and were

thus never raised in Young’s federal habeas petition. We therefore reject this theory

without further analysis.

AFFIRMED.

54
07-5130, Young v. Sirmons
HENRY, Chief Judge, concurring in part and dissenting in part.

I concur fully with the majority’s opinion, except for its analysis of the prejudice

component of Mr. Young’s ineffective assistance of counsel claim. On that claim, my

concern is that neither the jury, a state court, nor the federal district court ever heard the

mitigating evidence that Mr. Young seeks to present.

In this capital case, we must be mindful of the principle that “sentences of death

are ‘qualitatively different’ from prison sentences,” and that, as a result, “[the Supreme

Court] has gone to extraordinary measures to ensure that the prisoner sentenced to be

executed is afforded process that will guarantee, as much as is humanly possible, that the

sentence was not imposed out of whim, passion, prejudice, or mistake.” Eddings v.

Oklahoma, 455 U.S. 104, 117-18 (1982) (O’Connor, J., concurring) (quoting Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

I would therefore remand the case to the district court for an evidentiary hearing that

would allow both Mr. Young and the government to present evidence regarding the

prejudicial effect, if any, of the deficient performance of Mr. Young’s trial counsel.

In explaining my views, I will begin with my understanding of the majority’s

analysis and then turn to the standard that I would apply. Finally, I will explain why I

believe Mr. Young is entitled to an evidentiary hearing under that standard.

The majority concludes that Mr. Young has failed to establish that his trial

counsel's deficient performance prejudiced him. In addition to basing its opinion on

“[the] aggravating circumstances . . . clearly established by the prosecution’s first-stage
evidence,” maj. op. at 42, the majority details the impact of the potential testimony of the

prosecution's three rebuttal witnesses. The majority concludes that the testimony of these

witnesses could have led the jury “reasonably [to] have found the existence of the

continuing threat aggravator,” which in turn would have been upheld by the OCCA. Maj.

op. at 43. Additionally, in the majority’s view, this testimony (which was never

presented) “would . . . have increased the likelihood of the jury concluding that the

murders were part of a pattern of violent conduct by [Mr.] Young towards women who

rejected his sexual advances.” Id.

Further, the majority concludes that none of the mitigating circumstances invoked

by Mr. Young substantially reduce his culpability for the two murders. In the majority’s

view, these circumstances do not place Mr. Young outside the realm of the average

person. Moreover, Dr. Wanda Draper’s opinions regarding Mr. Young’s psychological

and emotional attributes are not “particularly insightful or persuasive.” Id. at 45.

Additionally, “[Mr.] Young’s reaction to his emotional distress could have been viewed

by the jury as a negative factor, i.e., it could have been considered by the jury as making

[Mr.] Young a particularly dangerous person, capable of extreme violence in reaction to

relatively common life events.” Id.

In my view, the flaw in this approach is its reliance on information that was never

presented from the witness stand. What we know of the prosecution’s rebuttal witnesses

comes from a pleading filed by the prosecutor that merely summarizes anticipated

testimony, while, as to Mr. Young’s mitigation witnesses, we have only affidavits.

2
Moreover, the lack of a well-developed factual record cannot be imputed to Mr. Young.

Instead, it was Mr. Young’s counsel’s deficient performance that kept the mitigation

evidence from the jury. And in the state post-conviction and federal habeas proceedings,

the courts denied Mr. Young’s requests for an evidentiary hearing.

As a result, I believe that the proper standard for assessing Mr. Young’s claims of

prejudice is whether “his allegations, if true and if not contravened by the existing factual

record, would entitle him to habeas relief.” Bland v. Sirmons, 459 F.3d 999, 1033 (10th

Cir. 2006) (quoting Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998)). If so, he

is entitled to an evidentiary hearing. Id. Importantly, I view “the existing factual record”

as the evidence presented at trial, which Mr. Young had an opportunity to contest. See

generally Wilson v. Sirmons, 536 F.3d 1064, 1079 (10th Cir. 2008) (distinguishing

between “non-record evidence” and “the trial record” in discussing the standard of review

under AEDPA).

“The existing factual record” does not include the prosecution’s summary of

rebuttal witnesses’ testimony, on which the majority relies here. That limitation is

grounded in the Due Process Clause, which ensures that a defendant is provided with an

opportunity to test or rebut the prosecution’s evidence before it is used against him,

Simmons v. South Carolina, 512 U.S. 154, 161 (1994), as well as the Eighth Amendment,

which “imposes a heightened standard for reliability in the determination that death is the

appropriate punishment in a specific case.” Id. at 172 (Souter, J., concurring) (collecting

3
cases) (internal quotation marks omitted).1

Here, Mr. Young’s allegations are not contravened by the existing factual record

and, accepted as true, warrant an evidentiary hearing on his claim for ineffective

assistance of counsel. There is no dispute that “the investigatory efforts of [Mr.] Young’s

trial counsel fell far short of the prevailing standards for capital defense work[,]” thereby

establishing the first element of the claim. Maj. op. at 26; see generally Strickland v.

Washington, 466 U.S. 668, 694 (1984). Indeed, the state’s counsel commendably

acknowledged at oral argument that “I don’t think that there’s a reviewing court in the

land today that would say there’s no deficient performance, even though this is not a case

1
I acknowledge that Mr. Young’s counsel did not ask for a certificate of
appealability (coa) as to the district court’s denial of his request for an evidentiary
hearing. However, his counsel did ask for coa on the rejection of his ineffective
assistance of counsel claim and argued, in his opening brief, that “[a]n evidentiary
hearing, if held, . . . would have revealed powerful evidence that Mr. Young could have
used to convince a jury that the state had not met its burden to show that aggravating
circumstances outweighed mitigating circumstances, or in the alternative, to show mercy
despite its verdict on the weighing decision.” Aplt’s Br. at 19.
Accordingly, I believe that this court has discretion to remand the case for an
evidentiary hearing on that claim. See Houston v. Schomig, 533 F.3d 1076, 1083 n.4 (9th
Cir. 2008) (“While the dissent correctly points out that neither party formally requested
an evidentiary hearing, Houston raised the need for such a hearing during oral arguments.
Moreover, we have previously remanded for an evidentiary hearing sua sponte ‘to assist
the court in making an accurate determination.’” (quoting Butler v. Curry, 528 F.3d 624,
651 (9th Cir. 2008) (emphasis supplied)); see also Mancill v. Hall, 545 F.3d 935, 939
(11th Cir. Oct. 17, 2008) (ordering supplemental briefing on the issue of whether the
district court erred in denying the petitioner’s request for an evidentiary hearing, even
though the court had granted a coa only on the issue of “[w]hether the district court erred
when it denied appellant’s ineffective assistance of counsel claims as unexhausted and
procedurally defaulted”); Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir. 2006)
(observing that the court has “the discretion to expand the certificate of appealability” and
that “we exercise that discretion carefully”).

4
where nothing was done.”

As to the second element—whether the deficient performance was

prejudicial—Mr. Young must demonstrate a “reasonable probability” that counsel’s

performance prejudiced him, meaning a probability “sufficient to undermine confidence

in the outcome.” Id. That is less than a preponderance of the evidence, for “a defendant

need not show that counsel’s deficient performance more likely than not altered the

outcome of the trial.” Id. at 693 (emphasis supplied).

Based on Mr. Young’s affidavits, the jury could have heard Mr. Young’s sons state

that their father’s life still has value to them and that they would visit him in prison. The

failure to present similar testimony has been deemed prejudicial. See, e.g., Williams v.

Anderson, 460 F.3d 789, 805 (6th Cir. 2006) (“In addition to presenting the jury with

mitigating evidence, the testimony of Petitioner’s family and friends would have

humanized Petitioner. Thus, the evidence listed above creates a reasonable probability

that one juror would have voted against death.”); Marshall v. Cathel, 428 F.3d 452, 470

(3d Cir. 2005) (“[N]ot only were Marshall’s boys willing to testify, but that the sort of

things to which they were prepared to testify [that they loved their father and wanted the

jury to spare his life] could have served as powerful mitigation evidence.”); Warner v.

State, 29 P.3d 569, 574-75 & n.10 (Okla. Crim. App. 2001) (finding prejudice where

counsel failed to present live testimony from the defendant’s mother that “she loves her

son very much and that it would be devastating for her if he were sentenced to death”); cf.

Coddington v. State, 142 P.3d 437, 459 (Okla. Crim. App. 2006) (“The humanizing effect

5
of live testimony in the form of a mother testifying for her son as mitigation evidence in a

capital murder trial cannot seriously be disregarded as irrelevant.” (collecting cases)).

The jury could also have heard Dr. Wanda Draper explain that emotional trauma

due to Mr. Young’s overprotective mother, the loss of close relatives due to sickle cell

anemia, and the potential loss of his relationship with Joylson combined with alcohol use

affected Mr. Young’s mental state, making him less culpable. In Dr. Draper’s view, Mr.

Young’s actions “could have been a result of distortion in his rational thinking by way of

severe trauma to the limbic system in the midbrain” due to the severe emotional trauma

and use of alcohol. Wanda Draper affidavit at 13. Dr. Draper’s opinions suggest that Mr.

Young’s behavior was not the product of cold-blooded premeditation but a compulsive

reaction for which he is less culpable.

Like the testimony of family members, this kind of evidence of mental or

emotional instability is strong mitigation evidence in capital cases. The Supreme Court

has recognized that evidence tending to diminish moral culpability is relevant to

determine prejudice, especially evidence “consistent with the view that [the defendant’s]

violent behavior was a compulsive reaction rather than the product of cold-blooded

premeditation.” Williams v. Taylor, 529 U.S. 362, 398 (2000); see also Smith v. Mullin,

379 F.3d 919, 943-44 (10th Cir. 2004) (observing that “[t]he jury . . . never received an

explanation for [the defendant’s] behavior” and concluding that counsel’s deficient

performance was prejudicial).

I certainly agree with the majority that Dr. Draper’s testimony may be called into

6
question and that there may well be aspects of Mr. Young’s past behavior that could have

been introduced to support a continuing threat aggravator. I also believe that the

majority correctly emphasizes the brutality of the murders. However, without hearing the

mitigating evidence, the jury did not know what to weigh against this brutality: we do not

know what turned Mr. Young from a minister into a murderer. Cf. Hoffman v. Arave, 236

F.3d 523, 536 (9th Cir. 2001) (“Without the benefit of an evidentiary hearing, it is

impossible to evaluate the strength of [the petitioner’s] defense at trial and sentencing.

Therefore, we cannot conclude as a matter of law that there is no reasonable possibility

that offering expert testimony and a thorough history of [the petitioner’s] educational,

medical, and psychological problems at the time of the murder might have reduced the

likelihood that the death penalty would have been imposed.”). Accordingly, I would

commit these questions to the wisdom of the district court, which would have the

important opportunity, which we do not, of hearing witnesses testify under oath at an

evidentiary hearing, and which would allow both the Mr. Young and the government the

chance to respond to their adversaries’ evidence. See generally Boumediene v. Bush, 128

S. Ct. 2229, 2270 (2008) (noting that “[f]ederal habeas petitioners long have had the

means to supplement the record on review, even in the postconviction habeas setting”).

Unlike the majority, I do not think that a remand for an evidentiary hearing would

“necessitate [either] allowing the government to put on all the evidence that was

originally presented during the first stage of [Mr.] Young’s trial” or transform a mixed

question of law into a purely factual matter. Maj. op. at 51-52. In particular, as part of its

7
prejudice inquiry, the district court could review the trial court record (as we have), allow

the parties to present additional relevant evidence, and then proceed to make both factual

findings and legal determinations. Cf. Smith v. Mullin, 379 F.3d 919, 935-44 (10th Cir.

2004) (noting that the district court was not convinced by a diagnosis by one of the

petitioner’s experts and that “we must defer to this credibility determination” but also

reviewing the district court’s legal conclusion that the petitioner had not established

prejudice under Strickland). The circumstances warranting a hearing here—clear and

admitted deficient performance, a failure to present any mental health testimony, an

incorrect application of procedural bar, and psychological evaluations from expert

witnesses that were funded by the state but never heard by any factfinder—will not be

present in every case alleging that counsel failed to present mitigating evidence.

In summary, at this stage of the proceedings, I believe that, accepting Mr. Young’s

allegations as true, “the . . . mitigating evidence, taken as a whole, might well have

influenced the jury’s appraisal of [Mr. Young’s] moral culpability,” Wiggins v. Smith, 539

U.S. 510, 538 (2003) (internal quotation marks omitted), and the likelihood of a different

result if the evidence had been considered is “sufficient to undermine confidence in the

outcome” actually reached at sentencing. Strickland, 466 U.S. at 694. I would therefore

remand the case to the district court for an evidentiary hearing on the prejudice

component of Mr. Young’s ineffective assistance of counsel claim.

8