Blystone v. Horn , 664 F.3d 397 ( 2011 )


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  •                                       PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    Nos. 05-9002 and 05-9003
    _____________
    SCOTT WAYNE BLYSTONE,
    Appellant in 05-9002
    v.
    MARTIN HORN, Commissioner, Pennsylvania Department
    of Corrections;
    JAMES S. PRICE, Superintendent of the State Correctional
    Institution at Greene; JOSEPH P. MAZURKIEWICZ,
    Superintendent of the State Correctional Institution at
    Rockview,
    Appellants in 05-9003
    _____________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (District Court No. 99-cv-00490)
    District Judge: Hon. Gary L. Lancaster
    _____________
    Argued April 27, 2011
    Before: CHAGARES, NYGAARD, and ROTH, Circuit
    Judges.
    (Filed December 22, 2011)
    Maureen Kearney Rowley, Esq.
    Samuel J.B. Angell, Esq. (Argued)
    Federal Community Defender Office for the Eastern District
    of Pennsylvania
    Capital Habeas Corpus Unit
    Suite 545 West – Curtis Building
    Independence Square West
    Philadelphia, PA 19106
    Robert Brett Dunham, Esq. (Argued)
    Federal Public Defender Office for the Middle District
    of Pennsylvania
    100 Chestnut Street
    Suite 300
    Harrisburg, PA 17101
    Paul D. Boas, Esq.
    Law & Finance Building
    Fifth Floor
    429 Fourth Avenue
    Pittsburgh, PA 15219
    Attorneys for Appellant/Cross-Appellee
    2
    Linda L. Kelly, Esq.
    Richard A. Sheetz, Jr., Esq.
    Amy Zapp, Esq. (Argued)
    Stuart Suss, Esq.
    Office of the Attorney General of Pennsylvania
    Strawberry Square, 16th Floor
    Harrisburg, PA 17120
    Attorneys for Appellee/Cross-Appellant
    __________________
    OPINION
    __________________
    CHAGARES, Circuit Judge.
    In 1984, a jury sentenced Scott Wayne Blystone to
    death following his convictions in Pennsylvania state court
    for first-degree murder, robbery, conspiracy to commit
    murder, and conspiracy to commit robbery. After making
    several unsuccessful attempts to overturn his convictions and
    sentence in state court, Blystone filed the present petition for
    a writ of habeas corpus in the United States District Court for
    the Western District of Pennsylvania, alleging that both the
    guilt and penalty phases of his trial were infected with federal
    constitutional error and that he is entitled to a new trial or, at
    a minimum, a new sentencing hearing. The District Court
    denied relief on all guilt phase claims, but granted the writ as
    to Blystone‘s death sentence, finding that trial counsel was
    ineffective for failing to investigate, develop, or introduce
    expert mental health testimony and institutional records in
    mitigation, and that the state court‘s decision to the contrary
    was unreasonable. Accordingly, the District Court remanded
    the case for resentencing. Thereafter, Blystone filed a Fed. R.
    3
    Civ. P. 59(e) motion to alter or amend the judgment based on
    alleged newly discovered evidence of prosecutorial
    misconduct during the guilt phase of trial. The District Court
    denied the Rule 59(e) motion, concluding that the evidence
    submitted in support was not, in fact, ―newly discovered.‖
    Blystone now appeals the District Court‘s denial of his
    Rule 59(e) motion.       The defendants (collectively, the
    ―Commonwealth‖) cross-appeal the District Court‘s grant of
    penalty phase relief. Having approached this case with the
    utmost respect for the deferential standards of review that we
    are obligated to apply, we will affirm the judgment of the
    District Court.
    I.
    A.
    On the morning of September 10, 1983, a passerby
    discovered the body of Dalton Charles Smithburger, Jr., lying
    near a road in Fayette County, Pennsylvania. Smithburger
    had sustained six gunshot wounds to the back of the head.
    ―Blystone eluded detection as Smithburger‘s murderer for
    over three months. However, his associates eventually
    exposed him.‖ Commonwealth v. Blystone, 
    549 A.2d 81
    , 84
    (Pa. 1988) (―Blystone I‖). First to contact the police was
    Miles Miller. Miller told the police that he had information
    implicating Blystone in Smithburger‘s murder and agreed to
    wear a tape recorder and transmitter during a meeting with
    Blystone in the hopes of eliciting a confession. In the course
    of this meeting, Blystone admitted to robbing Smithburger of
    thirteen dollars and then shooting him.
    4
    At trial, the Commonwealth introduced portions of
    Blystone‘s taped conversation with Miller into evidence. The
    jury heard Blystone‘s ―own voice bragging in vivid and grisly
    detail of the killing of [Smithburger.]‖ Blystone I, 549 A.2d
    at 84. Blystone recounted that he had been out in his car with
    his girlfriend, Jackie Guthrie, his friend, George Powell, and
    Powell‘s girlfriend, Barbara Clark. In need of cash, Blystone
    picked up Smithburger, a hitchhiker, and asked him to
    contribute gas money. When Smithburger replied that he
    could only give him a few dollars, Blystone pulled out a gun
    and, in his own words, ―almost splattered him right there in
    the car.‖ Blystone then stopped driving and told Smithburger
    to get out. Having first led Smithburger away from the car,
    Blystone searched his belongings and found thirteen dollars.
    Blystone took the money and then ran back to the car to tell
    his friends that he was going to kill the hitchhiker. Upon
    making this pronouncement, Blystone immediately returned
    to where Smithburger stood and asked him to describe
    Blystone‘s car. Smithburger accurately described the car, so
    Blystone said ―goodbye‖ and ―wasted him.‖ He proceeded to
    shoot Smithburger six times.
    Barbara Clark‘s testimony at trial largely corroborated
    the story that Blystone recounted to Miller in the tape
    recorded conversation. She recalled that on September 9,
    1983, Blystone offered Smithburger a ride and asked him for
    gas money. When Smithburger said he only had a couple of
    dollars, Blystone pulled out a gun on him. Clark heard six
    gun shots after the two men exited the car. Upon returning to
    the car, Blystone announced to his passengers that he had
    taken thirteen dollars from Smithburger. Jackie Guthrie‘s
    testimony corroborated Barbara Clark‘s in all respects.
    5
    Before resting its case, the Commonwealth also
    presented testimony establishing that the bullets retrieved
    from Smithburger‘s body were of the .22 caliber class, and
    that Blystone had stolen a .22 caliber pistol prior to the
    murder. Jackie Guthrie confirmed that the gun Blystone had
    stolen was the same gun he used to shoot Smithburger.
    Blystone called no witnesses and presented no evidence in his
    defense.
    On June 13, 1984, a jury empaneled by the Court of
    Common Pleas of Fayette County, Pennsylvania, convicted
    Blystone of first-degree murder, robbery, conspiracy to
    commit murder, and conspiracy to commit robbery.
    Following the verdict, and outside of the jury‘s presence,
    Blystone‘s attorney, Jeffrey Whiteko, told the judge that
    Blystone wished to offer no evidence in mitigation at the
    penalty phase of the trial. Whiteko claimed to have had
    lengthy discussions with Blystone about the benefits of
    presenting a mitigation case. He asserted that he strongly
    objected to Blystone‘s decision and he expressed a desire to
    put Blystone and his parents on the stand at the sentencing
    phase of the trial.
    Thereafter, the judge conducted a colloquy with
    Blystone in which he explained that the jury would determine
    the penalty and that the sentencing hearing was Blystone‘s
    only opportunity to present the jury with mitigating evidence.
    The judge explained the role that aggravating and mitigating
    circumstances would play in the jury‘s decision and informed
    Blystone that, while the prosecution had the burden of
    proving aggravating circumstances beyond a reasonable
    doubt, Blystone had the burden of proving mitigating
    6
    circumstances by a preponderance of the evidence. The judge
    then listed the statutory mitigating circumstances.
    Noting that Blystone had an absolute right to remain
    silent, the judge asked him to consider the effect of his failure
    to present any mitigating evidence, and explained that he
    could not later argue that he did not have an opportunity to
    offer testimony. After taking a moment to confer with
    Whiteko, Blystone had the following exchange with the
    judge:
    JUDGE ADAMS:         Do you wish to testify yourself or
    to have your parents testify or to
    offer any other evidence in this
    case?
    …
    MR. BLYSTONE: I have no testimony and no
    witnesses.
    JUDGE ADAMS:         Either through yourself or anyone
    else?
    MR. BLYSTONE: No.
    …
    JUDGE ADAMS:         Can you state for the record why
    it is that you do not want to offer
    any testimony?
    MR. BLYSTONE: I don‘t want anybody else brought
    into it.
    …
    7
    JUDGE ADAMS: Is that your only reason for not
    offering any testimony?
    DEFENDANT SHAKES HIS HEAD ―YES.‖
    JUDGE ADAMS:         Of course, if you testify yourself
    that would not be bringing anyone
    into it except yourself, do you
    understand?
    MR. BLYSTONE: Uh-huh.
    Appendix (―App.‖) 970-72. At the conclusion of the
    colloquy, the judge stated for the record that he found
    Blystone to be an intelligent man who understood the
    consequences of his decision. The jurors then reentered the
    courtroom and the judge informed them that Blystone had
    chosen not to present mitigating evidence at sentencing. The
    judge reminded the jurors that Blystone had an absolute right
    to remain silent and instructed them to consider all evidence
    presented to them in the course of the trial to determine
    whether mitigating circumstances existed.
    The Commonwealth argued that the jury should find,
    as an aggravating circumstance, that Blystone committed the
    murder in the perpetration of a felony, in accordance with the
    jury‘s verdict that Blystone was guilty of robbery. See 
    42 Pa. Cons. Stat. § 9711
    (d)(6). Whiteko argued against the penalty
    of death.     The jury inevitably found one aggravating
    circumstance — that Blystone ―committed a killing while in
    the perpetration of a felony,‖ 
    id.
     — and no mitigating
    circumstances. Accordingly, the jury imposed a death
    8
    sentence for the murder conviction, as required by
    Pennsylvania law under the circumstances.             
    Id.
     §
    9711(c)(1)(iv) (―[T]he verdict must be a sentence of death if
    the jury unanimously finds at least one aggravating
    circumstance specified in subsection (d) and no mitigating
    circumstance[.]‖).   The judge imposed an independent
    sentence of ten to twenty years of imprisonment for the
    robbery conviction.
    The Pennsylvania Supreme Court affirmed the
    conviction and sentence on direct appeal. Blystone I, 549
    A.2d at 81. Thereafter, Blystone appealed to the United
    States Supreme Court, which granted certiorari to decide
    whether the mandatory aspect of the Pennsylvania death
    penalty statute impermissibly limited the jury‘s discretion in
    deciding the penalty, in violation of the constitution.
    Blystone v. Pennsylvania, 
    494 U.S. 299
    , 303 (1990).
    Rejecting Blystone‘s constitutional challenge, the Supreme
    Court affirmed the death sentence. 
    Id.
    B.
    The Governor of Pennsylvania signed Blystone‘s death
    warrant in 1995 and, thereafter, Blystone retained post-
    conviction counsel, obtained a stay of execution, and filed a
    petition under the Post-Conviction Relief Act (―PCRA‖) in
    Pennsylvania state court, raising numerous claims for relief
    based on alleged constitutional defects in both the guilt and
    penalty phases of his trial. The PCRA court held an
    evidentiary hearing on Blystone‘s primary claim for
    ineffective assistance of counsel. A summary of the evidence
    presented at that hearing follows.
    9
    Whiteko, Blystone‘s trial lawyer, testified that he
    graduated law school in 1982 and, after completing a one-
    year judicial clerkship, began working part-time at the Public
    Defender‘s Office. He had only three months experience as a
    practicing attorney when he was appointed to this capital
    case. At the time of Blystone‘s June 1984 trial, Whiteko had
    represented criminal defendants in approximately twenty
    trials, none of them murder cases. Whiteko testified that the
    Chief Public Defender assisted him with the preliminary
    hearing and voir dire in Blystone‘s case, and that he had the
    help of an investigator to prepare for the guilt phase, but that
    he had no assistance in preparing for the sentencing phase of
    trial.
    Whiteko knew that, if the jury found Blystone guilty of
    both murder and robbery, Blystone would automatically be
    subject to at least one statutory aggravating circumstance —
    committing the murder in the course of another felony.
    Nonetheless, Whiteko conducted an extremely limited
    investigation into the sort of potentially mitigating evidence
    that might have permitted the jury to avoid imposing the
    death penalty. Indeed, in preparation for the penalty phase,
    Whiteko interviewed, at most, four people: Blystone, his
    parents, and one of his sisters, whom Whiteko unintentionally
    encountered in the hallway of the courthouse during trial.
    Whiteko told the PCRA court that he conducted the
    most extensive of these interviews with Blystone‘s father,
    Norman. After reading the list of statutory mitigating factors
    to Norman, Whiteko asked Norman to describe Blystone‘s
    life from childhood until the time of trial. Whiteko recounted
    that he chose to focus his limited investigation on Blystone‘s
    parents because he thought that Blystone had a ―good chance
    10
    at [establishing] mitigating factors‖ through their testimony.
    App. 1145. He believed Blystone‘s parents to be sincere and
    thought that they would present a good picture of their son‘s
    troubled past. Whiteko never intended to present any
    testimony at sentencing other than that of Blystone and his
    parents. Finally, Whiteko explained to the PCRA court that
    Blystone would not accept a plea to a life sentence because he
    did not want to spend his life in prison. Thus, it was
    Whiteko‘s understanding of his client‘s instructions that, if
    convicted, Blystone would not permit him to call witnesses or
    to beg for mercy at sentencing. App. 1161-64.
    Blystone then presented a number of lay witnesses to
    the PCRA court in order to establish that his life history was
    replete with potentially mitigating evidence, which Whiteko
    could have uncovered through a more extensive investigation
    of his background. First, Blystone‘s father, Norman, testified
    in detail about his son‘s troubled childhood. Norman
    recounted that Blystone was hit in the head with a steel swing
    when he was four years old. The accident left him with a
    large gash on his temple and knocked him unconscious, and
    afterward, Blystone suffered from recurring headaches,
    seizures, fevers, and night sweats. Blystone started to have
    behavioral problems at age six or seven. From the ages of
    seven to twelve, Norman disciplined him physically for his
    frequent misbehavior. Norman would typically hit him with a
    belt and his hand once or twice a week. At times, Norman
    kicked him on his backside. Blystone‘s mother would
    occasionally intervene when she felt Norman‘s efforts to
    discipline Blystone were excessive.
    Norman informed the PCRA court that, as a child,
    Blystone developed a nervous habit of pulling out his hair
    until there was a bald spot. Blystone had no interests or
    11
    hobbies as a teenager; he ran away from home often; he slept
    in the closet; he suffered nightmares; he exhibited bizarre
    behavioral changes; and he made up incredible stories about
    himself. Blystone was also a risk-taker: he abused alcohol,
    he engaged in self-mutilation, such as burning himself with
    cigarettes, and, on one occasion, he rolled under a moving
    train.
    When Blystone was in his late teens, Norman allowed
    him to live in a cottage on the family property with his
    girlfriend, Jackie Guthrie. Norman told Blystone that Guthrie
    had to leave after the couple began having problems. Instead
    of asking Guthrie to move out, however, Blystone chose to
    live with her in his car. This occurred shortly before
    Smithburger‘s murder. Norman testified that Blystone was
    regularly under the influence of alcohol during the time
    leading up to the homicide. Finally, Norman asserted that
    Whiteko had neither discussed the list of mitigating
    circumstances with him prior to sentencing, nor asked him
    whether he knew of other potential witnesses who could offer
    mitigating evidence.1
    Blystone‘s younger sister, Cindy Guthrie,2 elaborated
    on Blystone‘s substance abuse issues during the PCRA
    hearing, testifying that he used both drugs and alcohol to
    1
    The parties stipulated that Norma Blystone, Blystone‘s
    mother, would provide testimony similar to that of her
    husband.
    2
    For the sake of clarity, Cindy Guthrie is the sister-in-law of
    Blystone‘s girlfriend, Jackie Guthrie. App. 1259.
    12
    excess. She stated that she never discussed Blystone‘s
    behavior with Whiteko prior to sentencing. Rather, her only
    contact with Whiteko was a brief conversation in the hallway
    of the courthouse just before sentencing.3
    Blystone‘s uncle, Kenneth Blystone, testified that he
    lived near his nephew in Maryland until Blystone was about
    fifteen years old. He stated that Blystone appeared normal as
    a young boy, but later became withdrawn. Kenneth believed
    that, though Blystone needed help, he was fundamentally a
    good man. He made clear that he would have testified on
    Blystone‘s behalf at sentencing or, at least, discussed the
    matter with Whiteko, had he been asked to do so.
    Lawrence Short, a close friend of Blystone‘s as a
    teenager, testified that he and Blystone enlisted in the Navy
    together at age seventeen. Though the two men went their
    separate ways after enlisting, they remained in periodic
    contact for some time. Short knew that Blystone was unable
    to conform to the discipline required in the Navy, and that
    this behavioral deficiency resulted in his discharge. Short
    testified that, during the course of their friendship, he bore
    witness to Blystone‘s self-mutilation and substance abuse.
    He also testified that he heard Blystone tell exaggerated
    stories about himself. Short, too, would have been willing to
    testify on Blystone‘s behalf at sentencing, had he been asked
    to do so.
    3
    The parties stipulated that Blystone‘s other sister, Julie Dice,
    would have corroborated Cindy Guthrie‘s testimony and that
    Whiteko had no contact with Ms. Dice prior to or at the trial.
    13
    Sharon Smitley testified that Blystone attended her
    birthday party on the night of the homicide. She stated that
    Blystone had been drinking and using marijuana at the party,
    and that she asked him to leave after he became too
    intoxicated.4
    Blystone next presented expert mental health
    testimony to establish before the PCRA court that he suffered
    from serious untreated brain damage and psychiatric
    disorders, all of which were aggravated by a history of poly-
    substance abuse.
    Dr. Patricia Fleming, a clinical psychologist and
    neuropsychologist who has provided expert testimony in
    numerous death penalty proceedings in both federal and state
    court, testified that she saw Blystone three times in the month
    leading up to the PCRA hearing and spent eleven to twelve
    hours with him. During this time, she interviewed Blystone,
    administered psychological tests, and reviewed his records, as
    well as the affidavits of family members. After performing
    her investigation, Dr. Fleming diagnosed Blystone, to a
    reasonable degree of medical certainty, with organic brain
    damage. She stated that physical indicia supporting a
    diagnosis of brain damage were present from Blystone‘s
    infancy: he was a frail baby that did not eat much and
    suffered from chronic high fever and seizures. The diagnosis
    of brain damage was further supported by Blystone‘s early
    malnutrition, abnormal sleep patterns, irritability, and
    hyperactivity as a young child. Dr. Fleming also diagnosed
    Blystone with bipolar disorder. She explained that this
    4
    Smitley also testified on Blystone‘s behalf at the 1985
    hearing on his post-trial motions.
    14
    disorder is characterized by major depressive episodes —
    exemplified by Blystone‘s habit of sleeping in the closet, his
    withdrawn behavior, and his self-mutilation — alternating
    with periods of marked agitation — exemplified by
    Blystone‘s bouts of insomnia, frequent exaggerated stories,
    and abuse of drugs and alcohol. Dr. Fleming further
    diagnosed Blystone with borderline personality disorder,
    which is typified by unstable relationships, mood fluctuations,
    and severe agitation.      Finally, Dr. Fleming diagnosed
    Blystone with poly-substance abuse, which she believed
    exacerbated his other disorders.
    Next, Dr. Alec Whyte, a psychiatrist who has testified
    in more than 400 criminal trials, testified before the PCRA
    court. Like Dr. Fleming, Dr. Whyte diagnosed Blystone with
    borderline personality disorder, bipolar mood disorder, and
    organic personality disorder caused by physical injury to the
    brain.5 Importantly, both doctors agreed that qualified
    experts had all of the means necessary to arrive at the same
    diagnoses based upon the information available at the time of
    trial.
    Drs. Fleming and Whyte each testified to a reasonable
    degree of medical certainty that Blystone‘s capacity to
    conform his conduct to the requirements of the law at the time
    of the homicide was substantially impaired by his mental
    disorders. Dr. Fleming opined that Blystone was under
    5
    Dr. Whyte testified that he believed Blystone‘s brain
    damage was caused by the serious head injury he sustained at
    age four. Whether the damage was present at birth, as opined
    by Dr. Fleming, or caused by early childhood head trauma,
    both experts agreed that it was irreversibly present after age
    four.
    15
    extreme emotional distress at the time of the murder due to a
    combination of his disorders and his use of drugs and alcohol.
    Dr. Whyte similarly thought that the combination of
    intoxication and Blystone‘s disorders would have resulted in
    extreme mental disturbance. Nonetheless, both experts also
    agreed that, as evidenced by his institutional records,
    Blystone would not pose a future danger to society if he were
    to spend the rest of his life in a highly structured
    environment, such as prison.
    Finally, Blystone introduced three types of institutional
    records, each of which contained potentially significant
    mitigating evidence, and each of which was available at the
    time of trial.
    Blystone‘s Navy records indicate that he received an
    unsuitable discharge primarily because of ―[a]pathy and
    defective attitudes.‖ App. 1495. The records further indicate
    that ―due to the nature of SMSR Blystone‘s past service and
    the severity of his present personality disorder, it was the
    Commandant‘s opinion that further retention would not have
    been in the best interests of the Navy.‖ App. 1494. His Navy
    records reflect a number of problems with his service, such as
    frequent unauthorized absences and mediocre performance.
    He received a low mark in ―[a]daptability‖ because he needed
    ―to strengthen his relationship with his superiors and be more
    conscientious of his military responsibilities.‖ App. 1496.
    Lastly, the Navy records indicate that he had a burn scar on
    his right forearm, as well as a gunshot wound on his anterior
    elbow, and that he had been hospitalized once in connection
    with an injury near his right eyebrow. Though Whiteko knew
    that Blystone served in the Navy, he made no effort to obtain
    these records and, thus, never followed up on their contents.
    16
    Blystone also introduced his Maryland Department of
    Correction Records (―prison records‖), which reflect that he
    received a ten year sentence for robbery in 1979. The prison
    records consist of both a medical and an administrative
    section. The medical section of the records indicates that
    Blystone saw medical personnel frequently from 1980 to
    1982, with complaints of fainting, headaches, and vision
    problems.6 It also references the scars on his arms, which are
    suggestive of self-mutilation. The administrative section of
    the prison records indicates that Blystone exhibited excellent
    institutional adjustment and that he had no violent episodes
    while incarcerated. Moreover, Blystone‘s work supervisor
    recommended him for parole after he completed less than
    three years of his sentence because of his superior
    performance in the prison workforce.
    Finally, Blystone introduced the competency
    evaluation conducted prior to trial by Mayview State
    Hospital. As indicated by Drs. Fleming and Whyte, the
    evaluation, though brief, contains psychologically significant
    information, which arguably should have led Whiteko to
    investigate Blystone‘s mental health further for mitigation
    purposes. The evaluation indicates that Blystone has an I.Q.
    score placing him in the superior range of intellectual
    functioning. But it also reflects that he has ―anger related to
    authority figures that is well-entrenched and stems from deep-
    rooted problems in his familial relationships. He has a high
    energy level and strong need for immediate gratification.‖
    App. 1490. Other test results conducted as part of the
    6
    Dr. Whyte testified that these physical symptoms are
    indicative of organic brain damage.
    17
    competency evaluation indicate that Blystone periodically
    suffered from low self-esteem, possessed significant ―acting-
    out potential,‖ had unfulfilled needs for attention, and had
    marked antisocial ideation.
    Both Dr. Fleming and Dr. Whyte agreed that a
    competency evaluation, particularly one as ―disappointingly
    brief,‖ App. 1357, as the Mayview Report, is of an entirely
    different   nature      than      a    mitigation     evaluation.
    Notwithstanding its brevity, however, both doctors also
    agreed that the competency evaluation, which counsel had
    possession of prior to trial, included clinically significant ―red
    flags‖ that required follow-up with regard to mitigation.
    They also agreed that all of the tools they used to diagnose
    Blystone were available at the time of trial and that a
    qualified expert would have reached the same diagnoses at
    that time. Whiteko acknowledged at the PCRA hearing that
    he had read the competency evaluation, but had decided,
    without the assistance of an expert, that nothing in the report
    would be useful in developing a mitigation case.
    After hearing this substantial body of evidence, the
    PCRA court denied Blystone‘s petition. It was persuaded that
    Whiteko conducted a sufficient investigation into mitigating
    circumstances by reviewing all of the available discovery
    materials, including the Mayview Hospital competency
    evaluation, and interviewing members of Blystone‘s family.
    The PCRA court found it significant that neither Blystone nor
    his family members told Whiteko, when asked, about other
    potential witnesses that could provide mitigating evidence or
    indicated that Blystone had substance abuse issues. Notably,
    the court found Norman Blystone‘s testimony that Whiteko
    never posed such questions to him to lack credibility because
    18
    it was inconsistent with his statement that he could not
    remember everything about Whiteko‘s interviews. The
    PCRA court also discounted Sharon Smitley‘s testimony as to
    Blystone‘s substance use on the night of the homicide
    because she did not mention Blystone‘s intoxication when she
    testified at the 1985 hearing on his post-trial motions.
    The PCRA court further concluded that Whiteko could
    not be deemed ineffective for failing to employ mental health
    professionals to evaluate Blystone prior to sentencing because
    Blsytone had no constitutional right to such assistance, and
    any right that he may have had was protected by the court-
    appointed doctors who had performed the competency
    evaluation. It additionally found the testimony of Drs.
    Fleming and Whyte to be ―in large measure irrelevant,‖
    because neither doctor knew Blystone at the time of the
    crimes, and their evaluations were performed long after the
    homicide occurred. The PCRA court also stated that it could
    not find counsel ineffective for failing to pursue the purported
    ―red flags‖ Drs. Fleming and Whyte found in the Mayview
    Hospital report because the Mayview doctors did not see
    them as ―red flags‖ for purposes of competency. App. 1645.
    On appeal, the Pennsylvania Supreme Court affirmed,
    stating that ―[t]he PCRA court determined that counsel
    conducted a proper investigation into all possible mitigating
    circumstances, and we find substantial support in the record
    to uphold [that] determination.‖ Commonwealth v. Blystone,
    
    725 A.2d 1197
    , 1206 (Pa. 1999) (―Blystone II‖). It further
    found that Blystone could not succeed in an ineffective
    assistance of counsel claim because he waived his right to
    present any mitigating evidence to the jury and, therefore,
    19
    could not demonstrate that his counsel‘s failures, if any,
    caused him prejudice.
    C.
    Blystone filed a petition for a writ of habeas corpus
    pursuant to 
    28 U.S.C. § 2254
     in the District Court in 2000
    raising numerous constitutional challenges to his convictions
    and death sentence. In a lengthy and thorough opinion issued
    March 31, 2005, the District Court denied relief on all guilt-
    phase claims, but granted the writ as to the death sentence,
    concluding that the state court‘s denial of Blystone‘s
    ineffective assistance of counsel claim was objectively
    unreasonable. Specifically, the District Court found that trial
    counsel was ineffective in failing to investigate, develop, or
    introduce expert mental health evidence and institutional
    records in mitigation, and that Blystone did not waive his
    right to present all mitigating evidence — at most, Blystone
    waived presentation of lay witness testimony. The District
    Court thus held that, on the record presented to the state court,
    it was unreasonable to conclude that Blystone‘s waiver
    prevented him from demonstrating that prejudice resulted
    from counsel‘s deficiencies. In addition, the District Court
    denied (but granted Blystone a Certificate of Appealability
    on) an additional claim for penalty-phase relief based on trial
    counsel‘s failure to investigate adequately and develop lay
    witness testimony in mitigation.7
    7
    The District Court took pains to note that Blystone raised
    serious questions about the state court‘s conclusions with
    regard to lay witness testimony, and indicated its belief that if
    Whiteko had obtained Blystone‘s institutional records and
    better understood the Mayview Hospital report, he would
    20
    Blystone filed a timely motion to alter or amend the
    District Court‘s judgment pursuant to Federal Rule of Civil
    Procedure 59(e), claiming to have newly discovered evidence
    of prosecutorial misconduct relevant to three of his guilt
    phase claims.8 By way of this motion, Blystone asked the
    District Court to grant him leave to conduct discovery of the
    alleged prosecutorial misconduct, as well as a subsequent
    opportunity to amend his petition to add new claims,
    depending upon what the discovery might reveal. Blystone
    asserted that the three prosecutors who handled his case, as
    well as the lead investigator, State Trooper Montgomery
    Goodwin, were central players in recent court proceedings
    have been able to conduct a more thorough investigation of
    the mitigating evidence available through lay witness
    testimony. Though the District Court believed that the state
    court erred in rejecting this part of Blystone‘s claim, it could
    not find the state court‘s conclusion to be unreasonable.
    8
    These are: Claim VII alleging that trial counsel was
    ineffective in failing to pursue the issue of drug, alcohol, and
    mental impairment to reduce the degree of guilt to third-
    degree murder; Claim XV alleging that the Commonwealth
    violated Brady v. Maryland, 
    373 U.S. 83
     (1963), by failing to
    disclose that its lead state police investigator had ―substantial
    doubts‖ about whether Blystone had committed a robbery,
    which also provided the sole alleged aggravating factor for
    his death sentence; and Claim XVI alleging that counsel was
    ineffective for failing to investigate and present exculpatory
    testimony from George Powell concerning the alleged
    robbery, as well as evidence supporting guilt-stage defenses
    to murder.
    21
    that exposed a systematic practice of discovery abuses by the
    Fayette County District Attorney‘s office around the time of
    Blystone‘s trial.       These discovery abuses included
    withholding exculpatory evidence, making undisclosed deals
    with witnesses, and altering, redacting, or hiding witness
    statements favorable to the defense. In support of this
    assertion, Blystone relied primarily upon an October 1, 2004
    decision of the Fayette County Court of Common Pleas in
    Commonwealth v. Munchinski, which granted the defendant
    a new trial based upon prosecutorial misconduct committed
    by the same prosecutors who had handled Blystone‘s case
    approximately two years earlier. Blystone also obtained an
    affidavit, dated November 3, 2004, from Trooper Goodwin,
    then an inmate in state prison, stating that ―in cases in which I
    was lead investigator, documents were altered or changed
    before they were provided to defense counsel.‖ App. 634.
    Trooper Goodwin further stated that ―it [was] obvious to
    [him] that there were redactions and alterations‖ in Blystone‘s
    police records, though he declined to explain further for fear
    of hurting his chances at parole. 
    Id.
     Finally, Blystone
    submitted the police records that he believed were redacted or
    altered, as well as the 1995 Affidavit of Gary Hendrix, the
    chief investigator for Blystone‘s post-conviction team, which
    stated that Miles Miller claimed to have been coerced by the
    police into wearing a wire to tape his conversation with
    Blystone, and that the District Attorney‘s office paid him to
    testify.
    The District Court denied the Rule 59(e) motion to
    alter or amend judgment, finding that the evidence presented
    in support was not newly discovered; rather, Blystone had
    been in possession of all the information upon which he relied
    in the Rule 59(e) motion well before the District Court issued
    22
    its judgment on March 31, 2005. The District Court thus
    concluded that Blystone‘s motion was dilatory. Moreover,
    the District Court was persuaded that consideration of the
    purportedly new evidence would ultimately be futile to
    Blystone‘s case because the evidence of his guilt on the first-
    degree murder and robbery convictions was overwhelming
    and nothing submitted in support of the Rule 59(e) motion
    convinced the District Court that it might amend its judgment
    as to guilt-phase relief.
    II.
    The District Court had jurisdiction over this action
    pursuant to 
    28 U.S.C. §§ 2241
     and 2254. We have appellate
    jurisdiction pursuant to 
    28 U.S.C. §§ 1291
     and 2253.
    Presently before this court is Blystone‘s timely appeal
    from the final judgment and order denying his Rule 59(e)
    motion, as well as the Commonwealth‘s cross-appeal from
    the District Court‘s grant of penalty-phase relief. This Court
    granted Blystone a Certificate of Appealability (―COA‖) as to
    two specific issues related to the District Court‘s denial of his
    Rule 59(e) motion. First, we granted review as to whether the
    District Court abused its discretion in denying Claims VII,
    XV, and XVI, arising from the guilt phase of Blystone‘s trial,
    without first granting him discovery with regard to the alleged
    newly discovered evidence of prosecutorial misconduct.
    Second, we granted review to determine whether the District
    Court abused its discretion in denying Blystone‘s Rule 59(e)
    motion insofar as he sought permission to conduct discovery
    into alleged newly discovered evidence of prosecutorial
    misconduct and amend his habeas petition to raise previously
    unavailable Brady claims. In essence, however, Blystone‘s
    23
    appeal requires us to answer only one fairly straightforward
    question: did the District Court abuse its discretion in
    denying the Rule 59(e) motion?
    The Commonwealth‘s cross-appeal brings two
    additional issues before us. First, we must determine whether
    the District Court erred in granting relief on Blystone‘s claim
    that trial counsel was ineffective for failing to investigate,
    develop, or introduce expert mental health testimony and
    institutional records in mitigation. And, second, we must
    determine whether the District Court erred in denying relief
    on Blystone‘s claim that trial counsel was also ineffective for
    failing to investigate adequately and develop lay witness
    testimony in mitigation.
    III.
    A.
    As an initial matter, we must ask whether the District
    Court had jurisdiction to pass on Blystone‘s Rule 59(e)
    motion, and whether we, in turn, have jurisdiction to review it
    on appeal.
    The Antiterrorism and Effective Death Penalty Act of
    1996 (―AEDPA‖), Pub. L. No. 104-132, 
    110 Stat. 1214
    (1996), places the federal courts of appeals in the role of
    ―gate-keeper,‖ charging them with the responsibility of
    ―preventing the repeated filing of habeas petitions that attack
    the prisoner‘s underlying conviction.‖       Leal Garcia v.
    Quarterman, 
    573 F.3d 214
    , 220 (5th Cir. 2009). Pursuant to
    this gate-keeping function, AEDPA instructs the courts of
    appeals to dismiss any claim presented in a second or
    24
    successive petition that the petitioner presented in a previous
    application. See 
    28 U.S.C. § 2244
    (b)(1). If a petitioner
    presents a new claim in a second or successive habeas corpus
    application, we must also dismiss that claim unless one of two
    narrow exceptions applies:
    (A) the applicant shows that the claim
    relies on a new rule of constitutional law,
    made retroactive to cases on collateral
    review by the Supreme Court, that was
    previously unavailable; or
    (B)(i) the factual predicate for the claim
    could not have been discovered
    previously through the exercise of due
    diligence; and
    (ii) the facts underlying the claim, if
    proven and viewed in light of the
    evidence as a whole, would be sufficient
    to establish by clear and convincing
    evidence that, but for constitutional
    error, no reasonable factfinder would
    have found the applicant guilty of the
    underlying offense.
    
    Id.
     § 2244(b)(2)(A)-(B)(ii). ―Before a second or successive
    application permitted by this section is filed in the district
    court, the applicant shall move in the appropriate court of
    appeals for an order authorizing the district court to consider
    the application.‖ Id. § 2244(b)(3)(A). A petitioner‘s failure
    to seek such authorization from the appropriate appellate
    court before filing a second or successive habeas petition
    25
    ―acts as a jurisdictional bar.‖ United States v. Key, 
    205 F.3d 773
    , 774 (5th Cir. 2000).
    Our sister Circuits have split on the issue of whether a
    Rule 59(e) motion to alter or amend judgment that raises a
    cognizable habeas claim is properly construed as a second or
    successive habeas petition. If so considered, AEDPA
    required Blystone to seek this Court‘s authorization to file the
    motion before the District Court could properly entertain it
    and we are, therefore, without jurisdiction to review the
    District Court‘s disposition of the motion on appeal. See 
    28 U.S.C. § 2244
    (b); see also Gonzales v. Crosby, 
    545 U.S. 524
    ,
    529 (2005) (―Rule 60(b), like the rest of the Rules of Civil
    Procedure, applies in habeas corpus proceedings . . . only ‗to
    the extent that [it is] not inconsistent with‘ applicable federal
    statutory provisions and rules.‖ (alteration in original and
    footnote omitted)).
    Our discussion of this issue necessarily begins with
    Gonzalez v. Crosby. In Gonzales, the Supreme Court
    addressed the question of when a federal court should
    construe a petitioner‘s motion for relief from judgment
    pursuant to Rule 60(b) as a second or successive petition
    subject to the restrictions of AEDPA. 
    545 U.S. at 526
    .
    Noting that ―[a]s a textual matter, § 2244(b) applies only
    where the court acts pursuant to a prisoner‘s ‗application‘ for
    a writ of habeas corpus,‖ the Court began its analysis by
    stating that ―it is clear that for purposes of § 2244(b) an
    ‗application‘ for habeas relief is a filing that contains one or
    more ‗claims.‘‖ Id. at 530 (quotation marks omitted). The
    Court explained that ―[i]n some instances, a Rule 60(b)
    motion will contain one or more ‗claims,‘‖ and ―[a] habeas
    petitioner‘s filing that seeks vindication of such a claim is, if
    26
    not in substance a ‗habeas corpus application,‘ at least similar
    enough that failing to subject it to the same requirements
    would be ‗inconsistent with‘ the statute.‖ Id. at 530, 531.
    This must be so because
    [u]sing Rule 60(b) to present new claims
    for relief from a state court‘s judgment
    of conviction — even claims couched in
    the language of a true Rule 60(b) motion
    — circumvents AEDPA‘s requirement
    that a new claim be dismissed unless it
    relies on either a new rule of
    constitutional law or newly discovered
    facts.
    Id. at 531. Accordingly, the Court held that a Rule 60(b)
    motion is subject to the restrictions contained in 
    28 U.S.C. § 2244
    (b) when it advances one or more ―claims.‖9
    The Court also explained that ―when a Rule 60(b)
    motion attacks, not the substance of the federal court‘s
    resolution of a claim on the merits, but some defect in the
    integrity of the federal habeas proceedings,‖ the motion is not
    properly construed as advancing a ―claim‖ and is, therefore,
    not a second or successive petition. Id. at 532. In light of
    this admonition, the Court went on to provide specific
    guidance as to when a Rule 60(b) motion advances a ―claim‖
    for purposes of AEDPA. Id. at 531-32. For example, ―[a]
    motion that seeks to add a new ground for relief‖ advances a
    claim, as does a motion that ―attacks the federal court‘s
    9
    Prior to Gonzales, this Court held similarly with regard to
    Rule 60(b) motions in Pridgen v. Shannon, 
    380 F.3d 721
    , 727
    (3d Cir. 2004).
    27
    previous resolution of a claim on the merits, since alleging
    that the court erred in denying habeas relief on the merits is
    effectively indistinguishable from alleging that the movant is,
    under the substantive provisions of the statutes, entitled to
    habeas relief.‖ Id. at 532 (footnote omitted). Similarly, a
    motion that seeks to present newly discovered evidence in
    support of a claim previously denied presents a claim. Id.
    Blystone‘s Rule 59(e) motion does not raise any new
    claims; rather, it seeks only discovery and a subsequent
    opportunity either to amend the petition to add new claims
    should they become available, or to present new evidence in
    support of three of his previously denied claims.
    Nonetheless, we are convinced that Blystone‘s Rule 59(e)
    motion is a habeas corpus petition within the meaning set
    forth in Gonzales. As the Supreme Court explained, a motion
    ―seek[ing] leave to present ‗newly discovered evidence‘ in
    support of a claim previously denied‖ advances a claim and
    is, therefore, a habeas corpus petition. Id. at 531 (citation
    omitted). And ―by taking steps that lead inexorably to a
    merits-based attack on the prior‖ judgment on his habeas
    petition, Post v. Bradshaw, 
    422 F.3d 419
    , 424-25 (6th Cir.
    2005), Blystone has made evident his purpose to seek
    vindication of previously denied claims through the
    presentation of new evidence. Accordingly, we conclude that
    Blystone‘s Rule 59(e) motion advances a claim and is thus a
    habeas corpus petition.
    The pertinent question for our jurisdictional analysis,
    then, is whether a Rule 59(e) motion to amend or alter
    judgment is materially different from a Rule 60(b) motion to
    reconsider, such that it does not constitute a second or
    successive petition, even if it advances a claim. We now join
    28
    the Court of Appeals for the Sixth Circuit in answering that
    question in the affirmative.
    As indicated above, Gonzales clearly delineated when
    a ―Rule 60(b) motion should be treated like a habeas corpus
    application.‖ Gonzales, 
    545 U.S. at 533
    . Notably, however,
    even though ―it is well settled that the phrase [‗second or
    successive‘] does not simply ‗refe[r] to all [habeas]
    applications filed second or successively in time,‘‖ Magwood
    v. Patterson, 
    130 S. Ct. 2788
    , 2796 (2010) (second alteration
    in original), Gonzales did not explicitly address the
    subsequent question in the analytical chain — whether a Rule
    60(b) motion, which constitutes a habeas corpus petition, is
    properly treated as a second or successive one. Instead, the
    Court effectively assumed that, if a Rule 60(b) motion
    constitutes a habeas corpus petition, it is necessarily second
    or successive and, therefore, subject to AEDPA‘s
    jurisdictional restrictions. And the reason for such an
    assumption is rendered immediately evident by the operation
    of Rule 60(b): Rule 60(b) only comes into play after the time
    to appeal has expired and the judgment has become final. See
    Gonzales, 
    545 U.S. at 528
    . Accordingly, a Rule 60(b) motion
    that raises a claim attacking the underlying criminal judgment
    must be a second or successive petition because, the judgment
    having become final, the petitioner has expended the ―one full
    opportunity to seek collateral review‖ that AEDPA ensures.
    Urinyi v. United States, 
    607 F.3d 318
    , 320 (2d Cir. 2010)
    (quotation marks omitted). In other words, a Rule 60(b)
    motion is, in substance, both a collateral attack on the first
    habeas judgment and a new collateral attack on the
    underlying criminal judgment because Rule 60(b) does not
    prevent the original habeas judgment from becoming final;
    instead, it seeks to set aside the already final judgment. See
    29
    Curry v. United States, 
    307 F.3d 664
    , 665 (7th Cir. 2002).
    This is not so in the case of a Rule 59(e) motion.
    Quite to the contrary, a timely Rule 59(e) motion
    suspends the finality of the judgment by tolling the time for
    appeal.10 See Howard v. United States, 
    533 F.3d 472
    , 475
    (6th Cir. 2008). Accordingly, we cannot logically subject a
    Rule 59(e) motion to the statutory limitations imposed upon
    second or successive collateral attacks on criminal judgments
    because, unlike a Rule 60(b) motion, it is neither a collateral
    attack on the initial habeas judgment, nor a new collateral
    attack on the underlying criminal judgment — rather it is part
    and parcel of the petitioner‘s ―one full opportunity to seek
    collateral review.‖ Urinyi, 
    607 F.3d at 320
     (quotation marks
    omitted); see Curry, 
    307 F.3d at 665
    . It is for this reason that
    we agree with the Court of Appeals for the Sixth Circuit that
    ―[t]he purposes behind Rule 59(e), as well as the mechanics
    of its operation, counsel in favor of the nonapplicability of
    second-or-successive limitations,‖ even if the motion
    advances a claim. Howard, 
    533 F.3d at 474
    .
    Rule 59(e) makes explicit that the district court may
    continue to exercise the inherent power that it has to rectify
    its own mistakes prior to the entry of judgment for a brief
    10
    We note, however, that a Rule 59(e) motion does not
    suspend the finality of a judgment for purposes of claim or
    issue preclusion. See 18A Charles Alan Wright, Arthur R.
    Miller & Edward H. Cooper, Federal Practice and Procedure
    § 4432 (2d ed. 2002) (―[I]t is clear that definitions of finality
    cannot automatically be carried over from appeals cases to
    preclusion problems.‖).
    30
    period of time immediately after judgment is entered. See
    White v. N.H. Dep‘t of Emp‘t Sec., 
    455 U.S. 445
    , 450
    (1982).11 Viewed against this backdrop, we think it clear that
    applying AEDPA‘s limitations on successive collateral
    attacks to Rule 59(e) motions would unduly interfere with the
    prompt reconsideration of just-entered judgments. That is to
    say, it would frustrate Rule 59(e)‘s intention to allow the
    district court to correct obvious errors in its reasoning readily,
    which in turn ―further[s] the important goal of avoiding
    piecemeal appellate review of judgments.‖ Osterneck v.
    Ernst & Whinney, 
    489 U.S. 169
    , 177 (1989). We are
    unwilling to attribute to Congress the ―unlikely intent‖ to so
    impede Rule 59(e)‘s operation by way of AEDPA‘s ―second
    or successive‖ restrictions. Howard, 
    533 F.3d at 475
    .
    We are cognizant of the fact that Howard was issued
    over a strong dissent, which concluded that, while Rule 59(e)
    motions that seek only ―to bring to the attention of a district
    judge errors[] . . . in the judge‘s decision on the case as it was
    put before him‖ should not be considered second or
    successive petitions, those based on wholly new claims
    cannot escape being ruled out by the basic premise of
    AEDPA ―that all habeas claims should generally be brought
    at one time.‖ Howard, 
    533 F.3d at 476
     (Boggs, C.J.,
    dissenting). Following this reasoning, the Court of Appeals
    for the Fifth Circuit has concluded that, though technical
    differences exist between Rule 59(e) and Rule 60(b), in
    practice the two rules ―permit the same relief — a change in
    11
    This power is entirely ―distinct from the power explicitly
    granted by Rule 60 to reopen cases well after final judgment
    has been entered.‖ In re Saffady, 
    524 F.3d 799
    , 803 (6th Cir.
    2008).
    31
    judgment,‖ and thus the Gonzales framework should apply
    equally to both types of motions. Williams v. Thaler, 
    602 F.3d 291
    , 303-04 (5th Cir. 2010) (quotation marks omitted).12
    Following this logic, in Williams, the Court of Appeals for
    the Fifth Circuit opined that a Rule 59(e) motion that
    advances a claim constitutes a second or successive petition.
    We understand the temptation to apply the rule of
    Gonzales to those Rule 59(e) motions that assert ―wholly new
    claims,‖ Howard, 
    533 F.3d at 476
     (Boggs, C.J., dissenting),
    since one could argue that such motions are, in effect, new
    petitions improperly captioned as motions to reconsider. But
    we, nonetheless, disagree with the Court of Appeals for the
    Fifth Circuit‘s holding because we do not believe that the
    differences between Rules 60(b) and 59(e) are merely
    technical. To the contrary, as we explained above, we think it
    is clear that, unlike a Rule 60(b) motion, a Rule 59(e) motion
    is part of the one full opportunity for collateral review that
    AEDPA ensures to each petitioner. And we are unwilling to
    suppose that Congress meant to deny the District Court the
    first opportunity to rework its newly issued judgment. Thus,
    we are convinced that a ―Rule 59(e) motion, whether or not it
    should properly be denied on its merits, does not require a
    12
    In Williams, the court also cited Ward v. Norris, 
    577 F.3d 925
    , 935 (8th Cir. 2009), and United States v. Pedraza, 
    466 F.3d 932
    , 934 (10th Cir. 2006), as support for the conclusion
    that AEDPA‘s limitations on successive petitions apply to
    Rule 59(e) motions. We do not believe that Ward and
    Pedraza are helpful, however, because they each concerned
    Rule 59(e) motions to reconsider the dismissal of Rule 60(b)
    motions that the district court had determined to be second or
    successive petitions requiring court of appeals permission.
    32
    transfer to this court to determine whether the requirements of
    [AEDPA] are met.‖ Howard, 
    533 F.3d at 476
    .
    Accordingly, we now join the Court of Appeals for the
    Sixth Circuit in holding that a timely Rule 59(e) motion to
    amend or alter a judgment is not a second or successive
    petition, whether or not it advances a claim, and therefore
    such a motion lies outside the reach of the jurisdictional
    limitations that AEDPA imposes upon multiple collateral
    attacks.
    B.
    Having determined that the District Court properly
    exercised jurisdiction over Blystone‘s Rule 59(e) motion, we
    turn to the merits of Blystone‘s challenge to that ruling. We
    review the District Court‘s denial of a motion to alter or
    amend a judgment pursuant to Rule 59(e) for abuse of
    discretion, ―except over matters of law, which are subject to
    plenary review.‖ Cureton v. Nat‘l Collegiate Athletic Ass‘n,
    
    252 F.3d 267
    , 272 (3d Cir. 2001).
    The scope of a motion for reconsideration, we have
    held, is extremely limited. Such motions are not to be used as
    an opportunity to relitigate the case; rather, they may be used
    only to correct manifest errors of law or fact or to present
    newly discovered evidence. Howard Hess Dental Labs., Inc.
    v. Dentsply Int‘l Inc., 
    602 F.3d 237
    , 251 (3d Cir. 2010).
    ―Accordingly, a judgment may be altered or amended [only]
    if the party seeking reconsideration shows at least one of the
    following grounds:       (1) an intervening change in the
    controlling law; (2) the availability of new evidence that was
    not available when the court granted the motion for summary
    judgment; or (3) the need to correct a clear error of law or fact
    33
    or to prevent manifest injustice.‖ 
    Id.
     (quotation marks
    omitted) (emphasis added). We have made clear that ―‗new
    evidence,‘ for reconsideration purposes, does not refer to
    evidence that a party . . . submits to the court after an adverse
    ruling. Rather, new evidence in this context means evidence
    that a party could not earlier submit to the court because that
    evidence was not previously available.‖ 
    Id. at 252
    . Evidence
    that is not newly discovered, as so defined, cannot provide the
    basis for a successful motion for reconsideration. Harsco
    Corp. v. Zlotnicki, 
    779 F.2d 906
    , 909 (3d Cir. 1985).
    The District Court denied Blystone‘s Rule 59(e)
    motion, finding that the evidence submitted in support was
    not in fact newly discovered, since Blystone had possession
    of it many months before the District Court denied habeas
    relief.13 This was plainly not an abuse of discretion under our
    clearly articulated standards for the assessment of a motion
    for reconsideration. See Howard Hess Dental Labs., 602 F.3d
    at 251-52; see also Howard, 
    533 F.3d at 475
     (explaining in
    the context of a habeas action that ―Rule 59(e) motions
    cannot be used to present new arguments that could have
    13
    The District Court found, in the alternative, that the new
    evidence would have no impact on its judgment as to
    Blystone‘s guilt phase claims because the evidence of his
    guilt was overwhelming. This alternative basis was neither
    essential to the District Court‘s denial of the Rule 59(e)
    motion, nor is it necessary to our review.
    34
    been raised prior to judgment‖). We, therefore, decline to
    upset the District Court‘s ruling.14
    14
    Blystone makes three other arguments in favor of reversing
    the District Court‘s denial of his Rule 59(e) motion, each of
    which is without merit.
    First, relying on Adams v. Gould Inc., 
    739 F.2d 858
    ,
    869 (3d Cir. 1984), he contends that his Rule 59(e) motion
    was effectively a motion for leave to amend his habeas
    petition, and that the District Court should have applied the
    liberal standard used to assess a motion under Fed. R. Civ. P.
    15(a). In Adams, the district court denied the plaintiffs‘ Rule
    59(e) and Rule 15 motions, which were filed after we directed
    the entry of a judgment against the plaintiffs in a § 1292(b)
    interlocutory appeal. In holding that the district court abused
    its discretion by denying relief, we stated that the rationale
    underlying most cases rejecting post-judgment amendments
    — that the plaintiff should have raised the new theory before
    trial — did not apply where only an interlocutory judgment
    had issued. Id. at 868. This case is distinct from Adams in
    two important respects. First, Blystone did not file a motion
    seeking to amend his petition; rather, he sought leave to
    conduct discovery and additional time thereafter in which to
    move to amend. The District Court, therefore, had no motion
    to amend before it, and did not err in failing to treat the
    motion for reconsideration as something it was not. Second,
    unlike in Adams, the rationale that generally underlies the
    denial of post-judgment amendments indeed applies here:
    Blystone should have sought leave for discovery before the
    District Court adjudicated the petition, given that the ―new‖
    evidence was available to him before such judgment was
    issued.
    35
    IV.
    We next turn to the District Court‘s grant of penalty-
    phase relief.
    A.
    Because the District Court did not conduct an
    evidentiary hearing before ruling on the habeas petition, our
    review is plenary and we conduct our analysis as the District
    Court did. Marshall v. Hendricks, 
    307 F.3d 36
    , 50 (3d Cir.
    2002). The state court adjudicated Blystone‘s ineffective
    assistance of counsel claim on the merits;15 thus, our review is
    Second, relying on Bracy v. Gramley, 
    520 U.S. 899
    (1997), Blystone argues that the District Court erred in
    denying the Rule 59(e) motion because he set forth sufficient
    facts to warrant discovery. Even if Blystone indeed set forth
    evidence sufficient to warrant discovery had he presented it
    while his petition was pending, that is a different question
    than the one before this court — namely, whether the District
    Court erred in finding that the motion for discovery was
    dilatory because the evidence presented in support of the Rule
    59(e) motion was not newly discovered.
    Third, Blystone contends that the District Court abused
    its discretion because, pursuant to 
    28 U.S.C. § 2244
    (d)(1)(D),
    he had a year from the date on which the ―new‖ evidence
    could have been discovered through the exercise of due
    diligence to raise claims thereon. Again, this is a different
    question than whether the District Court erred in denying the
    Rule 59(e) motion.
    15
    Where a lower state court opinion ―represents the state
    courts‘ last reasoned opinion on [the relevant issue],‖ we
    36
    limited by the mandates of AEDPA. See Adamson v. Cathel,
    
    633 F.3d 248
    , 254-55 (3d Cir. 2011). As the Supreme Court
    has made clear, AEDPA imposes a ―highly deferential
    standard for evaluating state-court rulings, and demands that
    state-court decisions be given the benefit of the doubt.‖
    Renico v. Lett, 
    130 S. Ct. 1855
    , 1862 (2010) (citation and
    quotation marks omitted). Accordingly, under AEDPA, our
    task is only to determine whether the state court‘s
    adjudication of Blystone‘s Strickland claim:
    (1) resulted in a decision that was
    contrary to, or involved an
    unreasonable      application    of,
    clearly established Federal Law,
    as determined by the Supreme
    Court of the United States; or
    (2) resulted in a decision that was
    based on an unreasonable
    determination of the facts in light
    of the evidence presented in the
    State court proceeding.
    
    28 U.S.C. § 2254
    (d).
    ―look through‖ the higher state court-opinion and apply §
    2254(d)‘s standards to the ―highest reasoned opinion.‖ Bond
    v. Beard, 
    539 F.3d 256
    , 289-90 (3d Cir. 2008) (citation
    omitted). Because the PCRA court presented a much more
    thoroughly reasoned decision than the Pennsylvania Supreme
    Court on some of the issues involved, we will, at times,
    analyze the PCRA court‘s decision, on which the Supreme
    Court decision heavily relied.
    37
    Consistent with Supreme Court precedent, we read §
    2254(d) to require three distinct legal inquiries. See, e.g.,
    Harrington v. Richter, 
    131 S. Ct. 770
    , 785 (2011). First, we
    ―must inquire whether the state court decision was ‗contrary
    to‘ clearly established federal law, as determined by the
    Supreme Court of the United States; second, if it was not,
    [we] must evaluate whether the state court judgment rests
    upon an objectively unreasonable application of clearly
    established Supreme Court jurisprudence.‖            Matteo v.
    Superintendent, SCI Albion, 
    171 F.3d 877
    , 880 (3d Cir. 1999)
    (en banc). Third, we must ask whether the state court
    decision ―was based on an unreasonable determination of the
    facts in light of the evidence presented‖ to the state court. 
    28 U.S.C. § 2254
    (d)(2).
    As the Supreme Court has explained, a decision by a
    state court is contrary to clearly established law if it applies a
    rule that contradicts the governing law set forth in the Court‘s
    cases or if it confronts a set of facts that are materially
    indistinguishable from a decision of the Court and
    nevertheless arrives at a result different from the Court‘s
    precedent. See Williams v. Taylor, 
    529 U.S. 362
    , 405-06
    (2000).
    A state court decision is objectively unreasonable ―if
    the state court identifies the correct governing principle from
    th[e Supreme] Court‘s decision [] but unreasonably applies
    that principle to the facts of the prisoner‘s case.‖ 
    Id. at 413
    .
    Under this standard, ―[a] federal habeas court may not issue
    the writ simply because that court concludes in its
    independent judgment that the state-court decision applied a
    Supreme Court case incorrectly. Rather, it is the habeas
    38
    applicant‘s burden to show that the state court applied that
    case to the facts of his case in an objectively unreasonable
    manner.‖ Price v. Vincent, 
    538 U.S. 634
    , 641 (2003)
    (citations, quotation marks, and brackets omitted). In other
    words, ―[a] state court‘s determination that a claim lacks
    merit precludes federal habeas relief so long as ‗fairminded
    jurists could disagree‘ on the correctness of the state court‘s
    decision.‖ Harrington, 
    131 S. Ct. at 786
     (quoting Yarborough
    v. Alvarado, 
    541 U.S. 652
    , 664 (2004)). And ―the more
    general the rule at issue — and thus the greater the potential
    for reasoned disagreement among fair-minded judges — the
    more leeway state courts have in reaching outcomes in case-
    by-case determinations.‖ Renico, 
    130 S. Ct. at 1864
    (quotation marks and brackets omitted).
    With regard to § 2254(d)(2), this Court has explained
    that ―a decision adjudicated on the merits in a state court and
    based on a factual determination will not be overturned on
    factual grounds unless [the state court‘s findings of fact are]
    objectively unreasonable in light of the evidence presented in
    the state-court proceeding.‖ Lambert v. Blackwell, 
    387 F.3d 210
    , 234 (3d Cir. 2004) (quotation marks omitted). ―State-
    court factual findings, moreover, are presumed correct; the
    petitioner has the burden of rebutting the presumption by
    ‗clear and convincing evidence.‘‖ Rice v. Collins, 
    546 U.S. 333
    , 338-339 (2006) (quoting § 2254(e)(1)); see also
    Simmons v. Beard, 
    590 F.3d 223
    , 231 (3d Cir. 2009) (―Under
    the § 2254 standard, a district court is bound to presume that
    the state court‘s factual findings are correct, with the burden
    on the petitioner to rebut those findings by clear and
    convincing evidence.‖). The evidence against which a federal
    court measures the reasonableness of the state court‘s factual
    findings is the record evidence at the time of the state court‘s
    39
    adjudication. Cullen v. Pinholster, 
    131 S. Ct. 1388
    , 1401
    (2011).
    As there is no dispute that the state court applied the
    correct principle of law to adjudicate Blystone‘s claim, we
    may only overturn the state court‘s decision if it was
    objectively unreasonable.
    B.
    Blystone first contends that the state court‘s denial of
    his ineffective assistance of counsel claim, as it relates to
    counsel‘s failure to investigate and develop expert mental
    health testimony and institutional records in mitigation, was
    unreasonable in light of clearly established Supreme Court
    precedent, and was made in reliance upon unreasonable
    determinations of the facts. The District Court agreed and
    vacated Blystone‘s death sentence on that basis. We, too,
    agree and will affirm the judgment of the District Court.
    We evaluate claims of ineffective assistance of counsel
    using the two-pronged test set forth in Strickland v.
    Washington, 
    466 U.S. 668
     (1984). To succeed on such a
    claim, the petitioner must demonstrate (1) that counsel‘s
    performance was deficient, in that it fell below an objective
    standard of reasonableness, and (2) that the petitioner suffered
    prejudice as a result of the deficiency. 
    Id. at 687
    . To
    establish prejudice the petitioner ―must show that there is a
    reasonable probability that, but for counsel‘s unprofessional
    errors, the result of the proceeding would have been different.
    40
    A reasonable probability is a probability sufficient to
    undermine confidence in the outcome.‖ 
    Id. at 694
    .16
    ―Surmounting Strickland‘s high bar is never an easy
    task.‖ Padilla v. Kentucky, 
    130 S. Ct. 1473
    , 1485 (2010).
    ―[U]nder de novo review, the standard for judging counsel‘s
    representation is a most deferential one,‖ Harrington, 
    131 S. Ct. at 788
    , and
    [e]stablishing that a state court‘s
    application     of    Strickland     was
    unreasonable under § 2254(d) is all the
    more difficult. The standards created by
    Strickland and § 2254(d) are both highly
    deferential, and when the two apply in
    tandem, review is doubly so. The
    Strickland standard is a general one, so
    the range of reasonable applications is
    substantial. Federal habeas courts must
    guard against the danger of equating
    16
    The Commonwealth argues that Blystone‘s claim for relief
    depends on this Court‘s willingness to recognize a new rule
    — namely, that the principles of Strickland impose upon
    counsel an obligation to refuse the instructions of a competent
    client with respect to the presentation of mitigating evidence.
    But Blystone advocates no such new rule; rather, Blystone
    argues merely that counsel failed in his predicate duty to
    investigate, and advise Blystone of, available mitigating
    evidence prior to sentencing, and that he was prejudiced
    thereby. The merits of such a claim are ―squarely governed‖
    by Strickland. Williams, 
    529 U.S. at 390
    .
    41
    unreasonableness under Strickland with
    unreasonableness under § 2254(d). When
    § 2254(d) applies, the question is not
    whether     counsel‘s    actions    were
    reasonable. The question is whether there
    is any reasonable argument that counsel
    satisfied    Strickland‘s     deferential
    standard.
    Id. (citations and quotation marks omitted).17
    1.
    We first turn to the state court‘s interpretation and
    application of Strickland‘s performance prong. Blystone
    argued unsuccessfully in state court that counsel was deficient
    in failing to investigate adequately and develop expert mental
    health testimony and institutional records in mitigation at the
    sentencing phase. For the reasons set forth below, we can
    discern no reasonable argument to sustain the state court‘s
    17
    Though application of the Strickland test requires a case-
    specific examination of the evidence, this ―obviates neither
    the clarity of the rule nor the extent to which the rule must be
    seen as ‗established‘ by [the Supreme Court.]‖ Williams, 
    529 U.S. at 391
    . Supreme Court decisions since the issuance of
    Strickland have shed further light on precisely what is
    required of counsel in conducting a sufficient investigation
    prior to sentencing. But such a duty to investigate is certainly
    encompassed in the mandate of Strickland and has, therefore,
    been ―established‖ for purposes of AEDPA since the issuance
    of that decision. See Marshall, 
    307 F.3d at 99-107
    .
    42
    conclusion that Blystone‘s lawyer satisfied Strickland‘s
    deferential standard.
    Unquestionably, investigation is essential to the
    lawyer‘s duties as both advisor and advocate. See 1 ABA
    Standards for Criminal Justice 4-4.1 (2d ed. 1980).18 After
    all, ―[t]he effectiveness of advocacy is not to be measured
    solely by what the lawyer does at the trial; without careful
    preparation, the lawyer cannot fulfill the advocate‘s role.‖ 
    Id.
    Indeed, the ―right to present, and to have the sentencer
    consider, any and all mitigating evidence means little if
    defense counsel fails to look for mitigating evidence‖ in the
    first instance. Hendricks, 
    307 F.3d at 99
     (quotation marks
    omitted).
    ―[C]ounsel‘s general duty to investigate takes on
    supreme importance to a defendant in the context of
    developing mitigating evidence to present to a judge or jury
    considering the sentence of death.‖ 
    Id.
     (quotation marks
    omitted). ―The lawyer . . . has a substantial and important
    role to perform in raising mitigating factors both to the
    prosecutor initially and to the court at sentencing.‖ 1 ABA
    Standards, supra, 4-4.1. And this formidable task ―cannot
    effectively be done on the basis of broad general emotional
    appeals or on the strength of statements made to the lawyer
    by the defendant.‖ Id.        Rather, the lawyer must make
    sufficient ―efforts to discover all reasonably available
    18
    As the Supreme Court noted in Wiggins v. Smith, ―we long
    have referred [to ABA standards] as guides to determining
    what is reasonable.‖ 
    539 U.S. 510
    , 524 (2003) (quotation
    marks omitted).
    43
    mitigating evidence and evidence to rebut any aggravating
    evidence that may be introduced by the prosecutor.‖
    Wiggins, 
    539 U.S. at 524
     (quotation marks omitted).
    ―Information concerning the defendant‘s background,
    education, employment record, mental and emotional
    stability, family relationships, and the like, will be relevant. . .
    .‖ 1 ABA Standards, supra, 4-4.1.
    Of course, while much is expected of trial counsel,
    Strickland also calls for great deference to an attorney‘s
    tactical decision to forego particular lines of investigation.
    And those strategic choices that counsel makes after
    conducting a thorough investigation of the relevant law and
    facts ―are virtually unchallengeable[.]‖ Wiggins v. Smith,
    
    539 U.S. 510
    , 521 (2003) (quotation marks omitted). This
    does not mean, however, that counsel can insulate his
    decisions from review merely by calling them strategic, for
    ―choices made after less than complete investigation are
    reasonable [only] to the extent that reasonable professional
    judgments support the limitations on investigation.‖ 
    Id.
    (quotation marks omitted). That is to say, ―counsel has a duty
    to make reasonable investigations or to make a reasonable
    decision that makes particular investigations unnecessary.‖
    
    Id.
     (quotation marks omitted).
    Importantly for our present purposes, this duty to
    conduct a reasonable investigation of mitigating evidence
    exists independently of counsel‘s duty to present a mitigation
    case to the jury. In fact, the former is a necessary predicate to
    the latter: if counsel has failed to conduct a reasonable
    investigation to prepare for sentencing, then he cannot
    possibly be said to have made a reasonable decision as to
    what to present at sentencing. As such, ―our principal
    44
    concern in deciding whether [counsel] exercised ‗reasonable
    professional judgment‘ is not whether counsel should have
    presented a mitigation case. Rather, we focus on whether the
    investigation supporting counsel‘s decision not to introduce
    mitigating evidence of [the defendant‘s] background was
    itself reasonable.‖    
    Id. at 522-23
     (citation and brackets
    omitted).
    We need not delve too deeply into the question of
    whether Whiteko‘s investigation prior to sentencing was
    deficient because the Commonwealth‘s brief all but concedes
    that it was. See Commonwealth‘s Reply Br. 10 (―If counsel
    had persuaded petitioner not to contest the imposition of a
    sentence of death, then [Supreme Court precedent] would
    require an evaluation of whether counsel‘s inadequate
    investigation tainted his instructions and advice to his client.‖
    (emphasis added)). And, for the reasons that follow, we are
    persuaded that no reasonable argument can be made to
    support the state court‘s decision to the contrary.
    Notably, the Commonwealth does not dispute that the
    expert mental health testimony and institutional records
    presented at the PCRA hearing amount to constitutionally
    significant mitigating evidence. Nor does the Commonwealth
    dispute that all of this evidence was readily available to
    Whiteko at the time of trial, had he looked for it. Thus, the
    question before us is simply whether any reasonable
    argument can be made to support the conclusion that
    counsel‘s failure to explore these sources of mitigating
    evidence was not constitutionally deficient.
    The PCRA court determined that trial counsel‘s
    investigation into expert mental health evidence was adequate
    45
    because Blystone underwent a competency evaluation at the
    Mayview Hospital prior to trial and nothing in the resulting
    report would have suggested to counsel that he should inquire
    further into Blystone‘s mental health. We disagree. Indeed,
    we believe the state court‘s conclusion in this regard was
    objectively unreasonable in light of the evidence presented in
    the proceedings before it.
    As the District Court aptly noted, ―[i]t is beyond cavil
    that the scope of an evaluation for purposes of mitigation at a
    capital sentencing proceeding is far broader than that for
    competency at trial.‖       District Court Op. 105 (citing
    Commonwealth v. Basemore, 
    744 A.2d 717
    , 738 n.24 (Pa.
    2000); Blanco v. Singletary, 
    943 F.2d 1477
    , 1503 (11th Cir.
    1991)). Thus, the fact that the Mayview Hospital report
    found Blystone competent to stand trial plainly does not, as
    the PCRA court‘s opinion suggests, lead inexorably to the
    conclusion that the report gave Blystone a clean bill of mental
    health for purposes of mitigation. In fact, the record before
    the PCRA court demonstrated quite the opposite. Drs.
    Fleming and Whyte testified that the Mayview Hospital
    competency evaluation contained clinically significant ―red
    flags,‖ which a qualified expert would have found to require
    follow-up prior to sentencing. But counsel never even
    presented the competency evaluation to an expert, instead
    determining of his own accord that nothing in the report
    suggested that Blystone suffered from a mental illness.
    Notably, nothing was presented to the PCRA court that could
    have served to undermine the conclusion of Drs. Fleming and
    Whyte that any qualified expert would have found the
    contents of the Mayview Hospital report to be clinically
    significant. On such a record, we conclude that the state
    court‘s assertion that the Mayview Hospital report contained
    46
    no indications of mental illness was an unreasonable
    determination of the facts.
    The state court‘s decision was similarly unreasonable
    in reaching the concomitant conclusion that counsel was not
    ineffective for failing to solicit an independent mental health
    evaluation because Blystone had no constitutional right to
    such an evaluation prior to sentencing. Drs. Fleming and
    Whyte testified that, had the appropriate follow-up
    investigation of the Mayview Hospital report been conducted,
    a qualified expert would have had all of the means necessary
    at the time of trial to diagnose Blystone with organic brain
    syndrome caused by a childhood head injury, bipolar
    disorder, and borderline personality disorder. Both doctors
    believed that the psychological conditions from which
    Blystone suffered rendered him substantially impaired at the
    time of the crime and they were of the opinion that a qualified
    expert would have reached the same conclusion prior to
    sentencing. Again, nothing was presented to the PCRA court
    to undermine the opinions of Drs. Fleming and Whyte in this
    regard.19 Even assuming that the state court correctly
    concluded that Blystone had no constitutional right to an
    independent mental health evaluation prior to sentencing, it
    was certainly within the trial court‘s discretion to appoint an
    19
    The state court dismissed the opinions of Drs. Fleming and
    Whyte because they did not know Blystone at the time of the
    offense or at the time of trial. In so doing, the state court
    ignored the fact that both doctors testified that all of the
    materials upon which they relied were available at the time of
    trial and that qualified experts would have reached the same
    diagnoses at that time.
    47
    expert had counsel so requested. See, e.g., Commonwealth v.
    Miller, 
    746 A.2d 592
    , 605 (Pa. 2000) (Saylor, J., concurring).
    We believe it clear that competent counsel would have so
    requested under the circumstances. Cf. Everett v. Beard, 
    290 F.3d 500
    , 509 (3d Cir. 2002) (explaining that a ―reasonably
    competent attorney patently is required to know the state of
    the applicable law‖). The state court‘s suggestion to the
    contrary is unreasonable.
    Counsel sought to justify further his failure to seek an
    expert mental health evaluation by explaining to the PCRA
    court that Blystone wanted ―all or nothing‖ — in other words,
    he believed his client wanted only to contest his guilt at trial
    and did not want to present a mitigation case if convicted.20
    This proffered justification, however, relies on an illogical
    leap: the fact that Blystone rejected a plea deal offering him
    life in prison in exchange for an admission of guilt in no way
    compels the conclusion that he wanted to die if convicted.
    And, in any event, ―[t]he investigation for preparation of the
    sentencing phase should be conducted regardless of any
    initial assertion by the client that mitigation is not to be
    offered.‖     ABA Guidelines for the Appointment and
    Performance of Counsel in Death Penalty Cases, Guideline
    11.4.1(C). Counsel cannot avoid the consequences of his
    inadequate preparation simply by virtue of the serendipitous
    occurrence that, on the day of sentencing, his client stuck
    with the decision not to go forward with a mitigation case. 21
    20
    Counsel did not defend his decision not to obtain the
    institutional records before the PCRA court.
    21
    We certainly recognize that
    48
    With regard to institutional records, we start with the
    fact that counsel knew prior to sentencing that Blystone had
    served in the Navy and been incarcerated in Maryland for
    robbery. Yet, counsel failed even to attempt to acquire
    records from either institution. The Commonwealth correctly
    points out that these records contain some information that
    may have proven unfavorable to Blystone. But they also
    [t]he reasonableness of counsel‘s actions
    may be determined or substantially
    influenced by the defendant‘s own
    statements or actions. . . . And when a
    defendant has given counsel reason to
    believe     that     pursuing      certain
    investigations would be fruitless or even
    harmful, counsel‘s failure to pursue those
    investigations may not later be
    challenged as unreasonable.
    Strickland, 
    466 U.S. at 691
    . Still, notwithstanding any
    statements a defendant may make as to his desire to present a
    case in mitigation at sentencing, the duty to, at the very least,
    ―explore all avenues leading to facts relevant to . . . the
    penalty‖ before sentencing belongs to the lawyer and ―exists
    regardless of the accused‘s admissions or statements to the
    lawyer of facts constituting guilt or the accused‘s stated desire
    to plead guilty.‖ 1 ABA Standards for Criminal Justice 4-4.1
    (2d ed. 1982 Supp.). After all, counsel also has a duty to
    provide advice upon which his client can make an informed
    decision not to present evidence in mitigation. And counsel
    cannot fulfill this duty without first knowing what mitigating
    circumstances may exist. See Hamblin v. Mitchell, 
    354 F.3d 482
    , 492 (6th Cir. 2003).
    49
    contain evidence that plainly corroborates the testimony of
    Drs. Fleming and Whyte as to Blystone‘s personality disorder
    and childhood head injury. Any amount of substantive
    engagement with this evidence would have spurred competent
    counsel to further investigate Blystone‘s mental health. As
    Supreme Court precedent makes clear, defense counsel has a
    duty to obtain administrative records, such as those at issue
    here, as part of the ―obligation to conduct a thorough
    investigation of the defendant‘s background.‖ Williams, 
    529 U.S. at
    396 (citing 1 ABA Standards, supra, commentary, p.
    4-55). We think it abundantly clear that trial counsel fell
    short of professional standards in failing to explore
    institutional records in the course of investigating Blystone‘s
    background in this case. The state court‘s conclusion to the
    contrary reflects an unreasonable application of clearly
    established federal law. See, e.g., Wiggins, 
    539 U.S. at
    527-
    28 (finding state court‘s conclusion that counsel performed
    adequately, even though he did not fully explore known
    institutional records, to be objectively unreasonable).
    Moreover, counsel‘s inadequate investigation was
    clearly not the result of the type of reasoned tactical decision
    to which we owe deference under Strickland. Indeed,
    counsel‘s testimony at the PCRA hearing makes evident that
    he did not even perform an investigation sufficient to provide
    the foundation for a reasoned strategic choice as to which
    avenues of potentially mitigating evidence to pursue. See
    United States v. Gray, 
    878 F.2d 702
    , 711 (3d Cir. 1989)
    (―[C]ounsel can hardly be said to have made a strategic
    choice against pursuing a certain line of investigation when
    s/he has not yet obtained the facts on which such a decision
    could be made.‖).
    50
    We recognize that ―[t]he right to counsel does not
    require that a criminal defense attorney leave no stone and no
    witness unpursued.‖ Jermyn v. Horn, 
    266 F.3d 257
    , 308 (3d
    Cir. 2001) (alteration in original) (quotation marks omitted).
    But the Sixth Amendment at least ―require[s] a reasoned
    judgment as to the amount of investigation the particular
    circumstances of a given case require.‖ 
    Id.
     (quotation marks
    omitted); see also Strickland, 
    466 U.S. at 691
    . It is evident
    from the PCRA record that counsel‘s limited investigation
    was not the result of any such reasoned judgment, but was
    merely the consequence of lackluster performance. In other
    words, we think that ―counsel chose to abandon the[]
    investigation at an unreasonable juncture, making a fully
    informed decision with respect to sentencing strategy
    impossible.‖ Wiggins, 
    539 U.S. at 527-28
    . And we are
    convinced that there could be no disagreement among
    ―fairminded jurists‖ that the state court‘s decision to the
    contrary was incorrect. Harrington, 
    131 S. Ct. at 786
     (―[A]
    state court‘s determination that a claim lacks merit precludes
    federal habeas relief so long as ‗fairminded jurists could
    disagree‘ on the correctness of the state court‘s decision.‖
    (quoting Yarborough, 
    541 U.S. at 664
    )).
    2.
    Having largely conceded that Whiteko‘s performance
    was deficient, the Commonwealth focuses its attention on the
    prejudice prong of the Strickland test. The Commonwealth
    argues, as the Pennsylvania Supreme Court found, that
    Blystone made a ―knowing, intelligent, and voluntary,‖
    waiver of his right to present any mitigating evidence at
    sentencing. Blystone II, 725 A.2d at 1205 (noting that
    Blystone ―not only refused to take the stand to testify in
    51
    mitigation, but he also refused to allow any other mitigating
    evidence to be presented in his behalf‖). Accordingly, the
    argument continues, Blystone has ―failed to demonstrate how
    counsel‘s alleged ineffectiveness prejudiced him‖ because the
    jury would not have been privy to any additional evidence
    that Whiteko may have uncovered through an adequate
    investigation. Id. at 1205 n.20. More specifically, the
    Commonwealth contends that the relief Blystone seeks is
    foreclosed by the Supreme Court‘s decision in Schriro v.
    Landrigan, 
    550 U.S. 465
     (2007), in which the petitioner,
    Landrigan, made a similar ineffective assistance of counsel
    claim based upon an allegedly deficient investigation. A
    summary of Schriro and its progeny will be of use in
    explaining why we do not agree that Schriro controls our
    analysis of this case.
    In Schriro, the Supreme Court confronted for the first
    time ―a situation in which a client interferes with counsel‘s
    efforts to present mitigating evidence to a sentencing court.‖
    
    Id. at 478
    . Though Landrigan‘s counsel had advised his
    client ―very strongly‖ to allow the presentation of a mitigation
    case, Landrigan made clear upon questioning from the
    sentencing judge that he had instructed his counsel, in no
    uncertain terms, not to present any mitigating evidence. 
    Id. at 469
    . Indeed, while Landrigan‘s counsel was proffering to the
    court the mitigating evidence he would have presented, if so
    permitted by his client, Landrigan went as far as to interrupt
    multiple times to explain away the mitigating characteristics
    of the evidence, and to reaffirm that he did not want the
    evidence presented in court. 
    Id. at 470
    . Moreover, Landrigan
    made it abundantly clear that he understood the consequences
    of his choice not to present a mitigation case: at the end of
    the sentencing hearing, he explicitly asked the jury to impose
    52
    a death sentence, stating ―I think if you want to give me the
    death penalty, just bring it right on. I‘m ready for it.‖ 
    Id.
    (quotation marks omitted). Applying AEDPA‘s deferential
    standard of review to these facts, the Supreme Court
    determined that the state court reasonably concluded that
    Landrigan had refused to allow the presentation of any
    mitigating evidence, regardless of its form, and that this
    refusal prevented him from thereafter demonstrating that
    counsel‘s allegedly inadequate investigation resulted in
    prejudice because no additional mitigating evidence would
    have come before the jury. 
    Id. at 475-77
    .
    We found Schriro to be controlling in Taylor v. Horn,
    
    504 F.3d 416
     (3d. Cir. 2007). In Taylor, the petitioner wrote
    a confession letter to the police, in which he stated, ―I want
    the maximum sentence.‖ 
    Id. at 421
     (quotation marks
    omitted). At his change of plea hearing, the petitioner
    confirmed that he had instructed his attorney not to contact
    any witnesses or to call medical personnel who could testify
    on his behalf, and that he understood that ―the likely result
    will be imposition of the death penalty.‖ 
    Id.
     (quotation marks
    omitted). At sentencing, the petitioner informed the court that
    he declined to present any mitigating evidence and the court
    sentenced him to death. 
    Id. at 422
    . Despite his dogged
    opposition to the presentation of mitigating evidence, the
    petitioner filed an ineffective assistance claim in subsequent
    state post-conviction proceedings based on his counsel‘s
    allegedly deficient investigation in preparation for sentencing.
    The state court denied the claim, finding that the petitioner
    could not make the necessary showing of prejudice, since he
    unwaveringly refused to allow his attorney to present any
    evidence in mitigation, going so far as to personally call
    potential witnesses to instruct them not to attend his
    53
    sentencing. 
    Id. at 424
    . Applying AEDPA‘s deferential
    standard of review, we determined in Taylor that the state
    court‘s assessment of the facts was reasonable. 
    Id. at 452, 455
    . Though the petitioner in that case ―was not belligerent
    and obstructive in court like the defendant in [Schriro],‖ we
    were persuaded by the record ―that his determination not to
    present mitigating evidence was just as strong.‖ 
    Id. at 455
    .
    As a result, we found that ―whatever counsel could have
    uncovered, [the petitioner] would not have permitted any
    witnesses to testify, and was therefore not prejudiced by any
    inadequacy in counsel‘s investigation or decision not to
    present mitigation evidence.‖ 
    Id.
    In the subsequent case of Thomas v. Horn, the
    Commonwealth relied on Schriro and Taylor to argue that,
    even assuming that effective counsel would have discovered
    Thomas‘s history of mental illness prior to sentencing, no
    prejudice could have resulted from the inadequate
    investigation because Thomas would have prevented his
    counsel from presenting any evidence of his mental illness at
    sentencing. 
    570 F.3d 105
    , 126 (3d Cir. 2009). We rejected
    this argument,22 holding that we could not conclude on the
    record before us that Thomas would have interfered with the
    presentation of all mitigating evidence, regardless of its form.
    
    Id.
     We explained that Thomas‘s colloquy at sentencing
    focused narrowly on whether he wanted to take the stand
    himself, and did not provide a reasonable basis to conclude,
    as a factual matter, that he would have refused to present all
    22
    Unlike in Schriro and Taylor, our review in Thomas was
    not restricted by AEDPA because the state courts had not
    addressed Thomas‘s ineffective assistance of counsel claim
    on the merits. Thomas, 
    570 F.3d at 127
    .
    54
    other forms of mitigating evidence as well, had his attorney
    been prepared to do so. 
    Id. at 128
    . Although we
    acknowledged that the sentencing court had asked Thomas to
    confirm that it was his decision not to present ―any evidence,‖
    we noted that this question was part of a compound question
    that simultaneously asked Thomas to reaffirm that he did not
    wish to take the stand in his own behalf. 
    Id.
     (quotation marks
    omitted). We were convinced that Thomas‘s ―terse answer to
    [the sentencing court‘s compound] inquiry does not display
    an intent to interfere with the presentation of mitigating
    evidence that is strong enough to preclude a showing of
    prejudice.‖ 
    Id.
     We similarly concluded that Thomas‘s
    response in the negative to the court‘s question as to whether
    he had any witnesses to call did not demonstrate that Thomas
    would have prevented the presentation of mitigating evidence
    in the form of expert testimony or records. 
    Id.
    The Commonwealth suggests that, like in Schriro and
    Taylor, Blystone‘s colloquy with the trial court provides
    indisputable support for the notion that Blystone would have
    refused to allow Whiteko to present any mitigating evidence
    on his behalf — including expert mental health testimony and
    institutional records — and thereby eliminates the possibility
    that prejudice might have resulted from Whiteko‘s deficient
    investigation. To this end, the Commonwealth places much
    stock in Blystone‘s answer in the negative to the question
    ―Do you wish to testify yourself or to have your parents
    testify or to offer any other evidence in this case?‖ App. 970
    (emphasis added). The fact that Blystone declined to ―offer
    any other evidence,‖ the argument goes, is the beginning and
    the end of the prejudice inquiry. We are not so persuaded.
    The trial court‘s colloquy in this case focused almost
    55
    entirely on whether Blystone wished to take the stand himself
    or have his parents testify on his behalf. The colloquy was
    narrowly focused in this manner for an obvious reason: the
    testimony of Blystone and his parents was the only evidence
    that Whiteko was prepared to present. As in Thomas, the
    inquiry upon which the Commonwealth relies was part of a
    compound question that also asked Blystone to affirm his
    desire not to take the stand himself or to have his parents
    testify on his behalf. See 
    570 F.3d at 128
    . And as in
    Thomas, we are of the opinion that Blystone‘s ―terse answer
    to this inquiry does not display an intent to interfere with the
    presentation of mitigating evidence that is strong enough to
    preclude a showing of prejudice‖ in the manner that the
    conduct of the petitioners in Schriro and Taylor did. 
    Id.
     We
    think that the only reasonable reading of the colloquy
    indicates that Blystone waived, at most, all lay witness
    testimony through his statement that he did not want
    ―anybody else brought into it.‖ App. 972. We believe it not
    only incorrect, but also unreasonable, to infer from the
    colloquy that Blystone would have prevented counsel from
    presenting any mitigating evidence, regardless of the form
    that it took.
    The substance of the colloquy, in combination with the
    testimony presented at the PCRA hearing, does not provide
    reason to believe that Blystone even understood that any form
    of evidence other than lay witness testimony could have been
    offered in mitigation. Though Whiteko testified before the
    PCRA court that Blystone did not want him ―to present
    anything‖ at sentencing, App. 1172, glaringly absent from the
    record is any suggestion that Whiteko ever discussed with
    Blystone the possibility of considering mitigating evidence
    other than the testimony of Blystone or his parents. In this
    56
    regard, we believe that the present case bears little
    resemblance to Schriro, in which the petitioner was certainly
    aware that other types of mitigating evidence could be
    presented on his behalf, since nearly all of the evidence that
    the petitioner claimed would have been uncovered in an
    adequate investigation was in fact proffered to the judge —
    over the interruptions of the petitioner — at sentencing. As
    the Supreme Court put it, ―[i]n the constellation of refusals to
    have mitigating evidence presented . . . [Schriro] is surely a
    bright star.‖ Schriro, 
    550 U.S. at 477
     (second alteration in
    original) (quotation marks omitted).               Despite the
    Commonwealth‘s extensive arguments to the contrary, the
    facts of this case are clearly distinguishable from Schriro.
    The fact that Blystone chose to forego the presentation
    of his own testimony and that of the two family members,
    which counsel was prepared to put on the stand, simply does
    not permit the inference that, had counsel competently
    investigated and developed expert mental health evidence and
    institutional records, Blystone would have also declined their
    presentation. And unlike the petitioners in Schriro and
    Taylor, Blystone never behaved in a manner, either prior to or
    during sentencing, to suggest that such an inference might be
    appropriate. We therefore ―find it impossible to predict with
    any degree of certainty what [Blystone] would have done had
    his trial counsel investigated and prepared to present all of the
    available mitigating evidence that [Blystone] now points to.‖
    Young v. Sirmons, 
    551 F.3d 942
    , 959 (10th Cir. 2008). We
    conclude that the state court‘s belief that it could predict what
    Blystone would have done was unreasonable. Thus, we agree
    with the District Court that the state court‘s determination that
    Blystone waived the presentation of all mitigating evidence,
    regardless of its form, was objectively unreasonable in light
    57
    of the evidence before it. In turn, we also conclude that the
    state court was unreasonable in holding that Blystone‘s
    waiver prevented him from making the necessary showing of
    Strickland prejudice.
    Finally, we are convinced that the body of potentially
    mitigating evidence adduced at the PCRA hearing is
    sufficient to demonstrate that counsel‘s deficiencies
    prejudiced Blystone.23 Under Pennsylvania law, ―the jury‘s
    decision on the [death] penalty must be unanimous.‖ Jermyn,
    
    266 F.3d at 309
    . Thus, Blystone ―can show prejudice in this
    case if there is a reasonable probability that the presentation
    of the [mitigating] evidence . . . would have convinced one
    juror to find the mitigating factors to outweigh the single
    aggravating factor the Commonwealth relied upon in this
    case.‖ 
    Id.
    Had counsel‘s investigation not been deficient, the jury
    could have heard expert testimony as to Blystone‘s organic
    brain damage, bipolar disorder, and borderline personality
    disorder. These same experts would have told the jury that, at
    the time of the crime, Blystone acted under extreme
    emotional disturbance and suffered from a substantially
    impaired capacity to conform his conduct to the law. The
    jury also would have been told that Blystone can adapt
    successfully to institutional life and would likely not pose a
    future danger to society if sentenced to life in prison.
    23
    Because the state court did not reach the merits of the
    prejudice prong, the deferential AEDPA standard of review
    does not apply and we instead review this portion of
    Blystone‘s claim de novo. See Porter v. McCollum, 
    130 S. Ct. 447
    , 452 (2009).
    58
    We are persuaded that the introduction of this evidence
    ―might well have influenced [at least one juror‘s] appraisal of
    [Blystone‘s] moral culpability.‖ Williams, 
    529 U.S. at 398
    ;
    see Penry v. Lynaugh, 
    492 U.S. 302
    , 319 (1989)
    (―‗[E]vidence about the defendant‘s background and
    character is relevant because of the belief, long held by this
    society, that defendants who commit criminal acts that are
    attributable . . . to emotional and mental problems, may be
    less culpable than defendants who have no such excuse.‘‖
    (quoting California v. Brown, 
    479 U.S. 538
    , 545 (1987)
    (O‘Connor, J., concurring))). We, therefore, agree with the
    District Court that Blystone has demonstrated a reasonable
    probability that the result of his sentencing hearing would
    have been different, had counsel conducted an adequate
    investigation of mitigating circumstances. Accordingly, we
    will affirm the District Court‘s decision to vacate Blystone‘s
    death sentence and remand for resentencing.
    C.
    Finally, Blystone contends that the state court was
    unreasonable in rejecting the portion of his ineffective
    assistance of counsel claim which relates to counsel‘s alleged
    failure to investigate adequately and develop lay witness
    testimony in mitigation. In rejecting this sub-claim, the
    PCRA court found that counsel ―spoke with [Blystone] at
    length prior to and during the trial about all aspects thereof . .
    . and interviewed [his] mother and father, as well as one
    sister, concerning [his] life, from early childhood to the time
    of trial.‖ App. 1649. The PCRA court also found it
    significant that neither Blystone nor his family indicated to
    counsel prior to sentencing that Blystone had substance abuse
    59
    issues. Relying on these factual findings, the Pennsylvania
    Supreme Court upheld the PCRA court‘s conclusion that
    counsel had adequately explored lay witness testimony in
    preparing for sentencing. See Blystone II, 725 A.2d at 1206.
    Blystone takes issue with the state court‘s findings of
    fact, claiming that nothing in the record suggests that trial
    counsel adequately interviewed him or his family members
    regarding the existence of potentially mitigating evidence.
    Having thoroughly reviewed the record from the PCRA
    hearing, however, we agree with the District Court that the
    state court had sufficient testimony before it to support its
    findings.     Although Blystone argues that his family‘s
    testimony at the PCRA hearing contradicts counsel‘s
    assertions that he thoroughly inquired as to the existence of
    mitigating evidence, the PCRA court did not credit their
    testimony. Neither did the PCRA court credit Sharon
    Smitley‘s testimony that Blystone was severely intoxicated on
    the night of the murder. The PCRA court did, however,
    credit Whiteko‘s assertions that, to prepare for sentencing, he
    (1) interviewed Blystone ―continuously,‖ (2) interviewed
    Blystone‘s father about his son‘s ―childhood, when he was
    young, very young, until the day of trial,‖ App. 1144-45, (3)
    spoke with Blystone‘s mother and sister, and (4) explored the
    list of statutory mitigating circumstances with Blystone and
    his parents, inquiring as to whether they knew of anything
    that might be of use in building a mitigation case. We, like
    the District Court, are bound by those credibility
    determinations.
    The disparity between the lay witness testimony that
    counsel was prepared to present at sentencing and that which
    was elicited at the PCRA hearing suggests that counsel should
    60
    have engaged in a more extensive investigation prior to
    sentencing. But, in light of the record evidence and the
    constraints imposed upon us by AEDPA, we cannot conclude
    that the state court was unreasonable in finding that counsel‘s
    investigation of lay witness testimony satisfied the deferential
    standard of Strickland.24 Accordingly, we will affirm the
    District Court‘s denial of Blystone‘s ineffective assistance of
    counsel claim to the extent that it relates to counsel‘s
    investigation and development of lay witness testimony prior
    to sentencing.25
    V.
    For the foregoing reasons, we will affirm the order of
    the District Court denying Blystone‘s Rule 59(e) motion, as
    24
    The Supreme Court‘s decision in Rompilla v. Beard, 
    545 U.S. 374
     (2005), does not compel a different result. In
    Rompilla, counsel‘s investigation included interviews with
    Rompilla and some of his family members. The Supreme
    Court recognized that the adequacy of                  counsel‘s
    investigation into lay witness testimony was subject to debate,
    but held only that counsel was deficient for failing to examine
    a court file on the defendant‘s prior conviction, which was
    there ―for the asking‖ and which counsel knew would be used
    to establish an aggravating circumstance at sentencing. 
    Id. at 384
    .
    25
    In affirming this denial, we decide only that the District
    Court‘s ruling on this issue of lay witness testimony was not
    in error under the standards of review set forth by AEDPA.
    We in no way hold that lay witness testimony cannot be
    presented at the resentencing hearing.
    61
    well as the District Court‘s judgment vacating Blystone‘s
    death sentence and remanding for resentencing.
    62
    

Document Info

Docket Number: 05-9002, 05-9003

Citation Numbers: 664 F.3d 397, 81 Fed. R. Serv. 3d 370, 2011 U.S. App. LEXIS 25553

Judges: Chagares, Nygaard, Roth

Filed Date: 12/22/2011

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (36)

James Mario Pridgen v. Shannon the District Attorney of the ... , 380 F.3d 721 ( 2004 )

robert-j-adams-merredna-t-buckley-william-j-calloway-james-joseph , 739 F.2d 858 ( 1984 )

Harrington v. Richter , 131 S. Ct. 770 ( 2011 )

Osterneck v. Ernst & Whinney , 109 S. Ct. 987 ( 1989 )

Cullen v. Pinholster , 131 S. Ct. 1388 ( 2011 )

Omar Blanco, Cross-Appellant v. Harry K. Singletary, as ... , 943 F.2d 1477 ( 1991 )

Williams v. Thaler , 602 F. Supp. 3d 291 ( 2010 )

Porter v. McCollum , 130 S. Ct. 447 ( 2009 )

Wiggins v. Smith, Warden , 123 S. Ct. 2527 ( 2003 )

Schriro v. Landrigan , 127 S. Ct. 1933 ( 2007 )

Rice v. Collins , 126 S. Ct. 969 ( 2006 )

Williams v. Taylor , 120 S. Ct. 1495 ( 2000 )

Taylor v. Horn , 504 F.3d 416 ( 2007 )

Leal Garcia v. Quarterman , 573 F.3d 214 ( 2009 )

Penry v. Lynaugh , 109 S. Ct. 2934 ( 1989 )

Rompilla v. Beard , 125 S. Ct. 2456 ( 2005 )

United States v. Tyrone Anthony Gray , 878 F.2d 702 ( 1989 )

Brady v. Maryland , 83 S. Ct. 1194 ( 1963 )

David Hamblin v. Betty Mitchell, Warden , 354 F.3d 482 ( 2003 )

lisa-michelle-lambert-v-charlotte-blackwell-administrator-of-the-edna , 387 F.3d 210 ( 2004 )

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