Seifullah Abdul-Salaam v. Secretary Pennsylvania Departm , 895 F.3d 254 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No: 14-9001
_____________
SEIFULLAH ABDUL-SALAAM,
Appellant
v.
SECRETARY OF PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; SUPERINTENDENT OF THE STATE
CORRECTIONAL INSTITUTION AT GREENE;
SUPERINTENDENT OF THE STATE CORRECTIONAL
INSTITUTION AT ROCKVIEW; THE ATTORNEY
GENERAL OF THE COMMONWEALTH OF
PENNSYLVANIA; THE DISTRICT ATTORNEY OF THE
COUNTY OF CUMBERLAND
____________
On Appeal from the United States District Court for the
Middle District of Pennsylvania
(D.C. No. 4-02-cv-02124)
District Judge: Hon. John E. Jones, III
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 12, 2018
Before: CHAGARES, GREENAWAY, JR., and SHWARTZ,
Circuit Judges.
(Filed: July 12, 2018)
Michael Wiseman, Esq.
Law Office of Michael Wiseman
P.O. Box 120
Swarthmore, PA 19081
Ayanna Williams, Esq.
David L. Zuckerman, Esq.
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
David J. Freed, Esq.
Jaime M. Keating, Esq.
Charles J. Volkert, Jr., Esq.
Cumberland County Office of District Attorney
1 Courthouse Square
2nd Floor, Suite 202
Carlisle, PA 17013
Counsel for Appellees
____________
OPINION
2
____________
CHAGARES, Circuit Judge.
A jury found petitioner Seifullah Abdul-Salaam, Jr.
(“Abdul-Salaam”) guilty of first-degree murder, robbery, and
conspiracy after a six-day trial in March 1995 in the Court of
Common Pleas of Cumberland County, Pennsylvania. After a
one-day penalty phase hearing in which Abdul-Salaam’s
counsel presented three mitigation witnesses, the jury
sentenced Abdul-Salaam to death. Abdul-Salaam, after
exhausting his state remedies, filed the instant petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
challenging his sentence based on trial counsel’s provision of
ineffective assistance of counsel by failing to investigate
adequately and to present sufficient mitigation evidence at
sentencing. The United States District Court for the Middle
District of Pennsylvania denied the petition. As explained
more fully below, because trial counsel could not have had a
strategic reason not to investigate Abdul-Salaam’s background
school and juvenile records, to acquire a mental health
evaluation, or to interview more family members about his
childhood abuse and poverty, counsel’s performance was
deficient. Further, because there is a reasonable probability
that the un-presented evidence would have caused at least one
juror to vote for a sentence of life imprisonment instead of the
death penalty, Abdul-Salaam has met the prejudice prong of
the ineffective assistance of counsel inquiry. Accordingly, we
will reverse in part the Order of the District Court and remand
to grant a provisional writ of habeas corpus directed to the
penalty phase.
3
I.
A.
At the guilt phase of Abdul-Salaam’s trial, the
Commonwealth presented evidence showing that on the
morning of August 19, 1994, Abdul-Salaam, with Scott
Anderson, attempted to rob a store in New Cumberland,
Pennsylvania. Abdul-Salaam brandished a handgun during the
robbery, then bound and assaulted the shop’s owner. When
Officer Willis Cole of the New Cumberland Police Department
responded, Abdul-Salaam managed to escape but Anderson
was caught. As Officer Cole prepared to handcuff Anderson,
Abdul-Salaam reappeared with his gun drawn, sprinted toward
Officer Cole, and fired at him. Officer Cole died of his gunshot
wounds. The jury returned a guilty verdict on first-degree
murder, robbery, and conspiracy charges.
The penalty phase of the trial lasted one day. The jury
was instructed about four statutory aggravating factors that the
Commonwealth had to prove beyond a reasonable doubt.1 The
first two factors were established by virtue of the guilt-phase
1
The four aggravating factors were: (1) “that the victim
was a peace officer who was killed in the performance of his
duty”; (2) that Abdul-Salaam “committed the killing while in
the perpetration of a felony”; (3) that “in the commission of the
offense the defendant knowingly created a grave risk of death
to another person in addition to the victim”; and (4) that Abdul-
Salaam had a “significant history of felony convictions
involving the use or threat of violence to the person.”
Appendix (“App.”) 238, 244.
4
testimony, and the Commonwealth presented eight witnesses
to establish the last two factors.
The defense presented three witnesses: Abdul-
Salaam’s mother and two of his sisters. Mahasin (“Dovetta”)
Abdul-Salaam, Abdul-Salaam’s mother, testified that Abdul-
Salaam’s father, Seifullah Abdul-Salaam, Sr., was “very
abusive” to him, but stated multiple times that “most of the
abuse was mental,” such as by “inhibit[ing the children’s]
worth and their consideration of themselves.” Appendix
(“App.”) 276–77. Dovetta added that Abdul-Salaam, Sr.
would also physically abuse the children and that to discipline
Abdul-Salaam, the father — who abused drugs and was
homeless at the time of trial — would punch him in the chest
“pretty hard” “until he took the breath out of him.” App. 283–
84, 286. Dovetta added that as a child, Abdul-Salaam saw his
father abuse her as well and often tried to protect her.
Dovetta described the trouble that Abdul-Salaam
experienced in school. Because he could not pay attention as
a result of his “deficit disorder,” Abdul-Salaam was placed in
a special school. App. 278. In addition, when he was sixteen
or seventeen, as a result of a juvenile adjudication, he was
placed in an Alternative Rehabilitation Communities (“ARC”)
program. Dovetta insisted that she and her daughters love
Abdul-Salaam and visit him in prison “every chance [they]
get.” App. 284.
The next witness was Karima Abdul-Salaam, one of
Abdul-Salaam’s younger sisters. She “vaguely” remembered
“spurts” of her father’s drug addiction and abuse. App. 295–
96. She said that their father verbally degraded all of the
children and she recalled her father hitting Abdul-Salaam,
5
including one instance when she saw her father take an
aluminum baseball bat into Abdul-Salaam’s room and then
heard her father hitting him with it. She recalled times as
children when they could find no food in their house except for
a can of beans.
Safryah Abdul-Salaam, Abdul-Salaam’s youngest
sister, briefly testified that she loved her brother and wanted to
visit him as often as she could. Although she was young at the
time, Safryah remembered seeing her father throwing objects
at their mother and hearing her father hitting Abdul-Salaam
behind closed doors.
At the close of the penalty phase, the trial court
instructed the jurors that it was their task to weigh the
aggravating factors against the mitigators and that they must
issue a sentence of death if they found that the aggravating
factors outweighed the mitigating factors. However, each juror
was instructed to give “whatever weight you deem reasonable
to mitigating factors.” App. 333. The court added that a death
sentence must be unanimous. The jury found all four charged
aggravating factors and one mitigating factor, namely that
“[t]he background that includes both physical and mental
abuse does have a negative impact on a person’s development
and therefore his future behavior.” App. 342; see also 42 Pa.
Cons. Stat. § 9711(e)(8) (the “catchall” mitigating factor in
Pennsylvania). The jury unanimously found that the
aggravating factors outweighed the mitigating factor and
sentenced Abdul-Salaam to death.
B.
6
Abdul-Salaam filed a direct appeal to the Pennsylvania
Supreme Court but did not raise an ineffectiveness claim. That
court affirmed the conviction and sentence, Commonwealth v.
Abdul-Salaam, 678 A.2d 342, 355 (Pa. 1996), and the United
States Supreme Court denied certiorari, Abdul-Salaam v.
Pennsylvania, 520 U.S. 1157 (1997). Abdul-Salaam then filed
a petition under Pennsylvania’s Post-Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. §§ 9541–46, in which he raised
the ineffective assistance of counsel claim. The PCRA court
held six days of hearings, during which Abdul-Salaam
presented institutional records, witnesses who testified about
Abdul-Salaam’s childhood, and mental health experts.
1.
The most substantial corpus of new evidence consisted
of Abdul-Salaam’s relatives’ testimony providing significantly
greater detail on Abdul-Salaam’s difficult upbringing. At the
PCRA hearing, Abdul-Salaam called ten such witnesses, all
but two of whom — his sister Karima and half-brother
Raymond Harris — had not been contacted by trial counsel
prior to sentencing.2
Harris, Abdul-Salaam’s older half-brother by eight
years, recalled his step-father as a “scary” figure from whom
“anger . . . just came across.” App. 384–85. Harris described
in detail the ways in which Abdul-Salaam, Sr. was abusive
2
Harris said that Abdul-Salaam’s trial team first
contacted him at 7 a.m. on the day of the penalty phase of the
trial and asked him to come and testify at approximately 9 a.m.
that day, but that he could not get to the trial on such short
notice.
7
toward him, his mother, and Abdul-Salaam. He testified that
he and Abdul-Salaam repeatedly witnessed Abdul-Salaam, Sr.
physically abusing their mother by punching her in the face or
otherwise hitting her. When Harris attempted to intervene,
Abdul-Salaam, Sr. punched him in the stomach, knocking him
to the floor. Harris asserted that Abdul-Salaam, Sr. physically
abused Abdul-Salaam on many occasions, including on several
occasions by hitting Abdul-Salaam with a leather strap. He
described a pattern in which the father would abuse their
mother, Abdul-Salaam would try to protect her, and the father
would then punch him until he fell and would continue the
assault “until [Abdul-Salaam] just broke down and cried and
submit[ted].” App. 389–90. When asked how many times this
occurred, Harris said he had “seen it happen pretty often.”
App. 392. He added that the family was regularly evicted and
that there often was no food for the children to eat in the house.
Abey Abdul-Salaam, the petitioner’s younger brother,
testified that as a child there were times when there was no food
in the house and that he would sometimes eat lozenges from
the bathroom for sustenance. He remembered one time when
he and Abdul-Salaam were playing basketball indoors and
their father thought they were being too loud and so beat them
both with an aluminum bat. Josephine Hall, Abdul-Salaam’s
maternal grandmother, testified that when she would see her
grandchildren, they were hungry, withdrawn, and afraid of
their father. When she visited her daughter’s home there was
almost no food in the house and she knew that the utilities were
frequently turned off because the bills were not paid. Eddie
Washington, Jr., Abdul-Salaam’s first cousin on his mother’s
side, recalled one occasion when Abdul-Salaam was seven or
eight years old, where he and Abdul-Salaam were sitting in the
backseat of a car while Abdul-Salaam, Sr. was driving. The
8
children were talking and Abdul-Salaam, Sr. “snapped” at
them “be quiet or I will kill you.” App. 521. Although he did
not see Abdul-Salaam often, he recounted seeing him with a
black eye on one of the numerous occasions when Dovetta
brought the children over to Washington’s family’s house to
get away from Abdul-Salaam, Sr. Whenever Abdul-Salaam’s
family would come over, he added, they were “very hungry”
and that “all they wanted to do” was eat. App. 524.
Florita Goodman, Abdul-Salaam, Sr.’s sister, testified
vividly about the abuse:
[O]ne time I saw him take [Dovetta’s] money . .
. . And she was crying. And she wanted her
money back. And he was taunting at her . . . and
took the money and just ripped it up into shreds
. . . and then threw it at her. And she was like
picking up the money off the floor, but she didn’t
have any clothes on, and then . . . he beat her with
a belt.
App. 453. She recalled seeing her brother force Abdul-Salaam
to lick envelopes all night.
Dana Goodman, Abdul-Salaam, Sr.’s younger brother,
described Abdul-Salaam, Sr. as violent growing up and
testified that as an adult his brother once tried to strangle him
with an extension cord. Dana also said that when Abdul-
Salaam was a child, Abdul-Salaam, Sr. gave all of the family’s
money to the Nation of Islam, leaving no money for food or
rent. He said that when he saw the family together, Abdul-
Salaam, Sr. made Abdul-Salaam recite the rules of the Nation
of Islam and would strike him if he made a mistake. Dana saw
9
Abdul-Salaam, Sr. “beat up” Abdul-Salaam “between eight
and twelve times,” including with a stick, baseball bat, and a
pipe. App. 721–23, 729. Dana also stated that Abdul-Salaam,
Sr. would punch Abdul-Salaam with his fist as punishment. He
added that more than once when the Abdul-Salaam was a small
child, he saw Abdul-Salaam, Sr. hit Abdul-Salaam until he was
lying on the floor and bleeding, but did not intervene out of
fear that Abdul-Salaam, Sr. would turn on him. Lawrence
Goodman, Abdul-Salaam, Sr.’s other brother, also recounted
fearing Abdul-Salaam, Sr. and seeing him smack Abdul-
Salaam with a spoon, causing him to develop lumps on his
head. He stated that Abdul-Salaam, Sr. forced the children to
learn the Koran late at night.
Karima testified that she remembered seeing her father
physically abuse her brothers and had seen her father hit
Abdul-Salaam more than ten times. As she did at trial, Karima
described the incident when she heard her father hit her
brothers with a bat. She said that her father used cocaine and
marijuana and that her mother took her and her siblings to
battered women shelters two or three times. She also said that
when she was a child, there were days they did not eat, that
they were evicted several times, and that their utilities were
often turned off. Karima explained that before the penalty
phase of the trial, Abdul-Salaam’s trial attorney spent a total of
10 to 15 minutes talking to her.
Abdul-Salaam, Sr. also testified. He admitted to drug
addiction, being verbally “very, very rough” with his children,
and hitting Abdul-Salaam, but contended that he would only
strike him when it “was called for,” meaning when Abdul-
Salaam did something “really drastic,” such as making fun of
prayers. App. 629–34, 638. He agreed that he taught Abdul-
10
Salaam “racial hatred” and that “white people were evil.” App.
640. He denied, however, hitting Abdul-Salaam with a
baseball bat.
Finally, Abdul-Salaam’s trial counsel, Spero Lappas,
testified. Lappas testified that his mitigation strategy during
the penalty phase of the trial was to present evidence of Abdul-
Salaam’s difficult upbringing. Lappas stated that he had not
identified any mental health issues at trial, although he had
arranged to appoint a psychiatrist, Dr. Crutchley, to evaluate
Abdul-Salaam. Lappas did not recall conducting any further
investigation into Abdul-Salaam’s mental health. He noted
that his associate, Ann Ariano, was responsible for
interviewing family members and that she told him “that there
would be evidence of pretty severe child abuse,” but he did not
recall if he knew pre-trial about Abdul-Salaam’s learning
disabilities. App. 1301–02. Lappas added that he did not try
to obtain Abdul-Salaam’s school or juvenile records and that
he could not identify a strategic reason for not doing so.
Lappas explained his belief that presenting mental
health evidence has a dangerous side to it, but agreed that there
was no danger in investigating the matter in the first place and
again could not say why he did not do so. He articulated his
view that battling mental health experts create “a very bad
impression on a jury.” App. 1314. He added cryptically that
mental health defenses raise a risk of relitigating the crime and
allowing the prosecutor “to not just describe the defendant’s
acts in a factual context, but in almost a moral context.” App.
1314. Lappas testified that he refused to have Dr. Crutchley
evaluate Abdul-Salaam because he did not want her to explore
events relating to the underlying charges and because Dr.
11
Crutchley indicated that it was important to her that there
would be expressions of remorse.
Lappas’s associate, Ann Ariano, also testified. She
recalled interviewing Dovetta, Karima, and Abey in preparing
for trial, but not any other family members. She stated that all
of the interviews were conducted shortly before the trial, but
she could not remember exactly when.
2.
Abdul-Salaam also introduced a large number of school
and juvenile records at the PCRA hearings, and these records
were reviewed by the experts who testified at the hearings. His
school records, which trial counsel had not pursued, showed
that Abdul-Salaam attended the Green Tree School in
Philadelphia for children with special needs from just prior to
his seventh birthday to age twelve. During his enrollment
there, Abdul-Salaam underwent multiple psychological and
neurological evaluations. At age six, he was found by
psychiatrist Katharine Goddard to be hyperactive,
undisciplined, and paranoid and given a diagnosis of
“Unsocialized Aggressive Reaction of Childhood Secondary to
Phobic Reactions.” App. 1626–27. Goddard deemed his
problems so severe that they could not be accommodated even
in a class for emotionally disturbed children and recommended
placement in a residential psychotherapeutic facility. Other
evaluations recommended placement in a class for emotionally
disturbed children on an emergency basis because he was a
physical threat in the classroom. One neurological exam noted
“some signs of minimal cerebral dysfunction,” while another
assessment did not reveal such impairment but recommended
a full neurological exam to reach a firm conclusion. App.
12
1632–33. The school records also contained evidence
suggesting that Abdul-Salaam experienced physical abuse at
home.
Abdul-Salaam’s juvenile records paint a similar picture
of difficulty socializing, repeated adjudications of
delinquency, psychological evaluations, brief improvements,
and relapses. The Commonwealth used many incidents from
his criminal history to establish aggravating factors at
sentencing, see App. 249, 254–57, 264–65, but trial counsel
failed to obtain the related records. They contained additional
psychological evaluations, such as those taken in May 1986,
after Abdul-Salaam was released from the Lehigh County
Juvenile Detention Home and placed in the Wiley House
Diagnostic Center. Those evaluations diagnosed Abdul-
Salaam with an Adjustment Reaction with Mixed Disturbance
of Emotions and Conduct which expressed itself in terms of
conduct (stealing) and in terms of emotions (depression and
anger related to his father and inadequate money).
In June 1986, Abdul-Salaam was placed in the Glen
Mills School for Boys. Abdul-Salaam initially adjusted
poorly. Although his behavior began to improve, Dovetta
asked for his release because she needed his help supporting
the family. With the support of his probation officer, who was
under the belief that Abdul-Salaam, Sr. had permanently left
the home, Abdul-Salaam was released in September 1986. He
was enrolled in his high school’s Socially-Emotionally
Disturbed class but was quickly suspended for fighting.
Abdul-Salaam found his way back into trouble. In a
report for the court, a juvenile probation officer noted Abdul-
Salaam’s history of “defiant and manipulative” behavior and
13
his “propensity to use violence as his major defense.” App.
2095. The officer noted his unstable home environment and
his conflict with his father due to his strict discipline and
“conversion of the family to the Black Muslim religion.” App.
2095. Abdul-Salaam was placed in the ARC Secure Facility
in February 1987, when he was 16 years old. His progress was
initially slow, but his behavior and attitude improved and he
was discharged in April 1988.
3.
Abdul-Salaam and the Commonwealth presented
medical experts at the PCRA hearing, who opined on Abdul-
Salaam’s mental health based on his records and their
observations. Abdul-Salaam presented the testimony of Drs.
Patricia Fleming, Julie Kessel, Carol Armstrong, and Carolyn
Crutchley. The Commonwealth presented Holly Evans
Schaffer and Drs. Paul Delfin and Larry Rotenberg.
Dr. Fleming, a clinical psychologist who evaluated
Abdul-Salaam, noted that his record and IQ scores were red
flags warranting further neurological evaluation and that his
academic deficits, including a third-grade reading level in the
tenth grade, were significant. She opined that his records
showed the dynamics of an abused child. Fleming believed
that Abdul-Salaam was under the influence of extreme mental
or emotional disturbance and had an impaired ability to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law at the time of the
offense.
Dr. Kessel, a psychiatrist, evaluated Abdul-Salaam and
reviewed his records. Kessel concluded that Abdul-Salaam
14
had attention deficit hyperactivity disorder (“ADHD”), a
cognitive disorder suggesting an organic impairment, and
schizotypal features to his character. Kessel disagreed with Dr.
Rotenberg’s view that Abdul-Salaam was not brain damaged.
She explained that his behavior was grossly abhorrent from a
young age and he was diagnosed with minimal cerebral
dysfunction (now known as ADHD). Kessel found
“substantial evidence” that Abdul-Salaam had been
“victimized as a young person, preadolescent, and in his early
youth” by his father’s emotional and physical abuse. App.
1070. Kessel explained that a primary caregiver’s abuse
impairs a person’s ability to make judgments as an adult and
that as a person “with organic brain damage,” Abdul-Salaam
would likely be less able to come to a socially appropriate
resolution of the anger and aggression engendered by his
father. App. 1088–90. Like Fleming, Kessel opined that in
1994 Abdul-Salaam suffered from an extreme mental or
emotional disturbance and that his capacity to appreciate the
criminality of his conduct and conform his conduct to the law
was “[a]bsolutely” impaired. App. 1093–94. She believed that
Abdul-Salaam had “substantial organic dysfunction” and that
Dr. Rotenberg’s contrary diagnosis did not adequately explain
Abdul-Salaam’s symptoms. App. 1094–95.
Dr. Armstrong, a neuropsychologist, tested Abdul-
Salaam and found severe impairments in his logical reasoning
and cognitive flexibility. She stated that the severity of Abdul-
Salam’s abuse was moderate, partly because it was “repetitive
and chronic,” and described the damaging effects that such
abuse can have on a child’s brain development. App. 1216–
20. She concluded that Abdul-Salam had “some sort of brain
damage that’s preventing his frontal lobes from functioning
well.” App. 1177.
15
Dr. Crutchley, the psychiatrist whom Lappas almost
retained to evaluate Abdul-Salaam, also testified. Crutchley
said she had asked Lappas to obtain Abdul-Salaam’s school
and juvenile records, but that she did not receive them. She
opined that Dr. Armstrong’s report “document[s]
neuropsychological impairment,” which would interfere with
Abdul-Salaam’s ability to control his behavior and noted that
the disparity between Abdul-Salaam’s verbal and performance
IQ raises questions concerning whether he had brain damage
and called for further testing. App. 1031–32.
In rebuttal, the Commonwealth presented Schaffer’s
testimony that she administered two personality tests to Abdul-
Salaam, with Dr. Rotenberg present. Dr. Delphin interpreted
the tests (but did not assess Abdul-Salaam) as well as the
conclusions of Drs. Fleming and Armstrong, and determined
that based on their reports, Abdul-Salaam’s
neuropsychological test results were within normal limits and
that there was “[n]o evidence of neuropsychological
problems.” App. 1378–80, 1383–84, 1389. Delphin
challenged the results of Dr. Fleming’s personality tests and
explained that despite Abdul-Salaam’s antisocial and sadistic
personality, he was not at the time of the murder under the
influence of an extreme mental or emotional disturbance or
impaired in his capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law.
He found no evidence of organic brain damage or a schizotypal
disorder.
Dr. Rotenberg evaluated Abdul-Salaam and reviewed
his school records, and opined that impulsive behavior and
ADHD does not mean a person cannot conform their acts to
the law. He said that based on Abdul-Salaam’s experts’
16
conclusions, one would have expected that he would have been
hospitalized or treated with medication.3 Turning to Abdul-
Salaam’s juvenile record, he noted evidence of Abdul-
Salaam’s violent and manipulative behavior noted at the Wiley
House, explaining that Abdul-Salaam’s description as being a
strong leader and ridiculing others showed “sophisticated
form[s] of interaction,” which implied that Abdul-Salaam had
the intellectual ability to perceive right from wrong. App.
1468–71. Rotenberg found the extent and nature of the abuse
less clear than as described by others. He diagnosed Abdul-
Salaam with a personality disorder, not otherwise specified,
with antisocial, obsessive-compulsive and narcissistic features.
Based on his evaluation, Abdul-Salaam’s records, and “all the
testimony” and affidavits, Rotenberg determined that Abdul-
Salaam did not have organic brain damage or a schizotypal
personality, that he was not under the influence of an extreme
mental or emotional disturbance at the time of the crime, and
that his ability to conform his conduct to the requirements of
the law was not substantially impaired. App. 1494–96.
C.
The PCRA court denied Abdul-Salaam post-conviction
relief. In its ruling on Abdul-Salaam’s ineffective assistance
claim, the PCRA court determined that trial counsel did not
render deficient representation in failing to investigate or
present the above-noted mitigating evidence because he did so
3
Abdul-Salaam argues reasonably that Rotenberg’s
assessment here misconstrues the record, which includes
numerous indications that Abdul-Salaam was, in fact,
recommended for such interventions. See Reply Br. 12–13;
App. 1627.
17
for a reasonable strategic purpose.4 Based on Lappas’s
testimony that mental health testimony resulted in a battle of
experts that was unappealing to the jury and risked relitigating
the crime, as well as his reason for not retaining Dr. Crutchley,
the PCRA court reasoned that “a detailed revelation of the
defendant’s past, necessary to mount any sort of mental health
defense, posed the very real risk of doing more harm than
good.” App. 1580. The PCRA court also noted that it found
the assertion that Abdul-Salaam suffered from “organic brain
damage or any other mental illness” to be “deeply flawed” and
“completely unpersuasive.” App. 1581, 1583. The PCRA
court made no findings regarding prejudice.
The Pennsylvania Supreme Court affirmed. Like the
PCRA court, the Pennsylvania Supreme Court reached its
decision primarily on the basis that Lappas’s performance was
not deficient because, based on the concerns he stated at the
PCRA hearing, he “had a reasonable basis for not presenting
the mitigating evidence [Abdul-Salaam] now claims counsel
should have offered.” Commonwealth v. Abdul-Salaam, 808
A.2d 558, 562 (Pa. 2001). Although not expressly reaching the
issue of prejudice, in a footnote, the Court noted that Abdul-
Salaam’s claim “that trial counsel was ineffective for failing to
present evidence of the abuse he suffered as a child . . . is
specious in light of the fact that . . . counsel presented the
testimony of several family members who described
4
In Strickland v. Washington, 466 U.S. 668 (1984), the
United States Supreme Court provided the standard for judging
ineffective assistance of counsel claims. To succeed, a
petitioner must show (1) “that [his] counsel’s performance was
deficient;” and (2) “that the deficient performance prejudiced
the defense.” Id. at 687.
18
Appellant’s abusive upbringing” and that calling additional
family members would “have merely been cumulative.” Id. at
562 n.5. In another footnote, the Court agreed with the PCRA
court that the mental health evidence did not show that Abdul-
Salaam suffered from “organic brain damage or any other
mental illness.” Id. at 561 n.4.
D.
Abdul-Salaam filed a petition in federal district court
seeking a writ of habeas corpus. As relevant on appeal, Abdul-
Salaam claimed that trial counsel was constitutionally
ineffective during the penalty phase of his trial for failing to
investigate and present testimony of (1) family members
regarding his dysfunctional and violent childhood, (2) records
relating to his schooling, prior criminal history, and childhood
mental health evaluations, and (3) a mental health expert. The
District Court denied relief. Reviewing the Pennsylvania
Supreme Court’s determination that trial counsel had a
reasonable basis not to present mitigation evidence under the
deferential standard of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), it found
“no reasonable argument to sustain” this conclusion, because
Lappas could not have — and admitted that he did not have —
any basis not to investigate the institutional records from
Abdul-Salaam’s childhood. App. 151–53. However, assessing
Strickland’s prejudice prong — which it reviewed de novo
given the absence of treatment at the state court level — the
District Court concluded that Abdul-Salaam was not
prejudiced by his counsel’s deficient performance. The
District Court reasoned that because the jury heard testimony
about Abdul-Salaam’s childhood abuse, learning disorders,
and behavioral problems, and in fact applied the “catchall”
19
mitigating factor in response to that evidence, it was not
reasonably probable that further evidence about Abdul-
Salaam’s childhood abuse and mental health would have
changed the outcome of his sentencing.
Abdul-Salaam timely filed a notice of appeal, and this
Court granted a Certificate of Appealability with respect to a
single claim: whether “trial counsel rendered ineffective
assistance during the penalty phase by failing to investigate and
present mitigating evidence.” App. 189. We now conclude
that he did.
II.
The District Court had jurisdiction under 28 U.S.C. §§
2241 and 2254. This Court has appellate jurisdiction under 28
U.S.C. §§ 1291 and 2253. Johnson v. Folino, 705 F.3d 117,
127 (3d Cir. 2013). Because the District Court did not hold an
evidentiary hearing, our review of the District Court’s opinion
and order is plenary. Robinson v. Beard, 762 F.3d 316, 323
(3d Cir. 2014). However, to the extent the Commonwealth
courts ruled on the merits of Abdul-Salaam’s ineffectiveness
claim, we must apply AEDPA deference to the “last reasoned
decision” of the Commonwealth courts on that claim. Bond v.
Beard, 539 F.3d 256, 289–90 (3d Cir. 2008).
A.
AEDPA “limits the power of a federal court to grant
habeas relief to a person in custody pursuant to a state court
judgment” to when the person’s custody is “in violation of the
Constitution or laws or treaties of the United States.” Han Tak
Lee v. Glunt, 667 F.3d 397, 402 (3d Cir. 2012) (quoting 28
20
U.S.C. § 2254(a)). Where the Commonwealth court
adjudicated the merits of a federal claim, a district court may
grant habeas relief on that claim only if the Commonwealth
court’s decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2)
“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). If, however, the Commonwealth court did
not address the merits of a federal claim, “‘the deferential
standards provided by AEDPA . . . do not apply,’ and we ‘must
conduct a de novo review over pure legal questions and mixed
questions of law and fact, as a court would have done prior to
the enactment of AEDPA.’” Johnson, 705 F.3d at 127 (first
quoting Taylor v. Horn, 504 F.3d 416, 429 (3d Cir. 2007); then
quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)). A
state court decision is “an unreasonable application” of
Supreme Court case law only “if the state court identifies the
correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of
the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413
(2000). “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 v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Both of the Commonwealth courts here denied Abdul-
Salaam’s ineffectiveness claim on the basis of the deficient
performance prong and did not expressly reach the prejudice
analysis. See Abdul-Salaam, 808 A.2d at 562. The
Pennsylvania Supreme Court accordingly wrote the last
reasoned decision on the deficiency prong, so our deference
21
will focus on its analysis. Bond, 539 F.3d at 289. Although it
was not the basis of its decision, the Pennsylvania Supreme
Court determined that Abdul-Salaam’s claim concerning
counsel’s failure to investigate additional family members or
present more evidence of his childhood abuse was “specious”
and that calling additional family members would “have
merely been cumulative.” Abdul-Salaam, 808 A.2d at 562 n.5.
Such a factual determination must be reviewed under the
deferential § 2254(d)(2) framework. See Lambert v.
Blackwell, 387 F.3d 210, 235–36 & n.19 (3d Cir. 2004);
Jermyn v. Horn, 266 F.3d 257, 286 (3d Cir. 2001); see also
Vega v. Ryan, 757 F.3d 960, 974 (9th Cir. 2014) (reviewing,
under § 2254(d)(2), a “state court’s findings that [a witness’s]
testimony would have been cumulative and would have had no
effect on the verdict”); Mays v. Stephens, 757 F.3d 211, 216
(5th Cir. 2014) (same); Cooper v. Sec’y, Dep’t of Corr., 646
F.3d 1328, 1353 (11th Cir. 2011) (same); Hall v. Washington,
106 F.3d 742, 752 (7th Cir. 1997).5 In addition, the
Pennsylvania Supreme Court’s agreement that the mental
5
To the extent that this statement could be read as a
merits determination that the omission of the additional family
evidence did not prejudice Abdul-Salaam because it was
merely cumulative, see Lewis v. Horn, 581 F.3d 92, 116 (3d
Cir. 2009) (requiring the application of § 2254(d) deference
where the state court’s “decision can be interpreted as
concluding that [petitioner] was not prejudiced . . . just as easily
as it can be interpreted as concluding that his counsel’s conduct
was not unreasonable”), such a conclusion regarding the
prejudice of a subset of evidence without considering the
totality of the evidence is an unreasonable application of
Supreme Court precedent and does not merit AEDPA
deference, see Williams, 529 U.S. at 397–98.
22
health evidence did not show that Abdul-Salaam suffered from
“organic brain damage or any other mental illness,” Abdul-
Salaam, 808 A.2d at 562 n.4, is a factual determination that
binds this Court unless we conclude it was objectively
unreasonable or unsupported by clear and convincing
evidence, § 2254(d)(2), (e)(1). These factual findings aside,
because the Pennsylvania courts did not address the prejudice
prong of the ineffectiveness inquiry, we review that legal
question de novo. See Porter v. McCollum, 558 U.S. 30, 39
(2009) (applying AEDPA deference to state courts’
determination of the prejudice prong but de novo review to the
deficiency prong, which the state court did not reach);
Rompilla v. Beard, 545 U.S. 374, 390 (2005) (applying de
novo review to prejudice prong because state court reached
only deficiency prong).6
6
The Commonwealth argues based on Richter, 562 U.S.
at 98, that we should apply AEDPA deference to the
Pennsylvania courts’ denial of the entire Strickland claim,
covering both prongs, regardless of which prong those courts
relied upon. However, in Dennis v. Sec’y, Pa. Dep’t of Corr.,
834 F.3d 263, 283–84 (3d Cir. 2016) (en banc), this Court
clarified that Richter applies only where a state court was silent
as to which prong of a multi-part test it based its decision upon.
Where, as here, the state court specifies that it based its ruling
on one prong of a test, we do not apply deference to
hypothetical theories that could support a decision based on the
other prong, which the state court explicitly did not reach. See
id. In its Sur Reply brief, filed after the publication of Dennis,
the Commonwealth seems to concede that Dennis clarifies that
Richter does not apply to this case. See Sur Reply Br. 4–5.
Instead, the Commonwealth argues that the internal logic of
Strickland mandates that a decision that counsel was not
23
deficient has embedded within it the conclusion that there was
no prejudice, such that the determination of the former is also
a determination of the latter. Commw. Br. 40–41; Sur Reply
Br. 2. However, the Supreme Court in Rompilla clearly
rejected that this logic underlies Strickland, because it
considered de novo the prejudice prong despite the state court’s
merits review of the deficiency prong. 545 U.S. at 390.
Whatever effect the Commonwealth asserts Richter had on the
application of AEDPA review to the Strickland prongs, it had
no impact on the underlying logic of the prongs themselves,
which Rompilla clearly understood as operating
independently. See also Sears v. Upton, 561 U.S. 945, 954
n.10 (2010) (“The one inquiry, deficient mitigation
investigation, is distinct from the second, whether there was
prejudice as a result.”)
Indeed, the Commonwealth misunderstands the
analysis underpinning the deficiency prong. A reviewing court
will not second guess a counsel’s contemporaneous reasonable
and bona fide strategic decision, even though “in the harsh light
of hindsight” it might be abundantly clear that the strategy was
not only faulty, but damaging. Bell v. Cone, 535 U.S. 685, 702
(2002); Richter, 562 U.S. at 110 (“[A]n attorney may not be
faulted for a reasonable miscalculation or lack of foresight or
for failing to prepare for what appear to be remote
possibilities.”). Prejudice, on the other hand, is analyzed
taking into account everything that the reviewing court knows
given the benefits of hindsight, whether or not it was
reasonably ignored by trial counsel. See, e.g., Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993) (holding that the concerns
underlying “the rule of contemporary assessment” do not apply
to the prejudice prong); Meyers v. Gillis, 142 F.3d 664, 668
(3d Cir. 1998) (explaining that the prejudice inquiry requires a
24
B.
We have little difficulty concluding that the District
Court correctly found that trial counsel’s representation was
deficient and that the Pennsylvania Supreme Court’s decision
to the contrary was an unreasonable application of clearly
established law.
The Pennsylvania Supreme Court determined that
Lappas did not perform deficiently in failing to obtain mental
health experts because Lappas’s testimony about the dangers
of presenting expert testimony during a capital sentencing trial
provided a reasonable strategic basis for his decision not to
pursue such experts. Abdul-Salaam, 808 A.2d at 562.
Additionally, the Pennsylvania Supreme Court appeared to
conclude that Lappas was not deficient for failing to investigate
and call additional family witnesses to testify because such
testimony would have been cumulative of the testimony
presented at trial. Id. at 562 n.5. Both of these conclusions
“court to determine in hindsight” whether counsel’s deficient
performance affected the outcome). It is entirely consistent
with Strickland to find that counsel’s representation was not at
the time deficient but to recognize that, had counsel pursued a
different (and in hindsight clearly better) approach, there is a
“reasonable probability” that “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. In
this way, counsel’s performance can, as a matter of logic, be
not deficient but nonetheless have prejudiced his client. Of
course, because Strickland requires both deficiency and
prejudice, such a circumstance would nevertheless fail to
constitute a Sixth Amendment violation.
25
involved an objectively unreasonable application of the
deficient performance prong of the Strickland test.
Although “strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable,” an unreasonably limited
investigation informing those strategic choices can amount to
deficient performance. Strickland, 466 U.S. at 690–91. That
is because “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.” Blystone v. Horn, 664 F.3d 397, 420 (3d Cir.
2011). Counsel can make a strategic decision to halt an avenue
of investigation if he has completed a foundation of
investigation to reach that decision, but decisions not to
investigate certain types of evidence cannot be called
“strategic” when counsel “fail[s] to seek rudimentary
background information.” Bond, 539 F.3d at 289. This Court
has highlighted that counsel often will need to obtain school,
medical and other institutional records, which are “readily
available,” to glean the background information necessary to
direct the rest of an investigation. Id. at 288; Blystone, 664
F.3d at 420. A failure to investigate background records can
amount to deficient performance even where “not all of the
additional evidence” in those records is favorable to the
defendant, Williams, 529 U.S. at 396; Sears v. Upton, 561 U.S.
945, 951 (2010), or where counsel had presented evidence that
articulated the gist of the un-investigated evidence, Sears, 561
U.S. at 954.
Because Lappas failed sufficiently to pursue expert
testimony about Abdul-Salaam’s mental health, his proffered
explanation that such testimony might result in warring experts
26
or a relitigation of the trial was unreasonable, given that he had
no basis to presume that the content of the unpursued expert
reports would even provide fodder for disagreement. See
Wood v. Allen, 558 U.S. 290, 307 (2010) (Stevens, J.,
dissenting) (“A decision cannot be fairly characterized as
‘strategic’ unless it is a conscious choice between two
legitimate and rational alternatives.”). But even if this decision
could be considered strategic, Lappas’s asserted basis for not
introducing such experts could not justify his failure to even
obtain their views or to obtain Abdul-Salaam’s background
educational and juvenile records for his own review. Such
information provides the kind of “rudimentary background
information” that there can be no strategic reason not to
investigate, whether or not the records are ultimately
introduced at trial. Bond, 539 F.3d at 289; Tennard v. Dretke,
542 U.S. 274, 287 (2004) (“[I]mpaired intellectual functioning
is inherently mitigating.”). The reasonableness of counsel’s
performance is determined based on the “prevailing
professional norms” at the time of the representation, Bond,
539 F.3d at 288, and “[i]t is unquestioned that under the
prevailing professional norms at the time of [the] trial, counsel
had an ‘obligation to conduct a thorough investigation of the
defendant’s background,’” Porter, 558 U.S. at 39 (quoting
Williams, 529 U.S. at 396)). Lappas plainly failed to do so
and, regarding the school and juvenile records, admitted that
this oversight had no strategic basis.
The Pennsylvania Supreme Court’s conclusion that
Lappas did not perform deficiently in failing to investigate and
present more than three family witnesses about Abdul-
Salaam’s abusive upbringing was also unreasonable. In the
assessment of the deficiency prong in this case, the issue is not
whether counsel should have introduced more family witnesses
27
in mitigation, but instead “whether the investigation . . . was
itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523
(2003). The ABA Guidelines applicable at the time of Abdul-
Salaam’s 1995 trial — which courts consider to “assess
counsel’s performance,” Saranchak v. Sec’y, Pa. Dep’t of
Corr., 802 F.3d 579, 595 (3d Cir. 2015) — provided that in
preparing for a capital sentencing trial, defense counsel should
try to “discover all reasonably available mitigating evidence,”
regardless of whether all of that evidence will ultimately be
introduced at trial. ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1(C)
(1989). Lappas could not have had a strategic reason to limit
his investigation to interviewing only three family witnesses,
instead of interviewing more family members and then
deciding which of them would present the strongest mitigation
testimony at trial. Based on Lappas’s and Ariano’s PCRA
testimony, it seems that counsel contacted so few of Abdul-
Salaam’s family members due to a lack of preparation and not
for any strategic reason. Counsel’s representation was
deficient.
C.
Abdul-Salaam may establish prejudice by showing “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. Because the Commonwealth courts did not
reach the prejudice prong of the analysis, our review is de
novo.
28
The issue here is whether, but for trial counsel’s failure
to adequately investigate mitigating evidence, there is a
reasonable probability that the jury would have imposed life
imprisonment instead of the death sentence. Because a
Pennsylvania death sentence must be unanimous, a defendant
can show prejudice “if there is a reasonable probability that the
presentation of the specific and disturbing evidence of
childhood abuse and neglect as a mitigating factor would have
convinced one juror to find the mitigating factor[] to outweigh”
the aggravating factors. Jermyn, 266 F.3d at 309. Prejudice
may exist even if the defendant could not have established
additional mitigating factors if he can show that but for
counsel’s errors he could have “presented evidence of an
entirely different weight and quality” going to the same
mitigating factor established at trial. Id. at 310. In other words,
prejudice may exist where but for counsel’s errors, evidence
could have been introduced “that was upgraded dramatically in
quality and quantity,” Bond, 539 F.3d at 291, even where that
evidence supports the same mitigating factor pursued at trial,
see Saranchak, 802 F.3d at 600.
To determine whether there is a reasonable probability
that the uninvestigated mitigation evidence would have
changed one juror’s mind, we must “evaluate the totality of the
available mitigation evidence — both that adduced at trial, and
the evidence adduced in the habeas proceeding” and re-weigh
that evidence against the evidence that the Commonwealth
produced in aggravation. Williams, 529 U.S. at 397–98.
Although we perform this legal analysis de novo, we must
afford AEDPA deference to factual findings by the
Commonwealth courts regarding the weight of that evidence,
so long as they are not unreasonable in light of the record. See
Blackwell, 387 F.3d at 235–36 & n.19; Lambert v. Blodgett,
29
393 F.3d 943, 977–78 (9th Cir. 2004) (“[A] federal court
reviewing a state court conclusion . . . must first separate the
legal conclusions from the factual determinations that underlie
it. Fact-finding underlying the state court’s decision is
accorded the full deference of §[] 2254(d)(2) . . . .”). We
therefore defer to the Pennsylvania Supreme Court’s fact-
finding that Abdul-Salaam did not suffer at the time of the
crime from organic brain damage or any other mental illness
warranting the application of either of the two mental health
mitigators Abdul-Salaam pursues.7 As explained more fully
below, however, because we conclude that the un-presented
7
Such deference to the factual determination that
Abdul-Salaam does not suffer from organic brain damage does
not, however, require us to discount Abdul-Salaam’s mental
health testimony entirely. Although the Pennsylvania courts
found unpersuasive the assertion that Abdul-Salaam suffered
from organic brain damage, they made no findings concerning
other aspects of the mental health evidence, which include
substantial findings that — although perhaps insufficient to
independently establish additional mitigators — suggest a
variety of mental illnesses and abuse-related disorders that
bolster Abdul-Salaam’s mitigation defense. See Bond, 539
F.3d at 290–91 (refusing to defer to state court’s determination
that defendant’s un-presented mental health testimony was
entirely refuted and could not support a finding of prejudice,
where the Commonwealth’s expert failed to discuss all the
findings); see also Porter, 558 U.S. at 42–43 (holding that
where, as here, a jury may consider as mitigating “mental
health evidence that does not rise to the level of establishing a
statutory mitigat[or],” “it was not reasonable to discount
entirely the effect that [rebutted expert] testimony might have
had on the jury”).
30
family member testimony “was of a totally different quality”
than the “meager evidence” that had been “presented on that
issue” at trial, Jermyn, 266 F.3d at 286, we will not defer to the
Pennsylvania Supreme Court’s apparent factual conclusion
that additional family member testimony would have been
cumulative, see Abdul-Salaam, 808 A.2d at 562 n.5. For this
same reason — the vastly upgraded quality of the un-presented
evidence — we conclude that the District Court erred in ruling
that because trial counsel presented general evidence of Abdul-
Salaam’s troubled background, Abdul-Salaam was not
prejudiced by the failure to investigate or present the additional
evidence established at the PCRA hearing. See Sears, 561 U.S.
at 954 (“We have never limited the prejudice inquiry under
Strickland to cases in which there was only ‘little or no
mitigation evidence’ presented. . . . [W]e also have found
deficiency and prejudice in other cases in which counsel
presented what could be described as a superficially reasonable
mitigation theory during the penalty phase.” (citation
omitted)).
Abdul-Salaam’s trial counsel presented three witnesses
to support the mitigation case — covering just 28 pages of trial
transcript — which generally showed that Abdul-Salaam grew
up in an abusive home and detailed one instance of severe
abuse, when he was hit with a baseball bat. In contrast, the
evidence elicited during the PCRA hearings gave a much more
detailed image of the home in which Abdul-Salaam was raised
and highlighted the regularity with which Abdul-Salaam faced
severe mental and physical abuse. Harris described Abdul-
Salaam, Sr. as a “scary” figure who punched their mother in
the face in front of the children, App. 384–85, and frequently
severely abused Abdul-Salaam with a belt or balled fist. He
also described a disturbing pattern in which Abdul-Salaam
31
would attempt to protect his mother and then would get
punched by his father until he fell on the ground and eventually
“just broke down.” App. 390–92. Dana Goodman similarly
testified with more disturbing detail than any of the witnesses
at trial. For example, he said that more than once when
petitioner was a small child, he saw Abdul-Salaam, Sr. hit
petitioner until he was bruised and bleeding, and on multiple
occasions saw Abdul-Salaam, Sr. hit petitioner with a blunt
object. Goodman stated that he was too afraid to offer help
because he, too, feared Abdul-Salaam, Sr. The other witnesses
at the PCRA hearing similarly filled in the story with details of
extreme violence that Abdul-Salaam suffered at his father’s
hands as a child and the serious poverty he experienced,
including regular evictions and severe instances of lack of food
as well as electricity. See, e.g., App. 453 (Florita witnessed
Abdul-Salaam, Sr. taking money from Dovetta, taunting her,
and then beating her while she was nude); App. 521
(Washington, Jr. recalling when Abdul-Salaam, Sr. threatened
to kill Abdul-Salaam if he was not quiet); App. 749 (Lawrence
saw Abdul-Salaam, Sr. hit Abdul-Salaam over the head); App.
395–96 (Harris recalling lack of food and evictions); App.
462–63 (Abey testifying about the lack of food in their
childhood home and about when their father beat Abdul-
Salaam with an aluminum bat for being noisy); App. 499 (Hall
noting that there was rarely food in the house when she visited
and that utilities were often turned off); App. 524 (Washington,
Jr. recounting that Abdul-Salaam’s family were extremely
hungry when they visited); App. 720 (Goodman describing
how Abdul-Salaam, Sr. sent all the family’s money to the
Nation of Islam).
This testimony was supported by the school and
juvenile records that could have been presented to buttress the
32
family’s claims of the abusive nature of the family home and
the problems this caused for Abdul-Salaam starting from his
childhood. See, e.g., App. 1626, 1631, 1634 (Green Tree
School records discussing abuse Abdul-Salaam experienced at
home); App. 1917 (Glen Mills School report opining that
Abdul-Salaam's relationship with his father “appeared to be a
major force in promoting [his] acting out and subsequent
delinquent behavior”); App. 2095 (probation officer’s view
that Abdul-Salaam’s problems were linked to his unstable
home environment and his conflict with his father). The
records also showed that throughout his childhood, Abdul-
Salaam was described as suffering from various social and
emotional issues, including what appeared to be significant
anxiety and fearfulness, self-doubt, and learning disabilities,
including ADHD. His school records further indicated that
much of his childhood aggression and disruptive behavior was
linked to these social, emotional, and learning issues and to his
father’s abuse. See, e.g., App. 1601 (Green Tree School
records from 1981); App. 1622 (psychological evaluation in
1979 stating that Abdul-Salaam felt “‘dumb’ and ‘stupid’ and
fe[lt] isolated from his peers because of his learning
disability”). The evidence could have shown that, when
removed from this detrimental environment, Abdul-Salaam’s
behavior began to improve, but that his progress was stymied
by his premature removal from the programs and reunification
with his father. See, e.g., App. 1788 (diagnosis from Wiley
House that Abdul-Salaam was “salvageable” if placed in a
supportive setting away from his father); App. 1826–27, 1849–
50 (reflecting Abdul-Salaam’s progress at ARC); App. 1917–
18 (Abdul-Salaam adjusted well at Glen Mills, was released at
Dovetta’s request based on erroneous belief that his father had
33
left home permanently).8 Additionally, the mental health
experts Abdul-Salaam presented at the PCRA hearing were
able to explain the school records in the context of a child
raised in an abusive home and how that context could explain
the development of his issues with impulsive decision making,
anxiety, aggression, and anti-social behaviors. See, e.g., App.
873 (Dr. Fleming explaining how Abdul-Salaam’s records
showed the dynamics of an abused child); App. 1088–90 (Dr.
Kessel explaining that a caregiver’s abuse impairs a child’s
ability to make judgments as an adult); App. 1216–20 (Dr.
Armstrong describing the damaging effects that abuse can have
on a child’s brain development). None of these conclusions
were squarely rebutted by the Commonwealth’s experts, let
alone addressed by the Commonwealth courts.
The evidence presented at the PCRA hearings —
consisting of extensive and detailed testimony about the
poverty and abuse that dominated Abdul-Salaam’s upbringing,
buttressed by the school records and mental health experts
contextualizing those records — presented a far stronger
mitigation case than the minimal mitigation testimony
presented at trial, which presented the severe physical abuse as
an uncommon, instead of dominant, feature of Abdul-Salaam’s
childhood. If this additional evidence had been presented to
the jury, it could have changed the picture of Abdul-Salaam’s
childhood from one that was abusive and poor in a general
sense, with one or two more severe instances occurring over
his entire lifetime, to one that appears to have been dominated
8
At the PCRA hearing, Lappas noted that in past
mitigation cases he has found this sort of “institutional
adjustment” evidence useful. App. 1304.
34
by severe and pervasive violence at the hands of his father and
poverty that often rose to the level of serious deprivation.
We conclude that there is a reasonable probability that
presenting the PCRA evidence at trial would have resulted in
at least one juror according significantly greater weight to the
catchall mitigating factor, thereby “convinc[ing] one juror to
find the mitigating factors to outweigh” the aggravating
factors. Blystone, 664 F.3d at 427. Consequently, Abdul-
Salaam was prejudiced by trial counsel’s errors because there
is a reasonable probability that but for counsel’s deficient
performance in failing to adequately investigate — and
ultimately present — this mitigation evidence, at least one
juror would have voted against the death penalty and changed
the outcome of the penalty proceedings. Having established
both Strickland prongs, Abdul-Salaam is entitled to habeas
relief.
III.
For the foregoing reasons, we will reverse in part the
Order of the District Court and remand to grant a provisional
writ of habeas corpus directed to the penalty phase.
35