Frogge v. Branker , 286 F. App'x 51 ( 2008 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-19
    DANNY DEAN FROGGE,
    Petitioner - Appellant,
    v.
    GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
    Carolina,
    Respondent - Appellee.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
    District Judge. (1:05-cv-00502-NCT-WWD)
    Argued:   May 16, 2008                    Decided:    July 15, 2008
    Before NIEMEYER, KING, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.   Judge Gregory wrote
    a dissenting opinion.
    ARGUED: James Patrick Cooney, III, WOMBLE, CARLYLE, SANDRIDGE &
    RICE, PLLC, Charlotte, North Carolina, for Appellant.    Valerie
    Blanche Spalding, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
    North Carolina, for Appellee. ON BRIEF: Don Willey, Jefferson,
    North Carolina, for Appellant. Roy Cooper, Attorney General of
    North Carolina, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Danny Dean Frogge appeals the district court’s denial of
    his federal habeas corpus petition, by which he seeks to have
    his North Carolina death sentence vacated.           Frogge contends that
    he is entitled to such relief on the ground that his trial
    counsel was constitutionally ineffective by failing to develop
    and present, for sentencing purposes, mitigating evidence of his
    permanent    organic   brain   damage.     As   explained    below,   we   are
    constrained to affirm.
    I.
    A.
    It is undisputed that, on the night of November 4, 1994,
    Frogge stabbed and killed his father, Robert Edward Frogge, and
    his invalid stepmother, Audrey Yvonne Frogge.               In 1995, Frogge
    was tried and found guilty in the Superior Court of Forsyth
    County, North Carolina, on two counts of first-degree murder.
    The jury then considered whether Frogge should receive the death
    penalty for each of the murders.           On the jury’s recommendation,
    Frogge was sentenced to life imprisonment for the killing of his
    father, and to death for the murder of his stepmother.                     The
    Supreme Court of North Carolina thereafter granted him a new
    trial   on    the   ground     that   inadmissible    hearsay     had      been
    3
    introduced during the guilt phase of the 1995 trial.                See State
    v. Frogge, 
    481 S.E.2d 278
     (N.C. 1997).
    At Frogge’s second trial in 1998, he was found guilty on
    two   counts    of   first-degree   murder,   as   well   as   an   additional
    count of robbery with a dangerous weapon.            Frogge was sentenced
    to life imprisonment for the killing of his father, a concurrent
    prison term for the robbery, and, on the jury’s recommendation,
    received a death sentence for the murder of his stepmother.                 At
    this trial, the jury had considered the death penalty only with
    respect to his stepmother’s murder.           Frogge appealed his death
    sentence and the robbery conviction, and the state supreme court
    affirmed.      See State v. Frogge, 
    528 S.E.2d 893
     (N.C. 2000).            The
    state supreme court summarized the facts of the case as follows:
    The State’s evidence at defendant’s second trial
    tended to show that defendant stabbed his father and
    bedridden stepmother to death.       At the time of the
    murders,   defendant   lived    with    his   father   and
    stepmother    at   their     home     in    Winston-Salem.
    Defendant’s father did not work, and his stepmother
    had been confined to her bed for over two years.
    Defendant worked part-time and helped around the
    house, but paid no rent.
    Between 4:00 and 4:30 a.m. on 5 November 1994,
    the Winston-Salem Police Department received a 911
    call from a person who identified himself as Danny
    Frogge.   Frogge reported that his parents were dead.
    When Winston-Salem police officers arrived at the
    scene, they found the bodies of Robert and Audrey
    Frogge in their bedroom.   Robert Frogge was found on
    the floor lying on his left side with bloodstains on
    4
    his shirt and arms. He had sustained ten stab wounds.
    A leather wallet, containing his driver’s license and
    miscellaneous papers but no money, was found next to
    his body.    The wallet, which was lying open, had a
    drop and a smear of blood inside. Near the wallet, a
    white, bloodstained sock was found. An iron bar from
    a lawnmower was found under Robert Frogge’s body.
    Audrey Frogge was found in her hospital-type bed with
    bloodstains on her chest and arms. She had sustained
    eleven stab wounds to her chest.     In addition, she
    suffered defensive knife wounds to her hand.         A
    hospital-type rolling table stood beside the bed. Dr.
    Patrick Lantz, a forensic pathologist, opined that the
    angle of the stab wounds indicated the person stabbing
    Audrey Frogge either stood at the edge of the bed
    beside the table or climbed on the bed itself to
    deliver the blows.
    Outside the home near the back porch, the
    officers found a bloodstained butcher knife.     Just
    beyond the edge of the woods behind the house, the
    officers found men’s clothing, including a pair of
    blue work pants, a pink tee shirt with red stains, a
    pair of men’s underwear, and a white sock which
    contained bloodstains and blood spatter.    The white
    sock appeared to match the sock found near Robert
    Frogge’s body.    The officers also collected several
    pairs of white underwear and blue work pants from
    defendant’s bedroom which appeared similar to those
    found in the woods.
    While talking further with the officers that
    night, defendant appeared calm and showed no signs of
    emotion.    In a statement to Winston-Salem Police
    Detective Sergeant Dennis Scales, defendant claimed
    that on the day of the murders he had been in and out
    of the house on numerous occasions taking care of his
    stepmother and preparing her supper. After a night of
    drinking and crack cocaine use with friends, he
    returned to the home at approximately 4:00 a.m. and
    found his parents murdered.
    5
    The State also offered into evidence defendant’s
    testimony from the sentencing proceeding of his first
    trial. This testimony included the following: On the
    day of the murders, defendant worked around the house
    and later met with Earl Autrey, Audrey Frogge’s son-
    in-law, at approximately 2:00 p.m.        The two began
    drinking. Defendant went back to his parents’ home to
    prepare supper for his stepmother and later returned
    to Autrey’s home to continue drinking.     Subsequently,
    defendant returned to his parents’ home.       Defendant
    had consumed almost an entire pint of liquor and
    several beers.    Defendant’s father awoke from a nap
    between 8:00 and 8:30 p.m. and began to argue with
    defendant about his drinking.      Defendant could not
    recall what he said to his father; however, his father
    became so upset that he took an iron bar from a
    lawnmower and jabbed and hit defendant four or five
    times.   Defendant got up, went to the kitchen, and
    retrieved a butcher knife.    He recalled stabbing his
    father three or four times while his father held the
    iron bar.    Defendant did not remember stabbing his
    stepmother, but admitted that he must have done it.
    He then took approximately twenty-five or twenty-six
    dollars from his father’s wallet. Defendant attempted
    to wash the blood from his hands.       He then changed
    clothes and threw the soiled clothes in the woods
    behind the house. When asked how blood got inside his
    father’s wallet, defendant stated that he did not
    know, but admitted it might have dropped from his
    hand. Defendant left and went to Kim Dunlap’s house.
    He and Dunlap then rode with Dunlap’s sister to
    downtown Winston-Salem. They used the money defendant
    had taken from his father’s wallet to purchase crack
    cocaine.    After smoking the crack, defendant and
    Dunlap returned to defendant’s parents’ home in a
    taxicab around 4:00 or 4:30 a.m.      Defendant entered
    the house, but returned to the taxicab and said that
    his parents were dead. He then called the police.
    Defendant elected to testify on his own behalf at
    his second trial.   His testimony was similar to that
    given at his first sentencing proceeding.           He
    testified he served over four years in prison for a
    previous second-degree murder conviction and that he
    6
    saved $ 8,000 to purchase a mobile home where he
    resided for six months after his release.   Thereafter
    he returned to live with his father and stepmother.
    Defendant again admitted killing his father and
    stepmother and stated that after the murders, he
    changed his clothes and washed his hands.          His
    testimony differed somewhat in that defendant claimed
    he did not take the money from his father’s wallet
    until after he had washed his hands and was preparing
    to leave the house approximately thirty minutes after
    the murders.     Defendant again admitted purchasing
    crack cocaine with the money he took from his father’s
    wallet.
    Frogge,    528   S.E.2d   at    895-96.          Following     the   state   supreme
    court’s affirmance of Frogge’s death sentence for the murder of
    his stepmother, the Supreme Court of the United States denied
    Frogge’s petition for writ of certiorari.                     See Frogge v. North
    Carolina, 
    531 U.S. 994
     (2000).
    B.
    In    2001,   Frogge      filed   a       Motion   for    Appropriate    Relief
    (“MAR”)    in    the   Superior   Court         of   Forsyth    County   (the   “MAR
    court”), alleging, inter alia, ineffective assistance of trial
    counsel.    The MAR court conducted an evidentiary hearing on the
    ineffective assistance issue in August 2002 (the “MAR hearing”).
    By its Order of October 29, 2003, the MAR court granted relief
    to Frogge, ruling in his favor on the ineffective assistance
    claim, thus vacating the death sentence he had received for the
    murder of his stepmother and ordering a new sentencing hearing.
    7
    State v. Frogge, No. 94 CRS 44964 (N.C. Super. Ct. Oct. 29,
    2003) (the “MAR Order”).1
    As    described         by   the     MAR     court,     Frogge’s       ineffective
    assistance claim “ar[ose] out of the alleged failure of trial
    counsel to investigate and offer evidence that at the time of
    the murders the defendant suffered permanent residual effects of
    a head injury sustained from a beating in 1990.”                            MAR Order 8-9.
    Frogge maintained that his trial counsel should have arranged
    for   neurological         testing      to     assess   whether        the    1990   injury
    resulted      in     permanent       organic    brain    damage       and    whether    such
    brain       damage    contributed       to     the    murders    of    his     father    and
    stepmother — an inquiry that, according to Frogge, “would have
    resulted in an opinion from an adequately qualified expert that
    as a result of [a brain damage-related] mental disturbance and
    consumption of alcohol, the defendant’s capacity to appreciate
    the criminality of his conduct and to conform his conduct to the
    requirements         of   the    law   was     impaired.”        Id.    at    9   (internal
    quotation marks omitted).              Frogge further contended
    that the failure to investigate, and to offer the
    evidence that would (or should) have been developed,
    was    objectively   unreasonable,   satisfying   the
    “performance” prong of the Strickland test.   He then
    1
    The MAR Order is found at J.A. 2124-52. (Our citations to
    “J.A.    “ refer to the contents of the Joint Appendix filed by
    the parties in this appeal.)
    8
    argue[d] that if the jury at the sentencing stage had
    been presented with this evidence, a reasonable
    probability   exists  that   the   ultimate  result —
    recommendation of the death penalty — would have been
    different, satisfying the “prejudice” prong.
    Id.    at    9-10    (citing       Strickland     v.    Washington,     
    466 U.S. 668
    (1984)).2
    The trial records and the MAR hearing evidence reflected
    that Frogge was represented by lead counsel Danny Ferguson and
    associate         counsel    David    Freedman     at    both   the    1995     and    1998
    trials.       During the sentencing phase of the 1995 trial, Frogge’s
    sisters       testified       to     changes      they     observed      in     Frogge’s
    personality         after    the     1990    beating,     and   a     defense    expert,
    clinical psychologist Dr. Gary Hoover, opined that the resulting
    brain damage contributed to Frogge’s murders of his father and
    stepmother.            Dr.        Hoover’s    methodology       and     opinion        were
    challenged by the State’s rebuttal expert, neuropsychiatrist Dr.
    Stephen I. Kramer, who perceived no link between the head injury
    and the murders of Frogge’s parents.                    At least one juror on the
    1995       jury   found     two    statutory      mitigating    circumstances          with
    respect to each of the murders:                        that Frogge was under the
    2
    In its seminal Strickland decision, the Supreme Court
    recognized that an ineffective assistance claim requires showing
    (1) “that counsel’s performance was deficient,” and (2) “that
    the deficient performance prejudiced the defense.” 
    466 U.S. at 687
    .
    9
    influence of a mental or emotional disturbance at the time of
    the offense, see N.C. Gen. Stat. § 15A-2000(f)(2) (the “‘(f)(2)’
    mitigator”), and that he suffered from an impaired capacity to
    conform his conduct to the requirements of the law, see id.
    § 15A-2000(f)(6)      (the    “‘(f)(6)’         mitigator”).       Thereafter,         for
    the   1998   trial,    Frogge’s      counsel        replaced      Dr.   Hoover       with
    another   expert,     clinical      psychologist      Dr.    William      Tyson,       who
    testified during the guilt phase — in an attempt to avoid first-
    degree murder convictions — that Frogge possibly suffered from a
    personality   disorder       and    that    he    likely    had    been       acting    on
    impulse   with     limited    ability      to     reason    at   the    time    of     the
    murders; Dr. Tyson did not mention Frogge’s 1990 head injury or
    opine on its effects.          The State again presented Dr. Kramer as
    its rebuttal expert, and Frogge’s sisters again gave nonexpert
    testimony    (during    the    sentencing          phase)    regarding        the    head
    injury.      The    1998     jury   did     not     find    either      the    “(f)(2)”
    mitigator or the “(f)(6)” mitigator with respect to the murder
    of Frogge’s stepmother.3
    3
    The jury at the 1995 trial had found four aggravating
    circumstances with respect to each of the murders, including
    that Frogge had previously been convicted of a violent felony
    (i.e., second-degree murder in 1985), that the murders of his
    father and stepmother occurred during the commission of a
    robbery, that these murders were “especially heinous, atrocious,
    or cruel,” and that each murder was part of a course of conduct
    in which Frogge engaged in a separate violent crime against
    10
    In its MAR Order, the MAR court made the following findings
    of fact, based on the evidence presented to it:
    1.   For the 1995 trial, the defendant’s trial
    counsel   engaged   and   offered testimony from  a
    psychologist, Dr. Hoover.
    another person. J.A. 669-70, 679-80. The 1995 jury also found
    — in addition to the statutory “(f)(2)” and “(f)(6)” mitigators
    discussed above — ten other mitigating circumstances regarding
    the murder of Frogge’s father:    Frogge had been physically and
    emotionally abused as a child by his father; had been sold as a
    child by his father to another man for purposes of child
    molestation; had helped to cook for and look after his father
    and stepmother; had committed the murders after being provoked
    by his father; had consumed alcohol at the time of the murders;
    had been under the influence of alcohol at that time; had a
    lengthy history of drug and alcohol abuse; had admitted his
    guilt; had made no attempt to flee or evade arrest after the
    murders; and had made himself available to the investigating
    officers.   The jury found six of these additional mitigating
    circumstances with respect to the murder of Frogge’s stepmother.
    For both murders, the jury concluded that the mitigating
    circumstances were insufficient to outweigh the aggravating
    ones. The jury recommended the death penalty, however, for only
    the murder of Frogge’s stepmother.
    The jury at the 1998 trial — which considered the death
    penalty with respect to only the stepmother’s murder — found the
    same four aggravating circumstances that had been found by the
    1995 jury.      The 1998 jury also found the following six
    mitigating circumstances:   that Frogge had been physically and
    emotionally abused as a child by his father; had, during his
    childhood,    repeatedly   watched    his   father    physically,
    emotionally, and sexually abuse his mother and sisters; had a
    lengthy history of drug and alcohol abuse; had admitted his
    guilt; had adjusted well to being in custody; and had made
    himself available to the investigating officers. Of course, as
    a prerequisite to its recommendation of the death penalty, the
    jury   also  found   that  the   mitigating  circumstances   were
    insufficient to outweigh the aggravating circumstances.
    11
    2.   Dr. Hoover testified in the form of opinion
    that at the time of the homicides in 1994, the
    defendant suffered from “[d]elirium due to multiple
    etiologies, substance intoxication delirium, alcohol
    [sic]    and   mood  disorder  due  to   postconcussive
    disorder.”
    3.    Dr. Hoover described the latter as “the
    aftermath of a head injury that [Frogge] sustained in
    1990 that left him with residual mood difficulties and
    cognitive functions, intellectual skills . . . [that]
    caused him to have episodic seizures, slurred speech
    and increased irritability, more withdrawn type of
    personality, episodes of paranoia over the years.”
    4. In Dr. Hoover’s opinion, the “postconcussive”
    disorder combined with substance-induced delirium to
    produce explosive rage provoked by the defendant’s
    father.
    5.   Dr. Hoover based his diagnosis in part on
    “known”   correlation   between  “residual    behavioral
    difficulties” and head injuries, and the descriptions
    provided   to  him   of   marked  differences   in   the
    defendant’s behavior after the injury.
    6. During cross-examination, Dr. Hoover admitted
    that he had done no neurological or neuropsychological
    testing of the defendant, stating that medical records
    and behavioral information provided were sufficient
    for the “diagnosis.”
    7.   The State offered rebuttal expert testimony
    from Dr. [K]ramer, a neuropsychiatrist, who disagreed
    with Dr. Hoover’s opinion concerning “delirium.”
    8.     Dr.   [K]ramer  said   that  Dr.   Hoover’s
    conclusions were “not supported,” and lacked “data.”
    9.    Dr. [K]ramer’s own review of the medical
    records concerning the 1990 head injury did not
    support a conclusion that it had any effect on the
    defendant in 1994.
    12
    10. Dr. [K]ramer testified that tests could have
    been done on the defendant to determine whether the
    head injury contributed to the homicides in 1994, but
    that none were done.
    11.   At the 1995 sentencing phase, the “(f)(2)”
    and “(f)(6)” mitigators were submitted to the jury,
    and were found by at least one juror; however, with
    respect to the murder of Audrey Frogge, the jury did
    not find that the mitigating factors found outweighed
    the aggravating factors, and recommended death.
    12.   For the 1998 trial, defense counsel elected
    not to use Dr. Hoover again, and engaged another
    psychologist, Dr. Tyson.
    13.   During the 1998 trial, Dr. Tyson testified
    that at the time of the homicides, the defendant
    suffered from a “personality disorder . . . defined as
    a pervasive limitation to adult functioning that had
    been aggravated by long term substance abuse and
    dependence,” as a result of which “it was most likely
    he would have been acting on impulse with limited
    ability to reason.”
    14.   Dr. Tyson did not perform or request    any
    neurological   or  neuropsychological   tests on   the
    defendant, and none were done. His diagnosis was   not
    supported by reliance on any such tests, review     of
    medical records concerning the 1990 head injury     or
    descriptions by family and friends of changes in   the
    defendant’s behavior after that injury.
    15.   Lay witnesses who testified during the 1998
    trial described changes in the defendant’s behavior
    after the 1990 head injury.
    16.    During the 1998 sentencing phase, which
    pertained only to the Audrey Frogge murder, the
    “(f)(2)” and “(f)(6)” mitigators were submitted to the
    jury, but neither was found, and the jury again
    recommended death.
    13
    17. Trial counsel decided not to use Dr. Hoover
    in favor of Dr. Tyson because of dissatisfaction with
    Dr. Hoover and respect for Dr. Tyson’s abilities.
    18.    Claudia R. Coleman, Ph.D., a psychologist
    specializing     in   neuropsychology    and  forensic
    psychology,    reviewed   various   written  materials
    concerning the defendant and conducted physical and
    other examinations of the defendant in preparation for
    the MAR hearing.
    19.   Among the materials reviewed by Dr. Coleman
    were portions of the record of the 1995 and [1998]
    trials (including testimony of Drs. Hoover, [K]ramer
    and Tyson), the defendant’s criminal record and
    affidavits from family members and friends.   She also
    reviewed a psychological report done by Dr. Tyson in
    1998 and medical records that included information
    about the 1990 head injury.
    20.   Dr. Coleman also personally met with the
    defendant twice, and performed a neuropsychological
    evaluation to determine if he suffered residual
    deficits from the head injury.
    21.    Dr. Coleman testified that the defendant
    suffered a closed head injury, that he spent several
    days in the hospital, that he was “in and out” of
    clear mental status during that time, that at
    discharge he had speech and memory problems, that he
    became   “more    explosive”  and   was  more   “easily
    agitated,”   that   he   had a    lower tolerance   for
    frustration, that he became more withdrawn, and that
    he became “quite paranoid and fearful of others.”
    22.   Dr. Coleman administered several tests on
    the   defendant,    including   the    Weschler   Adult
    Intelligence Scale, the Weschler Memory Scale and the
    Rhey Auditory Verbal Learning Test.     She also tested
    motor, visual, spatial and language skills, and
    performed brain injury-specific tests.        She also
    administered tests to detect evidence of malingering.
    23.  Dr. Coleman observed that the defendant did
    well    on some of the tests, and poorly on others,
    14
    particularly in verbal and visual memory processes.
    She considered these results to be consistent with
    brain injury in the temporoparietal area, which was
    the area involved in the 1990 head injury.
    24.     Based on her review of the materials
    provided to her, her examination of the defendant,
    including   test   results,   and  her   education   and
    training, Dr. Coleman diagnosed the defendant with
    “cognitive disorder NOS [not otherwise specified],”
    personality disorder, combined type, with paranoid and
    aggressive    features,     and   with    “polysubstance
    dependence.”   The cognitive and personality disorders
    were causally linked to the head injury.
    25.    Dr. Coleman formed an opinion that the
    residual effects of the defendant’s brain injury in
    1990 significantly affected his behavior at the time
    of the Audrey Frogge murder. She concluded that these
    effects made it more difficult for the defendant to
    control his emotions and impulses, and to consider the
    consequences of his conduct.
    26. In Dr. Coleman’s opinion, at the time of the
    Audrey Frogge murder, partially as a result of the
    brain injury, the defendant suffered from diminished
    capacity   fully   to    weigh   and   understand  the
    consequences of his actions.    She further determined
    that he committed the murder while under the influence
    of such conditions and that his ability to appreciate
    the criminality of his conduct and conform that
    conduct to the requirements of law was impaired.
    27.   Thomas M. Hyde, M.D., Ph.D., a neurologist,
    conducted a neurological evaluation of the defendant
    in June 2002, and reviewed Dr. Coleman’s report,
    affidavits, hospital records and a portion of trial
    transcript.      He   observed   several   abnormalities,
    including   attention    and   visual   deficits,   motor
    weakness and clumsiness.        He concluded that the
    defendant has organic brain damage, referable to the
    frontal and parietal lobes, resulting from the 1990
    head injury.     In his opinion, the defendant had a
    significant closed head injury in 1990 that produced
    permanent and irreversible brain damage, which under
    15
    extreme distress would lead him to act impulsively,
    with impaired judgment, reasoning and impulse control.
    28.   If the defendant’s trial counsel had been
    aware of Dr. Hyde’s opinions in 1998, and if Dr. Hyde
    were available as a witness and counsel was otherwise
    satisfied that Dr. Hyde was a credible expert, he
    would have used Dr. Hyde’s opinion at trial.
    MAR Order 10-16 (internal citations omitted) (some alterations
    in original).
    Turning      to   the        performance    prong     of    the   Strickland
    analysis,   the    MAR    court      focused     heavily    on   two   decisions:
    Wiggins v. Smith, 
    539 U.S. 510
     (2003) (concluding petitioner
    entitled to habeas corpus relief based on counsel’s failure to
    investigate     and    present      available     mitigating     evidence),   and
    Byram v. Ozmint, 
    339 F.3d 203
     (4th Cir. 2003) (distinguishing
    Wiggins   and   finding      no    ineffective    assistance,     where   counsel
    conducted thorough investigation and made strategic decision not
    to present potentially damaging evidence).                 See MAR Order 19-22.
    The MAR court concluded that
    [t]he circumstances here are more similar to Wiggins
    than to Byram. Counsel knew of Frogge’s head injury,
    but did not investigate with the assistance of expert
    consultation the potential mitigation evidence of
    “organic brain damage” and its effects on his ability
    to control violent impulses.    Counsel here had the
    “benefit” of Dr. [K]ramer’s criticism of Dr. Hooper’s
    testimony in the 1995 trial — the “roadmap” that post-
    conviction counsel now say was available.   While true
    that the effects of Frogge’s head injury include anti-
    social behavior that could be damaging to his case,
    trial   counsel’s  failure  to  investigate   was  not
    16
    influenced by that circumstance.   Like trial counsel
    in Wiggins, Frogge’s trial counsel turned their focus
    to other concerns, and were “inattentive” to the
    potential mitigating evidence arising out of the head
    injury.   Frogge had the benefit of good lawyers with
    experience in capital cases, but Wiggins compels the
    conclusion that their failure to pursue the evidence
    of organic brain injury as has now been done in post-
    conviction proceedings was objectively unreasonable.
    From the evidence, applying applicable case law, this
    Court concludes that the defendant has met the burden
    of proof on the performance prong of the Strickland
    test.
    Id. at 22-23.         Next, with respect to the prejudice prong of the
    Strickland       analysis,        the     MAR        court        determined     that,
    “[c]onsidering all of the circumstances, . . . the evidence of
    the   effects    of     organic   brain    injury      is    of    such    nature    and
    potential    persuasive       effect      that       the    lack    of    it   due   to
    ineffective assistance undermines confidence in the fairness of
    the 1998 sentencing phase.”             Id. at 29.           Accordingly, the MAR
    court ruled that “[t]he MAR for a new sentencing hearing should
    be granted.”     Id.
    C.
    The State appealed the MAR Order to the Supreme Court of
    North Carolina.         By its decision of February 4, 2005, the state
    supreme court reversed the MAR court and reinstated Frogge’s
    death sentence.         See State v. Frogge, 
    607 S.E.2d 627
     (N.C. 2005)
    (the “State Decision”).           In so doing, the state supreme court
    recognized      that,    in   reviewing        the    MAR    Order,      the   relevant
    17
    questions were “whether the findings of fact are supported by
    evidence, whether the findings of fact support the conclusions
    of law, and whether the conclusions of law support the order
    entered by the [MAR] court.”          Id. at 634 (internal quotation
    marks omitted).    The state supreme court ultimately reversed the
    MAR court by finding fault with its analysis on the performance
    prong of the Strickland test, without reaching the prejudice
    prong.   Id. at 637.
    The   state   supreme   court    began    its   State   Decision   by
    reviewing the relevant factual and procedural history — covering
    the 1995 trial, the 1998 trial, and the MAR court proceeding.
    See Frogge, 607 S.E.2d at 628-33.             In substantial part, the
    state supreme court focused on matters beyond those discussed in
    the MAR Order.     For instance, essential to its State Decision,
    the state supreme court observed the following with respect to
    the pretrial investigatory efforts made by Frogge’s lawyers:
    [W]hile   preparing    for  defendant’s   second   trial,
    defense counsel provided Dr. Tyson with their entire
    discovery file; advised him as to defendant’s head
    injury,   the   resulting   perceived   changes  in   his
    personality, and the significance that family members
    placed on the injury; and made available to him
    defendant’s medical records. The material supplied to
    Dr. Tyson also included the testimony given at [the
    1995 trial] by Drs. Hoover and Kramer, and attorney
    Freedman believed that Dr. Tyson testified in [the
    1998 trial] that he had reviewed this testimony. Even
    possessing    this   information,   Dr.   Tyson   advised
    18
    attorney Ferguson     that   he   would   not   change     his
    diagnosis.
    In deciding prior to [the 1998 trial] whether to
    pursue   evidence   of   defendant’s   head   injury   as
    potentially   mitigating   evidence,    defense   counsel
    testified that they depended on Dr. Tyson’s expertise.
    Although attorney Ferguson acknowledged during the MAR
    hearing that he knew Dr. Tyson was not a neurologist
    or neuropsychologist and could not render neurological
    opinions, he added, “I think he had the ability to
    tell me that if it was significant where we should go
    next.    And he didn’t indicate that there was any
    significance, that [the head injury] was significant.
    So, I relied on what he said.”      When cross-examined,
    attorney Ferguson reaffirmed that he depended on Dr.
    Tyson’s informed opinion:
    Q. Now, I think you made it clear this
    morning, I just want to be sure, that you
    advised Doctor Tyson, or discussed with him
    more than once, the concerns of the family
    members about the personality changes they
    observed in the Defendant after the beating
    in 1990, is that correct?
    A.   Yes.
    Q.   And you asked him whether that was
    significant, in his opinion?
    A.   Yes.
    Q.   And he was firm on saying no, it
    would not change my diagnosis, was he not?
    A.   Yes.
    Q.   And you felt entitled to rely on
    the superior knowledge of an expert?
    A.   That’s correct.
    Attorney Ferguson reemphasized the point          during    a
    similar exchange later in the hearing:
    19
    Q.   Doctor Tyson did not specifically
    focus on the head injury, did he?
    A.   No, and as I’ve said earlier, he
    was told about it, provided the information,
    and did not deem it significant.
    Q.   Yes, sir.   And yet he made that
    decision without [the] benefit of any type
    of    neurological  or    neuropsychological
    testing?
    A. Yes, sir, I assume that he had the
    — at least the qualifications to make that
    decision, whether neurological testing might
    be needed; and he was much more qualified to
    make that decision than I was, and [w]e
    relied on his opinion.
    All this testimony indicates that defense counsel
    relied both on Dr. Tyson’s diagnosis of defendant’s
    condition and on his informed opinion that additional
    testing or experts were not needed.
    Id. at 632-33 (some alterations in original).
    Turning to its analysis of Frogge’s ineffective assistance
    claim, and invoking the Supreme Court’s decisions in Strickland
    and Wiggins, the state supreme court emphasized the proposition
    that a court must “review counsel’s[] decisions in light of the
    information    available   to   them    at   the   time   and    not    with   the
    benefit   of   hindsight.”      Frogge,      607   S.E.2d   at    634    (citing
    Wiggins, 
    539 U.S. at 523
    ; Strickland, 
    466 U.S. at 689
    ).                        The
    state supreme court then observed
    that   counsel    had  numerous         pertinent   factors  to
    consider    as    they   decided         their    strategy  for
    20
    defendant’s second sentencing proceeding.        First,
    defendant had committed a murder prior to suffering
    the head injury.     Second, graphic lay evidence of
    defendant’s 1990 head injury and its sequelae had been
    presented through his sisters and others close to him
    at the [1995] trial and would be presented again.
    Third, at the [1995] sentencing proceeding, Dr. Hoover
    had presented an expert psychological opinion that
    took into account both defendant’s head injury and his
    background.   The sentencing jury, having heard that
    evidence, returned a capital verdict.      Fourth, Dr.
    Kramer criticized Dr. Hoover for failing to conduct
    additional psychological testing that might determine
    whether defendant’s head injury was a contributing
    factor to the murders. However, Dr. Kramer went on to
    state that, in his opinion, the 1990 injury was of
    mild to moderate severity and defendant’s prognosis on
    discharge was good, implying that the additional
    psychological testing was unlikely to bear fruit. Dr.
    Kramer did not indicate that in preparation for trial
    defendant should have been tested for organic brain
    damage or neurological harm resulting from the 1990
    head injury. Fifth, defense counsel were dissatisfied
    with Dr. Hoover’s performance in [the 1995 trial] and
    replaced him with Dr. Tyson, who had been an effective
    witness in the past for attorney Freedman.         When
    supplied with defendant’s medical and social histories
    and with transcripts of the proceedings in [the 1995
    trial], Dr. Tyson stood by his opinion that defendant
    suffered from a personality disorder and, at the time
    of the murders, was acting on impulse with limited
    ability to reason.
    Id. at 634-35.    After outlining these factors, the state supreme
    court   recognized     that     “we    must    now    decide     whether,    under
    Wiggins,    the   trial     court     properly       concluded    that      defense
    counsel’s   decision      not   to    pursue   evidence    of     organic    brain
    damage through neurological testing was objectively unreasonable
    21
    and undermined confidence in the verdict.”     Id. at 635.     The
    state supreme court engaged in this assessment as follows:
    The test in Wiggins is whether a strategic
    decision was made after sufficient investigation, not
    whether that decision was later proven to be correct.
    Unlike counsel in Wiggins, who abandoned the idea of
    pursuing a defense based on mitigation after reviewing
    only   a   psychological  report,   [social   services]
    records, and a presentence investigation report,
    defense counsel here interviewed defendant and his
    siblings and obtained defendant’s school records,
    hospital records, correctional systems records, and
    psychological reports.      Thus, defendant’s counsel
    cannot be said to have “acquired only rudimentary
    knowledge of [defendant’s] history from a narrow set
    of sources.”   Wiggins, 
    539 U.S. at 524
    .    Defendant’s
    attorneys also had the benefit of watching the first
    trial unfold and seeing what worked and what did not.
    Specifically, a defense which took defendant’s head
    injury into account had been unsuccessful.      By the
    time defense counsel were preparing for defendant’s
    second trial, they had consulted two mental health
    experts, Drs. Hoover and Tyson, both of whom had full
    access to defendant, his family, and the pertinent
    medical records of defendant’s head injury, and
    neither of whom recommended neurological testing.
    In addition, defense counsel testified that they
    depended on Dr. Tyson to advise them whether or not
    additional testing of defendant was needed but that,
    after receiving all the information from the first
    trial, Dr. Tyson stuck by his original diagnosis of
    defendant.    This testimony indicates that defense
    counsel were prepared to seek such testing if they had
    adequate reason to believe it was necessary or would
    be useful.
    Frogge, 607 S.E.2d at 635.    Finally, after surveying decisions
    in what it deemed to be analogous cases, the state supreme court
    concluded as follows:
    22
    [W]here the record demonstrates (1) defense counsel
    fully investigated defendant’s social and medical
    history and provided that information to Drs. Hoover
    and Tyson, (2) neither expert indicated to counsel a
    necessity for neurological testing, and (3) counsel
    relied on their experts as they made the difficult but
    necessary choices as to which theory of defense to
    pursue, we are unwilling to find that the decisions of
    defendant’s    attorneys     constituted    ineffective
    assistance of counsel or represented inattention to
    other possible defenses.      Accordingly, we conclude
    that defense counsel did not prematurely abandon a
    defense based on organic brain damage and that their
    election to pursue a defense predicated on other
    grounds   constituted   a   “‘reasonable   professional
    judgment[].’”    Wiggins, 
    539 U.S. at 533
     (quoting
    Strickland, 
    466 U.S. at 691
    ).
    Frogge,       607     S.E.2d    at   637   (second    alteration     in    original).
    Thus, without reaching the prejudice prong of the Strickland
    test,    the        state    supreme    court    reversed   the     MAR    court    and
    reinstated Frogge’s death sentence.                Id. at 637-38.
    D.
    In     June    2005,    Frogge     filed   his    federal    habeas    corpus
    petition in the Middle District of North Carolina, asserting,
    inter        alia,    his    ineffective     assistance     claim,    by    which    he
    challenges           his    death    sentence.       On   March     28,    2006,    the
    magistrate judge recommended that Frogge’s petition be denied.
    See Frogge v. Polk, No. 1:05-cv-00502 (M.D.N.C. Mar. 28, 2006)
    23
    (the       “Recommendation”).4           With    respect   to        the   ineffective
    assistance claim, the magistrate judge concluded that
    [a] review of the record supports the ruling of the
    North Carolina Supreme Court; trial counsel’s decision
    not to pursue evidence of organic brain damage through
    neurological testing was not contrary to or an
    unreasonable application of Strickland or its progeny.
    There is no requirement to ‘shop around’ for a more
    favorable expert opinion and the hindsight of a later
    obtained diagnosis does not render representation
    ineffective.   Even assuming arguendo that this court
    in its independent judgment believed that trial
    counsel   were   in  error  for   failing  to   pursue
    neurological testing, the deferential standard of
    review under the [1996 Antiterrorism and Effective
    Death Penalty Act] precludes relief.    As noted, the
    North Carolina Supreme Court’s decision is neither
    unreasonable nor substantially different from relevant
    United States Supreme Court precedent.       [Frogge’s
    ineffective assistance claim] should, therefore, be
    denied.
    Recommendation 19-20 (internal citations omitted).                         On June 5,
    2006, the district court summarily adopted the Recommendation in
    a two-page Order, thus rejecting Frogge’s ineffective assistance
    claim       and    denying   his   federal      habeas   corpus      petition.      See
    Frogge v. Polk, No. 1:05-cv-00502 (M.D.N.C. June 5, 2006).5                         The
    district court also denied Frogge a certificate of appealability
    (“COA”).6         On February 22, 2008, however, we granted Frogge a COA
    4
    The         magistrate   judge’s    Recommendation        is    found   at   J.A.
    2325-49.
    5
    The district court’s Order is found at J.A. 2359-60.
    6
    By its Order, the district court sua sponte denied Frogge a
    24
    on his ineffective assistance claim.     We possess jurisdiction
    over Frogge’s appeal pursuant to 
    28 U.S.C. §§ 1291
     and 2253.
    COA.    Frogge thereafter filed a motion to alter or amend
    judgment.   On July 19, 2006, the magistrate judge recommended
    that the motion be denied with respect to Frogge’s request
    therein to revisit the merits of his ineffective assistance
    claim, but granted with respect to his request to delete the
    denial of the COA and replace it with language recognizing
    Frogge’s right to seek a COA within thirty days. On October 24,
    2007, the district court adopted the magistrate judge’s
    recommendations.    Frogge then filed an application in the
    district court for a COA, which was rejected by the district
    court on December 22, 2007.
    25
    II.
    We   review   de    novo   a   district    court’s   denial     of   federal
    habeas corpus relief on the basis of a state court record.                     See
    Tucker v. Ozmint, 
    350 F.3d 433
    , 438 (4th Cir. 2003).                       Because
    the Supreme Court of North Carolina adjudicated Frogge’s habeas
    corpus claim on the merits, the State Decision is entitled to
    deference pursuant to the 1996 Antiterrorism and Effective Death
    Penalty Act (“AEDPA”).           See 
    28 U.S.C. § 2254
    (d).           Under AEDPA,
    we may award relief only if (1) the state court adjudication of
    the   issue    on   its   merits     “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)   the     adjudication   “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.”        
    Id.
          State     court    factual    determinations      are
    presumed to be correct and may be rebutted only by clear and
    convincing evidence.       
    Id.
     § 2254(e)(1).
    III.
    Frogge contends that we should vacate his death sentence
    under 
    28 U.S.C. § 2254
    (d), because the State Decision “involved
    an unreasonable application of” Supreme Court precedent — in
    26
    that the state supreme court “identifie[d] the correct governing
    legal     principle    from    [the    Supreme]   Court’s     decisions     but
    unreasonably applie[d] that principle to the facts of” his case,
    Williams v. Taylor, 
    529 U.S. 362
    , 413 (2000) — and also because
    the State Decision “was based on an unreasonable determination
    of the facts in light of the evidence presented in the” MAR
    court proceeding.       As discussed above, the state supreme court
    reversed the MAR court by finding fault with its analysis on the
    performance prong of the Strickland test, without reaching the
    prejudice prong.       See Strickland v. Washington, 
    466 U.S. 668
    ,
    687   (1984)    (recognizing    that   an   ineffective    assistance     claim
    requires showing (1) “that counsel’s performance was deficient,”
    and     (2)    “that   the    deficient     performance     prejudiced      the
    defense”).      In so doing, the state supreme court largely relied
    on the Strickland analysis in Wiggins v. Smith, 
    539 U.S. 510
    (2003).       See State v. Frogge, 
    607 S.E.2d 627
    , 635 (N.C. 2005)
    (observing that “[t]he test in Wiggins is whether a strategic
    decision was made after sufficient investigation, not whether
    that decision was later proven to be correct”).
    The state supreme court concluded, in short, that trial
    counsel’s decision to abandon further pursuit of evidence of
    Frogge’s permanent organic brain damage was not the result of an
    insufficient      investigation.        Rather,   the     court   ruled    that
    27
    counsel      exercised       reasonable       professional     judgment          by    “fully
    investigat[ing]            defendant’s        social     and   medical      history”        —
    alerting counsel to the 1990 head injury — “and provid[ing] that
    information” to defense experts Dr. Hoover (for the 1995 trial)
    and Dr. Tyson (for the 1998 trial).                      Frogge, 607 S.E.2d at 637.
    When    “neither          expert   indicated        to   counsel     a    necessity       for
    neurological testing,” it was then reasonable for “counsel [to
    rely] on their experts as they made the difficult but necessary
    choices as to which theory of defense to pursue.”                          Id.        Indeed,
    as the supreme court recognized, counsel did not know at the
    time they were preparing for the 1998 trial whether — as Dr.
    Hoover had testified at the 1995 trial without having performed
    neurological         tests     —     Frogge    truly      suffered       from    permanent
    organic brain damage which contributed to the murders of his
    father       and    stepmother.          Dr.       Hoover’s    testimony         had     been
    discredited by the State’s expert, Dr. Kramer, who himself had
    opined that there was no link between the head injury and the
    murders.          Thereafter, counsel provided information to Dr. Tyson
    about       the    head     injury,     and    Tyson      convinced      them     that     no
    additional testing or experts were needed.
    In    seeking       federal    habeas       corpus   relief,      Frogge       asserts
    that    his       trial    counsel    provided       constitutionally           ineffective
    assistance at the 1998 trial by:                    relying on Dr. Tyson, who was
    28
    neither a medical doctor (much less a neurologist) nor qualified
    to perform neurological or neuropsychological tests; allowing a
    long delay between the grant of the retrial (on March 7, 1997)
    and Dr. Tyson’s two examinations of Frogge (on February 16 and
    March 9, 1998); receiving Dr. Tyson’s report on March 12, 1998,
    just two days before the new trial began (on March 14, 1998) and
    two weeks before Tyson testified (on March 26, 1998); advising
    Dr. Tyson of the head injury only after February 16, 1998;7 and
    failing to actually provide Dr. Tyson with — rather than merely
    offering        to     make    available    to   him   —   pertinent     documents,
    including        head    injury-related      medical   records     and   statements
    from       Frogge’s     family    members.       According    to    Frogge,     “the
    circumstances surrounding Dr. Tyson’s selection and evaluation
    lead       to   only    one    reasonable    conclusion:      defense     counsel’s
    failure to discover this evidence [of permanent organic brain
    damage] was the result of inattention and neglect, not ‘sound,
    evidence-based judgment.’”             Br. of Appellant 31 (quoting Meyer
    v. Branker, 
    506 F.3d 358
    , 371 (4th Cir. 2007) (recognizing that
    “the       touchstone     of    effective    representation      must    be   sound,
    7
    Lead counsel Ferguson testified at the MAR hearing that he
    “remember[ed] calling Doctor Tyson, who had already conducted
    some . . . testing and done an evaluation, or was in the process
    of doing an evaluation, and telling Doctor Tyson that this [head
    injury] might be significant, and asking him did I need to do
    anything. How did that affect his evaluation?” J.A. 1875.
    29
    evidence-based judgment, rather than a set of mandates counsel
    must programmatically follow without deviation”)).
    Unfortunately for Frogge, although we might be inclined to
    rule favorably on his ineffective assistance claim if we were
    assessing it under a less deferential standard of review, we
    cannot say that the State Decision “involved an unreasonable
    application of” Supreme Court precedent, as required by AEDPA to
    grant federal habeas corpus relief.               
    28 U.S.C. § 2254
    (d); see
    also Williams, 
    529 U.S. at 409
     (“Stated simply, a federal habeas
    court making the ‘unreasonable application’ inquiry should ask
    whether    the    state     court’s   application     of   clearly    established
    federal    law     was     objectively     unreasonable.”).       The   relevant
    precedent certainly includes Strickland and Wiggins, in which
    the Supreme Court instructed:
    “[S]trategic choices made after thorough investigation
    of law and facts relevant to plausible options are
    virtually unchallengeable; and strategic choices made
    after less than complete investigation are reasonable
    precisely to the extent that reasonable professional
    judgments support the limitations on investigation.
    In other words, counsel has a duty to make reasonable
    investigations or to make a reasonable decision that
    makes particular investigations unnecessary.     In any
    ineffectiveness case, a particular decision not to
    investigate    must    be   directly    assessed    for
    reasonableness in all the circumstances, applying a
    heavy measure of deference to counsel’s judgments.”
    Wiggins, 
    539 U.S. at 521-22
     (quoting Strickland, 
    466 U.S. at 690-91
    ).         The     Wiggins   Court    further   explained      that,   “[i]n
    30
    assessing the reasonableness of an attorney’s investigation, . .
    . a court must consider not only the quantum of evidence already
    known to counsel, but also whether the known evidence would lead
    a reasonable attorney to investigate further.”                         Id. at 527.
    In the circumstances presented here, it was not objectively
    unreasonable       for       the     state     supreme       court    to     determine,       in
    reliance on Strickland and Wiggins, that Frogge’s trial counsel
    made a valid strategic choice not to further pursue evidence of
    permanent       organic       brain    damage       once    they     informed       Dr.    Tyson
    about     the    1990        head    injury     and    he     declined        to    recommend
    additional testing or experts.                      Cf. Wilson v. Greene, 
    155 F.3d 396
    ,    403     (4th    Cir.    1998)    (observing          that,    where    counsel       had
    received psychologist’s report opining that defendant was not
    mentally ill at time of offense, “counsel was not required to
    second-guess           the     contents        of     this     report,”        but        rather
    “understandably decided not to spend valuable time pursuing what
    appeared to be an unfruitful line of investigation” (internal
    quotation marks omitted)).                We conclude that the State Decision
    was    not    objectively           unreasonable      despite        the    known    lack     of
    qualifications on the part of Dr. Tyson to perform neurological
    or neuropsychological tests; that is, it was not objectively
    unreasonable for the state supreme court to accept counsel’s MAR
    hearing       testimony        that     they     believed       Dr.        Tyson    at     least
    31
    possessed      the     ability     to      determine     whether       such     testing   was
    necessary and justifiably relied on his view in this regard.                               We
    also       conclude    that     the      State     Decision      was    not     objectively
    unreasonable         regardless       of    the    circumstances         of    Dr.     Tyson’s
    evaluation of Frogge and consultation with counsel — including
    the timing thereof — which Frogge has not sufficiently shown to
    have influenced Dr. Tyson’s expert opinion and advice.
    In addition to rejecting the proposition that the State
    Decision “involved an unreasonable application of” Supreme Court
    precedent, we also cannot say that the State Decision “was based
    on an unreasonable determination of the facts in light of the
    evidence      presented       in   the”     MAR    court   proceeding.            
    28 U.S.C. § 2254
    (d); see also Wiggins, 
    539 U.S. at 528
     (recognizing that a
    clear factual error “reflects ‘an unreasonable determination of
    the    facts’”        under    § 2254(d),         and    that,     in    the     particular
    circumstances before it, the state court’s “partial reliance on
    an     erroneous        factual         finding      further       highlight[ed]          the
    unreasonableness         of     the      state     court’s       decision”).           Frogge
    attacks       several         aspects       of     the     state        supreme        court’s
    characterization          of       the      facts,       including        the     following
    observations:
    •       “[D]efense counsel provided Dr. Tyson with their
    entire discovery file . . . and made available to
    32
    him defendant’s           medical    records,”     Frogge,      607
    S.E.2d at 632;
    •        “The material supplied to Dr. Tyson also included
    the testimony given at [the 1995 trial] by Drs.
    Hoover and Kramer, and attorney Freedman believed
    that Dr. Tyson testified in [the 1998 trial] that
    he had reviewed this testimony,” id.; and
    •        “By the time defense counsel were preparing for
    defendant’s second trial, they had consulted two
    mental health experts, Drs. Hoover and Tyson,
    both of whom had full access to defendant, his
    family, and the pertinent medical records of
    defendant’s head injury, and neither of whom
    recommended neurological testing,” id. at 635
    (emphasis added).
    According to Frogge, these observations reflect that the state
    supreme         court    based      its    State     Decision     on    the    erroneous
    propositions that counsel had actually provided Dr. Tyson with
    pertinent         documents,        including       head   injury-related        medical
    records and statements from Frogge’s family members, and that
    Dr. Tyson had reviewed all of the 1995 trial testimony of Drs.
    Hoover and Kramer.             Frogge asserts that, in fact, Dr. Tyson did
    not    receive        copies   of   the    medical    records     and   family    member
    statements, and his own testimony at the 1998 trial indicated
    that       he   did     not    fully      review    the    1995   expert      testimony.
    Although we can understand how one might interpret the somewhat
    ambiguous State Decision as Frogge has, a close reading reflects
    that the state supreme court merely observed (with support in
    the record) that counsel provided Dr. Tyson with an undefined
    33
    “discovery file” and the expert testimony from the 1995 trial;
    told him about the 1990 head injury, thereby providing him with
    the relevant information; and made available to him pertinent
    medical records and family member statements.                          The state supreme
    court further observed that counsel believed Dr. Tyson reviewed
    the    1995     expert   testimony,       and    that     counsel       decided    not     to
    pursue      the    permanent       organic       brain     damage       evidence        after
    informing Dr. Tyson of the head injury and being advised by him
    that   no      further   testing     or    experts       were    needed.        The     state
    supreme court did not aver that counsel actually provided Dr.
    Tyson with the medical records and family member statements, or
    that     Dr.    Tyson    fully      reviewed      the     1995     expert       testimony.
    Accordingly,       the   state      supreme      court     made    no     clear    factual
    errors.
    Finally, Frogge takes issue with the state supreme court’s
    suggestion        that   counsel’s        decision       to      forego       testing     for
    permanent organic brain damage was informed, at least in part,
    by the “failure” of the head injury defense in the 1995 trial.
    See,    e.g.,     Frogge,     607      S.E.2d    at     635     (observing       that,    in
    preparing       for   the   1998     trial,      counsel        “had    the    benefit     of
    watching the first trial unfold and seeing what worked and what
    did    not[,      including      the      unsuccessful]          defense       which     took
    defendant’s head injury into account”).                       Although we agree with
    34
    Frogge that the record does not support the proposition that
    counsel’s 1998 trial strategy was based on the failure of the
    1995 head injury defense, any contrary suggestion by the state
    supreme court is not ultimately necessary to its bottom-line
    conclusion that counsel reasonably relied on the advice of Dr.
    Tyson.
    IV.
    Pursuant to the foregoing, we must affirm the Order of the
    district   court   denying   Frogge’s   petition   for   federal   habeas
    corpus relief.
    AFFIRMED
    35
    GREGORY, Circuit Judge, dissenting:
    Because    “[d]eath        is       different[,]”      Gregg        v.    Georgia,         
    428 U.S. 153
    ,    188     (1976),           an   attorney’s         failure           to    present
    mitigating       evidence       in     a    capital        case    takes        on    heightened
    significance.           Strickland v. Washington, 
    466 U.S. 668
     (1984).
    While my colleagues provide a thorough recitation of the facts,
    they     fall    short      in       applying        the     Sixth       Amendment,             which
    guarantees every defendant effective assistance of counsel.                                     
    Id.
    Strickland and its progeny establish that trial counsel is
    constitutionally obligated to provide effective assistance and
    to comport with prevailing professional norms.                                  
    Id.
             Counsel
    must also investigate and introduce mitigating evidence unless
    he or she could “reasonably surmise” that evidence “would be of
    little help.”           
    Id. at 699
    ; Wiggins v. Smith, 
    539 U.S. at 525
    (holding       that     counsel’s          failure     to     investigate             mitigation
    evidence was ineffective but noting that further investigation
    is excusable where counsel has evidence suggesting it would be
    fruitless).       In capital cases where a defendant does not claim
    actual    innocence       and     the       jury     only    has     one    choice          –    life
    imprisonment       or    death,        counsel’s       sole       role     is        to    advocate
    effectively for a life sentence.
    Here,     defense         counsel        (“David       Freedman”              and    “Danny
    Ferguson,”       collectively          “defense       counsel”)       knew       that       before
    36
    murdering his father, Robert, and step-mother, Audrey, Frogge
    suffered a subdural hematoma and a subarachnoid hemorrhage to
    his brain, significantly altering his personality and ability to
    function.         Specifically,       Frogge      had    speech     problems,       memory
    problems, and exhibited personality changes.                         He became more
    fearful, anxious, paranoid, easily agitated, and explosive.                               In
    Frogge’s    first       trial      (“Frogge      I”),    defense     counsel       secured
    Dr. Hoover,       a    neuropsychologist,          to    testify     that    the     brain
    injury induced Frogge’s violent actions.                    But in Frogge’s second
    trial (“Frogge II”) defense counsel did not introduce the brain
    injury or seek neurological testing from an expert qualified to
    evaluate the extent to which that injury affected Frogge.                                 The
    Superior    Court       of   Forsyth      County’s       (“MAR    Court”)    held        that
    defense counsel’s failure to conduct neurological testing and
    introduce Frogge’s brain injury was ineffective assistance of
    counsel.         The   North    Carolina       Supreme    Court    reversed        the    MAR
    Court and found that defense counsel’s failure to do so was a
    sound and strategic trial tactic.                     When “directly assessed for
    reasonableness         in    all    the    circumstances,”         this     holding       is
    untenable.        Wiggins, 
    539 U.S. at 533
     (quoting Strickland, 
    466 U.S. at 690-91
    ).
    In     my    view,      one    cannot,      on     this     record,    “reasonably
    surmise”    that       the   evidence     of     Frogge’s      organic     brain    damage
    37
    would have been of “little help.”                      Hence, my principal concern
    is not whether counsel should have presented a mitigation case,
    but   rather       whether     counsel’s            failure       to     seek    neurological
    testing from an expert qualified to evaluate conditions known to
    exist was itself reasonable.               Wiggins, 
    539 U.S. at 523
    .                     As the
    majority, remarkably answers this question affirmatively, I must
    dissent.
    I.
    The     Supreme        Court,       in        Wiggins,           held     that     it    is
    constitutionally ineffective for counsel not to investigate and
    introduce      mitigating          evidence           of      a        defendant’s       social
    background.         
    539 U.S. at 525
    .         Although         aware     of    Wiggins’s
    unfortunate childhood, counsel in Wiggins did not investigate
    his   family       and    social   history,          which        revealed       that    he   was
    abused, and had limited intellectual capacities and a childlike
    emotional      state.        
    Id. at 516
    .            The    post-conviction          court
    concluded that the decision not to investigate was strategic
    and, thus, not ineffective.               
    Id. at 519
    ; see also Strickland, at
    690-91   (“Strategic         choices      made       after       thorough       investigations
    are virtually unchallengeable; and strategic choices made after
    less than complete investigation are reasonable precisely to the
    extent      that    reasonable          professional             judgments       support      the
    38
    limitations on investigation”).                  The Supreme Court resoundingly
    rejected    the    post-conviction        court’s        holding,    concluding        that
    the   investigation       was    inadequate        and    a     reasonable       competent
    attorney       would    have    realized    that     pursing        those      leads    was
    necessary to making an informed choice among possible defenses.
    
    Id. at 526, 534
    .
    Similarly in Rompilla v. Beard, 
    545 U.S. 374
     (2005), the
    Supreme Court found Rompilla’s counsel ineffective for failing
    to    review    Rompilla’s      court    file      and    to     present       significant
    mitigating evidence about Rompilla’s childhood, mental capacity,
    alcoholism,      and    prior   conviction.          
    Id.
             Noting    that    counsel
    unreasonably relied on family members and medical experts to
    tell them what records might be useful in Rompilla’s mitigation
    case,    the    Court    stated:        “[t]here     is    no     need    to    say    more,
    however, for a further point is clear and dispositive:                                  the
    lawyers were deficient in failing to examine the court file on
    Rompilla’s prior conviction.”             
    Id. at 383
    .
    II.
    Here,    the    majority    upholds        the     State     Supreme      Court’s
    objectively unreasonable application of Strickland’s principles.
    The State Supreme Court reversed the MAR Court on the basis
    that:    (1)    defense    counsel      conducted         more    than    a    sufficient
    39
    investigation; and (2) it was a sound strategic defense to rely
    on    expert    opinion     since         the    expert,    Dr.    Tyson,     had    Frogge’s
    medical records and Frogge I transcripts.                          The record does not
    support either holding.
    To      their     credit,          defense       counsel     in      Frogge      I     did
    investigate and present a persuasive mitigation case.                                   But see
    Wiggins, 
    539 U.S. at 524
     (noting that counsel abandoned their
    investigation of Wiggins’s background after having acquired only
    rudimentary       knowledge          of    his    history    from       a   narrow      set    of
    sources.).       However, for Frogge II, where the only salient issue
    was    whether         Frogge        would       receive    a     death      sentence         for
    Audrey Frogge’s murder, defense counsel clearly demonstrated a
    lack     of    attention        to    investigating         and    presenting        critical
    mitigation evidence in a capital case.
    In      Frogge     I,         State       expert,     Dr.        Kramer,       undercut
    Dr. Hoover’s opinion primarily on the basis that Dr. Hoover did
    not conduct neurological testing in support of his opinion that
    Frogge’s       brain    injury       was       permanent    and    affected       his    mental
    capabilities.           Because,          in    their   view,     Dr.    Hoover      testified
    poorly, defense counsel sought out a new expert for the second
    trial.        Remarkably, defense counsel hired Dr. Tyson, a clinical
    psychologist,            not          specialized           in          neuroscience           or
    neuropsychology, and who by his own admission could not perform
    40
    the relevant neurological tests.                   (J.A. 1109.)         Notwithstanding
    knowledge of Frogge’s brain injury and the need for neurological
    testing, defense counsel waited until the eve of Frogge’s second
    trial     to     ask       Dr.    Tyson,     whether        Frogge’s      brain       injury
    “affect[ed]      his       evaluations.”          (J.A.    1875.)       Even    though      at
    least one juror found that Dr. Hoover’s testimony in the first
    trial     supported        the     statutory      mitigating        factor      of    mental
    illness, defense counsel accepted Dr. Tyson’s opinion that the
    brain injury was irrelevant.                   Having not provided any family
    statements      or     Frogge’s     medical       records    to   Dr.     Tyson,      it   was
    unreasonable         for     defense    counsel       to     rely    on    or,       in    the
    majority’s       words,      be    “convinced”       by     Dr.   Tyson’s       uninformed
    opinion.        (Maj. Op. at 28.)             Moreover, given that Dr. Kramer
    eviscerated Dr. Hoover’s opinion based on his failure to conduct
    neurological testing, it is unfathomable that defense counsel
    would not obtain such testing to shore up this glaring weakness.
    What is more, there is no evidence that defense counsel’s
    failure    to    conduct         neurological      testing    and    present         Frogge’s
    brain injury was a “strategic” decision.                          Defense counsel did
    not   testify     or       even    suggest   that     they    thought      it    a    better
    strategy to not present the brain injury evidence.                                   The ABA
    Guidelines for Appointment and Performance of Defense Counsel in
    Death Penalty Cases notes that mental health mitigation evidence
    41
    is    extremely    important       to    capital    sentencing          juries.      See
    Commentary to ABA Guideline 4.1 (stating that “mental health
    experts    are    essential       to    defending       capital    cases.”).         The
    “[Supreme Court] [has] long [] referred [to these ABA standards]
    as ‘guides to determining what is reasonable.’” Wiggins, 
    539 U.S. at 524
    .
    In Frogge’s case, the most persuasive mitigating evidence
    regarding his mental health was kept from the jury.                       The mandate
    of Strickland and the Constitution is not simply to investigate,
    but rather to provide “effective” assistance.                     Defense counsel’s
    actions in light of the circumstances were “rudimentary” and
    certainly illogical and unreasonable.                     While I do not suggest
    that defense counsel must scour the earth “shopping” for the
    most preeminent experts, I do believe that justice requires, at
    a    minimum,    for    counsel   to     secure    an    expert    in    the   relevant
    field.     This is particularly so, for a counsel who knows, as
    here, the specific testing required to support its mental health
    defense.
    Without     question,       defense        counsel’s       initial         inquiry
    revealed that neurological testing was necessary.                       The anecdotal
    evidence of Frogge’s post-brain injury behavior, Dr. Hoover’s
    assessment,      and    the   testimony      of    Dr.    Kramer    taken      together
    illustrate       that   defense        counsel    could    not    have     “reasonably
    42
    surmised” that neurological testing, in spite of Dr. Tyson’s
    opinion, would have been fruitless.                  Indeed, it is neurological
    testing alone that revealed that Frogge suffers from permanent
    organic brain damage.           Thus, defense counsel’s decision not to
    conduct     neurological        testing     or      even      present      evidence      of
    Frogge’s brain injury was unreasonable in light of Strickland
    and prevailing professional norms.
    III.
    Additionally,        the    record      further       underscores        the    State
    Supreme   Court’s      unreasonable         denial      of    relief.         The    State
    Supreme   Court      held    that    it     was   objectively           reasonable     for
    defense   counsel      to    rely    on     Dr.   Tyson’s       assessment       because
    Dr. Tyson    had     Frogge’s       medical       and      social       histories,      and
    transcripts from Frogge I.            (J.A. 2198.)            How the State Supreme
    Court   reaches    this     conclusion      is    befuddling.           The   MAR    court
    specifically found that:
    Dr. Tyson did not perform or request any neurological
    or neuropsychological tests on [Frogge], and none were
    done. His diagnosis was not supported by reliance on
    any such tests, review of medical records concerning
    the 1990 head injury or descriptions by family and
    friends of changes in the defendant’s behavior after
    that injury.
    (J.A. 2135, emphasis added.)                In light of the Anti-Terrorism
    Effective    Death    Penalty       Act’s    mandate         that   a    state      court’s
    43
    findings of fact are entitled to a “presumption of correctness,”
    the State Supreme Court’s factual error is a dispositive display
    of an “erroneous application of facts to the law.” 
    28 U.S.C. § 2254
    (e)(1).        First,     Ferguson      testified     that      he   did   not
    “recall”    or   “think”    that   he   provided      the   medical    records   or
    social history reports to Dr. Tyson.                 (J.A. 1909).      Second, in
    an affidavit provided to the MAR court, Dr. Tyson attested that
    he was not provided with, nor did he review, any medical records
    concerning Frogge’s brain injury.             (J.A. 1109.)        Third, Freedman
    also submitted an affidavit attesting that he did not provide
    Dr. Tyson with Frogge’s medical records, which detailed Frogge’s
    brain injury.       (J.A. 2028).        Finally, the State Supreme Court
    did   not    find   any    error   in   the    MAR     court’s     clear    factual
    findings.
    According     to    the   majority,      the    State    Supreme      Court’s
    factual     error   is    inconsequential      because      the    court    “merely
    observed” that Dr. Tyson reviewed the medical records.                     However,
    the majority, itself, recognizes that the State Supreme Court
    thrice stated this factual error.1             Most tellingly, it was only
    1
    The State Supreme Court stated the following:  “[D]efense
    counsel   provided  Dr.  Tyson   with  their  entire  discovery
    file . . . and made available to him defendant’s medical
    records;” “The material supplied to Dr. Tyson also included the
    testimony given at [the 1995 trial] by Drs. Hoover and Kramer,
    and attorney Freedman believed that Dr. Tyson testified in [the
    1998 trial] that he had reviewed this testimony;” “By the time
    44
    in the context of this erroneous factual predicate - Dr. Tyson
    being given Frogge’s medical and social histories - that the
    Court     decided     whether       defense       counsel’s        failure      to    pursue
    neurological testing was objectively reasonable and prejudicial
    to Frogge.       (J.A. 2198.)          The State Supreme Court’s rationale
    demonstrates        that    the     Court’s       holding     was     tethered         to   a
    significant factual error.                The majority’s observations to the
    contrary are incredulous.
    Put    simply,        the    State    Supreme      Court’s       assumption         that
    Dr. Tyson    offered        an    opinion        informed     by     Frogge’s        medical
    records    was    clearly        erroneous    and    reflects        “an       unreasonable
    determination       of     the    facts     in    the   light        of       the    evidence
    presented    in      the    State     court       proceeding.”            §     2254(d)(2).
    Moreover, the State Supreme Court’s conclusion that the scope of
    defense counsel’s investigation of Frogge’s mental health meets
    the legal standards of Strickland is an objectively unreasonable
    application of Supreme Court precedent.
    defense counsel were preparing for defendant’s second trial,
    they had consulted two mental health experts, Drs. Hoover and
    Tyson, both of whom had full access to defendant, his family,
    and the pertinent medical records of defendant’s head injury,
    and neither of whom recommended neurological testing. State v.
    Frogge, 
    607 S.E.2d 632
    , 635.
    45
    IV.
    Unlike      the    majority,       I    am        also     certain      that       defense
    counsel’s “ineffective assistance” prejudiced Frogge within the
    meaning of Strickland.               Under Strickland, Frogge must show that
    “but for counsel’s unprofessional errors, the [sentence] would
    have been different.”               Bowie v. Branker, 
    512 F.3d 112
    , 120 (4th
    Cir.    2008).       In     determining        prejudice,          we   must    “reweigh      the
    evidence      in     aggravation          against         the     totality      of     available
    mitigating evidence.”             Wiggins, 
    123 S.Ct. at 2542
    .
    Because the State Supreme Court reversed the MAR Court on
    the Strickland performance prong, it did not assess Frogge’s
    ineffective assistance claim for prejudice.                             The State, however,
    offered substantial evidence of aggravating circumstances.                                     For
    example,      the    State       emphasized     that        Audrey      was    bedridden      and
    Frogge stabbed her over eleven times.                           Due to her condition, she
    was    also    forced       to   watch     Frogge         stab    his    father       to   death.
    Frogge also testified that Audrey had done nothing to provoke
    his rage.
    Mental health evidence was the crux of Frogge’s mitigation
    case.         How    else    to     explain         why     the     same      young    man     who
    thoughtfully        came     home    to    make      his    bed-ridden         step-mother      a
    grilled cheese sandwich and tomato soup would, mere hours later,
    beat her to death.               Thus, it was paramount for defense counsel
    46
    to   offer     an    explanation          as     to    why    Frogge       went    into       an
    uncontrollable rage and murdered Audrey.                        Dr. Tyson testified
    that Frogge likely suffered from personality disorder and had
    limited      functioning         skills        aggravated     by     substance       abuse.
    Unlike Frogge I, no evidence of Frogge’s brain injury - let
    alone organic brain damage - was presented to the jury, despite
    defense    counsel’s       belief       that      the    injury       was    significant.
    “Under North Carolina law, . . . the prejudice inquiry in this
    case distills to whether [Frogge] had shown that there is a
    reasonable        probability       that,        but    for     counsel’s         deficient
    performance,        at   least    one     jury    member      would    have       found   the
    mitigating circumstances outweigh the aggravating circumstances
    and recommended life imprisonment.”                     Bowie v. Branker, 
    512 F.3d at 120
    .2
    The answer to this inquiry is obvious.                         When presented with
    evidence of Frogge’s brain injury at least one juror in Frogge I
    found that the crime was committed under the influence of mental
    or   emotional       disturbance,         thereby       depriving      Frogge       of    the
    capacity     to     appreciate     the     criminality         of    his    conduct       -    a
    2
    Because the State Supreme Court did not reach Strickland’s
    prejudice prong, we review the question of prejudice de novo.
    See Dugas v. Coplan, 
    428 F.3d 317
    , 327 (1st Cir. 2005) (citing
    Ellsworth v. Warden, 
    333 F.3d 1
    , 3-4 (1st Cir. 2003) (en banc)
    (“Appellate review of the district court’s denial of habeas
    relief is de novo, but we accord deference to the state court as
    to issues it actually decided.”)).
    47
    statutory    mitigating     factor     under   North    Carolina       law.      The
    absence of such evidence from the guilt and penalty phase of
    Frogge’s    second     trial   undoubtedly     prejudiced       him.      But    for
    defense    counsel’s    deficient      performance,     the    jury    would    have
    known that Frogge suffers from permanent organic brain damage -
    a diagnosis the State does not rebut – which “under periods of
    extreme emotional distress would lead him to act impulsively and
    not appreciate the full consequences of his actions, impairing
    his judgment, reasoning and impulse control.”                 (J.A. 1706-07.)
    Given the powerful nature of this evidence, the outcome
    reached by the majority truly is alarming.                     Frogge’s organic
    brain damage coupled with the other mitigation evidences “might
    well have influenced” at least one juror’s ‘appraisal’ of his
    ‘culpability,’” as it did the experienced MAR judge - a rarity.
    Rompilla, 
    545 U.S. at
    393 (citing Wiggins, 
    539 U.S. at 538
    ).
    Quite     clearly,   defense     counsel’s       failure      to   even    present
    evidence    of   Frogge’s      brain    injury    and    obtain       neurological
    testing is ineffective assistance of counsel under Strickland.
    48