Kurt Smith v. Cookie Crews

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0249n.06
No. 14-5994
UNITED STATES COURTS OF APPEALS FILED
FOR THE SIXTH CIRCUIT May 23, 2018
DEBORAH S. HUNT, Clerk
KURT ROBERT SMITH, )
)
Petitioner-Appellant )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE EASTERN
)
DISTRICT OF KENTUCKY
COOKIE CREWS, Warden, )
)
OPINION
Respondent-Appellee. )
)
BEFORE: WHITE and STRANCH, Circuit Judges; MICHELSON, District Judge.
JANE B. STRANCH, Circuit Judge. Kurt Robert Smith, a Kentucky prisoner
represented by counsel, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2254.
A jury convicted Smith of the wanton murder of his infant son, and he was sentenced to life
imprisonment. His conviction and sentence were affirmed on direct appeal and collateral review,
and the district court denied his § 2254 petition, finding the state court’s determination that trial
counsel’s performance was not deficient to be a reasonable application of Strickland v.
Washington, 466 U.S. 668 (1984). We granted a certificate of appealability (COA) to Smith on
two ineffective assistance claims, one regarding counsel’s failure to investigate a mental health
defense and the other her failure to investigate other mitigating evidence.

The Honorable Laurie J. Michelson, United States District Judge for the Eastern District of Michigan,
sitting by designation.
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Despite reservations about the adequacy of Smith’s representation in his criminal trial,
we AFFIRM under the deferential standards of the Antiterrorism and Effective Death Penalty
Act (AEDPA).
I. BACKGROUND
On the evening of March 20, 2001, Smith, then seventeen years old, was taking care of
his six-week-old son, Blake, at his father and step-mother’s home. Smith v. Commonwealth, No.
2008-CA-001135-MR, 2009 WL 2901223, at *1 (Ky. Ct. App. Sept. 11, 2009). The baby, still
recovering from an operation for a digestive problem, was up most of the night vomiting and
crying. Id. At around 4:00 a.m. on March 21, Blake woke up crying. Id. Exhausted, Smith
admittedly “lost it.” Id. He shook his son back and forth and dropped him on the floor. Id. The
baby cried and then appeared to fall asleep. Id. Unaware that he had caused Blake serious
injury, Smith placed him back in his bassinet. Id. When Smith next checked on Blake, the baby
“had lost his color” and “his lips had turned purple and blue,” causing Smith to realize Blake was
severely injured. Id. Later that morning, Smith’s step-mother, after hearing an “abnormal” cry
from Blake, found Smith holding his son and called 911. Id. Blake was pronounced dead on
March 23, 2001. Medical evidence established that Blake had suffered fatal head injuries that
were consistent with blunt force trauma and shaken-baby syndrome. Id.
At trial, Smith admitted he caused Blake’s death. Id. The Commonwealth produced
evidence, however, that Smith had initially attempted to conceal his guilt, and the jury heard
testimony regarding previous questionable conduct by Smith towards Blake, including screaming
and that the baby sustained a bruised nose while in Smith’s care. Id. The jury convicted Smith
of wanton murder, and he was sentenced to life imprisonment. Id. at *2. The Kentucky
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Supreme Court affirmed his conviction on direct appeal. Smith v. Commonwealth, No. 2002-SC-
0293-MR, 2003 WL 22415620 (Ky. Oct. 23, 2003).
Smith then filed a post-conviction motion, originally denied by the state trial court
without an evidentiary hearing, alleging three claims of ineffective assistance from his trial
counsel. Smith, 2009 WL 2901223, at *2. The Kentucky Court of Appeals affirmed in part, and
reversed in part and remanded to the trial court for an evidentiary hearing on two of the
ineffective assistance claims—one based on counsel’s failure to investigate Smith’s mental
health at the time of the offense, and the other on her failure to investigate and present mitigation
testimony at the penalty stage of the trial. Smith v. Commonwealth, No. 2006-CA-000064-MR,
2007 WL 1194688, at *5 (Ky. Ct. App. Apr. 13, 2007).
At the evidentiary hearing, held on October 4, 2007, Smith’s trial counsel and four
potential mitigation witnesses testified. Smith, 2009 WL 2901223, at *3. Smith’s motion for
funds to retain a mental health expert was held in abeyance pending determination of whether
counsel’s decision not to employ an expert was “trial strategy or an abdication of advocacy.” Id.
at *3.
Trial counsel, who had previously represented Smith in a case where he was charged with
and acquitted of marijuana possession, explained her investigation and trial strategy. Id. She
remembered talking to Smith’s mother, father, stepmother, sister, stepbrother, and other family
members and friends, and had “feelers” at the institution where Smith was incarcerated that
would have alerted her to potential mental health issues. Id. at *3–4. She also reviewed
documents related to Smith’s background—his custodial evaluations, parents’ divorce file,
school records, juvenile transfer documents, and dispositional reports from two previous juvenile
convictions. Id. at *3. Counsel admitted difficulty coming up with an effective strategy—
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largely because there was no question as to Smith’s guilt, and he had been contradictory and
untruthful in prior statements to police. Id. She ultimately decided the best trial strategy would
be to humanize Smith in front of the jury by showing that, while trying his best to parent a baby
with medical problems, he was simply too young and immature for such responsibility and
pressure, which caused him to “snap.” Id. at *4. She also chose to put Smith on the stand in the
hope that he would show genuine remorse—despite knowing that Smith was “never completely
honest with her” about what had happened. Id. at *3–4.
When asked whether she had considered consulting a mental health expert, counsel
testified that she deliberately decided not to because “[she] never saw anything that made [her]
think he was suffering from a mental illness as defined by Kentucky law”: there was no
indication that Smith was suffering from a “mental illness or mental[] retardation” or “was
becoming incompetent to stand trial” as understood by “Chapter 504” of the Kentucky Revised
Statutes. Instead, she considered Smith to be exhibiting “antisocial behavior.” Counsel also
expressed concern that introducing evidence as to Smith’s difficult home life and mental state
would risk allowing the Commonwealth additional opportunities to diminish the jury’s sympathy
for Smith with unfavorable evidence of angry outbursts, juvenile drug convictions, and general
maladaptive behavior. Smith, 2009 WL 2901223, at *4. She concluded that such a risk
outweighed the potential reward of putting mitigating witnesses on the stand during sentencing.
Id.
Following counsel’s testimony at the evidentiary hearing, four other witnesses testified to
Smith’s troubled relationship with his parents and the negative effects that their divorce had on
him. Id. at *5. They testified of Smith’s inability to cope with stressful situations, and the
physical and emotional abuse he received from his father and stepmother. Smith claims that
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these witnesses, who had sent letters to the trial judge because his counsel was unresponsive to
their communications, should have been called to give mitigation testimony at sentencing.
Smith, 2009 WL 2901223, at *5.
The state trial court denied Smith’s claims, finding that counsel’s alleged errors were
based on strategic trial decisions and that “[a]ny error complained of would not have resulted in a
different outcome for [Smith].” Citing the two-pronged test of Strickland, 466 U.S. at 687, the
Kentucky Court of Appeals affirmed on the deficiency prong without reaching the question of
prejudice. Smith, 2009 WL 2901223, at *6–9. The Kentucky Supreme Court denied review.
Smith then petitioned for relief under § 2254 in the U.S. District Court for the Eastern
District of Kentucky. The district court, adopting a magistrate judge’s report and
recommendations, denied relief on the merits, concluding that the Kentucky Court of Appeals
did not apply Strickland unreasonably in finding that Smith’s counsel was not deficient. Smith v.
Taylor, No. 5:10-CV-91-KKC-HAI, 2014 WL 3513180, at *4 (E.D. Ky. July 16, 2014). We
granted a limited COA on two issues:
(1) whether the district court was correct when it ruled that the state court’s denial
of Smith’s ineffective-assistance claim based on counsel’s failure to investigate a
mental health defense was a reasonable application of clearly established federal
law; and (2) whether the district court was correct when it ruled that the state
court’s denial of Smith’s ineffective-assistance claim based on counsel’s failure to
investigate mitigating evidence was a reasonable application of clearly established
federal law.
Smith v. Crews, No. 14-5994 (6th Cir. Mar. 16, 2015).
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas corpus relief
may be granted on claims that were adjudicated in state court only if the state-court adjudication
of the claim resulted in a decision that (1) “was contrary to, or involved an unreasonable
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application of, clearly established Federal law, as determined by the Supreme Court of the
United States,” or (2) “was based on an unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d). “We review de novo a district court’s denial of a writ of habeas corpus.” Ramonez v.
Berghuis, 490 F.3d 482, 486 (6th Cir. 2007). “And where, as here, the district court has reviewed
only trial transcripts and other court records, any factual determinations by the district court are
also reviewed de novo.” Id.
We granted Smith a COA on two ineffective assistance of counsel claims, to which
federal courts apply the “unreasonable application” prong of § 2254(d)(1). Mitchell v. Mason,
325 F.3d 732, 738 (6th Cir. 2003) (citing Harpster v. Ohio, 128 F.3d 322, 327 (6th Cir. 1997)).
A state-court decision is an unreasonable application of clearly established Supreme Court law
when it “applies [Supreme Court] precedents to the facts in an objectively unreasonable
manner.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted); see Mitchell, 325 F.3d
at 738 (“[A] federal habeas court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” (quoting
Williams v. Taylor, 529 U.S. 362, 411 (2000))). This is a “difficult to meet . . . and highly
deferential standard . . . [that] demands that state-court decisions be given the benefit of the
doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citations and quotation marks
omitted).
To establish ineffective assistance, Smith must show that his attorney’s performance was
deficient and that he was prejudiced as a result. Strickland, 466 U.S. at 687. Counsel’s
performance is deficient where it falls below an objectively reasonable standard. Id. at 688.
This standard also is “highly deferential”—thus, “doubly so” on federal habeas review—and
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requires us to “apply a strong presumption that counsel’s representation was within the wide
range of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104–05 (2011)
(internal quotation marks omitted) (quoting Strickland, 466 U.S. at 689).
III. ANALYSIS
Smith argues that his trial counsel performed deficiently by failing to conduct a
reasonable investigation into a possible mental health defense and into potential mitigation
witnesses, and that the Kentucky Court of Appeals unreasonably applied Strickland when it
determined otherwise. On habeas review, the pivotal question is whether the state court’s
determination was a reasonable application of Strickland. See Harrington, 562 U.S. at 101.
Below, we analyze separately the reasonableness of the state court’s determinations on the
alleged deficiencies of Smith’s counsel.
A. Failure to Investigate Mental health Defense
The issue underlying the first ineffective assistance claim is the Kentucky defense of
extreme emotional disturbance (EED), which, according to Smith, his trial counsel could have
successfully pursued had she consulted a mental health expert.1 In Kentucky, a successful EED
defense reduces the degree of an intentional homicide from murder to manslaughter. McClellan
v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986). Kentucky defines EED as “a temporary
state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause
one to act uncontrollably from the impelling force of the extreme emotional disturbance rather
than from evil or malicious purposes.” Id. at 468–69. To constitute EED, there must be “a
reasonable explanation or excuse” for the emotional state, as “determined from the viewpoint of
1
Commentary to Ky. Rev. Stat. §§ 507.020 and 507.040 suggests that EED is available for intentional, but
not wanton, murder. However, the Supreme Court of Kentucky has discussed EED in a case involving wanton
murder without hinting at the commentary’s distinction. Holland v. Commonwealth, 466 S.W.3d 493, 503 (2015).
We therefore proceed with the discussion assuming that Smith’s assertion is correct.
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a person in the defendant’s situation under the circumstances as defendant believe them to be.”
Id. at 469. In other words, “there must be a triggering event—a ‘sudden and uninterrupted’ event
that ‘triggers the explosion of violence on the part of the criminal defendant.’” Bowling v.
Parker, 344 F.3d 487, 500 (6th Cir. 2003) (quoting Foster v. Commonwealth, 827 S.W.2d 670,
678 (Ky. 1991)).
EED, which falls under Chapter 507 of the Kentucky Revised Statutes, is distinct from
“incompetency,” “insanity,” and “mental illness,” which are defined in Chapter 504.2 See
McClellan, 715 S.W.2d at 468. Accordingly, EED “is not established by evidence of insanity or
mental illness.” Bowling, 344 F.3d at 500 (quoting Stanford v. Commonwealth, 793 S.W.2d 112,
115 (Ky. 1990)). “It is the presence of adequate provocation . . . which is essential to a finding
of EED,” though mental illness “is entirely relevant to a subjective evaluation of the
reasonableness of the defendant’s response to the provocation.” Fields v. Commonwealth,
44 S.W.3d 355, 359 (Ky. 2001).
Under Strickland, 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.” Strickland,
466 U.S. at 691. “[S]trategic choices made after less than complete investigation are reasonable
2
Chapter 504 defines “incompetency to stand trial” as a “lack of capacity to appreciate the nature and
consequences of the proceedings against one or to participate rationally in one’s own defense,” and an incompetent
defendant cannot “be tried, convicted or sentenced so long as the incompetency continues.” Ky. Rev. Stat.
§§ 504.060(4), 504.090. “Insanity” is “a lack of substantial capacity to appreciate one’s conduct or to conform
one’s conduct to the requirements of law,” and it “absolves one of criminal intent and is therefore a complete
defense.” McClellan, 715 S.W.2d at 467–68; see Ky. Rev. Stat. §§ 504.030, 504.060(5). And “mental illness”
means “a substantially impaired capacity to use self-control, judgment, or discretion which can be related to
physiological, psychological, or social factors,” but it “does not absolve one of criminal responsibility but entitles
one so convicted to treatment.” McClellan, 715 S.W.2d at 468; see Ky. Rev. Stat. §§ 504.060(6), 504.150.
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precisely to the extent that reasonable professional judgments support the limitations on
investigation.” Id. at 690–91.
In Williams v. Taylor, the Supreme Court found that trial counsel’s failure to “fulfill their
obligation to conduct a thorough investigation” of the defendant’s “nightmarish” background and
mental state could not be “justified by a tactical decision” to focus on his remorse and
cooperation with police, or to prevent comparatively meager unfavorable evidence—specifically,
past juvenile records—from being admitted. 529 U.S. at 395–96, 398. Counsel in Williams
ended his investigation based on a misunderstanding that state law prevented potentially
mitigating records from being introduced. Id. at 395. If counsel had investigated, he would have
found, among a “voluminous” amount of mitigating evidence, that the defendant was “borderline
mentally retarded” and criminally neglected as a child, and that he was among the inmates “least
likely to act in a violent, dangerous or provocative way” and had “thrive[d] in a more regimented
and structured environment.” Id. at 396.
The Supreme Court again “illustrat[ed] . . . the proper application of [Strickland]” in
Wiggins, 539 U.S. at 522. Finding a state court’s application of Strickland “objectively
unreasonable,” the Court explained that “[e]ven assuming [counsel] limited the scope of their
investigation for strategic reasons, Strickland does not establish that a cursory investigation
automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing
court must consider the reasonableness of the investigation said to support that strategy” and “not
only the quantum of evidence already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further,” measured objectively “under prevailing
norms.” Id. at 523, 527 (citing Strickland, 466 U.S. at 691). The Court faulted the state court for
“merely assum[ing] that the investigation was adequate” when “counsel chose to abandon their
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investigation at an unreasonable juncture, making a fully informed decision with respect to
sentencing strategy impossible.” Id. at 527–28.
The Government implies that Williams and Wiggins are not the clearly established law
that the state courts should have applied because they apply only to the penalty stage of death-
penalty cases. But Strickland itself was a death-penalty case, and neither the Supreme Court nor
our circuit has drawn a distinction between capital and non-capital cases or the guilt and penalty
stages of trial in applying the framework of Strickland. See, e.g., Harrington, 562 U.S. at 101–
07; Berghuis v. Tompkins, 560 U.S. 370, 389–91 (2010); Ramonez, 490 F.3d at 486–91; Towns v.
Smith, 395 F.3d 251, 257–61 (6th Cir. 2005).
Smith maintains that his counsel’s decision not to consult a mental health expert to
explore the possibility of an EED defense was unreasonable, and thus her chosen strategy was
not supported by sufficient investigation. He asserts that the evidence known by his counsel
would lead a reasonable attorney to investigate further the possibility of an EED defense. See
Wiggins, 539 U.S. at 527. In addition to the horrific nature of the crime itself, counsel knew that
Smith had shown disturbing, antisocial behavior, likely stemming from his difficult childhood
and relationship with his family, and that he had seen a therapist previously. Smith’s parents had
gone through a bitter divorce and custody battle that counsel believed had a negative impact on
Smith, after which his home life continued to deteriorate. As Smith aged, he exhibited
increasingly out-of-control behavior, such as angry outbursts, disruptiveness in the classroom,
and picking up and slamming down a desk. Smith’s juvenile record showed him to be a troubled
adolescent who suffered from a drug-abuse problem, was “unhappy at home,” and had difficulty
“effective[ly] communicati[ng] within [his] family.” Shortly before Blake’s death, moreover,
Smith’s 16-year-old brother died in a car accident. Smith’s mother additionally testified that she
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told counsel that Smith needed a mental health evaluation because he had been abused mentally
and physically in his father’s household.
Counsel alluded to Smith’s hardships in her testimony, stating her belief that he
“snapped” when he killed his son and was in denial about the murder, and explaining that he
refused to “come clean” or “open up” to her. In addition, despite her admitted difficulty in
coming up with an effective defense, counsel recommended, and the court directed, that Smith
receive “psychological, psychiatric, emotional, [or] mental health counseling, however you want
to phrase it,” in prison; in so recommending, she acknowledged that the “Department of
Corrections,” when they see Smith’s history, “are going to want to reach out to him and provide
him treatment.”
Facing all of this evidence, counsel chose not to consult a mental health expert but
instead to go to trial with “no defense” because, she testified, nothing suggested Smith suffered
from “mental illness” or “incompeten[cy].” This explanation shows that she incorrectly believed
an expert evaluation to be relevant only to defenses of incompetency, insanity, or mental illness
under Chapter 504. See Williams, 529 U.S. at 395 (in finding deficient performance, noting
counsel’s misunderstanding that state law prevented mitigating records from being introduced).
The Kentucky Court of Appeals acknowledged the possible insufficiency of counsel’s
explanation that she did not consult an expert because there was no evidence to support a defense
based on “mental illness.” See Smith, 2009 WL 2901223, at *8. We share that concern. See
Harrington, 562 U.S. at 106 (“Criminal cases will arise where the only reasonable and available
defense strategy requires consultation with experts or introduction of expert evidence, whether
pretrial, at trial, or both.”). As counsel admitted, merely consulting with an expert to explore an
EED defense did not risk making unfavorable evidence admissible because, at least at that time,
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Kentucky Rule of Criminal Procedure 7.24(3)(B)(i) required notice of an expert evaluation only
if “the defendant intends to introduce expert testimony relating to a mental disease or defect.”
Applying the framework of Strickland and other Supreme Court cases interpreting it, we
are inclined to conclude that counsel’s purported strategic decisions on expert consultation were
based on insufficient investigation because she failed to consult a mental health expert before
choosing among her options. Without an expert consultation on Smith’s mental health, counsel
could not make an informed decision to forgo an EED defense in favor of her sympathy strategy.
See English v. Romanowski, 602 F.3d 714, 728–29 (6th Cir. 2010) (finding counsel’s failure to
investigate a witness rendered unreasonable his decision not to call the witness for fear of
unfavorable testimony); see also Elmore v. Holbrook, 137 S. Ct. 3, 8 (2016) (Sotomayor, J.,
dissenting from denial of certiorari) (“To the contrary, we have often emphasized that an
attorney who learns some information about a defendant’s background is under an obligation to
pursue that information in order to ‘mak[e] an informed choice among possible defenses.’”
(citation omitted)).
But AEDPA requires us to recognize a second level of deference—not only to the choices
made by counsel, but also to the decisions of state courts. Here, the Kentucky Court of Appeals
found no error in the circuit court’s conclusion that counsel’s choice not to consult a mental
health expert was not deficient performance, but instead the result of a reasonable “strategic trial
decision.” Smith, 2009 WL 2901223, at *7. Regarding counsel’s testimony that “she saw no
indications that [Smith] suffered from mental illness in her conversations and interactions with
him and his family,” the state court “acknowledge[d] that this explanation, standing alone, might
not suffice to explain [counsel’s] failure to more thoroughly investigate a mental health defense
in this case.” Id. at 8. Nevertheless, given counsel’s concern that the “risk of allowing the
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Commonwealth to introduce a plethora of damaging evidence against him,” and because
counsel’s “defense was predicated on portraying Smith in as sympathetic a light as possible
given that his role in Blake’s death had been firmly established,” the state court found counsel’s
concerns about damaging evidence and her strategy to be reasonable, even if they “perhaps could
be second-guessed in hindsight.” Id.
Strickland declares that “strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the limitations
on investigation.” Id. at 690–91. As described in Wiggins, a reviewing 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, measured objectively under prevailing
norms.” 539 U.S. at 522 (internal citations omitted). The Kentucky Court of Appeals
recognized the extent of the investigation that counsel carried out and the “full and conscientious
effort to provide Smith with the best defense possible in the face of highly unfavorable facts.”
Smith, 2009 WL 2901223, at *8. The decision not to have a mental health evaluation conducted
on Smith “perhaps could be second-guessed in hindsight but cannot be condemned as
unreasonable or otherwise deficient.” Id. Accordingly, the Kentucky Court of Appeals
concluded that counsel “ma[d]e a reasonable decision that ma[de a] particular investigation
unnecessary.” Id. at *7 (quoting Strickland, 466 U.S. at 691). Although we do not necessarily
agree with this conclusion, as discussed above, we cannot say that it was an objectively
unreasonable application of Supreme Court precedent. See Cullen, 563 U.S. at 181 (Describing
the habeas review standard for ineffective assistance claims as a “difficult to meet . . . and highly
deferential standard . . . [that] demands that state-court decisions be given the benefit of the
doubt.” (internal citations and quotation marks omitted)). The governing standard impels us to
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find that the state court did not unreasonably apply Strickland when it concluded that trial
counsel did not provide ineffective assistance of counsel by failing to have a mental health
evaluation conducted on Smith. As a result, we need not address prejudice.
B. Failure to Investigate Mitigating Witnesses
Smith also argues that his counsel was ineffective for failing to investigate and present
mitigating witnesses at sentencing. A trial counsel’s failure to conduct “a reasonable
investigation of a defendant’s psychiatric history and family background and to present
mitigating evidence to the jury at sentencing[] can constitute ineffective assistance”—even
where counsel believes further investigation would be futile or where presenting the evidence
may open the door to unfavorable evidence. Poindexter v. Mitchell, 454 F.3d 564, 577–78 (6th
Cir. 2006) (internal quotation marks omitted) (quoting Wiggins v. Smith, 539 U.S. 510, 522–23
(2003)) (collecting cases). An investigation into mitigating evidence is unreasonable where
defense counsel “failed to act while potentially powerful mitigating evidence stared them in the
face . . . or would have been apparent from documents any reasonable attorney would have
obtained.” See Bobby v. Van Hook, 558 U.S. 4, 11–12 (2009) (citing Wiggins, 539 U.S. at 525;
Rompilla v. Beard, 545 U.S. 374, 389–93 (2005)). A strategic decision not to present mitigating
evidence after a thorough investigation, however, is “virtually unchallengeable.” Strickland, 466
U.S. at 690.
Smith maintains that his counsel failed to conduct a reasonable investigation into
mitigating witnesses before sentencing, and thus her uninformed decision not to present any
mitigation witnesses to avoid opening the door to unfavorable evidence was unreasonable. At
the evidentiary hearing, Smith presented four witnesses—his elementary school guidance
counselor, Gay Cecil; his mother, Brenda Smith; his sister, Beverly Smith; and a family friend,
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Donna Tudor—who testified about the negative effect that Smith’s troubled home life and
parents’ divorce had on his mental state. Counsel never spoke to Cecil or Tudor, and Smith’s
mother and sister testified that counsel would not listen to what they had to say. At least some of
these witnesses sent letters to the trial judge directly because they believed counsel was
unresponsive.
The Government responds with the state court’s finding that counsel talked to “Smith’s
mother, father, stepmother, sister, stepbrother, and a number of other family members and
friends,” and reviewed “a number of items relating to Smith’s background and history, including
custodial evaluations, his parents’ divorce file, his school records, juvenile transfer documents,
and dispositional reports from Smith’s two prior juvenile convictions.” Smith, 2009 WL
2901223, at *3. Counsel also averred that, “people knew where [she] was and how to get in
touch with [her] if they had something they wanted to say. I would talk to anybody in this case
and all my cases.” Based on this investigation, counsel, who also had previously represented
Smith in juvenile matters, claimed to be “fully aware” of the issues on which the witnesses at the
evidentiary hearing testified. Smith, 2009 WL 2901223, at *3, *7–8.
Though this is a close question, under governing precedent, counsel’s investigation into
mitigation facts was not deficient. “The Supreme Court has found more limited investigations
into a defendant’s background justified where any evidence presented would have a double
edge.” Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir. 2006) (citations and internal quotation
marks omitted) (collecting cases). Counsel’s investigation into and knowledge of Smith’s
background, family history, relevant documents, and witnesses, provided sufficient information
for her to reasonably decide not to investigate additional mitigation witnesses.
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The governing precedent likewise confirms that this information was sufficient for
counsel to make a reasonable choice between the options of putting mitigation witnesses on the
stand or not. That choice avoided opening the door to potentially unfavorable evidence,
including Smith’s criminal convictions and antisocial behavior. See, e.g., Carter, 443 F.3d at
531–32 (Counsel’s decision found reasonable “[g]iven the lack of mitigating evidence available
in this case and the likelihood that the testimony of [the defendant’s] family members would
have done more harm than good.”); Clark v. Mitchell, 425 F.3d 270, 286 n.6 (6th Cir. 2005)
(“[C]ounsel made a strategic decision to limit testimony about [the defendant’s] past in order to
prevent ‘opening-the-door’ to evidence of [his] criminal background” that “supports the
reasonableness of the [state court’s] determination regarding the performance of defense
counsel.”); Darden v. Wainwright, 477 U.S. 168, 186 (1986) (“[T]here are several reasons why
counsel reasonably could have chosen to rely on a simple plea for mercy from petitioner himself.
Any attempt to portray petitioner as a nonviolent man would have opened the door for the State
to rebut with evidence of petitioner’s prior convictions. This evidence had not previously been
admitted in evidence, and trial counsel reasonably could have viewed it as particularly
damaging.”).
The Kentucky Court of Appeals correctly identified and explored Smith’s claim that
counsel did not “seek out and use readily available mitigation witnesses during the penalty stage
of trial.” Smith, 2009 WL 2901223 at *8. The state court found reasonable counsel’s fear “that
presenting the mitigation testimony proposed by Smith risked painting him in an even more
unfavorable light before the jury.” Id. at *9. In light of the controlling authority and the doubly
deferential AEDPA standard applicable to this ineffective assistance claim, we cannot say that
the decision of the Kentucky Court of Appeals is an unreasonable application of governing law.
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IV. CONCLUSION
We AFFIRM the district court’s ruling that the Kentucky Court of Appeals did not apply
Supreme Court precedent in an objectively unreasonable manner when it concluded on the
claims before us that Smith’s representation was not deficient.
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