West v. Bell

KAREN NELSON MOORE, Circuit Judge,

dissenting in part and concurring in the judgment only in part.

After paying mere lip-service to recent Supreme Court precedent, the majority in this case applies a pre-Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), interpretation of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for ineffective-assistance-of-counsel claims. Because I conclude that, under the Strickland standard as explained in Wiggins and Rompilla,¹ West has met his burden of proof for his claim of ineffective assistance of counsel at the penalty phase, I respectfully dissent.

The majority correctly states that, to prove ineffective assistance of counsel, a defendant must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defendant. The majority then correctly concludes that the state courts’ applications of Strickland and Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), were contrary to or involved an unreasonable application of established Federal law. However, the majority then cites Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), for the proposition that counsel need not “mount an all-out investigation into petitioner’s background in search of mitigating circumstances [if the decision] was supported by reasonable professional judgment.” Majority Op. at 555 (quoting Burger, 483 U.S. at 794, 107 S.Ct. 3114). Applying this law, the majority holds that “West’s counsel, in fact, did a fair amount of investigation in preparation for the mitigation phase,” and thus West has not shown ineffective assistance of counsel. Majority Op. at 555-57.

The majority’s opinion ignores both recent Supreme Court cases that have explained the standard applied to claims of ineffective assistance of counsel under Strickland and Sixth Circuit precedent. Under Strickland, failure reasonably to investigate a defendant’s background and to present mitigating evidence at sentencing can amount to ineffective assistance of counsel. Wiggins, 539 U.S. at 522, 123 S.Ct. 2527 (noting counsel has an “obligation to conduct a thorough investigation of the defendant’s background” before making tactical decisions regarding what mitigating evidence to present) (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The court must consider whether a reasonable attorney, given the same evidence as the counsel in question, would have investigated something further. Wiggins, 539 U.S. at 527, 123 S.Ct. 2527 (“In assessing the reasonableness of an attorney’s investigation, however, 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”) (emphases added). Further, counsel cannot simply rely upon information the defendant and his family provided. See Rompilla, 545 U.S. at 389, 125 S.Ct. 2456 (requiring counsel to review a prior-conviction file rather than rely solely on statements made by the defendant and his family). As this circuit has repeatedly held, counsel has an independent duty to investigate mitigating evidence, even if the defendant is reluctant. Harries v. Bell, 417 F.3d 631, 638 (6th Cir.2005); Hamblin v. Mitchell, 354 F.3d 482, 492 (6th Cir.2003); Coleman v. Mitchell, 268 F.3d 417, 449-50 (6th Cir.2001); Carter v. Bell, 218 F.3d 581, 596-97 (6th Cir.2000).²

Applying the Strickland standard, I conclude that it is clear that West has met his burden. Several pieces of evidence demonstrate that West’s counsel was deficient. First, Jerry Summers (“Summers”) and Paul Morrow (“Morrow”), two seasoned attorneys who had tried several capital cases, testified during the post-conviction hearing that counsel was deficient in this case. J.A. at 1674, 1677 (Tenn. Ct.Crim. App. Op. at 10, 13). Second, West’s sister testified at the post-conviction hearing that she informed counsel of West’s childhood abuse and that counsel told her that it was not relevant. Third, Summers testified that two facts should have raised red flags to counsel that West may have suffered abuse: (1) the fact that West was born in a mental hospital and (2) West’s statement that he had no memories before the age of ten. J.A. at 1673-74 (Tenn. Ct.Crim.App. Op. at 9). West’s counsel ignored these key pieces of evidence that would have led a reasonable attorney to investigate further. Thus, I conclude that West’s counsel was deficient.

I further conclude that West was prejudiced by this deficiency. To prove prejudice, a defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In this case, had counsel presented evidence of abuse and its effects on West, it is extremely likely that at least one juror would have determined that West’s explanation for what happened to him while the crime took place — essentially that he froze — was plausible, making the death penalty unwarranted. As summarized by the Tennessee Court of Criminal Appeals, Morrow “testified that the prejudice that was shown in this case was that the jury did not hear the ‘psychological or lay witnesses that would have made somewhat comprehensible his actions on that day [day of the murders].’ ” J.A. at 1677 (Tenn. Ct.Crim.App. Op. at 13) (alteration in original). Further, if money had been available originally for doctors, Dr. Coleman’s and Dr. Dudley’s evidence of West’s psychological makeup would have been provided, in addition to the various witnesses who could have spoken about West’s childhood abuse.³

Finally, though Dr. Bursten testified at the post-conviction hearing that West stated during their interview that he had not been abused, the relevance of such evidence is questionable for two reasons. First, Morrow testified during the post-conviction hearing that West’s statement to Dr. Bursten was not necessarily reliable because often defendants who have truly been abused are “the worst person to talk to” about the abuse “because he or she is usually embarrassed or does not understand its significance.” J.A. at 1676 (Tenn. Ct.Crim.App. Op. at 12). Second, the fact that West stated that he was not abused is not dispositive when a wealth of evidence points to the conclusion that he was abused. See, e.g., Coleman, 268 F.3d at 450 (“ ‘The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility.’”) (quoting Carter v. Bell, 218 F.3d 581, 596 (6th Cir.2000)).

Counsel’s failure to present this evidence of abuse was prejudicial because it would have served to mitigate the prosecution’s theory that West stabbed the victims, allowing the jury to believe both (1) Dr. Evans’s interpretation that only one person made the stab wounds instead of Dr. Blake’s interpretation that two people stabbed the victims, State v. West, 767 S.W.2d 387, 392 (Tenn.1989), and (2) that, even though West was physically larger than Martin, he was mentally unable to stop Martin from stabbing the victims. This evidence would have changed West’s mitigation case from one about West’s character as “a good and decent citizen,” “never before ... in trouble with the law,” “a veteran,” and “a loving husband and a soon-to-be father,” Majority Op. at 556, to one that actually explained why West behaved the way that he behaved. As in Rompilla, “[t]his evidence adds up to a mitigation case that bears no relation” to the mitigation case actually presented by counsel. Rompilla, 545 U.S. at 393, 125 S.Ct. 2456.

The majority claims that, although the jury may have believed West’s evidence and “chosen to spare his life,” the jury may also have been unswayed by the evidence. The majority concludes that “[i]t is not enough for this court to speculate that the jury would have chosen the former path.” Majority Op. at 556. This statement flies in the face of Supreme Court precedent:

[Although we suppose it is possible that a jury could have heard [all the evidence] and still have decided on the death penalty, that is not the test. It goes without saying that the undiscovered mitigating evidence, taken as a whole, might well have influenced the jury’s appraisal of [the defendant’s] culpability, and the likelihood of a different result if the evidence had gone in is sufficient to undermine confidence in the outcome actually reached at sentencing.

Rompilla, 545 U.S. at 393, 125 S.Ct. 2456 (emphasis added) (internal quotation marks and citations omitted); see also Harries, 417 F.3d at 640. Therefore, I conclude that, taken as a whole, West’s evidence provides “a reasonable probability” that the result of the proceeding would have been different. Thus, I would hold that West has proven ineffective assistance of counsel at the penalty phase of his trial, and I would REVERSE the judgment of the district court regarding the penalty phase. With respect to the guilt phase issues addressed by the majority, I concur in the judgment only. Thus, I would GRANT a conditional writ of habeas corpus with respect to the penalty' phase.

1 . Because Rompilla and Wiggins merely explain the Strickland standard and do not establish new law, it is appropriate to rely on those cases when deciding West's ineffective-assistance-of-counsel claim "even though those cases were decided after [West's] convictions became final.” Jells v. Mitchell, 538 F.3d 478, 491 n. 2 (6th Cir.2008); see also Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir.2003).

2 . The majority does not cite any of these binding Sixth Circuit cases in its opinion.

3 . The majority contends that West's objection "to the trial court's sua sponte ordering of a psychological examination to determine competency" resulted in the trial court later denying West’s counsel funds for experts and led to counsel's failure to discover mitigating evidence. Majority Op. at 555. The majority cites Fautenbeny v. Mitchell, 515 F.3d 614 (6th Cir.2008), for the proposition that West’s "lack of cooperation” in some way hinders his current claim of ineffective assistance of counsel. Majority Op. at 555-56. Fautenber-ry is distinguishable from this case. There, the defendant refused to be examined by the expert charged with discovering brain impairments relevant to mitigation. Fautenbeny, 515 F.3d at 625. In this case, West did not object to any examination aimed at discovering ailments pertinent to mitigation, only to an examination focused on the issue of competency.