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Whatley v. Warden, Georgia Diagnostic and Classification Center

United States Court of Appeals, Eleventh Circuit

June 20, 2019

FREDERICK R. WHATLEY, Petitioner-Appellee Cross Appellant,
v.
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER, Respondent-Appellant Cross Appellee.

          Appeals from the United States District Court for the Northern District of Georgia D.C. Docket No. 3:09-cv-00074-WSD

          Before TJOFLAT, JORDAN, and HULL, Circuit Judges.

          OFLAT, CIRCUIT JUDGE

         Frederick R. Whatley ("Petitioner") murdered a bait shop owner in Georgia in 1995. He was convicted and sentenced to death.[1] After the Supreme Court of Georgia affirmed his convictions and death sentence, Whatley v. State, 509 S.E.2d 45, 53 (Ga. 1998), he petitioned the U.S. District Court for the Northern District of Georgia for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleged that his lawyer provided ineffective assistance of counsel[2] (1) by failing to investigate and present mitigating evidence during the penalty phase and (2) by failing to object when he testified before the jury during the penalty phase in shackles. The District Court granted relief on the first claim and denied relief on the second. Both parties appeal. We reverse on the first claim and affirm on the second.

         Our opinion proceeds in seven parts. Part I recounts the trial proceedings, with an emphasis the penalty phase. Part II briefly describes the direct appeal. Part III explains the evidence that Petitioner presented to the state habeas court and notes that Court's decision. Part IV explains the Supreme Court of Georgia's decision, which is the decision we effectively review on appeal. Part V recounts the District Court's decision, and Part VI takes up the two issues on appeal. Part VII concludes.

         I.

         Petitioner was indicted for murder in June of 1996. Whatley, 509 S.E.2d at 48 n.1. The Superior Court for Spaulding County, Georgia, appointed Johnny B. Mostiler ("Trial Counsel"), the Spaulding County Public Defender, to represent Petitioner 12 days after his arrest. Whatley v. Schofield, No. 99-V-550, slip op. at 5 (Ga. Super. Ct. Nov. 29, 2006) (order denying habeas relief). He was convicted by a jury in January of 1997. Whatley, 509 S.E.2d at 48 n.1.

         This appeal focuses on how Trial Counsel performed in preparing for the penalty phase of Petitioner's trial and in representing Petitioner during that phase. We must analyze Trial Counsel's conduct under the performance standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). To decide whether Petitioner satisfied Strickland's prejudice standard, we must consider the strength of the State's case. Specifically, what should Trial Counsel have anticipated the State would present in the guilt-innocence phase and, if the jury found Petitioner guilty of murder, what additional evidence would the State present in the penalty phase to persuade the jury to recommend a death sentence?[3] The Superior Court of Butts County (the "State Habeas Court"), which heard Petitioner's habeas petition, described Trial Counsel's decision this way:

[Trial Counsel] was confronted with a conundrum of trying to defend a death penalty case by denying the obvious guilt of his client, and asserting defenses where there were none and then trying to convince the jury of the defendant's credibility and worthiness as a human being when it came to the [penalty] phase of the trial.

Whatley, slip op. at 5 (order denying habeas relief).

         We recount the guilt-innocence phase and the penalty phase separately.

         A.

         Trial Counsel defended Petitioner by putting the State to its proof-that appeared to be the only available defense strategy.

         At the time of the murder, Petitioner had recently arrived in Georgia after escaping from a halfway house in Washington, D.C. Shortly after arriving, Petitioner told a cousin that he needed a gun to "make a lick," to commit a robbery.

         Here's how he made the lick. He walked into a bait shop and pulled out a gun. Whatley, 509 S.E.2d at 48. He forced an employee to lie down behind the counter, pressed the gun against the employee's head, and told another person, the storeowner, to give him the money from the register. Id. The storeowner complied and put the money in a sack on the counter; Petitioner grabbed the sack and fired two shots. Id. One shot hit the storeowner in the chest, "pierc[ing] his left lung." Id. Petitioner fired this shot, according to expert testimony, while standing just 18 inches from the storeowner. Id. The second shot missed its mark-Petitioner tried to shoot the employee (still lying behind the counter) in the head, but the bullet hit the counter and missed. Id.

         Petitioner left the store and ran into a man who was getting out of his car. Id. Petitioner forced the man back inside the car and told the man to take him where he wanted to go. Id. Before the car could leave, the "mortally wounded" storeowner grabbed a gun from the store and fired "several shots" at Petitioner. Id. Petitioner returned fire, and the storeowner eventually collapsed and died from bleeding caused by the first gunshot. Id. Petitioner dropped the sack of money and fled on foot; the man in the car noticed that Petitioner was limping. Id.

         Officers arrived on the scene, and both the employee and the man who Petitioner tried to carjack told them the attacker had used a "silver revolver." Id. The day before, one of the officers had taken a report from a man who said that his silver revolver was missing; he suspected his cousin-Petitioner-had taken it. Id. The officers located Petitioner, who was staying with a relative. Id. Sure enough, he had a bullet wound in his leg, and the officers found the missing silver revolver under his mattress. Id. A firearms expert concluded that the missing silver revolver was in fact the murder weapon. Id.

         There was more. "The police also found a bloody pair of thermal underwear with a bullet hole in the leg, a bloody towel, and bloody boxer shorts in a trash can behind the house." Id. Officers removed a bullet (one that matched the caliber of the murder weapon) from the car that Petitioner tried to carjack. Id. There were fibers on the bullet, and the fibers "were consistent with fibers from the thermal underwear, and DNA taken from blood on the fibers matched [Petitioner]." Id. Petitioner's palm print was on the sack of money that was dropped outside the store when the attacker fled. Id. at 48-49.

         Based on this evidence, the jury found Petitioner guilty of malice murder. Id. at 49.

         B.

         A month after the grand jury indicted Petitioner, the State filed a notice of intent to seek the death penalty. Whatley, slip op. at 6 (order denying habeas relief).[4] To support its request for death, the State would argue that one or more of these three aggravating circumstances applied: (1) Petitioner committed the murder while engaged in armed robbery, (2) Petitioner committed the murder to obtain money, or (3) Petitioner committed the murder after he had escaped from a place of lawful confinement. The State also told Trial Counsel that it would rely on Petitioner's convictions and probation revocations-in 1988, 1989, and 1990- from Washington, D.C., to establish the aggravating circumstances. Trial Counsel was well aware of this evidence and planned to counter it with evidence that showed (1) Petitioner's life was worth saving and (2) that life imprisonment would be sufficient punishment.[5]

         We recount the penalty phase chronologically. We begin with the State's case and then consider Petitioner's response. We end with closing arguments.

         1.

         The State relied on the evidence presented during the guilt-innocence phase to establish the first aggravating circumstance-that Petitioner committed the murder while engaged in armed robbery-and the second aggravating circumstance-that Petitioner committed the murder to obtain money. It relied on records from the District Court for the District of Columbia and the D.C. Superior Court to establish the third aggravating circumstance-that Petitioner committed the murder after escaping from a place of lawful confinement.

         The State also used these records to show the extent of Petitioner's criminal history and to paint a broader picture of him. Using the records, the State argued that this murder wasn't Petitioner's "first brush with the law" and that he had "every break possible" to turn things around but failed to do so. The records showed, according to the State, that Petitioner had a history of violence and would always be dangerous.

         There are lots of records, and they are, at times, quite convoluted. For the reader's sake, we hit the records' high points, and we explain only those records that are necessary for our analysis.

         The records show that Petitioner was charged in three separate criminal cases from 1988 to 1990: (1) he forged a U.S. Treasury check, (2) he robbed a man at gunpoint, and (3) he assaulted a woman in public. The judicial proceedings in these cases overlapped, and many times, what happened in one case affected something in the other. Thus, rather than dividing our discussion by offense or topic, we explain the records chronologically.

         In January of 1986, Petitioner stole a U.S. Treasury check, forged the payee's signature, and negotiated the check. In January of 1988, he also robbed a man at gunpoint. He was indicted in the District Court for the forgery, United States v. Whatley, No. CR 88-030 (D.D.C.), and he pled guilty in May of 1988. Petitioner was indicted in the Superior Court for the armed robbery, [6] United States v. Whatley, No. F-1046-88 (D.C. Super. Ct. Crim. Div.), and he pled guilty to a lesser charge of robbery in April of 1988.

         During the plea colloquy in the robbery case, Petitioner admitted that he "put a loaded shotgun . . . to the [victim's] back and demanded [his] wallet which he forcibly took from [the victim]. . . . [Petitioner] was arrested that same day . . . and the . . . loaded shotgun and shells were recovered." The Superior Court accepted the guilty plea and ordered that Petitioner be "committed" to the D.C. Department of Corrections "for observation and study" under the Youth Rehabilitation Act (the "YRA")[7] before sentencing. He would be sentenced after the studies were finished.

         Later in April of 1988, Petitioner was sentenced in the forgery case. He was ordered to reside at the Hope Village Community Treatment Center for four months and to participate in a drug treatment program. But Petitioner wasn't taken to Hope Village immediately and remained incarcerated until there was room for him at Hope Village. Between April and June of 1988, Petitioner was evaluated according to the YRA. In August of 1988, Petitioner was also given a neuropsychological evaluation, which his caseworker, Eugene Watson ("Caseworker Watson") arranged. As we explain below, Petitioner relies heavily on these reports and evaluations from 1988 to support his habeas petition.

         Sentencing in the robbery case was continued several times. Finally, in March of 1989, the Superior Court held the sentencing hearing. At the hearing, Petitioner's lawyer presented a sentencing plan that was created by Caseworker Watson.[8] Petitioner's lawyer asked the Court to sentence Petitioner to a term of probation, conditioned on Petitioner's following the sentencing plan.[9] The Court agreed and sentenced Petitioner as follows: "Five to fifteen years [imprisonment] with the execution suspended with a five year period of probation with the condition that he enter and complete the New Life [for Youth] Program, both residential and aftercare."[10]

         Petitioner was never taken to the New Life for Youth facility. Instead, he was taken to the Hope Village facility the next month, consistent with his sentence in the forgery case. He absconded from Hope Village about two months later. In turn, his probation in the forgery case was revoked, and he was incarcerated for two months.

         In light of this, the Superior Court ordered Petitioner to show cause as to why his probation should not be revoked in the robbery case. The Court held a hearing in December of 1989, and, rather than revoking probation, it modified the terms of Petitioner's release.[11]

         Fast forward to September of 1990; the Superior Court again ordered Petitioner to show cause as to why his probation should not be revoked in the robbery case. It held a hearing the next month-Petitioner didn't appear, and the Court issued a bench warrant for his arrest.

         Seven days after the Court issued the bench warrant, Petitioner was arrested for assaulting a female. He was charged in the Superior Court with "assault with intent to rape."[12] United States v. Whatley, No. F 11978-90b (D.C. Super. Ct. Crim. Div.). In December of 1990, he pled guilty to a lesser charge, simple assault. The Court sentenced Petitioner to the custody of the Attorney General for one year.

         Finally, in late December of 1990, the Superior Court held a hearing on its show cause order, the order that directed Petitioner to show why his probation should not be revoked in the robbery case. The Court focused on the assault charge that Petitioner had recently pled guilty to and been sentenced for. The question was whether the assault established cause for revoking Petitioner's probation. The Court noted the "Herculean efforts [that] were made" to help Petitioner deal with "difficult personality, and perhaps psychological, problems that he had." It then noted that this was the second probation revocation hearing, and the Court highlighted that Petitioner committed the assault after having been served with a bench warrant for his arrest.

         Next, the Court turned to the facts of the assault. Even after considering Petitioner's "dubious" version of the incident, [13] and giving Petitioner "the most benefit of the doubt," the Court noted that Petitioner showed "some violent behavior with somebody . . . in a way that . . . could have been quite dangerous." The Court went on and described the incident "as a significant outburst of violent behavior by somebody who was then on the run from me for a prior criminal act of violent behavior, namely a robbery." It concluded with this: "I think there have been serious violations of the probation, here, in the case of somebody who's been given lots and lots of chances . . . to try to stay out of Lorton [prison] on a long-term basis. And, I think he basically blew it."[14] The Court revoked Petitioner's probation and sentenced him to prison for a term of 4 to 12 years.

         Petitioner was incarcerated in Lorton Reformatory immediately. He was released 47 months later, in November of 1994, and put in a halfway house in Washington, D.C. He fled on December 2, 1994, and became a fugitive from justice. He was still a fugitive when he returned to Georgia in January of 1995.[15]

         2.

         Trial Counsel countered the State's case with nine witnesses; collectively, they portrayed Petitioner's life as worth saving. We focus on three witnesses- Janet Wyche, Lorraine Goodman, and Cleveland Thomas, Jr.-because Petitioner also submitted their testimony in his habeas proceedings. Petitioner testified himself and expressed remorse for what he had done, and Caseworker Watson testified as well.

         As a brief introduction, we note that Petitioner was raised by his great-aunt and great-uncle, Marie and Cleveland Thomas. He moved to Washington, D.C., to live with his mother a couple of time during his teenage years. The criminal history that we just explained took place in Washington, D.C. And at the time of the murder, he had just returned to Georgia from Washington, D.C., after escaping from a halfway house. Petitioner explained this during his testimony, which we discuss below.

         Janet Wyche knew Petitioner before he went to live with his mother in Washington, D.C. When he returned to Georgia, Petitioner stayed off and on in the same house where Ms. Wyche lived. She said he was nice and got along with everyone. Ms. Wyche didn't comment on Petitioner's childhood or his experience living with the Thomases.

         Lorraine Goodman is related to Petitioner. She described him as respectful and knew that he was raised by the Thomases, who took him to church every Sunday. She was unaware of Petitioner getting into any trouble while living with the Thomases. She said that Petitioner stayed at her house when he returned to Georgia from Washington, D.C.; she asked him to leave because they could not afford to have another person in the house. She claimed that Petitioner looked for a job every day while staying with her, and she said her children "loved him."

         Cleveland Thomas, Jr.'s father and stepmother raised Petitioner. He said that as a child growing up, Petitioner was "real nice," had good manners, and did well in school. He "thought the sky was the limit for him," and he asked the jury to "spare [Petitioner's] life."

         Five other witnesses testified and generally said positive things about Petitioner.

         Next, Trial Counsel called Petitioner himself to the stand.[16] Petitioner first explained his upbringing. As a child, he was told that his mother "had some problems," so she left him with his great-aunt and great-uncle (the Thomases), who raised him. He described the Thomases' household as "very stationary, very unconditional as far as . . . loving and . . . support, and ideally everything that a child could . . . ask for growing up." In eighth or ninth grade, he went to live with his mother, brothers, and sisters in Washington, D.C.-he "had a yearning . . . to be part of [his] family." But life there was chaotic, and his mother kicked him out after the two got into a fight. He returned to Georgia. At 19, he moved back because he still wanted to be with his mother and siblings. Back in Washington, D.C., he "assumed the position of head of the household." But that deteriorated because his mother was taking money from him, and he moved out.

         Petitioner then addressed his involvement with drugs and said he started out dealing drugs for a profit. He noted that he has "always had some dealings in the streets." Next, Petitioner explained his criminal history. He said "trouble came along" when he "got introduced to . . . and . . . associated with some individuals that were into forgery and uttering and credit cards, white collar crimes." As for the robbery, Petitioner claimed he "did not have the shotgun on" him during it. He said the victim owed him money, and he stuck a "closed knife" in the victim's back. He claimed the shotgun was around the corner during the robbery, and after taking the victim's money, he was going to retrieve the gun.

         Petitioner also explained why he violated his probation in the forgery case. He said he was required to stay at Hope Village[17] for four months, but he got in trouble by taking "a furlough." He claimed he was unaware that he wasn't supposed to leave the facility. When he returned, his supervisor "placed [him] on restriction." The next night, another staff member let him out, and he was considered an escapee.

         Moving on to his probation sentence in the robbery case, Petitioner noted that he worked with Caseworker Watson "on a regular basis . . . for a couple of years." He said they stopped working together when he went "on the run." He was on the run because he hadn't reported to his probation officer, and there was a warrant out for his arrest.

         Then, Petitioner explained why he escaped from the halfway house in December of 1994. The night he escaped, Petitioner said, he left work early and went to visit an ex-girlfriend. There was a curfew, and he realized he would be cutting it close, so he called the halfway house and asked for an extension. It was denied. So, Petitioner tried to catch a cab, but he was in a part of town where it was "very difficult" "for a black male to catch a cab that time of night." He called the halfway house again, and he was told that he should still be able to make curfew. He finally found a cab, but the driver had to go pick up another passenger in Maryland. Petitioner explained that he had a curfew, and the driver told Petitioner to give him $25-he didn't have that much money, so the driver just let him out in Maryland. At this point, he had missed curfew, and he didn't report back to the halfway house.

         Petitioner bounced around and stayed with different friends and family members. He came back to Georgia hoping to get a job and make some money. Once in Georgia, he continued to stay with other people, and he eventually stole a pistol from a man he was staying with. He stole the pistol because had been selling drugs and needed to go to "rough neighborhoods" to sell. There were also people who owed him money, Petitioner said. On the night of the murder, "it just so happened" that he got a ride and "passed by" the bait shop. He "felt like it was in a secluded area," so he could "go in," "get the money," and "get out of town."

         Finally, Petitioner explained how he wound up shooting the victim.[18] He said he took the money and was backing out of the shop without looking at the door. He heard someone coming to the door and turned around-at that point, the victim grabbed a gun. Petitioner turned back, apparently saw the gun, and fired a shot. This shot, Petitioner claimed, was the one that hit the counter. Petitioner backed out of the shop and ran into a person trying to enter. By this time, the victim had fired his own shot, and Petitioner had made it outside. Once outside, Petitioner and the victim continued shooting at each other. Petitioner said he didn't shoot the victim inside the store; he was hit after chasing Petitioner outside.[19] Petitioner wrapped up the direct examination by saying he did not intend to kill the victim. He only intended to rob the store.

         On cross examination, Petitioner stuck to his story about what happened in the shop-he never admitted that he fired two shots inside the shop, one at the employee who was lying behind the counter, and one at the victim, with the pistol just 15 to 18 inches from the victim's chest.

         Petitioner also stuck to his version of what happened during the robbery in Washington, D.C. That is, Petitioner said he did not have the shotgun with him when he robbed the victim. He acknowledged the plea agreement-where he admitted to putting a loaded shotgun to the victim's back-but said he was willing to admit facts that didn't happen because of the plea deal. This concluded Petitioner's testimony.

         Trial Counsel finished up by calling Caseworker Watson. As we explained above, he created the sentencing plan that the Superior Court considered in Petitioner's robbery case. Caseworker Watson worked with Petitioner for about a year and a half, and he said that he found Petitioner to be both personable and likeable. He thought Petitioner "had a lot of potential." To prepare the plan, Caseworker Watson spoke with the Thomases to better understand Petitioner's background. He talked to them "on a very regular basis, maybe once a week." After talking to the Thomases, Caseworker Watson "could see" "that [Petitioner] came from a good family." Mrs. Watson, especially, gave him something to "latch onto," something he "could convince the [C]ourt was worth investing in." He called them Petitioner's "support."

         As part of his work on Petitioner's case, Caseworker Watson arranged for a clinical psychologist and an educational psychologist to evaluate Petitioner. (We consider these reports in detail below.)

         Finally, Caseworker Watson discussed his attempt to enroll Petitioner at Howard University. He introduced Petitioner to "certain deans" at Howard, and Petitioner "impressed" them. Caseworker Watson was unable to take the next step, though, and have Petitioner apply for admission because he "wasn't able to raise enough money to insure his tuition."[20] He concluded his testimony on direct examination with this: "[I]f we had been able to provide tuition and he could have been a student at Howard, I'm convinced that his life would have been different. I know this."[21]

         With this, the parties rested and made their closing arguments.

         3.

         The State argued that life without parole was inadequate given the nature of the murder. It also noted that Petitioner attempted to pin part of the responsibility on the victim and that he showed no remorse.

         The State said that Petitioner should have admitted that the murder happened just as the State's evidence showed: that is, he fired two shots intending to kill two people, both at close range. The State compared Petitioner's version of the murder-that he shot the victim after he was out of the store, and only because the victim was shooting at him-with Petitioner's explanations of his criminal history. He cashed the U.S. Treasury check "because some of his friends talked him into it." He didn't really put a shotgun to his victim's back during the robbery in Washington, D.C. He missed curfew at the halfway house "because the taxi cab driver was late." Petitioner's troubles were always someone else's fault, according to the State. Turning to the lack-of-remorse argument, the State claimed that Petitioner was not sorry for what he did; it said he would "brag" about the murder in prison.

         Trial Counsel argued for a life sentence without parole. He claimed that Petitioner would not kill again if he were sentenced to life without parole. Turning to the murder itself, Trial Counsel argued that the murder happened just as Petitioner said it did. That is, Petitioner entered the bait shop with no intention of killing anyone. Trial Counsel argued that Petitioner was remorseful and was reminded of what he did every day. He also tried to humanize Petitioner, calling the Thomases "a good strong family" that taught him right and raised him well. He said Petitioner's tragic mistake was moving in with his dysfunctional mother in Washington, D.C.

         The jury recommended the death penalty, and the Court sentenced Petitioner to death.

         II.

         Petitioner appealed to the Supreme Court of Georgia and raised one argument that's relevant here: he said the trial court-by allowing the jury to see him in shackles-denied his rights to due process, equal protection, a fair trial, and a reliable determination of punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Although Petitioner wore shackles during both phases of the trial, the Supreme Court of Georgia held that the jury did not see them during the guilt-innocence phase. Whatley, 509 S.E.2d at 52.

         The Court implied that the jury did in fact see the shackles during the penalty phase, but it rejected the claim under the invited error doctrine. See id. Indeed, it was the State that raised the shackles issue before the penalty phase, and Trial Counsel said, "[w]ell, he's convicted now" and allowed Petitioner to take the stand in front of the jury. Id. (alteration in original). The Court said, "A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." Id. (quoting Dennard v. State, 435 S.E.2d 26, 29 (Ga. 1993)).

         The Court affirmed Whatley's convictions and death sentence, see id. at 53, and the Supreme Court of the United States denied certiorari review, Whatley v. Georgia, 526 U.S. 1101, 119 S.Ct. 1582 (mem.), reh'g denied, 527 U.S. 1016, 119 S.Ct. 2361 (1999) (mem.).

         III.

         Petitioner filed a petition for writ of habeas corpus in the Superior Court of Butts County. Whatley v. Schofield, No. 99-V-550 (Ga. Super. Ct.). Petitioner claimed that Trial Counsel provided ineffective assistance (1) by failing to investigate and present mitigating evidence about his background and mental health (the "Mitigation Claim") and (2) by not objecting to Petitioner's appearing before the jury in shackles during the penalty phase (the "Shackles Claim"). By this time, Trial Counsel had died, so the State Habeas Court did not have the benefit of his testimony in deciding whether he provided ineffective assistance under Strickland.

         We address each claim separately.

         A.

         The State Habeas Court considered many sources of evidence in deciding the Mitigation claim: the pleadings the State filed while prosecuting the case; the trial transcript; Trial Counsel's hand-written notes that he kept in his case file; Trial Counsel's timesheet entries (which reflected the work he did); the testimony of Trial Counsel's investigator, Dewey Yarbrough ("Investigator Yarbrough"); the testimony of others whom Trial Counsel contacted before and during the trial; and the evidence Petitioner's habeas counsel presented.

         The Court held an evidentiary hearing on the Mitigation Claim. We consider Petitioner's evidence first and then take up the State's response.

         1.

         We group the evidence Petitioner presented to the State Habeas Court into three categories: (1) five reports stemming from the YCA Study, [22] which the Superior Court ordered after Petitioner pled guilty in the robbery case-we refer to these collectively as the "1988 Reports"; (2) affidavits about Petitioner's childhood, from people familiar with his family situation growing up; and (3) affidavits related to Petitioner's mental health-one from a clinical psychologist, Dr. Lisak, and another from a psychiatrist, Dr. Dudley.

         Although we group the evidence into three categories, there are two common threads running through each category: Petitioner's troubled childhood and his mental health. Those threads are the bedrock of Petitioner's Mitigation Claim, so that's where we focus our attention.

         a.[23]

         The 1988 Reports note that Petitioner's mother neglected her parental duties, and he was raised by his great-aunt and great-uncle. One report says that his great-uncle "provided an excellent role model" for Petitioner "during his formative years." Another one claims that Petitioner "reported a good relationship with his great aunt and uncle." The report also says that Petitioner had "a stable upbringing in his early years," but Petitioner did note "that his great uncle drank regularly and gave him beer" at a young age. Petitioner reported that he began using marijuana at age 15; he also used cocaine in high school.

         The 1988 Reports contain two psychological evaluations of Petitioner. One evaluation was done by a psychologist who reported that Petitioner "has uncontrollable impulses which brings him into constant conflictual situations with others because of his naive appreciation of how one plans, executes and attains realistic goals." The report also observed that Petitioner "feels he will be able to get away with anything because he can outsmart" others. It described his "emotional understanding and development" as "delayed and infantile." The report said Petitioner "is fighting against a very disturbed and painful emotional state but decompensating rapidly and escaping through drugs for relief." It noted Petitioner's "schizophrenic symptoms" and attributed much of his hardship to a desire to be closer to his mother: "[Petitioner] is experiencing a mental health breakdown and needs intensive intervention though psychotherapy to help him address his needs before he drifts into more serious adventures in an attempt to get the attention of his mother." The report concluded by recommending "long-term psychotherapy" and "drug therapy."

         The other report was done by a clinical psychologist, and the report explains the findings of many tests that were given to Petitioner. One test[24] measured Petitioner's "current level of intellectual functioning" as being "in the Low Average range of ability."[25] But the report pointed out that Petitioner's "potential is at least in the upper half of the Average range . . ., if not higher."[26] As for Petitioner's "[p]ersonality [f]unctioning," the report noted that he "appears to be experiencing considerable anxiety about his ego integrity, suggesting that the anxiety is so great at times that he comes close to being overwhelmed and losing his sense of reality." "Although some [of] his responses indicate idiosyncrati[c] perceptions and thinking, he does not appear to have schizophrenia." The report said that "[i]t is possible that under a great deal of emotional stress [Petitioner] could become psychotic, but such symptomology is likely to be temporary." Petitioner's "most important need," according to the report, "is intensive psychotherapy to deal with the emotional problems that underlie his drug usage." The report concluded with this: "Despite the complexity of [Petitioner's] problems, he has the capacity to improve his functioning and [to] become a productive member of society."

         According to Petitioner, if Trial Counsel had read the 1988 Reports, he would have asked for a trial continuance so he could investigate the information in those Reports. A more thorough investigation would have revealed a childhood that was anything but perfect.

         b.

         To show what Petitioner's childhood was really like, and what a more thorough investigation would have turned up, Petitioner presented affidavits from seven people to the State Habeas Court. Notably, three of the seven witnesses also testified during the penalty phase. We focus on the testimony of those three and summarize the testimony of the other four.

         Lorraine Goodman said in her affidavit that the great-aunt and great-uncle were "overly protective" of Petitioner and "smothered him." She suggested that the Thomases did not let Petitioner play with other children and kept him isolated from the outside world. During the penalty phase of the trial, Ms. Goodman said she was unaware of Petitioner getting into any trouble while living with the Thomases. She also said they took Petitioner to church regularly, and she thought he was "a respectful young man" when he was living with the Thomases. Finally, Ms. Goodman said that she heard Petitioner testify that he had an "idyllic childhood" with the Thomases-she never suggested during the penalty phase that Petitioner did not in fact have an ideal childhood.

         Janet Wyche's affidavit mirrored Ms. Goodman's; she said the Thomases were overly protective of Petitioner and "never wanted [him] to play outside with the other kids." During her testimony at the penalty phase of trial, Ms. Wyche said nothing about Petitioner's childhood or his experience living with the Thomases.

         Cleveland Thomas, Jr., said in his affidavit that Petitioner's great-uncle "drank." He also said that he has "always believed that something traumatic happened to [Petitioner]" because Petitioner's attitude about school changed "all of a sudden" before Petitioner was a teenager. This was just something that Mr. Thomas "felt"-Petitioner never told him anything of the sort. Nor did Mr. Thomas imply that the Thomases were responsible for this supposed traumatic event. During the penalty phase of the trial, Mr. Thomas did not comment on Petitioner's childhood, other than to say that Petitioner was "nice" and "mannerable" when living with the Thomases.

         The other four witnesses who submitted affidavits to the State Habeas Court did not testify during the penalty phase. They described Petitioner's childhood and painted a picture that was very different from the one Petitioner painted during his testimony at the penalty phase. We summarize their affidavits below.

         Petitioner's mother[27] said that Cleveland Thomas was abusive and that he drank a lot. She claimed he yelled at Marie and choked her. She was "terrified" when she found out that Cleveland and Petitioner slept in the same bed while Petitioner was growing up. This terrified her because, in her words, Cleveland was a "child molester"; according to Petitioner's mother, Cleveland molested her when she was a child. Petitioner's mother described a time when Petitioner came to visit her in Washington, D.C. During the visit, she told Petitioner two "things that he was not old enough to handle": (1) the man that Petitioner thought was his father was not actually his father and (2) Cleveland raped her when she was nine months pregnant with him. Finally, one of her friends "forced herself on [Petitioner] and had sex with him" during that visit.

         Petitioner's aunt[28] called Cleveland "a drinker, a womanizer, and a wife beater." She said he was "a mean, abusive man." She claimed that Marie "worked hard to make things look good from the outside," despite Cleveland's behavior.

         A neighbor[29] said that she "felt sorry for" Petitioner when they were growing up because "Cleveland was a crazy drunk." The Thomases never let Petitioner do what the other kids were doing, and this neighbor "just knew [Petitioner] was going to grow up with problems because they were so overprotective." She said Petitioner "was not raised normally at all" because "[h]e was not allowed to play with other kids, he slept . . . with Cleveland, and he had to deal with Cleveland's drunken, violent episodes."

         Another neighbor[30] from Petitioner's childhood said that the Thomases "were extremely protective of" Petitioner; they never let him play outside. She described Petitioner's home life as "far from normal" because Cleveland drank and would fight with Marie. "Cleveland was known in our neighborhood as a crazy, violent, and scary drunk," she said.

         These affidavits were vital to the mental health opinions that Petitioner presented to the State Habeas ...


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