FREDERICK R. WHATLEY, Petitioner-Appellee Cross Appellant,
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.
TJOFLAT, JORDAN, and HULL, Circuit Judges.
R. Whatley ("Petitioner") murdered a bait shop
owner in Georgia in 1995. He was convicted and sentenced to
death. 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 (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.
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.
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.
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? 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
recount the guilt-innocence phase and the penalty phase
Counsel defended Petitioner by putting the State to its
proof-that appeared to be the only available defense
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.
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.
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.
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.
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.
on this evidence, the jury found Petitioner guilty of malice
murder. Id. at 49.
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). 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
recount the penalty phase chronologically. We begin with the
State's case and then consider Petitioner's response.
We end with closing arguments.
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.
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.
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.
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
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,  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
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") before
sentencing. He would be sentenced after the studies were
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.
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. Petitioner's lawyer asked the Court to
sentence Petitioner to a term of probation, conditioned on
Petitioner's following the sentencing plan. 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
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.
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
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.
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." 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.
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.
the Court turned to the facts of the assault. Even after
considering Petitioner's "dubious" version of
the incident,  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." The Court revoked Petitioner's
probation and sentenced him to prison for a term of 4 to 12
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
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.
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
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.
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
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."
other witnesses testified and generally said positive things
Trial Counsel called Petitioner himself to the
stand. 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.
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.
also explained why he violated his probation in the forgery
case. He said he was required to stay at Hope
Village 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.
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
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.
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."
Petitioner explained how he wound up shooting the
victim. 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. Petitioner wrapped up the direct
examination by saying he did not intend to kill the victim.
He only intended to rob the store.
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.
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.
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
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.)
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." 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."
this, the parties rested and made their closing arguments.
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.
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.
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
jury recommended the death penalty, and the Court sentenced
Petitioner to death.
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.
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.
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.).
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.
address each claim separately.
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.
Court held an evidentiary hearing on the Mitigation Claim. We
consider Petitioner's evidence first and then take up the
group the evidence Petitioner presented to the State Habeas
Court into three categories: (1) five reports stemming from
the YCA Study,  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.
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.
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.
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
other report was done by a clinical psychologist, and the
report explains the findings of many tests that were given to
Petitioner. One test measured Petitioner's "current
level of intellectual functioning" as being "in the
Low Average range of ability." But the report pointed
out that Petitioner's "potential is at least in the
upper half of the Average range . . ., if not
higher." 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
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.
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.
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.
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.
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.
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
mother 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.
aunt 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
neighbor 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,
neighbor 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.
affidavits were vital to the mental health opinions that
Petitioner presented to the State Habeas ...