from the United States District Court No.
7:04-cv-02923-RDP-RRA for the Northern District of Alabama
REMAND FROM THE SUPREME COURT OF THE UNITED STATES
TJOFLAT, WILSON, and JORDAN, Circuit Judges.
TJOFLAT, CIRCUIT JUDGE.
James McWilliams, is an Alabama prison inmate awaiting
execution for murder. A jury found McWilliams guilty as
charged and recommended that he be sentenced to death. At
McWilliams's sentencing hearing, his attorney requested,
under Ake v. Oklahoma,  that the court appoint a
psychiatrist to assist him in countering the State's
argument that McWilliams's mental health status was
insufficient to constitute a mitigating circumstance that
warranted imposing a sentence of life imprisonment rather
than death. The trial judge denied that request. The U.S.
Supreme Court, reviewing our denial of McWilliams's
application for a writ of habeas corpus under 28 U.S.C.
§ 2254, concluded that the trial judge's
refusal to provide the requested psychiatric assistance,
which the Alabama appellate courts had upheld,  constituted a
decision that was "contrary to, or involved an
unreasonable application of, clearly established Federal
law"-i.e., its holding in Ake v. Oklahoma-and
reversed. McWilliams v. Dunn, 137 S.Ct. 1790, 1801
(2017) (quoting 28 U.S.C. § 2254(d)(1)). The Court
remanded the case with the instruction that we consider,
under Brecht v. Abrahamson,  whether McWilliams is
entitled to the habeas writ and a new sentencing hearing. We
conclude that he is.
from the Supreme Court's opinion in McWilliams v.
Dunn in describing McWilliams's murder prosecution,
the circumstances that gave rise to his attorney's
request for psychiatric assistance, and why the refusal of
that request ran afoul of Ake.
[T]he State of Alabama charged McWilliams with rape and
murder. The trial court found McWilliams indigent and
provided him with counsel. It also granted counsel's
pretrial motion for a psychiatric evaluation of
McWilliams'[s] sanity, including aspects of his mental
condition relevant to "mitigating circumstances to be
considered in a capital case in the sentencing stage." .
. . .
Subsequently a three-member Lunacy Commission examined
McWilliams . . . . The three members, all psychiatrists,
concluded that McWilliams was competent to stand trial and
that he had not been suffering from mental illness at the
time of the alleged offense. . . .
McWilliams'[s] trial took place in late August 1986. On
August 26 the jury convicted him of capital murder. The
prosecution sought the death penalty, which under
then-applicable Alabama law required both a jury
recommendation (with at least 10 affirmative votes) and a
later determination by the judge. The jury-related portion of
the sentencing proceeding took place the next day. The
prosecution reintroduced evidence from the guilt phase and
called a police officer to testify that McWilliams had a
prior conviction. The defense called McWilliams and his
mother. Both testified that McWilliams, when a child, had
suffered multiple serious head injuries. McWilliams also
described his history of psychiatric and psychological
evaluations, reading from the prearrest report of one
psychologist, who concluded that McWilliams had a
"blatantly psychotic thought disorder" and needed
Although McWilliams'[s] counsel had subpoenaed further
mental health records from Holman State Prison, where
McWilliams was being held, the jury did not have the
opportunity to consider them, for, though subpoenaed on
August 13, the records had not arrived by August 27, the day
of the jury hearing.
After the hearing, the jury recommended the death penalty by
a vote of 10 to 2, the minimum required by Alabama law. The
court scheduled its judicial sentencing hearing for October
9, about six weeks later.
Five weeks before that hearing, the trial court ordered the
Alabama Department of Corrections to respond to
McWilliams's subpoena for mental health records. The
court also granted McWilliams'[s] motion for neurological
and neuropsychological exams. . . .
. . . Dr. John Goff, a neuropsychologist employed by the
State's Department of Mental Health, examined McWilliams.
On October 7, two days before the judicial sentencing
hearing, Dr. Goff filed his report. The report concluded that
McWilliams presented "some diagnostic dilemmas." On
the one hand, he was "obviously attempting to appear
emotionally disturbed" and "exaggerating his
neuropsychological problems." But on the other hand, it
was "quite apparent that he ha[d] some genuine
neuropsychological problems." . . . .
The day before the sentencing hearing defense counsel also
received updated records from Taylor Hardin hospital, and on
the morning of the hearing he received the records
(subpoenaed in mid-August) from Holman Prison. The prison
records indicated that McWilliams was taking an assortment of
psychotropic medications . . . .
The judicial sentencing hearing began on the morning of
October 9. Defense counsel told the trial court that the
eleventh-hour arrival of the Goff report and the mental
health records left him "unable to present any evidence
today." He said he needed more time to go over the new
information. Furthermore, since he was "not a
psychologist or a psychiatrist," he needed "to have
someone else review these findings" and offer "a
second opinion as to the severity of the organic problems
. . . [D]efense counsel moved for a continuance in order
"to allow us to go through the material that has been
provided to us in the last 2 days." The judge offered
to give defense counsel until 2 p.m. that afternoon. He also
stated that "[a]t that time, The Court will entertain
any motion that you may have with some other person to
review" the new material. Defense counsel protested that
"there is no way that I can go through this
material," but the judge immediately added, "Well,
I will give you the opportunity. . . . If you do not want to
try, then you may not." The court then adjourned until 2
During the recess, defense counsel moved to withdraw. . . .
The trial court denied the motion . . . .
When the proceedings resumed, defense counsel renewed his
motion for a continuance, explaining,
"It is the position of the Defense that we have received
these records at such a late date, such a late time that it
has put us in a position as laymen, with regard to
psychological matters, that we cannot adequately make a
determination as what to present to The Court with regards to
the particular deficiencies that the Defendant has. We
believe that he has the type of diagnosed illness that we
pointed out earlier for The Court and have mentioned for The
Court. But we cannot determine ourselves from the records
that we have received and the lack of receiving the test and
the lack of our own expertise, whether or not such a
condition exists; whether the reports and tests that have
been run by Taylor Hardin, and the Lunacy Commission, and at
Holman are tests that should be challenged in some type of
way or the results should be challenged, we really need an
opportunity to have the right type of experts in this field,
take a look at all of those records and tell us what is
happening with him. And that is why we renew the Motion for a
The trial court denied the motion.
The prosecutor then offered his closing statement, in which
he argued that there were "no mitigating
circumstances." Defense counsel replied that he
"would be pleased to respond to [the prosecutor's]
remarks that there are no mitigating circumstances in this
case if I were able to have time to produce . . . any
mitigating circumstances." But, he said, since neither
he nor his co-counsel were "doctors," neither was
"really capable of going through those records on our
own." . . .
The trial judge then said that he had reviewed the records
himself and found evidence that McWilliams was faking and
manipulative. . . .
The court then sentenced McWilliams to death.
McWilliams, 137 S.Ct. at 1794-97 (alterations within
quotation marks in original) (citations omitted).
appealed, arguing that the trial court had erred in denying
him the right to meaningful expert assistance guaranteed by
Ake. The Alabama Court of Criminal Appeals
disagreed. It wrote that Ake's requirements
"are met when the State provides the [defendant] with a
competent psychiatrist." McWilliams, 640 So.2d
at 991. And the State, by "allowing Dr. Goff to
examine" McWilliams, had satisfied those requirements.
was plainly incorrect," in the Supreme Court's view.
McWilliams, 137 S.Ct. at 1800. The trial judge's
conduct at the sentencing hearing "did not meet even
Ake's most basic requirements." Id.
Ake "requires the State to provide the defense with
'access to a competent psychiatrist who will conduct an
appropriate  examination and assist in 
evaluation,  preparation, and 
presentation of the defense." Id.
(quoting Ake, 470 U.S. at 83, 105 S.Ct. at 1096)
(alterations and emphasis in original).
Supreme Court assumed that the State
met the examination portion of [the Ake]
requirement by providing for Dr. Goff's examination of
McWilliams. But what about the other three parts? Neither Dr.
Goff nor any other expert helped the defense evaluate
Goff's report or McWilliams'[s] extensive medical
records and translate these data into a legal strategy.
Neither Dr. Goff nor any other expert helped the defense
prepare and present arguments that might, for example, have
explained that McWilliams'[s] purported malingering was
not necessarily inconsistent with mental illness . . . .
Neither Dr. Goff nor any other expert helped the defense
prepare direct or cross-examination of any witnesses, or
testified at the judicial sentencing hearing himself.
Id. at 1800-01.
concluded that the Alabama courts unreasonably applied its
holding in Ake, the Supreme Court remanded the case
to us to decide if "access to the type of meaningful
assistance in evaluating, preparing, and presenting the
defense that Ake requires would have mattered."
Id. at 1801. We deem the phrase "would have
mattered" to mean whether the denial of such assistance