The opinion
Case: 20-61019 Document: 253-1 Page: 1 Date Filed: 11/22/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 20-61019 FILED
____________ November 22, 2024
Lyle W. Cayce
Charles Ray Crawford, Clerk
Petitioner—Appellant,
versus
Burl Cain, Commissioner, Mississippi Department of Corrections;
Earnest Lee, Superintendent, Mississippi State Penitentiary,
Respondents—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:17-CV-105
______________________________
Before Elrod, Chief Judge, and Jones, Smith, Stewart, Richman,
Southwick, Haynes, Higginson, Willett, Ho, Duncan,
Engelhardt, Oldham, Wilson, and Douglas, Circuit Judges. *
_____________________
*
Judge Graves is recused and did not participate in this decision. Judge
Ramirez joined the court after the case was submitted and did not participate in this
decision.
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Per Curiam:
Charles Ray Crawford petitions for habeas relief. As a prisoner held
pursuant to a state court judgment, Crawford must overcome the strictures
of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996.
He cannot, so we affirm.
I
Crawford raped a 17-year-old girl. A Mississippi court convicted him
and sentenced him to 46 years of imprisonment. The Mississippi Supreme
Court affirmed on direct review. See Crawford v. State, 192 So. 3d 905 (Miss.
2015). Crawford sought state postconviction relief, arguing for the first time
that the trial court violated his procedural due process right to expert assis-
tance in asserting his insanity defense under Ake v. Oklahoma, 470 U.S. 68
(1985). The state supreme court held Crawford procedurally defaulted this
claim because it “could have been raised in the direct appeal.” ROA.3167.
The court also denied Crawford’s ineffective-assistance-of-counsel claims
and found the rest of Crawford’s claims to be “without merit.” Ibid.
Crawford next filed a habeas petition in federal district court. The
district court denied the petition but granted Crawford a certificate of appeal-
ability. Crawford timely appealed.
II
A
Crawford contends that his trial and direct-appeal lawyers provided
constitutionally ineffective assistance in failing to preserve his Ake claim.
To establish ineffective assistance of counsel, Crawford must show
that counsel’s failure was both (1) objectively deficient and (2) prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Evitts v. Lucey, 469
U.S. 387, 396–97 (1985) (Strickland claims against direct-appeal counsel).
2
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“Strickland’s first prong sets a high bar.” Buck v. Davis, 580 U.S. 100, 118
(2017). There is “a strong presumption that counsel’s representation was
within the wide range of reasonable professional assistance.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quotation omitted).
Moreover, both claims were adjudicated on the merits in state court,
so AEDPA’s relitigation bar applies. See 28 U.S.C. § 2254(d). So Crawford
must show the state court’s adjudication of the claim “resulted in a decision
that . . . involved an unreasonable application of[] clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). And because the Mississippi Supreme Court did not explain
why it rejected Crawford’s ineffective-assistance claims, we “must deter-
mine what arguments or theories . . . could have supported[] the state court’s
decision; and then [we] must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.” Richter, 562 U.S. at 102.
Crawford cannot meet this demanding standard. We start with Craw-
ford’s direct-appeal lawyer, who failed to raise an Ake claim. “Declining to
raise a claim on appeal . . . is not deficient performance unless that claim was
plainly stronger than those actually presented to the appellate court.” Davila
v. Davis, 582 U.S. 521, 533 (2017). And “[i]n most cases, an unpreserved trial
error will not be a plainly stronger ground for appeal than preserved errors.”
Ibid.; see also Smith v. Robbins, 528 U.S. 259, 288 (2000). Here, the state court
found that trial counsel defaulted the Ake claim, and that Crawford’s direct-
appeal counsel did not violate the Sixth Amendment by failing to raise that
unpreserved claim.
We cannot say that every fairminded jurist would disagree with the
state court’s decision. Crawford does not point to any record evidence that
the state trial court ever denied a request under Ake; to the contrary, the trial
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court expressly noted that its preliminary rulings on the matter were “with-
out prejudice to further motions from either side for examination or for
funds.” ROA.2069. Crawford never filed a further motion and hence
defaulted his Ake claim in the trial court. Crawford’s direct-appeal lawyer did
not violate the Sixth Amendment by failing to press the unpreserved Ake
claim. And we cannot say the unpreserved Ake claim was “plainly stronger
than those actually presented to the appellate court.” Davila, 582 U.S. at 533.
Much less can we say that all fairminded jurists of reason would reject
the state court’s resolution of this issue. Thus, Crawford’s ineffective-
assistance-of-appellate-counsel claim cannot surmount AEDPA.
Crawford next contends that his trial counsel violated the Sixth
Amendment by failing to raise an Ake claim. This claim also fails to surmount
AEDPA’s relitigation bar for the reasons given by the district court in its
careful and thorough opinion. See ROA.963–69. Moreover, by the time of
Crawford’s rape trial, a different jury had heard and rejected Crawford’s
insanity defense in a related assault trial. That effectively disproves prejudice
under Strickland, Brecht v. Abrahamson, 507 U.S. 619 (1993), and AEDPA.
McWilliams v. Dunn, 582 U.S. 183 (2017), is not to the contrary. That
decision postdates the relevant state court decisions and hence cannot be
used to push aside AEDPA’s relitigation bar. See, e.g., Greene v. Fisher, 565
U.S. 34, 38 (2011) (“[Section] 2254(d)(1) requires federal courts to focus on
what a state court knew and did, and to measure state-court decisions against
this Court’s precedents as of the time the state court renders its decision.” (quo-
tation omitted)). And neither McWilliams nor Ake involved an unpreserved
claim of constitutional error, an allegedly ineffective direct-appeal lawyer, or
an insanity defense that had been rejected by the defendant’s first jury.
In the absence of an ineffectiveness claim that can surmount
AEDPA’s relitigation bar, Crawford cannot show cause for defaulting his
4
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Ake claim. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Davila, 582
U.S. at 527. Crawford does not argue that another form of cause could apply.
Therefore, the claim is defaulted and barred from review here.
B
The dissenting opinion offers a different understanding of facts that
occurred more than 30 years ago. But AEDPA demands far more. The
dissenting opinion cannot identify any case that found ineffective assistance
of appellate counsel for failure to raise an unpreserved trial error. Nor does
the dissenting opinion offer any non-conclusory contention that Crawford’s
unpreserved Ake claim was stronger—much less “plainly stronger”—than
the claims his appellate counsel raised. Davila, 582 U.S. at 533 (emphasis
added); see also Robbins, 528 U.S. at 288. Finally, the dissenting opinion relies
heavily on a post hoc affidavit filed by Crawford’s trial counsel James Pannell,
which he wrote in 2015 (22 years after the trial) and filed for the purpose of
helping Crawford’s postconviction application. Post, at 13–16 (Richman,
J., dissenting).
But that affidavit points to no then-existing evidence that counsel
overlooked at the time of the trial; offers no theory (even with the benefit of
20/20 hindsight) for why it would have been a superior trial strategy to
devote time and resources to undermining the competency and sanity evalu-
ations performed at the Mississippi State Hospital in December 1992 and
February 1993 rather than to pursue the “hybrid” strategy Pannell chose;
and ignores the fact that trial counsel’s “hybrid” strategy won Crawford an
acquittal on one of the two charges he faced. That a defense strategy does not
“work out as well as counsel had hoped” is not proof “that counsel was in-
competent.” Richter, 562 U.S. at 109. Much less is it proof that Crawford can
overcome AEDPA’s relitigation bar. And that presumably explains why the
5
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dissenting opinion cannot identify a case granting habeas relief where trial
counsel was as successful as Pannell was.
* * *
AFFIRMED.
6
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Priscilla Richman, Circuit Judge, joined by Southwick,
Higginson, and Douglas, Circuit Judges, dissenting:
I respectfully dissent because Crawford’s trial counsel and direct
appeal counsel were ineffective. Reasonably competent trial counsel and
reasonably competent appellate counsel would have determined and
diligently pursued the rights clearly established by the Supreme Court’s
longstanding precedent in Ake v. Oklahoma. 1 The Supreme Court held in
1985 that “when a defendant demonstrates to the trial judge that his sanity at
the time of the offense is to be a significant factor at trial, the State must, at a
minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation, preparation,
and presentation of the defense.” 2
One of Crawford’s defenses during the rape trial was that he
periodically blacked out and did not remember if he had in fact raped the
victim. There was testimony from the victim herself and a witness who was
assaulted in tandem with the rape that Crawford’s appearance changed at the
time of the crime. His eyes became dilated, he stopped blinking, he had a
blank stare, and he appeared scared. 3 Crawford relied on this and other
evidence to present an insanity defense. But crucially and unlike the
government, he did not have an expert either to assist his trial counsel in
determining that Crawford suffered brain damage or to testify that
_____________________
1
470 U.S. 68 (1985); see also McWilliams v. Dunn, 582 U.S. 183, 186 (2017)
(clarifying that Ake “clearly established” an indigent defendant’s right to an expert
“independent from the prosecution”).
2
Ake, 470 U.S. at 83.
3
ROA.2543-46, 2594, 2599, 2605-06.
7
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Crawford’s behavior was consistent with brain damage and certain
conditions flowing from it.
I
The facts of this case are somewhat complicated. Crawford was tried
for three serious crimes in Mississippi state courts. In one of those cases,
Crawford was convicted of murder and sentenced to death. 4 That conviction
is not before us. But Crawford’s contentions regarding the murder impacted
the proceedings in the state court as to the present conviction, which was for
the rape of a seventeen-year-old victim identified as “Sue” in Crawford’s
direct appeal of the rape conviction 5 and as “K.R.” in briefing before our
court. Before the conviction in the present rape case, Crawford was also tried
and convicted for the aggravated assault of Sue’s companion, Nicole, during
the course of events leading to Sue’s rape. 6 Crawford hit Nicole over the
head with a hammer. 7 Prior to trial in these two cases, Crawford indicated
he intended to pursue an insanity defense. 8 He claimed that he experienced
blackouts and did not remember assaulting Nicole or raping Sue. Crawford
was evaluated for competency to stand trial in both cases. 9 Three days before
Crawford’s trial for the aggravated assault of Nicole was to begin, Crawford
was arrested on January 30, 1993, for the murder of Kristy D. Ray the day
before, January 29, 1993. 10 Crawford claimed that he experienced several
_____________________
4
Crawford v. State, 716 So. 2d 1028 (Miss. 1998).
5
See Crawford v. State, 192 So. 3d 905, 907 (Miss. 2015).
6
See Crawford v. State, 787 So. 2d 1236, 1238 (Miss. 2001).
7
Id. at 1240.
8
Crawford, 192 So. 3d at 909.
9
Id.
10
Id.
8
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blackouts during the time he abducted and later killed Ray, and that he did
not recall killing her. 11 As a consequence of these developments, Crawford
was then again evaluated for competency to stand trial for the rape of Sue. 12
Crawford was evaluated at the Mississippi State Hospital. 13
The trial court repeatedly declined to provide Crawford with a
psychiatrist or other mental health care professional, other than a state
expert, to evaluate Crawford and assist counsel in defending him, even
though Crawford was indigent and that is what Ake required. Instead, the
state trial court insisted that state experts must first evaluate Crawford to
determine whether he “in fact[] has some mental deficiency” before the
court would rule on the pending Ake motion. 14 In making proof of insanity a
precondition to expert assistance, the trial court violated clearly established
constitutional law. The Ake decision only requires a “threshold showing”
that “[the defendant’s] sanity is likely to be a significant factor in his
defense.” 15 In essence, the trial court gave the State the power to foreclose
access to an expert witness for Crawford.
Trial counsel failed to pursue Crawford’s rights diligently under Ake
by failing to renew and pursue arguments in support of the Ake motion. 16 The
state trial court declined to authorize funds for an expert, as required by Ake,
_____________________
11
See Crawford v. State, 716 So. 2d 1028, 1034-35 (Miss. 1998).
12
See Crawford, 192 So. 3d at 910.
13
Id.
14
ROA.2096; see also ROA.2069 (“I’m not going to spend $3,000 of Tippah
County’s money.”).
15
Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985).
16
See Crawford v. Lee, No. 3:17-CV-105-SA-DAS, 2020 WL 5806889, at *11 (N.D.
Miss. Sept. 29, 2020).
9
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on more than one occasion, continually deferring a ruling on the pending Ake
motion. This was a violation of clearly established federal law.
Crawford’s trial counsel failed to articulate and pursue the Ake claim
even though he knew of facts that indicated possible brain damage and that
Crawford had a history of seizures. Those facts and other facts regarding
Crawford’s history of mental health issues are detailed in Crawford’s brief to
the panel in this case, and in the interest of brevity, will not be repeated here.
Most importantly, before the rape trial commenced, Dr. Hutt stated
in an affidavit that “these subsequent seizures could possibly be caused by
organic brain damage resulting from a severe head injury he suffered in his
late teens.” 17 Dr. Hutt recommended further neurological testing,18
explaining that an expert would have to perform that testing to properly
evaluate whether Crawford had brain damage. 19
Another expert, Dr. Webb, likewise told trial counsel, who was also
Crawford’s trial counsel for murder charges pending while the rape charges
proceeded, that Webb believed Crawford “may suffer from organic brain
damage.” 20 Webb’s affidavit stated, “I have informed Mr. Crawford’s
attorneys that a full psychological work-up of Mr. Crawford will not be
complete until it is determined whether his various symptoms have caused
or are the result of organic brain damage.” 21 Webb’s affidavit further said,
“I strongly recommend that he undergo a neuropsychological battery to
_____________________
17
ROA.3009.
18
ROA.3009.
19
ROA.1043, 3009.
20
ROA.3158.
21
ROA.3159.
10
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determine the existence and extent of any brain dysfunction.” 22 Because
Webb’s affidavit was prepared in March 1994, the federal district court
discounted this affidavit, concluding that Webb did not give this advice to
trial counsel until after the rape trial. With great respect, that is not a fair
reading of the affidavit. The affidavit states Webb was retained by
Crawford’s sister in anticipation of his trial for capital murder, and the
affidavit clearly states that Webb evaluated Crawford in April 1993. 23 The
assault trial commenced in May 1993. 24 The rape trial did not occur until
August 1993. 25 The murder trial commenced and the death penalty was
imposed in April 1994. 26 It strains reason to conclude that Webb waited until
after the rape trial, which occurred months after he evaluated Crawford, to
communicate his findings to counsel, who was the same person defending
Crawford for the rape, aggravated assault, and murder charges in April 1993,
well before the rape trial. In any event, Dr. Hutt’s advice to trial counsel
alone was sufficient notice that further testing of Crawford by qualified
professionals was required.
Trial counsel failed to heed the advice he received from these mental
health experts, due to either ignorance of, or indifference to, Ake’s
requirements. In either case, trial counsel was objectively ineffective. The
insanity defense was pursued at the rape trial, without evidence that had
some probability of persuading the jury to find in Crawford’s favor.
_____________________
22
ROA.3158.
23
ROA.3157.
24
See Crawford v. Lee, No. 3:17-CV-105-SA-DAS, 2020 WL 5806889, at *4 (N.D.
Miss. Sept. 29, 2020).
25
See id. at *4, *5.
26
See id. at *5.
11
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Despite Hutt and Webb’s recommendation that Crawford undergo
further neurological testing, it appears that Crawford did not receive an
extended EEG until six days after being found guilty of rape. 27 The extended
EEG revealed “unusual wave form” activity in Crawford’s front lobe. 28
While Dr. Hutt was told that an EEG was performed prior to trial (but not
shown the results), Dr. Russell, who was treating Crawford at the time and
was a witness for the state at Crawford’s rape trial, testified that an EEG had
been scheduled before trial but was cancelled “for some reason.” 29
In fact, it took years for a qualified physician to conduct a full
evaluation of Crawford. Nearly six months after the rape trial, Dr. Webb
continued to “strongly recommend that [Crawford] undergo a
neuropsychological battery,” noting that “until such is done, it cannot be
said that Mr. Crawford has had a complete psychological workup.” 30 But
this did not appear to happen until 2014 when Crawford began to prepare for
state habeas proceedings. 31
The majority opinion asserts that “by the time of Crawford’s rape
trial, a different jury had heard and rejected Crawford’s insanity defense in a
related assault trial.” 32 To the extent Crawford’s counsel mounted an
insanity defense in the assault trial, the jury heard essentially the same,
inadequately prepared and presented insanity defense. Neither jury heard
_____________________
27
ROA.1250, 3060.
28
ROA.3060.
29
ROA.3009, 1732-33.
30
ROA.713.
31
ROA.2492; Crawford Panel Br. at 51.
32
Ante at 4.
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the extensive evidence that was later developed and presented in Crawford’s
state habeas proceedings.
The state habeas record reflects that when Crawford was finally
evaluated by experts qualified in neurology and related disciplines, his
diagnosis supported evidence of his blackouts and behavior during the crime.
I will not summarize or recast Crawford’s briefing before the panel. Instead,
I will largely include it wholesale:
In the state habeas proceeding, Crawford presented a
report and affidavit from the board-certified neurologist,
Siddhartha Nadkarni, M.D., who specializes in the treatment
and diagnosis of epilepsy at NYU Medical Center. ROA.2492,
2915. After conducting a comprehensive review of Crawford’s
records and social history, and a full in-person neurological
examination, Dr. Nadkarni diagnosed Crawford with Severe
Brain Injury and Partial Epilepsy. ROA.2492, 2920.
[Crawford’s] neurological examination was
grossly abnormal and revealed significant central
nervous system injury with evidence of brain
injury as well. Charles has had untreated and
debilitating partial epilepsy from a very young
age. He is severely brain injured from the
epilepsy, repeated traumatic head injuries
starting at a young age in a developing brain, and
compounded by severe abuse and neglect as a
child, and comorbid migraine headaches.
ROA.2492.
Dr. Nadkarni was also able to explain that the “spells”
described to the jury were actually a sign of Crawford’s
untreated epilepsy:
Charles is described to have spells by several
people independently that were close to him.
The spells are remarkably stereotyped in their
13
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occurrence and description, a hallmark of
epileptic seizures. He is described to routinely in
childhood and young adulthood to have these
spells where he suddenly changes with dilation of
the pupils, a glazed look, unresponsiveness, “like
he’s not here,” a change in his voice, and even a
change in the color of his skin. He generally does
not look at the person he is talking to during
these. . . . It seems he could have several spells in
[a] short period and then really not recall what
happened during that period and shortly
thereafter, a well-documented phenomena called
“post-ictal[”] (after seizure(s)) amnesia. . . .
These seizures are most likely “complex partial
seizures,” meaning they start in a restricted area
of the brain and then spread enough to cause
alteration in awareness and behavior. Complex
partial seizures of temporal lobe origin can be
very bland appearing and missed for seizures.
ROA.2917-18.
More importantly, Dr. Nadkarni was able to testify that
Crawford’s reported periods of blackouts and his inability to
recall his actions constitute “a well-documented phenomenon
called post-ictal amnesia,” and that Crawford was “in a state
of repetitive partial complex seizures on the day of the rape.”
ROA.2493. This was evident, in part, from the way K.R. and
her friend described Crawford’s appearance at the time of the
crime:
Both girls stated that his eyes changed, he
stopped blinking, and he had a fixed blank stare
and a different look on his face that was not
normal. They stated that he looked like a
different person and looked at them differently in
that he stopped blinking his eyes and just stared.
One of the girls noted that his eyes were very
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dilated. These are all class symptoms of seizure
activity.
ROA.2493.
And most importantly, Dr. Nadkarni testified in his
affidavit that Crawford’s condition at the time of the crime met
the legal standard for insanity:
Charles was in an epilepsy related
delirium . . . resulting from acute seizures and
persistent post-ictal confusion in what was most
probably a non-convulsive status epilepticus. As
such, he would have had no awareness of his
actions, nor agency in committing them. In other
words, Charles was laboring under such a defect
of reason from his seizure disorder that he did
not understand the nature and quality of his acts
at the time of the crime. He is a severely brain-
injured man (corroborated both by history and
his neurological examination) who was
essentially not present in any useful sense due to
epileptic fits at the time of the crime.
ROA.2494.
In addition to providing testimony on Crawford’s
mental state at the time of the crime, Dr. Nadkarni could have
also rebutted the State’s contention that Crawford had a
personality disorder and was malingering his memory deficits.
Brain deficits like Crawford’s that affect “reasoning, problem
solving, and judgment . . . can be perceived by lay persons as
‘meanness’ or antisocial behavior, but with expert evaluation
and explanation are properly explained as deriving from
disruption and impairments to the nervous system.” Anderson
v. Sirmons, 476 F.3d 1131, 1144 (10th Cir. 2007). Indeed, Dr.
Webb strongly recommended neuropsychological testing to
trial counsel because “if Mr. Crawford suffers from brain
damage, this would effect [sic] that diagnosis . . . of Anti-Social
15
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Personality Disorder. . . . Since certain types of brain damage
decrease one’s ability to control impulses, brain damage may
factor into antisocial behavior.” ROA.3158.
Dr. Nadkarni arrived at this precise conclusion through
his evaluation of Crawford:
Charles was diagnosed with a “Personality
Disorder NOS,” with antisocial, dependent, and
explosive features. Actually he has an organic
cause for his behavior in that he has had so many
head injuries and a severe “Frontal Lobe
Syndrome,” with disinhibition in behavior, poor
judgment, difficulty with executive functioning,
impulsivity and aggression. The reason they gave
the “NOS” or “not otherwise specified,” is
because he did not fall into a typical personality
disorder, rather he had a frontal lobe syndrome
from repetitive head injury. His personality
features also were contributed to by his untreated
partial epilepsy, leading to altered sexuality and
memory difficulties. Uncontrolled seizures can
affect one’s memory, judgment, behavioral
control as well. It can also lead to many
psychiatric problems like mood disorders or
psychosis.
ROA.2920.
However, because Pannell [trial counsel] failed to obtain
this expert assistance, the State’s incorrect assessment of
Crawford went unchallenged and prevailed with the jury. 33
Crawford’s brief also asserts, and I agree, that:
The trial court’s denial of expert assistance clearly had
a “substantial and injurious effect or influence” on the jury’s
_____________________
33
Crawford Panel Br. at 51-54.
16
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verdict because Crawford was left to rely on his own testimony
and the testimony of two lay witnesses to present his insanity
defense, while the State had the benefit of two expert witnesses
who told the jury that Crawford was not mentally ill and was
simply faking his memory deficits. Crawford’s lay witnesses
could not compete with the State’s experts, especially because
they could only describe symptoms, but lacked the expertise
and education to diagnose Crawford or provide an explanation
for his behavior and blackouts. ROA.1649, 1686-87, 1679, 1682.
Most significantly, unlike the State’s testing and examinations
that counsel had been told were required, experts, they could
not offer an opinion on whether Crawford met the standard for
legal insanity because they lacked the expertise, and because
the trial court explicitly forbade them from offering an opinion
on the question. ROA.1648-49, 1686-87, 1678-79, 1682. 34
Trial counsel’s constitutional error unquestionably had a “substantial
and injurious effect or influence” on the jury verdict. 35 As the Supreme
Court observed in Ake, expert assistance is a “virtual necessity if an insanity
plea is to have any chance of success.” 36 That is particularly so here because
the State relied on two experts to meet its burden of proving sanity and
Crawford was denied “the raw materials integral to the building of an
effective defense.” 37 Nor did he have his own experts to assist with the cross-
_____________________
34
Crawford Panel Br. at 28-29.
35
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
36
Ake v. Oklahoma, 470 U.S. 68, 81 (1985) (quoting Martin R. Gardner, The Myth
of the Impartial Psychiatric Expert—Some Comments Concerning Criminal Responsibility and
the Decline of the Age of Therapy, 2 Law & Psych. Rev. 99, 113-14 (1976)).
37
Id. at 77.
17
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examination of the State’s experts. 38 For example, Dr. Russell, an expert for
the State, testified at trial that in his opinion, Crawford was “malingering,”
“faking or exaggerating symptoms of amnesia,” and “symptoms of memory
problems.” 39 In a case in which the Supreme Court held a state court’s
decision affirming a conviction was contrary to, or involved an unreasonable
application of, Ake, the Court observed “[t]here is reason to think” the
violation could have mattered because the trial judge, who was a factfinder at
sentencing and imposed a death sentence, “relied heavily on his belief that
[the defendant] was malingering.” 40 The Supreme Court continued, “[i]f
[the defendant] had the assistance of an expert to explain that ‘[m]alingering
is not inconsistent with serious mental illness,’ [the defendant] might have
been able to alter the judge’s perception of the case.” 41 The neurological
expert who presented evidence on behalf of Crawford in conjunction with his
state habeas application, Dr. Nadkarni, addressed malingering. 42 Crawford’s
trial counsel did not have an expert capable of providing such assistance
before or during trial.
Further, trial counsel’s fundamental misunderstanding of Ake
forecloses any possibility that his failure to renew and pursue the Ake motion
_____________________
38
Brown v. State, 152 So. 3d 1146, 1165-67 (Miss. 2014) (quoting Ake, 470 U.S. at
77) (ruling that due process was violated where trial court denied defendant’s Ake motion
and prosecution relied solely on expert witness to show culpability).
39
ROA.1760.
40
McWilliams v. Dunn, 582 U.S. 183, 200 (2017).
41
Id. (quoting Brief for American Psychiatric Association et al. as Amici Curiae
Supporting Petitioner at 20).
42
See ROA.2493-94 (“I am certain that Charles’s memory deficits are credible and
real, and are caused by his seizure disorder.”); see also ROA.2918-19 (Dr. Nadkarni’s
evaluation).
18
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No. 20-61019
was the sort of “strategic choice[]” that is “virtually unchallengeable.” 43
This is because “[a]n attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform basic research
on that point is a quintessential example of unreasonable performance under
Strickland.” 44
Pannell, the substituted trial counsel in the 1993 rape case, confirmed
that he misunderstood Ake, stating in a 2015 affidavit that he “did not renew
[the original trial counsel’s] motion for funds to hire an expert to conduct an
independent psychiatric evaluation,” because he mistakenly “did not see the
point in requesting funds since it was [his] understanding and belief that the
court would force [him] to use . . . the very same experts that would testify
for the State.” 45 He clarified that the evaluation by Dr. Nadkarni is
“precisely the type of expert testimony” that he would have used to present
an insanity defense in the rape trial. 46 Pannell’s understanding of the law was
plainly incorrect, and therefore deficient performance. As the Supreme
Court has explained, Ake “clearly established that . . . the State must provide
an indigent defendant with access to a mental health expert who is sufficiently
available to the defense and independent from the prosecution.” 47 Pannell,
mistakenly believing that he would not have access to an independent expert,
_____________________
43
Strickland v. Washington, 466 U.S. 668, 690 (1984).
44
Hinton v. Alabama, 571 U.S. 263, 274 (2014).
45
ROA.3165.
46
ROA.3165.
47
McWilliams v. Dunn, 582 U.S. 183, 186 (2017) (emphasis added).
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proceeded with the “hybrid defense” that ultimately led to Crawford’s
conviction. 48
Pannell’s mistake of law is similar to other instances where this court
and the Supreme Court have found deficient performance. Applying Hinton,
this court found deficient performance where trial counsel failed to “conduct
a mitigation investigation due to a misunderstanding of funding [limits] for
habeas investigations.” 49 Likewise, the Supreme Court found “deficient
performance where counsel ‘failed to conduct an investigation that would
have uncovered extensive records [that could be used for death penalty
mitigation purposes], not because of any strategic calculation but because
they incorrectly thought that state law barred access to such records.’” 50
The federal district court, whose reasoning the majority opinion
incorporates, concluded that discussion of Pannell’s affidavit and associated
past errors “does little to aid or influence the decision in this case.” 51 It is
true that Strickland requires an “assessment of attorney performance” free
of “the distorting effects of hindsight,” one that instead focuses on “the
conduct from counsel’s perspective at the time.” 52 However, this does not
foreclose consideration of the legal error that Pannell made at the time.
_____________________
48
ROA.966.
49
Canales v. Stephens, 765 F.3d 551, 569 (5th Cir. 2014).
50
Hinton v. Alabama, 571 U.S. 263, 274 (2014) (quoting Williams v. Taylor, 529
U.S. 362, 395 (2000)).
51
Crawford v. Lee, No. 3:17-CV-105-SA-DAS, 2020 WL 5806889, at *14 (N.D.
Miss. Sept. 29, 2020).
52
Strickland v. Washington, 466 U.S. 668, 689 (1984).
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Pannell’s admission that he did not understand the law in 1993 supports
deficient performance under Strickland and Hinton.
In the present appeal, the majority opinion finds Pannell’s post-
conviction affidavit lacking for other reasons, but with great respect, these
criticisms are straw men. Pannell’s affidavit candidly admits that he did not
know what Ake required. 53 This is discussed above in detail. That affidavit
provides solid support for the ineffective-assistance-of-trial counsel claim in
this regard. Nothing in the affidavit undercuts Pannell’s ineffectiveness.
The majority opinion says the “affidavit points to no then-existing
evidence that counsel overlooked at the time of the trial.” 54 However, the
relevance of the affidavit was that there was then-existing, well-established
federal law of which counsel was unaware and made no effort to find or study.
The majority opinion next says the affidavit “offers no theory (even
with the benefit of 20/20 hindsight) for why it would have been a superior
trial strategy to devote time and resources to undermining the competency
and sanity evaluations performed at the Mississippi State Hospital in
December 1992 and February 1993 rather than to pursue the ‘hybrid’
strategy Pannell chose.” 55 With great respect, I do not see the logic of this
argument. Pannell pursued an insanity defense at trial. He relied heavily
upon it. But he had no expert witness at trial, not one, while the
“competency and sanity evaluations performed at the Mississippi State
Hospital” concluded that Crawford was malingering and was not truthful
about his blackouts, and more to the point, that Crawford knew exactly what
_____________________
53
ROA.3165.
54
Ante at 5.
55
Ante at 5.
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he was doing when he raped Sue. 56 It is difficult to comprehend how it could
have been a “superior trial strategy” to accept the State’s evaluations and, at
the same time, hinge Crawford’s defense of the rape charge primarily on an
insanity defense. Pannell’s failure to understand Ake was not a trial strategy.
It was an indefensible failure to perform as competent counsel.
The majority opinion says the affidavit “ignores the fact that trial
counsel’s ‘hybrid’ strategy won Crawford an acquittal on one of the two
charges he faced,” and that “the dissenting opinion cannot identify a case
granting habeas relief where trial counsel was as successful as Pannell was.” 57
I measure success quite differently. Pannell was unsuccessful in defending
Crawford in the assault case that was tried before the rape case, and he was
unsuccessful in defending Crawford in the murder case, in which the insanity
defense was presented without the kind of expert testimony that was later
developed in the state habeas proceeding in the rape case. But most
importantly, the majority opinion cites no case, and I submit cannot cite a
case, for the proposition that if trial counsel obtains an acquittal of one charge
during a trial, that forecloses any possibility of habeas relief based on
ineffective-assistance-of-counsel as to another charge on which the
defendant was convicted. That is nowhere to be found in our habeas
jurisprudence.
The majority opinion also misapprehends the nature of Crawford’s
defenses against each charge. The jury acquitted Crawford on the
kidnapping charge because the evidence raised a reasonable doubt as to
whether the victim was actually kidnapped. Sue was the younger sister of
_____________________
56
ROA.1760; see also Crawford Panel Br. at 15 (“Without any expert witnesses,
Crawford relied on his own testimony and the lay testimony of his mother, Johnnie Smith,
and ex-wife, Gail Crawford, to present the insanity defense.”).
57
Ante at 5-6.
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Crawford’s ex-wife Janet. 58 Immediately after the rape occurred, Crawford
was remorseful, handed his gun to Sue, and asked her to kill him. 59 She did
not, and they began a journey to another state to see Janet. 60 They were
driven by another couple for some distance, who thought Crawford and Sue
were romantically involved. 61 Another individual then drove them further
and took them to a hotel room, where Crawford and Sue spent the night. 62
The next day, they were driven to a pay phone so Sue could call Janet to tell
her about the rape, which Sue did, and they were driven to a place where
Crawford could call the police and turn himself in, which he did. 63
Throughout many of these events, Sue had kept the gun. 64 As the federal
district court explained, the victim (Sue) “verbally indicated” that she would
cross state lines with Crawford, had “opportunities to escape or ask for
help,” and may not have “appear[ed] distraught.” 65
Moreover, Crawford did not claim he had blackouts during the
kidnapping episode, which spanned across two days. 66 In response to
questions about the alleged rape, Crawford asserted,
_____________________
58
ROA.1544.
59
ROA.1557-59.
60
ROA.1560.
61
ROA.1563, 1624-26.
62
ROA.1564-66.
63
ROA.1566-69, 1715-16.
64
ROA.1582-84, 1586-87, 1589, 1629, 1712.
65
Crawford v. Lee, No. 3:17-CV-105-SA-DAS, 2020 WL 5806889, at *14 (N.D.
Miss. Sept. 29, 2020).
66
ROA.1560-69 (describing the alleged kidnapping as having begun one day and
having ended the next day).
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No. 20-61019
“I can’t honestly say that I didn’t [rape the victim], and I can’t
sit here and tell you that I did. The only thing that I’ve got to
go by is what she said. I’m not going to lie and say I didn’t, and
I’m not going to turn around and lie and say that I did, because
I don’t know. 67
By contrast, he “remember[ed]” himself and the alleged kidnapping victim
“leaving in [his] truck and starting to Memphis” and that he had “told her
that [he] needed to go to Memphis . . . and [had] asked her if she wanted to
go with [him].” 68
The evidence as to whether Crawford raped Sue was vastly different.
She testified that he covered her mouth with tape and then bound her hands
behind her back with tape. 69 He then forcibly raped her without her consent,
according to Sue, while she was still bound, though she managed to lick the
tape around her mouth and tried to dissuade him from the sexual assault. 70
Authorities found tape with Sue’s hair on it when they investigated, as well
as other physical evidence that corroborated her account of events. 71
Crawford testified at trial that he did not remember raping Sue but could not
say that he did not rape her. 72 Sue also testified about hearing “a noise”
while she was bound and while Crawford had left her alone. 73 After the rape,
when Crawford took her back to the vehicle they arrived in with Nicole, Sue
_____________________
67
ROA.1703; see also ROA.1718.
68
ROA.1704; see also ROA.1718.
69
ROA.1554.
70
ROA.1555-56.
71
See, e.g., ROA.1531-33, 1610.
72
ROA.1702-03.
73
ROA.1557.
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No. 20-61019
asked where Nicole was. 74 Crawford did not say, but Sue saw a hammer in
Crawford’s hand. 75 This was consistent with Nicole’s being hit in the head
by a hammer while she was waiting in the vehicle for Crawford and Sue to
return from his home. The evidence that Crawford raped Sue was
overwhelming and virtually uncontested. His defense at trial depended on
the insanity defense. His defense to the kidnapping charge was in a far
different posture and depended on whether Sue was actually kidnapped.
The record thus shows that Crawford’s acquittal on the kidnapping
charge speaks not to the strategic soundness of the hybrid defense but rather
to the weakness of the facts underlying that charge. That acquittal, then,
cannot rebut the claim of Pannell’s deficient performance regarding
Crawford’s rights under Ake, which, ultimately, supplies the basis for the
habeas relief that Crawford seeks here.
The state habeas court’s rejection of Crawford’s ineffective-
assistance-of-trial-counsel claim was “contrary to, or involved an
unreasonable application of, clearly established Federal law” 76 because it
failed to recognize what Ake itself clearly established. As the Supreme Court
explained in McWilliams, “[Ake] requires the State to provide the defense
with ‘access to a competent psychiatrist who will conduct an appropriate [1]
examination and assist in [2] evaluation, [3] preparation, and [4] presentation of
the defense.’” 77 The Court explained that “[n]either [a state expert] nor any
other expert helped the defense prepare and present arguments that might,
_____________________
74
ROA.1558.
75
ROA.1558.
76
28 U.S.C. § 2254(d)(1).
77
McWilliams v. Dunn, 582 U.S. 183, 198 (2017) (quoting Ake v. Oklahoma, 470
U.S. 68, 83 (1985)) (emphases in original).
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No. 20-61019
for example, have explained that [the defendant’s] purported malingering
was not necessarily inconsistent with mental illness (as an expert later
testified in postconviction proceedings).” 78 The Supreme Court held that
“[s]ince Alabama’s provision of mental health assistance fell so dramatically
short of what Ake requires, we must conclude that the Alabama court
decision affirming McWilliams’[s] conviction and sentence was ‘contrary to,
or involved an unreasonable application of, clearly established Federal
law.’” 79 In the present case, trial counsel’s failure to understand what Ake
plainly required was clearly ineffective assistance, it was prejudicial to
Crawford’s defense, and the state habeas court’s failure to recognize this was
contrary to, or involved an unreasonable application of, clearly established
federal law.
II
Crawford’s appellate counsel was also ineffective. The facts
regarding Crawford’s mental health struggles and blackouts were in the
record. Trial counsel’s failure to pursue an unmistakable right under Ake to
assistance from a qualified mental health care expert was also glaringly
apparent from the record. There was no strategic reason for failing to pursue
an Ake failure-to-fund claim on direct appeal. To the contrary, appellate
counsel affirmatively averred that the failure to pursue the claim was an
oversight. Here are excerpts from his affidavit that make this clear:
8. During my review of Mr. Crawford’s case, I was
asked to give an affidavit for a petition for post-conviction relief
in Mr. Crawford’s capital case. In that affidavit, I pointed out a
number of errors that I had preliminarily identified that I
believed could be meritorious on appeal, including but not
_____________________
78
Id. at 199.
79
Id. (quoting 28 U.S.C. § 2254(d)(1)).
26
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No. 20-61019
limited to the denial of funding for an expert witness for Mr.
Crawford on his claim of insanity.
9. During the course of writing the brief in the direct
appeal of Mr. Crawford’s rape conviction, I became so focused
on the issues I ultimately raised that I overlooked the issue
regarding the denial of expert funding and failed to raise it on
direct appeal.
10. I had no strategic reason for not raising the denial of
expert funding issue in the direct appeal of Mr. Crawford’s his
[sic] rape conviction. It was an oversight on my part, and it was
not intentionally left out of Mr. Crawford’s direct appeal for
any reason, strategic or otherwise.
11. During oral argument before the Mississippi
Supreme Court on the direct appeal of Mr. Crawford’s rape
conviction, I first realized that I had failed to raise the denial of
expert funding issue on direct appeal through an oversight on
my part even though I believed the issue to be meritorious. I
was stunned, but it was too late to raise it at that juncture of the
direct appeal proceedings.
12. I devoted my full effort and professional skills in my
representation of Mr. Crawford in the direct appeal of his rape
conviction. I am extremely upset and embarrassed that I failed
to raise the denial of expert funding issue on direct appeal.
13. My failure to raise the issue of the denial of expert
funding on direct appeal was not an attempt to create a claim
of ineffective assistance of appellate counsel. Such an attempt
would be unethical and dishonest. Such an attempt would also
not have been in Mr. Crawford’s best interest because in my
opinion getting relief on the claim would be more difficult in
the context of an ineffective assistance of appellate counsel
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No. 20-61019
claim in post-conviction proceedings than by properly raising it
on direct appeal. 80
The majority opinion maintains that appellate counsel failed to raise
Crawford’s Ake claim on appeal because it was unpreserved. 81 But Crawford
persuasively argues it was not. Confusion on this point arises because trial
counsel withdrew the Ake motion in Crawford’s aggravated assault case, but
he did not do so in the rape case. Counsel stated that “[i]n case 5779 that’s
a moot question at this point” when the trial court asked about the motion to
provide funds for expert assistance. 82 As the State admits in its brief, the trial
court never issued an order denying the expert funding motion as withdrawn,
moot, or otherwise. 83 And as noted in appellate counsel’s affidavit above, he
did not press the Ake claim on appeal because he thought it was withdrawn—
he did so because of an “oversight.” Counsel’s sworn statement that the
failure to bring the Ake claim on appeal was an oversight supports the
conclusion that his failure to raise the issue was objectively unreasonable.
Even if the Ake claim were unpreserved, however, it was plainly a
stronger ground for appeal. It is true both that “[d]eclining to raise a claim
on appeal . . . is not deficient performance unless that claim was plainly
stronger than those actually presented to the appellate court,” and that “[i]n
most cases, an unpreserved trial error will not be a plainly stronger ground for
appeal than preserved errors.” 84
_____________________
80
ROA.2496-97.
81
Ante at 3-4.
82
ROA.1392.
83
Cain Panel Br. at 33.
84
Davila v. Davis, 582 U.S. 521, 533 (2017) (emphasis added).
28
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But, as the Seventh Circuit has observed, “‘most’ does not mean
‘all.’” 85 Here, as noted above, the trial court misapplied Ake by essentially
giving the State the power to foreclose access to an expert witness for
Crawford by making proof of insanity a precondition to expert assistance.
This was an obvious misapplication of Ake, which requires only a “threshold
showing” that “[the defendant’s] sanity is likely to be a significant factor in
his defense.” 86 As the Mississippi Supreme Court has observed, plain-error
review “will allow an appellate court to address an issue not raised at trial if
the record shows that error did occur and the substantive rights of the
accused were violated.” 87 That court has also observed that “[p]lain-error
review is properly utilized for ‘correcting obvious instances of injustice or
misapplied law.’” 88 Because the trial court obviously misapplied Ake,
Crawford had a strong argument for relief even under plain-error review.
Counsel’s failure to raise Ake on appeal was objectively unreasonable.
III
Section 2254(d) of the Antiterrorism and Effective Death Penalty Act
does not bar federal habeas relief on Crawford’s ineffective assistance
claims. 89 While the Mississippi Supreme Court adjudicated these claims on
the merits, 90 that court unreasonably applied clearly established law, as
_____________________
85
Ramirez v. Tegels, 963 F.3d 604, 617 (7th Cir. 2020) (affirming habeas relief for
ineffective assistance of appellate counsel who failed to raise Confrontation Clause claim
even assuming the claim was unpreserved).
86
Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985).
87
Byrom v. State, 863 So. 2d 836, 872 (Miss. 2003).
88
Smith v. State, 986 So. 2d 290, 294 (Miss. 2008) (quoting City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 256 (1981)).
89
See 28 U.S.C. § 2254(d)(1).
90
ROA.3167.
29
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determined by the Supreme Court of the United States. Crawford had a
clearly established right to the effective assistance of counsel, both at trial and
during his first appeal as of right. 91 And Ake “clearly establishe[d]” that
when an indigent defendant “‘demonstrates to the trial judge that his sanity
at the time of the offense is to be a significant factor at trial,’ . . . a State must
provide a mental health professional capable of . . . ‘conduct[ing] an
appropriate examination and assist[ing] in evaluation, preparation, and
presentation of the defense.’” 92
As noted by the majority opinion, the Mississippi Supreme Court did
not explain why it rejected Crawford’s ineffective assistance claims. 93 Thus,
we “must determine what arguments or theories . . . could have supported[]
the state court’s decision” and whether “fairminded jurists could disagree
that those arguments or theories are inconsistent with the holding in a prior
decision” of the Supreme Court. 94
The federal district court suggested that trial counsel affirmatively
decided not to pursue the Ake motion for funding in the state trial court. 95
The federal district court also concluded that the state trial court never
actually denied the motion for funding but instead, deferred it repeatedly,
_____________________
91
See Strickland v. Washington, 466 U.S. 668, 685-86 (1984); Evitts v. Lucey, 469
U.S. 387, 393-94 (1985).
92
McWilliams v. Dunn, 582 U.S. 183, 187 (2017) (quoting Ake v. Oklahoma, 470
U.S. 68, 83 (1985)).
93
Ante at 3.
94
Harrington v. Richter, 562 U.S. 86, 102 (2011).
95
See Crawford v. Lee, No. 3:17-CV-105-SA-DAS, 2020 WL 5806889, at *11 (N.D.
Miss. Sept. 29, 2020) (“Pannell told the court he was seriously considering defending both
the rape and kidnapping charges on the facts and withdrawing the insanity defense
completely. [] Both the record and Pannell’s affidavit indicate that he never renewed the
motion for funds as to the rape and kidnapping charge.”).
30
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before Crawford’s trial counsel decided to forego further pursuit of Ake
funding. 96 No one, including the State, and the federal district court, with
great respect, has offered a reasoned explanation as to why trial counsel was
not ineffective for abandoning a request for funding expert assistance, to
which Crawford was clearly entitled under Ake. What possible explanation
is there for trial counsel’s decision to present an insanity defense without
insisting on funding for expert evaluation of Crawford to determine if he
suffered from brain damage, as suspected by experts who did evaluate
Crawford but who, by their own admissions, were not qualified to assess brain
damage? Why would counsel fail to insist on Crawford’s rights under Ake to
obtain expert assistance to trial counsel in deciding how to best defend
Crawford in light of the questions raised about brain damage, seizures, and
blackouts? I have seen no explanation, whatsoever, in this record that would
support a debate among reasonable jurists as to whether counsel was
ineffective.
As to appellate counsel’s ineffectiveness on direct appeal, failing to
raise the Ake funding issue excused the procedural default of that issue before
the Mississippi Supreme Court. 97 But regardless of that procedural default,
Crawford is not barred from bringing his ineffective-assistance-of-trial-
counsel claim. State habeas counsel raised the ineffective-assistance-of-trial-
counsel claim at the first opportunity, which was in state habeas court
proceedings. State habeas counsel made a full record on what expert
evaluation would have revealed and what testimony could have been
_____________________
96
Id.
97
See, e.g., Murray v. Carrier, 477 U.S. 478, 488 (1986) (“[I]f the procedural default
is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that
responsibility for the default be imputed to the State . . . .”); Busby v. Dretke, 359 F.3d 708,
718 (5th Cir. 2004) (“Ineffective assistance of counsel is sufficient ‘cause’ for a procedural
default.”).
31
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presented at trial had trial counsel been effective. Appellate counsel on direct
appeal could not have made such a record or raised ineffective assistance of
trial counsel.
I would grant habeas relief.
32