# Jackson v. United States

> District Court, W.D. North Carolina · June 19, 2009 · 638 F. Supp. 2d 514

URL: https://www.frixlaw.com/law-library/cases/2475823

## Case

- **Full name:** Richard Allen JACKSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent
- **Court:** District Court, W.D. North Carolina
- **Decided:** June 19, 2009
- **Citations:** 638 F. Supp. 2d 514; 2009 U.S. Dist. LEXIS 52179; 2009 WL 1796998
- **Precedential status:** Published
- **Opinion:** Opinion by Thornburg
- **Judges:** Thornburg
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2475823

## How later opinions describe it (automated extraction)

- concluding that ineffective assistance does not occur when “counsel deci[des] ‘to refrain from a vigorous attempt to change his client’s mind’” (quoting Jones, 947 F.2d at 1111 )
- explaining that ineffective assistance does not arise where “counsel decides] ‘to refrain from a vigorous attempt to change his client’s mind’ ”
- rejecting “bald assertions and conclusory allegations” as facially insufficient to support a claim on a motion under Section 2255

## Opinion text

MEMORANDUM OF OPINION AND ORDER
THORNBURG, District Judge.
THIS MATTER is before the Court on Petitioner’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 , filed November 16, 2004.
I. PROCEDURAL HISTORY OF THIS ACTION
Included in the prayer for relief of Petitioner’s motion are requests for discovery and an evidentiary hearing, along with a motion for leave to file amendments to the petition. In addition to his § 2255 petition, Petitioner also filed motions for leave to interview jurors and for the production of records from the Buncombe County Department of Social Services (“DSS”). The undersigned required the Government to file response to these motions/requests.
See
Order, filed November 22, 2004. Thereafter, Petitioner’s counsel requested “necessary funds to retain the assistance of experts.” Petitioner’s Motion for Funds for Expert Assistance, filed December 21, 2004.
1
Considering the Petitioner’s motions and the Government’s response, the undersigned denied each of the above requests, except that Petitioner was allowed to file amendments to his § 2255 motion without the Court deciding whether such amendments would relate back to the date of filing.
2
See
Order, filed January 31, 2005;
*521
see also,
Petitioner’s Amendment to Motion to Vacate, and Supplemental Memorandum, filed April 28, 2005; Second Amendment to Motion to Vacate, filed under seal July 17, 2006.
In May 2005, the undersigned granted the Petitioner’s motion for Government funds to retain the services of a private investigator. Petitioner’s Motion for Private Investigator, filed April 28, 2005; Order, filed May 12, 2005 (granting motion and limiting expenditure to $1,000 plus reasonable expenses);
see also,
Order, filed August 19, 2005 (reentering the May 12, 2005, Order for lack of service of the original order on Petitioner’s counsel). Thereafter, the Petitioner filed a motion for an extension of time to file further amendments and supplemental materials supporting his § 2255 motion along with a motion for an
ex parte
hearing on the issue of experts. Petitioner’s Motion for Extension of Time to File Supplemental Materials, filed November 16, 2005; Petitioner’s Motion for
Ex Parte
Hearing to Seek Additional Funds for Private Investigator and Other Necessary Expert Assistance, filed December 5, 2005. By Orders entered on June 16, 2006, the Court denied the Petitioner’s motions for an
ex parte
hearing and additional funds for experts and new deadlines were provided for the filing of additional claims by the Petitioner and responses by the Government. Order, filed under seal June 16, 2006; Order, filed June 16, 2006.
Petitioner then filed renewed motions for the appointment of experts.
See
Petitioner’s Motions to Appoint Experts (fingerprint expert, forensic audiology, forensic anthropology), filed under seal July 17, 2006;
see also,
Petitioner’s Explanation regarding Renewed Motions, filed under seal August 4, 2006. The Court again denied the relief sought. Order, filed under seal August 15, 2006.
The Government’s response to the § 2255 petition was filed on November 15, 2006; Petitioner’s reply thereto was filed January 16, 2007. Government’s Response in Opposition to Petitioner’s Motion to Vacate Conviction (“Government’s Response”), filed November 15, 2006; Petitioner’s Reply to Government’s Response (“Petitioner’s Reply”), filed January 16, 2007. The ease is, therefore, ready for disposition.
II. PROCEDURAL HISTORY OF THE UNDERLYING CRIMINAL CASE
On October 31, 1994, Karen Styles disappeared from a hiking trail in the Pisgah National Forest.
United States v. Jackson,
327 F.3d 273, 279 (4th Cir.),
cert. denied,
540 U.S. 1019 , 124 S.Ct. 566 , 157 L.Ed.2d 434 (2003). Three weeks later, her body was discovered by a hunter.
Id.
She had been killed by a single bullet to the head and had suffered ten stun-gun wounds to her body, nine of which were inflicted close to the pubic area.
Id.
Officers found a spent Remington .22 caliber rifle casing near the body which they ultimately traced to a local K-Mart.
Id.
The records maintained by the K-Mart showed that a .22 rifle and ammunition had been sold to the Petitioner on October 28, 1994.
Id.
at 279-80. After voluntarily accompanying police to the Buncombe County Sheriffs Department for an interview on December 20, 1994, the Petitioner confessed twice to murdering Styles.'
Id.
at 280.
The State of North Carolina prosecuted the Petitioner on charges of first degree murder, first degree kidnaping and first degree rape.
Id.
After a jury trial, the
*522
Petitioner was found guilty on all counts and the jury recommended the death penalty. The trial court, following the jury’s recommendation, sentenced Petitioner to death on November 6, 1995.
Id.
On appeal, the North Carolina Supreme Court reversed the Petitioner’s conviction and ordered a new trial based on its conclusion that the police violated the Petitioner’s right not to be interrogated after he invoked the right to counsel.
State v. Jackson,
348 N.C. 52 , 497 S.E.2d 409 ,
cert. denied,
525 U.S. 943 , 119 S.Ct. 365 , 142 L.Ed.2d 301 (1998).
After the reversal and remand for a new trial, the State of North Carolina entered into a plea agreement with the Petitioner on March 3, 2000, pursuant to which he pled guilty to second degree murder, first degree rape, and second degree kidnaping.
Jackson,
327 F.3d at 281 . The plea bargain included a stipulated prison sentence of 31 years with credit for five years already served.
Id.
On October 2, 2000, the United States obtained an indictment, superseded on November 6, 2000, charging the Petitioner with using a firearm during and in relation to crimes of violence, that is, murder, kidnaping and aggravated sexual abuse, in violation of 18 U.S.C. §§ 924 (c), 924(j)(l), and 7(3).
3
Bill of Indictment, filed October 2, 2000;
see also,
Superseding Indictment, filed November 6, 2000. The Petitioner’s jury trial began on April 30, 2001. The guilt phase of the trial lasted six days with the jury unanimously finding that the Petitioner committed the crimes of kidnaping, aggravated sexual abuse, murder with malice aforethought and with premeditation during the perpetuation of kidnaping and sexual abuse, and in so doing, used a firearm. Verdict Sheet, filed May 7, 2001. The sentencing phase of the trial lasted two more days with the jury answering the Special Verdict Form with a unanimous verdict of death. Special Verdict Form Regarding the Punishment to be Imposed on the Defendant, filed May 9, 2001. On May 14, 2001, the undersigned imposed the judgment of death. Judgment and Order, filed May 14, 2001.
The Petitioner appealed and on March 18, 2003, the Fourth Circuit Court of Appeals affirmed the Petitioner’s conviction and sentence.
Jackson,
327 F.3d at 279 . The Fourth Circuit made the following rulings in the direct appeal:
1. The trial court did not err in denying the Petitioner’s motion to dismiss the indictment for prosecutorial vindictiveness in light of the circumstances surrounding the State and federal prosecutions;
2. The trial court did not err in denying the Petitioner’s motion to dismiss based on double jeopardy grounds;
3. The Petitioner’s constitutional rights were not violated when the trial court struck a venire member who gave ambiguous answers to questions about his beliefs on the death penalty;
4. The trial court did not err by refusing to declare a mistrial based on the alleged prosecutorial misconduct of calling a witness who gave possibly fabricated testimony and the Government did not engage in prosecutorial misconduct by calling the witness;
5. It was not reversible error to admit the expert testimony of Dr. Robert Stratbucker as to stun-gun evidence;
6. Any error in the admission of evidence of other acts was harmless;
*523
7. The trial court did not abuse its discretion by excluding testimony concerning the mental condition of the Petitioner’s sister during the sentencing phase of the trial;
8. The trial court abused its discretion in permitting the Government to show the entire videotaped interview of the Petitioner during the sentencing phase in rebuttal of mitigation evidence; however, the error was harmless;
9. Trial counsel did not render ineffective assistance of counsel by making the comment during closing argument that “justice in this case says death;”
10. The trial court did not err by allowing the jury to consider multiple intent factors, and thus, did not unconstitutionally skew the weighing process towards the death penalty;
11. The statutory aggravating circumstance of “substantial planning and premeditation” was not unconstitutionally vague;
12. The jury instructions during the sentencing phase did not violate the Federal Death Penalty Act or the Eighth Amendment;
13. The indictment was not defective for failing to allege the aggravating circumstances necessary for the imposition of the death penalty; and
14. The trial court did not err in denying the Petitioner’s motion to be returned to State custody to finish his pre-existing sentence before being subjected to the federal sentence of death.
Id.
at 294-307 .
III. STANDARDS OF REVIEW
Section 2255 provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255 (a). In order to obtain relief pursuant to this statute, a petitioner must show the “ ‘existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury’s verdict.’ ”
Humphress v. United States,
398 F.3d 855, 858 (6th Cir.2005) (quoting
Griffin v. United States,
330 F.3d 733, 736 (6th Cir.2003)). The bulk of the Petitioner’s claims here are related to ineffective assistance of counsel. Where the claims relate to other allegations of error, the standard of review is stated within the discussion of that claim.
A. Ineffective assistance of counsel.
Most of the Petitioner’s claims relate to ineffective assistance of counsel at the trial level. In considering Petitioner’s claims that he did not receive adequate assistance of counsel,
[f]irst, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as. to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington,
466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Unless a defendant makes both showings, his claim of ineffective assistance of counsel must fail.
Id.
Thus, a defendant must show that counsel’s performance fell below objective standards of reasonableness and
*524
that, but for his conduct, there was a reasonable probability the result would have been different.
Id.
at 688 , 104 S.Ct. 2052 ;
Hill v. Lockhart,
474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985);
Fields v. Attorney Gen. of State of Md.,
956 F.2d 1290 (4th Cir.1992). If the defendant fails to make the first showing, there is no need to consider the second.
Strickland,
466 U.S. at 697 , 104 S.Ct. 2052 .
In addition, the Petitioner also argues that trial counsel’s conduct was
per se
prejudicial.
Generally, to establish ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient, and counsel’s performance prejudiced the defense. However, prejudice need not be shown in certain limited situations.
[United States v. Cronic,
466 U.S. 648, 659-60 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984) ] notes four situations where courts have found
per se
ineffectiveness: (1) where there has been a “complete denial of counsel;” (2) where the accused is denied the presence of counsel at “a critical stage” such as arraignment; (3) “[when] counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing;” and (4) where circumstances are so prejudiced against the defendant that competent counsel could not render effective assistance.
Conklin v. Schofield,
366 F.3d 1191, 1201 (11th Cir.2004) (other citations omitted). In the Fourth Circuit, the factors are slightly modified as follows: prejudice is presumed when (1) there was no lawyer present during a critical stage; (2) the attorney failed to subject the prosecution’s case to meaningful adversarial testing and thus might as well have been absent; and (3) even competent counsel could not provide effective assistance under the circumstances. Le
nz v. Washington,
444 F.3d 295, 303-04 (4th Cir.2006);
Glover v. Miro,
262 F.3d 268, 275 (4th Cir.2001) (“‘[Although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.’ ” (quoting
Cronic,
466 U.S. at 659 , 104 S.Ct. 2039 )). Here, the Petitioner alleges that his attorneys “faced circumstances in which competent counsel could not render assistance and failed entirely to subject the government’s case as to guilt and sentence to meaningful adversarial testing.” Petitioner’s Supplemental Memorandum,
supra,
at 2 (citing
Bell v. Cone,
535 U.S. 685, 696 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002));
see also,
Petitioner’s Motion to Vacate,
supra,
at 4-5 (also citing
Bell
and Cronic).
“Cronic
was meant to cover those cases in which prejudice was to be assumed [whereas]
Strickland
would address cases in which prejudice needed to be shown.”
Van v. Jones,
475 F.3d 292, 308 (6th Cir.2007), ce
rt. denied,
— U.S. —, 128 S.Ct. 708 , 169 L.Ed.2d 557 (2007). “In [those] rare cases [under
Cronic
], it is appropriate to presume that the deficient performance resulted in prejudice without requiring any demonstration that the deficiency prejudiced the defense.”
Malcom v. Houston,
518 F.3d 624, 627 (8th Cir.),
cert. denied,
— U.S.—, 129 S.Ct. 397 , 172 L.Ed.2d 291 (2008). “When [the Supreme Court] spoke in
Cronic
of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, [the Court] indicated that the attorney’s failure must be complete.”
Bell,
535 U.S. at 696-97 , 122 S.Ct. 1843 . As for the fourth factor listed in
Cronic ,
“[t]he presumption of prejudice afforded under
Cronic
is limited ... to those cases where defendant was subject to a pretrial and trial process so fundamentally flawed that no lawyer of any quality could provide
*525
constitutionally adequate counsel.”
Johnson v. Bradshaw,
205 Fed.Appx. 426, 433 (6th Cir.),
cert. denied,
— U.S.—, 128 S.Ct. 83 , 169 L.Ed.2d 64 (2007). “A finding of
per-se
prejudice under any of these
[Cronic
] prongs is ‘an extremely high showing for a criminal defendant to make.’ ”
Glover,
262 F.3d at 275 (quoting
Brown v. French,
147 F.3d 307 313 (4th Cir.1998)).
In Petitioner’s § 2255 motion, whether trial counsel rendered effective performance is a mixed question of law and fact which requires the application of legal principles to the historical facts of the case.
Strickland,
466 U.S. at 698 , 104 S.Ct. 2052 . “[T]he § 2255 motion ... will be ruled upon by the same district judge who presided at trial. The judge, having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel’s conduct and whether any deficiencies were prejudicial.”
Massaro v. United States,
538 U.S. 500, 506 , 123 S.Ct. 1690 , 155 L.Ed.2d 714 (2003).
B. Affidavits from attorneys.
In support of his motion, the Petitioner has submitted affidavits from six attorneys who have opined as to the effectiveness of representation provided by Eric Foster, Steven Lindsay and David Belser, each of whom were involved in the representation of the Petitioner.
Donald H. Beskind, averred:
In my opinion, Mr. Jackson’s trial lawyers did not provide constitutionally competent representation in the way they litigated the issue of the admissibility of the testimony from Dr. Stratbucker.
In my opinion, trial counsel’s inadequate understanding of the relevant scientific and technical principles involved, failure to obtain or consult with a competent expert in the field, and failure to litigate under the factors identified in
Daubert [v. Merrell Dow Pharm., Inc.,
509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) ], particularly in a case where their client was charged with a crime that carried a possible death sentence, was woefully inadequate representation.
In my opinion, competent counsel would have known or learned that even if the evidence was inadmissible before the jury; such evidence was admissible before a judge considering whether to admit evidence about the defendant’s sister.
Exhibit 6, Affidavit of Donald H. Beskind,
attached to
Petitioner’s Supplemental Memorandum, ¶¶ 5,11,19.
C. Frank Goldsmith, Jr., averred:
Under the circumstances, competent counsel would have sought a continuance.
From the information provided to me, I do not believe Mr. Lindsay and Mr. Foster made any concerted effort [to resolve the case through a plea bargain] .... Competent counsel would have, jointly and separately, spent considerable time [trying to convince the Petitioner to plead guilty].
In my opinion, this lack of reasonably thorough preparation on [the stun gun issue] amounts to ineffective assistance of counsel.
The failure to tell the client [about the strategy of conceding guilt] and get his consent to these actions was ineffective.
*526
Competent counsel would have [filed a motion for appropriate relief in state court].... It was ineffective assistance of counsel to make this challenge in the wrong court.
To the extent that defense counsel were concerned about the introduction of the videotaped interviews of their client by the government mental health experts, defense counsel rendered ineffective assistance- of counsel in failing to develop and present to the jury the lay and expert evidence that was necessary in order to present their client’s mental condition to the jury and to meet the expected testimony from the government’s expert.
[T]rial counsel was ineffective in not presenting ... mitigating evidence.
In my opinion, the failures of Mr. Lindsay and Mr. Belser outlined above amounted to the ineffective assistance of counsel for Mr. Jackson. None of these acts of commission or omission is supported by an objectively reasonable basis.
Exhibit 15, Affidavit of C. Frank Goldsmith, Jr., attached , to
id.,
¶¶4-9, 12, 15.
Attorney Thomas F. Loflin, III, also provided an affidavit.
See
Exhibit 28, Affidavit of Thomas F. Loflin, III,
attached to id.
In December 2006, Loflin was suspended from the practice of law for a three year period; the suspension was stayed pending his compliance with certain conditions.
See www.ncbar.com/discipline.
The Court excludes his affidavit.
Susan T. Parke, who is the wife of David Belser, one of Petitioner’s trial attorneys, also provided an affidavit.
See
Exhibit 34, Affidavit of Susan T. Parke,
attached to id.,
¶ 3. Although Parke refers to the Petitioner in her affidavit as “our client,” Parke was not appointed to represent the Petitioner. In fact, David Belser requested the Court appoint Parke as a jury selection expert and the motion was denied. Belser thereafter submitted a voucher seeking payment for Parke’s services as a jury selection expert. That claim for her services was denied since her request for appointment had been denied. Although Parke has provided an affidavit in which she opines as to the effectiveness of both her husband and Steve Lindsay, the undersigned rejects her opinion for the reasons stated
infra.
Claire Rauscher provided an affidavit in which she opined that the Petitioner’s attorneys in the
second state court
prosecution rendered ineffective assistance of counsel. Exhibit 36, Affidavit of Claire Rauscher,
attached to id.
Sean P. Devereux, also provided an affidavit in which he opined as follows:
In my opinion, Richard Jackson’s lawyers were ineffective in failing to seek a postponement of his trial.
I am dumbfounded by Mr. Lindsay’s failure to prepare for the government’s evidence about the stun gun....
The failure to anticipate and prepare to meet the stun gun evidence amounts to grossly deficient representation.
It was ineffective assistance of counsel to make this challenge [to the state guilty plea] in the wrong court.
Defense counsel’s decision to forego the use of all expert mental health testimony was unreasonable.... To the extent that defense counsel were concerned about the introduction of the videotaped interviews of their client by the govern
*527
ment’s mental health expert, defense counsel rendered ineffective assistance of counsel in failing to address their concerns.
Mr. Jackson’s only effective advocate [David Belser] had 38 days to meet this onslaught. The result was a fiasco, no more than a semblance of capital trial.
Exhibit 85, Affidavit of Sean P. Devereux,
attached to id.,
¶¶ 6, 11, 13, 15, 16, 27.
The Petitioner has not identified in what capacity these affidavits are offered. If the Petitioner intends to offer testimony through these attorneys’ affidavits as lay witnesses, then their testimony is “limited to those opinions or. inferences which are ... not based on .'.. specialized knowledge within the scope of Rule 702[,]” that is, their opinions are not offered as expert testimony. Fed.R.Evid. 701 & 702. However, each attorney has offered his or her expert opinion as a lawyer as to whether or not the trial attorneys for the Petitioner rendered ineffective assistance of counsel.
4
As a result, these legal opinions may not be accepted as lay testimony.
Hirst v. Inverness Hotel Corp.,
544 F.3d 221 (3d Cir.2008). It, therefore, appears that the Petitioner has offered the affidavits of these expert witnesses under the guise of lay witness testimony.
Id.
at 227 (Rule 701(c) was added to “eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing ... by simply calling an expert witness in the guise of a layperson.”). The Court rejects the affidavits as lay witness testimony.
Moreover, the Petitioner has merely attached these affidavits as exhibits; there has been no effort to qualify these attorneys as experts in the defense of death penalty cases. Fed.R.Evid. 702.
5
Assuming the attorneys do qualify as experts, “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704(a). “ ‘That said, an expert witness cannot give an opinion as to [his or] her
legal conclusion; i.e.,
an opinion on an ultimate issue of law.’’ ”
Nationwide Transp. Fin. v. Cass Info. Sys. Inc.,
523 F.3d 1051, 1058 (9th Cir.2008) (quoting
Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1016 (9th Cir.2004)). “[0]pinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts is generally inadmissible.”
United States v. McIver,
470 F.3d 550, 562 (4th Cir.2006). That is precisely what each attorney has done in his or her affidavit by opining that trial counsel rendered ineffective assistance of counsel. As a result, the undersigned will exclude these affidavits.
See, e.g., Newland v. Hall,
527 F.3d 1162, 1207 (11th Cir.2008) (affidavits from trial counsel and other attorneys regarding what constitutes effective assistance in capital cases are not dispositive and have little weight);
United States v. Barile,
286 F.3d
*528
749, 760 (4th Cir.2002) (role of the district court is to distinguish opinion testimony that embraces the ultimate issue of fact from opinion that states a legal conclusion, that is, specialized legal meaning);
United States v. Chapman,
209 Fed.Appx. 253 (4th Cir.2006) (district court did not err in excluding expert testimony concerning securities law),
cert. denied,
550 U.S. 949 , 127 S.Ct. 2286 , 167 L.Ed.2d 1117 (2007);
McIver,
470 F.3d at 562 (collecting cases);
DiBella v. Hopkins,
403 F.3d 102, 121 (2d Cir.2005) (testimony that defendant’s conduct was extortion excluded);
Archuleta v. Lemaster,
37 Fed.Appx. 391, 393 (10th Cir.2002) (expert testimony as to whether trial counsel provided ineffective assistance rejected as advising the court about the proper application of existing law to the facts and the ultimate issue of trial counsel’s effectiveness);
United States v. Wilson,
133 F.3d 251 (4th Cir.1997) (district court should not have allowed expert opinion as to what the law means or how it is interpreted).
C. The necessity for an evidentiary hearing.
“If [a § 2255] motion is not dismissed, the judge must review the answer, any transcripts and records of prior proceedings, and any materials submitted ... to determine whether an evidentiary hearing is warranted.” Rule 8, Rules Governing Section 2255 Proceedings for the United States District Courts. In this case, the Petitioner has expanded the record to voluminous proportions. He has filed multiple amendments to the motion and exhibits in support thereof. In addition, the expansive record of the proceedings, including the pleadings, pretrial, and trial transcripts, have been placed before and reviewed by the Court.
“A hearing is required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve the issue.”
United States v. Coon,
205 Fed.Appx. 972, 973 (4th Cir.2006) (citing
United States v. Witherspoon,
231 F.3d 923, 925-27 (4th Cir.2000)) (other citations omitted). A hearing is not required unless the Sixth Amendment claim shows “disputed facts involving inconsistencies
beyond the record
[.]”
United States v. Robinson,
238 Fed.Appx. 954, 955 (4th Cir.2007) (citing
United States v. Magini,
973 F.2d 261, 264 (4th Cir.1992)) (emphasis added). Conclusory allegations contained within affidavits do not require a hearing.
Strong v. Johnson,
495 F.3d 134 , 139—40 (4th Cir.2007). And, trial counsel’s statements in affidavits filed years after the trial (in which counsel in effect “fall on their swords”) do not create credibility issues when “trial counsel’s documented contemporaneous statements show the contrary.”
United States v. Streater,
70 F.3d 1314, 1321 (D.C.Cir.1995). “Thus, no hearing is required if the petitioner’s allegations ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.’ ”
Arredondo v. United States,
178 F.3d 778, 782 (6th Cir.1999) (quoting
Engelen v. United States,
68 F.3d 238 240 (8th Cir.1995));
Brown v. United States,
261 Fed.Appx. 865, 869 (6th Cir.2008) (“the record itself offered sufficient evidence to contradict the petitioner’s claims”). In addition, “[w]here, as here, the judge considering the § 2255 motion also conducted the trial, the judge may rely on his ... recollections of the trial.”
Arredondo,
178 F.3d at 782 (citing
Blanton v. United
States, 94 F.3d 227, 235 (6th Cir.1996)).
As the Court which presided over all pretrial proceedings as well as the trial of the action, the undersigned is uniquely qualified to compare the contentions of ineffective assistance of counsel with the
*529
contemporaneous conduct and statements of counsel. Moreover, concerning the other issues raised in this, motion, it is clear from the pleadings, files and records that the Petitioner is not entitled to any relief; therefore, the undersigned has concluded that a hearing is not required. “ ‘A § 2255 motion ‘can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than ; statements of fact.’ ’ ”
United States v. Regenos,
405 F.3d 691, 694 (8th Cir.2005) (quoting
Sanders v. United States,
341 F.3d 720, 722 (8th Cir.2003) (quoting
Engelen,
68 F.3d at 240 )).
IV. DISCUSSION
A. Ineffective assistance of trial counsel.
The Petitioner has argued both that counsel were
per se
ineffective and also that they were ineffective under the
Strickland
standard.* The Court addresses each instance of alleged ineffectiveness below. The Court finds that trial counsel at no point during their representation rendered
per se
ineffective assistance of counsel. The Court also finds, pursuant to the
Strickland
standard, that trial counsel at no point during their representation rendered deficient performance. As a result, it is unnecessary for the Court r to address whether the Petitioner has been prejudiced by counsel’s deficient performance.
1. Lack of experience of trial counsel; inadequate preparation for trial; failure to request a continuance.
On October 19, 2000, Steve Lindsay (Lindsay) was appointed to represent the Petitioner. On October 26, 2000, Eric Foster (Foster) was appointed as the second attorney in this capital case. Lindsay filed an affidavit in connection with this motion in which he averred, -in part:
I asked Magistrate Judge Cogburn to appoint second counsel who had experience in capital litigation.... I specifically requested that David Belser be appointed as co-counsel. Magistrate Judge Cogburn told me he wanted to expand the number of attorneys with capital experience who would accept federal appointments.... Instead, he appointed Eric J. Foster on 26 October 2000.
I felt I could trust Mr. Foster with research and motions as he had been a law clerk to a federal judge.
Over time, the relationship between Mr. Foster and me became extremely strained. I felt as if I was having to handle everything in this case and micro-manage Mr. Foster all the while “training” him as instructed by Magistrate Cogburn. It became apparent that there had been a breakdown between Mr. Foster and our client[.] It came to a point where I advised the district court that I had not and could not adequately supervise Mr. Foster and did not believe Mr. Foster had adequate experience to serve as co-counsel in a capital prosecution as complicated as this case.
[I] asked the district court to replace Mr. Foster.
Mr. Foster moved to withdraw,- and the district court granted the motion.
*530
David G. Belser was appointed to replace Mr. Foster on 23 March 2001.
Mr. Foster was allowed to withdraw and the district court appointed Mr. Belser as co-counsel and continued the trial for a short time.
We told the district court that it would be virtually impossible for Mr. Belser to be prepared as trial was still only five weeks away.
The district court communicated to Mr. Belser and me that no other continuance of the trial date would be allowed. I believed that a motion to continue would have been denied and that even making it would have angered the district court.
Exhibit 27, Affidavit of Steven P. Lindsay,
attached to
Petitioner’s Supplemental Memorandum, ¶¶2-3, 8, 12-14 (emphasis added).
The docket record (contemporaneously maintained by the Clerk) reveals that on March 20, 2001, Lindsay filed a motion to continue the case from the April 9, 2001, trial setting, citing the recent appointment of new counsel (Belser) and the impossibility of Belser'being “properly prepared” for an April 9 trial setting. Petitioner’s Motion to Continue, filed March 20, 2001. On March 21, 2001, the motion was allowed and the case was continued “from its peremptory setting of April 9, 2001” to a peremptory setting of April 30, 2001. Order, filed March 21, 2001 (citing 18 U.S.C. §§ 3161 (h)(8)(A), (B)(i), & (B)(iv)). Lindsay specifically requested the appointment of Belser who agreed to and accepted the appointment with full knowledge that the case was peremptorily set for trial on April 30, 2001. Lindsay averred that he and Belser requested the continuance from the April 9, 2001, trial setting, received a continuance to an April 30, 2001, setting, and did not believe another continuance would have been granted. Lindsay Affidavit,
supra,
¶ 14. Thus, Lindsay’s sworn statement that, “[w]e told the district court that it would be virtually impossible for Mr. Belser to be prepared as trial was still only five weeks away,” is contrary to the representations made to the Court at the time.
6
Allegations made in support of a § 2255 motion need not be accepted “when trial counsel’s documented contemporaneous statements show the contrary.”
Streater,
70 F.3d at 1321 ;
Arredondo,
178 F.3d at 782 (allegations which are contradicted by the record do hot warrant relief);
Regenos,
405 F.3d at 694 .
The Court has also considered the affidavit of David Belser concerning his failure to move for a continuance of the trial date. In that affidavit, Belser acknowledged, among other things, that he has significant experience in capital cases.
I was appointed [to represent the Petitioner] on 23 March 2001 to replace [Eric] Foster, who had been allowed to withdraw. At the time I discussed begin (sic) appointed, I told the judge that I could not be
fully prepared by the established trial date of 9 April
2005 (sic). The judge continued the trial to 30 April 2005 (sic) and it is my recollection that he told Steve Lindsay and me there would be no further continuances and indicated if I did not accept the appointment, he would find someone else.
I agreed to be appointed
because Mr. Lindsay, who had first been appointed to represent Mr. Jackson, asked me to accept the appointment because he needed an experienced lawyer to help him due to the complexity of this case. We began jury selection only thirty-eight (38) days after I was appointed.
*531
I simply did not have enough time to prepare for the trial.... I should have moved for a continuance. But I did not do so because the judge had made it very clear from the outset of my involvement that the case would not be continued.
I have litigated countless criminal trials and a large number of capital cases. I have never felt as unprepared as I was in this case due to the inadequate time to get ready for trial[.]
Exhibit 4, Affidavit of David Belser,
attached to
Petitioner’s Supplemental Memorandum, ¶¶ 3,14, 24 (emphasis added).
Thus, Belser states he agreed to accept appointment in this capital case with full knowledge that the trial would begin 38 days after his appointment.
Id.
¶ 3. He does not allege that he told the Court that he could not be ready by
April 30,
2001; indeed, he states only that he advised the Court that he could not be “fully prepared” by the
April 9,
2001, trial date.
Id.
And, he acknowledges that he agreed to be appointed.
Id.
(“I agreed to be appointed because Mi. Lindsay ... asked me ... because he needed an experienced lawyer to help him[.]”). Despite the assurances provided to the Court at the time of appointment, Belser now claims he was rushed into trial. However, Belser admits in his affidavit that from the date of his appointment, if not before, he was well aware of the April 30, 2001, trial date and that the Court would grant no further continuances. Belser’s allegations made in support of Petitioner’s § 2255 motion need not be accepted “when trial counsel’s documented contemporaneous statements show the contrary.”
Streater,
70 F.3d at 1321 ;
Arredondo,
178 F.3d at 782 ;
Regenos,
405 F.3d at 694 .
In fact, Belser’s contemporaneous statements in open court are telling. On April 6, 2001, a hearing was held on the Government’s motion to strike the Petitioner’s notice of intent to offer expert testimony relating to mental disease or defect bearing upon guilt and punishment. Transcript of Motions Proceeding held April 6, 2001, filed August 6, 2001. At that hearing, Belser made the following statements to the Court:
I think we should deal as a threshold issue with one of the government’s main objections to the notice, that they believe it is part of a strategy to delay the trial.
I can tell the court that if the court allows us to file
— use
expert witnesses in the guilt phase
— it
will not necessitate the continuance of the trial. I do not plan to file a motion to continue on this basis or any other basis including my own involvement in the case for nearly six weeks. I will not file a motion to continue.
We are ready to proceed on April the 30th.
And, again, I want to reiterate, the bottom line is
we do not intend to move to continue the case on this or any other basis. We will be here to try the case on whatever issues the court allows us to do on April the 30th.
Id.
at 2,14 (emphasis added).
These statements made in the weeks prior to trial were contemporaneous as opposed to the allegations contained in Belser’s sworn affidavit, made in the context of hindsight and to support a § 2255 motion.
7
Strickland,
466 U.S. at 689 , 104
*532
S.Ct. 2052 (Trial counsel’s conduct must be evaluated from “counsel’s perspective at the time” with the court making “every effort ... to eliminate the distorting effects of hindsight[.]”). Belser’s contemporaneous statements show not only that he felt he was adequately preparing for trial, but also that he did not believe a continuance was necessary in order to be prepared for trial. His assurance to the Court that “[w]e are ready to proceed on April the 30th” is a far cry from his recent revelation that “I have never felt as unprepared as I was in this case due to the inadequate time to get ready for trial[.]”
Newland,
527 F.3d at 1207 (trial counsel’s admissions of error in a habeas petition are not controlling);
Wilson v. United States,
2007 WL 2237673 (D.Ariz.2007) (contemporaneous statements carry substantial weight);
Dzinchveladze v. United States,
2007 WL 549439 (S.D.N.Y.2007) (contemporaneous statements credited over representations made by counsel in § 2255 petition);
Montag v. United States,
2003 WL 22075759 (D.Minn.2003) (contemporaneous evidence credited over accusation in § 2255 petition). Belser agreed to the appointment as counsel and entered this case with full knowledge of the trial date, and assured the Court at the time that he was prepared for the April 30, 2001, trial date.
Although Belser and Lindsay now assign issues which they could have explored had they pursued a continuance, the discussion within this decision shows that their conduct at the time of trial did not fall below objective standards of reasonableness.
United States v. Hedgepeth,
418 F.3d 411, 423 (4th Cir.2005) (A district court’s denial of a continuance is reviewed for “abuse of discretion;” even if such an abuse is found, the defendant must show that the error “specifically prejudiced” his case in order to prevail.);
Chandler v. United States,
218 F.3d 1305, 1313 (11th Cir.2000) (“To state the obvious: the trial lawyers in every case could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.’ ” (quoting
Burger v. Kemp,
483 U.S. 776, 794 , 107 S.Ct. 3114 , 97 L.Ed.2d 638 (1987), quoting
Cronic,
466 U.S. at 665 n. 38, 104 S.Ct. 2039 )). In fact, the affidavits filed by counsel constitute little more than hindsight and appear to be intentional attempts to obtain a reversal.
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”);
Marquard v. Sec’y for Dep’t of Corr.,
429 F.3d 1278, 1304 (11th Cir.2005) (“ ‘[Because counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take.’” (quoting
Chandler,
218 F.3d at 1315 )). “ ‘It is common practice for petitioners attacking their death sentences to submit affidavits[.]’ ”
Id.
at 1305 (quoting
Waters v. Thomas,
46 F.3d 1506, 1513-14 (11th Cir.1995));
Newland,
527 F.3d at 1207 (trial counsel’s concession of error is not controlling);
Gilliam v. Sec’y for Dep’t of Corr.,
480 F.3d 1027, 1034 (11th Cir.2007) (it is not dispositive that trial counsel refuses to characterize his decision as strategic), cert.
denied,
— U.S. —, 128 S.Ct. 1697 , 170 L.Ed.2d 367 (2008). However, even when the affidavits are those of former counsel, a petitioner must meet the high burden of showing that “no competent counsel would have taken the action” that was taken.
Chandler,
218 F.3d at 1315 ;
see also Burket v. Angelone,
208 F.3d 172, 190 (4th Cir.2000) (“The stan
*533
dard is therefore not what later courts with the benefit of hindsight believe should have been accomplished in earlier proceedings, but instead whether counsel at the time acted within the liberal bounds of competent representation.”).
Lindsay has not averred that he told the Court he would be unprepared for trial on April 30, 2001. Belser has not averred that he informed the Court that he could not be ready for trial on April 30, 2001. The only averment is that Belser could not be “fully prepared” on April 9, 2001v And, the representations made to the Court by both counsel at a hearing on April 6, 2001, that they would be ready for trial on April 30 are directly contrary to the allegations now made years after the fact and in an attempt to obtain habeas relief.
8
“To prove abridgment of his Sixth Amendment right to effective assistance of counsel based upon the district court’s allegedly wrongful denial of continuance, [the Petitioner] must prove first that the district court abused its discretion in denying the continuance motion and second that the denial ‘specifically prejudiced’ his case.”
United States v. Stewart,
256 F.3d 231, 244 (4th Cir.2001). Thus, the cases do not support a finding that the Court would have abused its discretion had a continuance been denied.
Id.
Nor has the Petitioner shown that the lack of a continuance specifically prejudiced his case. In fact, every cited example of omission was either refuted on the record at the time or is refuted now by a review of the extensive work done by counsel prior to trial which is discussed
infra.
The Petitioner has not shown ineffective assistance under either the
per se
or the traditional
Strickland
standard.
Moreover, Belser’s contemporaneous attorney voucher disclosed that he spent 123 hours interviewing witnesses, 131.1 hours consulting with investigators and experts, 217.5 hours reviewing records, and 145.75 hours doing legal research and writing. Attorney Voucher, filed August 27, 2001. It is also interesting to note that Belser moved for leave to file the vouchers under seal or with redactions.
Ex Parte
Motion to Seal Payment Vouchers, filed under seal August 17, 2001. Finding no good cause to justify sealing the attorney voucher, Belser’s request was denied and the voucher was filed as part of the public record.
See
Order, filed August 27, 2001. The amount of time spent in trial preparation as shown by the voucher is contemporaneous evidence of record.
The Court finds that trial counsel had adequate time to prepare for trial and were not ineffective by failing to move for a further continuance. The Court makes this finding both as to the allegation of
per
*534
se
ineffectiveness and pursuant to the
Strickland
standard.
There is also an allegation that Foster was ineffective due to a lack of experience. On March 14, 2001, Lindsay made the following statements during an
ex parte
hearing attended by Foster.
THE COURT: This morning in the argument, ... there was some mention about Mr. Foster acting in a training capacity of some sort. And this being a capital case, ... if the Court should consider further as to whether there should be a more experienced attorney involved or whether we should pursue this farther or just what the situation is.... I don’t want any questioning hereafter by the defendant on some motion about ineffective assistance of counsel, and they almost routinely do that whether counsel’s appointed or retained, and I thought I would make inquiry about that.
LINDSAY: I want to be fair with everybody involved in this litigation. When I was first contacted or talked to Magistrate Cogburn about becoming involved in this case, I knew at that time that there were going to be a limited number of lawyers who could become ... involved just because, for example, Mr. Stewart was one of the trial counsels Mr. Jackson had before and there would be a reluctance to appoint him in this case.... I had talked to Magistrate Cogburn about appointing Mr. Devereux as co-counsel.... Mr. Devereux indicates that his family attends church with the Styles family[.] I had asked for David Belser to be appointed and a conversation I had with Judge Cog-burn was that he would not do that[.]
[Eric Foster] has worked very hard on this case. [H]e has done a lot of research. He has obviously done a.lot to prepare for this case. But the limitation that it has provided is the inability for me to sit down with somebody who has been through a capital case before and say: how do you think this would play in a capital setting!.] ... [Eric] Foster is working as hard as he possibly can. That doesn’t change the fact that he does not have capital experience.... I don’t want to sit here telling your Honor that he’s not doing his job because he is doing everything that he possibly can, given the limitation that he doesn’t have any capital experience. And, so, I’m not going to sit here and criticize him because he really is doing the best that he can.
THE COURT: You have indicated to the Court that it would have been more comfortable for you and less stressful for you to have the opportunity to have someone who was more experienced. Do you feel that the defendant is in any way being deprived of adequate representation in this case[?]
LINDSAY: I would say the — probably more tha[t] I’m being deprived of an opportunity for a meaningful life at this point, but that always goes along with handling capital litigation, Your Honor.... [I]s the defendant being deprived? No[.] ... [S]o he’s going to get a good trial. He’s going to get good representation. Mr. Foster is doing everything that he can. I appreciate his input on things. At the same time, the only thing I’m saying is is (sic) that there really is — I’m feeling a big burden on me because I’m the one with the capital experience ....
I think I’m providing effective representation. I think he’s get
*535
ting effective representation,
if that answers your Honor’s questions.
THE COURT: Yes. I have seen absolutely nothing that suggests to me that his representation is in any way being compromised. If I were making an evaluation at this point, I would say that perhaps Mr. Foster lacks some restraints that he would normally possess [in a non-capital setting] and is being certainly adequately zealous. If he had prior experience, he probably could have done more. Mostly, I can’t think of any area that has been left unexplored.... I think you are doing a splendid job. And, of course, I have been through many capital cases, two since being on the federal bench, but numerous ones at the state level and I do have a good feel for whether or not a defendant is being adequately represented. And if I felt for a minute that [the defendant wasn’t] being adequately represented], I wouldn’t hesitate to take appropriate action[.]
Transcript of Motions Proceedings held March 14, 2001, filed August 6, 2001, at 112-117 (emphasis added).
Thus, at. the time, Lindsay felt there were a limited number of attorneys available to work with him on the case, Foster was doing a good job but lacked capital experience, and the Petitioner was getting adequate, effective assistance of counsel. Moreover, the undersigned specifically inquired as to the issue of effectiveness of counsel, was reassured by Lindsay, and noted for the record that both counsel had zealously represented their client. As a result, the complaints raised now appear to amount to little more than an attempt to create issues.
Streater,
70 F.3d at 1321 ;
Arredondo,
178 F.3d at 782 ;
Regenos,
405 F.3d at 694 .
Two days after the March 14 hearing, Foster filed an
ex parte
motion to withdraw stating that the Petitioner had
little or no trust in [Foster], Prior to March 14, 2001, this lack of a working relationship between [Foster] and [the Petitioner] did not seem to hinder the working relationship between the two defense attorneys, as [Lindsay] had the primary responsibility of communicating with [the Petitioner], and [the Petitioner] and his family have a trusting relationship with [Lindsay].... [Foster] assures the Court that until March 14, 2001, [Foster] has had no indication that the fact that [the Petitioner] could only work with one of his attorneys did, in fact, hinder the ability of both defense attorneys to provide [the Petitioner] with adequate representation. Moreover, [Foster] before March 14, 2001, had never heard such an opinion from [Lindsay],
Having had little or no working relationship with [the Petitioner] since the beginning of the case, [Foster] has been preparing to serve as an “assistant” to [Lindsay] from the outset.
Moreover, [Foster] contacted staff members at the Center for Death Penalty Litigation, who assured him that a motion to withdraw would not be selfish, in that they have witnessed numerous capital cases in which the two defense attorneys — no matter how competent — did not get along, and the result has uniformly been a diminished defense for the defendant. As for the latter, the Court must note that the first time [Foster] became aware of [Lindsay’s] lack of confidence in [Foster’s] ability to aid the defense was two days ago, March 14, 2001.
*536
Ex Parte
Motion to Withdraw as Counsel, filed under seal March 16, 2001. By this motion, Foster alleges the Petitioner and his family trusted Lindsay and had a good working relationship with him; Foster was prepared to and did serve in the role of a research and writing assistant; and it is not unusual for capital attorneys to disagree. In fact, Foster’s motion, submitted two days after Lindsay’s statements in open court, reinforces Lindsay’s contemporaneous comments to the Court. It goes without saying that Lindsay’s representations to the undersigned during the March 14, 2001, hearing supports the conclusion that the Petitioner was receiving effective assistance of counsel. Indeed, the undersigned made that finding at the time. Nonetheless, the Court allowed Foster to withdraw and appointed Belser
only
after Belser agreed to take the appointment with full knowledge of the case, its stage of preparation, and the April 30, 2001, trial date.
Based on the various affidavits prepared in support of this motion, the Petitioner claims there is a presumption of prejudice, that is, that counsel’s conduct was
per se
prejudicial because of a lack of preparation for the trial and the short period of time Belser was involved in the case prior to trial. As noted above, the Court finds that the contemporaneous statements made by counsel on the record in open court refute that argument.
In addition, despite the characterization that Belser was in the case for only 38 days before trial, and thus, incapable of being prepared, it is noteworthy that Lindsay had represented the Petitioner since October 2000.
Cronic,
466 U.S. at 649 , 104 S.Ct. 2039 (young real estate lawyer who had 25 days to prepare for complex mail fraud case was not
per se
ineffective despite limited time to investigate, prepare and interview witnesses);
State v. Morgan,
359 N.C. 131, 144 , 604 S.E.2d 886, 894 (2004) (“By the time attorney Elmore was appointed as second chair, attorney Young had already been involved in the case for over a year.”). Moreover, the Petitioner had confessed on two different occasions and there had been a previous state court trial; thus, the evidence was not new.
Trice v. Ward,
196 F.3d 1151, 1161 (10th Cir.1999) (four months to prepare for a capital case was not
per se
prejudicial as defendant had twice confessed and the preparation time was less than other cases especially in light of the substantial evidence against him.).
Moreover, both Belser and Lindsay were privy to the records from the state proceedings. The names, addresses, and testimony of fact witnesses as well as the names, addresses,
curriculum vitae,
and testimony of expert witnesses were available to counsel. Access to this information affected the amount of time necessary for counsel to prepare for Petitioner’s federal trial. It also assisted their ability to form an opinion as to which trial strategy would most likely result in a life imprisonment versus a death sentence.
As noted from Belser’s attorney voucher and the contemporaneous pretrial motions, the quantity of work done in preparation for trial is grossly understated by the Petitioner, trial counsel, and habeas counsel.
Prevatte v. French,
459 F.Supp.2d 1305, 1343 (N.D.Ga.2006),
aff'd,
547 F.3d 1300 (11th Cir.2008). At the time of Petitioner’s trial, both Lindsay and Belser were experienced attorneys each of whom had handled numerous capital cases. Belser agreed to take the appointment with the knowledge that he would go to trial on April 30, 2001.
Glover,
262 F.3d at 278 (“ ‘late appointment of counsel’ fails to justify ‘a presumption of ineffective assistance of counsel.’ ”) (quoting
Praylow v. Martin,
761 F.2d 179, 181-83 (4th Cir.1985)). By the time of Belser’s appointment, as noted below, numerous experts had been ap
*537
pointed on behalf of the Petitioner.
9
The Government maintained an open file policy during the case; thus, discovery and investigation of the factual issues was not an insurmountable task, as now represented.
Prevatte,
459 F.Supp.2d at 1343 (“[T]he prosecution maintained an ‘open file,’ and defense counsel were well-aware of what the evidence against Petitioner would be.”). “Indeed, the Supreme Court has long emphasized that late appointment of counsel does not
ipso facto
trigger a rule of
per-se
prejudice.”
Glover,
262 F.3d at 279 .
[Reviewing courts must generally regard trials ... through a particularized and individualized lens rather than through some broad-brush presumption of prejudice. Courts should not presume prejudice where the facts show otherwise, and
Strickland
has the bedrock virtue of looking at prejudice to the defendant in
each
case.
Id.
at 279-80.
The Court, therefore, finds that the relationship between Lindsay and Foster, the “late” appointment of Belser, and the failure of Lindsay and Belser to request a continuance was not
per se
prejudicial.
10
Trice,
196 F.3d at 1161 ;
Avery v. Alabama,
308 U.S. 444, 446 , 60 S.Ct. 321 , 84 L.Ed. 377 (1940) (“[T]he fact, standing alone, that a continuance has been denied, does not constitute a denial of the constitutional right to assistance of counsel.”);
Chambers v. Maroney,
399 U.S. 42, 54 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970). The Court also finds that trial counsel rendered effective assistance of counsel pursuant to the
Strickland
standard.
The Petitioner also claims that he received
per se
ineffective assistance of counsel due to Foster’s inexperience, Lindsay’s performance during the six months prior to the appointment of Belser, and Belser’s complete lack of preparation for trial. To the extent not already addressed above, these claims are discussed
seriatim.
Regarding Foster’s alleged inexperience, Foster has appeared in this Court on numerous occasions and has represented many criminal defendants in felony cases.
McFarland v. Scott,
512 U.S. 1256 , 114 S.Ct. 2785 , 129 L.Ed.2d 896 (1994). While this may have been his first federal death penalty case, that is not as compelling as Petitioner claims.
See
18 U.S.C. § 3005 (“Whoever is indicted for [a] capital crime shall be allowed to make his full defense by counsel; and the court ... shall promptly, upon the defendant’s request, assign 2 such counsel, of whom
at least 1 shall be learned in the law applicable to capital cases
[.]”) (emphasis added). Lindsay is a seasoned capital litigator in both state and federal courts.
United States v. Fields,
483 F.3d 313 , 348 n. 32 (5th Cir.2007) (“Indeed, as a practical matter, state courts often are the only place that attorneys can gain significant capital experience.”). Moreover, the federal death penalty statute is quite young by comparison with the state statute.
Id.
In 14 years on the federal bench, the undersigned has presided over only three federal death penalty cases. It is thus not unusual that in the initial stages of this case, Lindsay had difficulty associating with other counsel who had federal capital experience. Nor does the fact that Foster
*538
lacked such experience render him ineffective; indeed, it may well be that the inexperienced lawyer is more cautious, less cynical, and more zealous.
Cronic,
466 U.S. at 665 , 104 S.Ct. 2039 (“Every experienced criminal defense attorney once tried his first criminal case.... The character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness!.]”).
Moreover, while Foster may exude the persona of “Rumpole of the Bailey”
11
and although the Petitioner may not have liked him, Foster was dogged and zealous in his representation of the Petitioner.
Morris v. Slappy,
461 U.S. 1, 14 , 103 S.Ct. 1610 , 75 L.Ed.2d 610 (1983) (“[T]he Sixth Amendment [does not] guarantee! ] a ‘meaningful relationship’ between an accused and his counsel.”);
accord, Plumlee v. Masto,
512 F.3d 1204 (9th Cir.),
cert. denied,
— U.S.—, 128 S.Ct. 2885 , 171 L.Ed.2d 822 (2008);
United States v. Mutuc,
349 F.3d 930, 934 (7th Cir.2003) (“The Sixth Amendment does not guarantee a friendly and happy attorney-client relationship. The fact that Fennerty and Mutuc did not get along does not translate into an inability of Fennerty to zealously defend his client!.] ... Mutual admiration societies are not constitutional guarantees and conclusory statements that Fennerty ‘took a dive’ shows antagonism toward the lawyer but, without more, does not show antagonism from the lawyer toward the client.” (citing
Morris,
461 U.S. at 14 , 103 S.Ct. 1610 ));
United States v. John Doe No. 1,
272 F.3d 116, 122 (2d Cir.2001);
United States v. Burns,
990 F.2d 1426, 1437 (4th Cir.1993).
Foster is a bright attorney dedicated to pursuing the best defense available to his clients. His reputation for such representation is borne out by the pleadings he prepared in this case. Under Foster’s watch, the following were submitted for ruling on by this Court: (1) a motion for a ballistics expert, which was granted; (2) a motion for a crime scene investigator, which was denied as redundant based on the fact that the same services were to be performed by two other experts; (3) a motion for the appointment of a forensic pathologist, which was granted; (4) a motion for the appointment of a forensic anthropologist, which was denied;
12
(5) a motion for the appointment of an expert in DNA analysis, which was denied without prejudice to renewal because the Government agreed to provide such analysis; (6) a motion for the appointment of an expert in mathematics, which was granted in part; (7) a motion for a forensic psychologist, which was granted;
13
(8) a motion for a mitigation expert, which was granted;
14
*539
(9) a motion for the appointment of an expert on the issue of future dangerousness, which was granted;
15
(10) a motion for the issuance of subpoenas, which was granted as to the Petitioner’s military records, prison records, DSS records, juvenile records and medical records, but denied as to the medical records for the Petitioner’s birth mother and biological sister;
16
(11) a motion for supplemental discovery, which was denied; (12) a motion for additional pretrial discovery, which was granted in part and denied in part; (13) a response opposing the Government’s motion for a mental health examination of the Petitioner for rebuttal purposes; (14) a motion to prohibit further evaluation of the Petitioner, which was denied; (15) a motion to dismiss on double jeopardy grounds, which was denied; (16) a motion to dismiss based on prosecutorial vindictiveness, which was denied; (17) a motion to dismiss based on pre-indictment delay, which was denied; (18) a motion to dismiss based on failure to obtain Petite Policy approval, which was denied; (19) motions to dismiss the indictment as time barred, to dismiss the Government’s notice of intent to seek the death penalty as cruel and unusual punishment, and to prohibit evidence of victim impact, all of which were denied; (20) a motion to preclude expert testimony regarding stun guns, which was denied; (21) a motion to suppress the state court plea, which was denied; (22) a motion to suppress a statement made to officers, which was denied as moot; (23) a motion to suppress statements made to family members in the presence of Reverend Sexton, which was denied; (24) and a motion to suppress statements made to inmates, which was denied. As stated by both Lindsay and Foster, Foster’s role was to do the legal research and writing as well as the motions practice in the pretrial setting.
In fact, a review of the transcript from the pretrial conference conducted on December 14, 2000, shows that, even at that early stage, the following issues had been raised by Foster and Lindsay: a juror questionnaire; mental health, mitigation, and future dangerousness experts and a private investigator, all of whom were approved; DNA testing of a shirt found near the scene of the crime, which was allowed; the approval of Dr. Halleck as a mental health expert who was scheduled to interview the Petitioner in early January 2001; the approval of a forensic psychologist; the approval of Dr. Page Hudson as a
*540
forensic pathologist; and the Court was advised that the Petitioner would object to the testimony of a stun gun expert for lack of scientific validity.
17
See generally,
Transcript of Proceedings held December 14, 2000, filed under seal March 18, 2002.
Petitioner’s arguments concerning Foster’s performance are inconsistent. On one hand, he claims Foster was so inexperienced that no trial preparation was done. The pretrial practice discussed above shows that argument to be without merit. On the other hand, Petitioner claims the procedural history of the case was complex and warranted pretrial motions to attack issues such as the legality of the indictment and double jeopardy. As noted above, both such attacks were carried out. The Court finds that the allegation the Petitioner received ineffective assistance of counsel, either per se or pursuant to the
Strickland
standard, due to Foster’s inexperience is directly contradicted by the contemporaneous record of his performance.
2. Ineffective assistance regarding the mental health defense.
The Petitioner also claims that the lack of preparation for a mental health defense, either during the guilt or penalty phase of trial, was ineffective assistance of counsel. Belser avers that “there had been almost no attention given to the issue of Mr. Jackson’s mental health.” Belser Affidavit,
supra,
¶ 7. To the contrary and as noted above, as early in the case as the December 2000 pretrial conference, both Lindsay and Foster advised the Court they were considering whether to assert a mental health defense and had already scheduled an interview of the Petitioner by the defense expert for early January 2001. Transcript of Proceedings held December 14, 2000, filed under seal March 18, 2002, at 51-52. At the March 14, 2001, hearing, Lindsay brought to the Court’s attention the fact that the deadline for determining expert witnesses had passed but new information from the Government necessitated another mental health expert for rebuttal purposes at sentencing as well as to show a lack of future dangerousness. Transcript of Motions Proceedings held March 14, 2001, filed August 6, 2001, at 102-111. That motion was granted.
Belser blithely opines that the deadline to give notice of intent to offer mental health evidence in the guilt phase was simply “missed” by Lindsay and Foster. Belser Affidavit,
supra,
¶ 5 (“I was very surprised that the deadline for giving notice of an intent to offer mental health evidence had passed without this notice being given.”). However, during the hearing on April 6, 2001, Belser referred to two expert mental health reports from the state court proceedings in 1995, in which the experts opined that the Petitioner had the specific intent to commit capital murder. Transcript of Motions Proceeding held April 6, 2001, filed under seal August 6, 2001, at 4-5. Lindsay and Foster were both aware that, if called, these two experts would testify the Petitioner had the specific intent to commit first degree murder should the defense place the Petitioner’s mental health in issue during the guilt phase of the trial. The determination not to raise the issue of mental health during the guilt phase of the trial was a strategic decision by counsel to avoid the damning expert testimony introduced during the state trial.
Gilliam,
480 F.3d at 1034 (“That defense counsel has refused to characterize the decision as strategic is not dispositive; the record shows that he in
*541
vestigated the facts, prepared ... witnesses, assessed the jury and concluded that they would be unreceptive[.]”);
Raley v. Ylst,
470 F.3d 792 (9th Cir.2006),
cert. denied,
— U.S. —, 128 S.Ct. 59 , 169 L.Ed.2d 50 (2007). In short, whether trial counsel was ineffective in making a strategic decision
is a question of law to be decided by th[is] [C]ourt[.] ... Accordingly, it would not matter if a petitioner could assemble affidavits from a dozen attorneys swearing that the strategy used at his trial was unreasonable. The question is not one to be decided by plebiscite, by affidavits, by deposition, or by live testimony. It is a question of law to be decided by ... this Court, [the court which presided over the trial.]
Provenzano,
148 F.3d at 1332.
When the Government gave notice that it might call these two expert witnesses, defense counsel had to determine quickly whether to change course. Indeed, at the April 6, 2001, hearing, Belser told the Court:
[0]nly on this Monday, April the 2nd, was a subpoena served on Dr. Berlin [who testified at the state trial] to testify for the Government in this case.... And it’s Dr. Berlin’s expectation that he would be called to testify by the government basically as a fact witness to testify concerning his prior testimony and particularly with respect to any admissions that Richard Jackson may have told him during the course of his evaluation that may relate to the crime or his mental state at the time of the crime.
To that extent, the government just recently has chosen to inject a mental health issue into the guilt phase of the trial.
Another reason why the notice is coming at this date in the case is because of our recent receipt very late of basic discovery material in the case. Only on March the 21st, long after the Court’s imposed deadline for notice of intent to file the notice of experts in the guilt phase have we received a ballistics report from the government, which I would pass up to the Court. The report is dated on March the 19th. It’s faxed to Mr. Lindsay on March the 21st. And for the first time in the case, we now are told that there — at least according to the FBI, there’s a ballistics match in the case and that there’s now physical evidence to link Mr. Jackson to the crime. This is the first indication in the 7 years of this investigation that that is the case. That is brand new information to us to which we have to respond. We also point out to the Court in the documents that I’m going to pass up to the Court that the bits of physical evidence that were examined by the FBI, the bullet fragments, the cartridge case, and the gun were not even retrieved by the FBI from the Buncombe County Sheriffs Department and sent off for analysis until February the 14th. The report is dated March the 19th and we get it on March the 21st, long after the deadline imposed by the Court. Absolutely new information that
would obviously cause us to reexamine the potential defenses in the case.
Transcript of Motions Proceeding held April 6, 2001,
supra,
at 6-8 (emphasis added). Belser provided additional reasons why counsel had to re-evaluate whether to change their minds about a mental health defense during the guilt phase. The Petitioner had moved to suppress a statement provided by his wife, but in early March 2001, that motion had been denied.
18
Ac
*542
cording to Belser, her description of the Petitioner would “dovetail very concisely” with Dr. Berlin’s report.
Id.
at 9-10. Contrary to the averments now made in hindsight, at the time, defense counsel had consciously and conscientiously determined not to raise the issue of Petitioner’s mental health during the guilt phase due to the overwhelming evidence of his ability to form specific intent evidence that would be presented by two experts from the state trial. Only when additional physical evidence directly connecting the Petitioner to the crime was presented in discovery did counsel have to re-evaluate this decision. In the face of such direct evidence, counsel made the decision to explore the mental health defense. Thus, at that time, counsel sought and obtained permission to file a late notice pursuant to Federal Rule of Criminal Procedure 12.2.
Having received permission to inject that defense, counsel then conscientiously evaluated whether to actually do so, recognizing that this would open the door to the Government’s current expert, Dr. Park Dietz. As Belser acknowledged during the April 6 hearing, “if we inject mental health into the guilt phase of the trial, [the Government] would be able to use Dr. Dietz’ report and evaluation [of the Petitioner], including statements of the [Petitioner], for any purpose they wanted to.”
19
Id.
at 25. Again, the Court finds the representations made by Belser in open court at the time of the prosecution show the reasonableness and effectiveness of defense counsel.
Lundgren v. Mitchell,
440 F.3d 754, 773 (6th Cir.2006) (“Given counsel’s information at the time of trial, there is no evidence to support the conclusion that counsel’s decision was unreasonable.”);
Bryan v. Mullin,
335 F.3d 1207 , 1223 n. 23 (10th Cir.2003) (“ ‘[W]here it is shown that a challenged action was, in fact, an adequately informed strategic choice, we heighten our presumption of objective reasonableness and presume that the attorney’s decision is nearly unchallengeable.’ ”) (quoting
Bullock v. Carver,
297 F.3d 1036, 1047 (10th Cir.2002));
Provenzano,
148 F.3d at 1332.
Belser has now averred that the decision not to offer expert testimony about the Petitioner’s mental health “was a mistake.” Belser Affidavit,
supra,
¶ 17. However, the contemporaneous record shows a deliberate and professional decision on the issue of mental health. On April 19, 2001, the United States and defense counsel entered into a consent order pursuant to which the expert report of Dr. Dietz was disclosed to defense counsel. Joint Sealed Consent Order, filed April 19, 2001. After reviewing Dr. Dietz’ report, watching the videotapes of his interviews with the Petitioner, and after discussing of the contents of those interviews with the defense experts, defense counsel withdrew their notice of intent to offer evidence of mental condition during the penalty phase of the trial.
See
Withdrawal of Notice of Intent to Offer Expert Testimony on Mental Disease, Defect or Condition and Disavowal of Intent to Offer Such Expert Testimony, filed May 8, 2001; Trial Transcript Vol. VI, at 1264-67. Defense counsel obviously made a strategic decision to avoid having Dr. Dietz testify during the penalty phase and to prevent the showing of the videotapes of his interviews with the Petitioner to the jury. It is obvious that Dr. Dietz’ report and accompanying videotapes were so damaging that defense counsel could not run the risk of placing this evidence in front of the jury during the penalty phase of the trial. While defense counsel now
*543
harangue their failure to. inject mental health into the penalty phase, it is clear that the strategic decision made at the time prevented the testimony of Dr. Dietz, testimony which would have been extremely prejudicial to their efforts to convince the jury that the Petitioner should receive life in prison versus the death penalty.
Habeas counsel claim that trial counsel should have “dealt with” Dr. Dietz’ expert opinion through experts of their own. Trial counsel did, in fact, have mental health experts who had examined the Petitioner. Dr. Seymour Halleck averred that he reviewed Dr. Dietz’ report and considered the psychiatrist’s expert opinion to be “flawed.” Exhibit 16, Affidavit of Seymour L. Halleck, M.D.,
attached to
Petitioner’s Supplemental Memorandum, ¶5. Nothing more specific is provided. Trial counsel also read Dr. Dietz’ report and made the strategic decision that his report and the videotapes, which are not mentioned by Dr. Halleck, were too damning to risk presenting to the jury.
Claudia Coleman, Ph.D., was also a mental health expert who examined the Petitioner. Exhibit 9, Affidavit of Claudia R. Coleman, Ph.D.,
attached, to id.
Although she opined that she could have explained the Petitioner’s mental health and disorders, she did not aver that she had reviewed Dr. Dietz’ report.
For the reasons stated, the Court does' not find that trial counsel were ineffective in their handling of the mental health aspects of this case, whether considered as
per se
ineffectiveness or pursuant to the
Strickland
standard.
3. Ineffective assistance concerning the mitigation aspect of the sentencing phase.
Next, the Petitioner attacks the investigation and presentation of mitigation evidence during the sentencing phase of the trial.
When the issue is the adequacy of counsel’s investigation for the sentencing phase of a capital trial, “hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ investigative decisions are made.” To assess the thoroughness of counsel’s investigation and counsel’s overall performance, the Court must conduct an objective review measured for “reasonableness under prevailing professional norms.”
[Three recent Supreme court] cases stand for three important principles. First, the question is not whether counsel did
something;
counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the [American Bar Association (ABA) ] guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence.
Wilson v. Sirmons,
536 F.3d 1064, 1083-85 (10th Cir.),
reh’g en banc granted,
549 F.3d 1267 (10th Cir. Dec.2, 2008) (citing
Rompilla v. Beard,
545 U.S. 374, 381 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005);
Wiggins v. Smith,
539 US. 510, 523, 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003); and
Williams v. Taylor,
529 U.S. 362, 396 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)) (other citations omitted). Nonetheless, neither this trilogy of cases nor
Strickland
requires “defense counsel to ‘investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.’ ”
Gray v. Branker,
529 F.3d 220 , 228-29
*544
(4th Cir.2008) (quoting
Wiggins,
539 U.S. at 533 , 123 S.Ct. -2527). “Instead, [the cases] impose[ ] upon counsel ‘a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ”
Id.
(quoting
Strickland,
466 U.S. at 691 , 104 S.Ct. 2052 ). And, while ABA Guidelines may be relevant in determining what constitutes reasonable performance, “they certainly cannot be dispositive in and .of themselves.”
Meyer v. Branker,
506 F.3d 358, 372 (4th Cir.2007),
cert. denied
, — U.S.—, 128 S.Ct. 2975 , 171 L.Ed.2d 899 (2008).
The ABA Guidelines suggested that one avenue of investigation that counsel should consider is the condition of the defendant’s mental health. ABA Guidelines 11.8.3.F.2, 11.8.6.B. The Guidelines also advised that “[t]he assistance of one or more experts
(e.g.,
social worker, psychologist, psychiatrist, investigator, etc.)” in the investigation, development, and presentation of relevant mitigating evidence “may be determinative as to [the] outcome” at sentencing. ABA Guideline 11.8.6 cmt.;
see also id.
1.1 cmt., 5.1.1.A.V, 11.4.1. Counsel’s “strategic choices made after thorough investigation ... are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” In evaluating an ineffective assistance claim, a court “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Gray,
529 F.3d at 229 (quoting
Strickland,
466 U.S. at 690-91 , 104 S.Ct. 2052 ).
“When a petitioner alleges, as [Jackson] does here, that his counsel should have put forth additional evidence in mitigation, we assess prejudice by ‘reweighfing] the evidence in aggravation against the totality of available mitigating evidence.’ ”
Strickland v. Branker,
284 Fed.Appx. 57, 63 (4th Cir.2008) (quoting
Wiggins,
539 U.S. at 534 , 123 S.Ct. 2527 ),
cert. denied,
— U.S. —, 129 S.Ct. 902 , 173 L.Ed.2d 119 (2009).
During the December 14, 2000, pretrial hearing with Lindsay and Foster, the undersigned advised counsel their requests for a mitigation expert, a private investigator and an expert on future dangerousness would be granted. Transcript of December 14, 2000, Proceedings,
supra.
On December 28, 2000, the undersigned entered a formal order granting the Petitioner’s
ex parte
motion, made through trial counsel, for the appointment of experts, including Dr. Pamela Laughon as a mitigation expert and Dr. Seymour Halleck as a forensic psychiatrist.
Ex parte
Order, filed December 28, 2000. Although Dr. Halleck was appointed as a mental health expert, his investigation and report of necessity included mitigation evidence. Halleck Affidavit,
supra.
On January 25, 2001, the undersigned granted the Petitioner’s
ex parte
motion, made through trial counsel, for the issuance of subpoenas for the Petitioner’s records from the United States Navy, the North Carolina Department of Corrections, the Buncombe County Detention Facility, the North Carolina Department of Social Services, the Juvenile Court for Buncombe County, the Blue Ridge Mental Health Center and the Buncombe County Health Department. Sealed Order, filed January 25, 2001. The undersigned denied counsel’s request for subpoenas for the DSS records of the Petitioner’s birth mother and biological sister, finding the records to be privileged.
Id.
On March 15, 2001, trial counsel’s motion for the appointment of -an expert on the issue of future dangerousness was granted. Sealed Order, filed March 15, 2001. Although this expert was appointed
*545
on the issue future dangerousness, he also included mitigation evidence in his report.
During the
ex parte
portion of the April 6, 2001, hearing, Lindsay advised the Court that the defense team had spent “a significant amount of time” developing mitigation evidence. Transcript of Motions Proceeding held April 6, 2001,
supra,
at 29. Lindsay reported that as a result of their investigation, they had learned through discovery and from DSS significant mitigation information “that was unknown to earlier attorneys” involved in the state court action.
Id.
at 30. It is worth noting that trial counsel discovered this information even though the undersigned denied the motion for subpoenas. Lindsay advised that he had located Petitioner’s biological sister and he had spoken with her adoptive parents.
Id.
That sister was reported to have significant mental health problems, including autism. Moreover, the sister had a history of suicide attempts similar to those of the Petitioner.
Id.
at 30-31. Counsel also had located the Petitioner’s biological mother and learned her personal history as well as the facts surrounding the Petitioner’s birth and removal from his mother.
Id.
at 31. Moreover, trial counsel had located and spoken with the very first foster family with whom the Petitioner had been placed and this foster mother referred to him as being autistic.
Id.
at 32. As a result of this information, counsel requested and received the appointment of Dr. Claudia Coleman as an expert witness in neuropsychology.
Id.
at 33-35;
see also,
Sealed Order, filed April 6, 2001. In addition to her evaluation and testing results, Dr. Coleman’s report contained mitigation evidence.
See
Exhibit 79, Psychological Evaluation performed April 2, 3, and 13, 2001, by Claudia R. Coleman, Ph. D.,
attached to
Petitioner’s Supplemental Memorandum.
Trial counsel and/or their experts and investigators spoke with members of the Petitioner’s extended family, both his biological and adopted families, as well as foster families.
See
Exhibit 2, Affidavit of Phillip Allen,
attached to
Petitioner’s Supplemental Memorandum, ¶ 24; Exhibit 10, Affidavit of Rosanna Drake,
attached to id.
¶¶ 20-21; Exhibit 24, Affidavit of Esther Jenkins,
attached to id.
¶7; Exhibit 25, Affidavit of Pamela Laughon, Ph.D.,
attached to id.
¶¶ 6, 7, 8, 9, 10, 11, 14; Exhibit 29, Affidavit of Helen Marlowe,
attached to id.
¶ 13; Exhibit 79, Jackson Psychological Evaluation,
supra.
Thus, trial counsel investigated the Petitioner’s mental health as well as his early childhood, adolescence, naval experience, marriage and ability to function as a young adult. In so doing, trial counsel used the services of a private investigator, social services, psychologist, psychiatrist, neuropsychologist, and expert on the question of future dangerousness. Among the areas investigated and reported on were the Petitioner’s medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and moral and cultural influences. See, ABA Guidelines,
supra,
at 11.4.1.C, 11.8.3.F.2, 11.8.6.B, 11.8.6 cmt.; 1.1 cmt. 5.1.1.A.V, 11.4.1.; 1 ABA Standards for Criminal Justice 4-4.1, cmt. P.4-55 (2d ed.1982).
In the face of this clear record of thorough investigation, Belser averred there was a lack of direction and inadequate attention in developing mitigation evidence. Belser Affidavit,
supra,
¶¶ 8, 15. According to Belser, Dr. Laughon did not adequately fulfill her responsibility as the mitigation expert. However, he does not specify in what manner she failed except for a general allegation that “she had not devoted much time to this case before I was appointed.”
Id.
¶¶ 8,15.
Contrary to Belser’s sworn statement, Lindsay opined that “Pam Laughon was
*546
our mitigation specialist.
Both Mr. Belser and I had worked with her in other cases
and assumed she would proceed without the need for much supervision.” Lindsay Affidavit,
supra
¶ 22 (emphasis added). “It is certainly within the ‘wide range of professionally competent assistance’ for an attorney to rely on properly selected experts.”
Fields v. Brown,
431 F.3d 1186, 1205 (9th Cir.2005) (quoting
Harris v. Vasquez,
949 F.2d 1497, 1525 (9th Cir.1990)),
cert. denied,
— U.S.—, 128 S.Ct. 1875 , 170 L.Ed.2d 752 (2008).
Moreover, Dr. Laughon has provided an affidavit concerning her performance as the mitigation specialist.
Although we discussed mitigation evidence that I was developing during the course of my interviews, Mr. Lindsay never indicated to me what mitigation he and co-counsel intended to present at penalty phase.... He permitted me considerable latitude in interviewing whatever mitigation witnesses might be appropriate.... I conducted numerous interviews in this case and provided those in written form to Mr. Lindsay promptly and regularly during my preparation.
I located and interviewed a number of [the Petitioner’s] biological maternal relatives!.]
I believe I started gathering critical penalty phase evidence in this case about a month or so before trial, and I recall working intensively on this case during that time. In the process of interviewing witnesses and reviewing records, I believe I uncovered an astonishing amount of compelling information about [the Petitioner’s] life history, and in particular his genetic heritage.
In my opinion, the strongest mitigation evidence located for [the Petitioner] was the history of his early childhood years, during which he was placed in foster care by social services.
Although I do not usually testify in my capital cases, I have been asked on occasion to provide information to the jury that I have collected in the process of my own investigation!.]
On the night before the penalty phase of [the Petitioner’s] trial, Mr. Lindsay contacted me in the evening to inform me that although we had numerous witnesses prepared to testify the next day, he and Mr. Belser had decided that only [the Petitioner’s] adoptive mother would testify at penalty phase.
Exhibit 25, Affidavit of Pamela Laughon, Ph.D.,
attached to
Petitioner’s Supplemental Memorandum,
supra,
¶¶ 4, 6, 7, 9, 13, 14.
To the extent that the Petitioner claims trial counsel did not adequately investigate mitigation evidence, “[i]n judging the defense’s investigation ..., hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ investigative decisions are made and by giving a ‘heavy measure of deference to counsel’s judgment.’ ”
Rompilla,
545 U.S. at 380-81 , 125 S.Ct. 2456 (quoting
Strickland,
466 U.S. at 689, 691 , 104 S.Ct. 2052 ). Dr. Laughon as well as the other experts have averred to considerable efforts on their parts and they have identified numerous individuals with whom each of them spoke. Contrary to Belser’s accusations years after the fact, trial counsel, personally and through their court-appointed experts, conducted a thorough investigation into mitigation.
20
Not only were leads fol
*547
lowed, counsel were able to pierce the veil of a closed adoption, find the Petitioner’s biological mother and sister, and speak not only with them but with his extended biological family. In addition, the foster families with whom he was placed were also consulted.
The crux of the Petitioner’s argument is not that an inadequate investigation occurred but that having uncovered this extensive evidence, trial counsel made the strategic decision to rely solely on the testimony of the Petitioner’s adopted mother, Sally Jackson. As noted by Lindsay:
We had a number of lay witnesses available who could have described Mr. Jackson’s placement in numerous foster homes during his first five and one-half years, his emotional and psychological condition during the time that he lived with J.D. and Sally Jackson, his adoptive parents, and his adaptation to society after he moved out of the Jackson house and lived on his own.
Lindsay Affidavit,
supra,
¶ 26. For the reasons that follow, however, this strategic decision by both Lindsay and Belser to limit mitigation evidence to the testimony of the Petitioner’s mother was not ineffective assistance of counsel.
Wiggins,
539 U.S. at 523 , 123 S.Ct. 2527 (“Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background
was itself reasonable.
”);
Correll v. Ryan,
539 F.3d 938 (9th Cir.2008),
cert. denied,
— U.S.—, 129 S.Ct. 903 , 173 L.Ed.2d 108 (2009) (decision not to present
any
mitigation evidence can be excused as a strategic decision if it is supported by reasonable investigation);
Provenzano,
148 F.3d at 1332;
Gilliam,
480 F.3d at 1034-35 (the fact that “defense counsel has refused to characterize the decision as strategic is not dispositive; the record shows that he investigated the facts, prepared mitigating witnesses, assessed the jury and concluded that they would be unreceptive to additional evidence!.]”);
King v. Cockrell,
33 Fed.Appx. 703 (5th Cir.2002) (trial counsel’s decision not to present mitigation evidence is not
per se
ineffective assistance of counsel) (citing
Crane v. Johnson,
178 F.3d 309, 314 (5th Cir.1999)).
In contrast to the decision made at the time of trial, Belser now pronounces counsel ineffective for failing to call a number of witnesses. First, Belser claims that the parents of the Petitioner’s biological sister should have been called as mitigation witnesses to show that she had autism and other unusual behaviors. Belser Affidavit,
supra,
¶ 17. In actuality, the undersigned ruled that without expert testimony linking the conditions of the two siblings, the evidence was inadmissible. Lindsay averred that, “[a]t that point, we had announced that no expert testimony would be offered on Mr. Jackson’s behalf. I did not believe we could offer this expert testimony based upon our representation that we would not offer expert evidence.” Lindsay Affidavit,
supra,
¶24. Lindsay was correct; the introduction of evidence concerning the Petitioner’s mental health would have resulted in the Government’s use of Dr. Dietz in rebuttal.
Strickland v. Branker,
284 Fed.Appx. at 63 (introducing such testimony would have likely prompted the government to introduce damaging rebuttal evidence). Moreover, on appeal, this evidentiary ruling was affirmed.
Jackson,
327 F.3d at 299 .
*548
Closely related to this claim is the allegation that trial counsel failed to adequately present the full picture of the Petitioner’s childhood experiences, both before and after adoption. However, Sally Jackson did present evidence of the Petitioner’s early childhood. Although counsel now claim evidence of sex abuse should have been presented, the Petitioner remained vague about having been sexually abused. Moreover, trial counsel were both wary of presenting extensive evidence of the Petitioner’s childhood because after age five, he grew up in a wealthy family with loving parents.
Yarbrough v. Johnson,
520 F.3d 329, 340-41 (4th Cir.),
cert. denied,
— U.S. — , 128 S.Ct. 2993 , 171 L.Ed.2d 909 (2008). As Lindsay acknowledged:
A constant concern for the defense was the impression that had been created during the state court proceedings, and that would likely occur in the federal trial, that the victim had come from a salt of the earth, financially challenged family and that Mr. Jackson had been raised in a fairly well off family who had been able to provide him with significant mental health treatment and care. The perception that “given the wealth of this family and the treatment that they provided, Jackson is simply evil and therefore must executed” was first and foremost on the “concern list” for the defense. Former defense counsel for Mr. Jackson at the state level had indicated to me that they believed this perception was a significant factor in Mr. Jackson getting a death sentence in state court. I felt that we needed to find some way to show that this perception was wrong.
Affidavit of Stephen P. Lindsay, Offer of Proof, filed May 6, 2002, ¶ 5. Thus, there was little or no evidence that the Petitioner’s crime was attributable to his suboptimal childhood.
Yarbrough,
520 F.3d at 341 .
“[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are
attributable
to a disadvantaged background ... may be less culpable than defendants who have no such excuse.” ... A jury hearing this evidence might therefore be led to find [the Petitioner] more culpable for his criminal acts, rather than less.
Id.
at 343 (quoting
Wiggins,
539 U.S. at 535 , 123 S.Ct. 2527 ) (other citations omitted). It thus appears that Belser and Lindsay’s strategic decision followed the same reasoning applied by both the Supreme Court and the Fourth Circuit.
21
See, e.g. Howard v. Moore,
131 F.3d 399, 421 (4th Cir.1997) (failure to introduce evidence in mitigation that might have hurt as much as it might have helped is not ineffective assistance of counsel).
Belser also opines that other “non-expert witnesses who could have given helpful testimony” should have been called. Belser Affidavit,
supra,
¶ 19. Those witnesses are not identified however, and in what manner their testimony would have been “helpful” is not disclosed.
Bassette v. Thompson,
915 F.2d 932, 940-41 (4th Cir.1990) (failure to identify witnesses and/or the substance of their testimony does not establish ineffective assistance of counsel);
accord, Beaver v. Thompson,
93 F.3d 1186, 1195 (4th Cir.1996) (no ineffective assistance where no proffer is made of what favorable evidence or testimony would have been produced);
Bell v. Outlaw,
2008 WL 4510587 (E.D.N.C.2008). Nor is an ineffective assistance claim established on a general claim that additional witnesses
*549
should have been called in mitigation.
Bassette,
915 F.2d at 940-41 .
Other witnesses are identified; for example, the testimony of extended family and fellow co-workers. As previously noted, Dr. Laughon has averred that she interviewed “a number” of the Petitioner’s biological relatives, including his aunt who cared for him in early childhood. Laughon Affidavit,
supra,
¶ 6. She reported discovering “an astonishing amount of compelling information” from which she gleaned that Petitioner had “a history of significant mental health problems in his biological family.”
Id.
¶ 7. One of his foster parents, she reported, referred to the Petitioner as the “ ‘little autistic boy.’ ”
Id.
¶ 9. And, Dr. Laughon averred that she could have testified that relatives of a person with an autistic disorder, like the Petitioner’s biological sister, have a higher chance of having autism.
Id.
¶ 13. However, as previously noted, placing such evidence before the jury in the penalty phase would have opened the door to Dr. Dietz’ testimony. Obviously, despite the current remonstrations, counsel made a strategic decision to avoid his testimony.
The Petitioner’s biological mother, Rosanna Drake, has provided an affidavit in which she states that she was prepared to testify during the sentencing phase of the trial. Drake Affidavit,
supra,
¶21. She states that she would have testified about her own difficult life and her inability to take care of the Petitioner after his birth resulting in his removal by DSS when he was a baby.
Id.
¶ 3. Despite these claims of instability, Drake would have testified that she was raising the Petitioner’s daughter.
Id.
¶2. Again, trial counsel’s strategic decision to place the testimony of Sally Jackson before the jury in mitigation as opposed to Drake’s cannot be second-guessed.
As noted below, Sally Jackson presented substantial evidence of the Petitioner’s early childhood, upbringing and young adulthood. Thus, the content of any testimony such as that identified above would have been cumulative.
Wilkinson v. Polk,
227 Fed.Appx. 210, 218 (4th Cir.2007),
cert. denied,
— U.S.—, 128 S.Ct. 881 , 169 L.Ed.2d 740 (2008);
McHone v. Polk,
392 F.3d 691 (4th Cir.2004). Where it has been included in the record herein, the undersigned has reviewed the state court testimony of these witnesses. That review shows that their testimony would indeed have been cumulative. Moreover, the testimony heard by the state court jury did not prevent it from imposing the death sentence in that trial.
See
Exhibit 41, Testimony of Carolyn Ayers (co-worker); Exhibit 42, Testimony of Joseph Christopher Ballard (co-worker); Exhibit 43, Testimony of Robert William Barcafer (friend); Exhibit 46, Testimony of Samuel Paul Cannon (co-worker/supervisor); Exhibit 52, Testimony of Shirley Brown Jenkins (DSS supervisor); and Exhibit 54, Testimony of Captain William A. Stafford (Buncombe County Detention Facility supervisor), all
attached to
Petitioner’s Supplemental Memorandum,
supra.
In what manner their testimony in this trial would have precluded a similar finding by the jury is not explained and is nothing more than speculation.
Next, habeas counsel claim that trial counsel were ineffective because they failed to offer the state court testimony of the Petitioner’s deceased adoptive father. It is first noted that, despite having heard this testimony in the state trial, the jury there imposed the death sentence. Moreover, a review of the deceased father’s testimony discloses that on cross-examination, the father testified that when the Petitioner was 19 or 20 years old, he was arrested for trespassing at the home of a young girl whose mother had ordered him to leave but he did not do so. Exhibit 49, Testimony of James Dwight Jackson, Jr.,
*550
attached to id.,
at 859. In addition, the Petitioner had a strained relationship with his father who sent him to military school.
Id.
at 860-62. The Petitioner’s father testified that he had more than once referred to the Petitioner as manipulative.
Id.
at 879, 882. Moreover, as early as age 15, the Petitioner ran up about $300 in phone calls to 1-900 phone-sex numbers on his parents’ telephone.
Id.
at 883.
Howard,
131 F.3d at 421 ;
Jones v. Catoe,
9 Fed.Appx. 245, 254 (4th Cir.2001) (petitioner is not prejudiced by the failure to introduce evidence in mitigation that would have hurt as much as it helped) (citing
Howard
). Placing evidence before the jury of behavior tantamount to stalking a girl at a young age and the use of telephone sex lines certainly would have been more damaging than helpful.
Horton v. Allen,
370 F.3d 75, 86-87 (1st Cir.2004) (quoting
Lema v. United States,
987 F.2d 48, 54 (1st Cir.1993) and
Phoenix v. Matesanz,
233 F.3d 77 , 82 n. 2 (1st Cir.2000)).
“The decision whether to call a particular witness is almost always strategic, requiring a balancing of the benefits and risks of the anticipated testimony. The witness may not testify as anticipated or the witness’s demeanor or character may impress the jury unfavorably and taint the jury’s perception of the accused; or the testimony, though sympathetic, may prompt jurors to draw inferences unfavorable to the accused.”
Considering the possible danger to the defense from calling these witnesses, the decision to bypass them reasonably could be viewed as legitimate trial strategy. ... [Tjrial strategy does not constitute ineffective assistance unless counsel’s decision was “so patently unreasonable that no competent attorney would have made it.”
Habeas counsel also attack the decision of trial counsel to use only the testimony of the Petitioner’s adoptive mother, Sally Jackson, in mitigation. Despite counsel’s claims now that this decision constituted ineffective assistance of counsel, the Fourth Circuit found on direct appeal that the testimony of Sally Jackson, “was broad-ranging, and the conclusions that could have been made [concerning mitigation] covered everything from Jackson’s childhood, his disabilities, his mental condition, his intelligence, his remorse, his ability to hold jobs, his social deficiencies, and more.”
Jackson,
327 F.3d at 293-94 . A review of Mrs. Jackson’s testimony shows that she addressed the following issues: the social and business background of Mr. and Mrs. Jackson; their inability to have children; their experience of raising foster children; the Petitioner’s childhood experiences both before and after being fostered and subsequently adopted; his inappropriate behavior as a child; his extended adopted family; his inappropriate sexual behavior as a child; his close relationship with his adoptive mother; his educational difficulties; his inability to concentrate; his depression and repeated suicide attempts; his inability to get along with others; his discharge from the military due to mental problems;
22
his inability to keep a job; his marriage and his two children; his closeness to his children before his arrest;
23
the fact that at the time
*551
of the crime, he was in a deep depression; an accident at the restaurant just before the crime during which he was burned resulting in the prescription of pain killers; the fact that he tried to commit suicide during the time at issue; the impact of the arrest on the Petitioner’s father resulting in a heart attack;
24
his father’s subsequent death; the fact that the Petitioner’s parents supported him financially even into adulthood; and the Petitioner’s propensity to make calls to sex lines resulting in high phone bills. Trial Transcript, Vol. VII, filed August 6, 2001, at 1327-71. “Although defense counsel did not introduce all of the mitigating evidence now pointed to by [the Petitioner], the mitigation witness[ ] touched on [every] topic[ ] to which [he] refers[.]”
Moore v. Reynolds,
153 F.3d 1086, 1099 (10th Cir.1998). The decision to rely solely on the testimony of Sally Jackson was not “so patently unreasonable that no competent attorney would have made it.”
Horton,
370 F.3d at 87 (quotation omitted).
Although Belser claims there was confusion as to which attorney was responsible for handling the mitigation evidence, both the affidavits of counsel and the trial transcript disclose that trial counsel conferred and made a deliberate decision to rely solely on Sally Jackson’s testimony. Moreover, the Fourth Circuit found her testimony wide-ranging and effective mitigation evidence.
A complete review of Sally Jackson’s testimony leads to the conclusion that the jury could have received the impression that Richard Jackson was not smart, that he had mental problems, including sexual problems, that he was loved as a child and reacted with love, trying to overcome his mental disabilities, and that he was remorseful whenever he did wrong. This, in particular, was revealed by the testimony of Richard’s apologies to his mother when he repeatedly tried to commit suicide, the testimony of Richard’s attempt to commit suicide after the murder of Styles, and the testimony of his crying in the jail when he was visited by Sally Jackson with a minister, as well as Sally Jackson’s own remorseful approach, intending to visit the victim’s family.
Jackson,
327 F.3d at 292 . Or as noted by Lindsay:
Near the end of the presentation of evidence at the penalty phase, Mr. Belser and I decided not to offer any evidence other than the testimony of Sally Jackson. We had a number of lay witnesses available who could have described Mr. Jackson’s placement in numerous foster homes during his first five and one-half years, his emotional and psychological condition during the time that he lived with J.D. and Sally Jackson, ... and his adaptation to society after he moved out of the Jackson house and lived on his own.
Although these witnesses were available, we did not call them.
Lindsay Affidavit,'
supra,
¶ 26 (emphasis added). Counsel thus had mitigation witnesses available as a result of their investigation but made a considered, deliberate decision not to use any mitigation witness other than Sally Jackson.
25
The Court does not find that limiting the mitigation evidence to the testimony of
*552
Sally Jackson was either
per se
prejudicial or ineffective pursuant to the
Strickland
standard. In fact, it was trial strategy which the undersigned finds as a matter of law was not ineffective assistance of counsel.
Provenzano,
148 F.3d at 1332-33 (the strategical decision of which witnesses to call “ ‘is the epitome of a strategic decision, and it is one that [the courts] will seldom, if ever, second guess[.]’ ” (quoting
Waters,
46 F.3d at 1512 )).
The Petitioner also claims that the failure to, use the testimony of the expert in future dangerousness constitutes ineffective assistance of counsel. The morning the penalty phase of the trial began, the Government announced that it would not rely on future dangerousness as an aggravating factor to be presénted to the jury in support of the death penalty. Trial Transcript, Vol. VII,
supra,
at 1271. As’ a result, the Government stated that it would not call two witnesses it had intended to call on that issue.'
Id.
at 1272. The first of those witnesses was James Pruette, a fellow inmate who would have testified that Jackson kept pornography in his cell and laughed about the short prison sentence he had received in state court for Karen Styles’ murder after the North Carolina Supreme Court reversed his death penalty and remanded, the case for a new trial. Motion in Limine to Exclude Evidence, filed May 8, 2001, at 2. The second witness was Captain Dennis Daniels who would have testified that the Petitioner received pornography while in prison.
Id.
The Government announced that neither witness would be called
unless
there was any “allegation or evidence offered by the defense to suggest that defendant had remorse for what he did or that defendant poses no future danger to the community or that this crime was in any way related to his exposure to pornographic materials.” Trial Transcript, Vol. VII,
supra,
at 1273. At the time of the trial, Belser admitted on the record in open court that the testimony of those two witnesses would be “overwhelmingly prejudicial!.]”
Id.
at 1277.
By contrast, in the affidavit filed in support of this motion, Belser averred:
We also had James E. Aiken available as an expert in prison behavior who could have given compelling testimony about Mr. Jackson’s excellent adjustment to incarceration and
his lack of future dangerousness
in the prison setting. I know this type of evidence is very important to a capital sentencing jury. Mr. Aiken was in the courtroom during the penalty phase. However, Mr. Lindsay and I did not call him.
I do not know why we did not use him as a witness.
I do not think it would have been inconsistent with our agreement not to offer expert testimony about Mr. Jackson’s mental health or opened the door to unfavorable evidence. We just neglected to use him as a witness, which was a mistake.
Belser Affidavit,
supra,
¶ 20 (emphasis added). In contrast to Belser’s affidavit, submitted years after the fact,
26
it is patently clear from the contemporaneous record that Belser and Lindsay did not call Aiken as a witness in order to avoid the Government’s use of the two witnesses noted above as well as the reintroduction of the aggravating factor of future dangerousness. Thus, the decision not to present evidence related to remorse or future dangerousness cannot be said to be
per se
ineffective assistance of counsel.
27
Nor
*553
does it qualify as ineffective assistance under the
Strickland
standard.
At the conclusion of Mrs. Jackson’s testimony, Belser attempted to make a proffer of evidence to the Court concerning Pruette’s testimony in an effort to show that it would be improper rebuttal evidence. This shows that before deciding once and for all not to use Aiken’s testimony, Belser tried to receive an advance ruling.
With respect to the possible testimony in rebuttal of Mr. Pruette, the government of course has said it did not intend to call him except in rebuttal ... to rebut any evidence of remorse expressed by Richard Jackson, any evidence that he was not a danger to the community ..., or any evidence that this crime was in any way related to pornography.... We can’t make a decision with [the Petitioner] about what kind of evidence to put on, including whether or not to introduce certain aspects of the records, unless we know what the court might do on that issue. So, what I would ask the Court to do is [to rule on the admissibility of his testimony]. Otherwise, we would be in a position of having not to offer evidence of remorse, not to offer evidence of lack of future dangerousness, or anything else because of not knowing what the ruling might be.
We would need to know in general whether, if we put up evidence for remorse, which we would be expected to do, or if we put up evidence of lack of future dangerousness, which we would be expected to do, then if Mr. Pruette testifies in the way that the government expects him to, whether that would be improper in rebuttal. Otherwise, we would have to forego the constitutional right to put up that kind of mitigating evidence.
Trial Transcript, Vol. VII,
supra,
at 1372-74. In other words, before Belser decided whether to place further evidence before the jury, he wanted an advisory ruling from the Court as to whether rebuttal evidence from the witness Pruette would be allowed. The undersigned refused to make a ruling prior to the proffer of the evidence.
28
As a result, defense counsel made a strategic, decision not to offer this mitigating evidence in order to avoid the obviously damaging testimony of Pruette.
Lovitt v. True,
403 F.3d 171, 180 (4th Cir.2005) (“This strategy of not risking a more determined prosecutorial onslaught ... was sensible” and not ineffective assistance of counsel.). “‘Trial counsel is too frequently placed in a no-win situation with respect to possible mitigating, evidence at the sentencing phase of a capital case.’ ”
Id.
at 181 (quoting
Bunch v. Thompson,
949 F.2d 1354, 1364 (4th Cir. 1991)). “Therefore, ‘[t]he best course for a federal habeas court is to credit plausible strategic judgments.’ ”
Id.
(quoting Bunch). The Fourth Circuit “refuse[s] to place defense lawyers in this [no-win] position.”
Id.
The next morning, the Government objected to the plans of defense counsel to call the adoptive parents of the Petitioner’s biological sister, the Allens, to testify that the sister has Asperberger Syndrome, a variation of autism. Trial Transcript, Vol. VIII, filed August 6, 2001,
*554
at 1378. The Government argued that the evidence would be inadmissible unless the defense had an expert which could opine that there is genetic link between siblings which resulted in both siblings having that syndrome.
Id.
The Court asked Lindsay whether the defense had an expert witness who could testify about the relationship between siblings having this disorder.
Id.
at 1379 . Lindsay responded that there was such a witness “but in light of our notice that we were not going to be offering any expert mental health testimony, we have none at this point.”
29
Id.
Likewise, Belser has averred that he did not present any expert testimony which would have linked the Petitioner’s childhood conditions with those of his biological sister “because we had earlier informed the district court and the government that we would not present expert testimony about Mr. Jackson’s mental, emotional and psychological condition [during the penalty phase]. This decision was a mistake.” Belser Affidavit,
supra,
¶ 17.
Although Belser now characterizes this strategic decision ás a “mistake,” in actuality, and as discussed at length above, the defense faced a Hobson’s choice. If mental health evidence was introduced during the penalty phase of the trial, then the Government could introduce such evidence in rebuttal. Introducing the expert testimony linking the Petitioner to his sister would have resulted in the introduction of Dr. Dietz’ testimony. Defense counsel, therefore, had to decide whether to risk the rebuttal testimony of Dr. Dietz, testimony about which they most certainly had grave concerns.
Moreover, the reports of the Petitioner’s mental health experts would not have supported the necessary link between the sister’s condition and the Petitioner’s mental health. Based on her evaluation of the Petitioner, it was Dr. Coleman’s opinion that he had some behaviors “often seen in autistic individuals” but did not diagnose him as autistic.
See
Exhibit 79, Jackson Psychological Examination,
supra,
at 11. She also reported that there are familial links for disordefs such as autism but diagnosed him as suffering with “probable” attention deficit hyperactivity disorder.
Id.
at 12. Dr. Seymour Halleck noted, variously, the Petitioner’s propensity “in buying pornographic magazines and using them for masturbation purposes” and he opined that although no diagnosis of a sexual disorder was made, he believed the Petitioner “has serious sexual problems.” Exhibit 82, Report of Seymour L. Halleck, M.D.,
attached to
Petitioner’s Supplemental Memorandum at 8, 15. He did not diagnose the Petitioner with autism. Moreover, assuming
arguendo
that there was a biological link between the two siblings which could have been established by an expert, trial counsel were not ineffective for determining that the dangers involved in introducing such evidence, and thereby inviting Dr. Dietz’ testimony, outweighed the benefits. Indeed, Dr. Halleck’s report of serious sexual problems weighed in favor of the prosecution, not the defense.
*555
Belser now opines that he should have made a proffer of the evidence pursuant to Federal Rule of Evidence 104
30
outside the hearing of the jury. Belser Affidavit,
supra,
¶ 18. As noted above, the proffer would have been futile in the absence of expert testimony actually linking the sister’s alleged mental condition with that of the Petitioner. More importantly, a proffer of the evidence would have been futile in view of the decision to avoid the introduction of Dr. Dietz’ testimony. Trial counsel were not ineffective in making this choice. Therefore, there was no
per se
or other ineffective assistance of counsel.
Finally, on the issue of mitigation evidence, the Court will “ ‘reweigh the evidence in aggravation against the totality of available mitigating evidence.’ ”
Strickland v. Branker,
284 Fed.Appx. at 63 (quoting
Wiggins,
539 U.S. at 534 , 123 S.Ct. 2527 ). The jury unanimously found that the victim’s death occurred during the commission of the crime of kidnaping. Special Verdict Form Regarding Punishment,
supra,
at 3. The jury also unanimously found that the Petitioner committed the offense in an especially cruel manner because it involved torture or physical abuse.
Id.
Finally, the jury found as an aggravating factor that substantial planning had been involved.
Id.
The jury also found as a non-statutory factor that the crime had caused injury, harm, and loss to the victim’s family.
Id.
at 4.
In mitigation, the jury unanimously found that the Petitioner did not have a significant prior criminal history.
Id.
They rejected any mental health impairment.
Id.
Out of 23 non-statutory mitigating factors, the jury unanimously found six of them.
Id.
at 6-9. A majority of the jurors found five other such factors.
Id.
A minority of them found another two such factors.
Id.
Thus, the jurors found thirteen out of a possible twenty-three mitigating factors, that is, almost sixty percent of the total mitigating factors were found by the jury. Among those factors were the following: Petitioner was in DSS custody for the first five years of his life; strange episodic behavior at an early age which did not diminish; inappropriate sexual language; great familial love despite significant emotional problems; a discharge from the Navy due to mental problems; continued sexual problems with age; heavy sedation in the days prior to the murder; full cooperation with the authorities; a truthful statement about the crime to authorities; remorse during his confession to the authorities; the behavior of a perfect inmate during seven years of imprisonment; and a son and daughter, as well as his mother, who would be severely impacted by his death. Despite these mitigating factors, and their almost sixty percent existence, the jury unanimously voted to impose the death sentence.
Id.
at 11.
In undertaking the reweighing of “the evidence in aggravation against the totality of available mitigating evidence [in order to] assess prejudice,” the Court must “evaluate the totality of the evidence— ‘both that adduced at trial, and the evidence adduced in the habeas proceeding[s].’ ”
Pinholster v. Ayers,
525 F.3d 742, 766 (9th Cir.2008) (quoting
Wiggins,
529 U.S. at 536 , 123 S.Ct. 2527 ). The Petitioner’s biological sister has autism but he has not been so diagnosed. Dr. Coleman diagnosed the Petitioner as having bipolar disorder, depressive disorder in remission, “probable” attention deficit hyperactivity disorder, and personality disorder.
31
Exhibit 79, Jackson Psychological
*556
Examination,
supra,
at 12-13. Dr. Halleck diagnosed the Petitioner as having a recurrent depressive disorder, attention deficit hyperactivity disorder, probable bipolar disorder, and a personality disorder. Exhibit 82, Report of Dr. Halleck, at 14-15. Although Dr. Halleck did not make a diagnosis of a sexual disorder, he clearly opined that the Petitioner had “serious sexual problems.”
Id.
at 15. The Petitioner’s sister, like the Petitioner, displayed inappropriate sexual behavior; but, this evidence weighs against the Petitioner, not for him. His deceased father’s testimony from the state court trial would have shown an early tendency to stalk young women and make telephone calls to sex lines.
Moody v. Polk,
408 F.3d 141, 151 (4th Cir.2005) (additional mitigating evidence discounted because it “is ‘a double-edged sword that might as easily have condemned [the petitioner] to death as excused his actions’ ”) (quoting
Byram v. Ozmint,
339 F.3d 203, 210 (4th Cir.2003)). The testimony of Petitioner’s ex-wife would have shown his use of stun guns during sex. The other testimony may have shown additional'abuse during early childhood; however, it would have been duplicative of the testimony placed before the jury by Sally Jackson.
Buckner v. Polk,
453 F.3d 195, 207 (4th Cir.2006),
cert. denied,
549 U.S. 1284 , 127 S.Ct. 1817 , 167 L.Ed.2d 327 (2007). Nonetheless, the love, care, nurturing and consistent mental health treatment he received from the Jackson family remains unchallenged. Despite all the alleged evidence of mental impairment, suicide attempts, failed behavior in public and military schools, as well as unsuccessful attempts at adult independence, the aggravating evidence before the jury remained intact. And, the introduction of the mental health evidence would have opened the door to Dr. Dietz’ testimony.
Bowie v. Branker, 512 F.3d 112,
121 (4th Cir.2008) (the purported mitigating evidence must be discounted as “double-edged,” for had it been introduced, the Government could have introduced its mental health expert),
cert. denied
, — U.S.—, 128 S.Ct. 2972 , 171 L.Ed.2d 897 (2008). Moreover, the jury would have been allowed to view the videotape of Dr. Dietz’ interview of the Petitioner, a tape which almost certainly would have made the FOX news interview of the Petitioner seem benign.
Cagle v. Branker,
520 F.3d 320, 327 (4th Cir.) (the attorneys decided after investigation that calling the defendant’s family “would only open the door to devastating rebuttal evidence”),
cert. denied,
— U.S. —, 129 S.Ct. 763 , 172 L.Ed.2d 757 (2008).
[A]fter accounting for [the Petitioner’s] largely cumulative and otherwise unsympathetic evidence — we are left basically where we started. The balance of the aggravation — mitigation scale remains unchanged, and [the undersigned] do[es] not find that presenting this undisclosed mitigating evidence to the jury would hav

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2475823. Public record. Not legal advice.