Outten v. Kearney

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

9-28-2006

Outten v. Kearney

Precedential or Non-Precedential: Precedential

Docket No. 04-9003

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-9003

JACK FOSTER OUTTEN, JR.

v.

RICK KEARNEY, Warden, Sussex Correctional Institute;

ATTORNEY GENERAL OF THE STATE OF DELAWARE

Jack F. Outten, Jr.,

Appellant

Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 98-cv-00785)

District Judge: Honorable Sue L. Robinson

Argued July 27, 2006

Before: RENDELL, AMBRO and FUENTES, Circuit Judges

(Opinion filed: September 28, 2006)

Ricardo Palacio, Esquire

Andrew D. Cordo, Esquire

Ashby & Geddes

222 Delaware Avenue

17th Floor, P.O. Box 1150

Wilmington, DE 19899

John P. Deckers, Esquire (Argued)

800 North King Street, Suite 302

Wilmington, DE 19801

Counsel for Appellant

Thomas E. Brown (Argued)

Deputy Attorney General

Department of Justice

Delaware State Office Building

820 North French Street

Carvel Office Building

Wilmington, DE 19801

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge:

Jack Foster Outten, Jr., was convicted by a Delaware jury

2

of, inter alia, first-degree murder and sentenced to death. His

direct appeals and post-conviction claims in state court were

unsuccessful. Outten then filed in federal court a 28 U.S.C.

§ 2254 petition for a writ of habeas corpus, which the United

States District Court for the District of Delaware denied. We

conclude that trial counsel’s failure to conduct a reasonable

investigation of Outten’s background in anticipation of his

capital sentencing violated his Sixth Amendment right to

effective assistance of counsel. Thus, we reverse and remand

this case for resentencing.

I. Factual and Procedural Background

A. The Murder of Willie Mannon

We recite only briefly the pertinent facts of this case as

set forth by the District Court, Outten v. Snyder, Civ. No. 98-

785-SLR, 2004 U.S. Dist. LEXIS 5546 (D. Del. Mar. 31, 2004)

(Outten IV), and the Delaware Superior Court, State v. Outten,

No. C.R.A. IN-92-01-1144, 1997 WL 855718 (Del. Super. Ct.

Dec. 22, 1997) (Outten II). (All city or town references are in

Delaware.) Outten, his cousins Steven and Nelson Shelton, and

Nelson’s girlfriend, Christina Gibbons, spent the afternoon of

January 11, 1992, drinking beer at Nelson and Gibbons’s home

in Newark. After consuming approximately one and one-half

cases of beer, the four drove to Clemente’s Bus Stop, a local

tavern located on Route 13 south of Wilmington.

3

After separating for a short time, Outten, the Sheltons,

and Gibbons eventually reconvened and went to Hamill’s Pub

in Elsmere, and then to Fat Boys Bar in New Castle. At Fat

Boys Bar, the three men began playing pool while Gibbons sat

at the bar counter alone. She began conversing and drinking

with sixty-two year old Wilson “Willie” Mannon, who had

arrived at the bar earlier that same day. Ultimately, Mannon left

with Gibbons and the three men.

Mannon’s body was discovered along a road in a deserted

area of East Wilmington at approximately 11:00 a.m. on January

12, 1992. He was found lying on his back with his legs crossed

and the top of his head shattered. Mannon’s pockets were

turned inside-out, and loose change, his empty wallet, and his

identification cards were scattered nearby. A broken ballpeen

hammer handle rested a few feet away from his body and the

head of that hammer was located behind a nearby fence along

the road.

Nelson Shelton and Gibbons were stopped by New Castle

County police later that morning. The officers sought to

question Nelson on an unrelated charge. He was taken to police

headquarters and found to be in possession of two gold rings

that were Mannon’s. His winter jacket also appeared to be

stained with blood.

Gibbons accompanied Nelson to the police station.

While there, she provided statements to New Castle County and

4

Wilmington law enforcement officers implicating Outten and

Steven Shelton in the robbery and murder of Mannon. Gibbons

recounted that she had been at a bar the previous night with

Outten and the Shelton brothers, and that, at the end of the night,

the four of them left in Nelson’s car with an “older man” named

Willie. From the bar, they drove to a “boat yard,” where the

older man was beaten with a hammer and an object she thought

was a sink. According to Gibbons, Outten struck the man with

the sink and Steven kicked him. She was adamant that Nelson,

though present, was not involved. Gibbons also told police that

the sink was discarded along Interstate 95 after the murder.

The next day, January 13, 1992, Gibbons spoke about

Mannon’s murder to her social worker, Sandra Nyce. The story

she recounted to Nyce differed significantly from her prior

statements to the police. Indeed, she implicated Outten and both

Shelton brothers in the beating and murder, telling Nyce that all

three men had taken turns hitting Mannon and that they had

killed a “nice old man.”

B. The Trial Court Proceedings

Acting quickly, on January 21, 1992, a Delaware grand

jury indicted Outten and the Sheltons for Mannon’s death. They

were charged with, inter alia, first-degree murder, first-degree

conspiracy, first-degree robbery, and possession of a deadly

weapon during the commission of a felony. The defendants

were tried together in the Delaware Superior Court in New

5

Castle County in January–February 1993. Gibbons, who in

addition to providing multiple contradictory accounts of the

murder during the investigation gave conflicting testimony at

trial, was the State’s principal witness.1 After deliberating for

two days, the jury convicted the defendants of all offenses as

charged.

A penalty hearing was held on March 3–5, 1993.

Counsel for both Outten and Steven Shelton made opening

statements. One of Outten’s counsel—there were two 2 —told

the jury its decision was simple: choose life or death. He also

stated that he and his co-counsel were there “to beg for the life

of [their] client.” Steven’s counsel, by contrast, stated, “My

client has instructed me to advise you that we will not be

begging for his life in this case.”

1

During her initial testimony, Gibbons implicated only Outten

and Nelson Shelton in the murder of Mannon. She retook the

stand, however, and conceded that her prior testimony had been

false, and testified that all three defendants had participated in

the beating and killing of Mannon. For a comprehensive

account of Gibbons’s various statements to investigators and the

jury, see Outten IV, 2004 U.S. Dist. LEXIS 5546, at *9–13.

2

Outten was represented by the same two attorneys at trial and

on direct appeal. Outten II, 1997 WL 855718, at *76 n.188. For

the remainder of this opinion, any reference to Outten’s trial

counsel means both attorneys unless the context requires

otherwise.

6

The State then presented evidence of Outten’s past

criminal history. That evidence included: a house burglary

conviction; seven convictions for non-violent crimes including

forgery, issuance of a bad check, misdemeanor theft, felony

theft, and criminal impersonation; his family court record; and

his probation violations.

Thereafter, Outten presented his mitigation case to the

3

jury. He called as witnesses his mother (Carol Outten), two

3

Nelson Shelton presented no evidence in mitigation. He was

sentenced to death, waived all appeals and/or post-conviction

remedies, and was executed on March 17, 1995. Steven

Shelton, after extensive colloquies with the trial court, presented

only limited evidence in mitigation. In allocution (here,

speaking directly to the jury), Steven stated:

Ladies and gentlemen of the jury, I stand before

you not to plead for my life. I feel that’s wrong

and improper and basically disrespectful to the

victim’s family and to mine. The State has

painted a picture, and that picture is not very

pretty, pertaining to me and my co-defendants.

And I would just like to present to the jury a

different side or a different meaning to Steven

Shelton. The State has pictured me as being a

monster, as being a rapist, as being a violent

individual, but as you heard from my family,

that’s not so. The State only presents one side of

7

sisters (Robin Outten and Amanda Hart), brother (John Outten),

friend (Ruperto Sanchez), and a former girlfriend and the

mother of two of his children (Karen Julian).

Outten’s mother testified first. She described Outten’s

relationship with his father, Foster Outten, as his father was

dying of cancer. Outten II, 1997 WL 855718, at *21.

According to Mrs. Outten, Outten had stayed in his parents’

home in order to care for his father for the last two years of his

life. Id. He continued to assist his father even when he was

completely bed-ridden. Id. Mrs. Outten depicted her husband

as a “very strict” man who “punished [the] children as he saw

fit.” Id. She indicated that Outten had “started off in school

okay but got into truancy trouble,” and only made it to the

eleventh grade. Id. Mrs. Outten also discussed her son’s

criminal history, including his prior convictions for assault. On

cross-examination, she confirmed that Outten had physically

the picture. There’s two sides to every story.

And the State just presents a negative side. The

jury has found me guilty of these allegations, and

now it’s the jury’s turn to render a verdict. And

that verdict is either life in jail or death. Again,

I’m not here to plead for my life, but just ask the

jury to be fair in their decisions. That’s all I have

to say.

Outten II, 1997 WL 855718, at *25–26.

8

attacked his sister Amanda. Id.

Outten’s sister Robin testified next. She also explained

that Outten had cared for his father toward the end of his life.

Id. She stated that “Outten was very upset by his father’s death

and cried like she had never seen before.” Id. Robin told the

jury that Outten had a child with Karen Julian in 1991, but the

baby had died shortly after birth. Id. “[T]his too,” she said,

“was most upsetting to Outten.” Id. On cross-examination,

Robin admitted that she had accrued “theft and misdemeanor

convictions,” and that those crimes “also involv[ed] Outten.”

Id.

Ruperto Sanchez, a family friend, testified that he

observed “Outten being upset when his baby died.” Id. He also

“mentioned the good relationship Outten had with his father.”

Id. On cross-examination, Sanchez stated that he had been

convicted in 1991 of a misdemeanor offense involving both

Robin and Outten. Id.

Amanda Hart, another of Outten’s sisters, then testified.

“She described . . . [a physical altercation that occurred] in 1989

between Outten and [Karen] Julian.” Id. According to Hart,

Outten punched her in the eye when she attempted to intercede.

Id. An affidavit of probable cause signed by Hart and

introduced by the prosecution on cross-examination indicated

that Outten had caused damage to her residence as well. Id.

Hart stated that there were times that she and Outten had lived

9

together. During those times, Outten was “helpful to her and

others,” and treated her infant children well. Id. at *22. She

also discussed “how Outten took care of his father in the last

years of his illness.” Id.

Karen Julian then took the stand. She and Outten had

lived together for about four-and-a-half years prior to his arrest

for the underlying offense. Id. According to Julian, Outten had

been working as a roofer, but had been laid off four to six weeks

before the murder. Id. She also “told the jury that Outten had

not completed an alcoholic rehabilitation program because he

would not give the names of others who had broken some

rules.” Id.

Outten’s final witness was his older brother, John. He

testified that “[t]heir father became blind in one eye and suffered

a speech impediment as a result of [a] mugging” that occurred

in 1974. Id. John also told the jury that “Outten seemed to

suffer the worst from their father’s frustration” with his

impaired condition. Id. It was John’s opinion that his brother’s

relationship with their father “caused Outten to start stealing.”

Id.

Outten also spoke directly to the jury in allocution. He

described his family as “close-knit,” but did state that he had

been “semi-abused.” Id. According to Outten, “his father

‘chastened’ him, making him run away.” Id. Outten also

reviewed his extensive criminal record, characterizing himself

10

as “mischievous.” Id. He “pointed out to the jury that his

convictions were for non-violent offenses, such as forgery, theft

and criminal mischief.” Id. Outten described himself as a

“kleptomaniac” and admitted that he drank alcohol and took

drugs. Id. He explained that he “had a regular roofing job and

started his own company,” but “[h]e stole . . . to buy tools

needed for [his] work.” Id. In closing, Outten told the jury that

he was caring, sharing, loving and honest—not cold, calculating,

ruthless or heartless. Id. at *23. It was his opinion that “his

good qualities outweighed the bad.” Id.

Beyond the above recounted testimony, trial counsel did

not introduce at the sentencing hearing any additional mitigating

evidence or documents (i.e., child protective service records,

mental health records, school records). Nor is there any

indication that Outten’s extensive social or psychiatric history

was presented comprehensively by an expert, family member or

counsel.

In his closing, the prosecutor remarked:

Another thing that judges, for me, the importance

of what you do and what this all means is the

remorse that has been shown in this case in the

words of Jack Outten in allocution and Steven

Shelton in allocution. And they told you or paid

lip service that they had concerns for the families

of the victim, but what did you hear about their

11

remorse for their acts? What did you hear about

that concern for the families of the victim whose

life was taken innocently, without any wrong that

he caused any of these individuals?

Id. at *45. Outten’s counsel did not object to these comments.

Consistent with the state death penalty statute in effect at

the time of the sentencing hearing, 11 Del. C. § 4209, the jury

unanimously found beyond a reasonable doubt the existence of

three aggravating factors: (1) the murder was committed during

a robbery, id. § 4209(e)(1)(j), (2) a motive for the murder was

pecuniary gain,4 id. § 4209(e)(1)(o), and (3) the victim was over

sixty-two years old, id. § 4209(e)(1)(r). Moreover, by a vote of

seven to five, the jury found by a preponderance of the evidence

that the aggravating circumstances outweighed the mitigating

circumstances presented by Outten. As a result, the jury

recommended a sentence of death.

In sentencing Outten, the trial judge acknowledged that

he had proposed four factors in mitigation: Outten’s age, his

lack of violent felonies, his family status, and his amenability to

lesser sanctions than death. According to the judge, Outten’s

relative youth (he was thirty) was diminished by his extensive

4

Interestingly, Mannon had no money with him at the time of

the murder but he was wearing the rings found in Nelson

Shelton’s possession on the morning of January 12, 2003.

12

appearances in the criminal justice system. The judge also

concluded that Outten’s long-standing substance abuse problem

and the evidence of alcohol consumption on the evening of the

murder were diminished as mitigation by his failure to complete

substance abuse programs. The judge did recognize that the

father’s disability, alcohol abuse, and strictness had a negative

effect on Outten. Ultimately, however, the judge independently

concluded that the aggravating circumstances outweighed the

mitigating circumstances and, on April 30, 1993, sentenced

Outten to death for the murder of Mannon. (The jury also

found, by a vote of eight to four, that aggravating circumstances

outweighed the mitigating circumstances presented by Steven

Shelton. The judge independently agreed with the jury’s

recommendation, sentencing him to death as well.)

C. Outten’s Direct Automatic Appeal

Pursuant to 11 Del. C. § 4209(g), an automatic appeal

was taken to the Delaware Supreme Court. On appeal, Outten

argued that (1) the Superior Court erred by refusing to grant a

severance of his trial from that of his co-defendants; (2) the

State’s use of a peremptory challenge to strike an African-

American juror from the jury violated Batson v. Kentucky, 476

U.S. 79 (1986); and (3) the Superior Court erred by not allowing

him to introduce extrinsic evidence in support of the credibility

of one of his witnesses at trial. Outten v. State, 650 A.2d 1291,

1293 (Del. 1994) (Outten I). The Delaware Supreme Court

rejected each of Outten’s claims and, accordingly, affirmed his

13

conviction and sentence. Id. at 1298–1300, 1301–02.

D. Outten’s State Post-Conviction Proceedings

Outten next filed an amended motion for post-conviction

relief in the Delaware Superior Court, arguing that his counsel

was ineffective during both the guilt and penalty phases of his

trial proceedings. He specifically contended that counsel erred

by failing to (1) conduct an adequate pre-trial investigation, (2)

move for severance of his guilt phase from that of his co-

defendants, (3) provide proper advice concerning his right to

take the witness stand, (4) move for severance of his penalty

phase from that of his co-defendants, (5) adequately investigate

and prepare mitigating evidence, and (6) move for a new trial.

Outten II, 1997 WL 855718, at *76.

Outten requested an evidentiary hearing on his post-

conviction claims. Id. at *26. The Superior Court ruled that an

expansion of the trial record was necessary for it to adequately

address the issues presented.5 Id. Thus, “Outten’s counsel was

asked to respond in affidavit form to a series of Court

questions.” Id. Those questions concerned the following

subjects:

5

According to the Superior Court, this was so because “[t]he

contentions raised against Outten’s trial counsel implicated

decisions they made and reasons for those decisions which were

not in the trial record.” Outten II, 1997 WL 855718, at *26.

14

(1) the list of witnesses for the penalty hearing

that petitioner alleges was given to counsel and

not investigated, discussions about such witnesses

with petitioner, and decisions made by counsel

about which witnesses to produce; (2) the efforts,

if any, to investigate petitioner’s court and school

records; (3) any decision made by counsel on how

to present petitioner at the penalty hearing; (4)

whether there was a conscious decision to sever

the penalty hearing [from that of the Sheltons];

(5) whether advice was given to petitioner not to

testify during the guilt phase; (6) the substance of

petitioner’s testimony had he elected to testify; (7)

whether counsel was aware of petitioner’s

telephone call from the bar to his girlfriend the

night of the murder; (8) whether counsel had

discussed petitioner’s relationship with his father

beyond the last year of his father’s life; (9)

whether there was a conscious decision not to

have a psychiatric examination of petitioner for

use during the penalty hearing; (10) what role

petitioner took in any of the above decisions; (11)

the reasons counsel did not join in Nelson

Shelton’s motion to sever the guilt phase [from

the penalty hearing]; and (12) whether counsel

was aware that petitioner cashed a check on the

night of the murder at a location other than the

one testified to by Gibbons.

15

Outten IV, 2004 U.S. Dist. LEXIS 5546, at *25–26. Outten’s

trial counsel jointly responded by affidavit as directed. Id. at

*26. Outten and the State, respectively, filed answers to that

affidavit. Id. After reviewing those newly submitted materials,

the Superior Court concluded that an evidentiary hearing was

unwarranted. Outten II, 1997 WL 855718, at *26. It also

denied Outten’s amended motion for post-conviction relief. Id.

at *92.

Outten appealed to the Delaware Supreme Court the

ruling of the Superior Court, contending, inter alia, that it erred

by not holding an evidentiary hearing. Outten v. State, 720 A.2d

547, 551 (Del. 1998) (Outten III). He also argued that the

Superior Court abused its discretion in denying his post-

conviction claims of ineffective assistance of counsel. Id. at

551–58. The Supreme Court of Delaware disagreed, and

affirmed the denial of Outten’s request for post-conviction

relief. Id. at 558. The Superior Court reinstated his death

sentence and set the date of execution for March 18, 1999.

E. Outten’s District Court Habeas Proceedings

On December 28, 1998, Outten filed in the United States

District Court for the District of Delaware a 28 U.S.C. § 2254

pro se petition for a writ of habeas corpus, a 28 U.S.C. § 2251

motion to stay the state court proceedings, and a motion to

proceed in forma pauperis. Outten IV, 2004 U.S. Dist. LEXIS

5546, at *2. The Court granted a stay of execution and the

16

motion to proceed in forma pauperis. Id. It also entered an

order appointing counsel and setting a schedule to file an

amended petition. Id.

In October 1999, Outten filed his first amended habeas

petition to clarify his grounds for relief. Id. at *2–3. He also

filed a motion to supplement the record with the expert report of

a post-conviction mitigation specialist, Lori James-Monroe, and

a motion for an evidentiary hearing on his ineffective assistance

of counsel claims during both the guilt and penalty stages of the

trial proceedings. Id. at *3.

In August 2000, Outten filed his second amended habeas

petition. He also motioned the Court for an evidentiary hearing

to expand the record as to “(1) claims relating to [Gibbons]; (2)

a claim relating to trial counsel’s failure to present a coherent

case of mitigation at sentencing; and (3) a claim relating to

[Outten’s] allocution at sentencing.” Id. at *3–4. The District

Court held a limited hearing on Outten’s guilt phase issues, but

refused to allow him to cross-examine trial counsel concerning

their efforts to prepare for, investigate, and present a case in

mitigation at sentencing. Id. at *4. It did, however, allow

Outten to supplement the record with documents retrieved by

James-Monroe and noted below.

James-Monroe is a University of Maryland-trained social

worker who specializes in forensic matters, including mitigation

in capital cases, and other mental health and psycho-social

17

stresses. In preparing her expert report, she interviewed Outten,

his mother (Carol Outten), his wife (Kathryn Outten), his sisters

(Robin Outten and Amanda Hart), his brother (John Outten), his

friends (Debbie Coryell, Mary Owens, Kathy Belford, Karen

Julian), and a Delaware Division of Child Protective Services

employee (George Plerhopoles). She also examined the

following documents: Outten’s first amended petition for

habeas review, the psychiatric report of Dr. John O’Brien, III,

William Penn High School records, Child Protective Service

records, Governor Bacon Mental Health Center records,

Delaware Correctional Center records, Family Court records,

and the transcript of trial counsel’s mitigation presentation to the

jury on March 2, 1993.

In connection with the last item, James-Monroe opined

that, “[i]n her professional opinion, no mitigation theme was

prepared and only ‘sketchy’ family dynamics were introduced in

the way of testimony. There was no extensive personal history

presented by an expert, family member or counsel.” James-

Monroe Report, App. at 170. She also uncovered “[t]he

following mitigation information [that] was not reported during

the original penalty phase, although readily available with

minimal investigation efforts.” Id. at 176.

Family Issues

• Outten was reared by his parents, Carol and

Foster Outten. Outten’s deceased father, Foster,

18

was “abusive and scary.” According to Carol,

Foster “physically abused her from the time they

met in 1962, until approximately 1973.” “[H]is

physical assaults on her transferred to the children

and everyone in the home felt the emotional

abuse.” He “would control everyone through his

violent rages brought on by drinking.” Carol

explained “that she wanted to leave him or at least

call the police, but he threatened on many

occasions to kill her and the children.”

• According to Carol, she

typically worked the 4 p.m. – 12 a.m. shift

at the [P]ost [O]ffice. Therefore, the

children were left in the care of their father

until she arrived home. Many times [when

she arrived] she found the children in

corners of the home afraid to move . . . .

[M]any times the children would have

been there all day and gone without food

or completing their homework.

She recalled that on one occasion [Outten’s sister]

Amanda had a “black and blue” bruise on her

forehead from falling asleep in the corner. Carol

stated that Foster implemented this practice

because he did not want to “be bothered by the

19

children while he drank and watched television.”

• Carol would often

gather the children and leave their home

after one of her husband’s rages or abusive

actions. Many times they did not have

anywhere to go and would walk the streets

or seek shelter in an abandoned home or

apartment lobby. They would return home

hours later, hoping that Foster had “passed

out from drinking.”

• “Each Outten child has stories concerning the

rage of their [sic] father and their [sic] mother’s

inability to protect them.” For instance, Outten

“recalled an incident when the children and Mrs.

Outten returned from an outing. Foster

immediately grabbed John [Outten’s brother] and

began choking him. Foster exclaimed, ‘you left

the dog tied up, I am going to show you how it

feels to choke to death.’” When James-Monroe

questioned John concerning this event, “he

immediately began to sob.” After he stopped

crying he stated:

Dad said[,] “I want you to feel what the

dog felt.” He was choking me so hard.

20

Mom tried to stop him. He was drunk and

had a bottle of rum sticking out of his

pocket. I fell to the floor and I think I was

unconscious for a little while. I’m not sure

[who] called the police, but I remember we

went to [F]amily [C]ourt because of this

incident. They were going to lock my

father up for maybe two years. After

hearing that my mother dropped the

charges. I left home after that.

• In 1974, Foster was attacked and mugged and, as

a result of those injuries, was diagnosed with

aphasia—an acquired disorder caused by brain

damage that affects an individual’s ability to

communicate.

Not being able to function as he did in the

past caused Foster . . . to become more

aggressive and abusive. In addition, he

became depressed and his drinking

increased. The depressed moods coupled

with intensified drinking led to . . . suicidal

ideation and suicide attempts. Many times

the children would find him [o]n the floor

passed out from taking an overdose of his

medication or after slitting his wrist . . . .

The family felt helpless, hopeless and

21

guilty, while resenting and being angered

by his abuse.

• Outten has one brother, John, and two sisters,

Amanda and Robin. Each has suffered from

alcoholism and/or drug addiction. None of the

children completed high school.

• Outten has fathered three children, Crystal, Foster

Jack, and Shane. “He maintains contact with his

daughter through letter writing.” Foster Jack and

Shane are from the union of Outten and Karen

Julian. Shane resides in Pennsylvania and Foster

Jack is deceased.

Neurologic Issues

• During her investigation, James-Monroe

discovered that, while pregnant with her children,

Carol drank regularly. “This is through her own

admission.” In addition to regular drinking,

Foster physically and mentally abused her. The

physical abuse included “body blows and punches

[to] her body and face.” According to James-

M onroe, “[a]lcohol consumption during

pregnancy coupled with physical abuse . . . have

detrimental and long lasting effects on unborn

children.”

22

• Outten suffered two head trauma injuries as a

child. During the first incident, Outten’s mother

pushed him into the side of a porcelain tub,

causing him to strike his head and, as a result,

lose consciousness. The second incident, which

also resulted in a loss of consciousness and

required medical attention, occurred when he was

struck in the head with a wrench.

School Performance

• Outten’s school records indicated that he was

initially placed in a class for the learning disabled

in 1976 at the age of ten. “It is documented that

this referral was necessary due to his hyperactivity

and intellectual ability. In the eighth grade, . . .

Outten was reading on a third grade level.” A

1980 evaluation stated:

Jack is currently functioning at a low

average level of intelligence. The

difference between his verbal I.Q. part of

the test and the performance section was

significantly favoring the latter. . . . [His]

[p]oorest score (retarded level) was

obtained in the area of concentration.

• Dr. David Pearl, a school psychologist who

23

evaluated Outten, noted the following in 1982:

[Jack] was restless, moved his legs back

and forth, had difficulty maintaining eye

contact and gave the general impression

that his problems were “none of my

business.” He did mention that he had

been on medication for hyperactivity but

had stopped taking the pills about a year

ago. He also noted that he had difficulty

relating to his father, [and] was frequently

physically abused by him . . . . Jack made

only cursory attempts to complete the

House-Tree-Person drawings and the

[s]entence completion test. His drawings

were very small and located at the very top

of the page on the left hand side[,] which

is indicative of a restricted personality,

frustrated in his attempts to attain goals

which seem unattainable.

• After numerous foster care and treatment facility

placements, Outten withdrew from school in the

eleventh grade and never graduated from high

school.

Psychological Issues

24

• Outten was a victim of violence. Specifically, he

was the victim of childhood abuse at the

hands of his father. According to Outten,

Mr. Plerhopoles [Divison of Family

Services staff], and family friends,

Outten’s father . . . was an alcoholic who

constantly controlled his family with

physical and emotional abuse . . . . Outten

suffered and ran away from home at the

age of sixteen. After running away, he

was taken in by [a foster] family.

• After Outten ran away from home, a series of

events ensued. He continued to stay with the

[foster] family. James-Monroe notes that,

“[w]hile being cared for by the [foster] family,

[Outten’s foster mother] began to have

inappropriate sexual contact with . . . [him].”

According to Outten, she “initiated the contact by

placing his hand on her breast. She coerced the

sixteen-year-old to perform oral sex and fondle

her.” [Outten’s foster father] discovered this and,

in July 1982, asked that Outten be removed from

his home.

• Outten was then placed in the Franklin Street

Shelter for run-away children, where he remained

25

for five days before the staff asked that he be

removed. He was then sent to Camelot Group

Home, a facility for troubled children. By August

1982, he was committed to the Governor Bacon

Health Center. According to Mr. Plerhopoles,

Governor Bacon had the public reputation of

being the “dumping ground for [children] that no

one wanted or knew what to do with.”

• Outten was released from Governor Bacon and

returned home to his family in August 1983.

Representatives of Governor Bacon described him

as “depressed and hopeless,” with “difficulty

expressing his feelings.”

• Outten suffered two major losses in his life—the

death of his father and the death of his young son,

Jack Foster. Outten’s father died of bone cancer

in 1991. Despite all of the abuse he suffered at

the hands of his father, Outten cared for Foster

entirely during the last six months of his life.

According to James-Monroe, “[i]t is not

uncommon for abused children and adult

survivors to develop attachments to those who

abuse and neglect them, relationships they will

strive to maintain even at the sacrifice of their

own well-being.” In July 1991, Outten fathered a

child with Karen Julian, Jack Foster. The baby

26

only lived fourteen days before dying of many

complications. According to the Outten family,

“Julian was using illicit drugs during her

pregnancy[,] which resulted in the non-

development of certain of the child’s organs.”

Substance Abuse

• Outten was a substance abuser. He

admitted to the use of alcohol,

amphetamines, marijuana, crack cocaine,

LSD, and the intravenous use of powder

cocaine. His immediate family [and

friends] acknowledged this use. . . .

Outten’s drug use began at the age of 10

with ‘sneaking’ some of his father’s liquor.

In addition, he was able to drink with

neighbors. . . . By the age of 14, he was

smoking marijuana, which eventually led

to intravenous cocaine use and late stages

of alcoholism. . . . His substance abuse

continued until the date of the underlying

offense.

Id. at 176–81.

James-Monroe’s report detailing the above-described

27

mitigation evidence not investigated or presented at sentencing

notwithstanding, the District Court denied relief on all of the

claims raised in Outten’s § 2254 petition. With respect to trial

counsel’s duty to investigate, the Court concluded that “trial

counsel’s overall defense strategy of portraying [Outten] as

loving, caring, and non-violent,” combined with the hope “that

the jury would have reservations about [Outten’s] involvement

in the murder[,] . . . was [a] strategy choice . . . within the range

of professionally reasonable judgment.” Outten IV, 2004 U.S.

Dist. LEXIS 5546, at *48–50.

Despite its denial of habeas relief, the District Court did

grant a certificate of appealability as to three claims pertaining

to Outten’s sentencing: whether trial counsel were ineffective

(1) in their investigation and presentation of mitigating

evidence, (2) for failing to seek severance of Outten’s penalty

phase from that of the Shelton brothers, and (3) for failing to

object to the prosecutor’s comments concerning Outten’s

allocution to the jury.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over Outten’s habeas

petition under 28 U.S.C. § 2254. We have jurisdiction over his

appeal pursuant to 28 U.S.C. §§ 1291, 2253. Because the

District Court did not hold an evidentiary hearing on Outten’s

sentencing claims, we review its legal conclusions de novo.

Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).

28

Outten’s petition for habeas relief from his state court

sentence is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241–2254.

AEDPA circumscribes our consideration of Outten’s claims;

federal habeas relief will only be granted if the state court

decision being challenged “was contrary to, or involved an

unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362

(2000), the Supreme Court held that a state court decision is

“contrary to” clearly established federal law if it (1) “contradicts

the governing law set forth in [the Supreme] Court’s cases” or

(2) “confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme] Court and nevertheless arrives

at a [different] result.” Id. at 405–06. An “unreasonable

application” of Supreme Court precedent occurs: (1) “if the state

court identifies the correct governing legal rule from [the

Supreme] Court’s cases but unreasonably applies it to the facts

of the particular state prisoner’s case;” or (2) if it “either

unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Id. at 407.

Our review of Outten’s claims under AEDPA is a two-

step process that proceeds as follows. First, we “‘identify the

applicable Supreme Court precedent and determine whether it

resolves . . . [Outten’s] claim[s].’” Hackett v. Price, 381 F.3d

29

281, 287 (3d Cir. 2004) (quoting Werts v. Vaughn, 228 F.3d

178, 197 (3d Cir. 2000)); see also Matteo v. Superintendent, SCI

Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc). In

performing this inquiry, “it is not sufficient for [Outten] to show

merely that his interpretation of Supreme Court precedent is

more plausible than the state court’s; rather, [Outten] must

demonstrate that Supreme Court precedent requires the contrary

outcome.” Hackett, 381 F.3d at 287 (quoting Werts, 228 F.3d

at 197). “If we determine that the state court decision is not

‘contrary to’ the applicable Supreme Court precedent, then we

are required to advance to the second step in the

analysis—whether the state court decision was based on an

‘unreasonable application of’ Supreme Court precedent.” Werts,

228 F.3d at 197 (quoting Matteo, 171 F.3d at 888). In doing so,

“we are not authorized to grant habeas corpus relief simply

because we disagree with the state court’s decision or because

we would have reached a different result if left to our own

devices.” Id. Instead, “the state court’s application of Supreme

Court precedent must have been objectively unreasonable,” that

is, “[t]he federal habeas court should not grant the petition

unless the state court decision, evaluated objectively and on the

merits, resulted in an outcome that cannot reasonably be

justified under existing Supreme Court precedent.” Hackett,

381 F.3d at 287 (internal quotations omitted).

III. Merits

A. Applicable Supreme Court Precedent: Strickland

30

v. Washington

As instructed by Williams, we begin our analysis by

identifying and discussing the applicable Supreme Court

precedent. It is well-settled that “the legal principles that govern

claims of ineffective assistance of counsel [were established by

the familiar two-pronged test of] Strickland v. Washington, 466

U.S. 668 (1984).” Wiggins v. Smith, 539 U.S. 510, 521 (2003).

It is also “past question that . . . Strickland qualifies as ‘clearly

established [f]ederal law, as determined by the Supreme Court

of the United States.’” Williams, 529 U.S. at 391.

Under the first prong of Strickland, a petitioner must

show that trial counsel’s performance was deficient. Strickland,

466 U.S. at 687. The proper standard for attorney performance

is that of “reasonably effective assistance,” as defined by

“prevailing professional norms.” Id. at 687–88 (emphasis

added). In other words, Outten must establish that counsel’s

representation fell below an objective standard of

reasonableness. Id. Moreover, counsel’s reasonableness must

be assessed on the facts of the particular case, viewed as of the

time of counsel’s conduct. Id. at 689.

Strickland’s second prong requires a petitioner to show

that “the deficient performance prejudiced the defense.” Id. at

687. The prejudice component requires Outten to demonstrate

“that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

31

been different.” Id. at 694.

B. Failure to Investigate

The first category of Outten’s ineffective assistance of

counsel challenges relates to his trial attorneys’ investigation

and preparation for the sentencing hearing after his conviction.

Outten’s primary argument is that his attorneys failed adequately

to investigate potentially mitigating evidence, especially the

effect of his troubled personal and psychiatric background. He

also contends that his attorneys’ proffered strategy—to reargue

his innocence at sentencing—was legally impermissible, and

thus no strategy whatsoever. The Delaware Supreme Court

determined that Outten could not show that counsel’s

performance was deficient. Outten III, 720 A.2d at 553.

1. Was Counsel’s Limited Investigation

Reasonable?

In accord with our two-pronged inquiry, we consider

whether counsel’s investigation was reasonable. According to

the trial counsel’s joint affidavit, submitted in response to the

written interrogatories posed by the Delaware Superior Court,

preparations for Outten’s penalty-phase hearing began

approximately one month prior to the guilt-phase proceedings.

See Trial Counsel Aff., App. at 158. Counsel conceded that

their investigation was cursory, as it consisted simply of a letter

to Outten asking him to provide “the names of potential penalty

32

phase witnesses.” Id. Nothing else was done by way of

investigation except for the conduct of limited discussions with

Outten and his mother. See id. at 159 (stating that “[a]fter

discussing with Mr. Outten his school history[,] . . . we

confirmed his assessment with his mother and it was determined

that nothing in his school background would be helpful to . . .

[Outten] in either the guilt or penalty phases of the [t]rial. As a

result of our discussions it was determined no[t] to investigate

the records.” (emphasis added)); see also id. at 160 (explaining

that, “as indicated previously[,] based upon the information

supplied by Mr. Outten and his mother[,] it was determined not

to pursue the area of psychiatric or psychological disorders”).

Trial counsel’s affidavit also reveals that, much like their

counterparts in Strickland, Williams, and Wiggins, Outten’s

attorneys “attempt[ed] to justify their limited investigation as

reflecting a tactical judgment not to present mitigating evidence

at sentencing and to pursue an alternative strategy instead.”

Wiggins, 539 U.S. at 521 (rejecting the state’s defense of

counsel’s decision to retry guilt at the sentencing phase);

Williams, 529 U.S. at 373 (“reject[ing] the argument that

counsel’s failure to conduct an adequate investigation had been

a strategic decision to rely almost entirely on the fact that

Williams had voluntarily confessed”); see also Strickland, 466

U.S. at 673. Counsel here specifically viewed the defense

strategy as an effort to convince the jury that “Outten was loving

and generous, showing no signs of prior violent behavior,” and

thus incapable of murder.

33

It was determined that we would present

Jack to the [j]ury as a [y]oung man capable of a

loving and caring existence. A man who had no

history of violence. A man who was capable of

holding a job and support[ing] a family. . . .

It was determined that all negatives,

abusive childhood, truancy and school problems

would be counterproductive. The theme

throughout the guilt phase and the penalty phase

was to remain consistent, that is, Jack Outten did

not commit the murder. It was determined that

this could best be carried out by presenting Outten

as we did.

Trial Counsel Aff., App. at 158. Trial counsel further stated that

“[i]t is conceded that an expert could have been retained to

develop a mental crutch (conclusion is reached based on

experience)[;] however, it was determined that a consistent

defense of not offering excuses for Outten’s actions but a

continued denial was in his best interest.” Id. at 163 (emphasis

added).

Simply stated, defense counsel’s penalty-phase strategy

was to argue to the jury—which had convicted Outten of murder

unanimously and beyond a reasonable doubt—that he was a

good guy and that his life should be spared because he was

actually innocent. See id. at 159 (stating that “[i]t was

34

determined that we should stick with our original theory, Jack

was innocent, as supported by his penalty phase witnesses”

(emphasis added)); id. at 160 (explaining that “[t]he

determination was to represent Jack as a party not involved in

the murder at the trial phase and to maintain that position

throughout the penalty phase so as to retain credibility with the

jury” (emphasis added)).

But in closing comments at the penalty phase, trial

counsel did not carry through this tack. When trial counsel tried

to pursue Outten’s actual innocence argument explicitly, the

prosecution objected and the trial court disallowed it, stating

“[t]hat’s improper argument[,] . . . rearguing the issue of guilty

or not guilty.” See App. at 126. Counsel responded, “I’m not

arguing the issue of guilty or not . . . . [Outten] was guilty.” Id.

When counsel again attempted to discuss “the testimony or

evidence that [Outten] didn’t do it,” the trial judge

unequivocally instructed that there was to be no further

presentation of that issue. Id.

Ultimately, the innocence strategy was abandoned in

closing. Counsel stated that it “wasn’t too difficult to decide”

that Outten and his co-defendants were responsible for the

victim’s death. Id. at 121. He mentioned Outten’s “horrendous

record,” and then stated, “We’re not here to decide what he did

in this particular case. He’s guilty.” Id. at 122. Counsel

described Outten’s family as “the other victims in this case.” Id.

at 125. He stated that “they’re here because Jack Outten put

35

them here. He didn’t have to go to that bar that evening. He

could have stayed home.” Id.

Counsel also failed in closing to focus on the positive

aspects of Outten’s character. While he did mention that Outten

had no convictions for violent crimes, he did so by referring to

Outten’s “long criminal record,” and stated that “Jack Outten

was on the street for a long time committing crimes, but there’s

no history of violence.” Id. at 124. Indeed, any contention that

Outten was non-violent was substantially undermined by the

cross-examination testimony elicited by the prosecution from

various family members describing Outten’s assaults on his

sister Amanda, his ex-girlfriend Julian, and other individuals.

There was no mention of Outten being loving and generous or

that he was capable of holding down a job. The jury was not

reminded of Outten’s caring for his dying father or helping his

sister Amanda with child care. “When viewed in this light, the

‘strategic decision’ the state courts and [counsel] . . . invoke to

justify counsel’s limited pursuit of mitigating evidence

resembles more of a post hoc rationalization of counsel’s

conduct than an accurate description of their deliberations prior

to sentencing.” Wiggins, 539 U.S. at 526–27; see also id. at 526

(stating that “[t]he record of the actual sentencing proceedings

underscores the unreasonableness of counsel’s conduct by

suggesting that their failure to investigate thoroughly resulted

from inattention, not reasoned strategic judgment”).

Counsel made clear they neither acquired nor reviewed

36

readily available school and medical health records. See Outten

II, 1997 WL 855718 at *86 (reiterating that “[i]t is undisputed

trial counsel did not examine these records”). They also

explained that their decision to refrain from such an

investigation stemmed entirely from conversations with Outten

and his mother. Thus, similar to the attorneys in Wiggins, 539

U.S. at 537–38 (holding that counsel’s decision not to expand

their investigation beyond the perusal of limited government

records and the arrangement of psychological testing for their

client was unreasonable), Outten’s trial counsel acquired

whatever “rudimentary knowledge” of Outten’s background

they did have from a “narrow set of sources,” id. at 524.

We need to resolve whether this limited investigation

from a “narrow set of sources” was reasonable. The Supreme

Court has explained the deference owed to strategic decisions of

counsel by reference to the scope of the investigations

supporting those decisions:

[S]trategic choices made after thorough

investigation of law and facts relevant to plausible

options 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 other words,

counsel has a duty to make reasonable

investigations or to make a reasonable decision

37

that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision

not to investigate must be directly assessed for

reasonableness in all the circumstances, applying

a heavy measure of deference to counsel’s

judgments.

Strickland, 466 U.S. at 690–91. Put another way, the question

before us is not whether counsel should have introduced

mitigating evidence of Outten’s background. It is “whether the

investigation supporting counsel’s decision not to introduce

mitigating evidence of [Outten’s] background was itself

reasonable.” Wiggins, 539 U.S. at 511 (emphasis in original).

Reasonableness in this context is assessed by looking to

“[p]revailing norms of practice as reflected in [the] American

Bar Association standards.” Strickland, 466 U.S. at 688; see

also Rompilla v. Beard, 545 U.S. 374, 375 (2005) (explaining

that the Court has long “referred [to the ABA Standards for

Criminal Justice] as guides to determining what is reasonable”

(internal quotations omitted)); Wiggins, 539 U.S. at 522 (stating

that “[i]n highlighting counsel’s duty to investigate,” the Court

“refer[s] to the ABA Standards for Criminal Justice as guides”);

Marshall v. Cathel, 428 F.3d 452, 463 (3d Cir. 2005) (“An

attorney’s duty to investigate is itself judged under a

reasonableness standard based on ‘prevailing professional

norms[,]’ such as those found in the ABA Standards for

Criminal Justice.”).

38

In 1989, four years prior to Outten’s penalty-phase

hearing, the ABA promulgated guidelines for defense attorneys

in capital cases. See American Bar Association Guidelines for

the Appointment and Performance of Counsel in Death Penalty

Cases (1989) (“ABA Guidelines”). “Those Guidelines applied

the clear requirements for investigation set forth in the earlier

Standards to death penalty cases and imposed . . . similarly

forceful directive[s].” Rompilla, 545 U.S. at 376 n.7.

Concerning penalty-phase preparation and investigation, the

Guidelines provide:

A. Counsel should conduct

independent investigations relating

to the guilt/innocence phase and to

the penalty phase of a capital trial.

Both investigations should begin

immediately upon counsel’s entry

into the case and should be pursued

expeditiously.

...

C. The investigation for preparation of

the sentencing phase should be

conducted regardless of any initial

assertion by the client that

mitigation is not to be offered. This

investigation should comprise

39

efforts to discover all reasonably

available mitigating evidence and

evidence to rebut any aggravating

evidence that may be introduced by

the prosecutor.

ABA Guideline 11.4.1 (1989) (emphasis added). Counsel

should explore, inter alia, “medical history,” “family and social

history,” “educational history,” “special educational needs,”

“employment and training history,” “prior adult and juvenile

records,” and “prior correctional experience.” ABA Guideline

11.4.1(D)(2)(C). The ABA Guidelines go on to explain that

[t]he need for a standard mandating investigation

for the sentencing phase is underscored by cases

in which counsel failed to recognize the

importance of this aspect of death penalty

litigation. Inexperienced counsel — and even

counsel experienced in non-capital cases — “may

underestimate the importance of developing

meaningful sources of mitigating evidence . . .”

See Guideline 11.8 and commentary.

Counsel’s duty to investigate is not negated

by the expressed desires of a client. Nor may

counsel “sit idly by, thinking that the investigation

would be futile.” The attorney must first evaluate

the potential avenues of action and then advise the

40

client on the merits of each. Without

investigation, counsel’s evaluation and advice

amount to little more than a guess.

ABA Guideline 11.4.1, commentary (1989) (internal footnote

omitted) (emphasis added); see also 1 ABA Standards for

Criminal Justice 4–4.1, commentary (2d ed. 1982) (stating “[t]he

lawyer . . . has a substantial and important role to perform in

raising mitigating factors both to the prosecutor initially and to

the court at sentencing . . . . Investigation is essential to

fulfillment of these functions.”).

“Despite these well-defined norms, however, counsel

[here] abandoned their investigation of [Outten’s] background

after having acquired only rudimentary knowledge of his history

from a narrow set of sources.” Wiggins, 539 U.S. at 524. It was

standard practice at the time of Outten’s trial for a death-eligible

defendant’s penalty-phase investigation to include his medical

history, educational history, family and social history,

employment history, and adult and juvenile correctional records.

Counsel’s investigation, however, was limited solely to

conversations with Outten and his mother—a woman who, as

demonstrated by the unreviewed-by-counsel records, had not

“shown great[] continued interest in [her son].” See Report of

James-Monroe, App. at 180. We conclude that this effort fell

well short of the national prevailing professional standards

articulated by the American Bar Association and was, therefore,

unreasonable. See Wiggins, 539 U.S. at 524 (holding that

41

counsel’s decision not to expand their investigation to

petitioner’s life history, beyond review of a presentence report

and social service records, failed to meet the prevailing

standards of attorney conduct).

Counsel’s cursory investigation was also unreasonable in

light of what they presumably discovered from the conversations

with Outten and his mother prior to sentencing: Outten’s father

was an abusive alcoholic; Outten had struggled in school and

ultimately failed to graduate; he had run away from home; and

he had a history of substance abuse.6 Id. at 527 (explaining that

courts must consider whether the evidence known to counsel

“would lead a reasonable attorney to investigate further”).

6

The record does not reflect the content of counsel’s

conversations in this regard. We presume that counsel

discovered information concerning Outten’s abusive father,

struggles in school, and substance abuse during their

conversations with Outten and his mother because they testified

as to those facts on direct examination during the sentencing

proceedings. Moreover, in their affidavit, trial counsel noted

that, prior to sentencing, they “determined that all negatives,

abusive childhood, truancy and school problems would be

counterproductive.” Trial Counsel Aff., App. at 158. Because

counsel limited their sentencing investigation exclusively to

Outten and his mother, either Outten or his mother—or

both—must have been the source of counsel’s information on

those “negatives.” In any event, counsel acknowledge that they

were aware of the abuse and school problems.

42

“[A]ny reasonably competent attorney would have realized that

pursuing those leads was necessary to make an informed choice

among possible [sentencing strategies].” Id. at 525. “Indeed,

counsel uncovered no evidence in their investigation to suggest

that a mitigation case, in its own right, would have been

counterproductive, or that further investigation would have been

fruitless . . . .” Id. Moreover, as in Wiggins, “[h]ad counsel

investigated further [here], they might well have discovered the

sexual abuse [Outten suffered at the hands of his foster mother]

revealed during . . . postconviction proceedings.” Id.

As noted above, the prevailing professional norms for

capital cases at the time of Outten’s trial instructed defense

counsel “to discover all reasonably available mitigating

evidence and evidence to rebut any aggravating evidence that

may be introduced by the prosecutor.” ABA Guideline 11.4.1

(emphasis added). Given the minimal investigation conducted

here, trial counsel’s evaluation of which defense strategy to

pursue “amounted to little more than a[n] [uninformed] guess.”

Id.; see also Wiggins, 539 U.S. at 527. Simply stated, failing to

present possibly mitigating evidence cannot be justified when

counsel have not “fulfill[ed] their obligation to conduct a

thorough investigation of the defendant’s background.”

Williams, 529 U.S. at 396 (citing 1 ABA Standards for Criminal

Justice 4–4.1, commentary). Accordingly, we hold the

Delaware Supreme Court’s 1998 ruling in Outten III—that the

limited scope of trial counsel’s investigation was adequate under

the prevailing norms of professional conduct at the time of

43

Outten’s trial—was an objectively unreasonable application of

the first prong of the Strickland inquiry.

2. Was Counsel’s Unreasonable Investigation

Prejudicial?

Because trial counsel’s failure to investigate Outten’s

background was unreasonable, we proceed to whether that error

was prejudicial—that is, whether “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland,

466 U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. “In

assessing prejudice, we reweigh the evidence in aggravation

against the totality of available mitigating evidence.” Wiggins,

539 U.S. at 534.

The James-Monroe report shows substantial evidence in

mitigation that counsel failed to investigate and present at

sentencing. In particular, Outten experienced severe

mistreatment as a child from his “abusive and scary” alcoholic

father. James-Monroe Report, App. at 176. Outten’s father

physically assaulted and emotionally tormented his wife and

children routinely, even “threaten[ing] on many occasions to kill

[them].” Id. When Mrs. Outten returned home from work, she

often found the children huddled in a corner, afraid to move. Id.

at 177. “[M]any times the children would have been there all

day and gone without food or completing their homework.” Id.

44

Frequently, Mrs. Outten and her children were forced to “walk

the streets or seek shelter in an abandoned home or apartment

lobby” in order to avoid Mr. Outten’s “rages or abusive actions.”

Id.

Outten’s brother John related an incident where, because

he had left the dog tied up, his father choked him to the point of

unconsciousness so that he would know “how it feels to choke

to death.” Id. As Mr. Outten physically deteriorated, he became

suicidal and often the children would find him passed out,

having overdosed on medication and/or slit his wrists. Id.

“Each of the Outten children has stories concerning the rage of

their father and their mother’s inability to protect them.” Id.

Neither Outten nor any of his siblings completed high school.

Id. at 178. Moreover, they all suffered from alcoholism and/or

drug addiction. Id. at 177–78.

In addition to the considerable evidence of child abuse,

James-Monroe discovered “easily accessible” documented

evidence of neurological damage, poor school performance, low

IQ, learning disabilities, placement in foster homes, sexual

abuse, and substance abuse. Id. at 176–81. Even a superficial

investigation into Outten’s school records reveals that he

functioned during his developmental years at a below-average

level of intelligence and, specifically, at a retarded level in the

area of concentration. Id. at 180. Outten “thus has the kind of

troubled history we have declared relevant to assessing a

defendant’s moral culpability.” Wiggins, 539 U.S. at 535; see

45

also Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (stating that

“evidence about the defendant’s background and character is

relevant because of the belief, long held by 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”).

The Delaware Supreme Court held that Outten’s

allegations concerning the limited scope of counsel’s

investigation of his background failed to satisfy the prejudice

prong of Strickland. Outten III, 720 A.2d at 553. We disagree.

The Court’s conclusion was premised on evidence that “counsel

made some effort to discover whether there was any useful

information in Outten’s school records,” and that “information

regarding [Outten’s] substance abuse problem, truancy trouble

in school, appearances in Family Court, criminal activity, and

abusive and alcoholic father came out in the testimony during

the penalty phase hearing.” Id.

In another context, we have rejected expressly the

Pennsylvania Supreme Court’s conclusion that the failure to

present additional mitigating evidence was not prejudicial

simply because the jury had some awareness of a petitioner’s

childhood and mental illness:

[T]he Commonwealth fails to appreciate the fact

that the only evidence specifically pertaining to

Jermyn’s childhood abuse came from Reverend

46

Falk, whose testimony, to which we have already

alluded, was limited, equivocal, and misleading.

While the jury was clearly aware that Jermyn

claimed that he suffered a mental illness, the lack

of directed and specific testimony about Jermyn’s

childhood and its impact on Jermyn’s mental

illness left the jury’s awareness incomplete. We

therefore do not agree with the Pennsylvania

Supreme Court’s characterization that the

evidence that could have been presented would

simply “have provided the jury with more detailed

incidents of his childhood trauma and mental

illness.” Rather, the testimony would have

provided the jury with an entirely different view

of Jermyn’s life and childhood which would have

both aided in understanding the seriousness and

origin of his mental illness and provided an

understanding of Jermyn’s relationship with the

deceased.

Jermyn v. Horn, 266 F.3d 257, 310–11 (3d Cir. 2001) (internal

footnote and citations omitted).

The same logic applies here. Simply because some

mitigating evidence regarding Outten’s abusive childhood was

introduced to the jury—despite defense counsel’s contrary

intentions, see Trial Counsel Aff., App. at 158 (stating that the

defense strategy was not to introduce any evidence of Outten’s

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“abusive childhood” or “school problems”)—it does not follow

that the jury was provided a comprehensive understanding of

Outten’s abusive relationship with his father or other aspects of

his troubled childhood. For example, while Outten’s mother

portrayed her husband as a “very, very strict parent,” she did not

relate to the jury the disturbing abuse she later described to

James-Monroe in detail. In any event, the jury heard nothing

regarding Outten’s sexual abuse in foster care, possible

neurological damage, learning disabilities, or low IQ.

Here, “counsel chose to abandon their investigation at an

unreasonable juncture, making a fully informed decision with

respect to sentencing strategy impossible.” Wiggins, 539 U.S.

at 527–28. As we have already explained, the state court’s

ruling that the scope of counsel’s investigation was adequate

was an unreasonable application of Strickland. Thus, its

subsequent deference to counsel’s decision not to “pursue all

lines of investigation,” Outten III, 720 A.2d at 553 (internal

quotations omitted), “despite the fact that counsel based this

alleged choice on what we have made clear was an unreasonable

investigation, was also objectively unreasonable.” Wiggins, 539

U.S. at 528. This is because “strategic choices made after less

than complete investigations are [only] reasonable . . . to the

extent that reasonable professional judgments support the

limitations on investigations.” Strickland, 466 U.S. at 690–91.

The State counters that trial counsel would have

proceeded with their “reasonable” strategy of presenting Outten

48

as kind, caring, and ultimately innocent, notwithstanding the

mitigating evidence they failed to discover. In Wiggins, the

State of Maryland offered a similar contention, “maintaining

that Wiggins’ counsel would not have altered their chosen

strategy of focusing exclusively on Wiggins’ direct

responsibility for the murder.” 539 U.S. at 536. The Supreme

Court flatly rejected this logic, explaining that

counsel were not in a position to make a

reasonable strategic choice as to whether to focus

on Wiggins’ direct responsibility, the sordid

details of his life history, or both, because the

investigation supporting their choice was

unreasonable.

Id. The same analysis applies here. Counsel for Outten were

not in a position to make a reasonable decision whether to focus

on his innocence or positive characteristics, the details of his

traumatic background, or both, as their investigation in

preparation for sentencing was itself unreasonably deficient.

Moreover, as already discussed, counsel’s presentation at

sentencing hardly reflected their stated strategy. The innocence

argument was never presented to the jury because the trial judge

disallowed it. To make matters worse, counsel then did an

“about face” by proclaiming to the jury in closing that “it wasn’t

too difficult to decide” that Outten had murdered Mannon. To

hammer home the point, counsel explicitly stated, “He’s guilty.”

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Trial counsel’s sentencing presentation also failed to

focus on evidence indicating Outten’s good character traits. As

stated above, counsel did argue that Outten had no convictions

for violent crimes, but he did so by referring to Outten’s “long

criminal record” and stated that “Jack Outten was on the street

for a long time committing crimes, but there’s no history of

violence.” In closing, counsel neglected to remind the jury that

Outten was capable of holding down a job, had cared for his

dying father, or had assisted his sister with child care. Worse

yet, the contention that Outten was non-violent was considerably

undermined by the cross-examination testimony of various

family members describing Outten’s physical attacks on his

sister and ex-girlfriend—damaging testimony that could have

been factored into trial counsel’s strategic decision had counsel

interviewed those witnesses prior to sentencing.

The State asserts, and we acknowledge, that not all of the

evidence in the records counsel failed to investigate is favorable

to Outten. This is nearly always the case. Indeed, the same was

true of the evidence not investigated by counsel in Williams.

There, the Supreme Court observed that “the failure to introduce

the comparatively voluminous amount of evidence that did

speak in Williams’ favor was not justified by . . . [the] decision

to focus on Williams’ voluntary confession.” Williams, 529

U.S. at 398. The same is true here; the failure to introduce

considerable evidence that could have been helpful to Outten

was not justified by counsel’s belief, without an adequate

investigation, that the net result of any investigation would be

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negative. In fact, much of the aggravating evidence in the

records was either introduced or elicited on cross-examination

by the State at sentencing. The more important point here,

however, is while it is true that trial counsel may not have

introduced into evidence all of Outten’s records at sentencing if

they had procured them, the records most certainly would have

informed counsel’s preparation. Moreover, given the jury’s

close vote in favor of death for Outten—7 to 5—counsel would

have had the ability to argue a much broader range of mitigating

factors than the four that were presented to the jury.7

In this context, we conclude that the Delaware Supreme

Court unreasonably applied the second prong of Strickland in

reaching the determination that Outten could not establish

prejudice because Outten’s records contained some harmful

information. See Outten III, 720 A.2d at 552 (approving the

Superior Court’s reasoning that Outten’s “ records contained

both mitigating and aggravating information which, at best,

cancel each other out . . . [; thus] trial counsel cannot be faulted

for not investigating them [because,] in all likelihood, the

7

For example, notwithstanding the emotional and physical

abuse Outten suffered at the hands of his father, the record

reflects that Outten forgave him and remained by his side during

his final months of life. In this context, it seems that revealing

the severity of Mr. Outten’s abuse of his children would have

bolstered and complemented—rather than detracted from—the

defense’s portrait of Outten as caring and compassionate.

51

records would not have been used”) (internal quotations

omitted)). In effect, despite the fact that there was a wealth of

readily accessible mitigating evidence here, the jury heard little

of it. In evaluating the totality of the evidence, both introduced

at trial and in the habeas proceedings, we conclude that “[h]ad

the jury been able to place [Outten’s] excruciating life history on

the mitigating side of the scale, there is a reasonable probability

that at least one juror [or more] would have struck a different

balance.” Wiggins, 539 U.S. at 537. Because the jury

recommended death by the narrow margin of 7 to 5, persuading

even one juror to vote for life imprisonment could have made all

the difference. This without doubt satisfies Strickland’s

prejudice prong.

* * * * *

For the reasons provided above, we hold that the state

court’s ruling that the limited scope of trial counsel’s

investigation did not constitute ineffective assistance of counsel

was an objectively unreasonable application of Strickland.

Because counsel’s penalty-phase investigation was unreasonably

deficient and prejudicial, Outten is entitled to habeas relief. We

reverse and remand this case to the District Court with

instructions to grant a provisional writ of habeas corpus directed

to the penalty phase. Within 120 days of the judgment

accompanying this opinion, the State of Delaware may conduct

a new sentencing hearing in a manner consistent with this

opinion or sentence Outten to life imprisonment.

52