# Gregory Thompson v. Ricky Bell, Warden

> Court of Appeals for the Sixth Circuit · June 23, 2004 · 373 F.3d 688

URL: https://www.frixlaw.com/law-library/cases/786732

## Case

- **Full name:** Gregory THOMPSON, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 23, 2004
- **Citations:** 373 F.3d 688; 2004 U.S. App. LEXIS 12431; 2004 WL 1417125
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Suhrheinrich, Moore, Clay
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Bell v. Thompson, 545 U.S. 794 (2005).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/786732

## How later opinions describe it (automated extraction)

- stating "we recognize that a number of our sister circuits have held that the courts of appeals have the inherent equitable power to supplement the record on appeal, where the interests of justice require" and collecting cases
- stating that the Sixth Circuit does not allow consideration of materials under Appellate Rule 10(e) that have not been considered by the district court
- holding that after certio-rari is denied but before mandate issues, the court of appeals has jurisdiction to reopen the appeal

## Opinion text

373 F.3d 688
Gregory THOMPSON, Petitioner-Appellant,
v.
Ricky BELL, Warden, Respondent-Appellee.
No. 00-5516.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: June 23, 2004.
Stephen M. Kissinger, Dana C. Hansen Chavis, Federal Defender Services, Knoxville, TN, for Petitioner-Appellant.
Glenn R. Pruden, Asst. Atty. General, Jennifer L. Smith, Asst. Atty., Nashville, TN, for Respondent-Appellee.
Before SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. SUHRHEINRICH, J. (pp. 692-742), delivered a separate opinion concurring in part and dissenting in part.
OPINION
MOORE, Circuit Judge.
1
Eighteen months ago, this panel in a split decision producing three different opinions affirmed the decision of the district court granting summary judgment to respondent in this habeas corpus action. Judge Suhrheinrich later conducted sua sponte a second, thorough review of the record and came to the conclusion that the facts as adduced in deposition testimony not part of the district court record supported the granting of the writ. See infra (Suhrheinrich, J., concurring). Upon reviewing the deposition of Dr. Faye Sultan, and investigating the procedural complications of this case, it is clear that this extremely probative testimony requires that we vacate the district court's grant of summary judgment in favor of respondent.
2
Judge Suhrheinrich summarizes most effectively the Sultan deposition and its value in assessing Gregory Thompson's mental state at the time of the crime. Where his opinion goes too far is in its accusations of fraud on the court; while his explanation for the omission of the Sultan deposition from the official record before the court is possible in the narrowest sense, the power of this court should not be used to make such accusations without more definite proof than the factual record of this case reveals.
3
Dr. Sultan's deposition was taken by trial counsel for respondent, but was not included with the evidence submitted as part of Bell's motion for summary judgment. Slightly more than one year later, contemporaneous with the preparation of this appeal, appellate habeas counsel made a Rule 60(b) motion in the district court asking to include the Sultan deposition as part of the record. At the same time, Thompson's counsel submitted that deposition to this court as part of his motion to hold this appeal in abeyance during the pendency of the Rule 60(b) motion. Applying the principle of Occam's razor, we conclude that more than likely, a genuine mistake was made, one which was not realized until a different attorney looked at the case. To conclude otherwise is to disbelieve sworn testimony by an officer of the court, and to assume that habeas counsel conspired to conceal evidence beneficial to their client, for no discernible reason — evidence loses power, rather than gains it, by being revealed on the "eve of execution" in a second habeas petition. Reading Judge Suhrheinrich's opinion, one might conclude that this court had only recently unearthed the Sultan deposition, when in fact it was submitted to the panel prior to oral argument as part of the abeyance motion.
4
We did not consider it, however, in rendering our decision, believing ourselves to be bound by the record created in the district court. Upon reflection, and after reviewing Judge Suhrheinrich's forceful assessment of the probity of the Sultan deposition, we believe it is appropriate to use our inherent equitable powers to expand the record on appeal to consider the deposition. Ordinarily, a court of appeals should only consider evidence made part of the district court record. Where through error or accident material matters are omitted or misstated, Federal Rule of Appellate Procedure 10(e) allows correction of the appellate record to include the corrected material. See Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir.2003). While some circuit courts have held that Rule 10(e) allows the inclusion of material the district court did not consider, see In re Capital Cities/ABC, Inc.'s Appl. for Access to Sealed Trs., 913 F.2d 89, 97 (3d Cir.1990) (citing inconsistent circuit precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir.1980), the rule in this circuit has consistently been that Rule 10(e) does not allow such inclusion. See, e.g., Inland Bulk, 332 F.3d at 1012 ; S & E Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636 , 641 (6th Cir.1982). We adhere to our previous interpretation that Rule 10(e) does not allow inclusion in the appellate record of material that the district court did not consider.
5
Although Rule 10(e) is thus unavailable, we recognize that a number of our sister circuits have held that the courts of appeals have the inherent equitable power to supplement the record on appeal, where the interests of justice require. See United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir.2000) ("[U]nder some circumstances, we have an inherent equitable power to supplement the record on appeal. However, we conclude the present case" does not present those circumstances.); Ross v. Kemp, 785 F.2d 1467, 1474 (11th Cir.1986) (relying on Dickerson, infra, and exploring circumstances under which exercise of that power is appropriate); Gibson v. Blackburn, 744 F.2d 403 , 405 n. 3 (5th Cir.1984) ("Although a court of appeals will not ordinarily enlarge the record to include material not before the district court, it is clear that the authority to do so exists."); Dickerson v. Alabama, 667 F.2d 1364, 1368 (11th Cir.1982) (relying on court's inherent equitable powers to supplement the record in habeas case); Turk v. United States, 429 F.2d 1327, 1329 (8th Cir.1970) ("[I]n the interest of justice, this court may order the record enlarged."); Gatewood v. United States, 209 F.2d 789 , 792-93 & n. 5 (D.C.Cir.1953) (sua sponte ordering preparation of transcript for record "in the interest of both parties, and of the due administration of justice"); see also 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3956.4, at 349-51 (3d ed. 1999 & Supp.2003) ("In special circumstances, however, a court of appeals may permit supplementation of the record to add material not presented to the district court."); 20 Moore's Federal Practice, § 310.10[5] [f], at 310-19 (3d ed. 2000) ("In extraordinary situations, the circuit court may consider material not presented to the district court when it believes the interests of justice are at stake."). Although recent Sixth Circuit cases indicate that we have not yet "embraced the notion that the record can be supplemented under an appellate court's equitable authority," see Inland Bulk, 332 F.3d at 1012 , in at least one earlier state habeas case we have so supplemented the record, citing to Dickerson, 667 F.2d at 1367 . See Prather v. Rees, 822 F.2d 1418 , 1420 n. 1 (6th Cir.1987) ("Although the parties did not provide the court with copies of the state court briefs, this court may supplement the record when necessary."); see also Adams v. Holland, 330 F.3d 398, 405-06 (6th Cir.2003) (recognizing exception to Rule 10(e) in habeas cases: "where substantial portions of [the state trial transcript] were omitted before the District Court, a habeas case should be remanded to the District Court for consideration in light of the full record."). Because the evidence here was apparently negligently omitted, because the evidence is so probative of Thompson's mental state at the time of the crime, because there is no surprise to respondent as it was his counsel who took the deposition, and because this is a capital case, we believe that the circumstances of this case merit consideration of the Sultan deposition pursuant to our equitable power to supplement the record on appeal, despite the omission of the deposition from the District Court record. We therefore vacate the grant of summary judgment, and remand the case to the District Court for a full evidentiary hearing.
6
It remains to be explained the source of our power to so reconsider our earlier opinion, as we do not join in Judge Suhrheinrich's allegation of fraud on the court. Instead, we rely on our inherent power to reconsider our opinion prior to the issuance of the mandate, which has not yet issued in this case. Although a court of appeals should withdraw an already-issued mandate only to prevent a miscarriage of justice, see Calderon v. Thompson, 523 U.S. 538 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998), at least two of our sister circuits have reconsidered opinions where the mandate has not yet issued. See Wilson v. Ozmint, 357 F.3d 461, 464 (4th Cir.2004) ("The mandate of the court has not yet issued in this case, and, therefore, we may, at our discretion, `amend what we previously decided ....'") (quoting Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.1977)); First Gib. Bank v. Morales, 42 F.3d 895, 898 (5th Cir.1995) (relying on Alphin, 552 F.2d at 1035 , to reconsider decision where mandate had not yet issued). We therefore rely on our inherent power over a case until our mandate issues in reconsidering our opinion in this case.
7
The judgment of the district court is therefore VACATED, and the case is REMANDED for further proceedings not inconsistent with this opinion. Thompson's execution is also STAYED for 180 days to permit the district court to proceed.
8
SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in part.
I. Introduction
9
Petitioner-Appellant Gregory Thompson ("Thompson" or "Petitioner") was convicted of first degree murder and sentenced to death by the State of Tennessee. In a previous decision, this Court affirmed the district court's denial of his request for a writ of habeas corpus. See Thompson v. Bell, 315 F.3d 566 (6th Cir.2003), cert. denied, 540 U.S. 1051 , 124 S.Ct. 804 , 157 L.Ed.2d 701 (2003). The Supreme Court denied Thompson's petition for writ of certiorari. On February 25, 2004, the State of Tennessee granted the State's motion to set an execution date and has ordered that the Warden of the Riverbend Maximum Security Institution or his designee execute the sentence of death on August 19, 2004, "unless otherwise ordered by this Court or other appropriate authority." This matter is now before this Court on its own motion.
10
Essential to our conclusion that Thompson was not denied effective assistance of counsel due to counsel's failure to introduce evidence that he suffered from schizophrenia at the time of the offense was our finding that Thompson "has never submitted to any court any proof that he suffered from severe mental illness at the time of the crime." Thompson, 315 F.3d at 590 . Subsequent to the issuance of our decision on January 9, 2003, information has come to the attention of the Court which requires us to determine whether our decision to affirm the district court's denial of Thompson's petition for writ of habeas corpus relief from his death sentence was improvident.
11
While reviewing various Sixth Circuit death penalty cases in preparation of a law review article on the subject, an intern in my chambers, who also happens to be a board-certified psychiatrist, expressed concern as to why Thompson's post-conviction expert, Gillian Blair, Ph.D., and Thompson's habeas experts, Barry Crown, Ph.D. and Faye Sultan, Ph.D., had not directly addressed the question as to whether Thompson did or did not exhibit symptoms of a major mental illness at the time of the crime or sentencing, and, if he did, whether the symptoms were sufficient at that point to support a diagnosis of mental illness which should have been presented as mitigating evidence at the sentencing hearing. I then conducted my own review of the entire certified record, in addition to my prior review of the joint appendix. As a result of my review of the entire certified record, I feel that it is incumbent upon me, as a judicial officer sworn to uphold the Constitution, and as authoring judge of the initial opinion, to reverse that ruling and issue this opinion. Although I am now merely a concurring/dissenting judge in this matter, I wish it to be known that the initiative for this decision came from my chambers. The majority's ruling is based upon their review of my draft opinion, prepared after my discovery, and the hundreds of hours of work that followed, reviewing the entire record, researching the law, and drafting this opinion.
12
The question thus is whether our prior ruling was mistaken, because there is, and was, in fact available proof that Thompson was suffering from a serious mental disease or defect at the time of the 1985 offense which would have substantially impaired his ability to conform his conduct to the requirements of law. 1 Also at issue, and integral to the primary question, is whether the federal habeas counsel in this case committed fraud on the court by intentionally or recklessly failing to present critical evidence on the question, of which they had knowledge, to the district court. For the reasons that follow, we vacate our prior ruling and conditionally grant the writ.
II. Background
13
The facts are set forth in great detail in our prior opinion. See id. However, because the present inquiry involves voluminous facts and procedural history not presented to us on appeal as part of the joint appendix, it is necessary to revisit much of the case, and to review and present the new materials. To the extent possible, I have attempted to present the relevant facts in chronological and procedural order.
A. State Court Proceedings
1. Trial Court
14
Brenda Lane was murdered on January 1, 1985. Thompson was apprehended the next day. On January 29, 1985, the trial court appointed counsel. On February 26, 1985, less than two months after the murder, counsel filed a notice of insanity defense and also requested a mental or psychological evaluation of Thompson to determine (1) whether Thompson was competent to stand trial, and (2) his mental capacity at the time of the crime. On March 25, 1985, less than three months after the murder, trial counsel filed a supplementary motion for a psychiatric examination and a neurological examination to determine (1) whether Thompson was competent to stand trial and assist counsel with his defense, (2) whether Thompson was suffering from a mental illness on the date of the offense, and (3) whether Thompson was in need of hospitalization for further psychiatric treatment and evaluation. The affidavit in support stated that Thompson had previously suffered two concussions, one when he was sixteen years old from a car accident, and the second while in the Navy, when he was beaten in the head with a hammer by three fellow servicemen.
15
On March 28, 1985, less than three months from the date of the offense, the trial court ordered that Thompson be referred to the Multi-County Mental Health Center for a forensic evaluation to determine (1) his competency to stand trial and to assist in his own defense, and (2) his mental capacity at the time of the crime. On April 4, 1985, the trial court entered another order directing Thompson to undergo a forensic evaluation at a state facility, Middle Tennessee Mental Health Institute ("MTMHI"), for a maximum of thirty days. A team of forensic psychologists at MTMHI evaluated Thompson and found him to be competent.
16
Trial counsel questioned the state team's impartiality and requested funds to secure further psychiatric evaluations. On July 29, 1985, the trial court granted counsel funds to hire an independent psychiatrist. Instead, counsel used the funds to hire Dr. Copple, a clinical psychologist. Trial counsel stated that the effort to hire a psychiatrist "was not successful." Id. at 573 . Also as part of their trial preparation, counsel traveled to Thompson's home town where they interviewed various family members and acquaintances of Thompson.
17
Thompson did not present a defense at trial, and the jury convicted him of the first degree murder of Brenda Lane. At the sentencing phase, Thompson's former girlfriend, Arlene Cajulao, testified that she knew Thompson from 1980 until June 1984. She described Thompson as caring and sensitive. On cross-examination, she testified to incidents concerning Thompson's violent behavior while in the Navy. Thompson's sister, Nora Jean Walton, testified about his activities in Georgia upon his return from Hawaii after his discharge from the Navy. Dr. Copple also testified. He stated that he spent roughly eight hours examining Thompson over several sessions. Copple stated that during the first session, he was basically looking at what things Thompson would be capable of doing in a prison setting. Copple testified that, in his opinion, Thompson had an unusually strong need to nurture other people that had impelled him to some unwise actions. Copple felt that Thompson did not have an adult anti-social personality disorder. On cross-examination Copple stated that he did not think Thompson was suffering from any mental illness.
18
The State presented in rebuttal the deposition testimony of Dr. Robert Glenn Watson, who had participated in the staff evaluation of Thompson at MTMHI. Watson found no intellectual impairment. Watson also testified that they found no real evidence of organicity or brain damage. Watson also administered the Minnesota Multiphasic Inventory-II ("MMPI"), but determined that the tests results reflected malingering. Watson further stated that on May 24, 1985, at a staff conference, based on all the data, the staff concluded that:
19
[Thompson] exhibited none of the signs of an affective illness. His judgment and insight are rather poor. Psychological testing revealed him to be functioning in the average range intellectually, to exhibit no signs of organicity or brain damage on the Bender-Gestalt Test and the Bender Interference Procedure. Personality profiles revealed no evidence of a psychosis, but indicated malingering in the mental illness direction. (For example, the schizophrenic score was at T 120, while clinical observations revealed no evidence of a thought disorder.)
20
The staff at MTMHI diagnosed Thompson as Axis 1, Adult Antisocial Behavior, 071.01. The forensic team therefore concluded that Thompson was mentally competent to stand trial and was not suffering from a mental disease or defect.
21
The jury imposed the death penalty at the conclusion of the penalty phase, and the trial court entered judgment sentencing Thompson to death by electrocution. Thompson thereafter pursued his direct appeals to no avail.
2. Post-Conviction
22
On October 16, 1990, Thompson filed a petition for post-conviction relief, claiming in relevant part that trial counsel failed to investigate adequately Thompson's background and personal and medical history for the existence of mitigating evidence. See Thompson, 315 F.3d at 576 . On February 1, 1991, post-conviction counsel filed an ex parte, sealed motion seeking "funds to hire a licensed psychologist or psychiatrist and an investigator to assist in the preparation of his case for post-conviction relief." Id. at 577 . In support, counsel attached the affidavit of Dr. Gillian Blair, a clinical psychologist. Blair noted that Thompson's post-incarceration medical records indicated that Thompson had been variously diagnosed as having bipolar affective disorder, schizo-affective disorder, and schizophrenia, paranoid type, and was taking Lithium, Haldol, and Cogentin. Id. Blair opined that "[i]f Mr. Thompson is found to be suffering from neurological or psychological impairment as described above, it is likely that some degree of such impairment would have existed at the time of the offense and would have been a significant factor in determining whether or not Mr. Thompson was able to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law when he committed the homicide of which he stands convicted." Id. Blair indicated that Thompson needed a full psychological evaluation. Id.
23
The state trial post-conviction court held an evidentiary hearing on March 27 and March 29, 1995. At the hearing Blair testified that she reviewed Thompson's institutional records, beginning with the 1985 MTMHI assessment. She also interviewed Thompson in March and April 1992, and at that time administered "a basic psychological battery of tests with some additional... neuropsychological tests because of the history of head injuries that Mr. Thompson had received and that were well documented in his medical record." Id. at 578-79 . Blair then articulated the following opinion:
24
The Riverbend medical record indicated that since 1985, Mr. Thompson had shown a deteriorating mental status. He had become psychotic. He had been treated with anti-psychotic medication at that time. He was treated with Haldol, Cogentin, and Lithium, and three different treating physicians at that time: Dr. Dyner [sic], Dr. Deal, and Dr. Humble had all over the years from 1985 to 1990 had diagnosed him as either having bipolar disorder or a schizo affective disorder or schizophrenia. They described his agitated behavior. They described his hostility. They described his inappropriate affect, his experience of auditory hallucinations, his delusions, his paranoia, his thoughts of persecution. He had attempted suicide of a couple of occasions. He had set fire to his cell burning both his hands and his face. They had certainly — two of those psychiatrists and maybe all three of them had considered the possibility that he was malingering, that he was faking mental illness and throughout their Riverbend records, it was clear that those psychiatrists had discounted the possibility of malingering because they didn't feel that it accounted for all of the psychotic symptoms they saw in him.
25
Id. at 579 .
26
Blair was also asked what other facts would be necessary for her to develop an opinion as to Thompson's condition at the time of the offense. She stated that "the most important thing that would be necessary would be a full history and full medical records of Mr. Thompson prior to the commission of the offense." Id. She added that:
27
From the records I was able to review, it was clear that the social history was very sketchy in terms of his remote history, his childhood and his upbringing, and also family history of mental illness. There seemed to be a[sic] strong evidence to suggest that there was mental illness in his family, probably in his father who committed suicide and was known to be extremely violent and possibly in his mother but none of those records were available.
28
Id. Blair therefore stated that she did not have an opinion about Thompson's diagnostic status in 1985. Id.
29
On cross-examination, Blair stated that she had reviewed all of the records included in the files from MTMHI. This included daily progress notes, medication sheets, the report of psychological testing, the discharge summary, the admission summary, the staff conference report, and the social worker's history. Id. When asked whether she thought MTMHI's testing procedure was unreliable, she averred that it was not unreliable, but simply "not extensive enough." Id. Blair further testified that from her own testing, 2 she did not believe that Thompson was faking or attempting to fake mental illness.
30
On May 15, 1995, the post-conviction court denied Thompson's claims. The court found that defense counsel had made an adequate investigation into their client's background and prior medical history. The court stated that state post-conviction counsel had presented no proof of mental problems that would have provided Thompson with a defense or shielded him from the death penalty. Id. at 580 . The Tennessee Criminal Court of Appeals held that Thompson had failed to establish that any type of psychological impairment in general may have existed which would have been mitigating evidence." Id. That court specifically noted that "Dr. Blair declined to give an opinion on these important issues, and the evidence does not preponderate against the trial court's finding that the defense attorneys were not ineffective." Id. (quoting Thompson v. State, 958 S.W.2d 156, 165 (Tenn.Crim.App.1997)).
B. Federal Habeas Proceedings
1. District Court
31
On January 23, 1998, Thompson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 . (DCTR 1). 3 He also filed a motion and application for appointment of counsel to investigate, prepare and file the petition, pursuant to 21 U.S.C. § 848 (q)(4)(B). (DCTR 2). On January 29, 1998, the court granted Thompson's motion for appointment of counsel and designated the Federal Defender Services of Eastern Tennessee, Inc., to provide Thompson with an attorney to prepare and file a petition for a writ of habeas corpus and "to prepare for and participate in all proceedings in connection therewith." (DCTR 3).
32
On March 9, 1998, the district court held a scheduling conference. Attorney Stephen M. Kissinger was present representing Thompson. Assistant Tennessee Attorney General John H. Baker III was present on behalf of the State. (DCTR 6). On March 11, 1998, the district court entered a scheduling order. The court required, in relevant part, that disclosure of anticipated use of any expert witness and disclosure of information regarding the expert and the expert's expected testimony was to be completed by Thompson by October 30, 1998. The court directed the Warden to disclose his expert witnesses by December 31, 1998. The scheduling order also provided that the Warden's answer to the petition for writ of habeas corpus was to be filed on or before July 17, 1998, and that the parties file a joint schedule of needed discovery by July 24, 1998.
33
On May 26, 1998, Assistant Attorney General Glenn R. Pruden became counsel of record for the Warden.
34
a. The Petition
35
As required by the scheduling order, Thompson filed his petition for writ of habeas corpus on June 12, 1998. Thompson alleged in relevant part that his trial counsel were ineffective for failing to: (1) perform a reasonable investigation of his background and mental health history; (2) secure adequate expert assistance regarding his mental health; (3) discover available evidence of mental illness caused by two serious head injuries; and (4) investigate and challenge Thompson's competency to stand trial as well as his competency at the time of the offense. 4 He also claimed that he was denied funding for mental health and investigative experts during the state trial and post-conviction proceedings. The petition was signed by Stephen M. Kissinger.
36
On August 25, 1998, the district court entered an order granting Respondent's motion for extension of time for filing a discovery schedule, moving the deadline to September 2, 1998.
37
On October 22, 1998, Thompson filed an amended petition for writ of habeas corpus. Thompson contended, in pertinent part, that the state courts denied him funding for mental health and investigative experts at trial and during state post-conviction proceedings, implicating his fundamental rights to due process, equal protection, and effective assistance of counsel. (DCTR 17). Thompson also complained that he was denied expert funding, in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. He alleged in relevant part:
38
a. Both trial and post-conviction counsel knew Petitioner's mental state was an important issue but without assistance from a competent investigator and mental health expert, counsel was unable to explain and overcome the state mental hospital's initial findings.
39
b. Attorney Parsons was aware of Petitioner's history of head injuries and "the significant [sic] of those head injuries and what that can do to somebody." P.C. Vol. I, p. 38. Later, counsel also witnessed "a period when he [Petitioner] got sick mentally." P.C. Vol. I, p. 83. Trial counsel requested funds for a mental health expert but were denied. Instead, Petitioner was sent to Middle Tennessee Mental Health Institute (MTMHI) for a competency evaluation. Although MTMHI found Petitioner to be competent, Mr. Parsons continued to believe further evaluation was needed....
40
c. Records from Riverbend Maximum Security Institution reflect that several different treating psychiatrists have diagnosed Petitioner as having either a bipolar affective disorder, cyclic mood disorder, schizo-affective disorder or schizophrenia. All of the psychiatrists described Petitioner's agitated behavior, hostility, inappropriate affect, auditory and visual hallucinations, delusions, paranoia, and thoughts of persecution. Psychiatrists considered the possibility of Petitioner's malingering and all discounted that possibility. State examiners at Riverbend ruled out malingering noting that it did not explain all psychotic features. Test results indicating schizophrenia were found consistent with Petitioner's psychotic disorder even at his then current "stable" level of functioning. Since his incarceration, Petitioner has been heavily medicated. For example, Petitioner has taken Lithium and Klonopin, both indicated for bipolar disorder; Depakene and Depakote indicated for epileptic conditions and rapid cycling bipolar disorder due to brain disease; the anti-psychotic drugs Haldol, Haloperidol, Mellaril, Navane, Thioridazine, and Trilafon; Cogentin/Benztropine to minimize the effect of such drugs; the sedative Vistaril; and, Ativan/Lorazepam and Valium to reduce agitation.
41
d. Post-conviction counsel repeatedly requested funds for a mental health expert. The prosecutor argued that post-conviction counsel were not entitled to experts at state expense. P.C. Vol. 1, p. 16. In support of the motion for funding, counsel submitted the affidavit of Dr. Gillian Blair. Dr. Blair's affidavit and post-conviction testimony reflected her need for a complete social history, additional testing and interviews before she could render an opinion on Petitioner's mental status at the time of the crime, at trial, and at the present time. See generally P.C. Vol. I, pp. 199-219. Dr. Blair opined that based on the Riverbend records, her test results from 1992, and the brief social history available, further investigation and examination of Petitioner was required. Dr. Blair testified that since 1985 Petitioner had shown a deteriorating mental status. P.C. Vol. II, p. 209. Petitioner had been diagnosed with bipolar disorder, schizo affective disorder or schizophrenia. Id. She further testified that schizophrenia and bipolar disorder, indeed all forms of psychosis, generally begin in early adulthood, Id. at 215, which coincides with the timing of the instant offense. Dr. Blair stated that Petitioner's troubles in the Navy, just prior to the crime, would suggest that he was becoming mentally ill at that time. Id. at 216. However, further information was needed to render an opinion and diagnosis of Petitioner at that time. Dr. Blair also stated that further evaluation of Petitioner was necessary to determine his present competency. Id. at 207.
42
e. The court denied funding for expert assistance at the post-conviction hearing. The court reasoned that funds were unnecessary because Petitioner had not shown a "need," further funding would result in a delay of the proceedings and the issue was a matter of record....
43
f. Although the court found no "need" for further expert assistance, the court later used the fact that Dr. Blair could not express an opinion as to the issues of Petitioner's mental health to limit Dr. Blair's testimony and, subsequently, to deny Petitioner relief from his unconstitutional conviction and sentence. For example, throughout Dr. Blair's testimony, the prosecutor made repeated objections on the basis that Dr. Blair did not have an ultimate opinion. See e.g. P.C. Vol. II, pp. 208, 215, 216, 220, 259. Although the court allowed most of Dr. Blair's answers, it did so remarking that the weight of the testimony was specious. See id. The court, however, did not allow Dr. Blair to testify about mitigating circumstances.
44
(Footnotes omitted.).
45
Thompson further alleged ineffective assistance of counsel, for the following non-exclusive reasons:
46
1. Counsel at all critical stages failed to reasonably investigate Mr. Thompson's background and mental health history. Had counsel done so, they would have discovered that Petitioner had, in the years following his graduation from high school, intermittently demonstrated bizarre and delusional thought patterns. They would have also discovered that members of Petitioner's family, e.g., his father, had a long pervasive history of severe mental illness. Trial counsel, however, failed to perform a reasonable investigation, failed to find such evidence, and consequently failed to present the following evidence to the jury, both during the guilt phase and during the sentencing phase of the trial.
47
2. Counsel was ineffective for failing to fully investigate and present relevant evidence of Mr. Thompson's mental health history, and to secure adequate expert assistance to defend Mr. Thompson including psychologists, neuropsychological, and/or neurological experts to establish valid mitigating factors including, but not limited to, three statutory mitigation factors under Tennessee law, i.e., that Mr. Thompson suffered from substantial disorders and demonstrable physical brain damage which made him unable to conform his behavior to the law; left him under the influence of extreme mental or emotional disturbance, substantially impaired his ability to appreciate the wrongfulness of his conduct at the time of the offense, and non-statutory mitigation under both Tennessee and federal law. As importantly, had counsel secured such mental health history, the result of any professionally adequate pre-trial competency and insanity examination (including, if indeed it was, or had been, professionally adequate, the pre-trial competency examination actually performed in Mr. Thompson's case) would have been different. Specifically, but not exclusively:
48
i. Counsel failed to discover and interview pertinent, available witnesses who could have testified and/or informed appropriate mental health experts of Mr. Thompson's descent into intermittent and delusional behavior following high school.
49
. . . .
50
... Had counsel been informed, they would have recognized that witness accounts, of Petitioner's bizarre change in behavior signaled the onset of mental illness. The lingering question would have been answered. The outcome of Petitioner's capital conviction and sentence probably would have been different.
51
(DCTR 17; footnotes omitted). The amended petition for writ of habeas corpus was signed by Stephen M. Kissinger.
52
b. Discovery
53
On November 2, 1998, the magistrate judge held three telephone conferences with Attorney Kissinger and Assistant Attorney General Jennifer Smith regarding Thompson's request for discovery regarding those matters alleged in the petition, to which Respondent objected. The court's order states that, during the hearing, Kissinger advised that he needed to obtain the depositions of three mental health expert personnel who had seen and treated Thompson during his period of incarceration. Respondent maintained his objection that the allegations before the court did not establish good cause for discovery as required under Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Court. That same day the court entered an order allowing Thompson to take the depositions of Dr. Michael Rutter, Dr. Robert Hoen, and Dr. John Pruett, mental health experts. The order further allowed Respondent the right to take the depositions of Thompson's two experts, neuropsychologist Barry Crown, Ph.D, and psychologist Faye Sultan. (DCTR 18). The magistrate judge noted that the execution of Thompson would violate the Eighth Amendment due to Thompson's incompetence. The order also noted a Brady claim. 5
54
Also on November 2, 1998, Thompson filed his initial witness list. His "[e]xpert witnesses and testimony" included the following:
55
a. Dr. Barry Crown, Penthouse Ste 310, Red Road, South Miami, FL 33143, will provide foundation testimony to establish himself as an expert in neuropsychology. He will testify that he has been provided with background information regarding Petitioner's medical and social history, that he has interviewed, and administered a battery of indicated neuropsycholgical tests to the Petitioner. He will testify that the results of those tests indicate that Petitioner suffers from organic brain damage. He will testify that the brain damage observed, as well as Petitioner's social and medical history, is consistent with schizophrenia. He will testify that Petitioner's brain damage substantially impaired the ability of the Petitioner to distinguish between right and wrong and/or to conform his conduct to the requirements of the law and/or prevented Petitioner from doing the same. He will testify that Petitioner's brain damage prevented Petitioner from meaningfully assisting in his own defense at trial and during state post-conviction proceedings and/or from fully comprehending the nature of those proceedings. He will further testify that arguments regarding Petitioner's mental state made by counsel for the State of Tennessee during state post-conviction proceedings were both outside the scope of a lay person's knowledge and that the prosecutor's statements misrepresented Petitioner's prison medical records.
56
b. Dr. Faye Sultan, 8430 University Executive Park Drive, Suite 690, Charlotte, NC 28262, will provide foundation testimony to establish herself as an expert in clinical and forensic psychology. She will testify that she has been provided with background information regarding Petitioner's medical and social history, that she has interviewed, and administered a battery of indicated psychological tests to the Petitioner. She will testify that, on the basis of her examination, it is her expert opinion that Petitioner suffers from schizophrenia and did so at the time of the offense and at the time of trial. She will testify that Petitioner's mental illness was severe and that it substantially impaired the ability of the Petitioner to distinguish between right and wrong and/or to conform his conduct to the requirements of the law and/or prevented Petitioner from doing the same. She will testify that Petitioner's mental illness prevented Petitioner from meaningfully assisting in his own defense at trial and during state post-conviction proceedings and/or from fully comprehending the nature of those proceedings. She will further testify that arguments regarding Petitioner's mental state made by counsel for the State of Tennessee during state post-conviction proceedings were both outside the scope of a lay person's knowledge and that the prosecutor's statements misrepresented Petitioner's prison medical records.
57
(DCTR 19) (emphases added).
58
On November 30, 1998, Respondent appealed the magistrate judge's discovery order. The district court affirmed the ruling. Significantly, the district court stated the following:
59
Additionally, if the facts are developed to show that petitioner's mental health should have been introduced as mitigating evidence, petitioner may be entitled to relief. The magistrate judge heard argument of counsel and then ruled that certain specific discovery would be allowed.... Not only has Thompson raised the issue of ineffective assistance of counsel for failure to fully explore his mental health for mitigating purposes at his sentencing, which trial counsel testified he should have explored Thompson's mental health further ...; the record also includes factual allegations that there was some mental health evidence that could have been introduced as mitigating evidence. Furthermore, Thompson alleges he did not receive a full and fair post-conviction hearing in state court because he was denied funds to hire a mental health expert to prove his incompetency/insanity at trial and at execution. If the fact are fully developed, he may be able to demonstrate he is entitled to relief.
60
After a cursory review of the numerous volumes of state documents[] involved in this case, it appears that Thompson has alleged a factual basis for some of his claims and the magistrate judge so found. For example, petitioner claims trial counsel failed to properly investigate his mental health history and present mitigating evidence at trial and sentencing. Petitioner contends he had two serious head injuries and intermittent bizarre and delusional thought patterns and witnesses to testify to such, and this mitigating evidence should have been introduced. Furthermore, petitioner contends that his institutional records reveal a diagnosis of schizophrenia with problems of auditory and visual hallucinations and paranoid ideation. If petitioner proves these factual allegations, he may be entitled to relief.
61
(Footnote omitted) (DCTR 22).
62
On December 24, 1998, Respondent filed his initial expert witness list disclosure. It listed simply Dr. Theodore H. Blau, who would "testify as an expert in the area of forensic neuropsychology. Dr. Blau will be called, if necessary, to rebut the testimony of petitioner's expert witnesses, Dr. Barry Crown and Dr. Faye Sultan, as disclosed in petitioner's initial witness list of October 30, 1998." (DCTR 24).
63
On December 29, 1998, Attorney Kissinger moved to appear pro hac vice. (DCTR 25).
64
On February 3, 1999, the district court granted Thompson's request for an extension of time to conduct discovery. The court set the discovery date at June 11, 1999, and the dispositive motion cutoff at July 2, 1999. (DCTR 32).
65
On February 12, 1999, Thompson filed an ex parte motion for a temporary mandatory restraining order, for preliminary and permanent injunctive relief, and for an order finding Thompson incompetent to proceed, continuance, and to toll. (DCTR 34). In support, Thompson alleged in part as follows:
66
1. Petitioner suffers from schizophrenia. During the vast majority of his incarceration Respondent has medicated Petitioner in order to treat his mental illness.
67
2. On or about September 1998, Respondent stopped providing Petitioner with appropriate psychiatric medication.
68
3. Petitioner's mental health thereafter radically declined. Petitioner is now unable to meaningfully assist counsel or understand the nature of the proceedings in which he is being required to participate. Moreover, because of the severe nature of Petitioner's mental illness, Respondent's refusal to provide appropriate psychiatric care is tantamount to subjecting Petitioner to physical torture. See, Exhibit A, Declaration of Faye Sultan PhD. attached.
69
. . . .
70
6. Petitioner has no remedy at law.... Given the Petitioner's incontrovertible right both to receive proper psychiatric care and to seek federal habeas corpus relief the likelihood that he will prevail on the merits of his motion are great. Should Respondent be allowed to continue to deprive Petitioner of proper psychiatric care Petitioner will suffer irreparable injury. Not only is he being rendered incompetent, he is, for all intents and purposes, being tortured.
71
(Footnotes omitted.). The motion was signed by Attorney Kissinger (by permission). (DCTR 34).
72
Attached to the February 1999 motion is the declaration of Faye Sultan, Ph.D, a clinical psychologist. Sultan stated in relevant part that
73
At the request of attorneys at the Federal Defender Services of Eastern Tennessee, I initiated a psychological evaluation of Mr. Gregory Thompson in August, 1998. Formal psychological testing and extensive clinical interview were conducted with Mr. Thompson at the Riverbend Maximum Security Prison in Nashville, Tennessee on 8-20-98. This interview was conducted as a "Contact Visit", with no physical barrier between this examiner and Mr. Thompson, and Mr. Thompson was not physically restrained in any way.
74
In addition to the data gathered during this examination, I was asked to review extensive documentation about Mr. Thompson's psychiatric, military, and legal history. These data also serve as bases for the opinions rendered here. These data include psychiatric records and examinations regarding Mr. Thompson for approximately the past fifteen years, administrative and medical records from the Tennessee Department of Corrections, and legal and police documents relating to the original offenses for which Mr. Thompson is currently incarcerated. In total, hundreds of pages of records and documents have been reviewed for the purpose of this evaluation.
75
(DCTR 34). Dr. Sultan also stated that in August 1998 Thompson met all of the diagnostic criteria for the major mental illness schizophrenia, episodic, with interepisode residual symptoms. She further indicated that Thompson's condition had rapidly deteriorated between August 1998 and February 1999. In Dr. Sultan's opinion, Thompson was experiencing a severe psychiatric crisis, making him unaware of his surroundings, and requiring immediate emergency attention. ( Id ).
76
On April 7, 1999, Thompson moved to withdraw his ex parte motion for injunctive relief and for an order finding him incompetent to proceed, principally because on April 6, 1999, Dr. Sultan saw Thompson and concluded that his condition had improved, due to an adjustment in his medication. Thus, the factual basis for the motion no longer existed. (DCTR 64). On April 29, 1999, the court granted the motion to withdraw the ex parte motion. (DCTR 67).
77
On June 28, 1999, the district court entered an order extending the discovery deadline to July 30, 1999. The court extended the deadline to allow Respondent to depose Thompson's expert witnesses, Drs. Crown and Sultan, and to allow Petitioner to depose Respondent's expert witness, Dr. Theodore Blau. On July 9, 1999, Respondent filed a motion for summary judgment as to all claims raised in the amended petition for writ of habeas corpus. (DCTR 81-82). On July 15, 1999, Thompson deposed Respondent's expert, Dr. Blau. On July 20, 1999, Respondent deposed Petitioner's expert. Dr. Crown. 6 On July 29, 1999, Thompson filed his response to Respondent's motion for summary judgment.
78
On August 2, 1999, Respondent filed a motion for reimbursement of deposition expenses. (DCTR 87). Respondent claimed that Dr. Crown's deposition testimony was considerably different than that represented in Petitioner's initial witness list. Specifically, Respondent alleged that, based on Petitioner's initial disclosure concerning Dr. Crown's testimony, particularly as to Petitioner's mental state at the time of the offense, " i.e., his ability to distinguish between right and wrong and/or to conform his conduct to the requirements of law, competency at the time of trial," counsel for Respondent traveled to Miami, Florida to depose Dr. Crown. Respondent further claimed that, at the beginning of the deposition, he was presented "for the first time" with an affidavit indicating Dr. Crown's proposed testimony, which was significantly different from the October 30, 1998, initial witness list disclosure. The affidavit indicated no opinion as to Thompson's mental state at the time of the offense or at trial, no opinion indicating that brain damage substantially impaired Thompson's ability to conform his conduct to the requirements of law and/or to distinguish between right and wrong, and no opinion concerning Thompson's ability to assist counsel in his defense at trial or comprehend the nature of that proceeding.
79
Respondent alleged that, "contrary to representations in Petitioner's initial expert disclosure, Dr. Crown testified in his deposition that he had not rendered, nor had he been asked to render, an opinion concerning Petitioner's mental status at the time of the offense in this case." (DCTR 87). The motion stated that Dr. Crown testified that he was also not asked to render an opinion concerning Petitioner's competence at the time of trial. The motion further alleged that "Dr. Crown testified that he had seen petitioner on one occasion, June 12, 1998, and was prepared to render an opinion concerning petitioner's competence and mental status on that day." Thus, in Respondent's view, "Dr. Crown offered no testimony pertinent to any claim presented in the amended petition for writ of habeas corpus." Respondent therefore claimed that, had he been advised of the precise nature of Dr. Crown's testimony, as required under Fed.R.Civ.P. 26(a)(2)(B) and by the district court's order of March 11, 1998, he likely would not have deposed Dr. Crown. Respondent contended that, given the clear representations in his October 1998 expert disclosure statement, Petitioner had a duty to disclose the nature of Dr. Crown's testimony. Respondent sought an order requiring Petitioner to reimburse Respondent in the amount of $2,768.71 for expenses incurred in connection with the July 20, 1999, deposition of Dr. Crown.
80
On August 4, 1999, Petitioner filed a motion in limine, seeking to exclude Dr. Blau's testimony on the grounds that Dr. Blau neither formed an opinion nor was asked to form an opinion regarding any of the issues raised in the petition: "Despite all issues being clearly framed by the allegations in the petition, Respondent never sought, nor did Dr. Blau render, any opinion contrary to such allegations." (Footnote omitted.). (DCTR 88). Also on August 4, Petitioner filed a motion for costs incurred in deposing Dr. Blau. Petitioner alleged in pertinent part:
81
2. On July 15, 1999, undersigned counsel conducted the deposition of Dr. Blau in order to discover the substance of his testimony at the evidentiary hearing. At that time Dr. Blau testified that he had been asked to render an opinion only in regard to Mr. Thompson's competency to proceed in the instant action...; that he had not reached any opinion other than that reflected in his report on the competency to proceed ...; and that in order to render additional opinions he would require further interviewing and testing of Mr. Thompson....
82
3. It is clear that although Respondent was on notice of Petitioner's mental health claims which are detailed in his habeas petition and was on notice regarding Petitioner's anticipated expert's testimony, Respondent either instructed Dr. Blau not to render any opinion during deposition regarding the issues in the petition or Dr. Blau failed to formulate such opinions. It appears that Respondent made the strategic decision to limit Dr. Blau's testimony to Mr. Thompson's competency to proceed given Dr. Blau's sworn testimony that his opinion was limited to Mr. Thompson's competence to proceed, the fact that Dr. Blau only evaluated Mr. Thompson on one occasion for the specific purpose of competency to proceed, and that Respondent did not provide a copy of Petitioner's habeas petition to Dr. Blau.
83
4. Undersigned counsel relied upon Respondent's representation that Dr. Blau would rebut Petitioner's expert witnesses. Had undersigned known that Dr. Blau's opinion was limited to Mr. Thompson's competency to proceed, an issue which is no longer before this court, he would not have taken Dr. Blau's deposition and incurred expenses totaling $4,097.01.
84
(DCTR 89) (emphasis added) (footnote omitted). Petitioner requested a court order requiring Respondent to pay those costs. The motion for costs is signed by Stephen M. Kissinger.
85
On August 5, 1999, Thompson filed a response opposing Respondent's motion for reimbursement of deposition expenses. In it he contended that the opinions Dr. Crown expressed in his deposition were materially consistent with Thompson's initial witness list. In response to Respondent's contention that Dr. Crown failed to provide an opinion at deposition regarding Thompson's mental condition at the time of the offense, Thompson stated that "[t]his allegation is untrue or irrelevant for at least two reasons." First, 5. Insofar as Respondent's complaint relates to Dr. Crown's response to the Assistant Attorney General Pruden's very few questions which Respondent elected to attach to his motion, Dr. Crown was not asked whether he had an opinion regarding Petitioner's mental condition at the time of the offense or at trial. Instead Mr. Pruden chose to focus on the communication between Dr. Crown and Respondent's counsel.[ 7 ]
86
. . . .
87
7. Not one of these questions asked whether Dr. Crown had an opinion on the issue of mental state at the time of the offense, at trial, or at any other time for that matter. They queried only regarding the communications between Dr. Crown and undersigned counsel. As a matter of fact, only once in the excerpts attached to Respondent's motion does Mr. Pruden ask any question which could reasonably be interpreted as seeking Dr. Crown's opinions on these issues.
88
8. On that occasion, Dr. Crown responded that he was unable to render such an opinion because he could not be certain whether he had been provided all relevant information. Crown deposition at Page 9, lines 4-15. Rather than show that he had no opinion on a material issue, Dr. Crown's answer demonstrated that he would not carelessly issue an opinion until counsel for Respondent defined the facts upon which counsel wished Dr. Crown to base that opinion. Despite Dr. Crown's qualified response, counsel for Respondent never asked Dr. Crown whether, assuming that Dr. Crown had all relevant information, he had an opinion regarding Mr. Thompson's mental state at the time of the offense and/or at trial, nor did counsel provide Dr. Crown with supplemental fact which Respondent deemed relevant and then ask him whether, based upon the combined information, he held an opinion on those regards.
89
9. The reasons Respondent failed to discover Dr. Crown's opinions in these areas were not because Dr. Crown held no such opinions. Respondent's counsel either made a strategic decision to focus on the conduct of counsel (or perhaps to attempt to create the illusion that Dr. Crown's opinions regarding these areas will come as a complete surprise to the Respondent when they are stated at hearing), or he simply neglected to ask the relevant questions.
90
(DCTR 90).
91
Thompson articulated a second reason, namely that Dr. Crown's deposition did substantially conform to the information contained in his initial witness list because Crown stated during his deposition "that Petitioner suffers from bipolar disorder of a schizo-affective type and that the onset of this affliction was prior to the alleged offense. Crown deposition at Pages 32-34, in passim. " Thompson added that "[u]nless Respondent can seriously maintain that it is material in this case whether Dr. Crown found that Petitioner suffered from one severe schizotypal mental illness at the time of the offense as well as his state court trial rather than another severe schizotypal mental illness, Dr. Crown's deposition testimony is clearly consistent with the information contained in Petitioner's Initial Witness List." Thompson also alleged that Respondent was not in a position to complain that Dr. Crown's testimony did not make the connection between Petitioner's mental illness and competency at the time of the offense, because Respondent "with full knowledge that Dr. Crown was of the opinion that Petitioner was severely mentally ill at the time of the offense, either chose not to inquire regarding the afore-described connection or forgot to do so. " (DCTR 90) (emphasis added). Thompson therefore claimed that he had demonstrated that the information in his initial witness list was consistent with Dr. Crown's testimony. He further claimed that even if it was materially inconsistent, Respondent could not complain because he had previously made this allegation to the magistrate judge, who granted Respondent the right to depose both Drs. Crown and Sultan before Respondent ever contacted Dr. Blau. Thus, Thompson claimed that Respondent had been granted the opportunity to determine the exact opinions of Dr. Crown before Dr. Blau was ever contacted. (DCTR 90).
92
Next, Thompson asserted that Dr. Blau stated during his deposition that he was contacted by Respondent's counsel, Pruden, on November 2, 1998, to retain him as a psychological expert and that he was asked simply "to review records in respect to competence to proceed regarding Mr. Thompson, and possible questions were whether Mr. Thompson is competent to act as a party participant in habeas corpus proceedings," and also whether he "could determine psychologically his mental condition and status with respect to his capacity to understand his legal position and his options." (DCTR 90) (quoting Deposition of Theodore H. Blau, Ph.D., July 15, 1999, Page 5, lines 8-19). Thompson further alleged that Dr. Blau was asked whether he had been asked to examine Thompson regarding any area other than competency and that "[h]is response clearly demonstrated that not only had he not examined and/or reached any opinions in any area other than Petitioner's present competency, the only neuropsychological examination he had conducted was `at best' ... a screening examination." (DCTR 90 ¶ 6). Thompson therefore moved for an order denying Respondent's motion for reimbursement of deposition expenses. (DCTR 90).
93
In his reply, Respondent stated simply that the documents attached to its motion for reimbursement plainly demonstrated that Thompson's October 1998 disclosure was materially different from the testimony offered at Dr. Crown's deposition and in his affidavit. (DCTR 91). Attached as an exhibit was a complete copy of Dr. Crown's July 20, 1999, deposition. Much of it bears repeating here:
94
Q: Specifically, what issues regarding Mr. Thompson and his case have you been asked to review and render expert opinions on, sir?
95
A: At this point, I have been asked to consider his competency and also his mental status.
96
Q: Okay. Let's take them one at a time, then. Competency, are you talking strictly about his present competency in the habeas corpus proceedings?
97
A: I am talking about his competency at the time that I saw him.
98
Q: Have you been asked to render any determination about whether or not he was competent to stand trial at his criminal trial?
99
A: No.
100
Q: Has anything been said to you that would lead you to believe that you might be asked at a future date prior to the evidentiary hearing to render such an opinion?
101
A: It hasn't been suggested or asked of me.
102
Q: So if I understand you correctly then, you were only asked to make a competency determination at the time you met Mr. Thompson?
103
A: That is correct.
104
Q: And when was that, sir?
105
A: June 12th of 1998.
106
Q: All right. His mental status. Please elaborate for me, what about his mental status have you been asked to opine?
107
A: I have been asked to evaluate it.
108
Q: His mental status at present?
109
A: Well, it was his status as of the time that I saw him. I haven't seen him since June 12th of 1998.
110
Q: Have you been asked to render any opinions concerning Mr. Thompson's mental status at the time of the murder of Brenda Lane?
111
A: Not specifically, no.
112
Q: Not specifically. Does that mean that you have not been asked that specific question?
113
A: That is correct.
114
Q: Have you rendered an opinion, though, in that regard?
115
Q: No, not as of this time.
116
Q: So you have not rendered an opinion to Mr. Kissinger yet one way or another regarding Mr. Thompson's ability to distinguish between right and wrong or conform his conduct to the requirements of the law at the time of Ms. Lane's murder?
117
A: That is correct.
118
Q: Has Mr. Kissinger, or anyone else representing Mr. Thompson, represented to you that they would like you to render such an opinion during the course of your employment?
119
A: No.
120
Q: Just so I am clear then, your mental status evaluation of Mr. Thompson is only to evaluate his mental status at present?
121
A: I have only seen him on one occasion, June 12th of 1998. So what I have to say would be related to that examination. I have looked at other records, but I don't know they are necessarily complete, and I couldn't render an opinion based on the lack of completeness, or what I assume is the lack of completeness.
122
Q: So you don't feel that based on the materials that you have reviewed to date that you could, based on your professional experience, render an opinion about Mr. Thompson's mental state say back in 1985 at the time of the murder?
123
A: As I sit here today, I could not.
124
Q: So you are not prepared to render any opinion in that regard today?
125
A: That is correct.
126
Q: What materials have you been provided to review concerning Mr. Thompson?
127
A: I have seen what I believe to be his Department of Corrections file from it's [sic] inception.
128
Q: And when you say his Department of Corrections file, do you mean his medical/mental health file?
129
A: It's his medical file, as well as his general file, including disciplinary reports, including adjustment reports.
130
Q: Have you reviewed any other records?
131
A: I have seen the depositions of three of the employees of Prison Health Services. I have seen the reports of the mental health facility that Mr. Thompson spent thirty days in prior to his original trial. I have seen the testimony of the mental health professions at his trial, Dr. Kogley.
132
Q: Cobley?
133
A: Cobley. I have seen the materials from Dr. Blaire.
134
Q: How about Dr. Watson?
135
A: Watson. I have seen Dr. Watson.
136
Q: When you say materials from Dr. Blaire, does that simply mean her testimony, or have you seen other —
137
A: I have seen the raw data, or parts of raw data. Actually, the entire raw data are not in the materials that were provided to me. And then I have seen Dr. Blau's report and Dr. Blau's raw data.
138
Q: And you just received Dr. Blau's —
139
A: Correct.
140
(DCTR 91).
141
Dr. Crown also indicated that he had reviewed Thompson's medication portfolio from his records at Riverbend Maximum Security Institution. When asked, Dr. Crown stated that he had not read, and not been asked to read, the trial transcript, but that he had asked Mr. Kissinger "to provide me with whatever materials he wished." (DCTR 91). Dr. Crown acknowledged that he had not given Kissinger a specified list of items he wished to review, but was "relying on whatever it is Mr. Kissinger" gave him.
142
Dr. Crown also stated that he met with Thompson on June 12, 1998, at Riverbend for about two and one half hours. Dr. Crown indicated that, at that time, he took a brief history, a standard basic demographic clinical interview, and administered a group of tests. 8 Dr. Crown testified that the only written record of his evaluation was his July 20 affidavit; that he would only prepare a written report if Kissinger asked. He also indicated that Kissinger had not at that time asked him to do so.
143
Dr. Crown opined that Thompson suffers from an auditory processing deficit. He further indicated that Thompson has some sort of organic brain damage, but that he did not pinpoint it to a specific portion of the brain. Dr. Crown stated that he did not intend to make any further evaluation of Thompson's organic brain damage unless asked. Dr. Crown indicated that he knew that Thompson had suffered traumatic head injuries. He testified that he had not seen Thompson's military medical records. Dr. Crown testified that the organicity was secondary to other mental impairments, namely schizo-affective disorder, bipolar subtype, with organic components. Dr. Crown stated that he reached this conclusion from looking at the reports of the treating physician, the psychiatrists, and psychiatric nurses, and nurse practitioners that have had the opportunity to monitor him over the last fourteen years, that I have concluded that he's best treated with anti-psychotic medication, that schizo-affective disorder is a disorder that affects thoughts related to reality and results in distortions of reality.
144
It also results in distortions of affect, meaning, the way that behavior is expressed. And I believe that his affect has been variable from rather depressed to highly agitated and aggressive. And so, putting that together, I believe he does have a schizo-affective disorder of the bipolar type, meaning, there is a considerable spread in his emotionalities, that there is a distortion in his perception of reality, that he tends to fragment at times, and tends to be directed by hallucinatory activity.
145
... [I]n Mr. Thompson's case, there are notations throughout his medical records that he has auditory hallucinations. He also related to me that at the time I saw him he was auditory hallucination free, but that he frequently got command hallucinations that there were voices coming from within him that were telling him what to do, which is what happens in an auditory hallucination state.
146
(DCTR 91). The following colloquy between counsel for Respondent and Dr. Crown, then took place:
147
Q: Based on your review of Mr. Thompson's records or the records that were provided to you, what do you conclude, or when did you conclude, was the onset of these auditory hallucinations?
148
A: I have no real pinpoint. For that, most typically, people with schizo-affective disorder tends to develop in late adolescence to early adulthood.
149
Q: From the materials you have reviewed, do you see anything in those materials that show that this is when it occurred in Mr. Thompson?
150
A: I believe he began to have a more difficult time with life in his — in the last stages of his military service. So I believe that the beginnings of it would be tracked to that. I haven't seen the records, but I believe that that's probably when I would anticipate that it would have begun.
151
(Emphases added.)
152
Counsel for Respondent also asked Dr. Crown whether he had talked with any of Thompson's family members to gain insight into his background while growing up. Dr. Crown stated that he had not, nor had he spoken with school teachers, counselors, or ministers. Dr. Crown also indicated that he had not spoken with Joanne McNamara, or Arlene Cajulao.
Next, counsel asked Dr. Crown:
153
Q: And if I understood your answers earlier correctly, you do not have an opinion at this time as to the exact nature of this brain damage for which you have seen some indicia?
154
. . . .
155
A: I don't specifically know the causation. I believe it may be secondary to his thought disorder since we know that in people who do have chronic thought disorders that the thought disorder itself may either be caused by or may result in some damage to the brain. For example, schizophrenics very often have enlarged ventricles of the brain.
156
Q: I notice that you did not attempt to administer an MMPI to Mr. Thompson. The reason for that, sir?
157
A: In the regular course of my neuropsychological evaluations, I tend not to administer a personality questionnaire. I leave that for, or the assessment of personality, specifically to a clinical psychologist or a psychiatrist.
158
Q: In this case, this would be something that you would defer basically to Dr. Sultan?
159
A: I would defer in terms of administering or interpreting of the personality testing. Yes.
160
Q: Would an MMPI-2 be useful in terms of assessing organic brain damage?
161
A: No, not necessarily. No.
162
. . . .
163
A: No. If I thought it was necessary to form a neuropsychological opinion, I would have given it.
164
Q: And in this case you didn't?
165
A: That is correct.
166
Q: And part of that is because you are not interested in determining whether or not he can distinguish between right and wrong?
167
A: I was asked to assess his neuropsychological status, and that to [sic] extent, I wasn't asked to consider issues of determining right or wrong, sanity, and I wasn't asked specifically to consider personality. But when I looked at him, it was clear to me that Mr. Thompson also had personality problems. He had a thought disturbance.
168
I assumed that someone else would be looking at him in terms of those thought disturbances, the personality difficulties, and I just recently learned that Dr. Sultan had looked at him.
169
(Emphasis added.) Dr. Crown stated that he had worked with Dr. Sultan on several capital cases.
Counsel for Respondent recapped:
170
Q: My understanding then is you were solely asked to talk about Mr. Thompson's current competency. That's what you have been asked to render an opinion about — or competency at the time you saw him?
171
A: Competency and mental status.
172
Q: In terms of competency, did you evaluate him as being competent?
173
A: At the time that I saw him, it's my opinion he was competent.
174
(DCTR 91).
175
In response to Thompson's motion for costs, Respondent reiterated that in his October 30, 1998, initial witness list, Thompson stated that he intended to call two expert witnesses, Dr. Barry Crown and Dr. Faye Sultan. Respondent stated that with regard to the substance of the expert testimony, Petitioner indicated that each would testify in pertinent part that Petitioner's mental condition substantially impaired his ability to distinguish between right and wrong and/or to conform his conduct to the requirements of law. Respondent contended that on December 24, 1998, Respondent notified Petitioner that he intended to call Dr. Theodore Blau as an expert in the area of forensic neuropsychology to rebut the testimony of Drs. Crown and Sultan. Respondent further claimed that, pursuant to the November 2, 1998 order of the magistrate judge, Respondent conducted the depositions of Dr. Crown and Dr. Sultan on July 20, 1999, and July 22, 1999, respectively. 9 Respondent further contended that, prior to those depositions, Respondent received no information from Petitioner other than that contained in the initial witness list, nor had Respondent been provided with any information concerning the data or other information considered by the witnesses in forming their opinions, as required by Fed.R.Civ.P. 26(a)(2)(B). Finally, Respondent asserted that, although it was clear from Respondent's notice of expert witnesses that Dr. Blau would be called to rebut the testimony of Petitioner's experts, Petitioner chose to schedule the deposition of Dr. Blau on July 15, 1999, before the previously-scheduled depositions of Drs. Crown and Sultan.
176
c. The District Court's Ruling on the Rule 56 Motion
177
On February 17, 2000, the district court issued a Memorandum granting Respondent's summary judgment motion as to all claims and dismissing his § 2254 motion. The district court stated in relevant part:
178
Petitioner claims experts recently obtained by him have revealed that he was incompetent under Tennessee law at the time of the crime and throughout his court proceedings. Petitioner has failed to state the name of the expert and failed to provide the proof of these revelations. The Court has read the deposition of Dr. Crown, (Court File No. 119, Exhibit 1) but was unable to located [sic] his opinion that Thompson was incompetent at the time of the crime and throughout his court proceedings. As a matter of fact, Dr. Crown stated he was not asked to render any determination about whether or not Thompson was competent during his state jury trial. (Court File No. 91, Exhibit 1, pp. 7-9). Dr. Crown stated he was only asked to make a competency determination at the time he met Mr. Thompson on June 12, 1998. After meeting with Thompson for two and a half to three hours, which consisted of taking a brief history for twenty-five to thirty minutes and the remainder of the time was spent administering tests, it was his opinion that Thompson was competent on June 12, 1998. (Court File No. 91, Exhibit 1, p. 7-47).
179
Dr. Crown did testify Thompson had a significant auditory processing deficit which means he is easily distracted by external auditory stimuli. (Court File No. 91, Exhibit 1, p. 20). He further testified that some of the test results led him to conclude that there was some sort of organic brain damage. However, he is not able to make any assessment of the severity of the damage nor does he intend to make such an evaluation. (Court File No. 91, Exhibit 1, pp. 24-28). Dr. Crown believes this organicity is secondary to a thought disorder which he refers to as a schizo-affective disorder-bipolar subtype with organic components. Dr. Crown bases his conclusion on the reports of the people who have treated Thompson for the last fourteen years. (Court File 91, Exhibit 1, p. 35).
180
Respondent hired Dr. Blau to rebut Dr. Crown's testimony. Portions of Dr. Blau's testimony have been filed with the Court. Dr. Blau testified he did not observe or see any indications of organic brain damage on the test he administered. Dr. Blau found Thompson's responses during testing were rational and appropriate. (Court File No. 89, Attachment C, pp. 31, 47-48).
181
Thompson has failed to provide any significant probative evidence which would make it necessary for this Court to resolve a factual dispute.... Thompson has not provided this Court with anything other than factually unsupported allegations that he was incompetent at the time he committed the crime and at the time of his jury trial. Nor has Thompson provided this Court with any significant probative evidence that Thompson was suffering from a significant mental disease that should have been presented to the jury during the punishment phase as mitigation evidence.
182
Petitioner had two different psychological evaluations and both resulted in findings of competency at the time of the crime and at the time of trial. Additionally, the record shows that trial counsel did reasonably investigate Thompson's background and mental health history.
183
Memorandum dated February 17, 2000 at 53-55 (emphases added) (DCTR 124).
184
d. The Motion to Alter or Amend
185
On March 2, 2000, Petitioner filed a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59. By way of introduction, the motion states:
186
As an initial point, undersigned counsel apologizes for any lack of clarity which may exist in Petitioner's pleadings. 1 Though counsel disagrees with the Court's criticism of those pleadings, the fact that the Court's Decision is contrary to controlling authority and sound legal reasoning provides empirical evidence that undersigned counsel has somehow failed to bring that authority and reasoning to the Court's attention. Mr. Thompson should not suffer because of counsel's shortcomings. Furthermore, this Court should not face almost certain reversal simply because counsel phrased otherwise irrefutable arguments in such a way that the Court remained unaware of the proper resolution of Respondent's Motion for Summary Judgment. In an effort to fulfill his duty to both his client and the Court, counsel now attempts to phrase those arguments in such a way that the Court is fully aware of their nature and asks this Court to alter or amend the judgment entered herein to fully address such arguments and thereafter deny Respondent's Motion for Summary Judgement. 2
1
The Court's Decision contains several negative comments regarding perceived deficiencies in undersigned counsel's pleadings.
2
Though Mr. Thompson does not waive or concede any of the issues and/or arguments raised by the pleadings which were not expressly or previously waived or conceded, and the same are reasserted herein, Petitioner's Motion to Alter or Amend centers on two primary issues: (1) whether the procedural bar which was, or would be, applied to claims arising from facts not heretofore presented to the state courts of Tennessee is independent of federal law; and (2) whether the State of Tennessee's interference with Mr. Thompson's attempts to present claims arising from his unquestionably severe mental illness either deprived Mr. Thompson of a full and fair opportunity to present the facts supporting those claims to the state courts of Tennessee or provided "cause" for not presenting the facts supporting those claims to the state courts of Tennessee.
187
(DCTR 126, at 1-2). Thompson then presented argument on two issues, namely, that "The Tennessee Courts Will Not Apply the Tennessee State Post-Conviction Statute of Limitations to Petitioner's `Later-arising' Claims in a Manner that is Independent of Federal Law," and that "The Tennessee Court's Refusal To Afford Petitioner Mental Health Services During State Post-conviction Proceedings Constituted a State Obstacle to the Presentation of Facts And/Or Claims Arising From Mr. Thompson's Mental Illness." In conclusion, Thompson reiterated that although the motion to alter or amend did not specifically address every error in the district court's decision, which he specifically reasserted, "[t]he errors addressed herein, however, go to the very integrity of the judicial process." (DCTR 126 at 10). The motion was signed by Stephen M. Kissinger.
e. The District Court's Ruling on the Motion to Amend
188
On March 31, 2000, the district court denied the motion, holding that Thompson had failed to present any additional information which justified reconsideration and an order altering or amending judgment. (DCTR 128).
189
On April 21, 2000, Thompson filed his notice of appeal to this Court.
190
f. The Rule 60(b) Motion
191
On March 2, 2001, Thompson, through undersigned appellate habeas counsel, Dana C. Hansen, also of the Federal Defenders Office of Eastern Tennessee, filed a motion under Fed.R.Civ.P. 60(b). 10 In that motion, Thompson "respectfully request[ed] the Court to relieve Mr. Thompson from the final order entered on February 17, 2000, for the purpose of entering an order to supplement the record with Respondent's deposition of Dr. Faye E. Sultan, Ph.D, and the accompanying report of Dr. Sultan." (DCTR 133, at 1). Thompson claimed that the petition was timely. "The order entered in Mr. Thompson's case granting summary dismissal of his amended petition for writ of habeas corpus was entered on February 17, 2000. Therefore this motion, being filed within one year of the order, is timely." ( Id. )
192
Thompson explained "Dr. Sultan's Involvement in this Case:"
193
Earlier in Mr. Thompson's District Court proceedings, Respondent took the deposition of Dr. Sultan. The district court record presently contains a summary of her conclusions in an expert disclosures pleading (R. 19) and an affidavit detailing her opinion regarding Mr. Thompson's mental health status in February 1999 (R. 34). Having examined Mr. Thompson and viewed his social and medical history, Dr. Sultan executed a report in addition to her testimony at Respondent's deposition. (Attachments A & B).
194
Although this Court denied Mr. Thompson's mental health related claims partially on procedural grounds, Dr. Sultan's deposition and report are important to the merits of the claims. With regards to the merits of Mr. Thompson's mental health related claims, he maintains that he made a sufficient showing of a genuine issue of material fact to overcome Respondent's summary judgment motion notwithstanding Dr. Sultan's opinions. However, Dr. Sultan's opinions certainly are directly relevant to the mental health related claims and should be considered by the Court. Counsel for Mr. Thompson engaged in [sic] Dr. Sultan's services for the sole purpose of offering her opinions to support his constitutional claims. The failure of counsel to ensure that Dr. Sultan's opinions were filed in the record is a result of excusable neglect.
195
( Id. at 2) (emphasis added).
196
In support of his claim that Dr. Sultan's deposition and report were not included in the record because of mistake, inadvertence, surprise, or excusable neglect, Thompson stated the following:
197
District Court counsel for Mr. Thompson, Stephen M. Kissinger, was under the mistaken belief that the evidence was in the record. 1 To the extent that counsel should have nonetheless known that Respondent had not placed Dr. Sultan's deposition and report in the record, counsel's failure to ascertain that fact and file the same himself was the result of excusable neglect. During the time period in question, counsel's office was in a state of turmoil and his caseload was excessively burdensome.
198
As described fully in the attached affidavit of counsel, Stephen M. Kissinger, this state of disorder contributed to counsel's excusably negligent failure to realize that Dr. Sultan's deposition and report were not filed in the record. (Attachment C).
1
Respondent's deposition of Dr. Crown and the accompanying report were placed in the record by Respondent. (R. 91). Because Respondent had moved for costs incurred in, inter alia, hiring its own mental health expert, Dr. Blau, on the grounds that Dr. Blau's services were unnecessary because Petitioner had no expert opinions to support the mental health related allegations contained in the petition, counsel for Mr. Thompson was under the mistaken belief that Respondent had placed his deposition of Dr. Sultan and the report which Dr. Sultan had supplied to Respondent in the record.
199
( Id. at 3) (emphasis added). Thompson therefore asked the Court to order the record supplemented with the deposition and report of Dr. Faye E. Sultan, PhD, and that the district court revisit its previous summary denial of Thompson's petition. ( Id. )
200
(i). Dr. Sultan's Report
201
Attached to the motion are three exhibits. The first is a psychological report prepared by Dr. Sultan, dated July 22, 1999. Dr. Sultan states the referral questions as follows:
202
1. Mr. Thompson's current psychological status[.]
203
2. Mr. Thompson's likely psychological status and mental state before and surrounding the time of the 1985 offense.
204
3. Social, environmental, psychological, and economic factors in the life of Mr. Thompson which might have [to] be considered to be mitigating in nature at the time of his trial.
205
(DCTR 133, Attachment A; emphasis added).
206
Dr. Sultan's report indicated that she began psychological evaluation of Thompson on August 20, 1998. At the first session, which lasted four hours, Dr. Sultan conducted a clinical interview and administered the MMPI-2. Dr. Sultan also noted that she did not assess Thompson's levels of current intellectual and neuropsychological functioning because they had recently been assessed by Dr. Crown.
207
Thereafter, Dr. Sultan initiated "a very extensive review of legal, military, medical, prison and psychiatric/psychological records." Regarding "Relevant Psychological/Psychiatric Data Contained in Records," Dr. Sultan stated:
208
The [sic] is substantial documentation throughout the Tennessee Department of Corrections records that Mr. Greg Thompson has suffered from significant mental illness since at least the time of his incarceration in 1985. He has been treated almost continuously with some combination of major tranquilizer and/or anti-depressant and/or anti-anxiety medications. He has received a variety of diagnostic labels including Psychosis, Psychosis Not Otherwise Specified, Paranoid Schizophrenia, Mania, Mixed Substance Abuse, Schizophrenia, BiPolar Affective Disorder, Schizoaffective Disorder, Malingering, and Adult Antisocial Behavior. This is clearly indicative of the Tennessee DOC mental health staff's view that Mr. Thompson has experienced major mental illness throughout at least most of his period of incarceration. Further, there is extensive documentation contained in these records of many episodes of bizarre aggressive and/or self destructive behavior.
209
( Id. )
210
Next, Dr. Sultan stated that she interviewed five individuals "who provided significant supplemental information about the life circumstances and past/present psychological functioning of Mr. Gregory Thompson." Dr. Sultan interviewed Ms. Maybelle Lamar, Thompson's maternal grandmother. Dr. Sultan reported that Lamar assumed complete responsibility for Thompson and his two older siblings after Thompson's mother was killed when Thompson was five years old. Dr. Sultan reported Lamar's description of Thompson as follows:
211
Ms. Lamar described Mr. Thompson as displaying significantly "different" behavior when he returned to visit her following his discharge from the U.S. Navy. "Greg didn't act the same". Unlike the `eager to please', passive, sometimes funny gentle boy who she had reared, Mr. Thompson was "angry", "sometimes sad". "I don't think he wanted me to know what was going on with him. He mostly just stayed away from me." Ms. Lamar reported that she noticed Mr. Thompson sometimes "staring off into space" or "talking to himself". She would ask him about these behavior. [sic] "He'd deny it. He acted like he didn't know what I was talking about." Ms. Lamar recalls being quite concerned about her grandson's mental state during this time. She did not recall ever being asked questions at any time before or during Mr. Thompson's trial.
212
(DCTR 133 Attachment A).
213
Dr. Sultan also interviewed Ms. Nora Jean Hall Wharton, Thompson's older sister. Dr. Sultan reported:
214
Ms. Wharton described Mr. Greg Thompson as a highly sensitive, passive, timid, emotionally vulnerable child. She described a childhood of great hardship. According to her report, their grandmother, Ms. Maybelle Lamar was verbally abusive, neglectful of the children's basic daily needs, highly critical, and unable to care properly for the children. Ms. Wharton described many instances of such abuse and neglect. She described the period following their mother's death as particularly chaotic and neglectful, recalling that often there was no food in the home and that the children would take money from under their grandmother's mattress to go and buy food. In the period following their mother's death, Ms. Wharton reported that her grandmother was continuously drunk and unable to care for her grandchildren. According to Ms. Wharton, Greg Thompson frequently witnessed his sister Nora being beaten by their grandmother.
215
Ms. Wharton further recalled that she and her younger brother had witnessed the brutal beating and rape of their mother by their biological father. She recalls Greg standing in the scene screaming and sobbing uncontrollably.
216
Of particular relevance is Ms. Wharton's recollections about Mr. Thompson repeatedly banging his head against the wall of their home on many occasions during their early childhood. This behavior frequently followed their grandmother yelling at Greg "You have the Devil in you." Mr. Thompson would tell his sister that he was attempting to "knock the Devil out" of his head in this way. Ms. Wharton recalls believing that this behavior was quite odd.
217
Ms. Wharton reported that Greg would frequently cry at school during the early school years, and as a result, was often the victim of intense mockery from his classmates. Because Ms. Wharton was in the same classroom as her brother she observed these behaviors and often intervened on her brother's behalf. She described Mr. Thompson's response to this abuse as quite passive.
218
Following his discharge from military service, Ms. Wharton described Mr. Thompson's behavior as significantly different than his prior conduct and attitude. She reported several episodes of bizarre behavior which included a sudden intense emotional reaction without obvious external provocation. Mr. Thompson would become extremely angry, would cry and scream for a lengthy period of time, would appear as if he might or actually become physically violent or aggressive, and then would suddenly retreat. Ms. Thompson reported this behavior and her concerns about it to her grandmother. Ms. Lamar suggested that Ms. Wharton take her brother to the psychiatric unit of the local hospital for treatment. Ms. Wharton did not attempt to get any treatment for Mr. Thompson and reports feeling quite guilty about this.
219
Nora Jean Wharton described her own struggles with mental illness throughout the past fifteen years. She has received counseling to assist her in coping with the effects of her abusive childhood and she has been treated with a combination of a major tranquilizer (Stellazine) and anti-depressant medications. She reported her younger half-sister Kim has also suffered from significant mental illness.
220
(DCTR 133 Attachment A).
221
Dr. Sultan also relayed the report of Michael Chavis, an investigator for the Federal Defenders Office of Eastern Tennessee, from his interview of Ms. Cajulao in summer of 1998.
222
Mr. Chavis reported that Ms. Cajulao described Mr. Thompson as displaying increasingly bizarre behavior during the latter part of their relationship. Similar to descriptions proved [sic] by Ms. Nora Wharton, Ms. Cajulao reported several episodes of "paranoid" and aggressive behavior which had no apparent external antecedent. She reported that Mr. Thompson sometimes thought that people were "after" him. He would close all the curtains in the house because he did not want the person who was "looking" for him to see him through the curtains. She remembers being quite concerned about Mr. Thompson's mental state.
223
Dr. Sultan next reported her "Summary and Conclusions," which we quote here in full:
224
Mr. Gregory Thompson has experienced symptoms of a major mental illness throughout his adult life. Indeed, there is information available which suggests that Mr. Thompson was displaying significant signs of mental illness from the time he was a small child. Self-injurious behavior is reported as early as six years old. There is extensive documentation contained within the records reviewed for this evaluation that Mr. Thompson has experienced a thought disorder and/or an affective disorder of some type for many years.
225
It is my opinion that Mr. Gregory Thompson is most appropriately diagnosed, according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, as having Schizoaffective Disorder, Bipolar Type. As is typical of this illness, symptoms became apparent in early adulthood. Mr. Thompson was suffering serious mental illness at the time of the 1985 offense for which he has been convicted and sentenced. This mental illness would have substantially impaired Mr. Thompson's ability to conform his conduct to the requirements of the law.
226
Further, Mr. Thompson was the victim of severe childhood emotional abuse and physical neglect. His family background is best described as highly neglectful and economically deprived. Mr. Thompson repeatedly witnessed episodes of violence during his childhood in which one family member assaulted or brutalized another. There are significant aspects of Mr. Thompson's social history that have been recognized as mitigating in other capital cases.
227
It is important to note that all of the information related to Mr. Thompson's early mental illness and social history was available at the time of his 1985 trial.
228
Id. (emphases added). Again, this report is dated July 22, 1999. 11
229
(ii.) Dr. Sultan's Deposition Testimony
230
The second attachment is Dr. Sultan's deposition. Pruden, counsel for Respondent, took Dr. Sultan's deposition on July 22, 1999. Appearing on behalf of Thompson was Stephen Kissinger. Michael Chavis was also present.
231
Dr. Sultan told Respondent that she was first contacted by Chavis on behalf of Kissinger in July or August of 1998. Dr. Sultan testified that
232
A. Mr. Chavis asked me about my availability and asked if I would be willing to perform a psychological evaluation to assess what Mr. Thompson's psychological condition might have been like at the time of the offense in 1985, to assess whether it was possible to make such an appraisal, to see whether there were factors in his personal background that might have been investigated at the time of trial that would have had bearing on his psychological status at the time of the offense, and Mr. Chavis also suggested that they wanted to know something about Mr. Thompson's current psychological state, his level of functioning at the present time.
233
Q: Were you also asked if you would be able to determine his competency at the time of his criminal trial in 1985?
234
A: That was not an initial question, no.
235
. . . .
236
Q: Did Mr. Chavis express to you any opinion as to what he thought Mr. Thompson's psychological condition was, his mental status was, at the time of the offense?
237
A: The only opinion that he expressed to me was that he thought that he was not in good shape, that he had deteriorated. He didn't label it in any particular way. Said he didn't think that he was doing as well.
238
(Emphasis added.) (DCTR 133 Attachment B).
239
Dr. Sultan also stated that she had consulted with Dr. Crown. She stated that Chavis told her Dr. Crown would be conducting the neuropsychological and intellectual assessment. Dr. Sultan testified that she needed to check Dr. Crown's test results so that she could include them in her opinion, but that she did not provide Dr. Crown with any of her diagnostic information.
240
When asked whether she had prepared a social history on Thompson, Dr. Sultan indicated that she had not yet but that it had been provided as part of the prison records. Dr. Sultan testified that she had spoken with Thompson's grandmother and sister, and had attempted to speak with his brother Curtis. She further stated that, although she had not spoken with any of Thompson's school teachers, school administrators, or neighbors, she had reviewed testimony from them. Dr. Sultan was not sure whether she had reviewed the actual transcript from Thompson's court martial, but stated that, at a minimum, she had reviewed the testimony of at least some of the witnesses. She had not contacted any of Thompson's supervisors in the military.
241
Although Dr. Sultan also had not spoken with Cajulao, she interviewed Chavis, who spent several days with Cajulao in 1998. Dr. Sultan stated that she found Cajulao's observations "beneficial" in reaching her diagnosis. Specifically,
242
A: Ms. Cajulao described to Mr. Chavis that during the course of the four-year relationship she had with Mr. Thompson, Mr. Thompson became increasingly bizarre in behavior that he exhibited. There were a number of occasions in which there were incidents that took place in the military that he described to her as him having been attacked. The facts of the situation may in fact not be that, but that was his description to her, that he was being picked on, that he was being bullied, that he was being attacked.
243
He became depressed, according to her, over time and increasingly paranoid. At some point she would come home from work, and he would be in their home with the curtains drawn, standing by himself in the dark telling her that people were after him and that he didn't want people to be able to look at him through the windows. She remembers being quite concerned about his behavior.
244
There are a couple of situations that she described to Mr. Chavis in which, with no external provocation that she could identify, Mr. Thompson became quite violent with her, and she saw those behaviors as very unusual for him and reported to Mr. Chavis that Mr. Thompson seemed unaware of what had provoked it and didn't even seem after the fact to remember what had taken place, would simply, after a period of time, calm himself down and return to normal behavior. I found all of that quite significant.
245
( Id. at 55-56).
246
Shortly thereafter, Pruden called for a break, and took that opportunity to take a look at Dr. Sultan's report. Upon return, Pruden asked Dr. Sultan:
247
Q: What indicates to you or what indicia are there for you that suggest Mr. Thompson was displaying significant signs of mental illness from the time he was a small child? How do you arrive at that conclusion?
248
A: During my interview with Mr. Thompson's sister — and let me say all of her names — Ms. Nora Jean Hall Wharton, Ms. Wharton spontaneously began to talk to me about Mr. Thompson's behavior in the time period immediately following their mother's death.
249
By the time of the first grade, Mr. Thompson, when he was being yelled at by his grandmother, she was reportedly verbally abusive in the following fashion: She would yell at him — you have the devil in you, boy. She would then observe Mr. Thompson standing or sitting beside a wall repeatedly banging his head into the wall. She, in her role as protector of him, would ask him what was going on, and he would tell her he was trying to knock the devil out of his head. She recalls at the time, although she was quite young herself, being worried about his behavior and thinking it as was very odd.
250
One of things that we know about people who develop thought disorders is that frequently in childhood you'll see one or more peculiarities in behavior. This would certainly fit in that category. She recalls other instances.
251
Q: Sort of self-punishment or a self-exorcism type thing?
252
A: A self-injurious behavior is what we would call it I think. Mr. Thompson, when he was Greg, in the first and second and third grade had rather frequent crying episodes in classrooms that Ms. Wharton recalls also as very unusual in the context of his schoolroom situation. She describes him as being the subject of torment on the part of the students because he behaved in an odd fashion. Sometimes he would simply begin to cry and wail and scream and apparently made a sound like a fire engine when he was sobbing and developed the nickname Fire Engine. That's reported in the trial transcript. She told me much more detail about actually the extent of those kind of emotional outbursts.
253
At home it was rather common for Mr. Thompson to begin to cry and scream during times when Ms. Wharton herself was being beaten by their grandmother. Ms. Wharton was the victim of physical abuse on the part of the grandmother. Mr. Thompson observed much of this since they were together virtually all of the time, and Nora Wharton was not really permitted much interaction outside of their home.
254
( Id. at 60).
Dr. Sultan further testified that:
255
She [Ms. Wharton] recalled another episode during which her biological father was brutally beating and raping their mother on the floor in front of them when the children were quite small, perhaps Mr. Thompson was himself three or four. She was maybe four or five. Mr. Thompson's reaction to that was to stand and scream and scream and scream and scream during the entire episode.
256
Any of the — taking the self-injury aside, setting that aside, any one of those behaviors in isolation might not be particularly significant. Putting them together, we begin to see a pattern of intense emotional reactivity.
257
Q: So basically, if I understand it, it's the self-injurious behavior and the crying and the way you see him reacting to these physical abuses of others?
258
A: Yes.
259
Q: And that is indicative of a sign of mental illness to you? I just want to make sure that I'm understanding what you're telling me. If I'm not, please explain it to me.
260
A: I think I understand your question. It is an early indicator of a problem that's likely to develop. With the benefit of hindsight, it takes on the significance of a precursor, because then we see the escalating pattern of dysfunction and abnormality.
261
Q: Sort of a causal relationship is what you're seeing developing?
262
A: I'm not sure what causes what. There are often early indices of later mental illnesses that you don't know exactly what it's going to look like later, but you realize in looking at the child that there's a high likelihood that something is not going to be right when that person achieves maturity.
263
Q: Because of the environment, for example, in which he's growing up?
264
A: Perhaps. Perhaps because of the genetics involved. Perhaps because of the situations he's exposed to, as you said, the environment. Perhaps because of whatever factors there are. Perhaps nutrition plays a role in this. These children were without food for significant periods of time as well. I don't know all of the reasons, but what I know is that if you look back in the childhood of this man, the beginnings of mental illness are apparent.
265
Q: Besides Ms. Wharton's report of lack of food, have you seen any evidence that the children were taken away because of malnutrition?
266
A: No. Ms. Wharton did tell me, however, that there was a neighbor who had planned to make a report to Social Services, so perhaps I'll have the opportunity to interview that neighbor as well.
267
Q: ... You don't know to what degree the children were malnourished then?
268
A: No. I don't know. I do know that — and this is confirmed by the grandmother — in the six weeks approximately following their mother's death, the children were left alone virtually all of the time because Ms. Lamar was drunk and in bed, and so we have a five, a six, and a seven-year-old child in a house with no food. They would occasionally steal money from underneath her mattress while she was sleeping, and one of them would go to the store to try to find some food. Occasionally a neighbor would provide them with a meal or a can of food. I don't know whether they were malnourished over an extended period of time. I do know that there is, from Ms. Wharton's perspective, rather serious psychological damage from that time.
269
Q: You have no medical documentation showing any malnourished condition or that it's caused some problem with his brain, do you?
270
A: I don't. These children were never taken to the doctor, so there wouldn't be any medical documentation. There's probably documentation in the school system. According to Ms. Wharton, Ms. Lamar was so drunk at the beginning of the school year following their mother's death that she forgot to sign the children up for lunches at school. They didn't have anything to eat during the day, so they forged her signature on a permission slip so that they could eat. They were discovered and punished by the school superintendent people, and a form was sent home to Ms. Lamar. She then signed it, and the children were able to eat lunch after that point. A couple weeks passed for all of that to get straightened out.
271
Ms. Wharton has undergone a lot of therapy in recent years and says that she's now able to describe situations that she wasn't very comfortable acknowledging to herself, these being one of them.
272
Q: Your diagnosis of Mr. Thompson is schizoaffective disorder, comma, bipolar type. What leads you to that diagnosis from what you've reviewed and your testing results? A: What leads me to the diagnosis is that there is a long history, perhaps at this point almost a 20-year history, of simultaneous thought disorder on the part of Mr. Thompson documented throughout all the records, and affective disorder, emotional disorder, being unable to regulate his emotions, sometimes falling into the pits of despair and becoming suicidal, sometimes becoming highly agitated and manic and having too much energy, too much exuberance, and grandiose thinking. The thought disorder is manifested in persecutory ideas, delusions of grandeur — lots of different kinds of delusions actually — auditory hallucinations that he sometimes admits to, sometimes suspected by the doctors who are doing the examination.
273
The psychological testing early on in Mr. Thompson's incarceration confirm the presence of a psychotic process. There was an MMPI administered to him by a prison psychologist in 1990 that is described as valid and indicative of psychotic process, and throughout the prison record he receives a variety of diagnoses that take into account both thought disorder and affective illness.
274
The very best diagnosis to describe all of the complex of symptoms that I just talked to you about is schizoaffective disorder, bipolar type.
275
Q: You note in your report Mr. Thompson was observed having a significant change in behavior after he was discharged from the Navy. What significance do you attach to that fact?
276
A: Well, it's interesting, because the state Court of Appeals actually notes this, that prior to his entry into the military Mr. Thompson is described almost uniformly — well, in fact, uniformly according to their opinion — as passive, as compliant, as eager to please, as gentle, as timid, as eager to run from attacks.
277
At some point — and we don't know, because I haven't seen any psychiatric records from the military at this point; I don't know if there are any — we don't know whether or not the change in Mr. Thompson is perceived as other than behavioral disruption, but, in fact, his description of that time is that he began to notice that people were trying to hurt him all the time, that officers and other people of his rank and slightly above his rank attempted to provoke him, that they sometimes physically assaulted him, that he thought he was being followed a lot, and that he sometimes struck out in what he thought was defense and then later found out from other people who he knew and trusted that there wasn't anything to defend against or that there might not have been anything to defend against.
278
Q: This is what he related to you during your interview last August?
279
A: Right. The people who saw him after the military each were struck by how very different he seemed. That was the word that kept being used, "different." Sometimes the people I was speaking to were not able to describe what different meant, but, for example, the grandmother said that he was different as in not right, that he wasn't himself. Ms. Wharton tells me that the grandmother was very well aware that he was in deep psychological distress, and, in fact, the grandmother suggested that he be taken to the psychiatric unit at Grady Hospital in Atlanta, I believe, for treatment. The grandmother observed him staring off into space for long periods of time. She observed him mumbling to himself. When she asked him what he was doing, he told her he had no idea what she was talking about. She said that was very different from the boy who left her to go into service.
280
The sister has even a better glimpse of him than that, because he actually went to live with her for a while, and she said he was bizarre. She described him as paranoid. She said that he would explode for no reason at all, that she was afraid of him for the very first time in her life, that they had always been terribly close, the sort of close where if there was only one piece of bread to eat they would share it, that they always looked out for one another, and that suddenly he was behaving in ways that she simply could not identify. She described three very serious episodes of aggression and emotional upset that she said are what led her to approach her grandmother about what to do for treatment for him.
281
( Id. at 62).
Pruden then asked:
282
Q: You state that the schizoaffective disorder, bipolar type, would substantially impair Mr. Thompson's ability to conform his conduct to the requirements of the law. How so?
283
A: There are points in time when Mr. Thompson is out of contact with reality. He is responding to situations that simply don't exist or that he perceives in extremely exaggerated or different form. A person is not able to conform one's conduct to the law if you are frankly delusional or hallucinating in some way. Mr. Thompson over the years has had both of those symptoms.
284
Q: So it's this delusional aspect of this disorder that is the main factor that would keep him from having the ability to conform his conduct to the requirements of law, if I understand you correctly?
285
A: Is it the main factor? Let me say that I think it's at least as potent a factor if not more as the other aspect of his mental illness, which is that he has emotional disregulation.
286
Q: Meaning?
287
A: Meaning Mr. Thompson often is not in control of his emotions. He has episodes of rage, of aggression, that he doesn't understand or relate to very well. He's told about them later. Sometimes he remembers them, sometimes he doesn't.
288
( Id. at 69).
289
The deposition concluded shortly thereafter.
290
(iii.) Kissinger's Affidavit
291
The third attachment is Kissinger's affidavit. In it, he explains in relevant part the following:
292
2. I was appointed to represent the Appellant, Gregory Thompson, on January 29, 1998, by the district court.
293
3. In approximately November of 1999, Ms. Leah Prewitt, the Federal Defender for the Eastern District of Tennessee, was forced by illness to cease activities on behalf of Federal Defender Services of Eastern Tennessee, Inc. Ms. Prewitt's duties were assumed by Ms. Elizabeth Ford, an Assistant Federal Defender in the office. Because Ms. Prewitt had not resigned, Federal Defender Services of Eastern Tennessee, Inc., was not able to hire a permanent replacement for Ms. Prewitt. Because Ms. Ford could not do both Ms. Prewitt's job and her own, Federal Defender Services of Eastern Tennessee, Inc. assigned a portion of Ms. Ford's caseload to affiant.
294
4. Affiant, however, already had an extremely heavy capital habeas corpus caseload, including, but not limited to, Mr. Thompson's case. In fact, his capital caseload was so heavy that Federal Defender Services of Eastern Tennessee, Inc. was forced to hire a second attorney to handle capital habeas corpus cases in July of 2000. When a portion of Ms. Ford's cases were assigned to affiant, that caseload became so great that affiant made errors which, however understandable, were nonetheless errors.
295
5. Despite the affiant's efforts, there were occasions when he made assumptions, such as the assumption he made regarding Respondent's filing of the report and deposition of Dr. Sultan, which were, however reasonable, incorrect. Counsel's failure to verify this assumption regarding these documents was neglect. Given the extraordinary pressure under which counsel was operating at that time, such neglect was excusable.
296
And further this affiant saith not.
297
( Id. Attachment C)(emphasis added). Kissinger's affidavit is dated March 1, 2001.
298
g. The District Court's Ruling on the Rule 60(b) Motion
299
On April 17, 2001, the district court denied Thompson's motion to reconsider the order denying his motion to alter or amend judgment pursuant to Fed.R.Civ.P. 60(b). First, the district court held that it had previously determined the Rule 60(b) motion was filed outside the one year time period. The district court noted that, according to its calculation the motion was required to be filed no later than February 16, 2001, to be considered timely. DCTR 139 (citing Fed.R.Civ.P. 6 and 60(b)). The district court then noted that:
300
Thompson now argues, without citing authority, that the calculation of the Rule 60(b) one-year limitation period should not begin until March 31, 2000, the date this Court denied his Rule 59 motion to alter or amend the judgment. Thompson's interpretation is contrary to the plain language of the rule. Thompson has not cited, nor has the Court found, any authority to support his position. The rule specifies that the motion should be made within a reasonable time, and in this case "not more than one year after the judgment, order, or proceeding was entered or taken." Rule 60(b) of the Federal Rules of Civil Procedure. In the case before this Court, the order dismissing the habeas petition was entered on February 17, 2000. [Court File No. 125].
301
( Id. at 3).
302
Next, the district court stated, and we quote in full, the following:
303
Moreover, the Court specifically noted in its memorandum opinion dismissing the habeas petition, that Thompson procedurally defaulted his claim that he was incompetent at the time of the crime and an the time of trial. [Court File No. 124, at 35]. Furthermore, when addressing Thompson's claim of ineffective assistance of counsel for failing to adequately investigate his mental health, the Court placed Thompson on notice that he failed to provide evidence of his allegations that he was incompetent at the time of the crime and trial. [Court File No. 124, at 53].
304
Petitioner claims experts recently obtained by him have revealed that he was incompetent under Tennessee law at the time of the crime and throughout his court proceedings. Petitioner has failed to state the name of the expert and failed to provide proof of these revelations. The Court has read the deposition of Dr. Crown, (Court File No. 119, Exhibit 1) but was unable to located [sic] his opinion that Thompson was incompetent at the time of the crime and throughout his court proceedings. As a matter of fact, Dr. Crown stated he was not asked to render any determination about whether or not Thompson was competent during his state trial.
305
Id. Thus, the filing of this request more than one year after Thompson was placed on notice that such information was not in the record is unreasonable and not excusable neglect.
306
( Id. at 3-4) (bold and underlining added).
2. Appeal to this Court
307
Thompson did not appeal from the order of the district court's denying his motion to alter or amend judgment. On appeal to this Court, Thompson articulated the issues for review as follows:
308
I. Whether the district court erred when it reviewed Mr. Thompson's claims under the "all reasonable jurists" standard denounced by the Supreme Court in ( Terry ) Williams v. Taylor to summarily deny Mr. Thompson's petition.
309
II. Whether the district court erred in denying Mr. Thompson's habeas petition without a hearing where Mr. Thompson did not fail to develop the factual basis of his claims in state court and whether the district court erred by making factual findings without affording Mr. Thompson the opportunity to present evidence with regards to those findings.
310
III. Whether Mr. Thompson received ineffective assistance of counsel in both the guilt and sentencing phases of his capital trial where counsel failed to investigate and present evidence regarding Mr. Thompson's mental illness and social history and failed to present evidence in support of a life sentence in violation of due process and the Sixth Amendment.
311
IV. Whether Mr. Thompson's Fifth, Sixth, Eight, and Fourteenth Amendment rights were violated when the state withheld exculpatory evidence which clearly supported Mr. Thompson's claim of serious mental illness and its debilitating effects and presented false evidence regarding Mr. Thompson's mental health during trial and post-conviction proceedings.
312
Curiously, appellate habeas counsel Dana Hansen did not appeal the denial of the Rule 60(b) motion, despite her apparent realization that Dr. Sultan's deposition testimony and report were never made part of the district court record.
III. Discussion
A. Procedural Posture
313
This case is governed by the Anterrorism and Effective Death Penalty Act of 1996, and we have already ruled on the initial habeas petition. See Thompson v. Bell, 315 F.3d 566 (6th Cir.2003), cert. denied, 540 U.S. 1051 , 124 S.Ct. 804 , 157 L.Ed.2d 701 (2003). However, as alluded to above, this matter is before us in a unique procedural posture, on our own motion, and prior to the issuance of the mandate. 12 Thus, we are not obliged to satisfy the requirements for the filing of a second or successive petition outlined in 28 U.S.C. § 2244 . See Workman v. Bell, 227 F.3d 331, 334 (6th Cir.2000) (en banc; equally divided court) (stating that "[a]s a general rule, when a mandate is recalled with respect to a petition for writ of habeas corpus, the petitioner first must satisfy the requirements for the filing of a second or successive petition as outlined in § 2244(b)").
314
However, even if this matter were before us as a second habeas petition, it would not matter, because the AEDPA does not bar a second or successive petition premised upon fraud upon the court. See Workman v. Bell, 245 F.3d 849, 852 (6th Cir.2001) ("In our equally divided opinion denying further relief for the petitioner ..., all of the judges agreed that the court can reconsider the petition if there was a fraud upon the court.") Cf. Calderon v. Thompson, 523 U.S. 538, 556-57 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998) (holding that the principles of the AEDPA apply in general to a recall of the mandate because a "State's interests in finality are compelling when a federal court of appeals issues a mandate denying federal habeas relief;" exempting claims of "fraud upon the court, calling into question the very legitimacy of the judgment"); Workman, 227 F.3d at 334 (stating that "[o]ne of the reasons which would justify recalling a mandate is the potential existence of a fraud upon the court"). Indeed, in Calderon , the Supreme Court stated that "a mandate may be recalled when it is necessary to address new circumstances before the court which are `grave' and `unforeseen' or which are, in other words, unforeseeable circumstances which implicate the justice of the judgment previously rendered." Workman, 227 F.3d at 334 n. 3 (citing Calderon, 523 U.S. at 549 , 118 S.Ct. 1489 ).
315
B. Ineffective Assistance of Trial Counsel at Mitigation
316
As the United States Supreme Court recognized in Strickland, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). "`[T]he right to counsel is the right to effective assistance of counsel,'" id. (quoting McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970)), and a defendant can be deprived of that right by counsel's failure to render " `adequate legal assistance.'" Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980)).
In Strickland , the Supreme Court held that
317
[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, 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.
318
Id. at 687 , 104 S.Ct. 2052 .
319
When the duty at issue is the duty to investigate, "counsel has a duty to make reasonable investigations, or to make a reasonable decision that makes particular investigations unnecessary." Id. at 690 , 104 S.Ct. 2052 ; see also id. at 688-89 , 104 S.Ct. 2052 . Reasonableness is determined by considering all of the circumstances. Id. at 688 , 104 S.Ct. 2052 . However "[p]revailing norms of practice as reflected in American Bar Association standards and the like," are guides to determining reasonableness. Id.; see also Hamblin v. Mitchell, 354 F.3d 482, 486-88 (6th Cir.2003) (same).
320
Also relevant to the question of whether the scope of counsel's investigation was reasonable is what counsel actually knew. "In assessing the reasonableness of an attorney's investigation,... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527, 2538 , 156 L.Ed.2d 471 (2003).
1. Deficient Performance
321
In our previous opinion we held that trial counsels' investigation was sufficient, principally because Thompson failed to present any evidence indicated that he suffered from symptoms of

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/786732. Public record. Not legal advice.