Johnson v. Bell

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Johnson v. Bell No. 01-5451 ELECTRONIC CITATION: 2003 FED App. 0323P (6th Cir.) File Name: 03a0323p.06 NORRIS, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 14-20), delivered a separate dissenting opinion. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ DONNIE E. JOHNSON, X ALAN E. NORRIS, Circuit Judge. Donnie E. Johnson, a Petitioner-Appellant, - prisoner on death row in Tennessee, appeals from the denial - - No. 01-5451 of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. v. - The sole issue on appeal concerns the performance of defense > counsel during the sentencing phase of the trial, which , petitioner contends amounted to constitutionally ineffective RICKY BELL, - Respondent-Appellee. - assistance. The district court declined to issue the writ on this ground because it concluded that counsel satisfied the Sixth N Amendment standards governing the right to effective Appeal from the United States District Court representation as defined by Strickland v. Washington, 466 for the Western District of Tennessee at Memphis. U.S. 668 (1984). We now affirm that judgment. No. 97-03052—Bernice B. Donald, District Judge. I. Argued: March 25, 2003 Because the scope of this appeal is limited, the underlying Decided and Filed: September 10, 2003 facts that gave rise to petitioner’s prosecution, while tragic, are not germane to our discussion. They are set forth at some Before: BOGGS, NORRIS, and CLAY, Circuit Judges. length in the opinion of the Supreme Court of Tennessee affirming petitioner’s conviction and sentence on direct _________________ appeal. State v. Johnson, 743 S.W.2d 154 (Tenn. 1987), cert. denied, 485 U.S. 994 (1988). Suffice it to say that petitioner COUNSEL brutally murdered his wife, Connie Johnson, on December 8, 1984, at the camping equipment center where he worked. ARGUED: C. Mark Pickrell, Nashville, Tennessee, for With the help of a co-worker, he then disposed of her body Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY and rather ineffectively set about covering up his crime. GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: C. Mark Pickrell, Nashville, Tennessee, for During his trial, petitioner was represented by retained Appellant. Alice B. Lustre, Paul G. Summers, Michael E. counsel Jeff Crow and Clark Washington. Washington’s Moore, OFFICE OF THE ATTORNEY GENERAL, background was primarily in civil practice. Crow testified in Nashville, Tennessee, for Appellee. state post-conviction proceedings that he had conducted five

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or six criminal trials before this one but could not remember only on the day of trial. According to Mrs. Johnson, she was whether the one murder trial he had second-chaired had been not asked about her son’s background or marriage even a death-penalty case. The sentencing phase of the trial took though he and his wife had lived next door to her since their place over October 3 and 4, 1985. The jury found both the marriage. She did not know of any problems between her son aggravating circumstances presented to it: 1) Johnson had and his wife. Rather, she believed him to be a hard worker previously been convicted of one or more felonies that who cared for his family and raised well-mannered children. involved the use of threat or violence; 2) the murder was Despite this information, she was not asked to testify. especially heinous, atrocious, and cruel in that it involved torture or depravity of the mind. Although he did not testify James Johnson, petitioner’s father, contended that petitioner during the guilt phase of his trial, petitioner elected to take the “was one of the most devoted person[s] to his family that I stand during his sentencing hearing. He denied that he killed have ever seen,” and that he was a good son, a hard worker, his wife and attempted to shift the blame to his co-worker, and a good family man. Mr. Johnson went on to assert that who was on work release from prison at the time of the trial counsel asked him very little about his son’s boyhood murder. Johnson, 743 S.W.2d at 156. He conceded, and schooling. Concerning the fact that he did not testify at however, that he assisted in the disposal of his wife’s corpse. trial, petitioner’s father indicated that he had been willing to do so but had been advised by counsel that it would be Defense counsel called only one other witness in unwise. Petitioner’s brother, James C. Johnson, Jr., continued mitigation, Robert G. Lee, a minister who had counseled with this theme, stating that trial counsel did not ask him Johnson and his family while he was in jail. The minister about his brother’s background other than an earlier arrest in testified that Johnson had told him that “his faith in God was Ohio. Had he testified, James Johnson would have asserted what was sustaining him through this ordeal. He also that he had spent a significant amount of time with petitioner expressed to me that he knew that ultimately one day he and his family and that “there was never an altercation of any would have to give an accounting of his life to God.” kind that I remember other than fun and laughter.” Like his father, James Johnson stated that he was available to testify As mentioned, the jury returned a sentence of death. After on behalf of his brother, but trial counsel “said it would be exhausting his direct appeals, petitioner initiated a post- advisable not to.” conviction action in the Criminal Court of Shelby County, Tennessee, alleging for the first time that he received Petitioner’s sister, Shirley Ward, testified that trial counsel ineffective assistance during the sentencing phase of his trial never contacted her. She stated that petitioner was a good because his attorneys failed adequately to investigate or family man who did not have any problems at home. On otherwise develop mitigating evidence. The court held an cross examination, she admitted that she knew nothing of evidentiary hearing, which included the testimony of petitioner’s alleged or admitted extramarital relationships. petitioner, certain of his family members, trial counsel, and experts on the topic of proper practices in preparing for Mary Ward, petitioner’s other sister, testified that she told sentencing proceedings in a capital case. trial counsel that she was available to testify at trial but was never contacted by counsel. She, too, indicated that she had Ruby Johnson, petitioner’s mother, testified that she spoke been with the deceased “numerous times and they had a very with attorney Washington once about her son’s case and that happy marriage.” On cross examination she stated, “All I “he talked very little about it to me.” She met attorney Crow know is that Donnie loved Connie, and he would not have No. 01-5451 Johnson v. Bell 5 6 Johnson v. Bell No. 01-5451

killed her. And they had a happy marriage.” She did not sentencing was to review the Tennessee code on know anything about the alleged problems in petitioner’s death-penalty procedure while the guilt portion of the trial marriage. was under way. In addition to these five family members, three other On August 2, 1989, the Tennessee trial court issued an potential character witnesses testified at the hearing. A order denying post-conviction relief. The court accepted trial childhood friend, Barry Gray, stated that he had known counsel’s testimony that family members “could not or would petitioner to be a good friend, hard worker, and a caring not get involved in testifying.” Any testimony from them family man. James Ingram, petitioner’s jailer pending trial, “that [petitioner] was a good worker and had a good mentioned that petitioner had caused no trouble while marriage” would have opened the door to rebuttal evidence of incarcerated and had a clean disciplinary record. And, finally, strains in his marriage, the court concluded. The court David Force, petitioner’s employer, asserted that petitioner indicated that family members’ testimony would not have had been a good employee. been enough to overcome the jury’s apparent rejection of petitioner’s direct testimony and the “devastating” cross The post-conviction hearing contained contradictory examination that followed. Citing Strickland, supra, the court testimony concerning the extent to which trial counsel found “nothing in the evidentiary hearing to suggest that there contacted family members, evaluated their potential was any failure of counsel to meet the standards of testimony, and considered asking them to testify during the competence required in criminal cases or that any action or sentencing phase of the proceedings. While the family inaction on their part prejudiced the case of their client.” members recall some fleeting contact, they uniformly contend that they were discouraged from testifying. Their position, Petitioner appealed to the Tennessee Court of Criminal however, is somewhat at odds with the memory of trial Appeals, which affirmed the trial court’s judgment. Johnson counsel. Jeff Crow, lead trial counsel, testified that family v. State, No. 61, 1991 WL 111130 (Tenn. Crim. App. members indicated to him that they did not want to take the June 26, 1991) (No. 61). The court reasoned as follows: stand. According to him, “As I remember, we talked to the family. We talked to the minister. We talked to Johnson. At the post-conviction hearing, members of the And we decided after doing all that to handle the sentencing appellant’s family testified they wished to testify at the hearing in the manner in which it was done.” Petitioner’s convicting trial but were not called to do so. co-counsel, Clark Washington, corroborated Crow’s testimony that family members were reluctant to appear at These witnesses testified they would have told the jury trial. “All of them wanted to help Don Johnson,” Washington the appellant was a hard worker who loved his family. testified, “but they were concerned or afraid or not wanting to The major flaw in this was the fact the appellant was really come in under the spotlight in a courtroom and take a convicted of murdering his wife. witness chair.” We conclude this evidence would not have benefitted The record suggests that Crow and Washington were the appellant, and the failure of the trial lawyer to call diligent in preparing for the guilt phase of the trial but gave these witnesses during the penalty phase of the trial gives scant attention to the sentencing phase until the verdict was no right to a new trial. returned. In fact, Crow testified that his main preparation for No. 01-5451 Johnson v. Bell 7 8 Johnson v. Bell No. 01-5451

1991 WL 111130 at *1-2. (citation omitted). The Supreme 28 U.S.C. § 2254(d). In addition, the findings of fact made Court of Tennessee declined to review this decision. by a state court are presumed to be correct and can be Thereafter, petitioner initiated another, ultimately contravened only if the habeas petitioner can show by clear unsuccessful post-conviction challenge that is not relevant to and convincing evidence that the state court’s factual findings the sole issue before us. were erroneous. 28 U.S.C. § 2254(e)(1). After exhausting his state-court avenues of redress, In Williams v. Taylor, 529 U.S. 362 (2000), the Court petitioner filed the instant habeas corpus petition on interpreted 28 U.S.C. § 2254(d)(1) as requiring a distinction November 14, 1997, raising twenty grounds for relief. The between decisions that are “contrary to” and those that district court denied the petition. Johnson v. Bell, No. 97- involve an “unreasonable application of” clearly established 3052-DO (W.D. Tenn. Feb. 28, 2001). However, the district Supreme Court precedent. Id. at 405. A state court decision court issued a certificate of appealability pursuant to is “contrary to” Supreme Court precedent “if the state court 28 U.S.C. § 2253(c) on the sole issue of whether petitioner arrives at a conclusion opposite to that reached by [the received ineffective assistance of counsel at the sentencing Supreme] Court on a question of law,” or “if the state court phase of his trial due to the failure to investigate and present confronts facts that are materially indistinguishable from a mitigating evidence. relevant Supreme Court precedent and arrives at a result opposite to ours.” Id. A state court decision is also “contrary II. to” Supreme Court precedent if the state court “applies a rule that contradicts the governing law set forth” in that precedent. We review de novo the legal conclusions of a district court Id. in a habeas proceeding. Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). Because Johnson filed his habeas petition on A state court decision involves an “unreasonable November 14, 1997, after the Antiterrorism and Effective application” of clearly established Supreme Court precedent Death Penalty Act of 1996 (“AEDPA”) became effective, this “if the state court identifies the correct governing legal rule court’s review of state court conclusions is governed by from [the Supreme] Court’s cases but unreasonably applies it AEDPA. Id. Under AEDPA’s provisions, we may not grant to the facts of the particular state prisoner’s case.” Id. at 407. a writ of habeas corpus for any claim that was adjudicated on the merits in state court unless the adjudication: III. (1) resulted in a decision that was contrary to, or With these precepts in mind, we turn to the legal issue involved an unreasonable application of, clearly before us. At this point, the two-part test used to determine established Federal law, as determined by the Supreme whether a criminal defendant was denied effective assistance Court of the United States; or of counsel is extremely familiar, even if the precise manner of its application continues to occupy the Court. Compare (2) resulted in a decision that was based on an Wiggins v. Smith, 123 S. Ct. 2527 (2003), and Williams v. unreasonable determination of the facts in light of the Taylor, supra, with Bell v. Cone, 535 U.S. 685 (2002). As evidence presented in a state court proceeding. the Court put it nearly twenty years ago: No. 01-5451 Johnson v. Bell 9 10 Johnson v. Bell No. 01-5451

First, the defendant must show that counsel’s not even ask the jury to spare his client’s life. Cone, 243 F.3d performance was deficient. This requires showing that at 978. The Supreme Court reversed and, in doing so, counsel made errors so serious that counsel was not reminded us that “a court must indulge a ‘strong presumption’ functioning as the “counsel” guaranteed by the Sixth that counsel’s conduct falls within the wide range of Amendment. Second, the defendant must show that the reasonable professional assistance because it is all too easy to deficient performance prejudiced the defense. This conclude that a particular act or omission of counsel was requires showing that counsel’s errors were so serious as unreasonable in the harsh light of hindsight.” Cone, 122 S. to deprive the defendant of a fair trial, a trial whose result Ct. at 1854 (citing Strickland); see also Mason, 320 F.3d at is reliable. Unless a defendant makes both showings, it 643 (Boggs, J. dissenting) (characterizing Cone as making cannot be said that the conviction or death sentence “abundantly clear the extremely high standard that must be resulted from a breakdown in the adversary process that met for counsel’s representation in the penalty phase to be renders the result unreliable. considered constitutionally inadequate”); but see Wiggins v. Smith, 123 S. Ct. at 2536-37 (scope of investigation into Strickland v. Washington, 466 U.S. 668, 687 (1984); see also client’s “misery as a youth” fell short of the professional Mason v. Mitchell, 320 F.3d 604, 616 (6th Cir. 2003); Greer standards then prevailing because counsel knew of v. Mitchell, 264 F.3d 663, 673-74 (6th Cir. 2001). “unfortunate childhood” and there was nothing to suggest that further investigation would have been either In assessing counsel’s performance, we inquire whether counterproductive or fruitless); Williams v. Taylor, 529 U.S. “counsel’s representation fell below an objective standard of at 398-99 (holding that failure to investigate petitioner’s reasonableness,” as measured by prevailing professional background, which was horrific, resulted in ineffective norms. Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997) assistance as defined by Strickland). (quoting Strickland, 466 U.S. at 688). This objective reasonableness standard encompasses strategic litigation We note that the present case contains elements similar to choices that simply fail to bear fruit. See Strickland, 466 U.S. those of previous cases in which this court has been at 689. To establish prejudice, moreover, a defendant must sufficiently troubled by allegations of ineffective assistance demonstrate a reasonable probability that “but for counsel’s that we either granted the writ or remanded for an evidentiary unprofessional errors, the result of the proceeding would have hearing. Among other factors, this court has found it telling been different.” Id. at 694. that “trial counsel did not begin preparing for the mitigation phase of the trial until after conviction.” Greer, 264 F.3d at In evaluating petitioner’s claim, we are mindful of the 676-77; see also Williams, 529 U.S. at 395 (finding it Supreme Court’s opinion in Bell v. Cone, supra, which significant that counsel began preparation for mitigation only reversed a grant of the writ by this court. See Cone v. Bell, a week before trial). Despite Greer and other Sixth Circuit 243 F.3d 961 (6th Cir. 2001). In Cone, we observed that cases that have reached a similar result, see, e.g., Mason, 320 counsel’s presentation during the sentencing phase was a F.3d at 624-26 (remanding for evidentiary hearing concerning complete abdication of the attorney’s role. During the guilt failure to develop mitigating evidence of petitioner’s troubled phase, counsel had presented evidence of his client’s social childhood); Coleman v. Mitchell, 268 F.3d 417, 450-52 (6th history and mental state in an attempt to raise a defense of Cir. 2001) (ineffective assistance during mitigation for failure insanity. In the sentencing phase, however, counsel presented to investigate or present evidence of troubled background); no mitigating evidence at all, made no final argument, and did Skaggs v. Parker, 235 F.3d 261, 269-70 (6th Cir. 2001); No. 01-5451 Johnson v. Bell 11 12 Johnson v. Bell No. 01-5451

Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997); Glenn v. this testimony would likely have led to a different result Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995), we are hard- because it is entirely possible, as the Tennessee Court of pressed to reconcile Cone with a conclusion that counsel Criminal Appeals pointed out, that the jury could have rendered constitutionally ineffective assistance by not concluded that petitioner was even more culpable because he vigorously interviewing family members and pressing them had enjoyed a loving family but had brutally murdered a wife to testify during the sentencing phase of the trial. While who loved him. Also, as the district court noted, testimony counsel in Wiggins had sufficient information about their from family members would have opened the door to rebuttal client’s horrific childhood to render their failure to pursue evidence about petitioner’s extramarital affairs, undercutting further investigation professionally unreasonable, there is the positive image presented by his family. nothing to suggest that counsel in the instant case ignored known leads that might have helped them to prepare their The mitigating evidence proffered by petitioner falls short case in mitigation. As the Court has reminded us, “Strickland of the quantum required by Wiggins, Cone, and Williams. In does not require counsel to investigate every conceivable line Williams, for example, the Court found it unreasonable for the of mitigating evidence no matter how unlikely the effort Virginia Supreme Court to conclude that petitioner had not would be to assist the defendant at sentencing.” Wiggins, 123 been prejudiced by counsel’s failure to investigate and present S.Ct. at 2541. readily available evidence “graphically describing Williams’ nightmarish childhood.” 529 U.S. at 395, 397-98. Likewise Even if we assume, however, that trial counsel performed in Wiggins, the Court concluded, “Had the jury been able to ineffectively during the mitigation phase of the trial, we find place petitioner’s excruciating life history on the mitigating that the deficiency did not prejudice petitioner’s case. As side of the scale, there is a reasonable probability that at least already explained, to show prejudice a defendant must one juror would have struck a different balance.” 123 S. Ct. demonstrate that “counsel’s errors were so serious as to at 2543. This court’s cases do not particularly strengthen deprive the defendant of a fair trial, a trial whose result is petitioner’s position either. See, e.g., Coleman, 268 F.3d at reliable.” Strickland, 466 U.S. at 687. Also, “[t]he defendant 451-53 (finding prejudice where counsel failed to present must show that there is a reasonable probability that, but for evidence of petitioner’s horrific childhood, his numerous counsel’s unprofessional errors, the result of the proceeding mental and emotional disorders, and his low IQ); Carter v. would have been different. A reasonable probability is a Bell, 218 F.3d 581, 600 (6th Cir. 2000) (finding prejudice probability sufficient to undermine confidence in the where counsel failed to present evidence “of a childhood in outcome.” Id. at 694. Our inquiry is limited to asking which abuse, neglect and hunger were normal”); Skaggs, 235 whether the testimony of the eight potential character F.3d at 271-72 (finding prejudice for failure to present witnesses described above, which include five family evidence of defendant’s mild mental retardation and members, would have created a reasonable probability that, diminished capacity, “the one topic which may have had the jury heard from them, its verdict would have been convinced the jury that a death sentence was not justified”). different. Given the precedents that inform our decision, we conclude that, even if we assume that trial counsel were professionally Undoubtedly, testimony from these family members would deficient under the Sixth Amendment for failing to present have helped to humanize petitioner by showing the jury that mitigating testimony in the form of character witnesses, they loved and valued him, that he had been a good son, petitioner has not shown that, “but for counsel’s brother, and parent. On the other hand, we cannot say that No. 01-5451 Johnson v. Bell 13 14 Johnson v. Bell No. 01-5451

unprofessional errors, the result of the proceeding would have _______________ been different.” Strickland, 466 U.S. at 694. DISSENT IV. _______________ The judgment of the district court is AFFIRMED. CLAY, Circuit Judge, dissenting. In holding that Petitioner’s counsel’s performance did not fall below an objective standard of reasonableness as measured by prevailing professional norms, the majority engages in speculation and conjecture about what evidence defense counsel’s investigation would have turned up and the nature of various witnesses’ testimony had defense counsel performed in accordance with acceptable professional standards in death penalty litigation. In so doing, the majority resolves all doubts against Petitioner and holds that none of the evidence Petitioner’s counsel might have garnered would have sufficiently impacted the jury’s decision-making to alter the outcome of the penalty phase trial. Contrary to the majority, I believe that the record is too conflicted as to whether potential witnesses would have been willing to testify, and the nature of the testimony is too sparse to permit the formation of a reliable opinion as to whether counsel’s investigation into Petitioner’s family, social, or psychological history was adequate under an objective standard. Thus, I would remand for an evidentiary hearing so that the record could be developed as to counsel’s investigation in this regard, thereby allowing for an informed decision as to whether Petitioner was prejudiced and ultimately denied his Sixth Amendment right to effective assistance of counsel. Petitioner claims that his trial counsel provided ineffective assistance during the penalty phase of the trial by failing, among other things, to investigate into Petitioner’s family, social, or psychological background for mitigating evidence; failing to present Petitioner’s family members, friends, and employer as mitigating witnesses; and failing to prepare Petitioner to testify to mitigating evidence. Petitioner’s case thus primarily turns on whether counsel’s investigation of his family, social, and psychological history was adequate to No. 01-5451 Johnson v. Bell 15 16 Johnson v. Bell No. 01-5451

justify their strategy of presenting a single witness other than petition, Petitioner testified that prior to trial he provided trial Petitioner on Petitioner’s behalf at mitigation. As in the counsel with the names of a number of witnesses who could Supreme Court’s recent decision in Wiggins v. Smith, ___ testify on his behalf, including family members, his friend U.S. ___, 123 S. Ct. 2527, 2538-539 (2003), if counsel’s Barry Gray, and others who could rebut evidence that investigation was itself inadequate, counsel’s strategic choice Petitioner’s marriage was rocky. A number of Petitioner’s of only presenting two witnesses on Petitioner’s behalf at family members and acquaintances testified at the post- mitigation must also be considered objectively unreasonable conviction hearing. Some of them indicated that they would under Strickland v. Washington, 466 U.S. 668, 687 (1984). have offered testimony sympathetic to Petitioner but were not See Wiggins, 123 S. Ct. at 2538-539 (recognizing that called to testify or were never contacted by defense counsel. “‘strategic choices made after less than complete investigation The contention of Petitioner’s counsel that a number of the are reasonable precisely to the extent that reasonable potential witnesses were not inclined to testify is disputed by professional judgments support the limitations on several of them. investigation’”) (quoting Strickland, 466 U.S. at 690-91). Specifically, Petitioner’s mother, Ruby Johnson, testified The majority attempts to distinguish Wiggins by concluding that trial counsel did not ask her about Petitioner’s that there is there is nothing on the record that should have background; however, she also testified that if asked, she caused counsel to delve deeper into Petitioner’s family, would have told counsel and the jury that she did not know of social, or psychological history. However, the majority any problems in Petitioner’s marriage, and that he was a hard reaches this conclusion based on the limited nature of the worker who cared for his family and raised well-mannered testimony and evidence derived from Petitioner’s post- children. Likewise, Petitioner’s father, James Johnson, conviction hearing which, as indicated, is too sparse and testified at the post-conviction hearing that, if called, he conflicted to make such a determination at this point of the would have testified that Petitioner was devoted to his family proceedings. That is not to say that upon further review by and that he was a good son, a hard worker, and a good family way of an evidentiary hearing the result reached by the man. Petitioner’s father also testified that trial counsel asked majority would necessarily be different. But in a case where him “very little” about Petitioner’s background and schooling, a petitioner’s life rests upon the nature of the evidence and that when he offered to testify at the mitigation hearing, presented, it is imperative that the petitioner be allowed to counsel stated that it would be better not to offer any present all of the evidence necessary for the court to make an testimony by family members. (J.A. at 188.) informed decision. This is particularly so in a case such as this where, aside from Petitioner, the sole witness called on Petitioner’s brother, James Johnson, Jr., similarly testified Petitioner’s behalf was a minister whose testimony that that trial counsel did not ask about Petitioner’s background, Petitioner had expressed that “he knew that ultimately one “[n]othing other than his arrest in Ohio, things of that day he would have to give an accounting of his life to God[,]” nature[,]” despite the fact that Johnson had spent a significant may have actually worked against him. amount of time with Petitioner and his family, and that he was willing to testify that he never knew of any problems in Moreover, even upon this sparse record, there is evidence Petitioner’s marriage. (J.A. at 188.) Johnson also testified to indicate that counsel should have delved deeper into that he advised defense counsel that he was available to Petitioner’s past family, social, and psychological history. testify on behalf of Petitioner at the mitigation trial, but that For example, at the hearing on the first post-conviction counsel said “it would be advisable not to.” (Id.) No. 01-5451 Johnson v. Bell 17 18 Johnson v. Bell No. 01-5451

Petitioner’s sister, Shirley Ward, testified that she was may be helpful in mitigation, and at the same time, never contacted by trial counsel; however, if called upon she gathering names of other individuals who may be helpful would have testified that Petitioner was a good family man in testifying on behalf of the defendant. who did not have any problems at home, and that the relationship between her brother and his wife seemed (J.A. at 191-92.) harmonious and happy the weekend before the murder. Petitioner’s other sister, Mary Ward, testified that she told Thus, even in light of the record before us, there is clear trial counsel she was available to testify at trial and that, if indication that defense counsel should have investigated called, she would have testified that Petitioner loved his wife further into Petitioner’s family, social, and psychological and would not have killed her. history before making the strategic choice to present only one other witness aside from Petitioner at the mitigation hearing. Barry Gray, who had been a friend of Petitioner since The statements made by Petitioner’s family, close friends, and childhood, testified at the hearing that he would have employer provided a basis upon which counsel should have informed the jury that Petitioner was a good friend and a hard known that further inquiry into Petitioner’s past was needed worker who seemed to care and provide for his family. for the purpose of allowing these witnesses to convince as Officer James Ingram, a deputy jailer with the Shelby County few as one juror that Petitioner was someone undeserving of Sheriff’s Department, testified at the hearing that when the death penalty. Further factual development by way of an Petitioner was incarcerated, “[h]e never had a disciplinary evidentiary hearing may serve to support this conclusion write-up or anything to my knowledge[,]” and that he would thereby establishing that counsel failed to conduct an have been willing to testify to this effect at Petitioner’s adequate investigation; this is particularly so where, in mitigation trial but did not receive a subpoena. (J.A. at 189- addition to the above testimony, the record indicates that 90.) David Force, an owner of Force Camping where counsel failed to obtain any medical, school, or social service Petitioner worked, also testified at the hearing and stated that, records concerning Petitioner. if asked, he would have said that Petitioner was a good employee. Indeed, Respondent does not contest that trial counsel’s performance during the penalty phase of the trial fell below Petitioner also presented expert testimony at the post- an objective standard of reasonableness. Rather, Respondent conviction hearing as to the manner in which background only contests the second prong of Strickland–whether trial investigations should be performed in capital cases in counsel’s failure to investigate and present mitigating Tennessee. That is, Jeff Blum, administrator of the Capital evidence prejudiced Petitioner. See Strickland, 466 U.S. at Case Resource Center, testified about the necessity of 687. Respondent argues that no prejudice occurred to speaking extensively with persons who had contact with Petitioner because the evidence merely consisted of family Petitioner or his family members. Blum stated that: members’ statements that Petitioner was a good family man who had a happy marriage, and a good friend and employee. We do a fairly extensive search of all the various points of contact an individual would have had sometime in The fallacy in Respondent’s argument, however, is that it their past life. And through that process, gathering as assumes that the only mitigating evidence trial counsel could much written material, papers, files, records that we can have presented was the testimony of Petitioner’s family in that process toward discovering information we feel members, friends, and employer, and it assumes that the No. 01-5451 Johnson v. Bell 19 20 Johnson v. Bell No. 01-5451

nature of these witnesses’ testimony was adequately fails to establish whether the scope of counsel’s investigation developed. A proper investigation into Petitioner’s was adequate under Strickland, it cannot be said at this background and the nature of the witnesses’ testimony may juncture whether Petitioner was prejudiced by counsel’s have revealed other mitigating evidence to persuade the jury performance. Compare Wiggins, 123 S. Ct. 2358-539. Thus, to sentence Petitioner to life in prison as opposed to death. I would remand for an evidentiary hearing. Only by so doing Because there is no evidence on the record of what an could we determine whether Petitioner received investigation of Petitioner’s background would have revealed, constitutionally adequate representation before requiring this Court cannot conclude that Petitioner was not prejudiced Petitioner to pay the ultimate penalty. See Mason, 320 F.3d by trial counsel’s failure to investigate and present mitigating at 620-21 (remanding the death penalty petitioner’s evidence. Thus, this case should be remanded with ineffective assistance of counsel claim for an evidentiary instructions that the district court conduct an evidentiary hearing where the record was inadequate to allow for hearing on Petitioner’s claim for further factfinding as to the meaningful appellate review as to whether counsel scope of counsel’s investigation and the nature of what performed an adequate investigation and preparation as to evidence, if any, further investigation would have revealed. mitigating evidence); see also Griffin v. United States, 330 See Mason v. Mitchell, 320 F.3d 604, 620-21 (6th Cir. 2003) F.3d 733, 739 (6th Cir. 2003) (remanding the petitioner’s (“Because the record as it now stands reflects disputes about § 2255 motion to the district court for an evidentiary hearing defense counsel’s performance with respect to the sentencing where the petitioner “presented a potentially meritorious phase of [the petitioner’s trial], we remand the case to the claim for ineffective assistance of counsel” while noting that district court for an evidentiary hearing on this issue.”). the petitioner “deserve[d] the right to develop a record” in order to demonstrate prejudice). I therefore respectfully Similarly, the majority’s contention that the error, if any, dissent. was harmless because testimony as to Petitioner’s character as a loving husband or family man would have opened the door to potentially unfavorable testimony, is also based on speculation. That is to say, on the record before us, it is impossible to conclude that any unfavorable testimony that may have come into evidence by way of favorable character evidence would have unanimously persuaded a jury that the unfavorable testimony outweighed the favorable testimony. See id. The record before the Court, although needing further factual development, provides clear indication that Petitioner’s trial counsel failed in their responsibility to investigate and present mitigating evidence at Petitioner’s penalty phase trial. Contrary to the majority’s conclusion, it cannot be determined, based upon the present record, whether proper representation of Petitioner at the penalty phase trial would have resulted in a different outcome. Since the record