United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 18, 2005 July 28, 2005 In the United States Court of Appeals Charles R. Fulbruge III For the Fifth Circuit Clerk
_________________________
No. 04-40419
KATHY YOLANDE MILLER,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
Appeal from the United States District Court For the Southern District of Texas, Victoria Division _________________________
Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Kathy Miller appeals the district court’s denial of her § 2254
petition seeking relief from her sentence for engaging in deadly
conduct by riddling the unoccupied home of her in-laws with rifle
fire. We conclude that the state court’s decision that Miller was
not prejudiced by her counsel’s failure to conduct a
constitutionally adequate investigation into her mental
disabilities is an objectively unreasonable application of settled
federal law and reverse. I
Miller was charged and convicted by a jury for the offense of
deadly conduct in violation of Texas Penal Code § 22.05(b).1 The
evidence showed that Miller had been married to Larry Miller, the
son of Maxine Prismeyer and brother of Laura Kainer. Larry died of
a drug overdose, and although members of the Prismeyer and Kainer
families blamed Miller for his death, she was never charged.
Approximately one year after Larry’s death, Maxine Prismeyer and
her husband Alfred left their nearly completed home in El Campo,
Texas, in the care of Laura Kainer and her husband, Charles Kainer,
for a weekend. The Kainers stayed in a mobile home located
directly behind the Prismeyer residence.
At approximately 2:00 a.m. on December 19, 1998, six rounds
from a .35 caliber rifle were fired into the Prismeyer residence.
Four of the bullets passed through the residence and struck the
mobile home in which the Kainers were sleeping. Charles Kainer
exited the mobile home and saw a truck driving away on the road
fronting the Prismeyer house. Shortly thereafter, local police
spotted Miller’s truck abandoned in a ditch. Miller, who had been
drinking earlier in the evening, was found riding a tractor a short
distance away. She admitted that she had driven her truck into the
ditch and had walked home carrying her .35 caliber rifle. A DPS
1 TEX. PENAL CODE ANN. § 22.05(b)(2) (Vernon 2003) (“A person commits an offense if he knowingly discharges a firearm at or in the direction of . . . a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.”).
2 firearms examiner matched the casings recovered at the scene of the
crime to Miller’s rifle.
At the punishment phase of Miller’s trial, the State presented
evidence that at various times prior to the shooting, Miller had
swerved her vehicle into the path of the Kainers’ automobile, given
the Kainers “the finger,” and mouthed the words “I am going to get
you” to the Kainers while in the checkout line at an HEB grocery
store. The State also presented evidence that Miller had been
charged with resisting arrest while being apprehended on the deadly
conduct charge, and had been charged with public intoxication and
disorderly conduct one week before her sentencing.
Miller’s ex-husband testified on behalf of the defense that,
in 1994, Miller was hospitalized for several weeks after suffering
head injuries in a severe car accident. He stated that as a result
of her accident, she suffered from reverse forward amnesia, post-
traumatic stress disorder, and severe clinical depression,
requiring extensive medication and the care of numerous physicians.
He pointed out that before her accident, Miller had been an
industrious and responsible worker. Miller’s aunt testified that
Miller was a good person, and that she hoped to move to Louisiana
to care for her elderly mother after the trial.
Miller testified that she had never been arrested prior to her
husband’s death. She claimed that she was taking several
medications on account of her accident, and was seeing a number of
physicians, including a neurologist and some psychiatrists. She
3 stated that she was suffering from a variety of ailments, including
memory loss, severe migraine headaches and a “white matter disease”
that had to be monitored using “MRI’s every so often to see if it’s
still growing.” She asserted that, as a result of her condition,
she had no memory of the shooting incident and could not recall
mouthing the words “I am going to get you” to the Kainers.
On cross-examination, the prosecutor pointed out that Miller
did not have a close relationship with her mother and had not
returned to care for her mother even though she lived only 150
miles away. He also assailed Miller’s claim that she was suffering
from memory loss, insinuating that her testimony on this score was
a fabrication.2 In closing argument, the prosecutor opined:
2 This is exemplified in the following exchange between Miller and the prosecutor:
A. [Miller] I don’t recall ever going by and shooting their house up. If I did, I apologize for it; but I do not recall doing it.
Q. [Prosecutor] Oh, gee, you are sorry you almost killed the Kainers. Is that what you are saying?
A. I never said I killed the Kainers, and I never said I tried to. I said--I don’t remember.
Q. You have a very selective memory, don’t you?
A. Would you like to call my doctor? I cannot--I have memory loss. I have--I had amnesia whenever I was in the car wreck. I was unconscious for a long time, and my memory comes and goes.
Q. Well, let’s talk about your amnesia. You seem to have amnesia that night, but you just got through giving us very specific details about those incidents at Weiners and HEB and you remember exactly what happened then when it’s self-serving.
*****
A. Ask me if I remember anything from yesterday. I couldn’t tell
4 And what a wonderfully selective memory she has. She can remember so many specific details about her employment and those types of things. She can remember specific details about being on the tractor and not being intoxicated. She can remember specific details that happen at HEB, but she just doesn’t have a clue what could have happened out there on County Road 355 on December the 19th. What does that look like? You have common sense, ladies and gentlemen. I think you perfectly well know.
The jury imposed a sentence of eight years and a $5,000 fine, and
did not recommend that Miller’s sentence be suspended.
After sentencing, Miller’s trial counsel, Richard Manske,
asked Miller if she knew of any evidence that might convince the
court to grant a new trial. Miller told him the names of several
doctors who were treating her for medical and psychiatric problems
resulting from injuries she sustained in her car accident. Manske
contacted internist Arthur Tashnek, neurologist Leonard
Hershkowitz, and clinical psychologist Robert Borda, and obtained
letters from each regarding Miller’s condition.
In his letter, Dr. Tashnek stated that Miller had been a
patient of his since 1991, and that she was suffering from “post-
traumatic stress disorder [“PTSD”], gastro esophageal reflux
disorder, irritable bowel syndrome, degenerative disk disease,
memory loss, severe anxiety and depression, and retrograde
you if I did or I don’t because I don’t remember nothing from yesterday.
Q. I bet you don’t.
5 amnesia.” He noted that she was required to maintain a regular
regimen of medications, and that her health would suffer
significantly if these medications were not administered.
Dr. Hershkowitz wrote in his letter that Miller was suffering
difficulties with cognitive function, and diagnosed organic brain
syndrome. He noted that Miller’s condition had been documented on
“several very sophisticated neuropsychological tests,” but admitted
that he was unaware of her prognosis or general condition.
Finally, Dr. Borda stated in his letter that he had tested
Miller at the request of Dr. Hershkowitz, and had found indications
of PTSD and post-concussion syndrome. He noted that patients with
severe PTSD exhibit marked feelings of vulnerability, suffer from
depression and high anxiety, and may appear paranoid. According to
Dr. Borda, testing had revealed that Miller suffered from
“cognitive rigidity and poor problem-solving skills which typically
are seen in injuries involving the frontal lobe.” Although he had
not seen Miller in over four years, he stated that her condition
likely had not changed appreciably, and that imprisonment may
exacerbate her PTSD, requiring “intense psychiatric intervention.”
Armed with this evidence, Miller filed an unsuccessful motion
for new trial. Her conviction was then affirmed on direct appeal,3
and she filed a state habeas application alleging, inter alia, that
Manske was ineffective for failing to investigate and present
3 See Miller v. State, No. 13-00-082-CR (Tex. App.--Corpus Christi July 12, 2001, pet. ref’d) (unpublished).
6 evidence from Miller’s doctors about her mental and emotional
problems. Attached to her state habeas application was an
affidavit prepared by Manske in which he admitted that he “did not
prepare much for the punishment phase because I thought that Ms.
Miller would accept the plea bargain offer of deferred adjudication
probation.” He conceded that he could have obtained the doctors’
letters before the punishment phase of the trial, and stated that
in retrospect, he “should have interviewed her doctors before trial
and called them to testify in mitigation of punishment.” The Texas
Court of Criminal Appeals denied Miller’s application without
written explanation.4
Miller filed a petition under 28 U.S.C. § 2254 in the Federal
District Court for the Southern District of Texas. The court
denied Miller’s petition and granted the State’s motion for summary
judgment.5 The court observed that admission of Miller’s medical
evidence was within the trial court’s discretion, and that Manske
could not be faulted for failing to offer it because it established
no connection between Miller’s mental condition and her illegal
actions. Further, the court held that Miller was not prejudiced by
Manske’s failure to present the medical evidence because Miller and
her ex-husband had testified regarding her condition, and the
evidence showed that “Miller was guilty of the crime, had previous
4 Miller v. State, No. 55,281-01 (Tex. Crim. App. Mar. 26, 2003). 5 Miller v. Dretke, No. V-03-41 (S.D. Tex. Mar. 25, 2004) (unpublished).
7 run-ins with the law, and had attempted to intimidate witnesses.”6
Miller filed a notice of appeal, and the district court denied
her application for COA. A single judge of our court granted COA
on Miller’s claim that Manske was “ineffective during the
punishment phase of the trial because he failed to present expert
testimony regarding Miller’s medical and psychological problems.”7
II
A
This appeal is governed by the Antiterrorism and Effective
Death Penalty Act, which provides that habeas relief may not be
granted unless the challenged state court proceeding resulted in
“a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court.”8 A decision must be more than merely incorrect
in order to constitute an unreasonable application of federal law;
it must be objectively unreasonable.9 Habeas relief is
6 Id. at 10. 7 Miller v. Dretke, No. 04-40419, at 2 (5th Cir. Aug. 16, 2004) (unpublished order).
8 28 U.S.C. § 2254(d)(1); see Lindh v. Murphy, 521 U.S. 320, 324-26 (1997) (holding that AEDPA applies to all federal habeas applications filed on or after April 24, 1996). Because Miller’s ineffective assistance claim involves mixed questions of law and fact, it is reviewed under § 2254(d)(1). See Martin v. Cain, 246 F.3d 471, 475-76 (5th Cir. 2001) (mixed questions of law and fact reviewed under unreasonable application prong of § 2254(d)); Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998) (ineffective assistance of counsel claims involve mixed questions of law and fact).
9 See Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004); Young v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004).
8 “inappropriate when a state court, at a minimum, reaches a
‘satisfactory conclusion.’”10
Because we review only the reasonableness of a state court’s
ultimate decision, the AEDPA inquiry is not altered when, as in
this case, state habeas relief is denied without a written
opinion.11 In this situation, we assume “that the state court
applied the proper ‘clearly established Federal law,’” and then
determine “whether its decision was ‘contrary to’ or ‘an
objectively unreasonable application of’ that law.”12
We review the federal district court’s factual findings for
clear error and its conclusions of law de novo.13
B
On appeal, Miller contends that the state court judgment is an
unreasonable application of “clearly established Federal law, as
determined by the Supreme court,” citing Strickland v. Washington,
because Manske’s failure to adequately investigate her mental
condition, contact her physicians, and present expert medical
testimony at the punishment phase of her trial constitutes
10 Morrow, 367 F.3d at 313 (quoting Williams v. Taylor, 529 U.S. 362, 410- 11 (2000)). 11 See Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) (citing Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)). 12 Id. (quoting Catalan v. Cockrell, 315 F.3d 491, 493 & n.3 (5th Cir. 2002) (quotation omitted)). 13 See Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004); Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).
9 ineffective assistance of counsel. Our analysis of this claim is
controlled by the two-prong test of deficient performance and
prejudice set forth in Strickland v. Washington.14 We will examine
the application of each prong in turn.
We first consider whether the state court unreasonably applied
Strickland in concluding that Manske did not perform in a
constitutionally deficient manner at the punishment phase of
Miller’s trial. In order to “establish deficient performance, a
petitioner must demonstrate that counsel’s representation ‘fell
below an objective standard of reasonableness.’”15 Our scrutiny of
counsel’s performance must be highly deferential, and we must
presume that counsel’s conduct falls within the wide range of
reasonable professional assistance.16 Further, we must make every
effort “‘to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at the time.’”17
To this end, a “conscious and informed decision on trial tactics
and strategy cannot be the basis for constitutionally ineffective
14 466 U.S. 668, 687 (1984). 15 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
16 See Soffar v. Dretke, 368 F.3d 441, 471 (5th Cir. 2004). 17 United States v. Harris, 408 F.3d 186, 189 (5th Cir. 2005) (quoting Strickland, 466 U.S. at 689).
10 assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness.”18
However, “strategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.”19 When assessing the reasonableness of an
attorney’s investigation, we 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.”20
To establish that an attorney was ineffective for failure to
investigate, a petitioner must allege with specificity what the
investigation would have revealed and how it would have changed the
outcome of the trial.21
Turning to the facts of this case, we note that Manske was
aware prior to the commencement of the punishment phase of Miller’s
trial that Miller had suffered mental and emotional injuries as a
result of her car accident. Manske was also cognizant of the fact
that these injuries comprised mitigating evidence, as indicated by
his decision to elicit testimony about them from both Miller and
18 Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004) (citations and internal quotation marks omitted).
19 Wiggins, 539 U.S. at 521 (internal quotation marks and alteration omitted) (quoting Strickland, 668 U.S. at 690-91). 20 Id. at 527. 21 See United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
11 her ex-husband. Despite this knowledge, Manske failed to contact
Miller’s treating physicians, and made no effort to call them as
expert medical witnesses at trial.
We are mindful that “complaints of uncalled witnesses are not
favored” given that “the presentation of testimonial evidence is a
matter of trial strategy.”22 In this case, however, Manske made his
decision not to call Miller’s physicians as witnesses without
speaking to them, and without even procuring their names. In his
affidavit, Manske offers no tactical or strategic explanation for
this lack of investigation. Rather, he points to his erroneous
belief that Miller would accept the State’s plea bargain offer, and
that Miller would be acquitted or given probation if she refused to
accept the offer, as grounds for his failure to adequately prepare
for the punishment phase of trial.
The State hastens to add that Manske could reasonably have
declined to pursue the testimony of Miller’s physicians because he
could reasonably have believed that such evidence would not have
been admitted at trial. We find this rationale unconvincing.
Under Texas law, psychological evidence is admissible in a non-
capital trial at the punishment stage if it is relevant to
22 Wilkerson v. Cain, 233 F.3d 886, 892-93 (5th Cir. 2000) (citation and internal quotation marks omitted).
12 sentencing.23 In Muhammad v. State,24 the El Paso Court of Appeals
held that a trial court abused its discretion when it excluded
psychological evidence showing that a defendant’s calm demeanor
after shooting his girlfriend was attributable to his introspective
personality which affected his ability to express his emotions
openly. The court found this evidence to be reliable and relevant
to the defendant’s heat of passion defense.25 In reaching this
conclusion, the court observed that “[m]itigating circumstances
relevant to punishment are circumstances which will support a
belief that defendants who commit criminal acts that are
attributable to such circumstances are less culpable than others
who have no such excuse.”26
Applying these standards, the testimony of Dr. Borda and Dr.
Hershkowitz likely would have been admissible at the punishment
phase of Miller’s trial. Dr. Borda is a licensed psychologist who
based his diagnosis on neuropsychological testing he conducted on
23 TEX. CODE. CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Sup. 1999)(“[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing[.]”). 24 46 S.W.3d 493 (Tex. App.--El Paso 2001, no pet.). 25 This analysis tracks Texas’s test for evaluating the admissibility of scientific evidence in criminal trials. First, the evidence must be “reliable (and thus probative and relevant)[,]” and second, the evidence must not be “unhelpful to the trier of fact for other reasons.” Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992); see TEX. R. EVID. 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”). 26 Muhammad, 46 S.W.3d at 498.
13 Miller. He diagnosed Miller as suffering from PTSD and possible
mild traumatic brain injury resulting in feelings of vulnerability,
depression, high anxiety, appearances of paranoia, attentional
deficits, emotional “blunting,” cognitive rigidity and poor
problem-solving skills. He noted that incarceration in a typical
prison setting would exacerbate Miller’s PTSD, requiring intense
psychiatric intervention. Doctor Hershkowitz, in turn, is a
neurologist and Diplomat of the American Board of Neurology and
Psychiatry, and noted that Miller’s mental problems had been
“documented on several very sophisticated neuropsychological
tests.” Dr. Hershkowitz stated that Miller has “memory problems”
and “a problem with cognitive function,” and diagnosed her as
having organic brain syndrome.27
This evidence would likely have been relevant at the
punishment stage of Miller’s trial in a variety of ways. First,
evidence that Miller had PTSD would have mitigated the effect of
Miller’s prior charges for resisting arrest and disorderly conduct
by providing an explanation for her erratic, paranoid, and hostile
behavior. This evidence would also have provided an explanation
for the shooting incident given that the Prismeyers and Kainers
27 Organic brain syndrome is marked by “Psychiatric or neurological symptoms, including problems with attention, concentration, and memory, confusion, anxiety, and depression, arising from damage to or disease in the brain.” See MedicineNet.com, MedTerms Dictionary, Organic Brain Syndrome, at http://www.medterms.com/script/main/art.asp?articlekey=11781 (last visited July 21, 2005).
14 blamed Miller for the death of Larry Miller.28 Further, evidence
that Miller had memory problems stemming from organic brain disease
would have provided support for her claim that she could not
remember the shooting incident or the altercation at HEB--a claim
that was effectively dismantled by the State’s vigorous cross-
examination and closing argument.29 Finally, the jury could have
inferred based on the fact that Miller had not sought treatment in
roughly four years that her condition could be improved with
consistent therapy, thus building a better case for probation.
The State also contends that Manske made an informed and
reasonable tactical decision to forego investigation into Miller’s
mental condition in order to focus his limited resources on more
promising defenses. The State points out that Manske was aware of
Miller’s condition, and argues that his prediction that Miller
would either accept a plea bargain or be acquitted was reasonable.
This argument misses the point. While Manske may have made
reasonable tactical decisions based on the information that he had
at the time, our review must focus on whether the information he
28 At Miller’s trial, Alfred Prismeyer testified that his wife, Maxine, had told Miller that she wanted Miller dead. He qualified this testimony by noting that “she didn’t mean it.” While likely not constituting a threat on Miller’s life, it would have taken on new significance in light of evidence that Miller suffered from PTSD. 29 We need not pause over the State’s argument that testimony from Miller’s physicians would have been inadmissible because they could not irrefutably establish a “nexus” between Miller’s criminal acts and her mental condition. The test for admissibility is relevance, and a jury presented with such testimony could logically infer the necessary connection. Cf. Muhammad, 46 S.W.3d at 498- 99 (noting that Texas trial courts enjoy “wide latitude in admitting relevant evidence so long as its admission is otherwise permitted by the rules of evidence”).
15 possessed would have led a reasonable attorney to investigate
further.30 “In assessing counsel’s investigation, we must conduct
an objective review of their performance, measured for
‘reasonableness under prevailing professional norms.’”31 To this
effect, we have held on a number of occasions that a criminal
defense attorney has a duty to investigate a client’s medical
history when it becomes clear that the client is suffering from
mental difficulties rendering him insane or incompetent to stand
trial.32
While not presenting a potential bar to prosecution, Miller’s
claim that she was suffering from mental and emotional injuries,
including selective amnesia and PTSD, was significant in that it
constituted a basis for minimizing her culpability. Manske
recognized this fact as indicated by his decision to present
30 See Wiggins, 539 U.S. at 536 (finding that counsel is not in a position to “make a reasonable strategic choice” when his “investigation supporting [that] choice was unreasonable”); Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“Tactical decisions must be made in the context of a reasonable amount of investigation, not in a vacuum.”); Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) (finding that “our usual deference to tactical decisions is not relevant” when the decisions are based on “information that was faulty because of [] ineffective investigatory steps”). 31 Wiggins, 539 U.S. at 523 (quoting Strickland, 466 U.S. at 688). 32 See Bouchillon, 907 F.2d at 597 (observing that, in the context of assessing a client’s competence to stand trial, “[i]t must be a very rare circumstance indeed where a decision not to investigate would be ‘reasonable’ after counsel has notice of a client’s history of mental problems”); Profitt, 831 F.2d at 1249 (holding that counsel had a duty to investigate the mental health history of a defendant who has been committed to a mental institution); Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir. 1981) (holding that counsel had a duty to obtain medical records and speak with treating physicians upon learning that his client had been confined twice to a state mental institution, and had a “guarded” prognosis).
16 evidence of Miller’s condition via the testimony of Miller and her
ex-husband. He failed, however, to make any effort to contact
Miller’s treating physicians or otherwise obtain some medical
substantiation for her assertions. Rather, he relied solely on the
testimony of Miller and her ex-husband--testimony that was
ridiculed and discredited by the prosecution. This decision was
supported by a complete lack of investigation; a failure that was
constitutionally inadequate under the circumstances of this case.
The state habeas court apparently concluded otherwise. Although it
is true that the state court could have considered that the jury
heard this same evidence from Miller’s former husband and from
Miller herself, and that the evidence would have been redundant, we
think such a holding was objectively unreasonable. The state
habeas court was objectively unreasonable in holding otherwise.
We now turn to Miller’s claim that the state court
unreasonably applied Srickland when it concluded that she was not
prejudiced by Manske’s inadequate investigation. In order to
establish prejudice under Strickland, a “defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.”33 A reasonable probability is “a probability sufficient
33 Strickland, 466 U.S. at 694.
17 to undermine confidence in the outcome.”34 When assessing the
prejudice caused by counsel’s failure to present potentially
mitigating evidence, “we reweigh the evidence in aggravation
against the totality of available mitigating evidence.”35
Because Miller is challenging a sentence imposed in a state
court proceeding, she must establish a reasonable probability36 that
but-for Manske’s errors, her sentence would have been
“significantly less harsh.”37 In deciding whether a sentence would
have been significantly less harsh but-for counsel’s error, we
consider a number of factors including:
the actual amount of the sentence imposed on the defendant by the sentencing judge or jury; the minimum
34 Id. 35 Wiggins, 539 U.S. at 534. 36 The Supreme Court has observed that “[t]he reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 n.9 (2004). 37 Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). Miller argues that the “significantly less harsh” standard does not apply because the Texas Court of Criminal Appeals does not employ such a standard. This argument is wide of the mark. In Spriggs, we held that [i]n order to avoid turning Strickland into an automatic rule of reversal in the non-capital sentencing context, we believe that in deciding [] an ineffectiveness claim, a court must determine whether there is a reasonable probability that but for trial counsel’s errors the defendant’s non-capital sentence would have been significantly less harsh. 993 F.2d at 88. In United States v. Grammas, we held that the Supreme Court’s decision in Glover v. United States abrogated the significantly less harsh standard. United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004) (citing Glover v. United States, 531 U.S. 198, 203 (2001)). We later clarified, however, that Glover’s impact was limited to cases involving the federal sentencing guidelines. Grammas, 376 F.3d at 438 n.4. Because Miller was sentenced in state court, the significantly less harsh standard applies to her ineffective assistance claim.
18 and maximum sentences possible under the relevant statute or sentencing guidelines, the relative placement of the sentence actually imposed within that range, and the various relevant mitigating and aggravating factors that were properly considered by the sentencer.38
In its charge to the jury, the state trial court explained
that the punishment authorized for a third degree felony is
imprisonment for any term of not more than ten years or less than
two years, and a fine not to exceed $10,000.00. The court also
instructed the jury that they were allowed to recommend a suspended
sentence and community supervision. The jury assessed a sentence
of eight years imprisonment and a $5,000.00 fine, and did not
recommend that the sentence be suspended. This sentence falls at
the higher end of the sentencing range.
Turning to the relevant mitigating and aggravating factors
considered by the jury, the evidence showed that Miller fired
multiple rounds from a .35 caliber rifle into a residence, and
struck a mobile home occupied by a sleeping couple in the early
morning hours; that Miller had attempted to threaten and intimidate
at least one of the witnesses against her, and had previously been
arrested for public intoxication and disorderly conduct. Miller
proffered evidence that she had been involved in an automobile
accident and was suffering from memory loss and PTSD. She also
testified that she did not remember firing on the Prismeyer
residence or threatening the Kainers, but if she had done so, she
38 Spriggs, 993 F.2d at 88-89.
19 was “sorry.”
On cross-examination, the State severely undermined Miller’s
claims by pointing out that her memory was “selective,” and that
the jury could decide for itself what to make of her alleged memory
loss. Had Manske investigated Miller’s medical history and
interviewed her physicians, he could have countered the State’s
insinuations with actual medical evidence. Instead, he allowed the
trial to proceed to closing argument without conducting redirect
examination on Miller in an attempt to rehabilitate her
credibility.
In addition, had Manske investigated Miller’s medical history
and presented expert testimony regarding her PTSD, he could have
offered an explanation for why the accusations leveled by the
Kainers and Prismeyers, as well as the threatening statement made
by Maxine Prismeyer, produced such an unusually severe reaction
from Miller. As things stood, the jury was left only with the
admittedly self-serving testimony of Miller and her ex-husband
regarding her medical condition, and could easily have dismissed
such testimony as not credible. Had the jury been allowed to
consider expert testimony presented by even one of Miller’s
treating physicians, the entire case would have been cast in a new
light; namely, Miller would have been viewed as a sick woman, and
her actions those of a person debilitated in mind as well as body.
Accordingly, we find that a reasonable probability exists that the
jury would have assessed a substantially less harsh sentence but-
20 for Manske’s failure to present such evidence. Further, given the
radical shift in terrain Miller’s defense would have experienced
had Manske called Drs. Borda and Hershkowitz, we find the state
habeas court’s rejection of Miller’s petition objectively
unreasonable. We recognize that the state court could have
concluded that the sentence would be equally as harsh or even more
harsh because the testimony of the doctors would have emphasized
the dangerousness of the defendant. We find, however, that such a
conclusion is an objectively unreasonable application of
Strickland, because we assume that the jury would have sentenced to
some degree on the basis of Miller’s moral culpability and the
testimony of these doctors would have given the jury a firm basis
to conclude that Miller was much less morally culpable for her
crime than the jury could have concluded without such testimony.
III
To sum up, we hold that the state court judgment that counsel
was not ineffective is an objectively unreasonable application of
Strickland. Manske provided ineffective assistance to Miller by
failing to conduct reasonable investigation into Miller’s mental
injuries by not contacting her physicians. This failure to
investigate prejudiced Miller by permitting the State to neutralize
her most effective mitigation evidence, undermine her credibility,
and portray her as an opportunistic liar to a jury charged with
determining her sentence.
21 For these reasons, we reverse the district court’s judgment
denying habeas relief, and remand this case to that court with
instructions to order the State of Texas to either give Kathy
Miller a new sentencing hearing or release her from custody within
90 days of the date of the district court’s order on remand.
REVERSED and REMANDED with instructions.