Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eaton v. Wilson

United States District Court, D. Wyoming

November 20, 2014

DALE W. EATON, Petitioner,
v.
EDDIE WILSON, Warden, Wyoming Department of Corrections State Penitentiary, Respondent.

ORDER GRANTING CONDITIONAL WRIT OF HABEAS CORPUS

ALAN B. JOHNSON, District Judge.

Dale W. Eaton, Petitioner, is an inmate incarcerated at the Wyoming Department of Corrections State Penitentiary. He has filed, through counsel, a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 64].

The Court, having carefully reviewed and considered each pleading, the exhibits, the evidentiary presentation, arguments, and written briefs of counsel for Petitioner and Respondent, having thoroughly reviewed the file herein, and being otherwise fully advised, finds and concludes the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 should be conditionally granted.

BACKGROUND

Factual Background

Lisa Marie Kimmell left Denver, Colorado, on March 25, 1988, intending to drive to Billings, Montana, with a stop in Cody, Wyoming. [Doc. 83-5, p. 20]. Ms. Kimmell did not arrive in Cody as planned, and a search for her began on March 26, 1988. [Doc. 83-5, p. 27]. Her body was found by a fisherman on April 2, 1988, in the North Platte River southwest of Casper, Wyoming, near what is called Government Bridge. [Doc. 83-6, p. 53]. An autopsy revealed she died from multiple stab wounds to her chest, inflicted after a severe blow to the head. [Doc. 83-12, p. 47]. The examination also revealed semen in her vagina. Samples of the semen were taken and preserved. Eaton v. State, 192 P.3d 36, 51 (Wyo. 2008). [Doc. 83-10, pp. 62, 63, 64]. DNA from the semen samples was matched, in 2001, to Petitioner, who had formerly resided in Moneta, Wyoming. Eaton v. State, 192 P.3d at 51. Law enforcement agents obtained a search warrant for Petitioner's property in Moneta, where they found Ms. Kimmell's buried car. [Doc. 84-9, p. 3; Doc. 84-10, pp. 11-20].

State Court Trial

The Natrona County District Attorney charged Petitioner with first-degree premeditated murder, first-degree felony murder, kidnaping, first-degree sexual assault, and aggravated robbery. Eaton v. State, 192 P.3d at 49, fn 1. A jury trial was conducted before the Honorable David Park of the Seventh Judicial District at the Natrona County Courthouse in Casper, Wyoming. Petitioner was represented by Wyatt Skaggs and Vaughn Neubauer from the Trial Division, Wyoming Public Defender Office. [Doc. 81-3, pp. 2, 3, 4]. The trial commenced in February, 2004, and continued for two weeks. The jury, at the close of the guilt/innocence stage of the proceedings, returned guilty verdicts on all counts. Eaton v. State, 192 P.3d at 49, fn 1. [Doc. 85-6, pp. 6, 7, 8, 9].

The State of Wyoming, during the penalty phase of the trial, called three witnesses. Shannon Breeden testified she was traveling in 1997 on Interstate 80 outside of Rock Springs, Sweetwater County, Wyoming, when Petitioner threatened her with a rifle. [Doc. 85-7, pp. 55, 56]. Sweetwater County Sheriff Deputy Rich Haskell testified he investigated the aggravated assault on Ms. Breeden. [Doc. 85-7, pp. 57, 58, 59]. Sweetwater County Prosecuting Attorney Tony Howard testified Petitioner was convicted of aggravated assault. [Doc. 85-8, pp. 1-5].

Petitioner's trial team, during the penalty phase, presented two expert witnesses, Dr. Kenneth Ash, a psychiatrist, and Dr. Lisa Gummow, a neuropsychologist. Dr. Ash testified he met with Petitioner on four separate occasions for a total of approximately twelve and one-half hours, during which time he observed Petitioner and discussed his life history and present circumstances. [Doc. 85-8, pp. 19, 20, 21]. Dr. Ash also examined Petitioner's available medical records, including those from the Colorado Psychiatric Hospital (University of Colorado Medical Center) where Petitioner was a patient at age sixteen, and from the Torrington Hospital from 1986. [Doc. 85-8, p. 22]. Dr. Ash, from those hospital records, noted a consistent finding of depression. He also determined Petitioner had a global assessment of functioning (GAF) of 31, which indicated a major impairment. [Doc. 85-8, pp. 34, 35]. Dr. Ash expressed his professional opinion Petitioner committed the Kimmell homicide while under the influence of extreme emotional disturbance and extreme distress. [Doc. 85-8, p. 51].

Dr. Gummow testified she spent two days with Petitioner. Test administration accounted for seventy-five percent (75%) of the two days, with interviews accounting for the remaining twenty-five percent (25%). [Doc. 85-11, p. 11]. Dr. Gummow also indicated she reviewed relevant life documents such as medical, educational, psychiatric, and police records, including statements from Petitioner's sisters and father, and developed a chronology of Petitioner's life which she presented to the jury. Dr. Gummow stated in her professional opinion Petitioner suffered from a depressive disorder NOS, which was present in a severe phase in 1988. His depression was probably genetic, and his major depressive disorder was considered a brain disease. She further indicated Petitioner had significant brain damage along with a long-standing learning disorder. His IQ ranged between 76 (borderline) to high 80s to 90s. [Doc. 85-11, pp. 6-60; Doc. 85-12, pp. 1-16].

Four family members also testified on behalf of Petitioner. Loren Ferrins[1], his uncle, testified Petitioner's father, Merle, picked on Petitioner. [Doc. 85-9, pp. 37-50]. Betty Ferrins, Petitioner's aunt, testified she did not want Petitioner to die, and stated "I don't think he was in his right mind when he did this." [Doc. 85-9, pp. 55, 56]. Marilu O'Malley, Petitioner's maternal aunt, testified Merle abused his children, and Petitioner got the brunt of the abuse. [Doc. 85-9, pp. 58, 59]. Natrona County Deputy Sheriff Lynn Cohee presented testimony from her interview with Sharon Slagowski, Petitioner's sister. Deputy Cohee stated Ms. Slagowski recalled physical and emotional abuse by her father. Merle hit Petitioner with a belt, his fists, and hit him over the head with a beer bottle. [Doc. 85-12, pp. 52-56].

Petitioner's counsel also presented testimony from four friends. Shirley and Floyd Widmer testified they had always "gotten along real good" with Petitioner, and he had never exhibited a bad temper around them. Virginia Schifferns testified Petitioner had previously stayed with them, and she could not believe he would do anything violent. Lodine Schifferns testified he liked Petitioner, and he couldn't believe this could happen. [Doc. 85-10, pp. 8-27].

The jury returned a unanimous penalty verdict fixing Petitioner's sentence at death. The jury found beyond a reasonable doubt the existence of three statutory aggravating circumstances. Petitioner was previously convicted of a felony involving the use or threat of violence to the person. The murder of Ms. Kimmell was especially atrocious or cruel, being unnecessarily torturous to the victim. Petitioner had killed another human being purposely and with premeditated malice while engaged in robbery, sexual assault and kidnaping. No mitigating factors were found to exist. [Doc. 85-14, pp. 18, 19, 20].

State Court Appeal

Petitioner, represented by Donna Domonkos, Ryan Roden, Diane Lozano, Marion Yoder, and Tina Kerin Olson from the Appellate Division, Wyoming Public Defender Office, appealed his convictions and sentence to the Wyoming Supreme Court. Eaton v. State, 192 P.3d at 36. Appellate counsel, on January 10, 2005, filed a motion to withdraw from representation of Petitioner asserting a conflict of interest based on the fact both the trial team and appellate counsel were supervised by the same individual, Kenneth Koski, the Wyoming Public Defender.[2] [Doc. 67-5, Exhibit 26, Exhibit 56, Exhibit 59]. An additional basis for the request to withdraw was the fact Andy Fraser, the investigator assigned to Petitioner's appeal, had withdrawn from participation asserting he "heard that Mr. Skaggs [was] not happy with the fact that [he was] working on the Eaton appeal." [Doc. 70-10, pp. 3, 4]. The motion to withdraw by Petitioner's appellate counsel was denied by the Wyoming Supreme Court on January 19, 2005. [Exhibit 28, Exhibit 60].

Petitioner raised the following claims on appeal:

I. The trial court committed reversible error and violated the Ex Post Facto Clause by applying post-1989 amendments to Wyo. Stat. Ann. § 6-2-102 (1982) to Eaton's case.
II. Eaton received ineffective assistance of counsel.
A. Eaton's counsel were ineffective for stipulating to the use of the entire 2001 amended version of Wyo. Stat. Ann. § 6-2-102 (1982), excluding "future dangerousness." Amended portions were more disadvantageous to Eaton and violated the Ex Post Facto Clause of the United States and Wyoming constitutions.
B. Defense counsel were ineffective by failing to comply in substantive ways with the ABA Guidelines which establish specific standards for both experience and performance in trying death penalty cases.
C. Failure to know the law.
D. Concession of Eaton's guilt without valid consent from him.
E. Eaton was unable to assist in his defense and thus not competent to be tried. Counsel's failure to address this fundamental problem and election to allow the case to proceed under these circumstances rendered trial patently unfair.
F. Trial counsel were ineffective for waiving objection to venue.
G. The oversights, errors and decisions to forego (i.e., the sorts of things set out above) amounted to an abandonment of Eaton's defense by his own counsel.
H. Defense counsel were ineffective in failing to adequately investigate potential mitigation evidence, failing to offer appropriate mitigation evidence, and failing to provide necessary information to mitigation experts.
I. Counsel's failure to object to the given instructions which were substantively different than those proposed by the defense constituted substandard performance and substantially prejudiced Eaton.
J. Counsel did not assure that Eaton's jury was given a constitutionally adequate sentencing form.
III. The jury was not properly instructed on the law as intended by Wyoming's death penalty statute.
IV. An unconstitutional and fatally defective voir dire deprived Eaton of a fair and impartial jury to determine his guilt or innocence and to decide on life or death.
V. The trial court was biased at trial and in limiting the remand, showing such hostility to his claims that Eaton was deprived of due process and prejudiced as a result.
VI. Prosecutorial misconduct occurred, violating Eaton's due process rights and warranting reversal.
VII. Eaton was unable to assist in his own defense and thus was not competent to be tried.
VIII. The trial court erred in denying defense counsel's motion for mistrial, where a juror conducted his own investigation and discussed his investigation during deliberations.
IX. The trial court erred in the admission and presentation of evidence.
X. The trial court erred in permitting the testimony of Dr. Ash without Eaton's express waiver of privilege, and without insuring the protection of Eaton's Fifth Amendment right against self-incrimination.
XI. Is the record below reversibly incomplete?
XII. Cumulative error occurred, warranting reversal of Eaton's convictions and death sentence.

Eaton v. State, 192 P.3d at 49-51.

The Wyoming Supreme Court granted a remand pursuant to Calene v. State, 846 P.2d 679 (Wyo. 1993), for the limited purpose of conducting an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel. The Supreme Court ordered the trial court rule on those claims within ninety days. [Doc. 272, Exhibit 350], Eaton v. State, 192 P.3d at 61. Petitioner objected to the "speedy schedule, " and moved for a continuance in order to investigate his claims for relief. [Doc. 272, Exhibit 351]. The trial court, and the Wyoming Supreme Court, denied the motions to continue the Calene hearing, which was then held by the trial court on June 6-10, 2005. [Doc. 272, Exhibit 352; Doc. 272, Exhibit 353], Eaton v. State, 192 P.3d at 61. Trial counsel for Petitioner, Wyatt Skaggs and Vaughn Neubauer, testified at the hearing. [Doc. 86-3, pp 18-44; Doc. 86-4, pp. 1-44; Doc. 86-5, pp. 1-44; Doc. 86-6, pp. 1-44; Doc. 86-7, pp. 1-44; Doc. 86-8, pp. 1-44; Doc. 86-9, pp. 1-4; Doc. 86-10, pp. 6-55; Doc. 86-11, pp. 1-55; Doc. 86-12, pp. 1-40; Doc. 87-8, pp. 11-48; Doc. 87-9, pp. 1-48; Doc. 87-10, pp. 1-24]. The deposition of defense mitigation expert, Priscilla Moree, was presented. [Doc. 86-5, p.145; Doc. 144-1].

Judge Park issued a decision letter on July 1, 2005, finding trial counsel were not ineffective. [Doc. 272, Exhibit 354]. He found the "additional mitigation evidence [did] not present new mitigating factors, it only reinforce[d] evidence of a known mitigator (i.e., that Eaton had a terrible childhood)." [Doc. 272, Exhibit 354, p. 30]. Judge Park, after weighing the aggravating and mitigating factors, determined Petitioner was not prejudiced by any failure to investigate or present mitigating evidence. [Doc. 272, Exhibit 354, p. 30].

A hearing was conducted on July 13, 2006, to address Petitioner's motion for new trial based on competence issues. Counsel also attempted to introduce new mitigation-based evidence, including an affidavit from Brian Conrado, Petitioner's childhood friend, and school records not previously presented. The motion was denied. [Doc. 145-4].

The Wyoming Supreme Court, on August 18, 2008, in a lengthy decision, unanimously affirmed Petitioner's convictions and sentence. Eaton v. State, 192 P.3d at 49, 124.

State Court Post-Conviction Relief

Petitioner, represented by Michael Reese, filed a petition for post-conviction relief with the trial court on June 3, 2009. The petition raised six issues:

1. The Eighth Amendment, at a minimum, bans the death penalty for individuals who are so mentally ill that Panetti v. Quarterman mandates a vacation of the death penalty.
2. Petitioner was deprived of meaningful appellate review.
3. Defense counsel stipulated to use of a hybrid statute (that is, a statute that contained elements of both the law in effect at the time of the crime and the law in effect at the time of the trial) and by so doing, violated the ex post facto clause.
4. The death penalty, at least as presently administered in Wyoming, is cruel and unusual punishment under the Eighth and Fourteenth Amendments.
5. W.S. § 6-2-102 is further unconstitutional pursuant to the holding in Panetti and Atkins.
6. Wyoming's law on post-conviction relief in [sic] unconstitutional and should be overturned.

[Doc. 272, Exhibit 355].

The State moved for dismissal on the basis none of Petitioner's claims were cognizable in post-conviction relief proceedings. [Doc. 272, Exhibit 356]. It specifically argued Wyo. Stat. Ann. § 7-14-101 limits postconviction relief to constitutional violations which occurred in the proceedings resulting in conviction. Alleged constitutional violations related to the sentencing phase are not cognizable on postconviction review. [Doc. 272, Exhibit 356]. The trial court, following a hearing on the State's motion, issued an Order Granting Respondent's Motion to Dismiss Petition for Post-Conviction Relief on November 4, 2009. [Doc. 272, Exhibit 357]. Petitioner sought a writ of review [Doc. 272, Exhibit 358] from the Wyoming Supreme Court, which was denied. [Doc. 272, Exhibit 359].

Federal Habeas Corpus

Petitioner filed his Petition for Writ of Habeas Corpus herein on August 13, 2010. [Doc. 64]. He raised eleven claims for relief.

1. Lead trial counsel Wyatt Skaggs' failure to recognize and respond appropriately to Mr. Eaton's cognitive and emotional impairment generated mutual distrust, animosity and disloyalty toward his client, and a corresponding failure to communicate with Mr. Eaton, which precluded the development of a workable attorney-client relationship and resulted in an irreparable conflict of interest, in violation of Mr. Eaton's Sixth and Fourteenth Amendment right to the effective assistance of counsel.
2. Trial counsel failed to conduct a reasonable investigation into Mr. Eaton's background, character and mental health.
3. Trial counsel Wyatt Skaggs was ineffective for failing to investigate and assert the issue of Mr. Eaton's lack of mental competence to proceed. As a result, there is a reasonable probability that Mr. Eaton was brought to trial while mentally incompetent.
4. Mr. Eaton's appellate counsel were burdened by a conflict of interest because of their professional affiliation with trial counsel Wyatt Skaggs and State Public Defender Ken Koski, whose personal and professional interests were adverse to Mr. Eaton's interests, and who actively undermined appellate counsel's ability to investigate and pursue legitimate claims of ineffective assistance of trial counsel against Mr. Skaggs.
5. Mr. Eaton's right to due process of law was violated when the prosecution failed to disclose the full extent of its relationship with, and consideration extended to, key prosecution witnesses, including Joe Dax, thus misleading the court, the jury and the defense about witness Dax's incentive to perjure himself.
6. Trial counsel was ineffective for withdrawing Mr. Eaton's motion to change venue and for failing otherwise to assert his client's rights to protect him from devastating effects of highly inflammatory and prejudicial pretrial publicity.
7. Trial counsel was ineffective for failing to question the jury panel effectively regarding the issues of predisposition to impose the death penalty and pretrial publicity, and failed to challenge jurors who admitted bias, resulting in a violation of Mr. Eaton's Sixth and Fourteenth Amendment rights to a fair and impartial jury and to due process of law.
8. Mr. Eaton's trial was tainted by juror misconduct which included an unauthorized, unsupervised trip to the crime scene by one juror who reported his findings to the rest of the jurors, following which several opinions were expressed concerning the crime scene evidence as to tire tracks such that it was the subject of substantial discussion during deliberations, thereby depriving Mr. Eaton of his right to a fair and impartial jury, his Due Process right to a verdict based solely on the evidence and testimony adduced at trial, given under oath, subjected to cross-examination by counsel, and with the opportunity to rebut, under the Sixth and Fourteenth Amendments to the United States Constitution.
9. The application to Mr. Eaton of disadvantageous changes in Wyoming capital sentencing law that occurred after the commission of the offense violated the Ex Post Facto clause of the United States Constitution.
10. The failure to properly instruct Mr. Eaton's jury as to mitigating circumstances left the jury with a fatally flawed formula to weigh aggravating circumstances against mitigating circumstances prior to reaching a verdict, and precluded the jury from considering mitigating evidence and circumstances, violating Mr. Eaton's rights under the Due Process Clause of the 14th Amendment and the Cruel and Unusual Punishment clause of the 8th Amendment.
11. Trial Counsel was ineffective for failing to know the law and assert Mr. Eaton's rights, including, but not limited to:
(a) Trial counsel failed to insist that the jury be properly instructed on its duty to weigh aggravating and mitigating circumstances prior to deciding punishment and trial counsel failed to challenge jury instructions and prosecutorial argument telling the jury that it could not consider or find mitigating factors not causally connected to the crime;
(b) Trial counsel failed to assert the Ex Post Facto Clause violation that occurred when the trial court instructed the jury that the defense had the burden of establishing mitigating factors by a preponderance of the evidence;
(c) Trial counsel's choice of "defense" reflected a flawed understanding of Wyoming's felony murder rule, as interpreted in Bouwkamp v. State; and
(d) Trial and appellate counsel failed to assert the Sixth Amendment/ Bruton v. United States violation that occurred when Detective Tholson informed the jury that Mr. Eaton confessed his guilt to federal inmate Bret Hudson.

[Doc. 64, pp. 36, 56, 126, 140, 158, 186, 201, 219, 238, 257, 281].

Respondent moved for summary judgment on all claims, asserting Petitioner had failed to meet his burden of proof under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). [Doc. 132, Doc. 150]. Petitioner opposed the motion, and requested an evidentiary hearing on all claims. [Doc. 144, Doc. 155, Doc. 157]. A hearing on Respondent's Motion for Summary Judgment was held December 19 and December 20, 2011. [Doc. 147, Doc. 148, Doc. 153, Doc. 154]. An Order was entered May 3, 2012, granting Respondent's motion for summary judgment on Petitioner's Claims 3, 5, 6, 7, 8, 9, and 11(d). [Doc. 158, p. 91]. The Court, however, agreed with the assertion by Petitioner "Wyoming courts have no jurisdiction to entertain claims of ineffective assistance of appellate counsel for failing to present a claim of ineffective assistance of trial counsel where the underlying claim involves punishment rather than guilt/innocence, " thus there is no available state court remedy, and Claim 4 was technically exhausted. [Doc. 158, p. 19]. The Court further agreed because the state courts did not have jurisdiction, the claim was not procedurally defaulted, and could be review by the Court de novo. [Doc. 158, p. 19] The Court further concluded a return to state court would be futile, Williams v. Taylor, 529 U.S. 420, 444 (2000), and presentation of new evidence in the federal court proceeding was appropriate. [Doc. 158, pp. 22, 23]. Respondent's motion for summary judgment on Claim 4 was denied.

The Court also denied Respondent's motion for summary judgment on Claim 1 and Claim 2, which are unquestionably linked. [Doc. 158, p. 33]. The Court concluded Petitioner had overcome the deferential standard of § 2254, and had thus shown the state courts' decisions with regard to Claim 1 and Claim 2 were based on an unreasonable determination of the facts in light of the evidence presented to those courts. [Doc. 158, pp. 32, 35, 36].

Petitioner's Claim 10 and Claims 11(a-c) were denied as moot. His request for an evidentiary hearing on Claims 1, 2, and 4 was granted, [Doc. 158, pp. 90, 91]. An evidentiary hearing was held July 30, 2103, July 31, 2013, August 1, 2013, August 2, 2013, August 5, 2013, August 6, 2013, August 7, 2013, August 8, 2013, August 9, 2013, and August 10, 2013. [Doc. 242; Doc. 245; Doc. 246; Doc. 248; Doc. 251; Doc. 253; Doc. 254; Doc. 255; Doc. 257; Doc. 258; and Docs. 261-271].

APPLICABLE LEGAL PRINCIPLES

28 U.S.C. § 2254

The petition at issue is subject to review pursuant to the AEDPA which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Relitigation of any claim adjudicated on the merits in state court is barred by the AEDPA unless a petitioner can show the state court adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 783-784 (2011).

The Court has previously concluded Petitioner has overcome the deferential standard set forth in 28 U.S.C. §2254 as applicable to Claim One and Claim Two, and Claim Four is technically exhausted. [Doc. 158, pp. 19, 32, 35, 36]. A de novo review of Petitioner's claims is, therefore, appropriate to determine whether Petitioner is in custody in violation of the Constitution or law or treaties of the United States. The Court, in making such a determination, may not grant habeas relief if Respondent can show the constitutional error was harmless, i.e., the error did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrehamson, 507 U.S. 619, 637 (1993). A habeas petition governed by AEDPA which alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), is considered in light of the Strickland prejudice standard. A separate analysis applying the Brecht standard is not required. Byrd v. Workman, 645 F.3d 1159, 1167 fn.9 (10th Cir. 2011).

Ineffective assistance of counsel

A petitioner, in order to establish an ineffective assistance of counsel claim, "must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 1419 (2009).

"To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787-792. Counsel's performance is deficient if the representation "falls below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 690. Prejudice entails "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. See also, United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)(quoting Strickland v. Washington, 466 U.S. at 688, 694). A petitioner, to prove his counsel's performance was deficient, must show the attorney's performance was not within the wide range of competence demanded of attorneys in criminal cases. Laycock v. State of New Mexico, 880 F.2d 1184 (10th Cir. 1989).

The United States Supreme Court, in 2011, in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770 (2011), reiterated its philosophy on deficient performance and prejudice first set out in Strickland v. Washington . The Supreme Court, with regard to deficient performance, stated:

To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688, 104 S.Ct. 2052. A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id., at 689, 104 S.Ct. 2052. The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687, 104 S.Ct. 2052.
...
The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms, " not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
...
Strickland, however, permits counsel to "make a reasonable decision that makes particular investigations unnecessary." 466 U.S. at 691, 104 S.Ct. 2052.
...
Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies. See Knowles, supra, at 787-788, 129 S.Ct. at 1421-22; Rompilla v. Beard, 545 U.S. 374, 383, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Strickland, 466 U.S., at 699, 104 S.Ct. 2052.
...
Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind. 466 U.S., at 688, 104 S.Ct. 2052.
...
Representation is constitutionally ineffective only if it "so undermined the proper functioning of the adversarial process" that the defendant was denied a fair trial. Strickland, supra, at 686, 104 S.Ct. 2052.

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787, 788, 789, 790, 791. See also, United States v. Rushin, 642 F.3d 1299, 1306, 1307, 1308 (10th Cir. 2011).

The United States Supreme Court in Harrington v. Richter , as concerns prejudice, also stated:

With respect to prejudice, a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694, 104 S.Ct. 2052. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id., at 693, 104 S.Ct. 2052. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687, 104 S.Ct. 2052.
...
In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. See Wong v. Belmontes, 558 U.S. ___, ___, 130 S.Ct. 383, 390, 175 L.Ed.2d 328 (2009) (per curiam) (slip op., at 13); Strickland, 466 U.S., at 693, 104 S.Ct. 2052. Instead, Strickland asks whether it is "reasonably likely" the result would have been different. Id., at 696, 104 S.Ct. 2052. This does not require a showing that counsel's actions "more likely than not altered the outcome, " but the difference between Strickland 's prejudice standard and a more-probable-than-not standard is slight and matters "only in the rarest case." Id., at 693, 697, 104 S.Ct. 2052. The likelihood of a different result must be substantial, not just conceivable. Id., at 693, 104 S.Ct. 2052.

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787-788, 791-792. See also, United States v. Rushin, 642 F.3d at 1309-1310.

The United States Supreme Court has also offered this explanation of the "deficient performance" and "prejudice" standard, and its relationship to the AEDPA:

"Surmounting Strickland 's high bar is never an easy task.' Padilla v. Kentucky, 559 U.S. ___, ___ [130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690 [104 S.Ct. 2052]. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting' to second-guess counsel's assistance after conviction or adverse sentence.' Id., at 689 [104 S.Ct. 2052]; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, ' not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
"Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, ' id., at 689 [104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is doubly' so, Knowles, 556 U.S., at ___, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at ___ [129 S.Ct., at 1420]. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard."

Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739-740 (2011)(quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 788).

Logic would seem to dictate a defendant must show deficient performance before showing how such performance prejudiced him. A reviewing court, however, may consider the two inquiries, performance and prejudice, in any order, and there is no reason "to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which [the Supreme Court] expect[s] will often be so, that course should be followed." Strickland v. Washington, 466 U.S. at 697.

The proper standard for measuring attorney performance is not one of perfection. United States v. Haddock, 12 F.3d 950, 955, 956 (10th Cir. 1993). It is rather one of reasonably effective assistance. Gillette v. Tansy, 17 F.3d 308, 310, 311 (10th Cir. 1994).

A petitioner, to establish prejudice, has a difficult burden. More than a theoretical effect must be shown on the outcome of petitioner's case as a result of attorney errors. A petitioner must show that, but for those errors, there is a reasonable probability the results would have been different, i.e., petitioner would have been acquitted, or would not have pleaded guilty, or would have received a more favorable sentence. Strickland v. Washington, 466 U.S. at 694. See also, Hill v. Lockhart, 474 U.S. 52, 59 (1985), and Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996).

"In analyzing whether counsel's alleged errors prejudiced petitioner, [the Court] must keep in mind the standard to be applied in assessing whether petitioner is entitled to an evidentiary hearing in federal court on his ineffectiveness claim. First, the petitioner bears the burden of alleging facts which, if proved, would entitle him to relief. Moreover, his allegations must be specific and particularized; conclusory allegations will not suffice to warrant a hearing."

Hatch v. State of Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) (overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.l (10th Cir. 2001)) (citations and quotations omitted). If a petitioner is unable to meet this burden with regard to either prong of the test, his motion must be denied. Hatch v. State of Oklahoma , 58 F.3d at1457.

A court's review, in measuring an attorney's performance, must be highly deferential:

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, Petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case.

Strickland v. Washington, 466 U.S. at 689 (citations and quotation omitted). See also, United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. at 689).

The parameters for consideration of a claim of deficient performance are thus, in summary:

1. Measuring standard is reasonably effective assistance, not perfection.

2. Performance is deficient if it falls below an objective standard of reasonableness.

3. Strong presumption performance falls within wide range of reasonable assistance.

4. Standard is prevailing professional norms, not best practices or common custom.

5. Decision not to pursue a particular investigation may be a reasonable decision.

6. Reasonable strategy to balance limited resources with effective trial tactics and strategies.

The parameters for consideration of a claim of prejudice can be summarized as:

1. Prejudice must be more than theoretical.

2. "But for" deficient performance reasonable probability results would have been different, i.e. more favorable sentence.

3. The fact the errors [deficient performance] had some conceivable effect on outcome is not sufficient.

4. Likelihood of a different result must be substantial, not just conceivable. The Tenth Circuit in Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012), addressed, in some depth, deficient performance and prejudice with regard to mitigation in a capital case.

b. Counsel's failures

Mr. Evans's mitigation case failed to meet the standards we have set out for counsel in capital-sentencing proceedings. Indeed, the presentation was sub-par in almost every relevant respect. Evidence of family and social history was sorely lacking; the mental-health evidence presented was inadequate and quite unsympathetic; and Mr. Evans not only failed to rebut the prosecution's case in aggravation but actually bolstered it by his own statements.
Family and social history. The testimony by Mr. Hooks's family members was perfunctory, to put it mildly. Mr. Evans made no attempt to educate the jury, through the testimony of Clara and Vargus Hooks, on Mr. Hooks's life circumstances and his tragic, chaotic upbringing. Even the most minimal investigation would have uncovered a life story worth telling: a premature birth, an openly abusive father, frequent moves, educational handicaps, and personal family tragedies. We have previously recognized that "this type of evidence is exactly the sort of evidence that garners the most sympathy from jurors.'... The information was readily available from Clara and Vargus, but Mr. Evans neglected even to ask.
Mental-health evidence. While Dr. Murphy's testimony may have helped the jury see that Mr. Hooks suffered from mental problems, it was troubling in a number of respects. First, throughout the testimony, Mr. Evans made little effort to connect Dr. Murphy's diagnosis to the circumstances of the crime. The importance of counsel's role in this regard cannot be overstated, as we have repeatedly recognized. Counsel in capital cases must explain to the jury why a defendant may have acted as he did-must connect the dots between, on the one hand, a defendant's mental problems, life circumstances, and personal history and, on the other, his commission of the crime in question.... Here, in listening to Dr. Murphy, the jury was left with almost no explanation of how Mr. Hooks's mental problems played into the murder of Ms. Blaine (both the fatal beating he administered, and his apparent remorse and attempt to secure help immediately thereafter).
Absent this explanation, Dr. Murphy's testimony at several points actually worked in the State's favor... He repeatedly referred to Mr. Hooks as "violent, "... even once as "very, very violent, " and "crazy, "... True, Dr. Murphy did opine at one point that Mr. Hooks could not have committed "cold-blooded, premeditated" murder.... But that aspect of his testimony was significantly undermined when the jury learned, on cross-examination, that Dr. Murphy knew almost nothing about Mr. Hooks's case-that he had not read the police reports, had not listened to Mr. Hooks's confession, and had not seen the photographs.... Mr. Evans totally failed to prepare his witness, thus strongly diminishing the potential mitigating impact of the testimony.
Further investigation into readily available evidence also would have revealed that the mental-health problems were enduring. Since childhood, Mr. Hooks had struggled in school, was frequently evaluated for mental retardation, and was placed in special-education classes... While he may not meet the legal definition of mentally retarded under Oklahoma law, no one disputes that by the time of trial he had been clinically diagnosed with mild or borderline mental retardation.... Evidence of Mr. Hooks's educational handicaps was surely relevant to the jury's appraisal. It was readily available and should have been part of Mr. Evans's mitigation case. See Anderson, 476 F.3d at 1143.
Even more importantly, Mr. Hooks's premature birth, the head injury he suffered in an eighteen-wheeler accident, and the problems he experienced thereafter were clear markers for organic brain damage... Five years after conviction and sentencing, Dr. Gelbort diagnosed Mr. Hooks with diffuse organic brain damage and testified at the 1997 federal evidentiary hearing that Mr. Hooks has damage to his frontal lobes, the "gas pedal and the brake pedal of behavior."... Evidence of organic brain damage is something that we and other courts, including the Supreme Court, have found to have a powerful mitigating effect.... And for good reason-the involuntary physical alteration of brain structures, with its attendant effects on behavior, tends to diminish moral culpability, altering the causal relationship between impulse and action.... Neither Mr. Evans nor Dr. Murphy looked into the possibility of organic brain damage. Had they done so, as Dr. Gelbort did, Mr. Evans could have sketched a more sympathetic figure of Mr. Hooks, one less deserving of death.

Hooks v. Workman, 689 F.3d at 1203, 1204 (internal citations and footnotes omitted, emphasis in original).

American Bar Association Guidelines

The United States Supreme Court has concluded, when considering deficient performance in death penalty cases, the American Bar Association guidelines in effect at the time of the representation may well indicate the appropriate "prevailing norms" which reasonably diligent attorneys would follow.

Under Strickland, we first determine whether counsel's representation "fell below an objective standard of reasonableness." 466 U.S., at 688, 104 S.Ct. 2052. Then we ask whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694, 104 S.Ct. 2052. The first prong-constitutional deficiency-is necessarily linked to the practice and expectations of the legal community: "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., at 688, 104 S.Ct. 2052. We long have recognized that "[p]revailing norms of practice as reflected in American Bar Association standards and the like... are guides to determining what is reasonable...." Ibid.; Bobby v. Van Hook, 558 U.S. 4, ___, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009) (per curiam) ; Florida v. Nixon, 543 U.S. 175, 191, and n. 6, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004); Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Although they are "only guides, " Strickland, 466 U.S., at 688, 104 S.Ct. 2052, and not "inexorable commands, " Bobby, 558 U.S., at ___, 130 S.Ct., at 17, these standards may be valuable measures of the prevailing professional norms of effective representation[.]

Padilla v. Kentucky, 559 U.S. 356, 366, 367 (2010). See also, Anthony v. Alabama, ___ U.S. ___, ____, 134 S.Ct. 1081, 1088 (2014)(quoting Padilla v. Kentucky, 559 U.S. at 366); Heard v. Addison, 728 F.3d 1170, 1180 (10th Cir. 2013).

Counsel's conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)-standards to which we long have referred as "guides to determining what is reasonable." Strickland, supra, at 688, 104 S.Ct. 2052; Williams v. Taylor, supra, at 396, 120 S.Ct. 1495. The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added).

Wiggins v. Smith, 539 U.S. 510, 524 (2003). See also, Young v. Sirmons, 551 F.3d 942, 957 (10th Cir. 2008)(quoting Wiggins v. Smith, 539 U.S. at 524).

Counsel must perform in accordance with "prevailing professional norms." Young v. Sirmons (Julius Young), 551 F.3d 942, 956-57 (10th Cir.2008) (quoting Wiggins, 539 U.S. at 523, 123 S.Ct. 2527). In capital cases, we refer to the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guidelines") in assessing those "professional norms." Id. at 957. Generally, "[a]mong the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences." Id. (emphasis added).
Counsel must conduct a "thorough investigation-in particular, of mental health evidence-in preparation for the sentencing phase of a capital trial." Wilson, 536 F.3d at 1083. "We recently had occasion to expound on this principle, drawing on a trilogy of Supreme Court cases- Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)-involving ineffective assistance at capital-sentencing proceedings." Victor Hooks, 689 F.3d at 1201 (referring to the discussion in Wilson, 536 F.3d at 1084-85). We set forth "three important principles" that are derived from these cases:
First, the question is not whether counsel did something; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence.
Wilson, 536 F.3d at 1084-85 (emphasis added) (internal quotation marks omitted) (citations omitted); see id. at 1085 (noting that "[o]ur own Circuit has emphasized this [due-diligence] guiding principle").

Littlejohn v. Trammell, 704 F.3d 817, 859, 860 (10th Cir. 2013).

Restatements of professional standards, we have recognized, can be useful as "guides" to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.

Bobby v. Van Hook, 558 U.S. 4, 6, (2009)(citing Strickland v. Washington, 466 U.S. at 688). See also, Welch v. Workman, 639 F.3d 980, 1015 (10th Cir. 2011); Detrich v. Ryan, 677 F.3d 958, 973-974 (9th Cir. 2012).

Petitioner's state court trial resulted in a sentence of death imposed on June 3, 2004. Eaton v. State, 192 P.3d at 49. The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Revised Edition, February, 2003, thus represent the "guides to determining what is reasonable" in considering the deficient performance aspect of the ineffective assistance of counsel allegations. Bobby v. Van Hook, 558 U.S. at 6.

There are a number of American Bar Association Guidelines possibly relevant to the assertions by Petitioner.[3]

Guideline 1.1 Objective and Scope of Guidelines

A. The objective of these Guidelines is to set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.
B. These Guidelines apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial, post-conviction review, clemency proceedings, and any connected litigation.
Definitional Notes
Throughout these Guidelines:
1. As in the first edition, "should" is used as a mandatory term.
...
5. The term "post-conviction" is a general one, including (a) all stages of direct appeal within the jurisdiction and certiorari (b) all stages of state collateral review proceedings (however denominated under state law) and certiorari, (c) all stages of federal collateral review proceedings, however denominated (ordinarily petitions for writs of habeas corpus or motions pursuant to 28 U.S.C. § 2255, but including all applications of similar purport, e.g., for writ of error coram nobis), and including all applications for action by the Courts of Appeals or the United States Supreme Court (commonly certiorari, but also, e.g., applications for original writs of habeas corpus, applications for certificates of probable cause), all applications for interlocutory relief (e.g., stay of execution, appointment of counsel) in connection with any of the foregoing.
...
Commentary
...
Representation at Trial
An attorney representing the accused in a death penalty case must fully investigate the relevant facts. Because counsel faces what are effectively two different trials - one regarding whether the defendant is guilty of a capital crime, and the other concerning whether the defendant should be sentenced to death - providing quality representation in capital cases requires counsel to undertake correspondingly broad investigation and preparation. Investigation and planning for both phases must begin immediately upon counsel's entry into the case, even before the prosecution has affirmatively indicated that it will seek the death penalty. Counsel must promptly obtain the investigative resources necessary to prepare for both phases, including at minimum the assistance of a professional investigator and a mitigation specialist, as well as all professional expertise appropriate to the case. Comprehensive pretrial investigation is a necessary prerequisite to enable counsel to negotiate a plea that will allow the defendant to serve a lesser sentence, to persuade the prosecution to forego seeking a death sentence at trial, or to uncover facts that will make the client legally ineligible for the death penalty. At the same time, counsel must consciously work to establish the special rapport with the client that will be necessary for a productive professional relationship over an extended period of stress.
...
Along with preparing to counter the prosecution's case for the death penalty, defense counsel must develop an affirmative case for sparing the defendant's life. A capital defendant has an unqualified right to present any facet of his character, background, or record that might call for a sentence less than death. [ Eddings v. Oklahoma, 455 U.S. 104, 116 (1982)] This Eighth Amendment right to offer mitigating evidence "does nothing to fulfill its purpose unless it is understood to presuppose that the defense lawyer will unearth, develop, present and insist on the consideration of those compassionate or mitigating factors stemming from the diverse frailties of humankind.'" Nor will the presentation be persuasive unless it (a) is consistent with that made by the defense at the guilt phase and (b) links the client's behavior to the evidence offered in mitigation.
...
Post-conviction Review
Ensuring high quality legal representation in capital trials, however, does not diminish the need for equally effective representation on appeal, in state and federal post-conviction proceedings, and in applications for executive clemency.
...
A. Representation on Direct Appeal
The Constitution guarantees effective assistance of counsel on an appeal as of right. [ Evitts v. Lucy, 469 U.S. 387, 395-396 (1985)].
...
Conclusion
Unless legal representation at each stage of a capital case reflects current standards of practice, there is an unacceptable "risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty." [ Lockett v. Ohio, 438 U.S. 586, 605 (1978)]. Accordingly, any jurisdiction wishing to impose a death sentence must at minimum provide representation that comports with these Guidelines.

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, February 2003, [ABA Guidelines] pp. 1, 5, 6, 7, 8, 10, 11, 12, 13, 14, 17(footnotes omitted, selected case citations from footnotes included in text).

Guideline 4.1 The Defense Team and Supporting Services

...
A.1. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist.
A. 2. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.
...
Commentary
Introduction
In a capital case reaffirming that fundamental fairness entitles indigent defendants to the "basic tools of an adequate defense, " the United States Supreme Court stated:
We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the [prosecution] proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. [ Ake v. Oklahoma, 470 U.S. 68, 77 (1985)].
It is critically important, therefore, that each jurisdiction authorize sufficient funds to enable counsel in capital cases to conduct a thorough investigation for trial, sentencing, appeal, post-conviction and clemency, and to procure and effectively present the necessary expert witnesses and documentary evidence.
The Team Approach to Capital Defense
National standards on defense services have consistently recognized that quality representation cannot be rendered unless assigned counsel have access to adequate supporting services, including, "expert witnesses capable of testifying at trial and at other proceedings, personnel skilled in social work and related disciplines to provide assistance at pretrial release hearings and at sentencing, and trained investigators to interview witnesses and to assemble demonstrative evidence."
This need is particularly acute in death penalty cases.
...
In particular, mental health experts are essential to defending capital cases. Neurological and psychiatric impairment, combined with a history of physical and sexual abuse, are common among persons convicted of violent offenses. Evidence concerning the defendant's mental status is relevant to numerous issues that arise at various junctures during the proceedings, including competency to stand trial, sanity at the time of the offense, capacity to intend or premeditate death, ability to comprehend Miranda warnings, and competency to waive constitutional rights. The Constitution forbids the execution of persons with mental retardation, making this a necessary area of inquiry in every case. Further, the defendant's psychological and social history and his emotional and mental health are often of vital importance to the jury's decision at the punishment phase. Creating a competent and reliable mental health evaluation consistent with prevailing standards of practice is a time-consuming and expensive process.
...
Counsel's own observations of the client's mental status, while necessary, can hardly be expected to be sufficient to detect the array of conditions (e.g., post-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning, lead poisoning, schizophrenia, mental retardation) that could be of critical importance. Accordingly, Subsection A (2) mandates that at least one member of the defense team (whether one of the four individuals constituting the smallest allowable team or an additional team member) be a person qualified by experience and training to screen for mental or psychological disorders or defects and recommend such further investigation of the subject as may seem appropriate....
The Core Defense Team
In addition to employing the particular nonlegal resources that high quality legal representation requires in each individual case, the standard of practice demands that counsel have certain specific forms of assistance in every case. This Guideline accordingly requires that those resources be provided.
A. The Investigator
The assistance of an investigator who has received specialized training is indispensable to discovering and developing the facts that must be unearthed at trial or in post-conviction proceedings.
...
B. The Mitigation Specialist
A mitigation specialist is also an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant's development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf.
Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team insures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict. The mitigation specialist compiles a comprehensive and well-documented psycho-social history of the client based on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client's life history; identifies the need for expert assistance; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation.
The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a sentence less than death.
For all of these reasons the use of mitigation specialists has become "part of the existing standard of care'" in capital cases, ensuring "high quality investigation and preparation of the penalty phase."

[ABA Guidelines, pp. 28, 29, 30, 31, 32, 33, (footnotes omitted, selected case citations from footnotes included in text)].

Guideline 5.1 Qualifications of Defense Counsel
...
B.1. That every attorney representing a capital defendant has:
...
c. satisfied the training requirements set forth in Guideline 8.1.
B.2. [T]he pool of defense attorneys as a whole is such that each capital defendant within the jurisdiction receives high quality legal representation. Accordingly, the qualification standards should insure that the pool includes sufficient numbers of attorneys who have demonstrated:
a. substantial knowledge and understanding of the relevant state, federal and international law, both procedural and substantive, governing capital cases;
b. skill in the management and conduct of complex negotiations and litigation;
c. skill in legal research, analysis, and the drafting of litigation documents;
d. skill in oral advocacy;
e. skill in the use of expert witnesses and familiarity with common areas of forensic investigation, including fingerprints, ballistics, forensic pathology, and DNA evidence;
f. skill in the investigation, preparation, and presentation of evidence bearing upon mental status;
g. skill in the investigation, preparation, and presentation of mitigating evidence; and
h. skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses, and opening and closing statements.

[ABA Guidelines, p. 35].

Guideline 8.1 Training
...
B. Attorneys seeking to qualify to receive appointments should be required to satisfactorily complete a comprehensive training program, approved by the Responsible Agency, in the defense of capital cases. Such a program should include, but not be limited to, presentations and training in the following areas:
1. relevant state, federal, and international law;
2. pleading and motion practice;
3. pretrial investigation, preparation, and theory development regarding guilt/innocence and penalty;
4. jury selection;
5. trial preparation and presentation, including the use of experts;
6. ethical considerations particular to capital defense representation;
7. preservation of the record and of issues for post-conviction review;
8. counsel's relationship with the client and his family;
9. post-conviction litigation in state and federal courts;
10. the presentation and rebuttal of scientific evidence, and developments in mental health fields and other relevant areas of forensic and biological science;
11. the unique issues relating to the defense of those charged with committing capital offenses when under the age of 18.
...
Commentary
As indicated in the Commentary to Guideline 1.1, providing high quality legal representation in capital cases requires unique skills. Accordingly, the standard of practice requires that counsel have received comprehensive specialized training before being considered qualified to undertake representation in a death penalty case. Such training must not be confined to instruction in the substantive law and procedure applicable to legal representation of capital defendants, but must extend to related substantive areas of mitigation and forensic science. In addition, comprehensive training programs must include practical instruction in advocacy skills, as well as presentations by experienced practitioners.

[ABA Guidelines, pp. 46, 48, (footnotes omitted)].

Guideline 10.4 The Defense Team
...
B. Lead counsel bears overall responsibility for the performance of the defense team, and should allocate, direct, and supervise its work in accordance with these Guidelines and professional standards.
...
C. As soon as possible after designation, lead counsel should assemble a defense team by:
...
2.... selecting and making any appropriate contractual agreements with non-attorney team members in such a way that the team includes:
a. at least one mitigation specialist and one fact investigator;
b. at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments; and
c. any other members needed to provide high quality legal representation.
D. Counsel should demand on behalf of the client all resources necessary to provide high quality legal representation. If such resources are denied, counsel should make an adequate record to preserve the issue for post-conviction review.
Commentary
As reflected in Guideline 4.1 and the accompanying Commentary, the provision of high quality legal representation in capital cases requires a team approach that combines the different skills, experience, and perspectives of several disciplines.
...
The defense team should include at least two attorneys, a fact investigator, and a mitigation specialist.... In addition, as also described in the Commentary to Guideline 4.1, the team must have a member (who may be one of the foregoing or an additional person) with the necessary qualifications to screen individuals (the client in the first instance, but possibly family members as the mitigation investigation progresses) for mental or psychological disorders or defects and to recommend such further investigation of the subject as may seem appropriate.
The team described in the foregoing paragraph is the minimum.
Lead counsel is responsible, in the exercise of sound professional judgment, for determining what resources are needed and for demanding that the jurisdiction provide them.
....
If such requests are denied, counsel should make an adequate record to preserve the issue for post-conviction review.

[ABA Guidelines, pp. 63, 65, 66 (footnotes omitted)].

Guideline 10.5 Relationship with the Client
A. Counsel at all stages of the case should make every appropriate effort to establish a relationship of trust with the client, and should maintain close contact with the client.
...
C. Counsel at all stages of the case should engage in a continuing interactive dialogue with the client concerning all matters that might reasonably be expected to have a material impact on the case, such as:
1. the progress of and prospects for the factual investigation, and what assistance the client might provide to it;
2. current or potential legal issues;
3. the development of a defense theory;
4. presentation of the defense case;
5. potential agreed-upon dispositions of the case;
6. litigation deadlines and the projected schedule of case-related events; and
7. relevant aspects of the client's relationship with correctional, parole, or other governmental agents (e.g., prison medical providers or state psychiatrists).
...
Commentary
Counsel's Duty
Although ongoing communication by non-attorney members of the defense team is important, it does not discharge the obligation of counsel at every stage of the case to keep the client informed of developments and progress in the case, and to consult with the client on strategic and tactical matters. Some decisions require the client's knowledge and agreement; others, which may be made by counsel, should nonetheless be fully discussed with the client beforehand.
Establishing a relationship of trust with the client is essential both to overcome the client's natural resistance to disclosing the often personal and painful facts necessary to present an effective penalty phase defense, as discussed in the text accompanying notes 101-04 supra, and to ensure that the client will listen to counsel's advice on important matters such as whether to testify and the advisability of a plea. Client contact must be ongoing. An occasional hurried interview with the client will not reveal to counsel all the facts needed to prepare for trial, appeal, post-conviction review, or clemency. Similarly, a client will not - with good reason - trust a lawyer who visits only a few times before trial, does not send or reply to correspondence in a timely manner, or refuses to take telephone calls
Often, so-called "difficult" clients are the consequence of bad lawyering - either in the past or present. Simply treating the client with respect, listening and responding to his concerns, and keeping him informed about the case will often go a long way towards eliciting confidence and cooperation.
Overcoming barriers to communication and establishing a rapport with the client are critical to effective representation. Even apart from the need to obtain vital information, the lawyer must understand the client and his life history. To communicate effectively on the client's behalf in negotiating a plea, addressing a jury, arguing to a post-conviction court, or urging clemency, counsel must be able to humanize the defendant. That cannot be done unless the lawyer knows the inmate well enough to be able to convey a sense of truly caring what happens to him.
...

[ABA Guidelines, pp. 68, 70, 71, 72 (footnotes omitted)].

Guideline 10.7 Investigation
A. Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty.
...
2. The investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented.
B. 1. Counsel at every stage have an obligation to conduct a full examination of the defense provided to the client at all prior phases of the case. This obligation includes at minimum interviewing prior counsel and members of the defense team and examining the files of prior counsel.

...

Commentary
Penalty
Counsel's duty to investigate and present mitigating evidence is now well established. [ Williams v. Taylor, 529 U.S. 362, 365-396 (2000); Caro v. Woodford, 280 F.3d 1247, 1255 (9th Cir. 2002) cert. denied, 122 S.Ct. 2645 (2002); Coleman v. Mitchell, 268 F.3d 417, 449-451 (6th Cir. 2001) cert. denied, 122 S.Ct. 1639 (2002); Jermyn v. Horn, 266 F.3d 257, 307-308 (3d Cir. 2001)]. The duty to investigate exists regardless of the expressed desires of a client. [ Blanco v. Singletary, 943 F.2d 1477, 1501-1503 (11th Cir. 1991) cert. denied, 525 U.S. 837 (1989)]. Nor may counsel "sit idly by, thinking that investigation would be futile." [ Voyles v. Watkins, 489 F.Supp. 901, 910 (N.D. Miss. 1980); accord Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997) cert. denied, 523 U.S. 1079 (1998)].
...
Because the sentencer in a capital case must consider in mitigation, "anything in the life of the defendant which might militate against the appropriateness of the death penalty for the defendant, " [ Brown v. State, 526 So.2d 903, 908 (Fla. 1988)(citing Hitchcock v. Dugger, 481 U.S. 393 (1987)], "penalty phase preparation requires extensive and generally unparalleled investigation into personal and family history." In the case of the client, this begins with the moment of conception. Counsel needs to explore:
(1) Medical history (including hospitalizations, mental and physical illness or injury, alcohol and drug use, pre-natal and birth trauma, malnutrition, developmental delays, and neurological damage);
(2) Family and social history (including physical, sexual or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence; poverty, familial instability, neighborhood environment and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one or a natural disaster; experiences of racism or other social or ethnic bias; cultural or religious influences; failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality foster care or juvenile detention facilities);
(3) Educational history (including achievement, performance, behavior, and activities), special educational needs (including cognitive limitations and learning disabilities) and opportunity or lack thereof, and activities;
(4) Military service, (including length and type of service, conduct, special training, combat exposure, health and mental health services);
(5) Employment and training history (including skills and performance, and barriers to employability);
(6) Prior juvenile and adult correctional experience (including conduct while under supervision, in institutions of education or training, and regarding clinical services);
...
Counsel should bear in mind that much of the information that must be elicited for the sentencing phase investigation is very personal and may be extremely difficult for the client to discuss. Topics like childhood sexual abuse should therefore not be broached in an initial interview. Obtaining such information typically requires overcoming considerable barriers, such as shame, denial and repression, as well as other mental or emotional impairments from which the client may suffer. As noted supra in the text accompanying note 101, a mitigation specialist who is trained to recognize and overcome these barriers, and who has the skills to help the client cope with the emotional impact of such painful disclosures, is invaluable in conducting this aspect of the investigation.
It is necessary to locate and interview the client's family members (who may suffer from some of the same impairments as the client), and virtually everyone else who knew the client and his family, including neighbors, teachers, clergy, case workers, doctors, correctional, probation or parole officers, and others. Records - from courts, government agencies, the military, employers, etc. - can contain a wealth of mitigating evidence, documenting or providing clues to childhood abuse, retardation, brain damage, and/or mental illness, [ Williams v. Taylor, 529 U.S. 362, 395 (2000)] and corroborating witnesses' recollections. Records should be requested concerning not only the client, but also his parents, grandparents, siblings, and children. A multi-generational investigation frequently discloses significant patterns of family dysfunction and may help establish or strengthen a diagnosis or underscore the hereditary nature of a particular impairment. The collection of corroborating information from multiple sources - a time-consuming task - is important wherever possible to ensure the reliability and thus the persuasiveness of the evidence.
Counsel should use all appropriate avenues including signed releases, subpoenas, court orders, and requests or litigation pursuant to applicable open records statutes, to obtain all potentially relevant information pertaining to the client, his or her siblings and parents, and other family members, including but not limited to:
a. school records
b. social service and welfare records
c. juvenile dependency or family court records
d. medical records
e. military records
f. employment records
g. criminal and correctional records
h. family birth, marriage, and death records
i. alcohol and drug abuse assessment or treatment records
j. INS records
If the client was incarcerated, institutionalized or placed outside of the home, as either a juvenile or an adult, the defense team should investigate the possible effect of the facility's conditions on the client's contemporaneous and later conduct. The investigation should also explore the adequacy of institutional responses to childhood trauma, mental illness or disability to determine whether the client's problems were ever accurately identified or properly addressed.

[ABA Guidelines, pp. 76, 80, 81, 82, 83, 84, (footnotes omitted, selected case citations from footnotes included in text)].

Guideline 10.11 The Defense Case Concerning Penalty
A. As set out in Guideline 10.7(A), counsel at every stage of the case have a continuing duty to investigate issues bearing upon penalty and to seek information that supports mitigation or rebuts the prosecution's case in aggravation.
B. Trial counsel should discuss with the client early in the case the sentencing alternatives available, and the relationship between the strategy for the sentencing phase and for the guilt/innocence phase.
C. Prior to the sentencing phase, trial counsel should discuss with the client the specific sentencing phase procedures of the jurisdiction and advise the client of steps being taken in preparation for sentencing.
D. Counsel at every stage of the case should discuss with the client the content and purpose of the information concerning penalty that they intend to present to the sentencing or reviewing body or individual, means by which the mitigation presentation might be strengthened, and the strategy for meeting the prosecution's case in aggravation.
E. Counsel should consider, and discuss with the client, the possible consequences of having the client testify or make a statement to the sentencing or reviewing body or individual.
F. In deciding which witnesses and evidence to prepare concerning penalty, the areas counsel should consider include the following:
1. Witnesses familiar with and evidence relating to the client's life and development, from conception to the time of sentencing, that would be explanatory of the offense(s) for which the client is being sentenced, would rebut or explain evidence presented by the prosecutor, would present positive aspects of the client's life, or would otherwise support a sentence less than death;
2. Expert and lay witnesses along with supporting documentation (e.g. school records, military records) to provide medical, psychological, sociological, cultural or other insights into the client's mental and/or emotional state and life history that may explain or lessen the client's culpability for the underlying offense(s); to give a favorable opinion as to the client's capacity for rehabilitation, or adaptation to prison; to explain possible treatment programs; or otherwise support a sentence less than death; and/or to rebut or explain evidence presented by the prosecutor;
3. Witnesses who can testify about the applicable alternative to a death sentence and/or the conditions under which the alternative sentence would be served;
4. Witnesses who can testify about the adverse impact of the client's execution on the client's family and loved ones;
...
Commentary
The Defense Presentation at the Penalty Phase
[A]reas of mitigation are extremely broad and encompass any evidence that tends to lessen the defendant's moral culpability for the offense or otherwise supports a sentence less than death. [ Penry v. Lynaugh, 492 U.S. 302, 327-328 (1989)]. In particular, a mitigation presentation may be offered not to justify or excuse the crime "but to help explain it." If counsel cannot establish a direct cause and effect relationship between any one mitigating factor and the commission of a capital offense, counsel should endeavor to show the combination of factors that led the client to commit the crime. In any event, it is critically important to construct a persuasive narrative, rather than to simply present a catalog of seemingly unrelated mitigating factors.
Since an understanding of the client's extended, multigenerational history is often needed for an understanding of his functioning, construction of the narrative normally requires evidence that sets forth and explains the client's complete social history from before conception to the present. Expert witnesses may be useful for this purpose and, in any event, are almost always crucial to explain the significance of the observations.
...
Family members and friends can provide vivid first-hand accounts of the poverty and abuse that characterize the lives of many capital defendants.
...
In addition to humanizing the client, counsel should endeavor to show that the alternatives to the death penalty would be adequate punishment. Studies show that "future dangerousness is on the minds of most capital jurors, and is thus at issue' in virtually all capital trials, " whether or not it is argued by the prosecution or is a statutorily mandated sentencing consideration.
...
Counsel should emphasize through evidence, argument, and/or instruction that the client will either never be eligible for parole, will be required to serve a lengthy minimum mandatory sentence before being considered for parole, or will be serving so many lengthy, consecutive sentences that he has no realistic hope of release. [ Kelly v. South Carolina, 534 U.S. 246 (2002)].

[ABA Guidelines, pp. 104, 107, 108, 109, (footnotes omitted, selected case citations from footnotes included in text)].

There are no American Bar Association Guidelines for determining whether a deficient performance by either trial counsel or appellate counsel resulted in actual prejudice, without which there is a substantial likelihood a different result would have occurred, i.e., as regards Petitioner, a sentence of life imprisonment. The United States Supreme Court has, however, outlined the proper prejudice inquiry for evaluating a claim of ineffective assistance of counsel in the context of a penalty phase mitigation investigation.
We certainly have never held that counsel's effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant. To the contrary, we have consistently explained that the Strickland inquiry requires precisely the type of probing and fact-specific analysis that the state trial court failed to undertake below. [footnote omitted] In the Williams decision, for instance, we categorically rejected the type of truncated prejudice inquiry undertaken by the state court in this case. 529 U.S., at 397-398, 120 S.Ct. 1495. And, in Porter, we recently explained:
"To assess [the] probability [of a different outcome under Strickland ], we consider the totality of the available mitigation evidence-both that adduced at trial, and the evidence adduced in the habeas proceeding-and reweig [h] it against the evidence in aggravation." 558 U.S., at ____[, 130 S.Ct., at 453-54] (internal quotation marks omitted; third alteration in original).
That same standard applies-and will necessarily require a court to "speculate" as to the effect of the new evidence-regardless of how much or how little mitigation evidence was presented during the initial penalty phase.

Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 3266-3267 (2010). See also, Littlejohn v. Trammell, 704 F.3d at 864 (quoting Sears v. Upton, 561 U.S. 945, 130 S.Ct. at 3266).

DISCUSSION

CLAIM ONE

Lead trial counsel Wyatt Skaggs' failure to recognize and respond appropriately to [Petitioner's] cognitive and emotional impairment generated mutual distrust, animosity and disloyalty toward his client, and a corresponding failure to communicate with [Petitioner], which precluded the development of a workable attorney-client relationship and resulted in an irreparable conflict of interest, in violation of [Petitioner's] Sixth and Fourteenth Amendment right to the effective assistance of counsel.

CLAIM TWO

Trial counsel failed to conduct a reasonable investigation into [Petitioner's] background, character and mental health.
These two claims as presented by Petitioner through his § 2254 petition are unquestionably linked as each asserts ineffective assistance of trial counsel. Petitioner alleges lead trial counsel failed to recognize and respond appropriately to his, Petitioner's, cognitive and emotional impairment. He asserts this failure created an atmosphere of mutual distrust and animosity between Petitioner and his counsel, with a resulting lack of communication which precluded a workable attorney-client relationship. The consequence of this communication breakdown was an irreparable conflict of interest, in violation of Petitioner's Sixth and Fourteenth Amendment right to the effective assistance of counsel.
Petitioner further alleges his trial counsel was ineffective for failing to perform an appropriate investigation into his life history, character, and mental health for presentation during the penalty phase of Petitioner's trial.
Petitioner, in order to establish an ineffective assistance claim, must show both deficient performance as well as prejudice resulting from such performance. United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 1419 (2009); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787-792. See also, United States v. Rushin, 642 F.3d 1299, 1306, 1307, 1308 (10th Cir. 2011). Performance is measured against an objective reasonableness standard, while prejudice requires a showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. See also, Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787-788, 791-792, and United States v. Rushin, 642 F.3d at 1309-1310. A reviewing court may consider the two inquiries, performance and prejudice, in any order, and there is no reason "to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697. And a court's review of a counsel's performance must be highly deferential. Strickland v. Washington, 466 U.S. at 689; United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. at 689). See also, Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739-740 (2011)(quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 788).
DEFICIENT PERFORMANCE
The United States Supreme Court has concluded, when considering deficient performance in death penalty cases, the ABA Guidelines in effect at the time of the representation may well indicate the appropriate "prevailing norms" which reasonably diligent attorneys would follow. Wiggins v. Smith, 539 U.S. 510, 524 (2003). See also, Young v. Sirmons, 551 F.3d 942, 957 (10th Cir. 2008)(quoting Wiggins v. Smith, 539 U.S. at 524); Bobby v. Van Hook, 558 U.S. 4, 6, (2009)(citing Strickland v. Washington, 466 U.S. at 688); Welch v. Workman, 639 F.3d 980, 1015 (10th Cir. 2011); and Detrich v. Ryan, 677 F.3d 958, 973-974 (9th Cir. 2012).
Counsel must perform in accordance with "prevailing professional norms." Young v. Sirmons (Julius Young), 551 F.3d 942, 956-57 (10th Cir.2008) (quoting Wiggins, 539 U.S. at 523, 123 S.Ct. 2527). In capital cases, we refer to the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guidelines") in assessing those "professional norms." Id. at 957.

Littlejohn v. Trammell, 704 F.3d at 817.

There are a number of ABA Guidelines relevant to the performance of trial counsel. Wyatt Skaggs, as Petitioner's lead trial counsel, acknowledged he had read the ABA Guidelines, and agreed the objective of the Guidelines was "to set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing possible imposition or execution of a death sentence by any jurisdiction." [Doc. 261, p. 24; ABA Guidelines, p. 1]. He further agreed with the Guidelines Commentary "[u]nless legal representation at each stage of a capital case reflects current standards of practice, there is an unacceptable risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.'" [Doc. 261, p. 24; ABA Guidelines, p. 17]. Mr. Skaggs did caveat his acknowledgment and agreement with the ABA Guidelines with the assertion "there were several times" during his representation of Petitioner compliance was not "practical." [Doc. 261, p. 46].
ABA Guideline 4.1
The ABA Guidelines mandate[4] a team approach in the defense of capital cases. The defense team, at a minimum, should consist of two qualified attorneys, an investigator, and a mitigation specialist, the need for which Mr. Skaggs as lead trial counsel specifically agreed [Doc. 261, pp. 69, 91], and at least one member should be qualified to detect the presence of mental or psychological disorders. [ABA Guideline 4.1, p. 28]. The Guideline Commentary notes while defense counsel's own observations of a defendant are necessary, such observations can not be expected to detect the vast array of possible conditions, e.g., post-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning, lead poisoning, schizophrenia, mental retardation, which could be critical in preparation of the defense case, thus the need for a person qualified to screen for mental and psychological disorders. [ABA Guideline 4.1, pp. 31]. The Commentary also notes a trained investigator to discover and develop facts is necessary as "the prevailing national standard of practice forbids counsel from shouldering primary responsibility for the investigation." [ABA Guideline 4.1, p. 32]. The mitigation specialist should possess "clinical and information-gathering skills and training" which most lawyers lack, and is a critical part of the defense team to insure the penalty phase of the defense presentation is integrated into the entire defense case. The task of mitigation specialist includes development of a "comprehensive and well-documented psycho-social history" based on in-depth investigation as well as development of mitigation themes, locating and coordinating appropriate experts, and development of a cohesive case in mitigation. [ABA Guideline 4.1, p. 33].
Two Qualified Attorneys
The capital defense team, at a minimum, should consist of two qualified attorneys. [ABA Guideline 4.1, p. 28]. Those qualifications include a substantial knowledge of the relevant law governing capital cases, as well as demonstrated skill in complex litigation; in legal research and analysis; in oral advocacy; in the use of expert witnesses and familiarity with common areas of forensic investigation; in the investigation, preparation and presentation of mental status; in the investigation, preparation and presentation of mitigation evidence; along with skill in all elements of trial advocacy. [ABA Guidelines 5.1.B.2, p. 35]. The ABA Guidelines also require an attorney defending a capital case to have completed a training course which includes many of the areas enumerated in ABA 5.1.B.2 as well as ethical considerations unique to capital defense, and defense counsel's relationship with the defendant and his or her family. [ABA Guideline 8.1, p.46].
Wyatt Skaggs
Mr. Skaggs, during his representation of Petitioner both before and during his state court trial, was chief trial counsel, and chief capital trial counsel, for the Wyoming Public Defender Office. He was, as he agreed, essentially the "capital unit" of the Public Defender Office. [Doc. 261, pp. 19, 21; Doc. 262, p. 146]. He was, at least in the capital unit, and in the cases to which he was assigned, responsible for implementing standards of performance. [Doc. 261, p. 23].
Mr. Skaggs, as the chief trial counsel for the capital unit of the Public Defender Office, appears, based upon his own testimony, to have had limited capital training and experience. The only formal training he identified as having attended, prior to representing Petitioner, was four "Life in the Balance" seminars sponsored by the National Legal Aid and Defender Association. [Doc. 261, pp. 28, 35].
Mr. Skaggs capital defense experience prior to representing Petitioner was limited as well. His first significant experience occurred as "second chair" during the retrial of the penalty phase of the trial of Mark Hopkinson[5] [Doc. 261, p. 46], who was ultimately executed in 1992.[6] [Doc. 261, p. 47]. Mr. Skaggs admitted he had received no formal capital defense training prior to representing Mr. Hopkinson. [Doc. 261, p. 47].
Mr. Skaggs next capital defense experience came as lead counsel for Roy Engberg, at which time he still lacked any formal capital defense training. [Doc. 261, p. 48]. Mr. Engberg's death sentence was ultimately overturned, and he was resentenced to life in prison.[7]
Mr. Skaggs third capital defense experience came as lead counsel for Marty Olsen. Mr. Skaggs, prior to representing Mr. Olsen, had attended one Life in the Balance seminar in 1996. [Doc. 261, pp. 49, 50]. Mr. Olsen's death penalty was later overturned on appeal.[8] [Doc. 261, p. 49].
Mr. Skaggs fourth capital trial was his defense of Petitioner. He testified after the Olsen case, and prior to his representation of Petitioner, he "got a lot of training" which, based on his prior testimony, would have consisted of attendance at three Life in the Balance seminars. [Doc. 261, pp. 28, 35]. The extent of Mr. Skaggs training and experience, prior to his defense of Petitioner, thus consisted of four Life in the Balance seminars, one penalty phase trial as second chair, and defense of two capital cases as lead counsel. It is also relevant to note Mr. Skaggs did not review and analyze the adverse results in Engberg and Olsen to possibly determine what he might have done differently to get a better result for his clients.
Q. All right. When you try a capital case and your client is sentenced to death, do you have any meetings with your team to sit down and ask what might we have done differently to get a better outcome for our client?
A. After the case?
Q. After the case.
A. No.
Q. Do you use your losses as a learning experience in that way?
A. No.

[Doc. 261, p. 50, lines 21-25, p. 51, lines 1-5].

Vaughn Neubauer
Mr. Neubauer, while there is no question of his sincerity and diligence in his representation of Petitioner, clearly did not meet the ABA Guideline standards for a capital defense counsel. He was, in fact, as an appointed public defender, not required to meet any particular standards to function as a capital defense counsel since the Wyoming Public Defender Office, prior to Petitioner's trial, had no such standards. [Doc. 261, p. 30]. Mr. Skaggs also stated his opinion the "second attorney qualified in accordance with" the ABA Guidelines did not have to have "capital experience." [Doc. 261, p. 53, lines 19-22].
Mr. Neubauer, prior to his entry of appearance as counsel for Petitioner on September 12, 2003, had graduated from law school only three years earlier, and had been practicing law for only two and one-half years. He had no previous experience representing a capital defendant, and his only "formal" capital trial training consisted of one lecture by a Wyoming attorney on the "Wymore" method of jury selection. [Doc. 261, pp. 25, 96; Doc. 262, pp. 145, 146, 147]. He thus clearly lacked substantial knowledge of the law governing capital cases, and his limited experience, even if gleaned from "very serious felony cases, " as alleged by Mr. Skaggs [Doc. 261, p. 25], was not sufficient to demonstrate the required skills necessary in complex litigation, et al. outlined by ABA Guideline 5.1.B.2. He obviously as well had no training in those areas, nor with regard to the ethical considerations unique to capital cases and the relationship between counsel and a capital defendant, and his or her family. [ABA Guideline 8.1]. Mr. Neubauer, in fact, affirmatively stated he had, prior to being appointed counsel for Petitioner, no specific training as to the relationship of trial counsel with a capital defendant or his family. [Doc. 262, p. 167].
The ABA Guidelines quite clearly require two qualified attorneys who possess defined skills and knowledge with regard to the defense of capital defendants. [ABA Guideline 4.1, p. 28; 5.1.B.2, p. 35; 8.1, p. 46]. Mr. Neubauer, without question, did not meet the ABA Guidelines for a qualified capital defense attorney. The answer to the question of whether Mr. Skaggs was "qualified" as defined by the ABA Guidelines is somewhat less distinct, however, based on his very limited formal training and obviously limited capital defense experience, as he himself described, he was, at best, marginally qualified, and clearly not so over qualified as to overcome the lack of qualification by Mr. Neubauer.
The combination of Mr. Skaggs and Mr. Neubauer as counsel for Petitioner did not achieve the level of two qualified attorneys mandated by the ABA Guidelines. While this failure alone may not be sufficient, in and of itself, to render their representation of Petitioner deficient under Strickland v. Washington , it is a factor relevant to a deficient performance inquiry.
Investigator/Mitigation Specialist
The ABA Guidelines mandate, as part of the team approach to the defense of capital cases, the "team" should include both an investigator, as well as a mitigation specialist. [ABA Guideline 4.1, p. 28]. A qualified investigator and a qualified mitigation specialist each have unique skills which allow them, as opposed to trial counsel, to address the challenges which arise in developing facts, and presenting a strong mitigation case, on behalf of a defendant. [ABA Guideline 4.1, pp. 32, 33].
Mr Skaggs, as lead trial counsel responsible for the selection and performance of the capital defense team [ABA Guideline 10.4; Doc. 261, pp. 52, 64, 70; Doc. 262, p. 150], made the conscious decision to combine and delegate the responsibilities of both investigation and mitigation to a single person. He made this decision notwithstanding the fact the ABA Guidelines, which he acknowledged having read [Doc. 261, p. 24], mandate a capital defense team have at least two qualified attorneys, an investigator, and a mitigation specialist.
Guideline 4.1 The Defense Team and Supporting Services
...
A.1. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist.

[ABA Guidelines, p. 28].

As soon as possible after designation, lead counsel should assemble a defense team by:
...
2.... selecting and making any appropriate contractual agreements with non-attorney team members in such a way that the team includes:
a. at least one mitigation specialist and one fact investigator;

[ABA Guidelines, p. 63].

It was Mr. Skaggs position the ABA requirement for an investigator and a mitigation specialist did not require two separate individuals. One person might be sufficient.
A. Okay. Now, if you - it doesn't say it's got to be separate, investigator and mitigation specialist. It says you have to have both.
Q. An investigator and a mitigation specialist.
A. You're saying two different individuals. I'm saying one different individual is sufficient.
Q. All right. So a grammatical reading of this would be 1plus 1 plus 1 equals 4, but you - now, let me ask you this question. If you had asked Mr. Koski for an investigator and a mitigation specialist, he would have said yes, wouldn't he?
A. I think so.
Q. You did not ask him -
A. Did not -
Q. - for a four-member team?
A. - no.
Q. All right. Because you interpreted this "and" to mean two people?
A. Could be two. Could be one; could be two

[Doc. 261, p. 54, lines 2-19].

The single person Mr. Skaggs chose to fulfill the responsibilities of both investigator and mitigation specialist was Ms. Priscilla Moree. [Doc. 261, pp. 26, 61, 100; Doc. 262, pp. 168, 213, 219]. She was, as a result, expected to perform the functions of both an investigator, for which she had considerable experience, and a mitigation specialist, for which she little experience.[Doc. 262, pp. 223, 224].
Ms. Moree, to fulfill her responsibilities as an investigator, possessed experience and skills gleaned from performing investigative work for plaintiff attorneys in both Wyoming and Colorado, including two significant and large contamination cases, as well as medical malpractice and product liability cases. [Doc. 262, pp. 214, 215]. She, prior to being hired in Petitioner's case for the dual role of investigator and mitigation specialist, had also functioned as a mitigation specialists in one other capital murder trial, [Doc. 262, p. 222], and provided some limited assistance to the designated mitigation specialist in an earlier capital case. [Doc. 262, p. 215].
Ms. Moree, prior to taking on the responsibility of mitigation specialist for Petitioner, had no formal training or education in the fields of mental health, social work, or education, [Doc. 262, p. 216], although she had attended "several death penalty workshops." ]Doc. 262, p. 218]. And Mr. Skaggs, while he agreed a mitigation specialist should be capable by training and experience to prepare a psycho social history [Doc. 261, p. 83]; should possess clinical and information-gathering skills [Doc. 261, p. 90]; and have the "ability to elicit sensitive, embarrassing and often humiliating evidence, such as family sexual abuse, " [Doc. 261, p. 91], he did not actually inquire of Ms. Moree as to whether she possessed any of those skills. He did not, in fact, even interview her or inquire as to her qualifications to be a mitigation specialist. He failed to do what would normally be considered a job interview, rather, he simply had a discussion with Ms. Moree on the telephone and had a copy of her resume. [Doc. 261, p. 82; Doc. 262, pp. 214, 216, 217]. Mr. Skaggs, even after hiring Ms. Moree to fulfill the responsibilities of a mitigation specialist, provided no guidance to her with regard to his thoughts or concepts on the mitigation process other than "let's just do it."[Doc. 262, p. 224]. The idea of "mitigation" was simply not clearly defined. [Doc. 262, p. 224].
There is, in addition, a question as concerns the actual amount of time Ms. Moree was able to devote to the mitigation responsibilities in her dual role as investigator and mitigation specialist. While she was delegated the mitigation responsibilities by Mr. Skaggs [Doc. 261, pp. 62, 100], it appears other tasks he delegated to her actually consumed the vast majority of her time working on Petitioner's case. Those tasks included researching and reporting to Mr. Skaggs on media coverage [Doc. 261, p. 62]; reviewing jury questionnaires [Doc. 261, p. 62]; traveling to Wisconsin with Mr. Neubauer to interview a prosecution witness, Joe Dax; as well as discovery review, travel, and time in court. The time records Ms. Moree utilized in submitting her billings to Mr. Skaggs indicate, of the 544.6 total hours itemized, she spent only 107.4 hours in actual mitigation work. [Doc. 212-1, 2, 4, 7, 8, 11, 12, 15, 17, 18, 22, 25; Doc. 328, pp. 2, 3]. Mr. Russell Stetler, the national mitigation coordinator for the Federal Death Penalty Projects [Doc. 264, p. 7], stated, in his expert opinion, based on his review of Ms. Moree's billings, she spent very little time in what he would characterize as the mitigation function, in fact, a fraction of the hours necessary to perform a typical mitigation investigation. [Doc. 264, pp. 7, 25, 67, 69, 70, 71; Doc. 328, pp. 2, 3].
Ms. Moree, while arguably a skilled investigator based on her background and experience, obviously did not have the training or the experience, nor was she allowed to devote the time necessary, to be an effective mitigation specialist. The ABA Guidelines mandate two separate qualified persons as part of capital defense team, one to act as an investigator, and one to fulfill the responsibilities of a mitigation specialist. [ABA Guidelines, p. 63]. Ms. Moree was likely qualified to act as an investigator, and did fulfill said function as part of Petitioner's trial team. She was not, however, qualified by either training or experience, as well as being restrained by time, to act as a mitigation specialist.[9]
Mental or psychological disorders
Adherence to the ABA Guidelines requires at least one member of a capital defense team be qualified to screen for the presence of mental or psychological disorders. [ABA Guideline 4.1, p. 28]. The observations of defense counsel, while necessary and important, can not reasonably be expected to detect some or all of the vast array of possible conditions which may well be critical in defending a capital case, e.g., post-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning, lead poisoning, schizophrenia, and mental retardation, thus the need for a person qualified to screen for those disorders. [ABA Guideline 4.1, p. 31]. The Guideline appears to embrace a conclusion expressed in 1992, by Dr. Deana Logan, a psychologist and capital defense attorney. She suggested, in light of the fact only the capital defense team members have access to their client over a period of time, it is their duty to "act as the observational caretakers for the mental status symptoms of the client." 19 Cal. Attys For Crim. Just. F. 40, 40 (1992). A capital defense team member (or members) must therefore be trained to "perceive data from multiple sources, " including "history, ...nonverbal cues, [and] listening at multiple levels." 19 Cal. Attys For Crim. Just. F. at 40. Such training and skills are an integral part of any capital defense team since the information which can therefore be gathered, "if properly noted by the legal team and passed on to the mental health expert, ....will help guide the expert to make a more accurate evaluation." 19 Cal. Attys For Crim. Just. F. at 40.
Mr. Skaggs, while acknowledging the value of a member of the defense team having the clinical skills and ability to recognize mental or psychological disorders and impairments as required by the ABA Guidelines, nevertheless then contradicts the Guideline suggestion a defense counsel alone is not qualified to fulfill said function. [Doc. 261, p. 70]. He believes, through his lifetime experience, he, in fact, had the ability to perform such function with regard to Petitioner.
Q. (BY MR. O'BRIEN) ABA Guideline 4.1.2, "The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments."
...
Q. And this gives us some qualifications that would be necessary to a capital defense team. Do you disagree that those are necessary qualifications?
A. I think they should be able to recognize if an individual has a mental or psychological disorder or impairment.
Q. Right. We're not talking about diagnosing but just simply recognizing; right?
A. Recognizing.
Q. And so you're not a psychologist; right?
A. No.
Q. I'm not a psychologist.
A. No.
Q. So you are not the person described in Guideline 4.1.2, are you?
A. Well, I think I can do pretty much that when it comes to screening individuals at least for the presence of mental or psychological disorders or impairments.
Q. You can.
A. I think that lifetime experience gives me that ability.

[Doc. 261, p. 70, lines 4-7; p. 71, lines 1-16].

Mr. Skaggs believes he was qualified by training and experience, during his representation of Petitioner, to screen individuals for the presence of psychological disorders or impairments even though he is not, and was not, familiar with many of the subtle signs of mental illness apparent in an individual's speech.
Q. Do you - you agree that speech is one of the most sensitive ways in which mental health experts can identify mental illness?
A. I don't know.
Q. You don't know that?
A. I don't know.
Q. So you've not been trained to look for subtle signs of mental illness in an individual's speech?
A. In what way? In what way are you talking about? Which - speech impairment? A lot of individuals are very qualified even though they have speech impairments.
Q. That's true. Well, let me ask you some specific questions. For example, would you be able to identify a client whose speech includes neologisms?
A. Speech - I didn't hear you. You dropped off right at the end.
Q. Neologism.
A. I again didn't hear you.
Q. N-e-o-l-i-g-i-s-m [sic], neologism.
A. I don't know what that is.
Q. You don't know what that is.
A. No.
Q. Let's try paraphasia.
A. I don't know what that is either.
Q. Let's try dysarthria.
A. I don't know what that is.
Q. Let's try aprosody.
A. Aprosody?
Q. A-p-r-o-s-o-d-y.
A. I don't know what that is.
Q. Tangentiality?
MR. DELICATH: Your Honor, I'll object. The witness has already testified that he is not a mental health professional.
MR. O'BRIEN: Maybe I could clear that up with one more question, Your Honor.
THE COURT: You may.
Q. (BY MR. O'BRIEN) So you would admit you are not qualified by training and experience to screen individuals for the presence of psychological disorders or impairments, are you?
A. I think I am.
Q. Let's continue. What is tangentiality?
A. Pardon me?
Q. What is tangentiality?
A. Similar to, same plane, uh.
Q. Let me try another one. What is circumstantiality?
A. Circumstantiality?
Q. Yes, as a sign of mental impairment.
A. Oh, I don't know.
Q. What is blocking as a sign of mental impairment?
A. Walking?
Q. Blocking, b-l-o-c-k-i-n-g.
A. I don't know.
Q. Okay. Are you ready to admit that you are not the person qualified by training and experience to screen for the presence of mental disorders or impairments?
A. No, I'm not.

[Doc. 261, p. 72, lines 16-25; p. 73, lines 1-25; p. 74, lines 1-22].[10] Mr. Skaggs, in fact, further believed Ms. Moree had the same ability, maybe even better than his, to screen for mental health issues, even though she had no formal training in the mental health field, and her exposure to the screening concept was the result of attendance at only three death penalty seminars. [Doc. 261, p. 75; Doc. 262, pp. 216, 218]. Ms. Moree, however, definitively stated she was not responsible for the screening function as a member of Petitioner's trial team. [Doc. 262, p. 218].[11]

Petitioner's trial team did employ Linda J. Gummow, Ph.D., a neuropsychologist, who Mr. Skaggs believe was qualified to screen for mental or psychological impairments. [Doc. 262, p. 66]. It appears from the record before the Court, however, Dr. Gummow was not a member of the defense team in the sense contemplated by the ABA Guidelines, and thus did not have the opportunity to observe Petitioner over an extended period of time as the trial counsel did. She was primarily an expert witness who evaluated Petitioner and testified at trial. [Exhibits 169-64, 171-15, 216-16, and 220-30].
Adherence to the team approach to capital defense outlined by ABA Guideline 4.1 basically requires the team leader to take four affirmative steps. First, select two qualified attorneys. Second, select an investigator. Third, select a mitigation specialist. And fourth, ensure one of the team members is qualified to detect by observation and interaction with the defendant the presence of any mental or psychological disorders. [ABA Guideline 4.1, p. 28]. Petitioner's trial team failed to fulfill at least three of these requirements.
Mr. Neubauer, as one of Petitioner's trial team, was clearly not a qualified capital defense attorney pursuant to the ABA Guidelines. And while Mr. Skaggs may arguably have fulfilled the required qualifications, his abilities were not such as to overcome the fact Mr. Neubauer was not qualified. Petitioner's trial team thus did not fulfill the "two qualified attorneys" element.
Ms. Moree was hired by Mr. Skaggs to fulfill both the investigator and mitigation specialist element set out by the Guidelines. She apparently had the background and experience to fulfill, and did fulfill, the responsibilities of the team investigator. She was not, however, qualified by either experience or training to fulfill the responsibilities of a mitigation specialist. She had, prior to Petitioner's trial, functioned as a mitigation specialist in only one other capital case, and had attended, at most, three death penalty seminars. Petitioner's trial team thus lacked a qualified mitigation specialist.
Finally, Petitioner's trial team clearly lacked a member with the ability to screen for mental or psychological disorders. Ms. Moree affirmatively indicate she had not been asked to fulfill such responsibility, and Mr. Neubauer recognized, albeit after Petitioner's trial, he was not qualified to fulfill the screening function. The third team member, and leader of Petitioner's trial team, Mr. Skaggs, while firmly convinced of his own ability to fulfill the screening responsibilities, was not qualified to do so. The basis for his perceived ability was his "lifetime experience, " yet he was not familiar any of the subtle signs of mental illness which might be manifested by an individual's speech. Petitioner's trial team thus lacked anyone with the skills necessary "to screen individuals for the presence of mental or psychological disorders or impairments." [ABA Guideline 4.1.2.A, p. 28].
Petitioner's trial team failed, at the time of his trial, to adhere to the prevailing standards for the defense of capital cases set out by ABA Guideline 4.1.
ABA Guideline 10.4
The responsibility for assembling and supervising the capital defense team falls squarely on the shoulders of lead counsel. He or she is responsible for selecting the investigator and mitigation specialist, as well as co-counsel, and allocating, directing and supervising the work of the entire team in accord with the ABA Guidelines and professional standards. [ABA Guideline, 10.4, p. 63]. Mr. Skaggs, as lead trial counsel for Petitioner, did not, as previously discussed, fulfill this mandate. He not only failed to select qualified co-counsel, he as well failed to hire a qualified mitigation specialist, and enlist the assistance of a person qualified by training and experience to screen for mental and psychological disorders.
Mr. Skaggs, as lead trial counsel, was also charged with the responsibility of demanding and acquiring "on behalf of the client all resources necessary to provide high quality legal representation, " and make an adequate record for post-conviction review if such resources are not provided. [ABA Guideline, 10.4, p. 63]. It appears, based on the testimony and record evidence before the Court, this mandate as well was not rigorously fulfilled, arguably to the detriment of Petitioner.
Mr. Skaggs, in testimony during the evidentiary hearing before this Court, professed to be a "frugal person" when "it comes to public money, " even if it meant economizing on an indigent defense. [Doc. 261, pp. 64, 65]. He felt keeping costs down is always a consideration, [Doc. 261, p. 80], and economizing is important. [Doc. 261, p. 81]. There was even some evidence presented, which Mr. Skaggs did not directly dispute, indicating he had expressed the opinion the more funds expended on outside experts and travel in defense of a case, the less funds available in the public defender budget for personnel salaries and raises. [Doc. 261, p. 80].
Q. Did he discuss with you anything with respect to public funds, anything along those lines?
A. Yes. During the conversation he indicated that it was very important to preserve the funds of the public defender system so that the employees of the public defender system could continue to receive raises.
Q. Now, did Mr. Skaggs mention anything else besides the need for raises with regard to the public funding that he was worried about?
A. No, just that he was, he was very concerned that we conserve money, uh, so that the public defender system could, you know, reward its people for their hard work.

[Doc. 267, p. 30 lines 17-22].

Mr. Skaggs expressed his fiscal philosophy with specific reference to the defense of Petitioner in a letter to State Public Defender Ken Koski justifying a request for trial expenditures for a Dr. Spitz.

Q. (BY MR. O'BRIEN) You're talking about expenditures generally. "I think the expenditures in this case are quite low when compared to other notable trials such as Harlow, McKinney, Dowdell and Collins. Check them; the costs to trial in those cases were very high. We have spent just over $10, 000 on a mitigator which includes both investigation and helping Garri mitigate. That $10, 000 figure contains the $5, 000 which is up for approval at this time. These costs are very low and helped by the fact that Garri is shouldering some of the load."

[Doc. 261, p. 86 lines 7-16; Doc. 65-2, p. 2].

Q. All right. And so - but as compared to those other cases, you were spending far, far less on the mitigation function, weren't you?
A. I thought I was, and that should allow me to get a little bit more money than might be ordinarily given.

[Doc. 261, p. 87 lines 9-13].

Q. (BY MR. O'BRIEN) - now it's the middle paragraph, or you told Mr. Koski that, "The expenses up to now are a drop in the bucket compared to trial expenses. We have no choice, but I'm proud of the fact that my expenses are running considerably less than we have paid out in other cases and the expenses may still come in under the expenses that we spent in Marty Olsen's case." Isn't that true? That's what you told -
A. In justification for the Spitz expense I said that, yes.
Q. Yeah. In fact, you advise Mr. Koski that this case - "This is a bargain Ken and it will continue to be so." Correct?
A. I did.

[Doc. 261, p. 89 lines 11-22; Doc. 65-2, p. 2].

Frugality, in and of itself, may well be a philosophy appropriate when expending public funds. Such philosophy, however, as manifested in certain decisions by Mr. Skaggs as lead counsel, clearly adversely impacted not only the composition of the trial team, but the ability of those team members as well to perform their duties to the prevailing professional standards.

Mr. Skaggs chose to hire one person rather than separate individuals to handle the mitigation and investigation responsibilities of the team as mandated by the ABA Guidelines. [ABA Guideline 4.1(A)(1); 10.4(C)(2)(a)]. His stated philosophy was "why hire four when you can get by with three." [Doc. 261 pp. 54, 55]. He made this decision notwithstanding the fact he believed Kenneth Koski, the Wyoming Public Defender, would have granted his request to hire both an investigator and a mitigation specialist, [Doc. 261 pp. 54], as had occurred in prior death penalty cases defended by the Wyoming Public Defender Office. [Doc. 261, pp. 78, 88; Doc. 262, pp. 215, 223, 232]. Ms. Moree seems to have the same impression. The concern she felt with regard to funding came from Mr. Skaggs. [Doc. 263, pp. 97, 98].

The team member perhaps most adversely impacted by Mr. Skaggs' frugality was Ms. Moree, who had the combined responsibilities of investigator and mitigation specialist. [Doc. 262, p. 213]. It was apparent to Ms. Moree from her initial conversation with Mr. Skaggs cost containment was a priority with him.

Q. Did you talk about fees at all?
A. We discussed it, as I recall, and, uh, I, I believe I quoted that I would do the case for 40 an hour.
Q. All right. And at that time were you aware or were you made aware of Mr. Skaggs' concerns about funding?
...
A. Well, it's been nine years ago, so I'm trying to recall as best I can, but that was - that's the impression that Mr. Skaggs gives during an interview.
Q. All right. And the impression - what impression?
A. That we keep costs down.
Q. All right. And so is the impression that he gave you during that interview about the need to keep costs down reflected in your engagement letter of May 4th, 2003?
A. Yes, it is.

[Doc. 262, p. 220 lines 13-17; p. 221 lines 1-9].

Ms. Moree, as a result of Mr. Skaggs' cost concerns, agreed to an hourly rate of $40 rather than the $65 per hour previously paid by the Wyoming Public Defender Office for someone acting solely as a mitigation specialist. [Doc. 262, pp. 218, 219]. She also acknowledged her understanding of the funding concerns in her engagement letter to Mr. Skaggs.

Q. Okay. On the screen in front of you, Ms. Moree, is Exhibit 4, which is your engagement letter of May 4th, 2003. And I'd like you to look at the second paragraph up from the bottom and the last sentence. "I understand the need to keep costs to a minimum" -
A. Yes, uh-huh.
Q. Yes. "I understand the need to keep costs to a minimum in a capital case, and you can be assured I will do my part to that end."
A. Yes.
Q. Is that line in your letter a product of your discussion with Mr. Skaggs about his concern about funding?
A. Yes, it is.
Q. All right. Did that seem pretty important to Mr. Skaggs?
A. Yes.

[Doc. 262, p. 221 lines 16-24; Doc. 65-4].

Ms. Moree also felt her work was constrained by the funds allotted to her for both investigation and mitigation.

Q. Explain how your work on the Eaton case compares to that.
A. Well, I was, I was constrained by not only the, my hours, money spent, uh, and just the time. We had, we had a trial date set, and that was the way it was going to be, and, uh, so you're working against the calendar, and you - I felt like I was working against, uh, my expenses.
Q. Stop right there for a minute and explain to me what you mean by working against your expenses.
A. Well, in Mr. Eaton's case I was allotted X number of dollars, uh, by what Mr. Skaggs would request from the Public Defender's Office. And during Eaton I know - I believe I only turned in one voucher for a motel room. I stayed with a friend in Casper. So that I did ask for a few meals, and I did ask for some mileage between Laramie and Casper, but as far as staying in a motel or anything like that, uh, I, I don't believe I did.
Q. Okay. And I want to make sure that I'm interpreting what you just said correctly. So, for example, if you were allocated $10, 000 for your work, and if you spent mileage on travel or you bought a plane ticket or you stayed in a hotel room and purchased meals, that came out of that $10, 000?
A. Yes.
...
Q. All right. And so if you spent a thousand dollars of that 10, 000 dollars on, on travel expenses, out-of-pocket expenses, then you're just left with $9, 000 worth of time that you could devote to the case; is that correct?
A. Yes.

[Doc. 262, p. 233 lines 19-25; p. 234 lines 1-13, 19-23].

Mr. Skaggs' frugality, and desire to economize on an indigent defense, also manifested itself in his approach to contacting and interviewing potential mitigation witnesses. He had a strong preference for telephone rather than in-person interviews.

Q. All right. And if it's possible for you to economize in indigent defense, you will do that, won't you?
A. I will do that. Yes, I will.
Q. And the phone call issue is an example of that, isn't it?
A. That is an example, yes.
Q. All right. And so you would ask Priscilla to call a witness such as Richard Eaton, Dale's brother, on the telephone -
A. Or Kerry Rose.
Q. - or Kerry Rose, that's another example, and say find out on the telephone if they'll be good candidates perhaps for being a mitigation witness in the case?
A. Well, find out on the telephone where they are, where they stand with respect to the case. Particularly family members were in a different standing at that time than were other people because family members sometimes weren't cooperating. So we used telephone calls to determine where they stood. Followed up by a visit in person if practical, but sometimes we used telephone calls for that, too, for in-depth interviews, and then followed up by interviews by myself.
Q. Okay. Follow up by interviews in person if practical. Is that what I heard you say?
A. If practical.
Q. What do you mean by if practical?
A. Okay. There are a number of things that go into interviews in person. Number one, how important the witness is.
[Doc. 261, p. 65 lines 12-25; p. 66 lines 1-12; Doc. 262, pp. 240, 241]. He, in fact, basically required Ms. Moree, his mitigation specialist, to have telephone contact with a potential witness before granting her permission to travel to conduct an in-person interview.
Q. There was some - we've had some discussion in the case about telephone versus in-person interviews. Mr. Skaggs had a strong preference that you do your work by telephone, didn't he?
A. Yes.
Q. What is the reason for that?
A. I suppose cost containment.

Q. In fact, in order to get permission to go see a witness in person, did you have to tell Mr. Skaggs that you had contacted that person by phone and that they were going to be home and you had an appointment and they had agreed to visit with you?

A. Yes, I had to get permission for the travel.
Q. And if you had not had that prior telephone contact, you wouldn't get permission until you had -
A. Correct.
[Doc. 261, p. 469 lines 20-25; p. 470 lines 1-9].

Mr. Skaggs' preference for telephone screening and telephone interviews rather than in person interviews of potential mitigation witnesses was, as discussed infra, in conflict with the prevailing standards of performance for mitigation investigation during his representation of Petitioner.

Mr. Skaggs' frugality and desire to economize also affected who would be called as a witness at trial. One particular example was Kerry Rose, a potential mitigation witness whom Ms. Moree, based upon a couple of telephone conversations, concluded would have been a "very good witness" for Petitioner. [Doc. 263, p. 56]. Mr. Skaggs declined to call her at trial as a mitigation witness based, in part, on the fact she did not live in Wyoming. The other reasons he expressed for not calling her were apparently not significant as he would have "rethought" his decision if she had lived in Wyoming.

Q. And, in fact, you said had she lived in Wyoming you might have made a different decision; isn't that true?
A. I probably said that, and I would agree with you, I certainly would have rethought that decision had she lived in Wyoming. But the funding was certainly a problem...

[Doc. 261, p. 197 lines 9-15].[12]

The apparently successful effort by Mr. Skaggs to "economize" on the expense in defense of Petitioner is troubling. The ABA Guidelines mandate lead counsel "demand on behalf of the client all resources necessary to provide high quality representation." [ABA Guideline 10.49(D), p. 63 (emphasis added)]. Mr. Richard Burr, as an attorney, has spent almost all of his legal career defending death penalty cases. [Doc. 265, p. 106]. The Court allowed him to testify as an expert on the performance of capital defense teams. [Doc. 265, p. 122]. He offered these thoughts with regard to counsel who self-censor and self-constrain when it comes to acquiring adequate defense funding.

Q. Is there anything about this case that would justify deviating from the well-established norm?
A. Not - I mean, the only justification for it that I saw Mr. Wyatt put forth was cost, and, and that can't be a reason - I mean, it may be a constraint. I'm not saying that everybody gets all the money they need. We don't. I've never gotten all the money I needed in any of my cases, but I've gotten a lot more than - I haven't self-constrained, and self-constraint, even if you're, you know, if you're working as a state employee - and, you know, we all - all of us are appointed in these cases, and, you know, we, we serve because of the grace of the government that pays us, and we can't abuse that. So we do have some trust relationship with the government that pays us, but the government pays us to do our work, and if we self-censor and self-constrain and don't argue for the funds that we need to do the work well and effectively, then we're doing a disservice to our clients.

[Doc. 265, p. 159 lines 9-25 (emphasis added)].

The failure by Mr. Skaggs to seek from Kenneth Koski, the State Public Defender, adequate funding, which he apparently knew would be approved, for Petitioner's defense clearly adversely impacted the trial defense, particularly, as discussed infra, the mitigation phase.

Petitioner's trial team clearly failed to meet the mandates of ABA Guideline 10.4.

ABA Guideline 10.5

The ABA Guidelines also mandate defense counsel "make every appropriate effort to establish a relationship of trust" with a defendant, including "a continuing interactive dialogue" concerning all materials which might well impact the defendant's case. [ABA Guideline 10.5, p. 68]. The Commentary suggests while communication with the defendant by non-attorney members of the defense team is important, such communication "does not discharge the obligation of counsel" to keep the defendant apprised of case development and progress. The establishment of a trust relation with the defendant is essential, thus contact must be ongoing. So-called "difficult" defendants may well be the consequence of bad lawyering, either current or previous, and establishing communication and rapport with the defendant is "critical to effective representation." [ABA Guideline, 10.5, pp. 70, 71].

Mr. Skaggs failed to establish even a minimally effective trust relationship with Petitioner, primarily because he completely failed to engage in a "continuing interactive dialogue" with him which was essential to establishing the communication and rapport "critical to effective representation." He apparently basically concluded because Petitioner was competent to stand trial, his inability, or failure, to provide, when requested, a life history, a work history, in fact, any information which might assist in his defense, or in the mitigation of a death penalty, was willful and intentional.

A. But he seemed to be relatively competent. In other words, he could understand what I was asking, he could understand the reasons why I was asking, and he seemed to me to be relatively competent, and -

[Doc. 261, p. 104 lines 15-18].

Q. I thought you said you had reached that conclusion after Priscilla Moree's June 10th, 2003 visit with Mr. Eaton.
A. Uh, you know, I reached that conclusion in talking to the expert, so -
Q. You told us -
A. - and he was competent.

[Doc. 261, p. 123 lines 24-25; p. 124 lines 1-4].

Q. And one of the questions is whether or not in making this conclusion, now, you're drawing the conclusion that, you know, he's competent and therefore his refusal to cooperate is willful - is that what I hear you saying?
A. Yes.
Q. You don't see an intermediary position at all on that spectrum?
A. With that particular defendant, no.

[Doc. 261, p. 142 lines 1-8].

Q. All right. But you would say that Mr. Eaton was unable to relate to you, wouldn't you?
A. Again, it's a matter of degree.
Q. Or is it a matter -
A. I wouldn't say that he was unable to. I would say that he did not want to.

[Doc. 261, p. 143 lines 4-9].

Mr. Skaggs reaffirmed a number of times in his testimony before this Court his "position" with regard to Petitioner's failure to provide requested information.

Q. And you understand that one of the issues in this case is the difference between couldn't give information and wouldn't give information; correct?
A. That may be one of your issues. I don't know that it's one of mine.
Q. All right. Because you were solidly ensconced in the camp that he would not give you information; correct?
A. I am in the camp that he didn't want to give information.

[Doc. 261, p. 112 lines 12-19].

Q. All right. Well, let me back up a minute and ask. There are other factors that might frustrate a client who is asked to give an institutional history, such as a school history, might there be, in a case like Mr. Eaton's?
A. I don't know of any factors that would have frustrated Mr. Eaton in doing that other than the fact he didn't want to talk about it.

[Doc. 261, p. 115 lines 12-18].

Q. - there was - he moved a lot from job to job because these jobs are temporary jobs; right?
A. By nature.
Q. Quite often. And so over the course of his work history do you have any idea how many jobs he had worked?
A. Priscilla can talk to you about that, but I think that we probably identified six or eight.
Q. There were a lot of -
A. And then he was an independent contractor, too, you know, so I don't know how you lump those into jobs. I don't know how many jobs he had as an independent contractor.
Q. All right. And so a question to Mr. Eaton about how many jobs have you had could be data that he might have a little bit of frustration and difficulty coming up with, mightn't it?
A. Not necessarily.
Q. But you acknowledge that that's possible?
A. In some clients, yes. In Mr. Eaton's situation, I don't think so.

[Doc. 261, p. 119 lines 8-25].

Q. - beforehand. And so wouldn't you agree that a doctor saying that your client is depressed, it affects the brain, and he has significant problems with concentration, with thinking, might very well cause him to be unable to give you a history of the schools that he attended?
A. I would disagree with that.
Q. You disagree.
A. My, my interactions with him indicated that he simply did not want to present that information for whatever reason he had. He just didn't like talking about it.
Q. He didn't like talking about his background?
A. No.

[Doc. 261, p. 149 line 25; p. 150 lines 1-11].

Q. All right. A malfunctioning brain could cause the problems that you saw with Mr. Eaton, couldn't it?
A. In this particular case, I don't believe so.
Q. All right. And that's your opinion.
A. That's my opinion.
Q. You are not a psychologist?
A. Not a psychologist.

[Doc. 261, p. 151 lines 5-11].

Q. Yeah. And so on page 293 you indicated that you tried to explain to Mr. Eaton about the importance of family mitigation, but you said he really didn't understand the importance of family history in terms of mitigation, didn't understand it, didn't want to know that part of the case at all. Is that correct?
A. Didn't want to talk about it.
Q. Yeah, he just didn't understand it.
A. Well, that's what I said.
Q. All right.
A. Didn't want to understand it.
Q. But, on the other hand, if he suffered from a mental disorder that would impair his ability to communicate with you, that would raise different issues, wouldn't it?
A. If he did, but again -
Q. If he did -
A. - that's why I have him checked out.
Q. That wasn't my question. If he did, that would impair his ability to communicate with you?
A. Might. Might. It depends -
Q. Yes.
A. - on degree. It depends on a lot of different things. But in this particular case I felt that he did not want to answer the question, not that he didn't have the ability to, he didn't want to cooperate.

[Doc. 261, p. 121 lines 22-25; p. 122 lines 1-21].

Q. Did you review with her particular techniques and instructions in the field of mental health that are used to establish a rapport with, say, troubled mental patients, for example?
A. No, because it was my belief he wasn't troubled mentally.
Q. And this - it was your belief at the time of that first visit he was not troubled mentally?
A. I had not seen any indication of that.
Q. And you hadn't seen any neologisms on his part?
A. I had not seen any indication that he was troubled mentally.
Q. All right.
A. I had seen plenty of indication of obstructionism or stubbornness, but I hadn't seen any indication that he was troubled mentally.

[Doc. 261, p. 103 lines 11-25].

Mr. Skaggs maintained this position even though he eventually acknowledged Petitioner "had mental illnesses, " [Doc. 261, p. 142 line 18], and had, as well, major mental impairments.

Q. You think it's good judgment to refuse to cooperate with your capital defense team?
A. Can't think of any situation in which it would be good judgment, but I can envision circumstances in which they don't knowingly and voluntarily, and I found one.
Q. Mm-hmm. And yet your expert is telling you he has major impairments in relationships, judgment, thinking and mood; isn't that true?
A. I don't dispute that. In fact, I saw major impairment in relationships, judgment, that sort of thing, and I could have developed that.
Q. Yeah. And certainly the difficulties you experienced with Mr. Eaton were consistent with a major impairment in judgment, thinking, and mood, weren't they?
A. He had, he had problems in judgment.
Q. Yeah.
A. There's no question about that.

[Doc. 261, p. 152 lines 20-25; p. 153 lines 1-11].

Mr. Skaggs, however, did not discuss, at least with Ms. Moree who he had hired as the mitigation specialist, conditions or symptoms of possible disorders which might cause Petitioner to act against his best interest. Mr. Skaggs left the impression with Ms. Moree he did not put "much stock" in mental health issues.

Q. You would agree that a capital defendant's refusal to cooperate with counsel would be contrary to his ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.