CAPITAL §2254 HABEAS CORPUS CASE

QUESTIONS PRESENTED

UNDER WHAT CIRCUMSTANCES, IF ANY, SHOULD AN APPELLATE COURT BE PERMITTED TO INVOKE A TEAGUE DEFENSE SUA SPONTE WHEN, AS HERE, THE STATE HAS EXPRESSLY REFUSED TO ASSERT SUCH DEFENSE EVEN WHEN INVITED TO DO SO BY A FEDERAL COURT?

SHOULD THIS COURT RESOLVE THE CONFLICT BETWEEN THE LOWER COURT DECISION AND THAT OF SEVERAL OTHER CIRCUIT COURTS ON THIS ISSUE, ESPECIALLY WHEN SUCH CONFLICT IS OCCASIONED BY DICTA FROM THIS COURT’S PRECEDENTS AND WHEN THE LOWER COURTS HAVE OPENLY EXPRESSED CONFUSION AND HAVE SOUGHT GUIDANCE AND CLARIFICATION FROM THE COURT?

SHOULD THIS COURT GRANT CERTIORARI TO REMEDY THE LOWER COURT’S RELIANCE ON A SHARPLY DIVIDED EN BANC CIRCUIT PRECEDENT, CHANDLER v. UNITED STATES, 218 F. 3d 1305 (11TH CIR. 2000)(EN BANC), WHICH EVISCERATES THIS COURT’S SIXTH AMENDMENT INEFFECTIVE ASSISTANCE OF COUNSEL JURISPRUDENCE, AS RECENTLY DELINEATED IN (TERRY) WILLIAMS V. TAYLOR?

DOES CHANDLER v. UNITED STATES COMPLETELY REFORMULATE THE STRICKLAND STANDARD AND, IF SO, DOES ITS APPLICATION IN PETITIONER’S CASE VIOLATE STRICKLAND AND ITS PROGENY?

TABLE OF CONTENTS

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iv

CITATION TO OPINION BELOW 1

JURISDICTION 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 2

A. Course of Proceedings Below 2

B. Pertinent Trial Evidence 4

C. Facts Respecting the Unadjudicated Offenses Issue 6

D. Facts Respecting the Ineffective Assistance of Counsel Issue 8

REASONS FOR GRANTING THE WRIT 16

I. THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE THE CONFLICT IN THE CIRCUIT COURTS CONCERNING WHETHER, AND WHEN, AN APPELLATE COURT MAY SUA SPONTE INVOKE A RETROACTIVITY AFFIRMATIVE DEFENSE UNDER TEAGUE V. LANE IN THE FACE OF A COMPLETE WAIVER OF SUCH DEFENSE BY RESPONDENT 16

THE LOWER COURT’S SUA SPONTE INVOCATION OF A TEAGUE DEFENSE DIRECTLY CONFLICTS WITH THE DECISIONS OF SEVERAL CIRCUIT COURTS OF APPEALS, MANY OF WHICH HAVE EXPRESSLY ACKNOWLEDGED CONSIDERABLE CONFUSION ON THIS ISSUE AND HAVE EXPRESSLY SOUGHT THIS COURT’S GUIDANCE AND CLARIFICATION ON ITS OWN DICTA 16

A. Respondent’s Waiver of a Teague Defense was Complete and Clear 17

B. The Lower Court Ruling is Contrary to This Court’s Admittedly Ambiguous Precedents 18

C. The Lower Court’s Decision Is In Conflict with the Decisions of Several Circuits; Additionally, Substantial Intra-Circuit Confusion and Turmoil Exist with Respect to the Teague Question Presented Here 20

D. The Merits of Petitioner’s Issue Warrant Resolution of the Teague Issue by this Court and Subsequent Remand to the Lower Court for Merits Adjudication 27

II. THIS COURT SHOULD GRANT CERTIORARI TO REMEDY THE LOWER COURT’S RELIANCE ON AN EN BANC CIRCUIT PRECEDENT WHICH EVISCERATES THIS COURT’S SIXTH AMENDMENT INEFFECTIVE ASSISTANCE OF COUNSEL JURISPRUDENCE, AS RECENTLY DELINEATED IN (TERRY) WILLIAMS V. TAYLOR 30

A. Petitioner’s Sixth Amendment Claim is On All Fours With Williams 32

B. The Lower Court Decision and Its Reliance on U.S. v. Chandler 37

CONCLUSION 40

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IN THE

SUPREME COURT OF THE UNITED STATES

__________________

No. 00-

__________________

TRACY LEE HOUSEL,

Petitioner,

versus,

FREDERICK HEAD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Tracy Lee Housel respectfully petitions this Court to review the decision of the United States Court of Appeals for the Eleventh Circuit.

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

The opinion of the United States Court of Appeals for the Eleventh Circuit is published at Housel v. Head, 238 F.3d 1289 (11^th Cir. 2001), and is reprinted here as Appendix A.JURISDICTION

The Eleventh Circuit Court of Appeals rendered its opinion on January 18, 2001. See Appendix A. Rehearing was denied on April 6, 2001 See Appendix B. On June 26, 2001, this Court granted a fifty seven (57) day extension of time to file the petition for writ of certiorari. See Appendix C. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth Amendment of the United State Constitution, which provides in relevant part:

In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.

U.S. Const. amend. VI;

the Eighth Amendment to the Constitution of the United States, which provides in relevant part:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

U.S. Const. amend. VIII;

and, the Fourteenth Amendment to the Constitution of the United States, which provides in relevant part:

No State shall . . . deprive any person of life, liberty, or property, without due process of law.

U.S. Const. amend. XIV.

STATEMENT OF THE CASE

A. Course of Proceedings Below

Petitioner Tracy Housel is incarcerated under a death sentence at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. He was indicted for the offenses of murder, rape, automobile theft, and financial transaction card theft on June 4, 1985. 1-10-5-16-18.[1] After jury selection, but before the beginning of trial, Mr. Housel pled guilty to malice murder and motor vehicle theft. The credit card theft counts had been previously dismissed. After the plea, the prosecution dismissed the rape charge. Despite the latter, the jury was told that Mr. Housel had been charged with rape, as the parties and the court discussed the matter in their presence and on several occasions.[2] In addition to this and over defense objection, various unadjudicated offenses were admitted at the penalty phase.

After testimony and arguments by counsel, the jury found a single aggravating factor, O.C.G.A. §17-10-30(b)(7) (requiring a finding that the offense was “outrageously or wantonly vile, horrible, or inhuman...”), and sentenced petitioner to death on February 7, 1986. R1-10-14-2034, 2049. On automatic direct appeal, the Georgia Supreme Court affirmed petitioner’s conviction and death sentence. Housel v. State, 257 Ga.115, 355 S.E.2d 651 (1987). This Court denied certiorari. Housel v. Georgia, 487 U.S.1240 (1988).

Petitioner thereafter pursued state post-conviction remedies with volunteer pro bono counsel. After a truncated evidentiary hearing, the state court entered an order denying relief on all claims on the merits on December 21, 1990. R1-10-25. Included among the claims upon which relief was denied on the merits are the two claims referenced in this petition, namely: (1) the claim that Mr. Housel was denied his rights under Eighth and Fourteenth Amendments when the trial court allowed the jury to consider evidence of uncharged, unadjudicated offenses at the sentencing phase of trial, and when the court refused to require the jury to find that the prosecution had proven petitioner’s involvement therein beyond some minimum standard of proof prior to consideration of such in sentencing deliberations; and, (2) the claim that Mr. Housel was denied his right to the effective assistance of counsel as guaranteed under the Sixth Amendment. The Georgia Supreme Court denied a Certificate of Probable Cause on March 1, 1991, without opinion, and this Court again denied certiorari on October 7, 1991.

This petition for writ of certiorari arises from federal habeas corpus litigation initiated on May 3, 1994 under 28 U.S.C. §2254. Because of the timing of filing the federal habeas corpus petition, this case is proceeding under the law existing prior to enactment of the Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. §2254 (1994 ed., Supp. II). See Lindh v. Murphy, 521 U.S. 320 (1997). After holding several evidentiary hearings on the issues of ineffective assistance of counsel and the improper refusal to suppress involuntary and coerced statements, the District Court denied all relief sought. Importantly here, the court denied relief on the merits of both of the claims referenced in this petition.

On appeal, the United States Court of Appeals for the Eleventh Circuit denied relief in an opinion dated January 18, 2001. Rehearing was denied (with slight modifications to the original opinion) on April 6, 2001. On June 26, 2001, this Court granted a fifty seven (57) day extension of time in which to file a petition for writ of certiorari.

B. Pertinent Trial Evidence

Petitioner Tracy Housel was arrested by Daytona Beach, Florida, police on April 14, 1985, for the murder of Jeanne Drew in Gwinnett County, Georgia (a suburb of Atlanta). Mr. Housel was transported from Florida to Georgia and, shortly after his arrival, a magistrate judge appointed Mr. Walt Britt as sole counsel for Mr. Housel. Mr. Britt represented Mr. Housel throughout all pre-trial, trial, and direct appeal proceedings. He was less than four years out of law school, SH at 34, and had never been involved in a capital murder trial nor first-chaired a murder case. Id.

After voir dire and once Mr. Housel pled guilty, the case proceeded immediately to sentencing. The prosecution’s case for death focused almost exclusively upon allegations that Mr. Housel had committed three uncharged, unadjudicated offenses during a six-week period preceding the offense-in-chief. Evidence concerning these unadjudicated offenses included statements elicited from Mr. Housel by law enforcement officers[3] and testimony from two witnesses who were alleged victims of the offenses. R3-28-225-26; R1-10-11-1304,1398-1475; R1-10-12-1644-71; R1-10-13-1753-70,1980-86.

The defense objected to the admission of unadjudicated offense evidence at sentencing. In addition, counsel asked the trial court, at the very least, to instruct the jury that before considering evidence of uncharged, unadjudicated offenses in support of a death sentence, it must first have found, beyond some minimum standard of proof, that Mr. Housel in fact committed such offenses. The trial court overruled the objection and refused to give any burden of proof instruction regarding the unadjudicated offenses. R1-10-5-260; R1-10-11-1401,1414-15; R1-10-12-1681, 1683, 1696-98, 1719, 1734-48; R1-10-13-1920-22,1931-32; R1-10-14-2008-2028. Instead, the trial court instructed the jury, once a statutory aggravating circumstance was found (in this case only one was, the so-called b(7) aggravator), death could be imposed for any reason at all – including based upon the evidence of uncharged, unproven crimes. R1-10-14-2023.

The defense case in mitigation was brief. Other than the defendant himself, trial counsel called only three (3) witnesses, Tracy Housel’s mother, the mother of his son, and a former girlfriend. R-1-10-13-1789-1828. In its entirety this testimony comprised thirty nine (39) pages of transcript. This testimony contained only general information about Tracy Housel, e.g., that he was a good son, and a loving father and stepfather. Mr. Housel’s testimony focused on the charged offense and the unadjudicated crimes, the latter of which called into question the prosecution’s theory as to those offenses and in some respects undermined the State’s case entirely. Mr. Housel also testified that he was under the influence during the charged homicide, as well during the uncharged homicide in Texas.

C. Facts Respecting the Unadjudicated Offenses Issue

The unadjudicated offenses issue that is the subject of the first of two questions presented in this petition was initially raised at trial. In response to defense objections, the State’s position – endorsed by the trial court – was that it did not have to prove these alleged uncharged offenses before the jury was allowed to consider them as proven fact in support of a death sentence. R1-10-11-1415; R1-10-12-1697. That position was reiterated by counsel for respondent in habeas corpus proceedings. See Respondent’s State Habeas Corpus Post-Hearing Brief at 35 (reiterating view that “[p]etitioner was not on trial for the offenses committed in Texas, Iowa and New Jersey and the sentencing phase is not conducted in order to allow a defendant to defend against guilt or against the evidence offered in aggravation.”).

Coupled with the fact that the jury was not advised regarding the elements of, or defenses to, these alleged unadjudicated crimes, the prosecution’s evidence was itself assailable. With respect to the alleged Texas murder, the primary evidence was petitioner’s statement, which was extracted under coercive and unreliable conditions. See footnote 3 infra. On the alleged Iowa offense, the trial judge was visibly concerned about the reliability of the State’s case, as the victim could not identify petitioner as the perpetrator, and the photo line-up was overly suggestive. R1-10-11-1400,1470; R1-10-12-1671;R1-10-13-1770-71 (trial judge noting he was “awful dubious about the Iowa situation” with regard to State’s evidence of such). Nonetheless, the jury was allowed to consider the evidence in any way it wished, uninformed as to the elements of the underlying offenses charged, and completely unrestricted by any standard of proof.

These uncharged, unadjudicated offenses were the crux of the State’s case for death. The prosecutor argued extensively and forcefully that these uncharged offenses warranted a death sentence for Tracy Housel. Referring to the other crimes evidence, the prosecutor called petitioner “a predator” and concluded: “A predator gives no mercy, and deserves no mercy.” R1-10-13-1980-84,1986.

As noted, the unadjudicated offenses issue has been litigated and adjudicated on the merits throughout both state and federal habeas corpus proceedings. Respondent has consistently argued the merits of the issue in all pleadings in these proceedings. In particular (up until the Court of Appeals affirmatively invited respondent to do so after full briefing and oral argument), counsel for respondent at no point suggested that the claim was precluded by Teague v. Lane, 489 U.S. 288 (1989), which generally bars retroactive application of “new rules” in cases on collateral review. As a result, the state courts and the District Court decided this issue on the merits.

During argument before the Circuit Court on May 30, 2000, a panel member questioned counsel for respondent concerning the possibility of asserting a Teague defense on petitioner’s unadjudicated offense issue. Even then, however, after the implicit invitation to do so, counsel for respondent disavowed reliance upon such a defense, instead arguing only the merits of the issue.[4]

D. Facts Respecting the Ineffective Assistance of Counsel Claim

In contrast to the paucity of evidence presented at petitioner’s sentencing trial, the habeas record is filled with substantial mitigating evidence regarding Mr. Housel’s medical disabilities, brain damage, mental health issues, and an upbringing in a house (filled with violence, poverty and addiction) that can only be described as horrific. In habeas corpus proceedings, petitioner proved (without rebuttal evidence from respondent) that Tracy Housel suffers from severe blood sugar imbalance (hypoglycemia, a cousin to diabetes), and that at the time of the offense he underwent a hypoglycemic episode which rendered him psychotic on the night of the crime in Gwinnett County and undermined his mental capacity to distinguish between right and wrong at the time of this homicide. R3-22-6-9. Dr. Buris Boshell, M.D., a Harvard-trained expert in the field of endocrinology with a specialty in diabetes, evaluated petitioner during federal habeas proceedings, administering a series of standard medical tests to detect blood sugar disorders. Based on the facts of the crime as reported by the Georgia Supreme Court and in petitioner’s statements, Dr. Boshell concluded that petitioner underwent “an acute state of hypoglycemia, exacerbated by alcohol, at the time of the crime” R3-22-8-9. He found that:

when in the throes of a hypoglycemic episode, as [Mr. Housel] was at the time of this crime, Mr. Housel did not have the mental capacity to distinguish between right and wrong.... In Mr. Housel’s case, these conditions combined to cause the inability to recognize the wrongfulness of his conduct at the time of his crime and the inability to control his behavior.... It is my professional belief that Mr. Housel was unable to specifically intend his actions....

R3-22-9-10. This testimony was neither disputed nor rebutted by respondent.

In addition, two other independent mental health/medical experts also concluded after conducting evaluations during habeas corpus proceedings that Mr. Housel suffers from brain damage and severe psychological impairments. They concluded that his drug/alcohol use, combined with his brain impairment, “substantially impaired petitioner’s ability to intend the consequences of his acts, to understand and comport his actions with the requirements of the law, and to appreciate the criminality of his conduct.” R3-21-9. These experts documented underlying psychological disorders that exacerbated petitioner’s mental difficulties. They agreed that petitioner’s mental condition during each criminal episode may have eliminated his ability to intend his actions, and provided strong mitigating circumstances. R3-219; R1-10-24-337-353.

Habeas courts also admitted testimony from twenty lay witnesses who described petitioner’s impoverished and abused childhood and behavior before the crime. These witnesses included family, neighbors, family friends and teachers who knew petitioner and his family in Rhode Island where he spent his childhood, in North Carolina where he lived as a small child, and in Iowa where he lived shortly before this crime. The picture painted by these witnesses is in marked contrast to the superficial presentation offered the jury by trial counsel.

Tracy Housel’s mother, Lula, was fourteen years old when she married Tracy’s father, Bill, who was forty three. Lula came from an impoverished background in North Carolina and had a family with a long history of health problems, including diabetes and low blood sugar. Lula herself suffered from severe arthritis and low blood sugar. Lula and Bill moved to Bermuda shortly after they were married. Tracy was born within a year of the marriage and he was a month premature and weighed only 3.5 pounds. He remained in an incubator after Lula’s discharge from the hospital. Tracy was sickly from birth and suffered such bad health that the family moved to North Carolina. R1-10-24-316,326.

As a youngster, Tracy suffered constant headaches and fevers. At the age of six he sustained a fever of 105 degrees for which he did not receive any medical treatment – his father did not “believe in” medical doctors. He was small for his age and accident prone. At age seven he fell from a roof and was knocked unconscious. Again, no medical treatment was provided, even though his pupils remained dilated for several days. He was also knocked unconscious when another child accidentally hit him in the head with a baseball bat. Another time, he fell from a couch and broke his collarbone. At the age of eleven, he sustained head injuries from an auto accident. Id.; R3-22.

While Tracy was still young, he and his parents and three brothers moved to a neighborhood known as Columbia Heights in Rhode Island. Columbia Heights was a poor neighborhood in a former mill town. The mill had moved out, and when Tracy was a child, the neighborhood was nothing more than a “white ghetto.” The Housel family was among the poorest in the area. Children as young as ten were often seen out on their own late at night with no parental supervision. Tracy was no exception. Drugs and alcohol were prevalent among children and adults. R4-36-3,4,5,6,7,8; P. Exh. 26.

Lula was a well-known alcoholic throughout Tracy’s childhood. A co-worker described how she drank straight alcohol from a thermos and would get drunk at work. Lula would often show up at the Legion Hall drunk, and frequently would be asked to leave or carried out. Bill Housel, also an alcoholic, was violent toward Lula. They argued with each other at the Legion Hall, often elevating into fist fights. Lula had a reputation for promiscuity, also causing many arguments with her husband. R4-36-3,4,5,6,7,8,10,11; P. Exh. 26.

As a teenager, Tracy tried to break up these fights, which would often backfire, with both parents turning on him. After one such incident, when he was about 14, he went to the home of his mother’s co-worker. When the co-worker called his mother, Lula responded, “If you’ve got him, you can f**king keep him, come get his s**t.” Tracy did stay, for about three months, and during this time was well-behaved, responsible and helped the co-worker with her infant daughter by babysitting and readying her daughter for bed. R4-36-10.

Tracy’s father Bill had a reputation for unpredictable violence. He frequently hit his children in the head and face with his hands, and often beat them with a belt. Tracy and his brothers often came to school with black eyes, broken noses and bruises. One neighbor recounted a time when another young neighborhood boy hit one of the Housel children; Bill chased the child, caught him, and beat him. R10-24-326; R4-36-4,6,7,8,9; P. Exh. 25-26.

Despite such horrendous home circumstances, Tracy was obedient and well behaved at school. Teachers were well aware of his poverty. They describe him as a troubled child, but not a troublemaker. His sixth grade math teacher said he was an over-achiever for his social situation and was impressed by Tracy’s efforts. R4-36-1,2,11.

These teachers also testified, however, that Tracy was in need of special help and attention because of his troubled home life. Katherine Caroselli, who was both a teacher and a trained social worker, testified that although never disrespectful, Tracy just “wasn’t there” in school. Irene Hutton testified how Tracy was unfocused and unable to concentrate on his schoolwork. She said that although he was quiet and never said much in class, “his sad eyes spoke a lot.” Id.

Iowa witnesses who knew Tracy immediately prior to these crimes also provided testimony at the habeas hearing.[5] When Tracy arrived in Iowa in late 1984 he was drinking and taking drugs. In marked contrast to his persona while sober, when intoxicated he became incoherent. He would suffer from blackouts and later have no memory of his actions. P.Exh. 28-30.

When he began dating Robin Banks his drinking stopped and his behavior changed. During this period, he was described as a kind and easygoing person, a pleasure to be around. Robin was a widow, and he helped her at home with repair jobs, cooking and laundry. He cared for her three children, taking them to play ball or fish. He spent large amounts of time with the children, individually and as a group, and treated them as a father would treat his own children. Id.

Ms. Banks testified that Tracy had a sad side too. At times he would sit in one place staring into space for hours. Tracy did take some drugs while with Ms. Banks, and she confirmed that he was a completely different person at these times, acting strangely, sometimes snapping at Ms. Banks for no reason, other times on the verge of tears for no reason. When sober and eating three square meals a day, he was fine; if he got off schedule eating, these erratic behaviors would return. See P. Exh. 29.[6]

All of these witnesses attested to their willingness to come forward at trial in 1985 to testify on petitioner’s behalf had they been asked – an astonishing number of people from throughout his life. Except for Ms. Banks, however, none were even contacted prior to trial.

Trial counsel Walt Britt testified in habeas corpus proceedings that he failed to undertake even the most rudimentary investigations to uncover this substantial mitigating evidence. This is so despite the fact that he was aware of clear information flagging the need for expert consultation, as well as further background investigation. For example, trial counsel was aware that his client had been evaluated for psychiatric and psychological illnesses by court order in California eight months before the offense involved here, and even discussed this report with petitioner. R13-206, 214. The report found that petitioner had a “severe problem with alcohol,” “psychological difficulties,” and that his bad childhood and other factors made him “highly prone to the use of drugs/alcohol.” See R1-10-24-193. Evaluators noted future potential criminal conduct would likely be associated with petitioner’s alcohol/drug use. Id.

Trial counsel was independently aware of his client’s drug/alcohol problem, and that he had been using at the time of the offense. R13-209,213,215,313. He was aware his client would frequently rage while on drugs or alcohol, and that his family had a history of alcoholism. R13-216, R13-217, 313. Counsel was aware that petitioner’s drug/alcohol use would contribute significantly to the State’s evidentiary presentation. The trial record is replete with evidence demonstrating that petitioner constantly used drugs/alcohol, and that his crimes revolved around such abuse.[7] Counsel’s admitted trial strategy was to “blunt the impact” of this evidence. R13-269. Finally, trial counsel knew his client had suffered head injuries. R13-209;R1-10-24-193;R13-280,282.

Trial counsel also admitted that his failure to seek experts was not a result of an affirmative strategy: rather, he just failed to give it serious consideration. R13-225,272. He did not discuss it with his client. Id. He did not file a motion with the trial court. R13-271. Counsel testified that he had no independent strategic reason for failing to seek expert assistance. R13-272. Indeed, he testified that the expert evidence offered by petitioner in habeas proceedings would have been consistent with his trial strategy in this case, R13-275,279-81, and that had he developed it, he would have used it at both phases. R13-275,279.

Trial counsel’s failure to present non-expert testimony regarding petitioner’s background was also admittedly not the result of any strategic decision. He knew his client was from Rhode Island; he knew he had friends in Iowa; and, his sentencing strategy was to “humanize” his client through presentation of evidence to explain petitioner’s crimes and drug/alcohol problems. Counsel’s failure to investigate and interview these witnesses was not the result of a tactical decision not to do so; indeed, he testified it would have been fully consistent with such strategy to have done so. Instead, by his own admission, he just did not do this investigation. R13-256-57, 307-08. He testified that had he done so, it was wholly consistent with his sentencing strategy to have developed and presented this evidence to the jury.

Finally, trial counsel testified that had he known of the evidence uncovered during habeas corpus proceedings, he would not have advised his client to plead guilty to the underlying murder. R13-285. Instead, armed with virtually no substantive information at trial about his client or his background, the defense at sentencing was ultimately quite weak: “We expect the evidence to show that petitioner lost his temper.” R1-10-11-1308 (defense opening argument, emphasis added).[8]

REASONS WHY THE WRIT SHOULD BE GRANTED

THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE THE CONFLICT IN THE CIRCUIT COURTS CONCERNING WHETHER, AND WHEN, AN APPELLATE COURT MAY SUA SPONTE INVOKE A RETROACTIVITY AFFIRMATIVE DEFENSE UNDER TEAGUE V. LANE IN THE FACE OF A COMPLETE WAIVER OF SUCH DEFENSE BY RESPONDENT

The lower court’s reliance upon a Teague bar to petitioner’s unadjudicated offense claim, invoked sua sponte by the panel despite a complete waiver of such defense by respondent at all times in the prior proceedings, is directly contrary to the holdings in several Circuit Courts. It is also contrary to the actual practice of this Court. In addition, this Court’s own pronouncements on the subject, made only in dicta, have led to considerable confusion and disagreement in the lower courts and, in any event, do not support the result reached below.

Where, as here, counsel for a state government repeatedly refuses to rely upon a Teague defense, even when expressly invited to do so by a federal appellate court acting sua sponte, then the appellate court should not be authorized to apply such a defense as the lower court did here. Instead, consistent with the holdings of several other Circuit Courts, and contrary to the decision of the lower court in this case, in such circumstances a federal court should honor the wishes of the state government whose interests such a defense is designed to protect.

Because this Court has yet to address expressly the issue other than in summary dicta, and because the Court’s own statements on the subject have led to confusion at best, and a direct conflict among the Circuit Courts (as exemplified in this case) at worst, certiorari review is warranted. The need for such review is made all the more critical because petitioner’s life is at stake.

A. Respondent’s Waiver of a Teague Defense was Complete and Clear

This Court has expressly held that a Teague defense is not jurisdictional and therefore may be waived by a party’s failure to assert the defense. See Collins v. Youngblood, 497 U.S. 37, 41 (1990). Respondent absolutely waived reliance upon a Teague defense with respect to petitioner’s unadjudicated offense issue.

Here, respondent failed to assert a Teague defense at any time in the District Court. Under well established rules, respondent was obliged to assert all potential defenses and responses to petitioner’s claim in the answer to the federal habeas corpus petition. See Rule 5 of the Rules Governing §2254 Cases. Even after the District Court ruled on the merits of petitioner’s unadjudicated offense claim, respondent failed to assert a Teague defense via post-judgment pleadings (such as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e)). Such failure, under this Court’s direct precedents, amounted to a waiver of the defense. See Youngblood, supra.

Even on appeal, respondent failed to raise the defense in appellate briefing before the federal appellate court, instead arguing only the merits of the unadjudicated offense issue. Respondent even declined to argue such a defense when invited to do so at oral argument.

To demonstrate just how dogged respondent was in its waiver of a Teague defense, only when the Court of Appeals ordered the parties to brief the Teague defense issue after oral argument did counsel for respondent even broach the subject of Teague. And critically here, in its supplemental briefing respondent reiterated its desire to waive any reliance on such a defense: “this Court should simply review the harmless error analysis conducted by the district court and decline to engage in a Teague analysis... .” Appellee’s Supp. Brief at p. 10 (emphasis added); see also Appellant’s Supplemental Reply Brief at pp. 4-5. In short, respondent’s waiver of a Teague defense is as clear, persistent, and complete as it could possibly be.[9]

B. The Lower Court Ruling is Contrary to This Court’s Admittedly Ambiguous Precedents

The lower court relied upon Caspari v. Bohlen, 510 U.S. 383, 389 (1994) to invoke a Teague defense despite respondent’s persistent waiver.[10] To be sure, in Caspari this Court did state in dicta that a federal court “may, but need not, decline to apply Teague if the State does not argue it.” Id. (emphasis added). Never, however, since the time period immediately following the Teague decision itself, has this Court invoked a Teague defense sua sponte in the face of a complete waiver by respondent.

Of course the Court addressed the issue sua sponte in Teague itself, obviously in order to establish the rule,[11] and it did so in two cases decided so soon after the new retroactivity rule was announced in Teague that the parties did not have a fair opportunity to litigate the issue in prior proceedings. See Penry v. Lynaugh, 492 U.S. 302 (1989); Saffle v. Parks, 494 U.S. 484 (1990). Thereafter, once this Court had initially delineated the contours of the new retroactivity rule, it has never relied upon a Teague defense sua sponte in the face of a complete waiver.[12] And, in declining to do so on some occasions, the Court’s actual practice provides ample support for the view petitioner argues here, and for the course taken by many Circuit Courts (which is contrary to that taken by the lower court in petitioner’s case).

For example, when respondent has attempted to invoke a Teague retroactivity bar belatedly, this Court has repeatedly deemed the issue waived and proceeded to the merits. See e.g. Hopkins v. Reeves, 524 U.S. 88 (1998); Schiro v. Farley, 510 U.S. 222, 228-229 (1994). In Schiro, cited by the Court in Caspari, counsel for respondent had raised the Teague issue at oral argument before the Court. The Court nevertheless declined to address respondent’s Teague defense precisely because it had not been raised in the pleadings prior to oral argument. Id.

In other cases before the Court, respondent has invoked the Teague issue at the earliest available opportunity, thereby justifying reliance upon a Teague defense. For example, in Caspari itself, the case relied upon by the lower court to invoke a sua sponte Teague defense here, respondent had asserted the Teague defense in the lower courts, as well as in the petition for certiorari and in the brief on the merits. Thus there was no issue of waiver present, and the Court’s brief reference to the subject was superfluous to the holding of the case.

Similarly, in Goeke v. Branch, 514 U.S. 115 (1995), the Court cited the dicta in Caspari. Just as in Caspari, however, in Goeke respondent had raised the retroactivity defense at the earliest available opportunity and so, once again, no issue of waiver was present. Id. at 118. In short, although Caspari, Schiro and Goeke have each been cited by lower courts for the general proposition that a federal court may address retroactivity issues sua sponte at least in some circumstances, in none of these cases did the Court actually do so. See e.g. Hopkins, 524 U.S. at 94.

The lower court’s sua sponte invocation of a Teague defense in the face of respondent’s complete waiver is in direct conflict with the holdings and decisions of several Circuit Courts. Specifically, on the facts of petitioner’s case, the lower court decision is in conflict with decisions of the Second, Third, Fourth and Ninth Circuits.

Perhaps the most readily apparent conflict is with the Third Circuit. There, in a case procedurally identical to petitioner’s, the court reached the opposite result. As in petitioner’s case, in Wilmer ex. rel. v. Johnson, 30 F.3d 451 (3^rd Cir. 1994), the Court of Appeals sua sponte asked both sides for supplemental briefing on the applicability of Teague retroactivity principles to the case in light of this Court’s decision in Caspari. Like the present case, this occurred after initial briefing and oral argument. The court noted in its opinion that, “not surprisingly, the respondents now argue that Teague forecloses any habeas relief.” Id. at 454. Nevertheless, the court held that “respondents’ failure to raise the issue in the district court constitutes a waiver of any Teague defense,” and declared that “although we have discretion to reach the State’s Teague defense sua sponte, we decline to do so in this case.” Id. at 455. In reaching this result, the court distinguished Caspari on the basis that the Teague defense there was properly asserted below, and that “the appropriate time for arguing that Teague barred consideration of petitioner’s double jeopardy claim was in the answer to the habeas petition and not in a supplemental brief requested by the court on appeal.” Id. See also Flamer v. Delaware, 68 F.3d 710 727 n.17(3^rd Cir. 1995) (reaffirming holding in Wilmer by distinguishing its facts: “here, [unlike in Wilmer] the respondents vigorously argued Teague in relation to [the disputed claims]... .”

Likewise, the Second Circuit has refused to invoke a Teague defense sua sponte in the face of a waiver of such by respondent. Thus in Ciak v. United States, 59 F.3d 296 (1995) the court found that the government had waived its Teague defense where it did not assert it in appellate briefing or at oral argument, and refused to inject the defense sua sponte. Once again, as with the Third Circuit precedent, this holding is directly contrary to the holding of the panel in petitioner’s case. In Agard v. Portuondo, 159 F.3d 98, 99 (2^nd Cir.), rev’d on other grounds, 529 U.S. 61 (2000), the court re-affirmed its position in Ciak, holding that where respondent had not asserted a Teague defense in the District Court, it would not rely upon such a defense sua sponte even though respondent did raise the defense in the petition for rehearing before the Court of Appeals. In justification of this approach, the court addressed the issue of comity, reasoning that “comity also calls for representatives of states not to agree to federal courts expending substantial time in addressing the merits of the case [as was done by the District Court in petitioner’s case], only to argue belatedly that the merits should not have been reached.” Id. at 100.

The Ninth Circuit refused to permit sua sponte invocation of an otherwise waived Teague defense in Boardman v. Estelle, 957 F.2d 1523 (9^th Cir. 1992). Comparatively referencing procedural bar rules applicable to habeas corpus petitioners, the Court relied upon fundamental notions of fair play and equity to fault the state for its failure to preserve the defense:

We will not save the state from such a gaffe. The Supreme Court has enforced strict procedural forfeitures on habeas petitioners in the interests of efficient and final adjudication. Why should not the state be similarly held to a pedestrian rule of appellate procedure? Comity and federalism and respect for a state’s criminal judgments are marginal here because the state brought the problem on itself.

Id. at 1537. While Boardman pre-dated Caspari, the Ninth Circuit has continued to adhere to a rule (directly contrary to the holding in petitioner’s case) refusing to invoke Teague defenses when the state has waived reliance upon them. See e.g., Crandell v. Bunnell, 144 F.3d 1213 (9^th Cir. 1998) (citing pattern of Ninth Circuit cases deeming Teague issues waived and declining to apply such defense sua sponte); Duckett v. Godinez, 67 F.3d 734 (9^th Cir. 1995).

The Sixth Circuit in Sinistaj v. Burt, 66 F.3d 804 (6^th Cir. 1995), distinguished Caspari and found that the State had waived a Teague defense by not raising it below. The Court also declined to invoke a Teague defense sua sponte in light of the waiver: “The respondent raised the non-retroactivity principle in its motion to amend the district court’s judgment. Deeming the argument waived, we shall address the merits of respondent’s substantive argument.” Sinistaj, at 806.[13]

The Fourth Circuit has likewise refrained from invoking a Teague defense sua sponte in the face of a waiver by the State. In Williams v. Dixon, 961 F.2d 448 (4^th Cir. 1992), the court refused to rely upon a Teague defense sua sponte, citing, among other concerns, the fundamental equitable notion that “finality, and its companion, waiver, must run along a two way-street. Finality certainly means a petitioner cannot raise new claims on appeal not yet raised. It also must mean that the State cannot raise new defenses on appeal not raised below. ... On the facts before us, the State ‘missed the boat,’ and waived any Teague defense to the application of McKoy and Mills in this case.” Id. at 459. See also Epperly v. Virginia, 997 F.2d 1, 9 n.7 (4^th Cir. 1993) (citing Williams to hold that because State raised Teague issue for the first time on appeal it had waived defense). While Williams was decided before this Court’s dicta was pronounced in Caspari, the Circuit has adhered to that rule post-Caspari. See Huffstetler v. Dixon, 28 F.3d 1209, 1994 Westlaw 313630 at *9 n.2 (4^th Cir. 1994) (unpublished) (following Williams).

Even the Eleventh Circuit’s own precedential trail was favorable on this issue leading up to the panel decision in petitioner’s case. Petitioner urged the lower court to refrain from invoking a Teague defense sua sponte in part based on the fact that, up until the panel’s decision, the circuit had never done so previously in the context of a complete waiver. Like some other circuits, the Eleventh had acknowledged some arguable discretion in this area, see e.g. Delguidice v. Singletary, 84 F.3d 1359, 1364 n.11 (11^th Cir. 1996), but had repeatedly refrained from exercising it. Id.; Waters v. Thomas, 46 F.3d 1506, 1523, n.4 (11^th Cir. 1995)(en banc); Clisby v. Dugger, 960 F.2d 925, 929, n.6 (11^th Cir. 1992); Card v. Dugger, 911 F.2d 1494, 1523 (11^th Cir. 1990); Ordway v. U.S., 908 F.2d 890, 896 (11^th Cir. 1990). Only on one prior occasion had the Eleventh Circuit reached a Teague issue sua sponte, and even then it was only in the face of a partial waiver. See Spaziano v. Singletary, 36 F.3d 1028, 1041 (11^th Cir. 1994) (applying Teague rule where respondent at least raised retroactivity issue in initial briefing to the appellate court).

While in practice the Fifth Circuit has sporadically engaged in sua sponte invocation of a Teague defense, it has also argued strongly of the need for uniformity in this area, given the arbitrariness that arises when cases are resolved differently based on the ad hoc application of Teague. See Jackson v. Johnson, 217 F.3d 360 (5^th Cir. 2000). Lamenting the lack of “explanation and ... guidance concerning the circumstances under which the discretionary post-waiver application of Teague is proper,” id. at 362, the court urged the need for a “unified field” theory of when and why sua sponte invocation of Teague is necessary: “Teague’s goal of achieving the uniform dispensation of justice cannot be achieved, however, unless the courts take it on themselves to apply a single retroactivity standard uniformly.” Id. (emphasis added). Indeed, according to the court in Jackson, Teague’s “entire purpose would be defeated if its post-waiver application were left entirely to the unfettered discretion of courts. An easily administrable standard is required if the evenhanded application of justice is to be ensured. Id. at 363 (emphasis added).

To date this Court’s summary dicta on the issue has left it to the “unfettered discretion of the courts.” The result has been a widely divergent set of case precedents in the Circuit Courts. In short, for the very reasons suggested by the court in Jackson, this Court’s intervention is necessary.

Illustrative of the confusion that nevertheless reigns even in circuits that have occasionally asserted a Teague defense sua sponte is the set of opinions in a single case from the Sixth Circuit, where the panel disagreed about the meaning of this Court’s jurisprudence on the issue. In Lyons v. Stovall, 188 F.3d 327 (6^th Cir. 1999), three judges on the Sixth Circuit sharply differed over the continuing validity of the Sinistaj holding noted above. Two of the judges seemed to agree that a Teague defense should be asserted sua sponte at least in some circumstances, but even those judges conflicted as to when, how, and why such is permissible or appropriate. Finally, the third panel member took issue with the other two, opining that sua sponte invocation of an otherwise waived Teague defense should be rarely if ever undertaken.[14] While the Lyons decision undercuts the Sixth Circuit’s prior holding in Sinistaj, the harsh disagreement between the three judges on the panel surely exposes the depth of confusion that reigns in the lower courts with respect to the issue presented here, thereby underscoring the need for resolution by this Court.

In search of some guiding principles (and indeed partly in an attempt to provide such), the Seventh Circuit has suggested that a Teague defense should be asserted by an appellate court sua sponte only if the merits of the underlying claim are of little or no importance. “[Circuit precedents] show that Teague is not a jurisdictional obstacle, however, ... the importance of the issue on the merits leads us not to use the power to invoke a Teague bar unbidden.” Young v. United States, 124 F.3d 794, 797 (7^th Cir. 1997). In fact one judge in the Seventh Circuit has suggested that in capital cases such sua sponte invocation of a Teague defense may be inappropriate precisely for this reason. See Stewart v. Lane, 60 F.3d 296, 304 (7^th Cir. 1995) (Ripple, J., concurring) (“our jurisprudence has yet to develop guiding principles as to when our court ought to raise Teague despite the failure of the state to do so”; warning that “because, in a capital case, invocation of Teague can often mean the difference between life and death for the petitioner, we need to be particularly circumspect as to when we shall invoke Teague sua sponte.”)

Still other circuits show a demonstrable lack of consistency in their citation to and reliance upon this Court’s dicta in Caspari. For example, as noted, the Fifth Circuit has invoked a Teague defense in the face of a waiver by the State, but often times without any discussion of guiding principles or criteria. See e.g., Matthew v. Johnson, 201 F.3d 353 (5^th Cir. 2000); Fisher v. Texas, 169 F.3d 295 (5^th Cir. 1999). However, the Court has also refused to invoke such a defense. See e.g., Blankenship v. Johnson, 118 F.3d 312, 317 (5^th Cir. 1997) (noting both that respondent had waived reliance upon Teague defense [while distinguishing Goeke on that basis] and that court nevertheless had discretion to invoke such defense sua sponte [citing Caspari], the court “decline[d] to do so.”).

As a matter of fundamental fairness and equity, this Court should grant certiorari and set down a rule that disallows interjection of a procedural defense into a case that the State has heretofore never asserted. Habeas corpus petitioners have long been subject to strict, unforgiving procedural default and exhaustion rules in the name of finality and efficiency; habeas corpus respondents should be equally accountable, especially when it is respondent’s interests that are the underlying rationale for the (waived) defense. Where, as here, a federal court steps in when the State has not only failed to raise a Teague defense, but has done so in the face of more than one invitation, implicit or otherwise, such a result smacks of inequity. See Boardman, supra. As the Seventh Circuit has observed in a procedural default waiver context:

The law of habeas corpus is subtle and intricate; mistakes are easy to make. But it is a body of law of which the lawyers employed by a state attorney general should be masters. Failing to achieve such mastery, they should not blame federal judges for springing dangerous criminals free to prey on the citizenry whose safety the attorney general is sworn to protect.

Fagan v .Washington, 942 F.2d 1155, 1157 (7^th Cir. 1991) (Posner, J.).

D. The Merits of Petitioner’s Issue Warrant Resolution of the Teague Issue by this Court and Subsequent Remand to the Lower Court for Merits Adjudication

The importance of addressing the Teague issue in this case is not academic; the underlying merits of the claim, not yet addressed by the lower court, are substantial and worthy of remand to that court once this Court has favorably resolved the Teague issue presented here. The panel itself recognized as much: “Perhaps since last a court visited the [merits] question Eighth Amendment jurisprudence has evolved to recognize the right that Housel espouses.” Housel v. Head, 238 F.3d 1289, 1297 (11^th Cir. 2001).[15] Other law around the country fully justifies this supposition.

Petitioner’s unadjudicated offense claim rests on the well-settled principle that a death sentence is qualitatively different from a sentence of imprisonment, thereby requiring the highest standards of reliability to govern capital sentencing proceedings. See Woodson v. North Carolina, 428 U.S. 280 (1976); Gardner v. Florida, 430 U.S. 349 (1977). A capital case such as this, built as it was almost entirely upon evidence of uncharged, unadjudicated offenses which the State was not even required to prove, does not imbue the sentencing verdict with any degree of reliability.

A different panel of the Eleventh Circuit agreed with this proposition in a concurring opinion rendered years prior to petitioner’s case, expressly finding constitutional error with respect to precisely the kind of sentencing proceeding to which petitioner was subjected:

Assertions by the State at a capital sentencing hearing that the defendant committed crimes for which he has not been convicted are inherently suspect. ... On the other hand, the State has an important interest in presenting to the sentencing jury all relevant evidence regarding the defendant’s character.... The American justice system typically balances these competing concerns by requiring the State to present evidence sufficient to satisfy an applicable standard of proof and the court to instruct the jury as to that standard. ... Just as it is necessary to instruct the jury as to the standard by which the State must prove the elements of the primary crime [i.e., by proof beyond a reasonable doubt] in order to guarantee a fundamentally fair guilt-innocence proceeding, so too the jury must be instructed as to the standard by which a State must prove unadjudicated criminal conduct to be used as a[n] ... aggravating circumstance in order to guarantee a fundamentally fair sentencing proceeding.

Devier v. Zant, 3 F.3d 1445, 1467 (11^th Cir. 1993) (Kravitch, J., concurring, joined by Clark, S.J.), cert. denied, 513 U.S. 1161 (1995).[16]

This point of view has been confirmed in a variety of contexts and jurisdictions. See e.g., McMillan v. Pennsylvania, 477 U.S. 79 (1986)(acknowledging that fact offered during sentencing could be “tail which wags the dog of the substantive offense” where the punishment drastically increases upon finding of such fact); cf. Burgett v. Texas, 389 U.S. 109, 117-19 (1967) (Warren, C.J., concurring) (“[t]o expect that the jury could wipe this from its memory and decide the petitioner’s guilt only on the basis of [valid] evidence ... is to place too much faith in a jury’s ability to detach itself from reality.”).

This Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) provides further support for the notion that facts utilized at sentencing to enhance a capital defendant’s punishment must be proven to a jury under the most exacting standards. Id. (“any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). See also U.S. v. Mergerson, 4 F.3d 337, 343 (5^th Cir. 1993) cert. denied, 510 U.S. 1198 (1994) (recognizing “a growing number of cases decided by courts in other circuits in which a higher standard of proof has been suggested or required when a finding of a particular fact relevant to sentencing dramatically increases the sentencing options of the court to the disadvantage of the defendant.”).

In many state capital sentencing schemes these principles have been recognized, via legislative enactment or court decision, so that in an overwhelming majority of death penalty states the use of unadjudicated offense evidence at sentencing is either disallowed altogether or subject to a rigorous burden of proof. See Stephen P. Smith, Note, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phase of Capital Trials, 63 Colum. L. Rev. 1249 (1993). As one court has stated, reliance upon uncharged offenses “allows the state to secure a conviction on a strong murder case, then seek the death penalty by providing a weak case before a jury which is undeniably prejudiced. This opens the door to death penalty recommendations upon a level of proof lower than proof beyond a reasonable doubt.” State v. McCormick, 272 Ind. 272, 397 N.E.2d 276, 280 (1979). Likewise, the Supreme Court of Pennsylvania has concluded:

In a capital case where a man’s life is at stake, it is imperative that the death penalty be imposed only on the most reliable evidence. Prior convictions of record, and constitutionally valid admissions and confessions of other crimes meet this standard of reliability; piecemeal testimony about other crimes for which [the capital defendant] has not yet been tried or convicted can never satisfy this standard.

Commonwealth v. Hoss, 445 Pa. 98, 118, 283 A.2d 58, 69 (1981). For the convenience of the Court, in Appendix D attached hereto petitioner has provided a synopsis of death penalty states that either disallow reliance upon unadjudicated offense evidence at sentencing altogether, or allow it only subject to some burden of proof.

II.

THIS COURT SHOULD GRANT CERTIORARI TO REMEDY THE LOWER COURT’S RELIANCE ON AN EN BANC CIRCUIT PRECEDENT WHICH EVISCERATES THIS COURT’S SIXTH AMENDMENT INEFFECTIVE ASSISTANCE OF COUNSEL JURISPRUDENCE, AS RECENTLY DELINEATED IN (TERRY) WILLIAMS V. TAYLOR

On the advise of counsel, petitioner pled guilty to capital murder despite the fact that he had a viable defense to the crime. And because of trial counsel’s admitted failure to conduct even the most rudimentary investigation, petitioner was sentenced to death by a jury that knew virtually nothing about his horrendous childhood, his brain damage, or his severe medical condition, the latter of which undisputedly rendered him incapacitated on the night of the offense and otherwise explained his uncharacteristic loss of control.

Trial counsel acknowledged that he failed to conduct a minimally adequate investigation into his client’s background and medical and mental health history. He also conceded that had he learned of the evidence presented in habeas corpus proceedings – evidence which exonerated petitioner from guilt, and overwhelmingly mitigated his culpability at sentencing – he would not have pled his client guilty, and would have presented all of this evidence and argued it forcefully at both phases of trial. Thus there are no strategic considerations to explain counsel’s failings.

Petitioner’s Sixth Amendment claim thus stands or falls based upon whether it can be fairly said that a trial attorney who pleads his capital defendant guilty rendered effective assistance despite the fact that he failed to investigate or develop undisputed medical evidence giving rise to a viable defense at trial. And as to sentencing, the claim turns on whether a trial’s attorney’s admitted failure to investigate, develop and present evidence that would have fully explained an otherwise senseless killing, and would have otherwise provided a substantial basis for the exercise of mercy by a sentencing jury, satisfied the Sixth Amendment’s guarantee of reasonably competent counsel for all criminal defendants.

This Court’s recent decision in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), confirms that petitioner is entitled to relief on his claim that he was denied his right to the effective assistance of counsel at trial. The pertinent facts of Williams with respect to this claim are indistinguishable from those in petitioner’s case. On that basis alone, this Court should exercise its plenary power and grant certiorari in this case. Such review is made all the more necessary because the lower court relied upon a sharply divided en banc circuit decision, Chandler v. United States, 218 F.3d 1305 (11^th Cir. 2000)(en banc), which blatantly contradicts and disregards this Court’s holding and reasoning in Williams.

A. Petitioner’s Sixth Amendment Claim is On All Fours With Williams

In assessing the claim of ineffective assistance of counsel in Williams this Court addressed a broad range of factors, including the nature of the crime and the aggravating evidence of other unadjudicated offenses, the mitigating evidence that was presented at trial, counsel’s stated trial strategy, and the undeveloped mitigating evidence presented in habeas corpus proceedings. Applying 28 U.S.C. § 2254 (d)(1), the Court held as both contrary to the governing law, see Strickland v. Washington, 466 U.S. 668 (1984), and “an unreasonable application” thereof, the lower court finding that counsel’s performance was not deficient and that the prejudice resulting therefrom did not affect the sentencing outcome. 120 S.Ct. at 1516. The Court found prejudice based upon the conclusion that the mitigating evidence not presented at trial but offered in habeas “might well have influenced the jury’s appraisal of [Williams’] moral culpability.” Id. at 1515.[17]

The relevant facts underlying the ineffectiveness issue in Williams are remarkably similar to those presented by petitioner’s case. In Williams, the jury learned that the defendant beat an elderly man with a wooden club, retrieved three dollars from the victim’s wallet as he lay gasping for breath, and left him to die. 120 S.Ct. at 1499-1500. Primary evidence of guilt came from Williams’ multiple confessions. Id. at 1499. At sentencing the jury learned that Williams had engaged in a series of brutal assaults on elderly victims shortly after the crime: he set fire outside a man’s home to facilitate a violent attack and robbery on the occupant, and he beat an elderly woman so severely that she was left in a permanent vegetative state. Id. at 1500. These crimes, as well as evidence of auto thefts, were uncharged at the time of trial. Id. Again, the primary evidence came from the defendant’s confessions. The jury also learned that Williams had an extensive prior criminal record, including convictions for armed robbery, burglary, and grand larceny. Id. He had also been convicted of arson for setting fire to the jail while he awaited trial on the capital murder case. Id. Two psychological experts who examined Williams prior to trial told the jury that “there was a high probability that he would commit future criminal acts of violence and that he constituted a continuing threat to society.” Id.

The facts of petitioner’s crime and other aggravating circumstances are no more severe, and in some respects, less so. As in Williams, petitioner was convicted of beating a person to death with a wooden stick. As in Williams, the primary evidence consisted of petitioner’s confession. As in Williams, at sentencing the jury learned of three assaultive crimes petitioner had allegedly committed, including the assault and robbery of man who had offered petitioner a ride, the killing of truck driver with whom he had struggled, and the sexual assault of a woman he met at a party. Again, the state’s primary evidence as to the killing came from petitioner’s statement. While petitioner readily acknowledges the disturbing nature of the facts presented to the jury that sentenced him to death, they are certainly no more egregious than those heard by the jury which sentenced Terry Williams to death.[18]

In both cases, the sentencing jury heard comparatively little about each defendant’s life; in both, however, the true story is replete with facts that, while they do not excuse the crime, at least put it in a mitigating context that “might well have influenced the jury’s appraisal of [each defendant’s] moral culpability.” 120 S.Ct. at 1515. Terry William’s jury heard from three witnesses (the mother and two neighbors) in mitigation, in addition to excerpts from the testimony of an expert witness who had examined the defendant in another matter. Tracy Housel’s jury heard from three witnesses (other than his own testimony), his mother and two recent ex-girlfriends, comprising a total of 39 pages of testimony. In Mr. Housel’s case, no expert evidence, documentary or otherwise, was provided the jury. In both cases, the witnesses provided generic testimony that the defendant was generally “nice” and “non-violent.” The two girlfriends in petitioner’s case had known him for a short period of time and said nothing about his childhood and background.

In both cases this cursory mitigating presentation is to be contrasted with the “voluminous” mitigating evidence that was developed and proffered to the reviewing courts in habeas. Once again, both in terms of quantity and substance, the proffered evidence in each case was remarkably similar. Both presented evidence in post-trial proceedings of a “nightmarish” childhood, 120 S.Ct. 1514, replete with severe poverty, abusive, alcoholic parents and little or no adult supervision. Id.[19] Just as Mr. Williams suffered from mental deficiencies, including being “borderline mentally retarded” and brain impaired, so too Mr. Housel presented unrebutted evidence that he suffered from organic brain damage. And while petitioner did not claim borderline retardation, he presented unrebutted evidence that he suffered from a documented medical condition, hypoglycemia, a condition for which, like mental retardation, he was wholly blameless yet which, also like retardation, severely impaired his ability to exercise judgment at the time of the offense.

Other character evidence proffered in Williams compares with that presented in petitioner’s habeas proceedings. Just as prison officers and a respected community member were willing to come forward on Mr. Williams’ behalf, numerous teachers and prison guards were willing to testify for Tracy Housel, attesting to his general good behavior and kind nature.

In petitioner’s case, as in Williams, 120 S.Ct. at 1502, trial counsel readily acknowledged that presenting all of this evidence at sentencing was wholly consistent with the trial strategy of focusing on the defendant’s remorse (demonstrated in the confessions); indeed, attorneys in both cases testified that had they learned of it, they would have presented and argued this evidence to the jury. In both cases, counsel refrained from justifying their failure to investigate and develop the evidence as the result of strategy, but rather, cited a simple failure to do the necessary investigation.[20]

To the extent that the trial strategy of focusing on remorse might appear to justify a failure to develop and present such a broad mitigating picture, Williams rejects the reasonableness of any such strategy in light of the sheer volume of un-presented mitigating evidence: “the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams’ favor was not justified by a tactical decision to focus on Williams’ voluntary confession.” 120 S.Ct. 1514. Put another way, sufficiently voluminous mitigating evidence will trump a trial strategy otherwise deemed reasonable if the jury does not hear that evidence.[21]
B. The Lower Court Decision and Its Reliance on U.S. v. Chandler

In finding trial counsel effective under the two prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), the Court of Appeals applied its sharply divided en banc decision in Chandler v. United States, 218 F. 3d 1305 (11^th Cir. 2000)(en banc). See Housel v. Head, 238 F.3d at 1294-95. The Chandler majority, over vigorous dissent, adopted a reformulated standard for measuring deficient performance which binds all future Eleventh Circuit cases. Because the Chandler decision is squarely at odds with this Court’s decisions in Strickland and Williams (which divergence can readily be seen under the comparative facts of this case as just noted), this Court should grant the petition to review the new Eleventh Circuit test. This is especially true in light of the five dissenting opinions in Chandler.

Strickland makes clear that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Under Strickland a reviewing court is dutybound to review the trial and habeas record to discern the actual strategy (if any) employed by trial counsel and the actions taken in pursuance of that strategy, and then assess the reasonableness of the attorney’s strategy and conduct as measured against prevailing professional norms and against the available evidence and facts brought to light in habeas corpus proceedings. Id. Obviously such inquiry necessarily entails scrutiny of the attorney’s actual performance and strategy at trial.

Despite the settled nature of the Strickland test, recently applied and clarified in Williams, the majority opinion in Chandler eviscerates the notion that actual strategy and conduct by trial counsel is the focus of the Sixth Amendment inquiry. Instead, under the Chandler majority’s view, there is no need to review trial counsel’s actual strategy and performance: “[B]ecause counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take. ‘The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.’” Quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11^th Cir.1995) (en banc) (emphasis added).

The dissenting opinions in Chandler clarify just how radically new (and erroneous) such a standard is in the context of ineffective assistance of counsel claims. For example, Judge Tjoflat noted in dissent how the majority’s new approach relies on a presumption against deficient performance that renders irrelevant what trial counsel actually did, and why. Judge Tjoflat correctly complained that such an interpretation of the so-called “presumption” is flatly contrary to Strickland because it renders superfluous the need for determining what counsel actually did or intended to do. 218 F.3d at 1332. Chief Judge Anderson rightfully opined that such a test could not be squared with this Court’s Sixth Amendment jurisprudence, noting that “an appropriate resolution of the performance prong [in Strickland] cannot be made without [historical] fact findings by the district court.” Id. at 1343. Judge Birch found that the majority opinion in Chandler marked a clear departure from the accepted standard and warned that “the majority places the acceptable level of attorney assistance so low as to risk undermining the public confidence in the criminal justice system.” Id. at 1343. Judge Barkett clarified how the Chandler standard fails to comport with this Court’s holding in Williams v. Taylor, supra. 218 F. 3d at 1345, fn.2. And finally, Judge Wilson predicted that the Chandler majority’s decision “virtually forecloses any future Strickland claim of ineffective assistance during the penalty phase of a capital proceeding.” Id. at 1361.[22]

In short, the debate in Chandler was vigorous and, according to many, the stakes substantial. Chandler’s wake is wide and growing in the Eleventh Circuit. These dissents, standing alone, serve as compelling reasons why this Court must grant certiorari review in a case such as petitioner’s to square the Eleventh Circuit’s jurisprudence with its own.

Finally, Chandler’s so-called “objective” test does not comport with the facts and reasoning of Williams. In Williams this Court found deficient performance where “trial counsel failed to conduct investigations that would have uncovered substantial amounts of mitigation.” 120 S.Ct. at 1524 (O’Connor, J., concurring in part). The Court looked at what trial counsel actually did and found that there was an actual “failure to conduct the requisite, diligent investigation.” Id.; see also 120 S.Ct. at 1514. In reaching this conclusion this Court never once engaged in the analysis used by the majority in Chandler – i.e., it never sought to justify or explain trial counsel’s actions by means of hypothetical, non-record strategies. To the contrary, the Court implicitly acknowledged the perceived reasonableness of a strategy to focus on remorse, and nevertheless held it wanting in the face of an overwhelming volume of mitigating evidence that was neither developed nor presented as a result of such otherwise reasonable strategy. 120 S.Ct. at 1514 (“the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams’ favor was not justified by [counsel’s actual] tactical strategy [otherwise reasonable] to focus on Williams’ voluntary confession.”). In short, under Chandler’s express holding Mr. Williams himself would have lost because his attorney engaged in a strategy (“focusing on remorse”) which was otherwise objectively reasonable.[23]

CONCLUSION

For the reasons set forth herein, petitioner Tracy Housel respectfully requests that this Court grant his petition for writ of certiorari.

Respectfully submitted,

______________________________

Robert L. McGlasson*

Mary Elizabeth Wells

Federal Defender Program

Suite 200 The Equitable Building

100 Peachtree Street, N.W.

Atlanta, Georgia 30303

(404) 688-7530

*Counsel of Record

[1] Record cites in this petition are as follows. Documents in the Appellate Record except R1-10: “R ___(volume no.) - ___(document no.) - ___(page no.).” R1-10 is a compilation of Respondent’s exhibits and will be referenced: “R1(volume no.) -10(document no.) - ___ (Respondent’s exhibit no.) - ___(page no.).” Petitioner’s Exhibits from Federal Evidentiary Hearing: “P. Exh. ___ (exhibit no.).” Citations to the state habeas corpus transcript: “SH.”

[2] The court and the parties advised the jury that “they” would not determine guilt or innocence of the rape charge, erroneously implying the charge was still pending and that some other jury would hear that case. Jurors were never informed that the rape charge had been dismissed.

[3] These statements were themselves the subject of substantial challenge both at trial and (especially with respect to the one allegedly given by petitioner regarding the Texas homicide shortly after his arrival at the Gwinnett County jail) during habeas corpus proceedings. The District Court conducted an evidentiary hearing on this issue, and petitioner presented unrebutted evidence that law enforcement officials obtained this statement under coercive conditions that were expressly designed to overbear Mr. Housel’s will. That evidence included: (1) a plan attested to and designed by local police detectives (with the aid of FBI officials) involving secretly interrogating Mr. Housel at night and without the knowledge of his counsel, R1-10-24-149-50; R14-305, 405-12, 431-32 (federal habeas testimony of Gwinnett County Detective John Latty); (2) prohibiting Mr. Housel from taking a shower for the first three months he was incarcerated in the Gwinnett County jail, R14-344, P. Exh. 13, 15, R-14-346 (Order of Trial Court, August 7, 1985, finally requiring jail to allow defendant out of his cell to shower and exercise); (3) holding Mr. Housel in solitary confinement throughout this time, R14-338; and, (4) allowing Gwinnett jail personnel to use an electric “stun gun” on Mr. Housel on several occasions, even when he was standing in a pool of water, R14-351, P. Exh. 14, 15. Petitioner also proved in the District Court, again without rebuttal, that these conditions, coupled with his own pre-existing mental health and medical issues, eroded Mr. Housel’s ability to act of his own volition. For example, all who observed Tracy Housel while he was incarcerated at the Gwinnett County jail testified in the District Court that he acted irrationally and bizarrely throughout the time he was there: yelling and screaming, kicking and banging on the door and bars of his cell, going into trance-like states, being “spaced out”, being unable to hear or respond while his eyes were glassy or glazed over, crying uncontrollably, going without sleep for long periods, acting paranoid, pacing nervously back and forth in his cell, and talking incoherently. R14-343,366; P. Exh. 12, 13, 14, 15, 24.

[4] In his supplemental post-argument reply brief which the lower court ordered the parties to file, counsel for petitioner specifically moved for disclosure of either the tape of the oral argument in the case, or a transcript thereof, in support of his assertion that even at oral argument counsel for respondent declined the panel’s implicit invitation to assert a retroactivity defense. See Petitioner’s Supplemental Reply Brief at p. 2 n.1. He did so in reliance upon authority from this Court and other Circuit Courts which have expressly referenced respondent’s conduct at oral argument in resolving the issue of whether, and when a federal court is authorized to invoke a Teague defense sua sponte in the face of a waiver by respondent. The lower court never addressed this request, which had the effect of denying access to this information.

[5] One of these witnesses, Robin Jackson Banks, also testified at petitioner’s trial. During habeas proceedings she explained she only spoke with defense counsel briefly before her testimony and was completely unprepared at trial. She was caught off guard by trial counsel’s questioning, and left out most of what she would have said had she been prepared. P.Exh.29.

[6] This information confirmed Dr. Boshell’s medical findings. As Dr. Boshell testified, petitioner’s hypoglycemia makes him more susceptible to complications resulting from the consumption of alcohol. When a hypoglycemic person drinks alcohol or fails to eat a stable, regular diet, he is more at risk of a hypoglycemic episode. A person in the throes of a hypoglycemic episode loses inhibitions and judgment and the ability to make rational decisions. R3-22. This is consistent with the testimony of these witnesses, who noticed a marked contrast between Tracy’s sober personality and that while on drugs/alcohol and while not eating properly.

[7] Police reports reveal that at the time of the offense, April 7, 1985, petitioner had been drinking for over four hours. At one truck stop, “all noticed the suspect because he was very vocal and created a disturbance a time or two, very conspicuous,” describing petitioner as “extremely strange” and “very weird.” R1-10-2; R1-10-12. At the time of arrest, petitioner had been drinking substantially. R1-10-2-144; R1-10-12-1519,1549,1568; R1-10-11-1306. Even the unadjudicated offenses involved drinking and drugs. R3-28-281-87;R1-10-13-1753-69; R1-10-13-1980;R1-10-12-1665;R1-10-13-1984.

[8] The lower court opinion wholly fails even to mention any of this testimony presented at the federal habeas corpus evidentiary hearing. Instead, the court relies upon the District Court’s selective combing of the state habeas corpus record in reference to trial counsel’s explanation for his conduct. See Housel v. Head, 238 F.3d 1289, 1294-96.

[9] Such persistence is not unrelated to the issue of whether an appellate court should ever be authorized to assert a Teague defense when the state refrains from asserting such defense. In its Teague jurisprudence this Court has repeatedly emphasized that its retroactivity doctrine “effectuates the States’ interest in the finality of criminal convictions and fosters comity between federal and state courts. Gilmore v. Taylor, 508 U.S. 333, 340 (1993). Under such rationale the irony of sua sponte assertion of the defense, when the state itself has elected not to do so, is not lost.

[10] Notably, the court failed even to mention the wealth of contrary case law, both in the Eleventh Circuit, and in other circuits throughout the country, cited by petitioner in the requested supplemental briefing; neither did the panel note the completeness of respondent’s waiver, including the fact that in the requested supplemental brief respondent continued to argue against reliance upon Teague.

[11] The Fourth Circuit has explained that “it cannot seriously be contended that the Court’s reaching the question [sua sponte] in Teague means that all courts must reach the same question – that view denies the role the [Supreme] Court plays in our system.” Williams v. Dixon, 961 F.2d 448, 458 (4^th Cir. 1992).

[12] See Collins v. Youngblood, 497 U.S. 37 (1990); Parke v. Raley, 506 U.S. 20 (1992); Wright v. West, 505 U.S. 277 (1992); Godinez v. Moran, 509 U.S. 389 (1993); Schiro v. Farley, 510 U.S. 222 (1994); Hopkins v. Reeves, 524 U.S. 88 (1998).

[13] Notably here, at least in Sinistaj respondent had attempted to raise a Teague defense in the lower federal court, albeit late, via a post-judgment motion. By contrast, respondent in petitioner’s never raised the defense in the District Court or even in the appellate briefing before the Court of Appeals or at oral argument. Thus the panel’s decision in petitioner’s case directly conflicts with the holding of Sinistaj in the Sixth Circuit.

[14] The lead opinion in Lyons interprets this Court’s decision in Goeke as allowing appellate court reliance upon a Teague defense as long as respondent has raised the issue at least in appellate briefing or at oral argument. Lyons, supra, at 336 (opinion of Clay, J.). The concurring opinion takes sharp issue with Judge Clay’s interpretation of Goeke, noting (correctly) that in Goeke the Teague defense was properly preserved in the lower court. Lyons, supra at 344 (Gilman, J., concurring). This concurrence opines, however, that despite the waiver, the court should nevertheless raise a Teague defense sua sponte for reasons that even this Court has never articulated. Id. at 347. The dissenting member of the panel acknowledges some discretion to invoke Teague sua sponte, but argues that “a federal court should not invoke the defense sua sponte unless there are particularly strong reasons to overlook the state’s forfeiture.” Lyons, at 348 (Moore, J., dissenting). The dissent also bemoans the fact that the Supreme Court has “yet to provide much guidance on when we should exercise our discretion to invoke Teague sua sponte,” and then points out that the Sixth Circuit “has had the opportunity to address the issue, and in each instance where the state has failed to raise Teague in the district court, we have declined to invoke the defense on our own.” Citing Coe v. Bell, 161 F.3d 320, 337 n.1, 339 n.3 (6^th Cir. 1998); in Sinistaj, supra.; Kordenbrook v. Scroggy, 919 F.2d 1091, 1104 n.4 (6^th Cir. 1991) (en banc). Id.

[15] Such a view stands in stark contrast to respondent’s position, expressed at trial and in habeas corpus proceedings, which dismissed the need for any standard of proof because “[p]etitioner was not on trial for the offenses committed in Texas, Iowa and New Jersey and the sentencing phase is not conducted in order to allow a defendant to defend against guilt or against the evidence offered in aggravation.” See Respondent’s State Habeas Corpus Post-Hearing Brief at 35.

[16] In Devier the defendant had failed to request a standard of proof instruction on the unadjudicated offense evidence, and the per curium decision denied relief based upon that fact. 3 F.3d at 1464-66; see also, id. at 1466 (two judge concurring opinion characterizing basis of majority holding). Thus while the per curium opinion did not settle the merits issue presented in petitioner’s case, a majority of the panel held that, had the merits been reached, the result would have been that sought by petitioner: upon request (as here), “the trial judge in capital cases should instruct the sentencing jury as to the standard by which the State must prove the defendant committed the [unadjudicated] crime. Failure to provide such an instruction would impermissibly impinge on the defendants’ right to a reliable and fundamentally fair sentencing determination.” Id. at 1467. In short, petitioner’s case is precisely the case outlined by the (majority) concurring opinion in Devier.

[17] In comparing petitioner’s case to Williams, it is important to note at the outset that unlike Williams his case is preceding under pre-AEDPA law. Thus the Court in Williams granted relief after finding not only that the petitioner’s Sixth Amendment rights had been violated, but also that the state court’s failure to so find was “unreasonable.” 120 S.Ct. at 1516. This Court need only determine the first of these issues in petitioner’s case to conclude that relief must be granted.

[18] Indeed, in some critical respects the aggravating evidence in petitioner’s case was less egregious. His prior record consisted solely of an assault on a prostitute for which he received probation. In fact, the evidence demonstrates that apart from the brief two week period leading up to the offense in chief, Tracy Housel was simply not a dangerous or violent criminal, especially as compared with the record left by the defendant in Williams.

[19] Petitioner presented eyewitness accounts from neighbors, family members and friends who described in detail how Tracy Housel was brutalized by his father, beaten with fists, boards, and other objects, often coming to school so badly bruised that several of his teachers spoke of having seen him with broken facial bones and obvious bruising. Petitioner also presented evidence that both parents were severe alcoholics, and that his mother and father were regularly bounced from local drinking establishments due to disruptive conduct. Testimony about the mother went even further: she not only failed to provide any real supervision over him from an early age, she was also notoriously promiscuous, widely known as the neighborhood “tramp,” even propositioning step-family members, neighbors, and the parents of some of Mr. Housel’s childhood friends. Evidence of Tracy Housel’s abject poverty was also undisputedly pronounced: the Housel children were widely viewed as being among the poorest in a poor neighborhood; teachers were visibly aware of the family’s severe poverty, having observed Tracy appearing regularly at school in “rags.”

[20] On this point Williams expressly holds that “counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background.” 120 S.Ct. at 1515, citing favorably 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d edition 1980), which provides:

The lawyer also has a substantial and important role to perform in raising mitigating factors to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to fulfillment of these functions.

[21] This is also true even where some of the unpresented mitigating evidence is not helpful to the defendant. In Williams this Court held that counsel’s failures were no less damning simply because “not all of the additional evidence was favorable to Williams.” 120 .Ct. at 1514 (noting how some juvenile records proffered in habeas demonstrated criminal conduct as a juvenile). Likewise, the fact that some of petitioner’s proffered evidence references petitioner’s drug and alcohol addiction, facts already in evidence at trial, does not “justif[y] ... the tactical decision to focus on [Housel’s] voluntary confession” at the exclusion of developing and, importantly here, explaining this evidence. Id.; see also Macias v. Collins, 979 F.2d 1067 (5^th Cir. 1992) (affirming District Court grant of habeas relief where trial counsel improperly failed to explore, and explain, defendant’s drug abuse history simply because it involved some potentially damaging evidence).

[22] To date Judge Wilson’s prediction holds true. Undersigned counsel is aware of no Eleventh Circuit capital case since Chandler that has been reversed on grounds of ineffective assistance of counsel. Of the twenty one (21) cases that have cited Chandler to date, all have denied relief on any claim of ineffective counsel. And significantly here, several Eleventh Circuit cases have utilized Chandler’s “any competent attorney” test in denying habeas relief based not upon an assessment of what trial counsel actually did or did not do, but rather upon speculative assumptions about possible strategies by imaginary counsel. See e.g., Fugate v. Head, ___ F.3d ___, 2001 WL 930557 at *8 (11^th Cir. (Ga.) August 16, 2001) No. 98-8930l; Grayson v. Thompson, 257 F.3d 1194, 1216 (11^th Cir. 2001); Johnson v. Alabama, 256 F.3d 1156, 1176 (11^th Cir. 2001); Williamson v. Moore, 221 F.3d 1177, 1180 (11^th Cir. 2000).

[23] Additionally, unlike the Eleventh Circuit after Williams and Chandler, Courts of Appeals in other circuits have repeatedly relied upon Williams to grant relief in circumstances quite similar to petitioner’s, where the trial attorney failed to present substantial mitigating evidence at the sentencing phase of a capital trial without strategic justification. See e.g., Skaggs v. Parker, 235 F.3d 261 (6^th Cir. 2000); Battenfield v. Gibson, 236 F.3d 1215 (10^th Cir. 2001).