Full opinion text
OPINION AND ORDER EDMUND A. SARGUS, JR., District Judge. Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. The Court’s original disposition of this case was reversed by the Sixth Circuit Court of Appeals on June 28, 2004. See Sowell v. Bradshaw, 372 F.3d 821 (6th Cir.2004). This matter is before the Court upon remand from the Sixth Circuit for a decision on the merits of petitioner’s remaining claims. For the reasons that follow, the writ of habeas corpus is conditionally granted. I. INTRODUCTION This case does not turn on the propriety of capital punishment. That issue has been definitively addressed by the United States Supreme Court in pronouncements binding on this Court. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It is, however, the obligation of this Court, under Article I § 10 of the Constitution and Section 2254 of Title 28, United States Code, to insure that the petitioner in this case has not been convicted or sentenced in violation of the Constitution of the United States. This Court has recognized that it has no more important task than that of exercising its habeas corpus jurisdiction under 28 U.S.C. § 2254 in a case involving a sentence of death. Sowell v. Anderson, No. C-1-94-237, 2001 WL 1681142 (S.D.Ohio Oct.5, 2001) (citing Roe v. Anderson, C-1-96-825 (S.D. Ohio June 15, 2000)). The Constitution itself recognizes the writ of Habeas Corpus. U.S. Const. ART. I, § 10. As the Supreme Court noted in Williams v. Taylor, 529 U.S. 362, 374-75, 120 S.Ct. 1495, 146 L.Ed.2d 389(2000): In 1867, Congress enacted a statute providing that federal courts “shall have power to grant writs of habeas corpus in all cases where any person maybe restrained of his or her liberty in violation of the Constitution, or any treaty or law of the United States.” Act of Feb. 5, 1867, Ch. 28 § 1, 14 Stat. 385. Over the years, the federal habeas corpus statute has been repeatedly amended, but the scope of that jurisdictional grant remains the same. Applying those principles to this case, the Court concludes that a writ should be granted as to petitioner’s first argument because petitioner received ineffective assistance of counsel during the penalty phase of his capital trial. II. FACTUAL AND PROCEDURAL BACKGROUND In its June 23, 2004 Opinion and Order, the Sixth Circuit relied on the statement of facts set forth by the Ohio Court of Appeals: The record discloses that [Sowell] and [Calvert] Graham resided in adjacent apartments on the third floor of an apartment building in downtown Cincinnati. [Sowell] was the resident manager of the building and became acquainted with Graham, who performed occasional odd jobs at the apartment building. After Graham became a resident in [So-well’s] apartment building, the two men developed a friendly relationship and visited one another in their respective residences. On May 1, 1983, three days prior to the instant offenses, [Sowell] was a guest in Graham’s apartment. Also present were Donna Edwards (Edwards), a woman with whom Graham shared the apartment, and [Pam] Billups [a former prostitute who had been visiting Graham and Edwards]. Graham offered two marijuana cigarettes to [So-well], which he accepted. Thereafter [Sowell] left the apartment in the company of Billups and proceeded to a nearby restaurant where he purchased dinner for her. En route to the restaurant, [Sowell] smoked the second marijuana cigarette, having consumed the first at Graham’s residence. Thereafter the pair made their way to a hotel where [Sowell] rented a room. There was conflicting testimony concerning the events that transpired thereafter. However, it is not disputed that [Sowell] eventually lost consciousness, having consumed an unspecified quantity of wine during the evening in addition to the marijuana. The next morning [Sowell] made his way back to his residence, stopping along his route to obtain breakfast for Billups. [Sowell] next encountered Billups on the afternoon of May 4, 1983. Billups was in the company of Edwards and the trio passed in the doorway of a store but did not acknowledge one another. As will be seen, this seemingly inconsequential meeting gained significance later in the day. That evening [Sowell] returned to his apartment building after, according to his testimony, visiting no less than five taverns and consuming at least one double shot of vodka at each stop. Upon returning to his apartment building [So-well] realized that he was not in the mood to retire for the evening, and instead presented himself at Graham’s apartment. Graham greeted [Sowell] and invited him inside, where Edwards and Billups were also present. Graham produced a marijuana cigarette which was consumed by all four occupants. [Sowell] testified before the trial court that following the consumption of the marijuana, he fell asleep for a short time. When he awoke the others were still present and [Sowell] discovered that approximately $190 had been removed from his trouser pocket. At first [So-well] thought that the trio was playing a joke upon him; however, his requests for the return of his money received no response. [Sowell] further testified that Graham then picked up a knife and ordered [Sowell] to leave the residence. [Sowell] complied and departed, but he was extremely angry as a result of his loss. Both Billups and Edwards told the trial court that [Sowell’s] visit to the apartment on the day in question was at first friendly. However, [Sowell] soon became agitated and accused Billups of being unsociable in that she did not speak to him earlier that afternoon. [Sowell] also accused Billups of stealing $24 from him during their encounter three days earlier. When [Sowell] referred to Billups in terms meant to insult her pedigree, Graham ordered [So-well] to leave the premises. [Sowell] left, stating that he was going to obtain his gun, return and shoot Billups. [Sowell] went directly to his apartment where he directed his common-law wife, Lenora Waugh (Waugh), to bring his gun to him. Waugh complied with that request, as well as with [Sowell’s] instructions to accompany him to Graham’s apartment. Upon returning to Graham’s door, Waugh, at [Sowell’s] instruction, knocked and indicated to those inside that she was a woman named Portia. Graham responded to the door and opened it. Edwards and Billups testified, and the trial court found, that [Sowell] forced his way into the apartment, firing a bullet from his handgun into the ceiling as he entered. [Sowell] demanded to know Billups’s whereabouts and threatened to shoot her. Graham was able to calm [Sowell] and began to escort him from the apartment and to close the door, whereupon [Sowell] suddenly turned and shot Graham in the abdomen. As Graham fell, [Sowell] fired a second shot into Graham’s skull. Graham fell to the floor, mortally wounded. [Sowell] next made his way to the closet in which Billups was cowering, and fired three bullets into her body. [Sowell] next placed the gun to Billups’s forehead and pulled the trigger. However, the gun did not expel a bullet because it no longer contained ammunition. [Sowell] left the apartment after warning Edwards not to leave the premises or he would shoot her also. [So-well] returned to his apartment, obtained money and made his way to a nearby tavern where he was apprehended by the police. [Sowell] testified regarding the shootings and told the court that he returned to Graham’s apartment to demand his money and that he was confronted by Graham, who was armed with a knife. [Sowell] stated that it was only after Graham made a furtive movement that [Sowell] began shooting at Graham, and that one of the bullets struck the ceiling. [Sowell] explained his conduct as follows: ‘It just, I just clocked out. When I seen that person going this way I just pivoted, I pivoted on my gun, I was shooting, I was angry, I started shooting, I just started shooting everybody I seen.’ Sowell v. Bradshaw, 372 F.3d 821, 823-27 (6th Cir.2004) (quoting Ohio v. Sowell, No. C-830-835, 1986 WL 9082, *1-2 (Ohio Ct. App. Aug.20, 1986) (footnotes omitted)). The following additional facts are relevant to the issues before the Court. On May 26, 1983, a Hamilton County grand jury indicted petitioner on one count of aggravated murder in violation of Ohio Revised Code (“O.R.C.”) § 2903.01(A), and one count of attempted murder in violation of O.R.C. § 2923.02(A) as it related to § 2903.01(A). The aggravated murder count contained a death penalty specification alleging that the aggravated murder was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons. On October 14, 1983, petitioner, on the advice of counsel, waived his right to a jury trial and elected to be tried by a three-judge panel. Martin Pinales, one of petitioner’s trial counsel, testified at the evidentiary hearing conducted by this Court that he received the impression, following a pretrial conference with the presiding judge, “that if a jury was waived, this would not be a capital case.” (Evid. Hrg. Tr., at 9). Attorney Pinales advised petitioner of his view that petitioner would be spared the death penalty if he waived a jury trial. (Id. at 45). Pinales testified that he believed that he “had one no death penalty vote in Judge Crush.” (Id. at 46). Pinales clarified that Judge Crush never explicitly said that Sowell would be spared the death penalty if he waived a jury trial, but that Judge Crush seemed to suggest as much. (Id. at 50). The guilt phase of the trial began on October 18, 1983, and concluded on October 20, 1983, with the three-judge panel unanimously finding petitioner guilty of both counts, as well as the death penalty specification to Count One. At the conclusion of the guilt phase, counsel for petitioner requested the preparation of a presen-tence investigation report (“PSI”) by the probation department, and requested that the Court order a mitigation evaluation by a mental health professional. During the course of the presentence investigation, a member of the probation department learned of a rumor that petitioner had confessed to committing two other uncharged murders. The probation officer informed Judge Crush of the rumor, and Judge Crush requested that Dr. Nancy Schmidtgoessling of the Court Psychiatric Clinic explore the allegations with petitioner. It does not appear from the record that defense counsel were aware of the investigation that Judge Crush had initiated. Dr. Schmidtgoessling detailed her discussions with petitioner concerning the alleged other murders in a letter to Judge Crush dated October 27, 1983. (Supp. App., at 200-01). That letter was included as part of the PSI and made a part of the record without objection by defense counsel. The sentencing phase of the trial commenced on November 2, 1983, and concluded on November 3, 1983. Counsel’s mitigation strategy was to emphasize the good in petitioner, and virtually all of the evidence presented concerned good deeds performed by petitioner during his adult life. Counsel presented evidence that petitioner helped children, provided money and food to people in need, and tried to prevent crimes in his neighborhood. Counsel attempted to show that the offense was “brought on by the consumption of alcohol, by a friendship in which Billy Joe Sowell felt betrayed and by a hot temper.” (Mit. Tr. at 2). Counsel emphasized that the murder of Graham occurred because petitioner was unable to control his temper, and not because petitioner had “cooly and carefully” calculated revenge. (Id.). Counsel presented evidence showing that despite his hot temper, petitioner “had shown much kindness and concern for other people in the community throughout his life.” (Id. at 3). Counsel called five witnesses, each of whom testified briefly concerning petitioner’s redeeming qualities. Additionally, counsel presented an unsworn statement by petitioner, and introduced all of the psychological evaluations of petitioner that had occurred both prior to the guilt phase and prior to the mitigation phase of the trial. Pursuant to § 2929.03(D)(1) of the Ohio Revised Code, the PSI that counsel requested was introduced, as required by law. The PSI included a summary of petitioner’s entire criminal history, including offenses for which petitioner had been arrested but never convicted. The PSI also included information regarding petitioner’s status as a parole violator, and information suggesting that petitioner had not adjusted well to prison life in the past. A recommendation of death by the Cincinnati Police Department was also contained in the PSI. Despite the fact that petitioner grew up in extreme poverty and suffered severe abuse and neglect as a child, counsel did not present any information concerning petitioner’s childhood, background, or social history. Counsel did not call one family member to testify. The panel did not hear that petitioner was one of seven children, and the Sowell family was so poor that the children were malnourished and routinely had nothing to eat. The panel did not hear that petitioner began stealing food at a young age, and his infant brother died of starvation. The panel did not hear that petitioner had no shoes until he was five years old, and that he and his siblings were often bitten by rats. Counsel did not present testimony that petitioner’s father was a severe alcoholic, and when drunk, abused petitioner’s entire family. The panel did not hear that petitioner’s father once tied petitioner to a chair and beat him. The panel did not hear that petitioner’s father was frequently absent from the home because of drinking and extramarital affairs, and he sexually abused one of petitioner’s sisters. The panel did not hear that petitioner’s parents married and began having children when his mother was only fifteen. His parents often left petitioner and his six brothers and sisters alone for periods of three to four days at a time. When his parents were absent from the home, petitioner, at a young age, was forced to assume a parental role to the other children. Petitioner’s family lived in the basement of a home that was never completed, and the basement had no running water or electricity. Petitioner began consuming alcohol and illicit drugs at a very young age. The panel did not hear that when petitioner was only fourteen, he left his home and moved to a junkyard where he lived in a tent. Petitioner began getting into trouble as a juvenile and in his mid-teens, he was sentenced in Kentucky and made to work in a coal mine. These facts concerning petitioner’s background were not made known to the experts whose reports were submitted. At the conclusion of the mitigation phase, and without any substantial knowledge of petitioner’s background, the three-judge panel unanimously sentenced petitioner to death on Count One, and to a consecutive prison term of seven (7) to twenty-five (25) years on Count Two. In its sentencing opinion, the panel noted that petitioner “was not devoid of decent characteristics,” but emphasized that petitioner’s “life for the past thirty years has been one of chronic criminal behavior, much of its involving acts of violence.” (Mitig. Tr., at 79). The panel noted that petitioner had been charged with assault, battery and menacing approximately twenty times, and that he had been jailed or imprisoned approximately twelve times. (Id.) Represented by one of the two attorneys who had represented him at trial, along with a new attorney, petitioner appealed to the Court of Appeals for the First Appellate District. On August 20,1986, the split panel of the court of appeals affirmed petitioner’s convictions and sentence. State v. Sowell, No. C-830835, 1986 WL 9082, *17 (1st Dist.1986). Judge Hildebrandt filed a dissenting opinion, finding that the aggravating circumstances did not outweigh the mitigating factors beyond a reasonable doubt, and finding that the imposition of the death penalty in petitioner’s case was excessive, disproportionate and inappropriate. Id. at *19. Represented by the same two attorneys who had represented him before the court of appeals, petitioner appealed as of right to the Ohio Supreme Court. In an opinion issued on November 16, 1988, the Ohio Supreme Court affirmed petitioner’s convictions and sentences, and independently found that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, and that the death sentence was appropriate and proportionate. State v. Sowell, 39 Ohio St.3d 322, 530 N.E.2d 1294 (1988). The United States Supreme Court denied petitioner’s petition for a writ of certiorari. Sowell v. Ohio, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989). Petitioner, represented by the Ohio Public Defender, filed a postconviction action to vacate or set aside his convictions in the trial court on December 20, 1989. On May 4, 1990, the trial court issued findings of fact and conclusions of law denying the petition. Petitioner filed a timely appeal to the Court of Appeals for the First Appellate District. On June 26, 1991, the court of appeals affirmed the judgment of the trial court. State v. Sowell, 73 Ohio App.3d 672, 598 N.E.2d 136 (1st Dist.1991). Petitioner sought leave to appeal to the Ohio Supreme Court, and that court declined to accept jurisdiction. State v. Sowell, 62 Ohio St.3d 1456, 579 N.E.2d 1394 (1991). In April 1992, petitioner filed a habeas corpus action in this Court. The Court dismissed his petition without prejudice for the failure to exhaust state court remedies. Sowell v. Tate, 1:92cv327, (S.D.Ohio July 14, 1992). Specifically, the Court directed petitioner to comply with the procedure for raising claims of ineffective assistance of appellate counsel that had recently been announced in State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). On May 3, 1992, petitioner filed an application for delayed reconsideration in the court of appeals based on allegations of ineffective assistance of appellate counsel. On October 1, 1992, the court of appeals denied petitioner’s application, finding that petitioner had failed to demonstrate good cause for the delay in filing the application. Petitioner sought review of the court of appeals’ decision in the Supreme Court of Ohio. In addition, petitioner filed a motion for delayed reinstatement of his direct appeal as of right in the Ohio Supreme Court. On November 17, 1993, the Ohio Supreme Court affirmed the decision of the court of appeals denying petitioner’s motion for delayed reconsideration, and denied petitioner’s motion for delayed reinstatement of his direct appeal as of right. The Ohio Supreme Court denied petitioner’s motion for a rehearing on December 22, 1993. Petitioner initiated the instant habeas corpus action on March 29, 1994, with the filing of a motion for the appointment of counsel. He subsequently filed his habeas corpus petition on May 24, 1994, wherein he raised fifty-two claims for relief. In the Opinion and Order of February 18, 1998, this Court dismissed claims 3, 33, 36, 47, 48 and 52 on the basis of procedural default. On October 5, 2001, the Court issued an Opinion and Order partially granting a conditional writ of habeas corpus as to petitioner’s thirty-fourth ground for relief, finding that petitioner did not knowingly, intelligently and voluntarily waive his right to a trial by jury as to the sentencing phase of his capital trial, (Doc. # 155). This Court did not address petitioner’s other grounds for relief. On June 23, 2004, the United States Court of Appeals for the Sixth Circuit reversed the Court’s decision, finding that petitioner was not entitled to relief on his thirty-fourth ground for relief because he failed to demonstrate that his jury waiver was not knowing and intelligent. See Sowell v. Bradshaw, 372 F.3d 821 (6th Cir.2004). Moreover, the Sixth Circuit rejected the portion of petitioner’s fifth ground for relief alleging that trial counsel were ineffective because they did not receive sufficient assurances that a jury waiver would avoid the death penalty. Id. This Court reopened petitioner’s case on November 16, 2004. (Doc.# 171). On November 13, 2006, the Court issued an Order permitting supplemental briefing on the merits of the remaining forty-five claims contained in the petition for a writ of habeas corpus. (Doc.# 176). On January 11, 2007, both petitioner and respondent filed supplemental merits briefs. (Doc.# 179; doc.# 180). In petitioner’s supplemental merits brief, petitioner notes that he consolidated his entire merits briefing into the supplemental merits brief so that the Court “will not have to page through several documents during its review.” (Doc.# 180 at 1). In addition, petitioner asserts that he has “narrowed the grounds on which he is seeking relief.” (Id.) Specifically, petitioner contends that his “1994 habeas petition contained claims that he originally raised in the state courts on direct appeal and post-conviction in the 1980’s,” and “[t]he jurisprudence of criminal law and capital litigation has changed significantly since that time.” (Id.) Petitioner states that he “has chosen those grounds for relief which are still viable, given the changes in constitutional litigation over the last twenty years.” (Id.) Petitioner sets forth eleven separate arguments upon which he alleges that he is entitled to habeas relief. In each of those eleven sections of his supplemental merits brief, petitioner references, by footnote, the corresponding grounds for relief contained in his original petition for a writ of habeas corpus wherein the arguments were initially made. Petitioner references seventeen of the remaining forty-five grounds for relief in his supplemental briefing, organizes those seventeen grounds for relief into eleven separate headings identified as arguments I through XI, and abandons the remaining twenty-eight grounds for relief contained in his original petition. Although petitioner does not affirmatively identify the grounds for relief that he is now abandoning, it is apparent to the Court that petitioner is no longer pursuing claims 2, 6, 7, 10, 12, 13, 14, 16, 17, 20, 21, 22, 23, 24, 32, 35, 37, 39-46, and 49-51. Petitioner seeks habeas relief on the following claims set forth in his habeas petition: claims 25 and 27 (set forth as Argument I in his supplemental merits brief); claim 5 (set forth as Argument II); claim 26 (set forth as Argument III); claims 18 and 19 (set forth as Argument IV); claim 15 (set forth as Argument V); claims 28, 29, 30, and 31 (set forth as Argument VI); claim 4 (set forth as Argument VII); claims 8 and 9 (set forth as Argument VIII); claim 11 (set forth as Argument IX); claim 38 (set forth as Argument X); and claim 1 (set forth as Argument XI). Respondent filed a supplemental merits brief on the same day as petitioner. Unaware that petitioner would be narrowing his grounds for relief, respondent’s supplemental brief addressed, in one form or another, most of the claims contained in petitioner’s habeas petition. Respondent renewed several procedural default arguments, noting that portions of this Court’s February 19, 1998, Opinion and Order addressing procedural default “ha[ve] been undercut by subsequent Sixth Circuit case-law.” (Doc. # 179, at 1). In respondent’s supplemental reply brief, filed on February 26, 2007, respondent “applauds and shares Sowell’s desire to streamline the claims and deal with them in one comprehensive pleading,” and notes that “[t]he litigation has come a long way since [petitioner’s] 52 claim, 660 paragraph, non-page-numbered petition to the Supplemental Briefing, which consolidated the original claims into 11 arguments and 110 pages.” (Doc.# 187, at 1). Respondent follows petitioner’s format in addressing petitioner’s newly ordered claims, and argues that all or part of arguments 3, 4, 6, 8, and 10 are procedurally defaulted. Respondent asserts that the remaining claims are without merit. The Court will now consider petitioner’s remaining claims. III. STANDARD OF REVIEW The habeas corpus statutes were amended, effective April 24, 1996, by the Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”). Because petitioner filed his habeas corpus action well before the effective date of the AEDPA, this Court’s review of petitioner’s constitutional claims is governed by habeas corpus law as it existed prior to the enactment of those amendments. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). That is, state court findings of fact are presumed correct, unless petitioner rebuts that presumption of correctness by clear and convincing evidence; questions of law, as well as mixed questions of law and fact, are reviewed de novo by this Court. Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). The pre-AEDPA standard “permits reviewing federal courts greater latitude in examining the proceedings than is permissible under AEDPA-governed cases,” Hamblin v. Mitchell, 354 F.3d 482, 487 n. 2 (6th Cir.2003) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), and entitles Sowell “to have the federal habeas court ‘make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings.’” Harries v. Bell, 417 F.3d 631, 634 (6th Cir.2005) (quoting Buell v. Mitchell, 274 F.3d 337, 344 (6th Cir.2001)). This Court “may grant the writ if the state-court conviction violated the Constitution, laws, or treaties of the United States.” Id. at 635. With these principles in mind, the Court will consider petitioner’s remaining constitutional claims. IV. DISCUSSION ARGUMENT NO. I: THE ACTS AND OMISSIONS OF DEFENSE COUNSEL IN THE TRIAL PHASE DEPRIVED MR. SOWELL OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN THE MITIGATION PHASE. In his first argument, petitioner claims that he was denied the effective assistance of counsel during the mitigation phase of his capital trial. The crux of petitioner’s argument is that trial counsel failed to conduct an adequate sentencing phase investigation into his background and social history that would have allowed counsel to present a meaningful mitigation case on petitioner’s behalf, and that trial counsel failed to retain necessary experts to testify regarding petitioner’s brain impairment and his alcoholism. As a result of counsel’s deficient performance, petitioner argues, the three-judge panel did not hear of the emotional and physical trauma that petitioner suffered as a child, how that trauma impacted petitioner’s development, that petitioner suffered from severe alcoholism and alcoholic blackouts, and that petitioner had a brain impairment that hampered his ability to respond to stressful events. (Supp. Merits Brief, doc. # 180, at 8-9). Ineffective assistance of counsel claims are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court established a two-part inquiry: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. 2052. In other words, a habeas petitioner must show that his counsel’s performance “fell below an objective standard of reasonableness,” Id. at 687-88, 104 S.Ct. 2052, and that counsel’s performance was “prejudicial to the defense.” Id. at 692, 104 S.Ct. 2052. Because a habeas petitioner must satisfy both the performance and the prejudice prongs of the Strickland test to demonstrate ineffective assistance of counsel, if a reviewing court determines that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697, 104 S.Ct. 2052. When evaluating counsel’s performance, Strickland requires the Court to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. The Court must make every effort to avoid “the distorting effects of hindsight,” and the Court must “ ‘judg[e] the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ” Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir.2007) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). The importance of competent representation during the penalty phase of a capital trial cannot be understated, and counsel’s “constitutional duty to investigate a defendant’s background in preparation for the sentencing phase of a capital trial is ‘well-established.’” Harries v. Bell, 417 F.3d 631, 637 (6th Cir.2005) (quoting Coleman v. Mitchell, 268 F.3d 417, 449 (6th Cir.2001)). In a capital trial, “[t]he sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility.” Carter v. Bell, 218 F.3d 581, 596 (6th Cir.2000). To establish the second prong of the Strickland test, i.e., prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. When a petitioner has been sentenced to death, “the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Fautenberry v. Mitchell, 515 F.3d 614, 626 (6th Cir.2008) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A habeas petitioner does not establish the prejudice element where he shows only that his counsel failed to present cumulative mitigation evidence. Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006). Rather, “‘to establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way—in strength and subject matter—from the evidence actually presented at sentencing.’ ” Fautenberry, 515 F.3d at 626 (quoting Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.2005)). A. The Evidence Presented The Court will begin its analysis of petitioner’s claims of ineffective assistance of counsel by considering what evidence trial counsel presented to the three-judge panel on petitioner’s behalf. The evidence presented at petitioner’s mitigation hearing consisted of an unsworn statement by petitioner, the testimony of five witnesses, and the submission of several psychological reports. Also before the panel was a Presentence Investigation Report (“PSI”) prepared by the probation department, at defense counsel’s request. In his unsworn statement, petitioner expressed regret and apologized for killing Calvert Graham. (Mit. Tr. at 7). Petitioner testified that he had always tried to help people. He told the panel that when he met Lenora Waugh, the mother of his two youngest children, she was sleeping in a bus station. Petitioner offered her a place to stay (Id. at 10). Petitioner told the panel of his efforts to help a seventeen month old boy in his neighborhood. (Id. at 12). Petitioner explained that the child’s parents permitted the toddler to wander the neighborhood unattended, and that he saved the boy from being struck by a car. The boy’s mother asked petitioner to adopt the boy, and petitioner took the child into his home, provided him with medical attention, clothed him and inquired about adopting the child. Ultimately, the Hamilton County Department of Human Services interceded and petitioner relinquished physical custody of the boy to his parents. (Id. at 12-15). Petitioner testified that he grew up in areas of Chicago, Milwaukee and Rockford, Illinois where violence was a way of life. (Id. at 11). Petitioner explained that he had to learn to protect himself at a young age. (Id.). Petitioner told the panel that he tried to work hard, and maintain employment, despite being disabled due to a back injury. (Id. at 12). Defense counsel called Rita Reick and Georgia Stahl to testify. Both women were employed by the Hamilton County Municipal Probation Department. Rita Reick testified that she knew petitioner because he had been on probation. (Id. at 18). Petitioner worked in an area through which Reick had to pass at the end of the work day to reach her ear. Reick testified that petitioner prevented her from being robbed on one occasion, and that she considered him a protector because he would look out for her several times a week. (Id. at 19-20). She told the court that petitioner was very proud of his young daughter. (Id. at 21). Gerorgia Stahl testified that she worked as a cashier for the probation department, and that she met petitioner when he came to pay his fines. Like Rita Reick, Shahl walked by petitioner’s place of employment every day on her way to and from work. Stahl testified that petitioner would look out for her, and that he prevented her from being mugged on two different occasions. (Id. at 32). She explained that she would look for petitioner during her walks, that she considered him a protector, and that she had “only seen good in Billy.” (Id. at 33-35). Stahl stated that she cried when she heard that petitioner had been arrested. (Id. at 35). Defense counsel also called Nancy Davis, who testified that she had known petitioner for approximately five or six years, and that he frequented the convenience store in which she had previously worked as a clerk. (Id. at 23). She stated that she could rely on petitioner to substitute for her without payment, during which time he waited on customers and had access to the cash register. (Id. at 24-25). She testified that petitioner prevented the store from being robbed on one occasion. (Id. at 24). Defense counsel also called Steve Apple-bury to testify. Applebury testified concerning petitioner’s employment. Apple-bury stated that petitioner possessed good work traits, that petitioner was honest, that he was trusted with money, and that he was a very generous person. Apple-bury testified that petitioner had a reputation as being kind-hearted and that petitioner would share his food and money with others if they were in need. (Id. at 29-30). Finally, Lenora Waugh testified on petitioner’s behalf. She stated that petitioner took her into his home when she was homeless, even though they did not develop a relationship until approximately six months later. (Id. at 37). She related that she considered their current relationship to be a common-law marriage during which they had two children. She concluded by telling the court that petitioner was very kind and a good father. (Id. at 38, 40). Counsel did not present during either phase of petitioner’s trial expert testimony concerning petitioner’s mental state. The record discloses that prior to trial, the court appointed two psychiatrists, Dr. Emmett Cooper and Dr. James Titchner, and one psychologist, Dr. William Walters, to evaluate petitioner in order to determine his competency to stand trial and his mental state at the time of the offense. (Cooper Insanity Report, Supp.App. at 155-156; Cooper Competency Report, Supp. App. at 154; Tichener Competency Report, SuppApp. at 16; Tichener Insanity Report, Supp.App. at 163-167; Walters Insanity Report, SuppApp. at 168-170). At the conclusion of the guilt phase of the trial, defense counsel requested that a psychological evaluation of petitioner be performed for purposes of the mitigation hearing. Pursuant to that request, the court appointed Dr. Nancy Schmidtgoess-ling of the Hamilton County Court Clinic and reappointed Dr. Cooper to prepare reports for the mitigation phase. (Cooper Report, Supp.App. at 157-158; Schmidt-goessling Report, Supp.App. at 159-161). Counsel for petitioner chose not to hire or request any of their own mental health experts, and relied instead on the reports generated by the court’s experts. At the beginning of the mitigation hearing, counsel submitted all of the written reports for the trial court’s consideration, and chose not to present live testimony from any of the experts. Dr. Cooper’s report regarding petitioner’s mental state detailed that petitioner had been disabled for some time with a back injury. (SuppApp., at 155). Dr. Cooper noted that petitioner had two previous psychiatric treatment episodes, one as a teenager for behavioral problems and another when he was in prison because of social withdrawal, but Dr. Cooper did not provide any detail regarding those episodes. (Id). Dr. Cooper reported that petitioner had no family history of psychiatric illness. Dr. Cooper concluded that petitioner did not meet the criteria for Not Guilty by Reason of Insanity, and that although petitioner was depressed enough to warrant psychiatric treatment, petitioner did not suffer from a mental disease or defect. (Id. at 156). Dr. Cooper determined that petitioner was competent to stand trial because petitioner understood the charges against him, and petitioner had sufficient cognitive and emotional capacities to assist counsel in his defense. (Id. at 154). Dr. James Titchener evaluated petitioner to determine his competency to stand trial. Dr. Titchener concluded that petitioner possessed above average intelligence. (Supp.App., at 163). Dr. Titchener stated that petitioner suffered from “severe psychological difficulty,” (Id.), and noted that petitioner exhibited a “real emotional disturbance” during the interview. (Id. at 165). Dr. Titchner opined that petitioner was “the type of person who lets others take advantage while he stringently over-controls his hostility and redirects it at himself. The defense of altruism is used to contain affect.” (Id. at 163). Dr. Titchener determined that petitioner “appears to tolerate and to submit to the abuses of others until finally he erupts with a feeling he himself cannot describe or understand because he hardly ever lets himself experience it.” (Id. at 163). With respect to petitioner’s family background, Dr. Titchener provided the following information to the panel: There was some review of family history and an intensely ambivalent relationship to the defendant’s mother who died in September of 1982. Mother had been good in some ways but a distant person and one who could not be satisfied with her marriage and family and frequently left it, finally divorcing husband when patient was sixteen. I think this historical background has explanatory power in that it shows us why this is a man who had to control his anger, stimulated often by his mother’s abandonment, in order to somehow retain and cling to the tenuous relationship with her. (Id. at 165). Dr. Titchener diagnosed petitioner with “[i]solated or intermittent explosive personality disorder, manifested by the sudden appearance of uncontrollable aggressive impulses resulting in assault on a man and a woman.” (Id. at 165-66). Dr. Titch-ener stated that “[t]his disorder appears in the absence of generalized impulsivity or aggressiveness between episodes,” and that in his experience, the disorder “occurs exclusively in individuals who do not experience hostility and who extremely over-control it.” (Id. at 166). Dr. Titchener believed that petitioner experienced a crisis, “specifically the intense control and fear in this man of his aggressive impulses which then erupted in the special situation of feeling the exploited fool.” (Id.) Dr. Titchener concluded: The alcohol and the marijuana were responsible for the loss of control which this man usually very carefully maintains. In my opinion, this man does not suffer from mental disease or defect which would interfere with his capacity to differentiate between right and wrong. However, it is also my opinion that he suffers from mental disease or defect which would interfere with his capacity at the time of the offense to act upon his awareness of the distinction between right and wrong. This is a most righteous man with a high moral sense and a great need to suppress and control hostility along with the parallel sense that his altruism and his goodliness wins him no love or favor from others, so the hostility mounts and exploded in the special situation of his feeling intensely exploited, helped by the tremendous lowering of controls brought about by the heavy consumption of alcohol and at least two marijuana cigarettes. (Id.). William Walters, Ph.D., a clinical psychologist, evaluated petitioner to determine his mental state at the time of the offenses. Dr. Walters met with petitioner at the Hamilton County jail on three occasions and administered the Minnesota Multiphasic Personality Inventory (“MMPI”) and the Quick Test. (Id. at 168). Additionally, Linda Merritt, a clinical social worker, interviewed petitioner, and she contacted Lenora Waugh, petitioner’s father, Attorney Piñales, two neighborhood acquaintances, the investigating officers and prosecutors. (Id.). Dr. Walters reported that petitioner’s intellectual level, as measured by the Quick test, was in the lower 21st percentile of the general population. (Id.). Dr. Walters found petitioner to be “a man of less than average intelligence with a rather fragile self-esteem that he frequently bolsters through his attempts to help others.” (Id. at 170). Dr. Walters described petitioner as depressed and sad, and noted that petitioner experienced periodic outbursts of sobbing during the evaluation. (Id.). Petitioner reported to Dr. Walters that his father was a “strict disciplinarian,” yet petitioner felt that his father’s punishments were just. (Id. at 169). Dr. Walters described the Sowell family as very poor but provided no further information. The report noted that petitioner’s mother and sister had died within the past year. (Id.). Dr. Walters opined that petitioner’s “charaeterological style of giving” to others was deeply engrained, and that petitioner frequently believed himself to have been victimized by others he had helped. (Id. at 170). Petitioner’s need to give to others, Dr. Walters explained, coincided with a “rather child like and naive belief that others will recognize him as ‘a good guy’ and appreciate him. Yet, Mr. Sowell frequently feels devastated and enraged when this behavior on his part is interpreted as weakness, precipitating attempts by others to take advantage of him.” (Id). According to Dr. Walters, “these blows to his self-esteem are difficult to tolerate, and Mr. Sowell has a potential to respond with rage.” (Id.). This potential is “significantly magnified when he has been drinking alcohol.” (Id). Dr. Walters concluded: It is the opinion of this examiner that Mr. Sowell was not suffering from a mental disease or defect of the mind at the time he committed the alleged offenses. Rather, Mr. Sowell’s characte-rological style is one of being frequently disappointed by others which results in an angry counterattack. Moreover, this behavior is severely exaggerated when he is under the effects of alcohol, which was the case on the day of the alleged offense. Any impairment in ability to refrain from the alleged behavior was due to a lethal combination of character style and alcohol. Thus, Mr. Sowell’s ability to detect right from wrong or ability to refrain from the impulse was not impaired due to mental illness. (Id.) After the guilt phase of petitioner’s trial, Dr. Cooper conducted a psychological evaluation of petitioner for purposes of the mitigation hearing. Dr. Cooper’s report, which was only a few paragraphs long, was devoid of any information concerning petitioner’s background and social history. Dr. Cooper determined that petitioner “manifested no signs or symptoms of mental disease or defect.” (Id at 157). Dr. Cooper believed that the following issues contributed to petitioner’s conduct: 1) He was under the influence of alcohol and marijuana at levels which seriously impair rational thinking, judgment, and impulse control, 2) He felt betrayed by individuals he had considered his friends, believing that they had stolen money from him as he slept, and 3) He felt that his physical well-being had been threatened by Mr, Graham, and believed he was provoked to protect his property and safety in the manner in which he responded. (Id. at 157-58). Dr. Cooper concluded it was likely that “the combined [e]ffect of these factors in an individual who has been disabled since 1971, and undergoing a number of personal stresses resulted in the behavior which culminated in the offenses.” (Id. at 158). As part of her psychological evaluation of petitioner for use in the mitigation hearing, Dr. Schmidtgoessling interviewed petitioner for approximately two hours, conducted approximately four hours of psychological testing over a two day period, and reviewed records of the Court Clinic’s past contact with petitioner, specifically the NGRI evaluation. (Id. at 159). With respect to petitioner’s background, Dr. Schmidtgoessling indicated that petitioner felt he had a “rough childhood” and “an unhappy home life.” (Id.) Petitioner reported that as a child, “there was a lack of adequate food, clothing and material goods as well as lack of close parental nur-turance.” (Id.) Petitioner described his early social relations as being marked by intimidation and a need to learn to defend himself (Id.) Petitioner relayed that gangs were prevalent and he “had to know how to use a knife, it was expected.” (Id.) At an early age, petitioner felt that he was “on his own,” and he worked odd jobs, skipped school, and would run away for a couple of weeks at a time. (Id.). Dr. Schmidtgoessling deduced that petitioner’s early life experiences “left him feeling abandoned, angry, without significant stable relationships, and conscious of the need to defend himself in a dangerous, hostile environment.” (Id. at 159-60) Petitioner confided in Dr. Schmidtgoess-ling that he began “wandering around from the age of 14 or 15.” (Id. at 160). He admitted to many fights and being “in and out of jails for such charges as assaults and carrying weapons,” (Id.) Petitioner reported being in prison twice, and denied killing anyone prior to the offense at hand. Petitioner stated that he had been married once. The marriage lasted only two years and petitioner “mourned his loss by drinking alcohol to excess for a year or so. During this time he suffered blackouts, neglected his appearance and health and remained depressed all the time.” (Id.) After another failed relationship, petitioner reported going on a “drinking binge” for a year or two. Petitioner stated that he had never received psychiatric treatment or treatment for alcohol abuse. (Id.) Dr. Schmidtgoessling noted that “on the MMPI, Mr. Sowell’s score on a scale which is highly accurate in separating alcoholics from nonalcoholics placed him in the alcoholic range.” (Id.) Dr. Schmidtgoessling opined that petitioner “minimizes his alcohol use” but “admits to using marijuana daily.” (Id.) Dr. Schmidtgoessling determined that petitioner possessed less than average intelligence, that his insight and thought processes were mildly impaired, and that he suffered from chronic social maladjustment. (Id. at 160). She concluded that: Personality testing and history show that Mr. Sowell is an angry, resentful, argumentative individual who finds it very difficult to feel that his needs are adequately met in interpersonal relations. He is extremely sensitive to slight or criticism, which he may perceive where others don’t. Because of this, particularly if he feels he has been slighted or has lost face in front of others, unpredictable and irrational anger outbursts occur periodically. Externalization of blame is seen in Mr. Sowell, as well as a lack of insight and psychological mindedness. In summary, Mr. Sowell is a very vulnerable, empty man who craves acceptance and accolades from others so that he can see himself as worthwhile. At the time of the offense he had apparently been drinking alcohol and using marijuana, and felt that he had been ripped off by people he had previously shown friendship and generosity to. There is no evidence that at the time of the offense—or ever in his life—that Mr. Sowell suffered from a mental disease or defect. He certainly did and does now suffer from a chronic personality disorder marked by serious problems in interpersonal relations and impulse control. (Id. at 160-61). The PSI was also admitted into evidence. The PSI provided a factual summary of the offense and contained a section addressing victim impact. That section included statements from Pam Billups, Calvert Graham’s brother, and Specialist Ronald Camdon of the Cincinnati Police Department. With respect to petitioner’s background, the PSI stated that petitioner had eight years of education, that he had a history of previous psychiatric care in Rockford Illinois, that he was previously married, that he provided financial support for his children, and that he was disabled. The portion addressing petitioner’s criminal history outlined petitioner’s entire criminal record, including offenses for which petitioner had been arrested but never convicted, and noted that petitioner had previously been a parole violator, that he had multiple arrests in Illinois, and that he had not adjusted well to prison life in the past. (Id. at 187-192). B. Petitioner’s Claims 1. Sentencing Phase Investigation Petitioner argues that his trial attorneys conducted little to no investigation into his background and his personal and family history in preparation for the mitigation phase of his trial. Petitioner claims that counsel failed to interview members of his family, failed to obtain a mitigation specialist/investigator, and relied on the PSI prepared by members of the probation department who were not trained to conduct a mitigation investigation. The Court will address petitioner’s arguments in turn. First, petitioner argues that his counsel failed to interview members of his family and others who knew him throughout his life. Specifically, petitioner claims that counsel failed to interview his employer, his paternal aunt Ann Simpson, local businessman Walter Gabennesh, his friend and bail bondsman Leroy Jones, his great uncle Bobby Lee Horton, his youngest brother Larry Sowell, his co-worker Jimmy Wilcox, and his father, Henderson Sowell Sr. Counsel failed to call a single member of petitioner’s family to testify in mitigation, other than his common law wife, Lenora Waugh, who met with counsel only once before her testimony. With respect to the witnesses who did testify for the defense, petitioner argues that his counsel did not adequately interview them prior to their testimony, and that several of those witnesses testified not as a product of defense counsel’s investigation, but because those witnesses contacted defense counsel and volunteered to testify on petitioner’s behalf. (Doc. # 180, at 13). Next, petitioner argues that his counsel violated their duty to investigate because they did not request the appointment of a mitigation specialist to assist in identifying, interviewing and preparing witnesses for the mitigation hearing. Petitioner maintains that counsel in a capital case cannot satisfy their obligation to conduct a thorough investigation into a defendant’s life history, family background, and formative environment without the assistance of investigators and mitigation specialists trained to identify environmental and biological factors that affect a person’s development. {Id. at 12). Petitioner argues that a mitigation investigator was necessary in his case because most of his family members and many of the records concerning his past were located in either Illinois or Alabama. As a result of those distances, trial counsel were unable to interview several individuals who had valuable information concerning petitioner’s development and childhood. Petitioner maintains that a mitigation investigator would have assisted counsel by traveling to interview petitioner’s family, and by reviewing the school and hospital records that were located out of state. Finally, petitioner claims that counsel’s performance was deficient because in lieu of conducting their own mitigation investigation, counsel relied on the Hamilton County Adult Probation Department to prepare a presentence investigation report (“PSI”). Counsel’s request to have the probation department prepare a PSI did not fulfill counsel’s obligation to conduct an independent investigation, petitioner argues, because the probation authorities were not trained to conduct as comprehensive an evaluation as required for the preparation of a mitigation case on behalf of the defense. Additionally, the PSI contained damaging information that would otherwise have been inadmissible, such as petitioner’s criminal record, the fact that petitioner had previously been a parole violator, that petitioner had twenty arrests in Illinois, and that petitioner had adjusted poorly to prison in the past. {Id. at 31). Petitioner argues that his counsel were ill-equipped to present a meaningful case in mitigation due to their failure to conduct an adequate sentencing phase investigation. Petitioner notes that “[o]n the morning of November 2, 1983, defense counsel gave their opening statement in mitigation. By lunch time, defense counsel had completed their mitigation phase presentation including closing argument. Defense counsel called six witnesses whose direct examination totals only thirty-four pages in the transcript.” (Doc. # 180, at 8). According to petitioner, the testimony presented by defense counsel was limited to the good character traits of petitioner, and the witnesses offered no insight into the emotional trauma that petitioner experienced during his formative years. {Id.) Due to counsel’s failure to conduct an adequate investigation, petitioner argues, a wealth of mitigating evidence was not presented to the three-judge panel. Petitioner has submitted affidavits from several individuals, including family members, who have stated that they were ready and willing to testify at the mitigation hearing but were not interviewed by counsel. Petitioner argues that the following mitigating evidence was not presented to the panel. Petitioner grew up in extreme poverty. He was born in 1937, and spent the first nine years of his life living in Alabama. The family experienced “blatant discrimination that was an inherent part of being black in the rural South during the 1940’s.” (Hawgood Affidavit, Supp.App., at 230). Both of petitioner’s parents were from broken families and neither had adequate parenting skills. The Sowell family included six children, and they were often without adequate food, clothing, shelter and other basic necessities. Petitioner was forced to steal food in order for his siblings and him to survive. (Doc. # 180, at 19). When petitioner was eight years old, his infant brother died of starvation. (Haw-good Affidavit, Supp.App., at 226). Petitioner recalls that as small children, he and his siblings were bitten by rats, were infected with ringworms, and lacked sufficient clothing. (Id.) Petitioner did not get his first pair of shoes until he was five years old. (Id.) The family lived in a three bedroom trailer that had no indoor plumbing. When he was nine, the Sowell family moved to Illinois and lived in the basement of an unfinished house. The basement home had no electricity or running water. Petitioner’s father, Henderson Sowell, Sr., was, by several accounts, a serious alcoholic and a violent man. He became involved in extramarital affairs and would leave the basement home for long periods of time. Petitioner states that when his father was home, “the family was in a state of constant chaos and fear.” (Doc. # 180, at 20). Petitioner’s father, when intoxicated, would beat petitioner’s mother and the children, including petitioner. Petitioner’s father demanded control and organization, and reacted violently when those conditions were not met. In order to avoid such reactions, the Sowell children would not speak while he was in the basement. (Affidavit of Henderson Sowell, Jr., Supp. App., at 248). Petitioner’s father tied petitioner and his sister Joann to a chair and beat them. (Affidavit of Catherine Jones, Supp.App., at 260). Petitioner’s father sexually abused petitioner’s sister Catherine. (Id.). Petitioner’s mother was so terrified of his father that she would not try to protect her children from his drunken outbursts. She often fled the home, leaving the children to defend themselves. (Supp.App., at 248). Petitioner’s parents eventually divorced, and petitioner and three of his siblings remained with their father in the basement home. Petitioner’s father would leave the children for long periods of time while cavorting with other woman. Petitioner was forced to act as a surrogate parent for his siblings. Because his father was frequently gone, the children had no food. Petitioner would go to his mother’s home and beg for food. Petitioner began to use drugs and consume alcohol when he was thirteen. When he was only fourteen, petitioner left the basement home and began living in a tent at a local junk yard. During the next two years, petitioner was arrested more than twenty times, mostly for drunken and as-saultive behavior. According to petitioner, he “had developed a Jekyll and Hyde personality. On one hand, when he was sober, he was a very generous person. However, when he had been drinking he became very combative.” (Doc. # 180, at 22). Petitioner was sent to a juvenile facility in Kentucky where he was forced to work in a coal mine. After working in the coal mine, petitioner returned to Illinois. He was convicted of forging a seventy-two dollar check and served nine years in an Illinois State prison. When he was released, he moved to Cincinnati to start a new life. He maintained employment, and tried to help others who needed money and food. Finally, petitioner argues that the panel did not learn that his siblings “have not fared any better in life.” (Id., at 23). His sister Joanne became a prostitute and killed her pimp. His brothers Henderson Jr. and Benny served time in prison. His brother Larry served time for manslaughter. Four of the six Sowell children were, at one time or another, alcohol or hard drug addicts. (Hawgood Affidavit, Supp. App., at 233). According to petitioner, he was prejudiced by counsel’s deficient performance during the mitigation phase of his trial because counsel were unable to present to the panel information concerning the connection between his abusive background and the commission of the offense. Petitioner maintains that during his formative years, he developed “an extreme sense of anger, inadequacy, and longing for acceptance.” (Doc. # 180, at 25). Due to the lack of familial resources and nurturing from his parents, petitioner “felt misused, abandoned, unappreciated, and victimized,” and “learned that an appropriate response to frustration was physical violence.” (Id.). Petitioner argues that there is a reasonable likelihood that at least one member of the three-judge panel would have voted in favor of a sentence less than death if the pan