Full opinion text
MEMORANDUM AND ORDER CHARLES A. SHAW, District Judge. This matter is before the Court on petitioner Michael Shane Worthington’s petition for writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner currently incarcerated in the Potosí Correctional Center under a sentence of death. Petitioner, who is represented by appointed counsel in these proceedings, challenges the constitutionality of his sentence. The matter is fully briefed and now ripe for review. I. Procedural History Factual Background On October 1, 1995, Worthington was arrested in connection with the death of Melinda Griffin. Ms. Griffin, whose body was discovered by a neighbor, had been raped and strangled, and her condominium had been burglarized. Worthington was found in possession of her car and several of her personal items. When questioned by the police, Worthington could not remember the details of the killing because he had been drinking alcohol and taking drugs for several days. Worthington’s DNA was found on the victim’s body. Trial Court Proceedings Worthington was initially represented by retained counsel, Joel Eisenstein. Mr. Eisenstein later withdrew, and petitioner was represented by Joseph Green, N. Scott Rosenblum and Bradford Kessler, who were also retained. On August 28, 1998, without a written plea agreement, Worthington pleaded guilty to murder in the first degree, burglary in the first degree and forcible rape. The trial judge, the Honorable Grace M. Nichols of the Eleventh Judicial Circuit, St. Charles County, accepted the guilty plea. Worthington waived a jury for sentencing, and Judge Nichols preceded over a penalty hearing that began on September 14, 1998 and concluded three days later. At the penalty hearing, the prosecution called twenty-four witnesses on its behalf, including five Missouri law enforcement officers, petitioner’s co-worker, a neighbor, two correctional officers from the St. Charles County Department of Corrections, a law enforcement officer from Peoria, Illinois, an Illinois probation officer, a state forensic psychologist, the medical examiner, a genetic analyst, and eleven friends and family members, who read prepared victim impact statements. The Missouri law enforcement officers testified as to the crime scene, petitioner’s arrest, his interrogation, and the victim’s effects that were found in petitioner’s possession, including her jewelry and credit cards. The medical examiner provided compelling testimony regarding the extreme brutality of the rape, as well as the force and the time it would have taken petitioner to strangle the victim. The detective from Peoria, petitioner’s home town, testified about Worthington’s juvenile record and extensive criminal history. The probation officer testified regarding petitioner’s juvenile record, his extensive criminal history, and some of his family background and educational history. Charlotte Peroti, the neighbor, testified that ten days before the murder, she confronted Worthington inside her condominium late at night and he attempted to sexually assault her and stole her car. Petitioner’s co-worker testified that she had spent time with petitioner earlier in the evening on the night of the murder and she described those events. The prosecution also called officers from St. Charles County Department of Corrections, the jail where petitioner had been detained prior to trial. The officers testified that while in jail Worthington had been involved in many incidents involving contraband, fighting and other misconduct. The prosecution also offered the testimony of Dr. Max Givon, a state forensic psychologist, who had interviewed Worthington in 1996 for a competency examination. Dr. Givon testified that Worthington did not have a mental disease or defect, but that he had antisocial personality disorder, was malingering, cocaine-dependent, and abused alcohol. He also opined that petitioner appreciated the criminality of his offense conduct at the time of the crime. The prosecution also presented victim impact statements from a number of friends and family members, and introduced numerous photographs, awards and mementoes of and from the victim. Defense counsel did not object to the introduction of the victim impact evidence, aside from asking that the witnesses not offer their recommendations for a sentence. The court sustained this objection. Defense counsel called only two mitigation witnesses to the stand: Carol Tegard, petitioner’s maternal aunt, and Roswald “Lee” Evans, a psychiatric pharmacist. Ms. Tegard, the petitioner’s maternal aunt, testified about Worthington’s abuse and neglect as a child. Ms. Tegard testified that petitioner’s mother, who was sixteen when she was pregnant with petitioner, was a prostitute, and that she had sex and abused drugs and alcohol in front of petitioner when he was a child. She also stated that petitioner’s mother attempted suicide numerous times in petitioner’s presence. Ms. Tegard testified that petitioner’s father was also a drug abuser, in addition to a dealer and an absentee father, who was often in jail and had virtually no contact with petitioner until he was an adolescent when he introduced petitioner to drugs and crime. According to Ms. Tegard, petitioner was heavily involved in drugs starting as a teenager and his immediate family was not supportive and, in fact, they enabled and supported, if not initiated, his drug addiction and discouraged his treatment. Dr. Lee Evans, a psychiatric pharmacist, was the defense’s only expert witness. He testified that Worthington was extremely intoxicated and high on crack cocaine and alcohol at the time of the offense. He opined Worthington used prescription drugs and alcohol to control the after-effects of crack cocaine abuse. He also stated that crack cocaine users often experience black-outs, and that Worthington’s drug abuse made him unable to control his impulses and impaired his judgment. Dr. Evans testified that he could not offer an opinion as to whether petitioner suffered from mental disease or defect because it would be outside his area of expertise. Furthermore, defense counsel did not ask Dr. Evans to prepare a report and, therefore, none was entered into the record. Closing arguments for the penalty phase were heard on October 15, 1998. On November 4, 1998, the day after she lost her re-election bid, Judge Nichols held the sentencing hearing. At the sentencing hearing, petitioner made a statement, as did the victim’s mother. At the conclusion of the hearing, Judge Nichols stated that she found the state had established beyond a reasonable doubt two statutory aggravating circumstances: (1) that petitioner committed the murder for the purpose of receiving money or any other thing of monetary value from the victim, and (2) that the murder was committed while petitioner was engaged in the perpetration of forcible rape and burglary. The trial judge considered the non-statutory mitigating circumstances, and found that petitioner was raised in a dysfunctional family, was abused and neglected as a child, and was a long-term drug abuser. The trial judge concluded, however, that beyond a reasonable doubt, the aggravating circumstances outweighed the non-statutory mitigating circumstances. She sentenced Worthington, as a prior and persistent offender, to death for the murder, and to terms of thirty years and life imprisonment for the burglary and rape respectively- Petitioner’s Direct Appeal Petitioner appealed the sentence and different counsel represented petitioner on direct appeal. Under Missouri law, the Missouri Supreme Court has exclusive appellate jurisdiction to review a death sentence and “any errors enumerated by way of appeal.” State v. Worthington, 8 S.W.3d 83, 86 (Mo.1999) (en banc) (citing Mo. Const. art. V, sec. 3; Mo.Rev.Stat. § 565.035.2 (1994)). In his direct appeal, petitioner argued, among other things, that he was unfairly prejudiced by the admission of the victim impact evidence. He also argued the trial court erred in admitting evidence of other bad acts without prior notice to the defense, and statements he made during the competency examination to prove statutory aggravating circumstances should have been excluded. The Missouri Supreme Court rejected petitioner’s arguments, many on plain error review, and affirmed his sentence. The Missouri Supreme Court also conducted a proportionality review of the death sentence as required by state law. Mo Rev. Stat. § 565.035.3. The court found that the death sentence was not imposed under the influence of “passion, prejudice or any other arbitrary factor” and was not “excessive and disproportionate to other similar cases.” Worthington, 8 S.W.3d at 94 (citing state cases in which death sentences were affirmed where victims were murdered in course of robbery and rape). Petitioner’s Motion for State Post-conviction Relief Following the denial of his direct appeal, Worthington filed a pro se motion for state post-conviction relief. The trial court appointed the office of the public defender to represent petitioner, and motion counsel filed an amended motion. An evidentiary hearing was held in late January through early February 2003. In May 2003, the motion judge, the Honorable Nancy L. Schneider, denied the motion for post-conviction relief. Worthington appealed the denial to the Missouri Supreme Court. In his post-conviction appeal, petitioner argued that trial counsel was ineffective and did not adequately investigate his social and medical history. Worthington argued he would not have pleaded guilty but instead would have proceeded to trial using a diminished capacity defense had his counsel conducted an adequate investigation. He also argued that defense counsel’s failure to adequately investigate his background impacted the penalty phase, and had his counsel done a more thorough investigation and presented the evidence at the penalty hearing — through fact witnesses and experts — he would not have been sentenced to death. Worthington further argued that trial counsel was ineffective because he did not consult him before waiving a potential conflict of interest of the trial judge. Worthington also argued that the trial judge should have recused herself sua sponte after she realized there was a potential conflict, and that she was biased in favor of the death penalty because she received calls from members of the public, through the press and in letters, to impose the death penalty, and because her opponent in a judicial election stated that a judge’s view on the death penalty was a relevant election issue. Worthington also argued that trial counsel should have objected to the state’s failure to provide adequate notice of Ms. Peroti’s testimony about other bad acts, and should have sought a continuance to investigate the basis of her allegations that Worthington had broken into her apartment, had attempted to assault her and stolen her property. Worthington also argued that trial counsel should have objected to other evidence of non-statutory aggravating factors, such as his misconduct in school and in jail, uncharged crimes, and burglaries committed with his father. Petitioner further argued that trial counsel should have objected to the victim impact evidence because it was so excessive as to be unduly inflammatory. The Missouri Supreme Court affirmed the denial of post-conviction relief. Worthington v. State, 166 S.W.3d 566 (Mo. 2005) (en banc). The court reviewed most, but not all, of the claims petitioner raised in his post-conviction appeal. Furthermore, it decided many of the claims on plain error review because they were not properly raised in the trial court proceedings. In its opinion, the Missouri Supreme Court noted that the standard for post-conviction relief was “particularly difficult” to meet where, as here, the case was tried to a judge. Id. at 573. “[Bjecause ‘judges are presumed to not consider improper evidence at sentencing, [the state supreme court] presumes that inadmissible evidence’ relevant to sentencing ‘is neither prejudicial nor fundamentally unfair in court-tried matters.’ ” Id. (citing State v. Carter 955 S.W.2d 548, 560 (Mo.1997)). Petitioner's Federal Habeas Petition On July 15, 2005, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas petition, petitioner raises seven (7) claims for relief: Claim One: Petitioner claims that he was denied effective assistance of counsel, in violation of the Sixth, Eighth and Fourteenth Amendments, because his trial attorneys failed to adequately investigate his social and medical history. Claim Two: Petitioner claims that he was denied effective assistance of counsel, in violation of the Sixth, Eighth and Fourteenth Amendments, because his trial attorneys failed to adequately investigate and object to and rebut “bad acts” evidence the prosecution offered during the penalty hearing. Claim Three: Petitioner claims that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments because it was based upon perjured testimony and because the state failed to disclose material evidence in its possession that would have impeached that witness’s credibility. Claim Four: Petitioner claims that he was denied a fair and impartial penalty phase trial in violation of the Sixth, Eighth and Fourteenth Amendments because trial judge had a conflict of interest or at least the appearance thereof. Claim Five: Petitioner claims that he was denied effective assistance of counsel in violation of the Fifth, Sixth and Fourteenth Amendments because the prosecution’s use of Dr. Max Givon’s testimony at the penalty phase violated his right to an attorney and to be protected from self-incrimination. Claim Six: Petitioner claims that he was denied a fair trial at the penalty phase in violation of the Sixth, Eighth and Fourteenth Amendments because the state failed to give adequate notice to the defense of the identities of its witnesses. Claim Seven: Petitioner claims that he was denied a fair trial at the penalty phase in violation of the Sixth, Eighth and Fourteenth Amendments because the victim impact evidence was excessive and inflammatory. II. Legal Standard The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides federal courts with specific standards for review of state court adjudications on habeas corpus review. 28 U.S.C. § 2254(d)(1), (2). The Supreme Court determined the proper interpretation of 28 U.S.C. § 2254(d)(1), and established a framework for review of state court legal conclusions. See Williams v. Taylor, 529 U.S. 362, 405, 411, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Court held that § 2254(d)(1) delineates two independent categories of cases in which a state prisoner may obtain federal relief with respect to a claim adjudicated on the merits in state court. See id. at 404, 120 S.Ct. 1495. The statute provides that a federal habeas court may grant a writ of habeas corpus if the state court decision is either “(1) contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1) (emphasis added). The Supreme Court stated that a state court’s decision may be “contrary to” clearly established Supreme Court precedent in either of two respects: (1) “if the state court applies a rule that contradicts the governing law set forth in [the Court’s] cases,” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court’s] precedent.” Williams, 529 U.S. at 406, 412, 120 S.Ct. 1495. According to the Eighth Circuit, “the state court need not cite or even be aware of the governing Supreme Court cases, ‘so long as neither the reasoning nor the result of the state-court decision contradicts them.’ ” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.2004) (citing Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002)). “In the ‘contrary to’ analysis of the state court’s decision, [the federal court’s] focus is on the result and any reasoning that the court may have given; the absence of reasoning is not a barrier to a denial of relief.” Id. A state court’s decision may be “an unreasonable application” of clearly established Supreme Court precedent in either of two respects: (1) if the state court identifies the correct governing legal rule from the Court’s cases “but unreasonably applies it to the facts of the particular state prisoner’s case,” or (2) “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 406, 120 S.Ct. 1495. The Supreme Court stated that the “unreasonable application” inquiry is an objective one, id. at 409-10, 120 S.Ct. 1495, and instructed that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410, 120 S.Ct. 1495 (emphasis in original). Thus, “a federal habeas court may not grant relief simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id.; see also Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). If the state court correctly identifies the governing legal rules, only the unreasonable application clause is relevant. Marcrum v. Luebbers, 509 F.3d 489, 504 (8th Cir.2007). “A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.” Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000). “The factual findings of the state court also may be challenged in a § 2254 petition, but they are subject to an even more deferential review.” Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001). Factual findings by the state court “shall be presumed to be correct”, a presumption that will be rebutted only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). III. Discussion A. Claim One — Ineffective Assistance of Counsel for Failure to Adequately Investigate Petitioner’s Social and Medical History Petitioner has bundled a number of claims in his first claim for relief. He argues that his trial counsel was constitutionally ineffective for failing to adequately investigate and present his social and medical history to experts and the court. According to petitioner, had his counsel done an adequate investigation, he would have unearthed compelling mitigation evidence regarding his social background, including evidence of physical, emotional, and sexual abuse, as well as evidence of mental illness. This evidence, he argues, should have been presented as mitigation evidence during the penalty hearing through live witnesses such as his parents, other family members and his former babysitter. According to petitioner, had this evidence been presented, he would not have been sentenced to death. Petitioner also argues the inadequate investigation greatly impacted the effectiveness of the defense experts. He argues had his attorney done an adequate investigation and provided his social history and prior medical records to expert witnesses, they would have been able to accurately diagnose his mental illnesses and he would have had a viable diminished capacity guilt-phase defense, and he would not have pleaded guilty. Furthermore, he argues, the outcome of the penalty phase would have been different had defense experts been able to testify regarding his mental illnesses. 1. The investigation In this case, petitioner’s trial counsel conducted a very limited investigation of petitioner’s childhood and social background. Mr. Joseph Green, the attorney who assumed the responsibility of obtaining mitigation evidence, only had two ten-to-fifteen minute conversations with petitioner’s mother, as well as some telephone contact with Carol Tegard, petitioner’s aunt — the only nonmedical witness who testified on petitioner’s behalf and presented mitigating evidence during the penalty phase. Mr. Green did not travel to petitioner’s hometown, Peoria, Illinois, and he did not seek out or contact other character witnesses. As for records, it appears Mr. Green did not look for records beyond those that Mr. Eisenstein, petitioner’s previous counsel, provided the state mental health expert at the beginning of petitioner’s representation. While these records did include some medical records and social history, they did not contain petitioner’s school records or records from the Illinois Department of Corrections, despite the fact defense counsel knew petitioner had been incarcerated in Illinois prisons prior to his arrest in Missouri. Furthermore, of the records defense counsel did have, not all were provided to the mental health experts defense counsel hired. See discussion infra. Petitioner’s trial counsel admitted in his deposition testimony that his failure to contact additional witnesses or search for documents was not a matter of trial strategy or because he felt it would have been pointless, but rather the decision was made based on a lack of time and funds. Petitioner’s post-conviction counsel, on the other hand, did conduct an extensive investigation. They uncovered a number of witnesses who were available and could have provided valuable information and/or testified on petitioner’s behalf, including: Richard Worthington, petitioner’s father; Janet Carol Worthington Blumenshine, petitioner’s paternal aunt; Vincent David Worthington, petitioner’s paternal uncle; Jimmy Worthington, petitioner’s paternal uncle; Tracy Lynn Seling, petitioner’s first cousin; Ryan Harms, petitioner’s half brother; Eric Harms, petitioner’s half brother; Patty Ann Harms, petitioner’s stepmother; Bessie Smith, petitioner’s childhood babysitter; Michael D. Williams, petitioner’s childhood babysitter; and Paula Marie Mitchell, petitioner’s father’s girlfriend. According to affidavits and deposition testimony provided during the post-conviction proceedings, petitioner’s family members and the two babysitters could have provided the trial court and/or experts information regarding petitioner’s turbulent family history, which included mental illness and prevalent substance abuse, as well as the extreme abuse and neglect he suffered as a child. A number of the witnesses also stated in their deposition testimony and affidavits that some of the crimes for which petitioner was arrested and adjudicated as a juvenile were actually committed by his mother or father. Petitioner’s post-conviction counsel also searched for additional records and readily obtained over 464 pages from the Illinois Department of Corrections, most of which are psychiatric and medical records. In addition, post-conviction counsel obtained psychiatric and medical records of petitioner’s mother, father, uncle, grandmother, and grandfather, as well as petitioner’s mother’s police records. These records show that members of petitioner’s immediate and extended family suffer from severe mental illness, as well as chronic drug and alcohol abuse and addiction. Because they were not obtained by trial counsel, none of these records were provided to the two defense experts. 2. Ineffective assistance of counsel legal standard The Sixth Amendment guarantees a criminal defendant the right to effective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on a claim of ineffective assistance of trial counsel, a habeas petitioner must establish both “that counsel’s representation fell below an objective standard of reasonableness,” and that but for counsel’s deficiency there is “a reasonable probability that ... the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. When addressing the adequacy of counsel’s performance, a federal district court must be “highly deferential,” and make every effort to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Odem v. Hopkins, 382 F.3d 846, 850 (8th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). There is a strong presumption that counsel’s performance fell “within the wide range of reasonable professional assistance.” Id. “Lawyers are not perfect, and the Constitution does not guarantee a perfect trial.” Jones v. Delo, 258 F.3d 893, 902 (8th Cir.2001). “Reasonable trial strategy does not constitute ineffective assistance of counsel simply because it is not successful.” James v. Iowa, 100 F.3d 586, 590 (8th Cir.1996). However, “counsel must exercise reasonable diligence to produce exculpatory evidence, and strategy resulting from lack of diligence in preparation and investigation is not protected by the presumption in favor of counsel.” Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir.1991) (vacating death sentence where defense counsel conducted an incomplete investigation for purposes of the penalty phase). Deficient performance by counsel, even if professionally unreasonable, does not necessarily require that a judgment be set aside. “[A] defendant must affirmatively show prejudice. It is not sufficient for a defendant to show that the error had some ‘conceivable effect’ on the result of the proceeding.... The defendant must show that because of counsel’s error, there is a reasonable probability that the result of the proceeding would have been different. ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Odem, 382 F.3d at 850 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). See also King v. Kemna, 266 F.3d 816, 823 (8th Cir.2001); Jones, 258 F.3d at 901. 3. Counsel’s failure to adequately investigate petitioner’s social background as deficient performance Although the issue was before it, the Missouri Supreme Court did not squarely address whether Worthington’s trial counsel’s superficial investigation into petitioner’s background was constitutionally deficient. Because the Missouri Supreme Court did not address the performance prong on the merits, the deferential standard review of the AEDPA does not apply, and the Court will review this aspect of petitioner’s claim de novo. 28 U.S.C. § 2254(d); Kenley v. Bowersox, 275 F.3d 709, 711 (8th Cir.2002). The Supreme Court has addressed defense counsel’s duty to investigate a capital defendant’s social and medical background in a number of decisions. In Strickland v. Washington, the Supreme Court case that provides the standard for all ineffective assistance of counsel claims, the Court held the Constitution requires that counsel make a reasonable investigation into the defendant’s background or that counsel must make a reasonable decision, based on his or her professional judgment and the information available, not to conduct a particular investigation. 466 U.S. at 691, 104 S.Ct. 2052. Counsel’s “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052. Under the facts of the case, the Court in Strickland found counsel’s performance was not deficient because “[tjrial counsel could reasonably surmise from his conversations with respondent that character and psychological evidence would be of little help.” Id. at 699, 104 S.Ct. 2052. The Court held defense counsel’s investigation was not unreasonable and did not amount to ineffective assistance of counsel because it was his strategy to rely as much as possible on the defendant’s acceptance of responsibility of his crimes. Id. In Williams v. Taylor, on the other hand, where defense counsel failed to obtain the defendant’s juvenile and prison records and failed to return the phone call of a witness who offered to testify, the Supreme Court applied the Strickland standard and concluded counsel’s inadequate investigation was ineffective assistance of counsel. The Court found counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision to focus on the defendant’s voluntary confessions, because counsel had not “fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s background.” 529 U.S. at 396, 120 S.Ct. 1495. In reaching this conclusion and reversing the defendant’s sentence, the Court cited to the American Bar Association Standards for Criminal Justice (“ABA Guidelines”). The Supreme Court also employed the ABA Guidelines for capital defense work in Wiggins v. Smith, and found the defense counsel’s investigation, which consisted of a psychological evaluation and tracking down a pre-sentence report and records from the department of social services, was unreasonable in light of what was discovered in the records they had obtained. 539 U.S. at 510, 123 S.Ct. 2527. In reversing the sentence, the Court concluded “counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible.” Id. at 527-28, 123 S.Ct. 2527. Finally, in Rompilla v. Beard, the Supreme Court also reversed a death sentence where defense counsel failed to examine a court file from a prior conviction that counsel knew the prosecution intended to use. The file contained information regarding the defendant’s troubled upbringing and mental illness about which defense counsel was previously unaware. 545 U.S. 374, 389, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Defense counsel also failed to examine the defendant’s school records, “despite counsel’s knowledge that [defendant] left school after the ninth grade”; failed to obtain records of the defendant’s juvenile and adult incarcerations “although they were aware of their client’s criminal record”; and “did not look for evidence of a history of dependence on alcohol that might have extenuating significance,” even though they knew the defendant had been drinking heavily at the time of his offense and “one of the mental health experts reported that [the defendant’s troubles with alcohol merited further investigation.” Id. at 382, 125 S.Ct. 2456. In reaching its conclusion that defense counsel had performed a constitutionally inadequate investigation, the Supreme Court also referenced the ABA Guidelines as guides to what is reasonable in a death penalty case. Id. at 387, 125 S.Ct. 2456. In regard to capital cases, the ABA Guidelines provide that: Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel’s entry into the case and should be pursued expeditiously.... The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. Sources of investigative information may include the following: C. Collect information relevant to the sentencing phase of trial including, but not limited to: medical history, (mental and physical illness or injury of alcohol and drug use, birth trauma and developmental delays); educational history (achievement, performance and behavior); special educational needs (including cognitive limitations and learning disabilities); military history (type and length of service, conduct, special training); employment and training history (including skills and performance, and barriers to employability); family and social history (including physical, sexual or emotional abuse); prior adult and Juvenile record; prior correctional experience (including conduct or supervision in the institution/education or training/clinical services); and religious and cultural influences. D. Seek necessary releases for securing confidential records relating to any of the relevant histories. E. Obtain names of collateral persons or sources to verify, corroborate, explain and expand upon information obtained in (C) above. Guideline 11.4.1 Investigation. Here, petitioner’s counsel did what the Court would categorize as an inadequate investigation. Counsel made only a handful of short telephone calls to two of petitioner’s family members — his mother and his aunt — despite having the names of other family members and neighbors. He made no attempt to contact other witnesses. As far as records and other documentation, although defense counsel had one record from a school counselor, defense counsel made no attempts to obtain other school records. And even though he was aware that petitioner had been incarcerated in Illinois and that the prosecution intended to use the prior convictions against petitioner, he made no attempt to obtain records from the Illinois Department of Corrections. Defense counsel’s investigation into petitioner’s mental health was even less diligent. Defense counsel made no attempt to obtain additional mental health records despite knowledge that petitioner had a history of mental illness. He also did not provide the two mental health experts he did hire with all the relevant information he had. See discussion infra. The Court notes that this is not a case where counsel did not investigate further because he thought it would be fruitless. Rather, petitioner’s counsel did not look for additional records or interview additional witnesses for no other reason than he believed he was not being adequately paid and he did not have the time due the demands of his private practice. In sum, defense counsel’s investigation did not meet the ABA Guidelines — the investigation was not undertaken “to discover all reasonably available mitigating evidence.” Guideline 11.4.1 Investigation. More importantly, giving counsel the benefit of the doubt, the investigation did not meet what is required by the Supreme Court of the United States. The minimal investigation defense counsel did undertake uncovered avenues he should have pursued, and like the attorneys in Wiggins, counsel here “chose to abandon [his] investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible.” 539 U.S. at 527-28, 123 S.Ct. 2527. The background investigation petitioner’s counsel conducted clearly fell short of constitutionally effective performance. Id. See also Williams, 529 U.S. at 396, 120 S.Ct. 1495; Rompilla, 545 U.S. at 389, 125 S.Ct. 2456, Antwine v. Delo, 54 F.3d 1357, 1368 (8th Cir.1995) (vacating death sentence where counsel conducted an inadequate investigation and failed to present mitigating evidence during penalty phase); Hill v. Lockhart, 28 F.3d 832, 847 (8th Cir.1994) (vacating death sentence where trial counsel ignored obvious clues of mental illness during his investigation); Kenley v. Armontrout, 937 F.2d at 1308 (vacating death sentence where defense counsel conducted an incomplete investigation for purposes of the penalty phase); Chambers v. Armontrout, 907 F.2d 825, 829 (8th Cir.1990) (vacating sentence where defense counsel failed to interview or call witness to testify counsel); Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir.1984) (vacating death sentence where defense counsel’s investigation of case fell short of what a reasonably competent attorney would have done). 4. Did petitioner suffer prejudice as a result of the inadequate investigation? Whether the deficient investigation prejudiced petitioner is a more complex inquiry. Petitioner argues that had more evidence of his background been presented directly to the trial court, presumably through more mitigation witnesses, there is a reasonable likelihood that petitioner would have received a life sentence. Petitioner also argues that had his counsel done a proper investigation, the information gathered could have been presented to experts, who in turn could have completed more thorough evaluations and provided accurate diagnoses of his mental illnesses. According to petitioner, accurate diagnoses by experts of his mental illnesses would have provided him with a diminished capacity defense and he would not have pleaded guilty to the charges of first degree murder. In addition, he argues, the expert opinions regarding his mental illness could have been used during the penalty phase to provide additional compelling mitigation evidence. The Court will address these distinct prejudice arguments separately. a. General mitigation evidence The Missouri Supreme Court did not address whether petitioner was prejudiced by his defense counsel’s failure to present more evidence at the penalty hearing of the abuse he suffered as a child and youth, which counsel would have uncovered had he done a proper investigation. The Court, therefore, will review this aspect of petitioner’s claim de novo. 28 U.S.C. § 2254(d); Kenley v. Bowersox, 275 F.3d at 711. At the penalty hearing, the trial judge, who served as the finder of fact and sentencer, heard testimony of petitioner’s appalling childhood and youth. Ms. Tegard, the petitioner’s maternal aunt, testified about Worthington’s abuse and neglect as a child. She testified that petitioner’s mother was sixteen when she became pregnant and that she abused drugs while pregnant with petitioner. When petitioner was a child, he and his mother were constantly moving. At one point, petitioner was living with his mother out of her car, until she sold it for drugs. Ms. Tegard testified that petitioner’s mother was a prostitute, and that she had sex and abused drugs and alcohol in front of petitioner when he was a child. She would also frequently leave petitioner alone or with strangers when he was a child. She also stated that petitioner’s mother attempted suicide numerous times in petitioner’s presence. Ms. Tegard testified that petitioner’s father was also a drug abuser, in addition to a drug dealer and absentee father, who was often in jail and had virtually no contact with petitioner until he was an adolescent. Ms. Tegard stated that petitioner’s father figure was her brother-in-law. Petitioner worshiped his uncle, who was stable and involved in petitioner’s life. Tragically, petitioner’s uncle died when petitioner was seven. According to Ms. Tegard, petitioner’s father reentered petitioner’s life when he was a young adolescent, but his influence was harmful. Petitioner’s father taught him how to burglarize and he used petitioner to steal to support his drug habit, as well as involving him in drugs. Ms. Tegard testified that petitioner often got into trouble for his father’s crimes. Ms. Tegard testified that petitioner was heavily involved in drugs, that he was at times homeless and without a car. According to Ms. Tegard, petitioner’s immediate family was not supportive and, in fact, they enabled and supported, if not initiated, his drug addiction. She testified that petitioner’s parents, grandparents and step-mother were all alcoholics or drug users. She also testified that in his youth petitioner underwent psychiatric treatment, saw psychologists, and went through a drug rehabilitation program, but that he received no support from his family, and the treatment was not completed. She testified that petitioner had been suicidal in the past. In addition to attempting to jump from a bridge, he tried to overdose on pills. Ms. Tegard was the only live witness who presented testimony regarding petitioner’s childhood and background. There were, however, numerous documents that were entered into the record describing the severe neglect and abuse petitioner suffered as a child. For example, in a psychological evaluation report dated August 3, 1989, which was admitted into the record, petitioner was described as having grown up “in a dysfunctional chaotic family made up of his chronic alcoholic mother and a heroin addicted father.” Resp. Ex. V at 2193. Petitioner was said to have identified chronic neglect and emotional, physical, and sexual abuse over the years.” Id. of Illinois state petitioner “grew up in a severely dysfunctionally [sic] family which continues to be severely dysfunctional.” Id. at 2273. Records from White Oaks Companies of Illinois also described petitioner’s chaotic childhood. A case coordinator from a White Oaks facility described drug abuse by both of petitioner’s parents, as well as physical abuse and neglect by his family and babysitter. Id. at 2360-62. In addition to the records that were admitted during the penalty hearing, the pre-sentence report prepared by the Missouri Board of Probation and Parole (“Missouri PSR”) also contained details of petitioner’s abusive childhood. The report described petitioner’s mother as an alcoholic and drug addicted prostitute who was suicidal and abusive toward petitioner. Resp. Ex. X at 14. The report states petitioner was abused physically, emotionally and sexually by babysitters. Petitioner is said to have described “instances when he was tied up, held under water in the bath tub, sprayed with mace, and burned with cigarettes.” Id. Petitioner is also said to have stated that both his mother and his father were heavy drug users who stole to support their habits and that he had taken the blame for some of the crimes they committed. Id. at 15. It is also in the report that petitioner related that his father injected him with heroin when he was nine years old, and at age ten, he took PCP that his father provided him. Id. Petitioner is also reported to have said that it was his father who taught him how to steal and burglarize. In summary, the probation officer concluded “[petitioner] was raised in an extremely dysfunctional home with no boundaries. His parents are both drug addicted and his father taught [petitioner] how to burglarize homes at a very young age to help him support his drug habit. [Petitioner] was abused emotionally, physically, and sexually when younger.” Id. at 24. Based on the testimony of petitioner’s aunt and the records before her, the trial judge found, as a mitigating factor, that petitioner “was raised in a dysfunctional family, and was neglected and abused as a child,” in addition to the fact that he was “a long-term drug abuser.” Resp. Ex. G at 29. She concluded, however, that the aggravating circumstances outweighed the mitigating circumstances and sentenced petitioner to death. Id. The Court does not find that additional evidence regarding petitioner’s childhood and youth would have made a difference in the sentence he received. The' Court has reviewed the trial court record and the affidavits and testimony provided in the post-conviction proceedings, and it finds had petitioner’s counsel conducted a more complete background investigation, and had he called other family members and possibly former babysitters 'to testify, they would provided much of the same testimony and evidence regarding the abuse and neglect petitioner suffered that was already before the trial judge. And while the testimony may have corroborated evidence that was already admitted, and might have been more compelling coming from live witnesses, the Court does not find that the additional evidence, which would have been essentially cumulative, would have changed the outcome of the proceeding. There is nothing in the record to suggest that the trial judge discounted Ms. Tegard’s testimony and the records regarding petitioner’s nightmarish childhood. In fact, she specifically found as a mitigating factor the fact petitioner was abused and neglected as a child. She concluded, however, that aggravating circumstances — including the fact that petitioner invaded the victim’s home and brutally raped her; that he strangled the victim for several minutes in order to kill her and stole several of her belongings and car; that he had a significant prior criminal record and committed the crime while he was on parole; and that he was violent in his pretrial confinement — outweighed the mitigating factors in the case. As for petitioner’s contention that testimony would have established that in his youth he took the blame for crimes he did not commit, this too was before the trial judge from Ms. Tegard’s testimony and the Missouri PSR. Furthermore, petitioner had a significant criminal record even setting aside his juvenile record, and petitioner’s criminal history was only one of many aggravating factors the trial judge took into account. In light of the circumstances of the case and the aggravating factors that were proven during the penalty phase, the Court does not find a reasonable probability exists that petitioner would have received a life sentence had more witnesses testified regarding his dysfunctional childhood and crimes he supposedly did not commit. Strickland, 466 U.S. at 694, 104 S.Ct. 2052 The Missouri Supreme Court did specifically address whether it was ineffective assistance of counsel for petitioner’s attorney not to have called petitioner’s mother and father to the stand to testify at the penalty hearing. In addressing the claim, the Missouri Supreme Court noted that “ ‘counsel’s decision not to call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise.’ ” Worthington v. State, 166 S.W.3d at 577 (quoting Hutchison v. State, 150 S.W.3d 292, 304 (Mo.2004)). In analyzing the claim as to petitioner’s mother, the court noted that although petitioner’s mother was present at the hearing, his counsel chose not to call her because he believed her testimony might undermine petitioner’s defense because -during interviews with defense counsel, petitioner’s mother tried to portray herself as a good mother and not abusive. Id. The court also noted that trial counsel believed petitioner’s mother might have been high on crack cocaine at the time of the hearing. Id. The Missouri Supreme Court found it reasonable trial strategy not to call petitioner’s mother to the stand to testify. Id. This Court finds the state court’s findings to be supported by the record and its legal conclusions are not contrary to established Supreme Court law. It was reasonable trial strategy not to have called petitioner’s mother to testify. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Regarding petitioner’s father, the Missouri Supreme Court found that counsel was not ineffective assistance for failing to call him to testify. In analyzing the claim, the court determined that petitioner’s father was difficult to locate, petitioner had not had contact with his father since 1997, and they did not have much of a relationship. Worthington v. State, 166 S.W.3d at 577. While this Court does not agree with the Missouri Supreme Court’s factual findings, its conclusion that petitioner was not prejudiced by trial counsel’s failure to call him to the stand is not contrary to established law. Contrary to the Missouri Supreme Court’s findings, Richard Worthington was not difficult to locate before and at the time of the hearing — he was incarcerated. Petitioner was aware of his father’s whereabouts and his trial counsel made no attempt to locate him. The penalty hearing took place in September 1998, therefore, the fact that petitioner had little contact with his father since the previous year is not surprising, especially considering both were incarcerated. The fact that the two did not have much of a relationship actually supported petitioner’s case, because it is petitioner’s contention that Richard Worthington should have been called to testify about being a neglectful father, which is supported by the record. Nevertheless, petitioner has not stated a claim under Strickland based on defense counsel’s failure to call his father to testify. As discussed above, evidence of petitioner’s awful childhood, including the dysfunctional relationship he had with his father, was admitted into evidence at the hearing, and the trial court found petitioner had been abused as a child. There was evidence already in the record that petitioner took the blame for crimes his father committed. It was not unreasonable for the Missouri Supreme Court to have concluded that Richard Worthington’s testimony would have been cumulative, and petitioner was not prejudiced by his counsel’s decision not to call him as a witness at the penalty hearing. b. The impact of the inadequate investigation on expert testimony The other aspect of petitioner’s prejudice argument relates to his experts. Petitioner argues that he was prejudiced by his counsel’s deficient investigation because had a proper investigation been done, more facts and medical history could have been given to his experts, who in turn would have been able to provide more accurate diagnoses of his severe mental illnesses. According to petitioner, accurate diagnoses would have provided him a diminished capacity defense during the guilt phase and he would not have pleaded guilty. In addition, he argues, the experts could have provided compelling mitigating evidence during the penalty phase regarding his mental illnesses and, had they done so, he would have received a life sentence. Petitioner’s trial counsel hired two experts on petitioner’s behalf: Roswald “Lee” Evans, a psychiatric pharmacist, and Kevin B. Miller, a forensic psychiatrist — only one, Dr. Evans, testified at the penalty hearing, and he did not even prepare or provide a report. In preparation for his testimony, defense counsel provided Dr. Evans with the following information: records from the Methodist Medical Center from July 1994; Dr. Givon’s report; law enforcement records regarding petitioner’s arrests; and St. Charles County Sheriff Medical Department Records from 1996. He was not provided, the following, all of which defense counsel had in his possession: petitioner’s school records; Illinois Youth Center records; Valerie Kessler’s report, a psychological evaluation from August 1989; a juvenile placement report from 1987; the Illinois Pre-Sentence Investigation Report (“Illinois PSR”); treatment records from White Oak Knolls from August 1994; St. Charles County Detention records; transcripts of the videotaped police interviews from October 1995; and interview notes from Dr. Ryall, a psychiatrist who had treated petitioner in July 1995. In addition, Dr. Evans did not have the medical records from petitioner’s family, including mental health records from his parents, uncle, and grandfather, affidavits from his family members and babysitters, school records, and Illinois Department of Correction records, all of which were uncovered by petitioner’s post-conviction counsel and could have been obtained prior to the time of the hearing. Dr. Evans interviewed petitioner, but he did not speak with any of his relatives. At the hearing, Dr. Evans testified that petitioner was a “classic addict” and at the time of the rape and murder, he was under the influence of alcohol and cocaine, which made him incapable of making a decision about his behavior. Dr. Evans was unaware at the time of the hearing that petitioner had been evaluated by Dr. Miller, a forensic psychiatrist, and he testified at the penalty hearing that he could not opine whether petitioner suffered from a mental disease or defect, and that he normally worked in conjunction with a psychiatrist or psychologist. Dr. Miller, a forensic psychiatrist, was also hired by defense counsel to evaluate petitioner. Defense counsel provided Dr. Miller with: reports from the Major Case Squad; the victim’s autopsy report and laboratory evaluation, including DNA findings; Dr. Givon’s report; partial records from the Methodist Medical Center from July 1994, and at least one incident report from the St. Charles Department of Corrections. As with Dr. Evans, he was not given, although they were within defense counsel’s control: petitioner’s school records; Illinois Youth Center records; Valerie Kessler’s report, a psychological evaluation from August 1989; a juvenile placement report from 1987;Illinois PSR; treatment records from White Oak Knolls from August 1994; transcripts of the videotaped police interviews from October 1995; and interview notes from Dr. Ryall, a psychiatrist who had treated petitioner in July 1995. He also was not given St. Charles County Sheriff Medical Department Records from 1996, or the records that were uncovered by petitioner’s post-conviction counsel. Like Dr. Evans, Dr. Miller interviewed petitioner, but he did not interview any family members. In his report, Dr. Miller concluded there was evidence petitioner was suffering from attention-deficit/hyperactivity disorder, cocaine dependence, alcohol abuse, post-traumatic stress disorder, major depressive disorder, which was in remission, and had a history of cocaine-induced psychosis with onset during intoxication. Resp. Ex. V at 2613. He also indicated that he needed to rule-out Bipolar disorder, dissociative disorder, malingering, and complex partial seizures. Id. Based on petitioner’s self-reporting that he had been drinking heavily on the night of the crime, had been using crack cocaine regularly during that time of his life, and had no conscious knowledge of killing or raping the victim, Dr. Miller found that there was no direct evidence petitioner was psychotic around the time of the crime, but he may have experienced a period of cocaine-induced paranoid psychosis, which could have been associated with amnesia. Id. at 2614. He concluded the crime would not have occurred absent the influence of cocaine and that petitioner was predisposed to drug addiction. Id. at 2613-16. Dr. Miller did not testify at the penalty hearing and his report, which is dated September 13, 1998, one day before the start of the penalty hearing, was not admitted into evidence. While Dr. Miller did not testify at the penalty hearing, Dr. Evans, the pharmacist, did testify. His testimony was limited, however, because he specifically stated that he could not opine as to whether petitioner suffered from a mental disease or defect. He stated that he normally works with a psychiatrist or psychologist who lays the foundation of a patient’s mental impairment, and he will provide testimony regarding what effect drugs might have on that condition. During the sentencing hearing, the trial judge did not state that she found petitioner to be suffering from mental illness. Post-conviction counsel provided to Dr. Evans, as well as three additional experts, Jonathan H. Pincus, M.D., a professor of Neurology, Dr. Dennis G. Cowan, a psychologist, and Dr. Robert Smith a clinical psychologist, all of the records that were uncovered prior to the penalty hearing, as well as the records that were located by post-conviction counsel, which included mental health records from some family members, and affidavits from family members and two babysitters. The post-conviction experts all examined petitioner. In addition, Dr. Smith and Dr. Cowan conducted extensive interviews and some testing with petitioner’s family members. All three new experts concluded petitioner suffered serious mental illness. Dr. Pincus concluded in a report prepared for post-conviction counsel that petitioner has “a neurologic condition, Tourette’s syndrome, with obsessive-compulsive disorder, tics, vocalizations, and Bipolar affective disorder and he has a number of neurological abnormalities on examination which indicate that the brain circuits that sub-serve frontal-basal ganglia-thalamus are not functioning properly. He has an attention deficient disorder and has had one since the earliest school years ...” Resp. Ex. V at 4748. Dr. Pincus noted that at the time of the murder, petitioner had been prescribed Prozac for depression. “Treatment with Prozac precipitated an episode of mania, and I believe that he was very much under its influence when he participated in the robbery of the victim’s apartment.” Id. at 4751. Dr. Cowan agreed with Dr. Pincus’s diagnosis of Tourette’s syndrome. He noted that when not properly medicated, persons with Tourette’s are more likely to have significant problems with “emotional liability, impulsivity, and aggression directed towards others.” Resp. Ex. V at 4628-29. Dr. Cowan believed petitioner was not properly medicated at the time of the murder and during his pretrial incarceration. Dr. Cowan also found the presence of brain-related dysfunction. “The suspected etiologies for the noted dysfunction are from the multiple sustained head injuries, substance abuse and congenital abnormalities and that of cerebral brain dysfunction.” Id. at 4635. He also noted petitioner was at the time suffering from attention deficient hyperactivity disorder (“ADHD”), Bipolar affective disorder, as well as cocaine abuse/dependency and alcohol abuse/dependency. Dr. Cowan also stressed the importance of genetics. He wrote “[petitioner] is the biological product of his parents’ genetic make-up and predispositions. The neuropsychological evaluations conducted on [petitioner]’s family failed to produce a normal evaluation or one free of cerebral dysfunction. These genetics, the abnormalities and the predispositions were all passed onto [petitioner].” Id. at 4637-38. Dr. Cowan did not opine as to petitioner’s state of mind at the time of the crime. Dr. Smith also provided post-conviction counsel with a report. Dr. Smith diagnosed petitioner with Bipolar disorder with psychotic features, Tourette’s disorder, post-traumatic stress disorder, ADHD, alcohol dependence, and cocaine dependence. Resp. Ex. V at 4527. In his report, he emphasized the importance of petitioner’s family mental health history: This extensive family history of psychiatric illness reported by [petitioner] was confirmed by interviews with the family members listed, as well as the medical records reviewed. This history is significant in gaining an understanding of [petitioner's psychiatric disorders. The research regarding the causes of psychiatric illness has demonstrated that many disorders are genetically influenced. In particular, the mood disorders (e.g., Depression and Anxiety) and the more severe disorders involving hallucinations and delusions (e.g., Bipolar Disorder and Schizophrenia) are the result of an inherited predisposition. [Petitioner's family has definite history of depression, Bipolar Disorder, Substance Dependence Cerebral Brain Dysfunction and psychotic behaviors. This positive family history directly contributed to his development of the psychiatric disorders that have affected his behavior throughout his life. Id. at 4502 Dr. Smith noted that petitioner first met with a mental health counselor in sixth or seventh grade, but that his family, and more particularly his mother, did not follow through with his medication, treatment or counseling. Id. at 4510, 4530. Throughout his youth and early twenties, with the exception of July and August 1994, when he attempted suicide and he was briefly committed, petitioner only received mental health care and medications, albeit often the wrong medications, when he was under the supervision of the criminal justice system. Id. 4504-05. Dr. Smith noted that petitioner often requested psychiatric