Full opinion text
ORDER CECILIA M. ALTONAGA, District Judge. Petitioner, Thomas Dewey Pope (“Mr. Pope”), is on death row at the Union Correctional Institution in Raiford, Florida, following convictions in 1982 for first-degree murder. Mr. Pope filed an Amended Petition for Writ of Habeas Corpus by a Person in State Custody on February 19, 1999 [ECF No. 18]. On prior review, the Court issued an Order partially granting Mr. Pope’s Amended Petition with regard to claims of ineffective assistance of counsel during the penalty phase of the state trial and denying Mr. Pope’s remaining claims. {See Dec. 8, 2008 Order (“Dec. 8 Order”) [ECF No. 134]). On appeal, the United States Court of Appeals for the Eleventh Circuit agreed “that [Mr. Pope’s] allegations, considered together, are powerful, and if he is able to prove they are true, he would be entitled to habeas relief.” Pope v. Sec’y, Dep’t of Corr., 680 F.3d 1271, 1294 (11th Cir.2012) (citation omitted) (emphasis in original). However, the Eleventh Circuit remanded the case for an evidentiary hearing, finding that the Court had erred by ruling on “Pope’s untested penalty-phase allegations” without first receiving evidence. Id. at 1288. On October 17, 18, 22, and 23, 2012, the Court held an evidentiary hearing (“2012 Hearing”), during which testimony and exhibits relevant to Mr., Pope’s claim of penalty phase ineffectiveness of trial counsel were received. Having reviewed the evidence, the Court finds that Mr. Pope has proven his allegations of penalty phase ineffectiveness. Nevertheless, the veracity of Mr. Pope’s allegations is not by itself sufficient to entitle Mr. Pope to relief. For while Mr. Pope’s claim was pending before the Eleventh Circuit, the Supreme Court issued Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), which constrains district courts from granting relief on a section 2254 habeas petition — where that claim was adjudicated on the merits by a state court and is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 100 Stat. 1214 (1996) (“AEDPA”) — unless the petitioner can prove the state court decision was “unreasonable,” 28 U.S.C. § 2254(d), based upon the state court record alone. Pinholster, 131 S.Ct. at 1400 (“If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.”) (footnote call number omitted). , Because Mr. Pope’s claims were adjudicated on the merits and the Amended Petition is governed by the AEDPA, see Pope, 680 F.3d at 1283-84, 1286, Mr. Pope must, pursuant to Pinholster, make a showing of state court unreasonableness without regard to- the newly-presented evidence in order to be entitled to relief. Following the 2012 Hearing, and at the undersigned’s request (see January 22, 2013 Order (“Jan. 22 Order”) [ECF No. 190]), the parties have presented additional briefing addressing the issue of state court unreasonableness. (See Mem. of Petitioner (“Pope Mem.”) [ECF No. 191]; Mem. of Respondent (“State Mem.”) [ECF No. 195]). The discussion that follows gives the background of this case; addresses the applicable standards of review; summarizes the record before the state court and the new evidence presented at the 2012 Hearing; analyzes the threshold question of whether Mr. Pope has established, based upon the record that was before the state court, that the state court’s adjudication resulted in a decision that unreasonably applied- federal law pursuant to the deferential standard of 28 U.S.C. section 2254(d); and recounts the evidence from the 2012 Hearing that satisfies 28 U.S.C. section 2254(e), entitling Mr. Pope to habeas relief. I. BACKGROUND A. Introduction The pertinent facts underlying Mr. Pope’s prosecution are set forth by the Florida Supreme Court as follows: On January 19, 1981, the bodies of A1 Doranz and Caesar Di Russo were discovered in an apartment rented to Kristine Walters. Both had been dead several days but Di Russo’s body was in a more advanced state of decomposition than Doranz’s. Both victims had been shot, Doranz three times and Di Russo ■five times. ■ A spent .22 caliber shell casing was found under Di Russo’s body. Three days later, the body of Kristine Walters was found floating in a canal. She had been shot six times with exploding ammunition, her skull was fractured and she had been thrown into a canal while still breathing. All three victims had been shot with exploding ammunition, so ballistics comparison was impossible. However, parts of an AR-7 rifle were found in the canal near Walter’s body and the spent'shell casing under Di Russo’s body had been fired from an AR-7 weapon. Investigation led to [Mr. Pope’s] girlfriend, Susan Eckard, and ultimately police were able to show that Doranz purchased an AR-7 rifle for Pope shortly before the murder. Eckard and Pope admitted being with Doranz and Walters at Walters’s apartment on Friday night, the night Doranz and Di Russo were killed. Eckard later testified that Pope arranged a drug deal with Doranz and Di Russo. She stated that she and-Pope left Walters’s apartment to visit Clarence “Buddy” Lagle and to pick up some hamburgers. They then returned to the apartment where Pope and Doranz convinced Walters to go with Eckard to the apartment where Pope had been staying.- Later that same night, Pope arrived at his apartment and told the women there had been trouble and that Doranz had been injured but that it was best for Walters to stay away from him for a while. Eckard said she knew that Di Russo and Doranz were dead, and that she had known Pope intended to kill them at this point. The next day, Walters checked into a nearby motel, where Pope supplied her with quaaludes and cocaine. On Sunday, Pope told Walters he would take her to see Doranz. Eckard testified that Pope had told her that he knew he had to get rid of Walters but that he regretted it because he had become fond of her. According to Eckard, Pope described Walters’s murder when he returned and said the gun had broken when he beat Walters over the head with it. The next day Eckard went with Popé to the scene of the crime to collect fragments of the broken stock and to look for the missing trigger assembly and receiver. Buddy Lagle told the'police he had made a silencer for the A R-7 rifle at Pope’s request. Because Lagle planned to leave the jurisdiction to take a job on a ship in the Virgin Islands, he was deposed on videotape pursuant to an order granting the state’s motion to perpetuate testimony. When the state was unable to produce him at-trial, the videotape was admitted into evidence. Pope was convicted of three counts of first degree murder.... Pope v. State, 441 So.2d 1073, 1074-75 (Fla.1983). B. Post-Trial State Court Proceedings The pertinent facts of the post-conviction proceedings, including both the penalty phase of Mr. Pope’s trial and the ensuing state and federal habeas proceedings, are recounted by the Eleventh Circuit as follows: After the jury’s guilty verdict, but before the penalty phase, Pope and his trial counsel had this exchange with the court, outside the jury’s presence: Eber: I have discussed the situation that is presently before us with Mr. Pope. I have discussed it informally with the Court. Mr. Pope does not wish me to argue to the jury at this point, I understand that it is my obligation as his attorney to do so, however. Mr. Pope feels that it is my obligation, as his- attorney, to follow his wishes in this situation. I believe he may have something he desires to say, if the Court would entertain that. But I have told him, and I believe that it is my obligation to make a presentation to the jury. The Court: Alright. If you want to say anything, Mr. Pope, you may. Pope: I’d really rather not have him make a presentation on my behalf to the jury. You only have two choices, and I know what my choice is. I know I’m not trying to take your job, that is not what I want and is not necessarily what you are going to give me; but I would rather have the death, sentence than the . twenty-five years in prison. The Court: Alright. I still think you ought to speak on his behalf as your obligation. You made your wishes- known. I can understand that. Thank you. Bring the jury in. During closing arguments, the prosecutor informed the jury that “Mr. Pope has announced that he would rather receive a death penalty than life imprisonment. I would say to you that your verdict, your recommendation, should not be based on that.” Notably, defense counsel Eber did not object to this salient comment. Thereafter, the jury recommended life sentences for the murders of Di Russo and Doranz, and the death penalty for the murder of Walters. The jury voted nine to three for death. The trial judge adopted the jury’s sentencing recommendations. In so doing, the judge found four aggravating circumstances surrounding Walters’s murder: (1) Pope was previously convicted of another capital felony (the murders of Di Russo and Doranz), Fla. Stat. § 921.141(5)(b); (2) the capital felony was committed for the purpose of avoiding a lawful arrest (for the murders of Di ■ Russo and Doranz), id. § 921.141(5)(e); (3) the capital felony was especially heinous, atrocious, or cruel (in part because Pope failed to show any remorse), id. § 921.141(5)(h); and (4) the capital felony was a homicide committed in a cold, calculated, and premeditated manner (because Pope-spent two days with Walters before murdering her), id. § 921.141(5)®. The judge found one mitigating circumstance, the “catchall” provision, Fla. Stat. § 921.141(6)(h), because Pope had served in Vietnam and was honorably discharged from the Marines. The trial judge then sentenced Pope to die..... Pope filed a direct appeal to the Florida Supreme Court, arguing, among other things, that the trial court erred in .allowing Lagle’s videotaped deposition to be presented to the jury. The Florida Supreme Court affirmed the convictions and sentences. Pope, 441 So.2d at 1074. Pope’s collateral attack began when he filed in state court a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming the ineffective assistance of counsel. The motion raised twelve errors by trial counsel, including [ ] five guilt-phase ineffectiveness claims [ ], as well as two penalty-phase ineffectiveness claims: (1) counsel’s failure to object to improper comments made by the court and -the prosecutor; and (2) counsel’s failure to present mitigating evidence drawn from Pope?s background. The trial court held that except for two of his claims, Pope’s allegations were either insufficient to state a claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or were specifically refuted by the record. As for the two remaining claims, the court rejected the first one — concerning ineffective assistance stemming from the introduction of Lagle’s videotaped depositiom^-because it found, after conducting ah evidentiary hearing on the issue, that Lagle was indeed unavailable for trial. An evidentiary hearing was set on the second of Pope’s remaining claims— that his trial counsel was ineffective for using the “Vietnam Syndrome Defense” against Pope’s wishes. After the evidentiary _ hearing, the court denied this claim too, finding that Pope knew, understood, and concurred in his trial counsel’s opinion that Dr. William Weitz’s testimony regarding the Vietnam Syndrome Defense should be used during the guilt phase of the trial. On appeal to the Florida Supreme Court, Pope argued that the trial court improperly failed to hold an evidentiary hearing on several claims raised in his motion for new trial, including the remaining guilt-phase ineffectiveness claims, as well as the penalty-phase ineffectiveness claims listed above. The Florida Supreme Court affirmed the trial court’s denial of Pope’s Rule 3.850 motion. Pope v. State, 569 So.2d 1241 (Fla.1990) (per curiam). During the pendency of the Rule 3.850 motion, Pope filed a petition for writ of habeas corpus with the Florida Supreme Court alleging ineffectiveness of appellate counsel. The Florida Supreme Court denied Pope’s petition. Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986).- [1] [T]he court agreed with Pope’s claim that the prosecutor had made “clearly improper” comments during closing argument of the penalty phase, the “most bothersome” being “the comment on the petitioner’s preference for death.” Id. at 803. Nonetheless, the court held that “in light of the aggravating evidence presented ... none [of the comments] are so egregious as to fundamentally undermine the reliability of the jury’s recommendation.” Id. Following his initial state Rule 3.850 motion and petition for writ of habeas corpus, Pope filed in state court several other. Rule 3.850 motions, several petitions for writ of habeas corpus, and miscellaneous motions attempting to raise new claims, and to cure procedurally defaulted claims and exhaust claims that the federal court subsequently deemed unexhausted. All of these filings were denied in turn. See, e.g., Pope v. State, 702 So.2d 221 (Fla.1997) (per curiam), reh’g denied (Fla.1998).... On September 9, 1991, Pope sought collateral relief in the United States District Court for the Southern District of Florida, filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pope raised seven claims, some with multiple sub-claims, resulting in 61 claims in all. Most significantly for our purposes, Claim II alleged the ineffective assistance of penalty-phase counsel. The State argued failure to exhaust as a defense to this claim and others; the district court agreed, dismissing without prejudice Pope’s petition because it “contain[ed] both exhausted and unexhausted claims.” Notably, the district court did not find Claim II unexhausted. Once the district court entered its order, the Clerk of Court entered a notation on the docket sheet characterizing the case as “closed.” Following litigation in state court to exhaust the unexhausted claims, Pope returned to federal district court and amended his federal habeas corpus petition on February 19, 1999. Along with his amended petition, Pope moved to “reopen proceedings.” Claim II as developed in the amended petition was nearly identical to Claim II in Pope’s original 1991 petition. The State again argued that Claim II was unexhausted. The district court rejected that defense, and ordered the State to respond on the merits to this claim. Thereafter, in July 2000, the State argued in a supplemental response to Pope’s amended petition that the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 100 Stat. 1214 (1996) (“AEDPA”), applied to the case. Pope replied that the State had waived its AEDPA argument because it did not mention AED-PA in its prior answer to Pope’s amended petition. [ ]Pope sought an evidentiary hearing from the district court on all of his claims. The motion was denied and no hearing was conducted. Without resolving whether AEDPA applied to his petition, the district court relied on the “arguably less stringent” pre-AEDPA law to deny the request for an evidentiary hearing, because Pope had obtained' a hearing in state court on “certain of the issues he presented, including ineffectiveness of trial counsel,” presumably referring to the state court hearings on the introduction of the Lagle deposition and the use of the Vietnam Syndrome Defense during the guilt phase of the trial. After various state and federal court filings, and after the Florida Supreme Court -denied Pope’s third state habeas corpus petition, Pope’s federal petition for writ of habeas corpus now consisted of eight claims (comprised of 23 sub-claims), including ineffective assistance of counsel at the guilt and penalty phases of the trial. In September 2006, the State filed a second supplemental response to Pope’s amended petition, and, this time, among other things, “withdrfew] its suggestion that [AED-PA] applies.” In 2008, the district court ruled on the merits of Pope’s federal petition for writ of habeas corpus. The district court granted the petition in part — regarding Pope’s claim that he received ineffective assistance of counsel at sentencing — and rejected all of the remaining claims. In so doing, the district court first determined that AEDPA did not apply to Pope’s petition, because his original petition had been filed on September 9, 1991,. before the effective date of AED-PA. The court denied Pope’s seven guilt-phase ineffective assistance claims, finding generally that he could not satisfy Strickland. As for Pope’s penalty-phase ineffective assistance claims, however, the district court concluded that counsel’s failure to discover and present any of the ample available mitigation evidence fell below any objective standard of reasonable representation. It reached this conclusion even though Pope had told the trial court and his counsel that he did not want to present any mitigating evidence to the jury, likening Pope’s case to Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991). The district court further determined that counsel’s failure to object to the prosecutor’s comment about Pope’s stated preference for death over life imprisonment also fell below any objective standard of reasonableness. Given the combination of factors surrounding sentencing (including counsel’s failure to present mitigating evidence, counsel’s failure to object to the prosecutor’s statement that Pope preferred to die, and three of the jurors’ votes for a life sentence), the court concluded that there was a reasonable probability that but for counsel’s errors Pope’s jury would have returned a recommendation of life imprisonment. The State moved to alter or amend the judgment, arguing this time, among other things, that AEDPA should apply to Pope’s petition. In ruling on the motion, the district court declined to determine whether the State had waived its AEDPA argument, because, it concluded, the result would remain the same regardless of whether pre-AEDPA or post-AEDPA standards applied. [A] timely appeal followed. Pope, 680 F.3d at 1278-81 (alterations added; footnote call number omitted). C. The Eleventh Circuit Opinion In its review of the December 8, 2008 Order,' the Eleventh Circuit ruled that the AEDPA applies to the Amended Petition. See id. at 1282. The court framed the issues presented on appeal as follows: Pope’s penalty-phase ineffectiveness argument has two components. First, the petitioner has argued that his trial counsel was ineffective because of counsel’s alleged failure to conduct a reasonable investigation into Pope’s life in order to find mitigating evidence to present during the penalty phase. Pope also claims that his counsel’s “failure to object to. prosecutorial misconduct an[d] improper argument” rendered the penalty-phase proceedings fundamentally unfair, resulting in the ineffective assistance of counsel. Id. at 1284 (alteration in original). Having concluded that Mr. Pope’s penalty-phase claims were properly before the court, the Eleventh Circuit addressed those claims: [Ajlthough Pope consistently sought an evidentiary hearing in state court to develop his penalty-phase claims, no hearing was ever held. Even the federal district court denied his request for an evidentiary hearing to develop these claims, albeit under pre-AEDPA law, on the ground that Pope had already participated in two state-court hearings. But these hearings barely touched on his counsel’s performance during the penalty phase. The record, therefore, leaves us with Pope’s untested penalty-phase allegations, and little, if anything else to consider. In the face of this procedural history, together with the substance . of the claims, we are compelled to conclude that the district court erred in granting habeas relief on this barren record, and moreover, abused its discretion in denying Pope an evidentiary hearing to develop his claims. We, therefore, vacate the district court’s decision, and remand the case with instructions for the district court to hold an evidentiary hearing. Id. at 1287-88 (emphasis in original; footnote call number omitted). Prior to concluding, the court noted that it is unclear “whether AEDPA deference applies to the state court rulings in this case once the district court has held an evidentiary hearing,” as “neither the Supreme Court nor [the Eleventh Circuit] has said which standard of review applies to evidence properly developed in a federal hearing....” Id. at 1294 n. 16 (emphasis in original; alteration added) (citing Holland v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004); LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1263 (11th Cir.2005)). The answer to this question may depend on what evidence is uncovered in the federal court hearing, see LeCroy, 421 F.3d at 1263 n. 30 (noting that deference may not apply “[i]f the federal evidentiary hearing uncovers new, relevant evidence that impacts upon a petitioner’s claim(s) and was not before the state court,’ since ‘it is problematic to ascertain how a federal court would defer to the state court’s determination,” but also recognizing AEDPA’s strong preference for deference).... Id. Accordingly, the Eleventh Circuit instructed the undersigned to “address this question in the first instance.” Id. II. STANDARDS OF REVIEW Pursuant to the AEDPA, courts confronted with a section 2254 petition raising claims that have been adjudicated on the merits by the state court must answer two questions prior to providing habeas relief: (1) whether the state court’s adjudication of the claim was unreasonable under section 2254(d); and (2) if so, whether the petitioner is being held in custody in violation of the Constitution or laws and treaties of the United States. In order to determine whether Mr. Pope is entitled to habeas relief, the Court must first consider the record before the Florida Supreme Court and, if the Florida Supreme Court’s decision was unreasonable, then the Court considers the evidence presented at the 2012 Hearing. A. Section 2254(d) A highly deferential standard of review applies to federal habeas petitions subject to the AEDPA where a claim was adjudicated on the merits in state court proceedings: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The Florida Supreme Court’s decision is considered “contrary to” clearly established law if that court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or if the court confronted facts that are “materially indistinguishable” from relevant Supreme Court precedent but arrived at a different result. See Pope, 680 F.3d at 1283-84 (citing Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“Terry Williams ”); Terry Williams, 529 U.S. at 391, 120 S.Ct. 1495 (“It is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ ”). The Florida Supreme Court’s decision is an “unreasonable application” of clearly established law if it unreasonably extends or fails to extend a clearly established legal principle to a new context. See id. (citing Jennings v. McDonough, 490 F.3d 1230, 1236 (11th Cir.2007)). The Florida Supreme Court’s factual findings are presumed correct unless rebutted by the petitioner with clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and “[t]his presumption of correctness applies equally to factual determinations made by state trial and appellate courts.” Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir.2003) (citing Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)). B. Limitations of Section 2254(d) Review When a district court is conducting a section 2254(d)(1) analysis, it is “limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 131 S.Ct. at 1398. The review is so limited because “[i]t would be strange to ask federal courts to analyze whether a state court’s adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.” Id. Mr. Pope argues the Court need not conduct a section 2254(d)(1) analysis because the Eleventh Circuit implicitly made a finding of unreasonableness when it ordered a section 2254(e) evidentiary hearing on remand. It is implicit, Mr. Pope asserts, because “[i]f the Eleventh Circuit agreed that Petitioner is entitled to’ relief if he could prove his allegations, then it must have found that the (d) inquiry under Pinholster has already been satisfied, because habeas relief would not otherwise be available.” (Pope Mem., 2). In contrast, the State maintains that “there is no basis for Pope’s claim that the Eleventh Circuit Court’s opinion resolved the Pinholster issue.” (State Mem., 3). The May 15, 2012 opinion in Pope, 680 F.3d 1271, does not cite to or reference the 2011 decision of Pinholster. Rather, the issue of whether AEDPA deference applies to the state court ruling in this case “once the district court has held an evidentiary hearing” was left to the undersigned to resolve. Pope, 680 F.3d at 1294, n. 16. While the Court chooses not to speculate why the Eleventh Circuit did not address Pinholster, the Court must acknowledge that Eleventh Circuit precedent both before and after the decision on Mr. Pope’s appeal clearly shows that the Eleventh Circuit has applied Pinholster such that the undersigned should conduct a section 2254(d) analysis properly limited to the state court record in addition to an evidentiary hearing testing the veracity of Mr. Pope’s claims. See, e.g., Borden v. Allen, 646 F.3d 785, 817 (11th Cir.2011); Chavez v. Sec’y, Dep’t of Corr., 647 F.3d 1057 (11th Cir.2011); Frazier v. Bouchard, 661 F.3d 519, 532 n. 17 (11th Cir.2011) (“While Hall v. Head, 310 F.3d 683 (11th Cir.2002), inti-' mates that we may review evidence “adduced in” the federal habeas proceeding, id. at 701, such an approach is foreclosed by Cullen v. Pinholster .... We therefore review only that evidence — both in aggravation and mitigation — produced in the state court proceedings, both direct and collateral.”); Hill v. Humphrey, 662 F.3d 1335, 1363 (11th Cir.2011) (J. Tjoflat, concurring); Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1345, n. 12. (11th Cir.2011) (citing Pinholster and stating “our review under 28 U.S.C. 2254(d)(1) is limited to the record that was before the State court that adjudicated Guzman’s claim on the merits.”); Price v. Allen, 679 F.3d 1315, 1324 (11th Cir.2012); Kormondy v. Sec’y, Fla. Dep’t of Corr., 688 F.3d 1244, 1273 (11th Cir.2012). Given this backdrop, it is understandable that Mr. Pope argues that an implicit determination regarding the unreasonableness of the Florida Supreme Court’s decision was made when the Eleventh Circuit remanded the case for an evidentiary hearing. This is also a logical assumption because the 2012 Hearing would have been meaningless if the Court were to conclude by denying the claim based on a record that has been in existence for almost 30 years. Perhaps Justice Breyer articulated the issue best in his concurrence in Pinholster: “We cannot say whether an (e) hearing is needed until we know whether the state court, in rejecting Pinholster’s claim on the basis presented to that state court, violated (d).” Pinholster, 131 S.Ct. at 1412. Nevertheless, putting aside any logical assumptions that could, be made regarding the omission of any reference in the Pope opinion to the rule announced in Pinholster, for the sake of completeness the Court addresses the merits of Mr. Pope’s claim under section 2254(d), with the requisite AEDPA deference accorded the opinion of the Florida Supreme Court. While the Court agrees with Mr. Pope’s position on this narrow issue, given the long and tortured history of this case— spanning over three decades — it may be prudent not to assume an implied section 2254(d)(1) analysis was conducted by the Eleventh Circuit when no such analysis appears in the text of the opinion. C. The Strickland Standard The “clearly established law” on the present claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court held that in order to ensure a fair trial, the Sixth Amendment requires defense counsel to provide effective assistance to defendants by “bring[ing] to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. at 685, 104 S.Ct. 2052. Where defense counsel renders deficient performance, a new trial and/or resentencing is required if the deficient performance prejudiced the defendant such that confidence is undermined in the outcome. Id. at 694, 104 S.Ct. 2052. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s, unprofessional errors, the result, of the proceeding would have been different.” Id. As it relates to deficient performance, counsel enjoys “wide latitude ... in making tactical decisions” under Strickland. Id. at 689, 104 S.Ct. 2052. Counsel also, however, “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052. This duty also includes an obligation to “conduct a thorough investigation of the defendant’s background.” Terry Williams, 529 U.S. at 396, 120 S.Ct. 1495; In the context of a capital case, the prejudice inquiry required by Strickland “is whether there is a reasonable probability that, absent the errors, the sentence — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695,104 S.Ct. 2052. “To assess that probability, [the Court] considers] ‘the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding’ — and ‘reweig[h][s] it against the evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 454-55, 175 L.Ed.2d 398 (2009) (quoting Terry Williams, 529 U.S. at 397-98, 120 S.Ct. 1495). The judicial “ ‘duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.’ ” Kyles v. Whitley, 514 U.S. 419, 422, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting Burger v. Kemp, 483 U.S. 776, 785, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)). In performing this duty, courts “will necessarily” .“ ‘speculate’ as to the effect” of non-presented evidence. Sears v. Upton, — U.S. -, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010). The search is for the presence of a constitutional violation and not the absence of one; consequently, -the speculation must concern how the non-presented evidence may have benefited a capital defendant’s case, not on how the non-presented evidence may have damaged it.- See Smith v. Cain, — U.S. -, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012) (“The State and the dissent advance various reasons why the jury might have discounted Boatner’s undisclosed statements ____That merely leaves us to speculate about which of Boatner’s contradictory declarations the jury would have believed.”). Finally, where, as here, a section 2254 petition is governed by the AED-PA and contains Strickland claims that were adjudicated on the merits by a state court, the state court’s decision on those claims is entitled to “double deference.” Johnson v. Sec’y, DOC, 643 F.3d 907, 910-11 (11th Cir.2011). As .the Supreme Court recently explained in Harrington v. Richter, when a habeas court reviews an ineffective assistance of counsel claim under the AEDPA, the “state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” — U.S. -, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). “The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s ' performance fell below Strickland’s standard.” Id. Accordingly, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported ... the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Id. at 786. At the second step, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786-87. As noted by the Eleventh Circuit, the “[d]ouble deference” envisioned by Harrington “is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits ’in state court is foupd to merit relief in a federal habeas proceeding.” Johnson, 643 F.3d at 911. The Court, accordingly, will afford double deference to the Florida Supreme Court’s adjudication of Mr. Pope’s ineffective assistance of counsel claims. D. Section 2254(a) While a federal district court is restrained from granting a state court prisoner’s petition unless section 2254(d) is satisfied, section 2254(a) is yet another hurdle the petitioner must overcome to receive habeas relief. See Paige v. Mc-Donough, No. 3:06-CV-389MCR/EMT, 2008 WL 1844358, at *8 (N.D.Fla. Apr. 22,. 2008) (noting that even “if the federal habeas court finds the state eourt decision to be contrary to, or an unreasonable applieation of, clearly established Supreme Court law,” the court must still “conduct[] an independent review of the merits of the petitioner’s claims.”). Under section 2254(a), a district court may only “entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court [ ] on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Thus, if it is determined that the Florida Supreme Court’s rejection of Mr. Pope’s claims was unreasonable, Mr. Pope will only be entitled to relief if he can then prove that he is being held in custody “in violation of the Constitution or laws and treaties of the United States” under section 2254(a). See Lopez v. Miller, 906 F.Supp.2d 42, 50 (E.D.N.Y.2012) (noting that whereas section 2254(d) “sets forth a necessary but not sufficient prerequisite to habeas relief only with respect to claims that were adjudicated on the merits in state court,” section 2254(a) “applies to any claim raised by a petitioner in custody pursuant to a judgment in state court — whether or not the state court adjudicated that claim on the merits — and permits a district court to grant habeas relief only if the petitioner is in custody ‘in violation of the Constitution or laws or treaties of the United States.’ ”) (emphasis in original) (quoting 28 U.S.C. section 2254(a)). In making this determination, the Court applies a de novo standard of review, “without the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“When a state court’s adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference AEDPA otherwise requires'.”); see Detrich v. Ryan, 677 F.3d 958, 982, reh’g en banc granted, 696 F.3d 1265 (9th Cir.2012) (Although Panetti’s analysis is addressed to section 2254(d)(1), the court “see[s] no reason why [its] approach should be different where a state court’s adjudication of a claim is dependent on an antecedent unreasonable determination of fact” under section 2254(d)(2).); Lopez, 906 F.Supp.2d at 56 (“[I]n conducting its analysis under § 2254(a), the court’s review is de novo.”) (citations omitted). E. Federal Evidentiary Hearings under Section 2254(e)(2) Federal district courts have discretion to conduct evidentiary hearings on section 2254 petitions subject to the constraints of section 2254(e)(2). Section 2254(e)(2) precludes evidentiary hearings where a petitioner has “failed to develop the factual basis of a claim in State court proceedings,” unless certain conditions are met. The Supreme Court has clarified that “a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (“Michael Williams ”); see Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir.2002) (“[A] petitioner cannot be said to have ‘failed to develop’ relevant facts if he diligently sought, but was denied, the opportunity to present evidence at each stage of his state proceedings.”) (citing Michael Williams, 529 U.S. at 437, 120 S.Ct. 1479). Whether a petitioner was diligent “depends upon whether the prisoner made a reasonable attempt, in light of information available at the time, to investigate and pursue claims in state court.” Crawford v. Head, 311 F.3d 1288, 1329 (11th Cir.2002) (internal quotation marks and citation omitted). At a minimum, “[diligence will require in the usual case that the prisoner ... seek an evidentiary hearing in state court in the manner prescribed by state law.” Michael Williams, 529 U.S. at 437, 120 S.Ct. 1479. Eleventh Circuit precedent further clarifies that when a petitioner has “requested an evidentiary hearing at every appropriate stage in state court and was denied a hearing on the claim entirely, the petitioner has satisfied the diligence requirement.” Pope, 680 F.3d at 1289 (collecting cases). Once a petitioner has established diligence, a district court must then consider “whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Thus, a federal court may only grant an evidentiary hearing if the petitioner has “proffer[ed] evidence that, if true, would entitle him to relief” Hill v. Moore, 175 F.3d 915, 922 (11th Cir.1999). The Eleventh Circuit has already determined that Mr. Pope is entitled to an evidentiary hearing as he “exercised diligence in attempting to develop the factual basis of his penalty-phase claims before the state court,” and presented allegations that are so “powerful” as to entitle him to habeas relief if they can be proven. Pope, 680 F.3d at 1289, 1291. F. The Role of Evidence Presented at a Hearing on Section 2254(a) Review As stated, once the district court has found the state court’s adjudication of a section 2254 claim is unreasonable based upon the state-court record, the court must then consider whether the petitioner is being held “in' violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Panetti, 551 U.S. at 953, 127 S.Ct. 2842. The question that remains is whether under Pinholster newly-presented evidence developed in a federal habeas hearing may be considered in making this determination under section 2254(a). ' In addressing this question, the court reasoned as follows in Lopez v. Miller: Pinholster does not preclude a court from relying upon evidence produced at an evidentiary hearing for the purposes of a de novo § 2254(a) determination. Pinholster’s analysis was directed entirely toward the language and context of § 2254(d) and the strangeness of “ask[ing] federal courts to analyze whether a state court’s adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.” 131 S.Ct. at 1399. Moreover, in rejecting the petitioner’s argument that the Court’s holding rendered § 2254(e)(2) superfluous, the Court noted that “[s]ection 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief.” Id. at 1401. Although the Court raised as example of that “continued force” the situation where a claim was “not adjudicated on the merits in state court,” id. (emphasis added), the same reasoning would logically apply to claims that have been adjudicated on the.merits by the state court but have surpassed § 2254(d), see id. at 1412 (Breyer, J., concurring) (“If the federal habeas court finds that the state-court decision fails (d)’s test ..., then an (e) hearing may be needed.”). After all, although § 2254(d) “focuses on what a state court knew and did,” § 2254(a) does not involve any review of a state court’s conclusions and does not contain “backward-looking language,” • id. at 1398-99; it applies simply because the petitioner is a state prisoner. There is nothing “strange” about relying upon new evidence to determine whether a state prisoner is currently “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 906 F.Supp.2d 42, 56 (E.D.N.Y.2012) (alterations and emphasis in original) (citing cases). The Court agrees with this analysis, and, in accordance with the reasoning of Pinholster, the language of the AEDPA, and the weight of post-Pinholster case law, see Miller, 906 F.Supp.2d at 56-57, concludes that evidence introduced at the 2012 Hearing may be considered in determining whether Mr. Pope is being held in violation of the Constitution or laws of the United States. III. THE RECORD The Court now turns to the record before the Florida Supreme Court at the time of Mr. Pope’s appeal and then to the record developed at the 2012 Hearing. A. The State Court Record As explained, following the 2012 Hearing, the Court ordered Mr. Pope to file a supplemental memorandum, instructing him to be “clear as to which portions of the record evidence in support of his Strickland ineffective claims regarding the penalty phase of his case were in fact before the state court at the time the Florida Supreme Court rendered its decision, with precise citations to the record itself.” (Jan. 22 Order 1). Mr. Pope has identified three specific areas that he’ argues show the Florida Supreme ' Court’s determination was unreasonable: (1) the allegations in his initial brief to- the Florida Supreme Court, (2) the record on direct appeal and (3) the postconviction deposition of his trial counsel. First, Mr. Pope asserts that he “alleged in his motion for relief in state court that trial counsel failed to present mitigation beyond the standard plea for mercy from his mother[;] ... that trial counsel ‘did little or nothing to develop evidence ,of such mitigating factors such as defendant’s psychological history, performance in the military, or his capacity for rehabilitation and[;] ... that trial counsel failed to object to prejudicial and improper comments by the prosecutor to the effect that Petitioner would prefer to receive the death penalty.” (Pope Mem., 9-11) (internal quotation marks and citations omitted). Second, Mr. Pope argues that the record on direct appeal shows “there was nothing presented at the penalty phase 'other than a paltry two pages of slapdash testimony from Petitioner’s mother (involving no more than three substantive questions from Mr. Eber), containing the following points of actual information: Petitioner returned from the war not the same and ‘disappointed [ ] in his country, the government,. ... people, [and]' in justice;’ a request for mercy and to ‘just look at him like he’d be your son;’ and his mother’s opinion that she ‘believe[s] he is innocent.’ That [was] the entirety of the mitigation case presented by Mr. Eber.” (Id. 9) (internal citations omitted; alterations in original). Mr. Pope also contends that the record shows “trial counsel put on no evidence beyond the short-lived testimony of Petitioner’s mother, and that trial counsel’s brief four pages of actual argument at the penalty phase contain absolutely no mention of military service, psychological or mental health issues, or capacity for rehabilitation. The closest thing to a reference to any of these issues is trial counsel’s vague and meaningless comment that Petitioner “went through some experiences that had a profound effect on him’ by ‘changing] his personality forever.’ (Id. 10) (internal citations omitted; alterations in original). Mr. Pope’s “citations to the record” conclude with him advising the Court that “while trial counsel requested a mental health expert by motion, the expert was only requested to assist with the guilt phase question of competency and was not requested to look into any of the glaringly obvious mental health issues arising from Petitioner’s wartime experience and drug abuse;” and that, without objection, “the prosecutor told the jury during the penalty phase that ‘Mr. Pope has announced that he would rather receive a death penalty than life imprisonment.’ ” (Id. at 10-11) (internal citations omitted). Mr. Pope also cites trial counsel’s deposition which “reflects that [sic] Eber stating that he did not recall, doing any investigation into mitigating factors, talking to Petitioner’s mother or any family members, finding out about Petitioner’s childhood, or employing an investigator.” (Id. at 10) (internal citations omitted). Mr. Eber testified at a video-taped deposition on August 20, 1987 regarding the penalty-phase investigation as follows: Q: Do you recall doing any investigation about any mitigating factors? A: Specifically, no. Q: Did you ever talk with his mother, for instance? A: I don’t recall. Q: Did you ever talk with any members of the family? A: I don’t recall. Q: Did you ever find our about his childhood? A: I do not recall. * * Q: Did you ever employ an investigator? A: No. Q: Why not? A: Well, who was going to pay for it? There was one particular situation in which I requested some funds .for an investigator from the Court, and I was told I could spend — I don’t know — a few hundred dollars. Q: Three hundred? A: I don’t remember specifically what was involved, other than — whatever it was became known to me, and I never employed the investigator, but I was not in a position to have carte blanche, to have an investigator going around talking to all those people? Q: Do you think that would have been helpful? A: I think that had I funds available to do it, I would have done it. Whether it would have been helpful or not, I couldn’t tell you. Q: Because you don’t know what those people had to say? A: That’s right. Q: Did you ever make any effort to contact the PD’s to see if they could have one of their investigators talk with anyone? A: I don’t believe so. Q:, Did you ever let the Court know that you needed an investigator, and you required more than three hundred dollars in order to do the things that you thought would be necessary? A: No, I don’t-think I did, and I may have been assuming something • that I shouldn’t have assumed, but it was my assumption or feeling that those funds were not available anyway. (State Court Record (“State Record”), Ex. D, Vol. II of III, 144, 154-55 [ECF No. 40]) (emphasis added). Mr. Pope’s characterizations and citations are generally accurate. The Court’s focus is not limited solely to what is in the record but rather to what is not in the record. The penalty phase of Mr. Pope’s trial began on February 25, 1982 at 7:47 p.m., immediately following the guilty verdict. (See id. Ex. A, Vol. VI of VII, 98 [ECF No. 34]). The entire penalty phase proceeding encompasses 32 pages of transcript: one page of Mrs. Pope’s plea for mercy; three pages of Mr. Eber’s argument; and the remaining 28 pages of the State’s closing argument, the court’s instructions to the jury, the jury’s recommendation and the polling of jurors after their vote. (See id.). The subsequent Spencer hearing was even more abbreviated. It encompasses less than 25 pages of transcript. Mr. Eber’s words appear on 6 pages of transcript. For the first time, Mr. Eber raised Mr. Pope’s military service and his Post Traumatic Stress Disorder (“PTSD”) to the judge. (See id. at 138). The Florida Supreme Court declined to hold an evidentiary hearing to ascertain whether or not this was a strategic or purposeful move on Mr. Eber’s part. It was on this record that the Florida Supreme Court made its determination that Mr. Pope was “conclusively” entitled to no relief. B. 2012 Evidentiary Hearing 1. Mr. Pope’s Witnesses At the 2012 Hearing, Mr. Pope presented testimony from neuropsychologist Dr. David Price, psychologist Dr. William Weitz, mitigation specialist Steven Gustat, and Mr. Pope’s trial attorney, Scott Eber. a. Dr. David Price Dr. David Price has extensive experience as a clinical and forensic psychologist and neuropsychologist. (See T. Vol. 1 at 1-5 [ECF No. 181]). He has received specialist training, has extensive experience working with sufferers of PTSD, including combat PTSD, and has published extensively on PTSD. (See id. at 1-6). Dr. Price evaluated Mr. Pope in 1991 at the request of Mr. Pope’s then-posteonviction counsel, Alan Wagner, paying particular attention to disorders that could serve as mitigating considerations. (See id. at 9-11). Dr. Price’s evaluation consisted of a five-and-a-half-hour, face-to-face interview with Mr. Pope, a consultation with psychiatrist Alec Whyte, who had also evaluated Mr. Pope, and a review of records. As a result of his comprehensive evaluation, Dr. Price uncovered facts surrounding Mr. Pope’s physically and emotionally impoverished childhood: Mr. Pope was born in western North Carolina. He came from a large family. He was the youngest of nine children. His family were [sic] cotton mill workers, textile mill workers. I believe only one of the nine children completed high school. * * * [T]he family was preoccupied with survival, if you look at how they lived. In clothing nine children, the daughters wore flour sackcloth dresses ... the mother made. They had hand-me-downs. * * * They did other things, such as raise garden and raise livestock to feed the family. They initially didn’t have indoor plumbing. They [ ] lived in a house and [ ] took baths outside and had an 'outside bathroom. (Id. at 12-13). In that impoverished environment, Mr. Pope’s childhood was characterized by a lack of nurturing: [T]his family was preoccupied with survival. There wasn’t a lot of physical affection. People didn’t tell — it wasn’t like the “Waltons,” people didn’t tell everybody good night and kiss them good night and tuck them in. The parents weren’t physically affectionate, certainly in front of the children. They were religious. As many are in that area, they were Southern Baptist and were pretty strict Southern Baptist. They lived .by the Bible.. It was a firm, fundamental kind of family to grow up in. There was corporal punishment. And the instrument of choice was a razor strap applied to the buttocks. (Id. at, 14-15). Following this difficult childhood, Mr. Pope enlisted in the Marines at the age of 18. (See id. at 15). Despite suffering an injury in which he lost part of one finger, Mr. Pope declined the offer of a medical discharge and was sent to Vietnam as a rifleman. (See id. at 16). In Vietnam, Mr. Pope was first involved in ,search-and-destroy missions, including two major counterinsurgency operations in Quang Tri Province — Operations Purple Martin and Herkimer Mountain — before being transferred to the rear supply, where he was subjected to regular mortar attacks. (See id. at 16-17). Dr. Price made clear that Mr. Pope was involved in heavy combat (see id.), and he chronicled the toll this heavy combat had on Mr. Pope. Mr. Pope turned to the use of illicit drugs in Vietnam and afterwards, involving first marijuana and then LSD and cocaine, which Dr. Price described as “not uncommon with the troops back then.” (Id. at 17-20). Dr. Price explained that when Mr. Pope returned from the bloody combat he faced in Vietnam, he was not greeted kindly or given support to deal with the psychological trauma he had experienced: You know, one of the differences between when we brought our troops back from World War II and Korea, we tended to bring units back, and so they had support groups. Particularly World War II, they would come by shipside for several days or weeks and have the support of their comrades in arms. In Vietnam they got plane rides home, often solitary, and didn’t have that' support. Coming back just stateside, it was an unpopular war. People that had fought there were exposed to people that criticized them or made fun of them.... (Id. at 17-18). Returning to that painful environment, personal relationships were difficult for Mr. Pope. Mr. Pope’s post-Vietnam relationships were “somewhat sporadic and sort of non intimate.” (Id.). Dr. Price described the decline in Mr. Pope’s functioning during the period following his return form Vietnam as a “prodromal period” before developing a full blown mental disorder: [A] prodromal period is when a person starts to decline before they get the full-blown mental 1 disorder. And you can see a decline in their functioning. And what we see in Mr. Pope during that period in the '70s was a decline in his functioning and increase in drug usage and other problems that he had. So you can see the decline prior to his marriage. And after his marriage that decline quickens — after his divorce that decline quickens. [H]e ended up selling drugs to support his drug habit. And one of the things that ultimately led is, hé started using cocaine, was it led to decline, probably, in his best job at a Buick car dealership, and it was his cocaine dependency. He went from using cocaine to using incredible amounts of cocaine. I’ve seen — I can’t tell you how many patients I’ve seen in my career. This is the only case I’ve seen where someone would line up a line of cocaine on a six-foot mirror and do the whole thing themselves [sic]. He took a significantly large amount of cocaine. (Id. at 19-20). In addition to Mr. Pope’s drug use and difficulty with personal relationships, Mr. Pope began to exhibit several bizarre behaviors that might suggest PTSD: And one of the things that gets lost when you look at Mr. Pope is, ... like a number of veterans that have significant problems, they end up being homeless. You know, Mr. Pope might have had a home base in North Carolina and certainly had time in Florida, but he never had a place of his own. He lived in friends’ houses like the house at Lake Wylie, that became a base of operations for hi m, was somebody else’s. When'he came down to Florida, he stayed in a hotel or he stayed in an attorney’s apartment. He was, literally, the loss of one vehicle away' from being homeless and on the streets. And that’s real common with these people of drug dependency and not being able to maintain a job. He started showing problems of post-traumatic stress disorder in some of the behavior, that he would clearly show and has been reported by others around the Lake Wylie home. ... Lake Wylie is a lake in South Carolina that has a lot of rural land around it. And this particular home, as described, was sort of in the woods, isolated from others. And he started having dissociative experiences, and he started showing some paranoia from the past. He developed a tunnel system around and under the house at Lake Wylie, very similar to the tunnels that they had to deal with North Vietnamese and the North Vietnamese bunker-type system. He’d have these dissociative experiences where he was always coming back. He was always fascinated with guns and, I think, at one point reported he had 43 guns. [B]eing armed is a significant thing for vets. I’ve evaluated a number of vets home from Iraq and Kuwaiti [sic]. And they’ll report when they’re over in combat zones and wearing body armor and carrying their guns, they feel safe and' not necessarily show full-blown .PTSD. They come back to this country and they can’t drive around with .50 caliber machine guns on their car, wearing full Kevlar and carrying guns, then they start showing significant signs of anxiety and hypervigilance and things that we associate with posttraumatic stress disorder. He started doing some bizarre things. Like he would dress down in fatigues and paint his face with camouflage and take a weapon and go out in the woods on a search-and-destroy mission, and could be gone anywhere from hours to days ... He had the tunnel system -as an escape. People report that he had the entrances to the house booby trapped. And if you went there to visit him, you had to call him ahead of time so he could guide you to the home. He, sort of, invented, like, he has his house back in the jungle and he’s doing these things for self-protéction. (Id. at 21-23). Dr. Price applied the diagnostic criteria from standard diagnostic manuals, both the DSM-III and the DASM-III-R, in forming his opinion as to Mr. Pope’s mental condition, because the DSM-III-R was current at the time of hiá- evaluation in 1991- but the DSM-III was the applicable standard at the time of'Mr. Pope’s trial in 1982. (See- id..at 28). Dr. Price testified that Mr. Pope, met the ■criteria' for PTSD under both definitions without malingering his symptoms. (See id. at 30-31).- The MMPI test administered by Dr. Price resulted in a finding that Mr. Pope did not malinger during his evaluation (see Def. Ex. A), and Mr. Pope’s average score on the WAIS-R intelligence test supported that conclusion. In addition to the diagnosis of PTSD, Dr. Price concluded that in 1981 Mr. Pope would have met the diagnostic criteria for cocaine dependence; sedative, hypnotic or anxiolytic dependence; and organic delusional disorder or cocaine delusional disorder. (See T. Vol. 1 at 34). Dr. Price testified as to the effect of* cocaine on someone already suffering from PTSD: ... [Djual diagnosis patients are very problematic. And most individuals that we see with PTSD will oftentimes have another substance abuse problem, almost like it’s self-medication or — the combat veterans learn to do it in — in combat as a way of reducing stress. And, you know, the thing about cocaine, it’s like taking a stimulant continuously. And we can see people that actually develop almost a schizophrenia-type thing with habitual use of stimulate-type things. The thing I want to mention about cocaine is it, you know, you take somebody that has a significant mental disorder and then you start putting toxins in them that affect thinking, planning, .comprehension, inhibition of behavior, impulsiveness, and.things of that nature and it exacerbates it. And you get an outcome where an individual can act very erratically and unpredictably. And so the other problem is when you do something like cocaine, you almost get manic. You don’t sleep. You look for sensory-stimulating things, such as people have heightened libidos and things of that nature. The lack of sleep then creates problems. People that do cocaine can dev