McLaughlin v. Steele (173 F. Supp. 3d 855, 2016)

MEMORANDUM AND ORDER

CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

Petitioner Scott McLaughlin is currently on death row at the Potosi Correctional Center in Mineral Point, Missouri, for the murder of Beverly Guenther. Petitioner was convicted by a jury in St. Louis County of first-degree murder, forcible rape, and armed criminal action. The jury found him not guilty of a second count of armed criminal action.- After the jury deadlocked on punishment, the trial judge sentenced Petitioner to death for the murder. The judge also imposed consecutive life sentences for the rape and armed criminal action convictions.

This action is before me now on Petitioner’s request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Two of Petitioner’s claims warrant relief. First, in what is referred to here as Petitioner’s Claim 1A, petitioner alleges that defense counsel was ineffective for failing to conduct an adequate investigation into a psychiatrist he intended to call as an expert witness during the penalty, phase of the case. Because of the inadequate investigation, counsel decided at the last moment not to call the psychiatrist, and so did not present any medical evidencé on the statutory mitigating factors of extreme emotional disturbance and that petitioner lacked the capacity to conform his conduct to the requirements of the law. Post-conviction counsel failed to raise this claim, and so it was not considered on the merits by the Missouri courts. But the evidence shows that postconviction counsel knew of this issue and its significance well in advance of the relevant deadline, planned to address it in his postconviction motion, and then inexplicably failed to raise it in accordance with Missouri’s postconviction procedure. The omission prejudiced Petitioner, who to date has received no. merits adjudication of the underlying claim. Post-conviction counsel’s error constituted inef: fective assistance of counsel, which — under Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) — requires this court’s review of the underlying claim. In conducting that review, I find that trial counsel’s cursory investigation of psychiatrist Dr. Caruso was such a grievous oversight that it both failed to comport with professionally prevailing norms and also prejudiced Petitioner at sentencing. These errors together violated Petitioner’s Sixth Amendment right to counsel and require resentencing.

Second, because of the wording of the special verdict form used in this case, the court could not have known whether the jury concluded that the mitigating circumstances surrounding the murder outweighed the aggravating circumstances. That weighing is a finding of fact that Missouri state law requires and the Sixth Amendment reserves for a jury. The judge’s imposition of a death sentence without a jury finding on this mandatory factual predicate was a violation of the Sixth, Eighth, and Fourteenth Amendments as described in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). The Supreme Court of Missouri’s affirmation of Petitioner’s death sentence was based on an objectively unreasonable application of Ring and was contrary to Ring and Mills. This error, raised in Petitioner’s- Claim 3, also requires resentenc-ing.

Petitioner raises 10 other grounds for relief. These remaining claims and sub-claims are procedurally barred or fail on the merits.

I. FACTUAL BACKGROUND

The following recitation of facts comes from the opinion of the Supreme Court, of Missouri affirming the conviction and sentence in this case:

The evidence at trial, considered in the light most favorable to the jury’s verdict, shows that Scott McLaughlin and Beverly Guenther began a tempestuous relationship shortly after they met in 2002. For several months, the two lived together, but their cohabitation was marked by break-ups that ■ were sometimes so serious that Ms. Guenther would obtain a restraining order against Mr. McLaughlin, In the spring of 2003, they ended their amorous relationship, but continued to see each other on social occasions. Throughout their relationship, Mr. McLaughlin frequently called and visited Ms. Guenther at her place of employment.

On October 27, 2003, Mr. McLaughlin was arrested and charged with burglarizing Ms. Guenther’s home. He claimed that he was reclaiming things that he left at her house after they stopped living together. He was arraigned on the burglary charge on November 18, 2003. Based on this incident, Ms. Guenther sought and received an order of protection against Mr. McLaughlin. On November 20, 2003, while the protective order was still in effect, he drove to Ms. Guenther’s place of employment and waited for her to get off of work. When she emerged from the office, he spoke with her as she walked towards her truck.

The state presented expert testimony that the blood spatters and other physical evidence in the parking lot and truck suggested that Mr. McLaughlin- at that point forced Ms. Guenther to the ground and raped her, then stabbed her repeatedly, causing a fan-shaped blood stain oh the parking lot, and then dragged her body to his car and placed it in the hatchback. Mr. McLaughlin then drove to the river with the intention of disposing of her body. He tried to deposit her body in the river, but ran into some thick underbrush along the bank and left her corpse there. He then returned to sleep in his parked car because one of the tires had become flat when he stopped to dispose of the body.

The next day, Mr. McLaughlin cleaned out the inside of his car with bleach. As the day went on, he became increasingly hyperactive and nervous. Eventually, Mr. McLaughlin asked a friend to take him to a hospital in St. Charles so that he could get some medication for his mental disorder. The police were informed that Mr. McLaughlin was going to be at the hospital, and he was arrested when he arrived.

State v. McLaughlin, 265 S.W.3d 257, 260 (Mo. banc 2008), cert. denied, 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009).

II. PROCEDURAL BACKGROUND

Based on his actions described above, Petitioner was convicted by a jury of first-degree murder, armed criminal action, and forcible rape. The jury deadlocked partway through Missouri’s multistep capital sentencing process and completed a special verdict form. The trial judge then imposed a sentence of death for the murder and consecutive life sentences for the rape and armed criminal action. Petitioner appealed certain aspects of his convictions and sentences. The Supreme Court of Missouri rejected Petitioner’s direct appeal in August 2008 and denied rehearing the following month. Id.

Petitioner then brought a motion in the Circuit Court of St. Louis County, Missouri, for postconviction relief under Mo. Sup. Ct. R. 29.15. The motion court granted in part and denied in part a motion for an evidentiary hearing on Petitioner’s pbstconviction claims. After a four-day hearing on Several of Petitioner’s claims, the motion .court denied in full the Rule 2915 motion. The Supreme Court of Missouri affirmed the denial and again denied rehearing. McLaughlin v. State, 378 S.W.3d 328 (Mo. banc 2012).

Petitioner then filed this federal petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Ill, GROUNDS RAISED

Petitioner seeks habeas relief on the following grounds:

1. Defense counsel was constitutionally ineffective at the penalty phase of trial for:

A. failing to conduct an adequate investigation into Dr. Caruso, and as a result, failing to present testimony from a psychiatrist (Claim 1A),

B. failing to investigate, retain, and present expert testimony from a neuropsychologist that Petitioner suffered from brain damage and other neuropsychological impairments at the time the murder was committed (Claim IB), and

C. failing to, investigate and present available school, medical, and jail records regarding Petitioner’s mental illnesses and intellectual impairments (Claim- 1C).

2. The trial court violated Petitioner’s Eighth and Fourteenth Amendment rights by instructing the jury they could not consider Petitioner’s school, medical, and jail records as substantive mitigating evidence during the penalty phase of trial. (Claim 2A), and his counsel was constitutionally ineffective for failing to object to these instructions (Claim 2B).

3. The trial court’s imposition of a death sentence violated ' Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights because Missouri’s sentencing statute and jury instructions permitted the trial court, rather than the jury, to make findings of fact required to render Petitioner eligible for the death penalty.

4. Defense counsel was ineffective for failing to investigate and present evidence that Petitioner’s brother raped the victim.

5. The trial court improperly admitted hearsay statements of the victim, which violated Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights.

6. The prosecutor’s penalty phase closing argument was constitutionally improper because he compared the jurors to soldiers in wartime, expressed personal opinions, and referred to facts not in evidence (Claim 6A), and defense counsel was ineffective for failing to object (Claim 6B).

7. The trial court violated Petitioner’s Eighth and Fourteenth Amendment rights by refusing to submit to the jury the lesser included offense of felony murder.

8. The “depravity of mind” aggravating circumstance upon which the State relied in seeking Petitioner’s death sentence is impermissibly vague and excessively broad under the Eighth and Fourteenth Amendments.

9. Victim impact evidence presented' at the penalty phase of trial was so unduly prejudicial as to violate Petitioner’s due process rights under the Eighth and Fourteenth Amendments.

10. There was legally insufficient evidence to support Petitioner’s rape conviction.,

11.’ The trial court’s refusal to use language required by Mo. Rev. Stat. § 565.062 for instructing the jury at a capital sentencing violated Petitioner’s Sixth, Eighth, and Fourteénth Amendment rights.

12. The trial court violated Petitioner’s Sixth, Eighth and Fourteenth Amendment rights by excluding as mitigating evidence testimony from Petitioner’s cousin concerning incriminating hearsay statements that Petitioner’s brother had made to her.

IV. STANDARD OF REVIEW

Most of Petitioner’s claims are governed by the standard of review set out in 28 U.S.C. § 2254(d). Under this section, if a state court has adjudicated a claim on its merits, a federal court may not grant ha-beas relief unless the state court adjudication:

(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.

This standard is deliberately “difficult to meet.” Metrish v. Lancaster, — U.S. -, 133 S.Ct. 1781, 1786, 185 L.Ed.2d 988 (2013). Before obtaining relief, a prisoner must show that the state court decision under review was “so lacking in justification” that there is “no possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011).

A federal habeas court applies the standard' of review contained in Section 2254(d) to the “last reasoned opinion” of the state courts. See Winfield v. Roper, 460 F.3d 1026, 1037-38 (8th Cir.2006) (where 29.15 motion court denied claim as untimely and Missouri Supreme Court did not address claim at all, motion court’s denial was the “last reasoned opinion” and provided an independent and adequate state ground barring consideration unless petitioner demonstrated cause and prejudice or miscarriage of justice).

A. Subsection 2254(d)(1)

The “clearly established Federal law” described in this subsection includes only holdings, not dicta, from the United States Supreme Court. Howes v. Fields, — U.S. -, 132 S.Ct. 1181, 1187, 182 L.Ed.2d 17 (2012). Holdings sometimes announce guiding principles, and courts need not “wait for some nearly identical factual pattern before a legal rule must be applied.” Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). The more general the holding, the broader the range of reasonable applications thereof. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Nonetheless, “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S.Ct. 2842.

Federal law is “clearly established” if Supreme Court precedent has supplied a “clear answer” to the question presented, and that answer may be derived from multiple cases. Wright v. Van Patten, 552 U.S. 120, 126, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008); see also Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (state court determination that defense counsel had- been effective was unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) as applied to failure-to-investigate claims in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)); Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (relief would be granted only if state court decision was contrary to or unreasonably applied “this Court’s applicable holdings”); Abdul-Kabir v. Quarterman, 550 U.S. 233, 257-58, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007) (relief granted because state court decision was contrary to and unreasonably applied Supreme Court’s “most relevant precedents”); Tyler v. Cain, 533 U.S. 656, 666 (Court) and 672 (Breyer, J., dissenting), 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001).

The “contrary to” and “unreasonable application of’ standards also described in this subsection are distinct. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is “contrary to” clearly established federal law if it “arrives at a conclusion opposite to that reached by the Supreme Court on a question of -law” or “arrives at a result opposite to one reached by the Supreme Court on materially indistinguishable facts.” Addai v. Schmalenberger, 776 F.3d 528, 532 (8th Cir.2015).

A state court’s decision is “an unreasonable application of’ clearly established federal law only if it was “objectively unreasonable, not merely wrong.” White v. Woodall, — U.S.-, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (noting that “clear error” is insufficient). Under the “unreasonable application” clause, “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle .,. but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529, U.S. at 413, 120 S.Ct. 1495. A state court decision may be both “contrary to” and an “unreasonable application of’ clearly established federal law. Abdul-Kabir, 550 U.S. at 258, 127 S.Ct. 1654.

B. Subsection 2254(d)(2)

A state court’s' decision is based on “an unreasonable determination of the facts-in light of the evidence presented in state court proceedings,” as required to grant habeas relief under subsection (2), only if the petitioner “shows, by clear and convincing evidence that the state -court’s presumptively correct factual findings do not enjoy support in the record.” Lomholt v. Iowa, 327 F.3d 748, 752 (8th Cir.2003) (citing 28 U.S.C. § 2254(e)(1) (clear and convincing evidence standard)); see also Barnes v. Hammer, 765 F.3d 810, 814 (8th Cir.2014).

Like under the standard articulated in subsection (1), a federal habeas court may not grant relief under subsection (2) just because it “would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010). Instead, a petitioner must show that the determination of facts was “objectively unreasonable.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Section 2254(e)(1) standard is “demanding but not insatiable”).

V. DISCUSSION

A. Claim 1A: Failure to investigate Dr. Caruso

In his first claim, Petitioner argues that his trial counsel was constitutionally ineffective for “failing to investigate, retain, and present the testimony of a qualified psychiatrist” at the sentencing phase of his trial. Specifically, he claims that trial counsel’s' investigation of psychiatrist and mitigation expert Dr. Keith Caruso was constitutionally inadequate. Trial counsel had retained Dr. Caruso to examine Petitioner and testify about his mental health during the penalty phase of Petitioner’s trial. While the jury was deliberating in the guilt phase, Dr. Caruso informed counsel of professional misconduct during medical school that might have subjected him to serious impeachment. Based on this information, counsel decided not to call him to testify. That left Petitioner with no mitigation evidence from a mental-health professional who had examined him clinically as an adult or who could testify about his mental state at the time of the murder. Petitioner asserts that counsel’s errors violated his Sixth Amendment right to counsel as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.t. 2052, 80 L.Ed.2d 674 (1984) and applied in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

i. Strickland standard

Under Strickland, a petitioner first must identify specific acts or omissions made by Counsel that “were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. Second, a" petitioner must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052; see also Pryor v. Norris, 103 F.3d 710, 713 (8th Cir.1997) (petitioner must satisfy both prongs). For ‘ alleged errors during the penalty phase of a capital trial, Petitioner “must demonstrate that there is a reasonable probability that absent counsel’s inadequate representation, the’ jury would not have sentenced him to death.” Winfield v. Roper, 460 F.3d 1026, 1033 (8th Cir.2006); see also Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (same standard applies where sentence is imposed by judge). For Strickland purposes, a “reasonable probability” is “one ‘sufficient to undermine confidence in the outcome.”’ Id. (quoting Wiggins, 539 U.S. at 534, 123 S.Ct. 2527)).

In Missouri, Strickland claims are not cognizable on direct appeal. Instead, such a claim may be brought for the first time in a collateral postconviction proceeding under Mo. Sup. Ct. R. 29.15.

ii. Cause and prejudice

Petitioner failed to raise this claim that counsel was ineffective’in his amended Rule 29.15 motion, which was the first opportunity he had to do so in state court; He tried to raise it on appeal, but the Missouri Supreme Court declined to consider it, McLaughlin v. State, 378 S.W.3d at 340 (McLaughlin’s “allegations regarding the requisite investigation into Dr. Caruso are not preserved for appeal and will not be addressed”); see also State v. Clay, 975 S.W.2d 121, 141 (Mo. banc 1998) (issues not raised in Rule 29.15 motion are waived on appeal).

The Missouri Supreme Court’s rejection of the claim for failure to follow a state procedural rule constitutes an “independent and adequate” state ground that would normally preclude review of the claim by a federal habeas court. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A habeas petitioner can only overcome this procedural bar by demonstrating “cause for the default and actual prejudice as a result of the alleged violation of federal law.” Id.

“Cause” must be “something external to the petitioner, something that cannot fairly be attributed to him.” Id. at 753, 111 S.Ct. 2546 (emphasis in original). The Supreme Court qualified this definition in Martinez v. Ryan, 132 S.Ct. at 1320. In that case, the Court held for the first time that a petitioner can establish cause by demonstrating that his initialreviéw postconvicti’on counsel was constitutionally ineffective for failing to raise a “substantial” claim of ineffective trial counsel.

A substantial underlying claim is one that has “some merit.” Id. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), and thereby incorporating standard for issuing a. certificate for appealability). “Substantial,” in other words, means “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029.

Relying on Martinez, Petitioner requested an evidentiary hearing before this court on the question of whether his post-conviction initial-review counsel’s failure to raise. the Dr. Caruso claim constituted “cause.” Respondent did not oppose the motion. I determined that the underlying ineffeetive-trial-counsel claim was substantial because trial counsel had conducted no investigation whatsoever into Dr. Caruso’s credentials and had, as a result of excluding him at a late hour, presented no testimony from any mental health practitioner who could comment on Petitioner’s psychological state at the time of the murder. Therefore, I granted Petitioner’s request and held a hearing on May 11, 2015. [CM/ECF Doc. No. 57.] See Sasser v. Hobbs, 735 F.3d 833, 853-54 (8th Cir.2013) (finding the procedural default of four potentially meritorious ineffective-trial-counsel claims excused under Martinez and reversing district court denial of request for evidentiary hearing on those claims).

Hi. Ineffective assistance of postconviction counsel

At the hearing, Petitioner presented testimony from five witnesses: trial co-counsel Robert Steele; 'postconviction motion attorneys Pete Carter and Valerie Leftwich; postconviction motion mitigation specialist Cindy Malone; and postconviction appellate counsel Melinda Pendergraph. These witnesses all worked for the Missouri Public Defender System and were responsible for Petitioner’s Rule 29.15 motion.

Although the witnesses had represented numerous capital defendants and their rep-reservation of Petitioner had begun more than seven years ago, they all testified emphatically that they remembered the Dr. Caruso situation. One reason was that Petitioner’s co-trial counsel, David Kenyon, had told the court'on the record that he was worried that he had been ineffective. The postconviction team testified that, when they are first assigned a case, they read the transcript first. As such, they learned of this potential claim almost immediately after receiving Petitioner’s case:

Respondent’s attorney: What was your reaction when you read [the exchange between Mr. Kenyon and the Court]? Ms. Malone: Well, when I read it, I’m like, ‘Well, there you go. He’s handing it to you on a silver platter.” One of our issues.

(Evid/ Hrg. Tr. 58:3-6 [CM/ECF Doc. 66]; see also Pendergraph testimony, Hrg. Tr. 84:2-6 (“It’s not very often we have trial counsel admit they screwed up at trial.”)).

The postconviction witnesses testified that it is their usual practice to divide the Claims to be presented in a Rule 29.15 motion among the various lawyers on the team. They had discussed the Dr. Caruso claim on multiple occasions, both formal and informal, and agreed that Mr. Carter would brief that claim. 'On the date the motion was due,' Ms. Leftwich took Mr. Carter’s claims and her own and appended them into a single document, but she did not recall reading his claims. (Evid. Hrg. Tr. 70:13-71:10.) No one recalled whether Mr. Carter had provided a draft beforehand, but Ms. Malone and Ms. Leftwich agreed he sometimes did not do so. (Evid. Hrg. Tr. 56:16-24, 69:25-70:6.) It was undisputed that no one caught the omission until after the brief had been submitted.

Ms. Leftwich, Ms. Malone, and Ms. Pen-dergraph all testified that they realized the claim had been omitted before the Rule 29.15 evidentiary hearing, discussed it amongst themselves, and were not pleased. They had allocated resources to hire a psychiatrist to evaluate Petitioner and present testimony at a postconviction hearing, and they believed that testimony had no value without a claim based on the failure to investigate Dr. Caruso and the resulting failure to call a psychiatrist during mitigation. Counsel attempted to remedy the oversight by eliciting testimony (at the 29.15 hearing) from Mr. Kenyon about Dr. Caruso, and later, unsuccessfully arguing to the Supreme Court of Missouri that the claim had been sufficiently raised. Ms. Leftwich testified that it was a “major omission”; Ms. Pendergraph stated that she had been “very shocked.” She testified that she had complained to Mr. Carter’s supervisor. (Evid. Hrg, Tr; 85:3-15.) Ms. Malone testified that she was “really upset” because the team “had discussed this over and over and over again.” (Evid. Hrg. Tr. 55:1-4-.) ■ •

Mr. Carter, for his part,' agreed that the Dr. Caruso claim had been his responsibility. He testified credibly that he had intended to raise it, but he gave no reason he had not done so:

Petitioner’s .attorney: Have you had the opportunity to review the amended post-conviction petition [for this hearing]?

Mr. Carter: I have.

Q: Is — where in there is Dr. Caruso mentioned?

A: No, not — not specifically that I could see.

Q: Okay. Is there any specific allegation that trial counsel were ineffective for failing to investigate the credentials of Dr, Caruso?

A: No, there’s not.

Q: Why wasn’t it raised if it .was a spotted and identified issue?

A: I — I’m sorry. I have no idea why it wasn’t raised that way. I — I—I’ve—I have no reason to know. I mean I don’t know. I honestly don’t know,

Q: Okay. And just so we’re clear, there’s not a tactical reason for not raising it?

A: I’m sorry?

Q: Is there a tactical reason for not raising this point?

A: Oh, no, no. None.,

Q: Okay. "When did you realize that the claim had been missed?

A: When you came to see me and you came to talk to me prior to my testimony here and showed me the motion and I realized that I had not included the key language.

(Evid. Hrg. Tr. 21:24-22:22.)

Mr. Carter testified that he did not receive a copy of the motion court’s decision when it came down and had not sought out a copy himself. He stated that he was aware that the Missouri courts strictly enforce the state’s procedural rules, including the particular formulation of how claims are worded. See Storey v. State, 175 S.W.3d 116, 126 (Mo. banc 2005) (citing Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978)); (see also Evid. Hrg. Tr. 13:3-23.). His office -knew the state insists upon rigorous adherence to those rules by its adversaries at the postconviction stage, (Evid. Hrg. Tr. 77:17-78:4.) Yet he did not present the claim in accordance with state procedure.

Had Mr, Carter had any reasonable justification for omitting the claim, this Court would apply the “strong presumption” that his decision was reasonable. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. But he gave no reason whatsoever. Indeed, it is difficult to imagine what tactical justification there could be for bringing nine other postconviction claims alleging ineffective assistance of trial counsel and not bringing the one claim about which trial counsel, had expressed concern to. the trial court.

Not all mistakes by postconviction counsel have constitutional .significance. But here, testimony from his colleagues, and from Mr. Carter himself, demonstrate that his abandonment of the Dr. Caruso claim fell below prevailing professional norms. See also Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir.2013), cert. denied in Brown v. Shaw, - U.S. ——, 134 S.Ct. 2818, 189 L.Ed.2d 785 (2014) (appellate counsel’s performance fell below prevailing norms where he abandoned a norifrivolous claim that was both “obvious” and “clearly stronger” than claim he actually presented); ABA Standards for the Appointment and Performance of Counsel in Death Penalty Cases (2003), Guideline 10.15.1(C) and accompanying commentary (postconviction counsel should seek to litigate alb “arguably meritorious” issues; commentary specifically advises postconviction counsel that a trial record may be incomplete because the “trial attorney did not conduct an adequate investigation in the first instance”). Postconviction counsel’s omission was unintentional and unreasoned, and it did not comport with prevailing norms.

Having found that the underlying claim was “substantial” and that postconviction counsel’s failure to raise it establishes “cause” for the default, this court must determine whether postconviction’s deficient performance caused Petitioner “actual prejudice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546, As other district courts have noted, Coleman/Martinez prejudice and Strickland prejudice may technically be two separate inquiries, but they overlap. They are — under some circumstances — redundant. See Duncan v. Carpenter, No. 3:88-00992, 2015 WL 1003611, at *42 (M.D.Tenn. Mar. 4, 2015); Gray v. Davis, No. 1:11CV630, 2014 WL 2002132, at *4 n. 4 (E.D.Va. May 13, 2014).

At least in this case — where post-conviction counsel’s deficiency was his complete failure to present a substantial claim — the two types of prejudice are inexorably related: .if there is a reasonable probability that the sentencing would have gone differently had trial counsel been constitutionally adequate, there is necessarily "a reasonable probability' that the state court would have so found had post-conviction counsel properly presented that underlying claim; See Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (state supreme court, like all lower courts, must abide by United States Supreme Court’s interpretation of constitutional rights). Therefore, for the reasons given below, I conclude there is a reasonable probability that Petitioner would have succeeded on this claim had he raised it to the state courts in his amended Rule 29.15 motion.

iv. Trial counsel’s failure to investigate Dr. Caruso

Martinez held that a petitioner’s procedural default :of a substantial ineffective-trial-counsel claim on state-law grounds may be excused for cause if that petitioner’s postconviction counsel was himself ineffective. But postconviction counsel’s inadequacy does not itself entitle that petitioner to relief, only to i-eview of the underlying claim. That review is to be conducted de novo. Dickens v. Ryan, 740 F.3d 1302, 1321-22 (9th Cir.2014); see also Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (where state denies Strickland relief on performance prong and therefore does hot reach prejudice prong, habeas court reviews prejudice de novo).

David Kenyon, one of the two attorneys who represented Petitioner at,trial, testified a,t the Rule 29.15 hearing before the motion court. He stated that he. had. intended to call psychiatrist Caruso to. testify during the penalty phase of Petitioner’s trial. According to Dr. Caruso’s reports, Mr. Kenyon,, had engaged Dr. Caruso .to evaluate Petitioner for competency. to stand trial and for possible mitigating factors. (See CM7ECF Doc. No. 51-2.)

Dr. Caruso had interviewed Petitioner at least twice in September 2005 for a total of at least seven hours. In reports he gave to Mr. Kenyon, he opined that Petitioner had been suffering from numerous psychiatric problems when he murdered Ms. Guenther. Dr. Caruso diagnosed recurrent and severe major depressive disorder with psychotic features, ADHD, alcohol dependence, alcohol intoxication, “rule out” bipolar-disorder, borderline personality disorder, and antisocial personality disorder. He opined that Petitioner had been under the influence of extreme mental or emotional disturbance at the time of the murder and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law had been substantially impaired at that time. Like other experts, Dr. Caruso also described the substantial trauma and abuse Petitioner had borne during childhood. Dr. Caruso noted that Petitioner’s conditions had improved with medication, which Petitioner willingly took. (Id.)

Mr. Kenyon had hired Dr. Caruso after a mitigation specialist on his team had seen Dr. Caruso speak at a continuing legal education program that focuses on the death penalty. (29.15 Hearing Tr. 582:21-583:25.) Mr. Kenyon testified that he did no independent investigation of Dr. Caruso beyond reading his curriculum vitae. Mr. Steele, Petitioner’s other trial counsel, testified that Dr. Caruso had been hired- by someone else so Mr, Steele did not investigate his credentials either. (29.15 Hearing Tr. 553:15-554:10, Evid. Hrg. Tr. 41:21-25.)

At thé Rule 29.15 hearing, Mr. Kenyon explained why trial counsel ultimately decided against calling Dr. Caruso at trial:

Q: Can you tell us why he did not testify at trial?

A: The evening before he was supposed to testify, I received a very late night email from him. It was while the jury was still deliberating the guilty phase, and I was checking my e-mail from a computer in the St. Louis County [Pjublic [Defender’s Office, and I saw an e-mail that he had sent me that night telling, me that there was one little detail about his background that he hadn’t really mentioned to us before, but in the interest of full disclosure, he thought that he probably should.

And he told us or he explained in the e-mail that when he was in medical school, he had been disciplined for altering, fabricating, and destroying primary laboratory data in some type of experiment that he was working on for the National Institute of Mental Health. And he provided me with questions to ask him to rehabilitate him in the event the State was aware of this. ■

Q: To your knowledge, before you see this e-mail, to your knowledge, was the State aware of this problem?

A: To my knowledge, ho.

(29.15 Tr. 585:25-586:22.)'

Mr. Kenyon had received that email on the last night of the jury’s deliberation on guilt. The following day, September 28, 2006, the jury returned a guilty verdict and the trial immediately proceeded to the penalty phase. Despite now knowing about the misconduct investigation, Mr. Kenyon made an opening statement in which he referred to Dr. Caruso by name and previewed Dr. Caruso’s testimony to the jury. His penalty-phase opening statement takes up- eight transcript pages. Mr. Kenyon’s description of Dr. Caruso’s testimony represents one of those eight pages, more than his description of any other evidence:

You will also hear from a psychiatrist named Dr. Keith Caruso. Dr. Caruso evaluated Scott after Scott was incarcerated for the charges which you have convicted him of. Dr. Caruso is a psychiatrist, and he will describe to you the voluminous records that he reviewed. He reviewed school records, psychiatric records, medical records. He reviewed police reports. He reviewed depositions. He conducted personal interviews with people, and he conducted ten interviews with Scott himself. Dr. Caruso will share with you conclusions that he reached after he evaluated Scott.

He will tell you -that he diagnosed Scott with bipolar disorder, and diagnosed Scott also with depression. And it was Dr. -Caruso’s opinion that at the time these crimes were committed, that Scott McLaughlin was suffering.from a depressive episode, of bipolar disorder.

Dr. Caruso will tell you that the time these crimes were committed, that Scott was under the influence of extreme mental or emotional disturbance. Dr..Caruso will also tell you that based on the mental illnesses that Scott had, he does not have the ability to appreciate the criminality of his conduct dr to conform to conducts of the requirements of law, which — that he was substantially impaired in this regard.

(Trial Tr. 1487:9-1488:7.)

Before penalty-phase closing arguments, Mr. Kenyon made a statement to the court on the record (but outside the hearing of the jury). He told-the court that when he had a chance to return to his own office, he had searched for “Dr. Keith A. Caruso” on Google., The misconduct investigation — memorialized in a document from the United States Office of Research Integrity — was the third result. He read Dr. Caruso’s email into the record, as well as the government document he had found. Mr. Kenyon told the court that he became “considerably more concerned” at that point. He met with his boss and his,co-counsel “until the wee hours of the morning.” His boss opined that Mr. Kenyon.would have to turn over Dr. Caruso’s email to the State if he were to testify. (Trial Tr. 1950:25-1955:23.) Ultimately, Mr. Kenyon decided it would be best not to call Dr. Caruso because he was afraid the potential for impeachment could “seriously harm” Petitioner’s case. (29.15 Hearing Tr. 588:17-20.) Mr. Kenyon testified-at the Rule 29.15 hearing that although he did not plan on submitting the statutory mitigator instruction to the jury, he had planned on asking Dr. Caruso to testify about his conclusion that two mitigating circumstances had been present at the time of the murder. (29.15 Tr. 588:21-589:16, 590:23-59Í:592:l.) This- is largely reflected in his penalty-, phase opening statement. (Trial Tr. 1488.)

a. Penalty-phase evidence

The Supreme Court of Missouri summarized the penalty-phase evidence that was presented to the jury as follows:

During the penalty phase of trial, the jury -heard victim-impact evidence from Ms. Guenther’s family and extensive evidence about Mr. McLaughlin’s troubled and abusive childhood. Mr. McLaughlin’s biological father was an alcoholic and was abusive toward his mother, a prostitute. When he was taken into the custody of the juvenile division, he lived in multiple foster homes until the age of five, when he and his younger brother and sister were placed with Louise and Harlan McLaughlin, who eventually adopted them. His adoptive parents also were abusive toward Mr. McLaughlin. His adoptive father, a police' officer, would hit him with a paddle referred to as the “board of education” and would use his taser and nightstick on him. The McLaughlins often would limit the children’s access to food by locking the refrigerator and cabinet doors. Their house was referred to by Mr. McLaughlin’s childhood friends as “the house of horrors.”

During the penalty phase, Mr. McLaughlin also presented expert testimony regarding Mr. McLaughlin’s psychological and mental problems to the jury. Dr. Anthony Udziela, a psychologist, testified about extensive intelligence testing the doctor performed on Mr. McLaughlin when he was 9 years old due to poor performance and peculiar behavior at school. The testing indicated that Mr. McLaughlin has a full-scale IQ of 82, which is in the low average range. Dr. Udziela diagnosed Mr. McLaughlin at that time with attention deficit disorder with hyperactivity, expressed. language disorder, and adjustment disorder with depressed features. Mr. McLaughlin also was evaluated when he was 9 years old by Dr. Pasquale Accardo, a pediatrician, for neurode-velopmental impairments. Dr. Accardo found that Mr. McLaughlin suffered from brain impairment, although he could not determine the cause. He testified that Mr. McLaughlin suffered from cognitive limitations, language limitations, and" attentional limitations. According to Dr. Accardo’s testimony, these limitations were- neurologically based.

Dr. Mark Cunningham, a clinical -and forensic psychologist, testified about his examination of Mr. McLaughlin that he performed prior to the Rule 29.15 hearing. He also testified about his interviews with Mr. McLaughlin’s biological and adoptive family, as well as his extensive review of Mr. McLaughlin’s school, prison, and hospital records. Dr. Cunningham testified, that the abuse and neglect Mr. McLaughlin was exposed to as a child led to neurodevelopmental problems, such as a low IQ, difficulty with language, issues with visual-spatial cognition, and symptoms of attention deficit disorder with hyperactivity. Dr. Cunningham also identified psychological disorders affecting Mr. McLaughlin as an adult. He diagnosed Mr. McLaughlin with major depression, antisocial personality disorder, and borderline personality disorder. According to Dr. Cunningham’s testimony, each of these conditions existed at the time Mr. McLaughlin committed the crimes.

Finally, Mr.. M'cLaughlin presented the testimony of Dr. Sripatt Kulkamthorn, Mr. McLaughlin’s treating physician in 2002 and 2003. During that time, Dr. Kulkamthorn found that Mr. McLaughlin struggled from both depression and anxiety. To treat -his depression and anxiety, 1' he prescribed ' Paxil for Mr. McLaughlin. Mr. McLaughlin was unable to afford the prescription, however, so he only received Paxil during office visits with Dr. Kulkamthorn.

McLaughlin, 378 S.W.3d at 335-36.

b. State courts’ findings on Petitioner’s failure-to-call-psychiatrist claim

At discussed above, in his amended motion for postconviction relief, Petitioner did not raise a failure-to'-investigate claim'. However, Petitioner did argue — without mentioning Dr. Caruso — that Mr. Kenyon had been ineffective for failing to call a psychiatrist. The 29.15 motion court rejected this claim, and the Supreme Court of Missouri affirmed. The motion court ruled that in light of the late hour, the consultation with “not only the' entire defense team but also their supervisors in the Public Defender’s Office,” and the potential for serious harm to Petitioner’s case; Mr. Kenyon’s decision not to 'call Dr. Caruso had been “reasonable as a trial strategy.”' (Legal File p.' 185.) The motion court considered the evidence' that could have been presented by Dr. Stephen Peterson, a psychiatrist "retained at the postconviction stage. The court found that his testimony would have largely been cumulative to Dr. Cunningham’s testimony, so Petitioner was not prejudiced by the absence of that evidence.

After finding that no claim related. to Dr. Caruso had been properly raised in the motion court, the Missouri Supreme Court •made no specific findings related to Dr. Caruso. The Court did, however, hold that counsel had made a “reasonable strategic choice” not to “seek out additional expert witnesses” based on advice from Dr. Cunningham and Dr. Caruso, who had “concluded that the mental health experts retained were sufficient to testify regarding Mr. McLaughlin’s mental health issues.” McLaughlin, 378 S.W.3d at 342.

In making the decision not to Call a psychiatrist or a neuropsychologist, the Court held, “trial counsel knew that Dr. Cunningham was an expert psychologist and conducted extensive interviews of Mr. McLaughlin, his biological family, and his adoptive family,” and reviewed Petitioner’s records. “Trial counsel also knew-that Dr. Caruso, a psychiatrist, formed his advice not to hire another expert or do more testing after an extensive interview of Mr. McLaughlin and his review of Mr. McLaughlin’s school records, psychiatric records, and medical records.” Id. The Court went on:

Mr. McLaughlin’s trial counsel -also made a reasonable strategic decision to not call a psychiatrist.... Through the testimony of Drs. Cunningham, Accardo, Udziela,. and Kulkamthorn at trial, Mr. McLaughlin’s trial counsel presented mitigating evidence of impaired intellectual functioning and testified at the Rule 29.15 evidentiary hearing that they did not call Dr. Caruso, a psychiatrist, due to the existence of impeaching evidence that may have harmed the defense’s case. The selection of expert witnesses is a matter of trial strategy that cannot be challenged in a Rule 29.15 proceeding. Mr. McLaughlin’s trial counsel were not ineffective for failing to present the testimony of Dr. Caruso or an alternative psychiatrist that would present more favorable testimony of Mr. McLaughlin’s mental impairments.

Id. at 343. The Court held that, even if failing to present evidence from a psychiatrist had been error, Petitioner had not been prejudiced:

Dr. Peterson performed tests on Mr. McLaughlin during the postconviction proceedings and diagnosed him with borderline intellectual and personality disorders, intermittent explosive disorder, and learning disorders. This evidence is cumulative to the testimony of Dr. Cunningham that Mr. McLaughlin suffered from intelligence disorders arising from personality disorders, intellectual disorders, and neurological problems throughout his childhood and adulthood.

Id. at 344.

c. Petitioner’s Wiggins failure-to-investigate claim

Petitioner relies upon Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), for his claim that his trial counsel was ineffective in failing to investigate Dr. Caruso’s background. The Supreme Court in Wiggins held that the defendant's trial attorneys had unreasonably truncated their investigation into their client’s' life history. Counsel had reviewed the defendant’s presentence investigation report and records from the Baltimore City Department of Social Services, but had gone no further. It turned out that the defendant had been neglected and severely abused by his alcoholic mother and, subsequently, by several foster parents throughout his childhood. Counsel had promised the jury in opening statement that they would hear about the defendant’s “difficult life,” but did not follow through.

The state courts denied the defendant’s petition for relief on this ground. The federal district court granted habeas relief, but the appellate court reversed, holding that counsel’s strategic decision to focus on another issue during sentencing had been reasonable. The Supreme Court reversed again. It found that the lawyers’ decision could not have been reasonable because it had been based on inadequate investigation into the defendant’s background. That cursory investigation was objectively unreasonable, “did not reflect reasonable professional judgment,” and fell short of prevailing norms. Wiggins, 539 U.S. at 524, 123 S.Ct. 2527. Furthermore, “red flags” in the presentence report should also have put counsel on notice that more research was needed. Id. at 525, 123 S.Ct. 2527.

d. Trial counsel’s deficient performance

Wiggins did not modify Strickland’s holding that strategic decisions made after thorough investigation are “virtually unchallengeable.” Id. at 521, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Instead, it held that courts must assess whether the investigation leading to a strategic decision “was itself reasonable.” Id. at 523, 123 S.Ct. 2527 (emphasis in original).

With that in mind, it is clear that in light of the circumstances at that time, trial counsel’s “ultimate decision” — made after he discovered the damaging information during .the trial — not to call Dr. Caruso was reasonable. See English v. Romanowski, 602 F.3d 714, 728 (6th Cir.2010). But counsel’s representation during trial is not the extent of his constitutional duty to his client. Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1392, 182 L.Ed.2d 398 (2012) (Scalia, J., dissenting) (“As the Court notes, ... the right to counsel does- not begin at trial. It extends to ’any stage of the prosecution, formal or informal, in-court or out, , where counsel’s absence might derogate from the accused’s right to a fair trial.’”) (quoting United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Counsel should never have been in the situation of deciding, at the last minute, between calling an expert with a serious truthfulness problem and calling no expert at all. See Wiggins, 539 U.S. at 533, 123 S.Ct. 2527 (‘“strategic choices made after less than complete investigation are reasonable’ only to the extent that ‘reasonable professional- judgments support the limitations on investigation’ ”) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052); White v. Roper, 416 F.3d 728, 732 (8th Cir.2005) (trial counsel’s failure to call a witness is usually presumed to be reasonable trial strategy, but the “strength of the presumption turns on the adequacy of counsel’s investigation” and in White, .“counsel’s investigation was too superficial to reveal” thq value of testimony by several potential defense witnesses).

It is, of course, a common practice for capital defense attorneys to rely on mitigation specialists to propose potential experts, whom they may eventually call to testify in mitigation. But in making the decision whether to retain a particular expert, counsel must do something beyond reviewing what the expert says about himself on his resume. In this case, Petitioner’s counsel did not discharge his duty to investigate by hearing secondhand that Dr. Caruso gave a presentation. Indeed, he failed to do much of anything, and under the circumstances of this case, his inaction was constitutionally inadequate. He had not done the groundwork reasonably necessary to make a strategic decision about whether to call Dr. Caruso. See Smith v. Dretke, 422 F.3d 269, 284 (5th Cir.2005) (“If trial counsel’s investigation was unreasonable then making a fully informed decision with respect to sentencing strategy was impossible.”) (citing Wiggins, 539 U.S. at 527-28, 123 S.Ct. 2527).

This is not a case where counsel failed to shop around for a more favorable expert or failed to pursue a strategy more fruitful in hindsight: he failed, instead, to investigate the expert he did hire and to reasonably develop the strategy he had settled on. Compare Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1400 n. 7, 179 L.Ed.2d 557 (2011) (“There comes a point where a defense attorney will reasonably decide that another strategy is in order, thus ‘mak[ing] particular investigations unnecessary.’ ”) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052) (alteration in original); see also Hutchison v. State, 150 S.W.3d 292, 307 (Mo. banc 2004) (reversing lower court and granting defendant’s Wiggins claim in part because counsel had failed to follow up after inadequate mental health evaluation). Competent representation would have included, at a minimum, some investigation of Dr. Caruso’s background for potential impeachment. Counsel failed to adhere to-'prevailing professional norms when he failed to prepare for this possibility by confirming Dr. Caruso’s qualifications in some reasonable way. For example, he could have conducted a brief Internet search (as he did after Dr. Caruso told him of the evidence), or spoken to other defense attorneys who had previously used Dr. Caruso, or even asked Dr; Caruso himself about potential impeachment evidence. But he did none of thesé things. See Rompilla v. Beard, 545 U.S. at 389, 125 S.Ct. 2456 (counsel was ineffective for failing-to review his clients prior conviction file, which was publicly available, when he' knew it was likely the prosecutor would use it to prove aggravation); Bullock v. Carver, 297 F.3d 1036, 1050 (10th Cir.2002) (“clearly negligent treatment of '... an obvious strength of the defense will render an attorney’s overall performance inadequate”) (internal quotation marks omitted); Kigozi v. United States, 55 A.3d 643, 652 (D.C.2012) (defense counsel’s' failure to investigate impeachment of state witness amounted to ineffective assistance because “we have no doubt that any competent defense attorney would have appreciated the need to investigate the credibility of the.key witness for the prosecution” (internal brackets omitted)).

Nothing in the record suggests any strategic rationale, no matter how farfetched, for failing to conduct this investigation. This is not a case where constraints forced counsel to decide how to allocate limited resources; uncovering the serious impeachment evidence against Dr. Caruso would have taken practically no time or money. It is also not a case where a limited investigation had not- suggested the need for followup. Here, counsel obviously recognized the need for psychiatric evaluation, and as a result, chose a mitigation strategy that hinged on testimony from a psychiatrist. In this respect, it is similar to State v. Johnson, 968 S.W.2d 686 (Mo. banc 1998). In that case, the Missouri Supreme Court recognized that counsel’s failure to communicate, with a chosen psychiatric expert had not reflected a reasonable trial strategy. The psychiatrist’s testimony had been “the cornerstone of [counsel’s] penalty phase- strategy,” and counsel “had not planned for any other scheduled witness to cover the majority of [the psychiatrist’s] testimony, that portion devoted to [defendant’s] mental state at the time' of the murders.” Id. at 699. As such, counsel’s failure to “solidify arrangements” with' the psychiatrist so that he did not end up testifying “fell short of the skill and diligence” required of reasonably competent counsel.

Likewise here, the record demonstrates conclusively that the ultimate failure to offer that testimony to thé jury was based on counsel’s mistake rather than the result of a tactical decision, Harrington, 662 U.S. at 109, 131 S.Ct. 770 (court may not “insist counsel confirm every aspect of the strategic basis for his or her actions” but also may not “indulge post hoc rationalization for counsel’s decisionmaking that contra^ diets the available evidence of counsel’s actions”) (internal quotation marks omitted); see also Sonnier v. Quarterman, 476 F.3d 349, 358 (5th Cir.2007) (where trial attorneys’ investigation was not sufficient to “fully inform[ ] [the defendant] of all available mitigating evidence and their opinion of its potential effectiveness based on their professional knowledge and experience,” counsel was constitutionally ineffective, even when defendant failed to cooperate with counsel).

Not all mistakes are objectively unreasonable, but counsel compounded this mistake in at least two ways. First, there was no built-in redundancy to counsel’s penalty-phase strategy. Counsel planned to rely heavily on Dr. Caruso’s testimony for the case in mitigation, so the failure to investigate had considerable consequences. Dr, Caruso was a psychiatrist who would have opined that Petitioner had been under the influence of extreme mental or emotional disturbance at the time of the murder and that his capacity to. appreciate the criminality of his conduct or to conform his conduct to the requirements of the law had been substantially impaired at that time. None of the other experts that were presented by the defense presented opinions based on current evaluations of Petitioner or his mental state at the time of the crime. Instead, two of the experts had only examined Petitioner when he was nine years old. Another was a primary care doctor who provided samples of anti-depressants but did little else. And the only other expert was psychologist Dr. Cunningham, who had not done any testing or evaluation of Petitioner and did not offer any opinions about his mental state at the time of. the offense. The State emphasized this gap repeatedly in its closing argument. The prosecutor’s first statement was:

You know, ladies and gentlemen, I just want to touch on a few things that the defense brought up. You know, who are the doctors that we he'ard about? We heard doctors who -saw him 24 years ago. 24 years ago. The one thing I will agree: Dr. Accardo. And what did he say? He said that we know that Scott McLaughlin was going to progress. There’s no question. I remember him saying that. We also remember that he did progress. They all talked about that he was doing better.

(Trial Tr. 1988:15-24.) The prosecutor went on to stress that forensic psychologist Dr. Cunningham had not examined Petitioner or conducted testing: .

The only doctor they brought in to talk about, anything was Dr. Cunningham.

And I will say he came up with all sorts of excuses. I rnean, really, he should be called Dr. Excuse. When you start looking at this man, you have to go back and say, Okay. I know he’s a doctor, but how much weight should I give his testimony?

Well, first of all, you look at how many tests did he do? Not one test. He didn’t evaluate him. He never, gave him an IQ test. He never gave him any type of testing at all to see where he is.. All he is is Dr. Excuse.

(Trial Tr. 1989: 15-19; see also id. 1993:13-1994:7 (pointing out that there was no evidence Petitioner had been diagnosed with bipolar disorder except for testimony from a friend of the victim, who testified that she saw Petitioner take medication for that condition, and stating that “that’s not a doctor we’re relying on. Obviously not. I mean, people just talk.”)). The jury was aware they heard no diagnoses based on a firsthand clinical evaluation and could not consider as substantive evidence any documentary proof of mental-health diagnoses.

As a result, the defense team elicited no testimony on two statutory mitigating factors they considered applicable. Mr. Kenyon testified at the Rule 29.15 hearing that he does not generally submit to the jury a specific instruction on Missouri’s statutory mitigators, so as not to leave the jury with the impression that those are the only possible mitigating circumstances. (29.15 Tr. 591:6-19.) This is undoubtedly a reasonable strategic choice. Nonetheless, counsel’s failure to investigate Dr. Caruso deprived the jury of testimony about the content of those potential mitigating circumstances, which they were' entitled to consider even if they received no specific instruction to do so. (See 29.15 Tr. 590:23-591:2; ’ 591:20-25.) There was evidence of Petitioner’s dysfunctional childhood, but there was no one to testify based on any clinical evaluation whether Petitioner was undergoing a mental health crisis at the time of the murder. See Martin v. Barrett, 279 Ga. 593, 619 S.E.2d 656, 658-59 (2005) (state Wiggins claim granted on grounds that where expert retained at habeas stage was the “only mental health expert who examined [the petitioner] and his institutional' records,” his testimony was significant factor in showing a reasonable probability that psychiatric testimony would have changed the sentencing outcome) (some .brackets omitted) (emphasis in original).

Second, and more importantly, even after Dr. Caruso informed counsel of the misconduct investigation, counsel went on to make an -opening statement wherein he described Dr. Caruso’s anticipated testimony in detail, mentioning him byname six times. The penalty phase only lasted four days; it is not reasonable to assume the jury had forgotten counsel’s opening statement by the time it began deliberations. Indeed, the State referred to Dr. Caruso again by name when it cross-examined Dr. Cunningham. (Trial Tr. 1855:4-5.) Even if defense attorney’s failure to investigate Dr. Caruso could be considered minor enough to this point to escape constitutional notice, his decision to plow forward with an unedited opening statement would have magnified the initial error into one of constitutional proportion.

In State v. Zimmerman, 823 S.W.2d 220 (Tenn.Crim.App.1991), the defendant had stabbed her husband to death. Up until trial began, the defense strategy had been to call the defendant to testify about the abuse her. husband had inflicted on her and to call a treating psychologist to explain battered wife syndrome, confirm the defendant’s attempts to seek help for her husband’s alcohol abuse, and opine that she had not intended to kill the victim. Defense counsel emphasized these points repeatedly in his opening statement.

It appears that, during the trial, the two defense attorneys had a disagreement and one of them advised the defendant not to testify. She accepted this advice and elected not to take the stand. As a result, the defense also