Jefferson v. Sellers (250 F. Supp. 3d 1340, 2017)

OPINION AND ORDER

CLARENCE COOPER, SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on remand from the Supreme Court of the United States and the Eleventh Circuit Court of Appeals for development of the record related to the state habeas corpus court’s process of addressing and resolving Petitioner Lawrence Joseph Jefferson’s state habeas petition and specifically for a determination regarding whether the state habeas corpus court’s factual findings warrant a presumption of correctness pursuant to 28 U.S.C. § 2254(d). Following limited discovery, Petitioner and Respondent fully briefed this issue. The Court subsequently heard oral arguments from the parties and ruled from the bench that the state habeas corpus court’s factual findings do not warrant a presumption of correctness because the state habeas corpus court’s hearing and factfinding procedure were not full, fair, and adequate and denied Petitioner due process. In light of that ruling, the Court held an evidentiary hearing to resolve the limited factual dispute concerning whether Petitioner’s trial attorneys were advised by a mental health expert that investigating a traumatic head injury Petitioner suffered as a child was unnecessary. The parties have filed post-hearing briefs, and the Court has re-evaluated Petitioner’s claim that his trial counsel rendered ineffective assistance in preparing for the penalty phase of his trial. The Court now enters this written opinion to memorialize the findings and conclusions underlying this Court’s determination that the state habeas corpus court’s factual findings are not entitled to a presumption of correctness and to set forth the Court’s ruling on Petitioner’s ineffective assistance of counsel claim with the benefit of the additional evidence adduced at the evidentiary hearing. Because that additional evidence only bolsters this Court’s prior determination that Petitioner’s trial counsel rendered ineffective assistance when they failed to investigate the traumatic head injury Petitioner suffered as a child, the Court again grants Petitioner habeas relief on his claim that his trial counsel were constitutionally ineffective during the.penalty phase of the trial.

I. BACKGROUND

Petitioner Lawrence Joseph Jefferson was convicted of felony murder and armed robbery and sentenced to death in the Superior Court of Cobb County. The Supreme Court of Georgia affirmed the convictions and death sentence. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468 (1987). Following the conclusion of the appeal, Petitioner sought state habeas relief in the Superior Court of Butts County.

Petitioner’s state habeas corpus action was assigned to now-deceased Judge Joseph B. Newton, a superior court judge in the Waycross Judicial Circuit. Among the issues Petitioner raised in his state habeas petition was whether Petitioner had received ineffective assistance of counsel during the capital sentencing proceedings. Specifically, Petitioner claimed his trial counsel rendered constitutionally inadequate assistance because they failed to •reasonably investigate a head injury he sustained as a child when an automobile rolled over his head. A psychologist named Dr. Gary Dudley, who had examined Petitioner before trial, had stated in a written report that, because of Petitioner’s head injury during childhood, it would be worthwhile to conduct a neuropsychological evaluation to-rule out brain damage. Petitioner’s trial counsel never had that evaluation performed.

The state habeas corpus court held an evidentiary hearing over the course of two days. In response to Petitioner’s claim that his trial counsel performed in a constitutionally deficient manner, one of Petitioner’s trial attorneys testified they did not pursue the testing for brain damage because Dr. Dudley, following the issuance of his written report, stated during a phone call that such testing may be a waste of time and that Petitioner was “just a criminal.” Dr. Dudley, who did not testify live during the evidentiary hearing but submitted a sworn affidavit, deniéd making these statements and reiterated the opinion stated in his formal report that a neuropsycho-logical examination was necessary. Dr. Dudley denied ever suggesting to Petitioner’s trial attorneys that such testing was unnecessary and would not be worthwhile. At the conclusion of the evidentiary hearing, the state habeas corpus court requested post-hearing briefs from both Petitioner and Respondent.

Petitioner filed his post-hearing brief on October 23, 1991. Thereafter, Respondent filed a post-hearing brief on December 24, 1991. These post-hearing briefs-remained pending before the state habeas corpus court for eight months before any known activity occurred in the case. In August 1992, Wendell Boyd English, a law clerk who was assisting Judge Newton with Petitioner’s ease, contacted Paula Smith, Respondent’s counsel at the time, to request that Respondent submit a proposed order denying habeas relief. Ms. Smith prepared and submitted the proposed order, and Judge Newton ultimately signed the proposed order she prepared.

The Supreme Court of Georgia affirmed the denial of state habeas relief, Jefferson v. Zant, 263 Ga. 316, 431 S.E.2d 110 (1993), and Petitioner then sought federal habeas relief' in -this Court. Petitioner again raised the claim that his trial counsel were ineffective during the sentencing phase. Petitioner also urged the Court not to give any deference to the state habeas court’s factual finding's, claiming that the state habeas court simply signed Respondent’s proposed order and suggesting that the state habeas judge had not even read the proposed order. This Court found that Petitioner’s trial counsel .were ineffective during the capital sentencing proceeding because their decision not to present mental health evidence was not based on a reasonable investigation of Petitioner’s mental health, even presuming the correctness of the state habeas corpus court’s factual findings.

The United./States Court of Appeals for the Eleventh Circuit disagreed that trial counsel were constitutionally ineffective and reversed the judgment previously entered by this Court on this point. Jefferson v. Hall, 570 F.3d 1283, 1309, 1311 (11th Cir. 2009). Petitioner then petitioned the United States Supreme Court for .a writ of certiorari, which the Supreme Court granted. Jefferson v. Upton, 560 U.S. 284, 130 S.Ct. 2217, 176 L.Ed.2d 1032 (2010). The Supreme Court found that Petitioner had repeatedly raised an issue .before state and federal courts that required further factual development - whether the state habeas corpus court’s factual findings warranted deference, in light of what Petitioner claimed was a deficient procedure employed by the state habeas corpus court in reviewing the. ineffective assistance claim. Id. at 289, 130 S.Ct. 2217. The Supreme Court reasoned that Petitioner essentially had argued “that the state court’s ‘fact-finding procedure,’ ‘hearing,’ and ‘proceeding’ were not ‘full, fair, and adequate.’ ” Id. at 292, 130 S.Ct. 2217 (quoting 28 U.S.C. § 2254(d)(2), (6), (7)). The Supreme Court thus remanded the case for the lower courts to determine “the precise nature of what transpired during the state-court proceedings.” 560 U.S. at 294, 130 S.Ct. 2217.

II. STATE HABEAS EVIDENTIARY HEARING AND PROCEEDINGS

A. Facts Discovered Upon Remand

Since the remand of this action to this Court, the following individuals have been deposed: (1) Paula Smith, Assistant Attorney General, who was lead counsel for Respondent during the state habeas proceedings; (2) J. Christopher Desmond, an attorney then with Schreeder, Wheeler, and Flint, who was pro bono counsel for Petitioner during the state habeas proceedings; (3) Elizabeth Vila Rogan, who was then an attorney with the Georgia Resource Center and provided support to Mr. Desmond; and (4) Wendell Boyd English, who was then a law clerk in the Waycross Judicial Circuit and assisted the state habeas corpus judge, Joseph B. Newton. The deposition testimony of these witnesses, along with the state court record, confirms many of the facts previously known. Notwithstanding that the Court has set forth many of these facts in the background section above, a full account of what transpired before the state habeas corpus court follows below and is largely uncontested by the parties.

After the conclusion of Petitioner’s direct appeal, Petitioner filed a state habeas corpus action in the Superior Court of Butts County, where he was being held on death row at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Among the numerous issues raised in the habeas petition was whether Petitioner had received effective assistance of counsel during the capital sentencing proceedings. State habeas corpus actions in capital cases previously had been handled by Judge Alex Crumbley, a superior court judge from Butts County. (Deposition of Paula A. Smith “Smith Dep.” [Doc. No. 199-2] at 7.) However, at the urging of Judge Crumbley, who had become a state senator, the Georgia General Assembly passed a statute permitting judges from other circuits to be assigned to handle state habeas corpus actions filed by prisoners on death row. (Smith Dep. at 7.) As such, Judge Joseph B. Newton, who had never handled a habeas corpus action involving a capital case previously, was assigned Petitioner’s case. (Smith Dep. at 8-9.)

As stated supra, Judge Newton held a two-day evidentiary hearing during which the parties presented numerous exhibits, affidavits, and live testimony. (Deposition of James Christopher Desmond “Desmond Dep.” [Doc. No. 199-1] at 9-10; Smith Dep. at 9-10; Deposition of Elizabeth Vila Rogan “Rogan Dep.” [Doc. No. 199-3] at 8.) At the conclusion of the hearing, the state habeas corpus court set a briefing schedule for post-hearing briefs. Petitioner filed his post-hearing brief on October 23, 1991, and Respondent filed a post-hearing brief on December 24,1991.

At some point prior to August 20, 1992, Boyd English, in his capacity as the law clerk assisting Judge Newton with the case, contacted Paula Smith by telephone and asked Ms. Smith to prepare a proposed final order denying Petitioner state habeas relief. (Smith Dep. at 11-12.) Ms. Smith did not recall if Mr. English gave her further instructions as to what was to be included in the order, (Smith Dep. at 12), and Mr. English testified that Judge Newton did not give him any instructions with respect to how Ms. Smith was to draft the order, (Deposition of Wendell Boyd English “English Dep.” [Doc. No. 199-4] at 8).

Ms. Smith did not consider the request unusual, as it was her recollection that it was “standard procedure” at that time for judges to ask the prevailing party to draft an order in state habeas cases. (Smith Dep. at 13-14.) Ms. Rogan, on the other hand, testified she had not had any prior experience and has not since had any experience with a judge simply requesting a proposed order from the respondent without requesting a proposed order from the petitioner as well. (Rogan Dep. at 11.)

While Ms. Smith did not recall the precise date she received Judge Newton’s request from Mr. English, on August 20, 1992, Ms. Smith mailed to Mr. English the proposed final order she had prepared as well as a cover letter. Ms. Smith also sent a copy of the cover letter and proposed final order to Mr. Desmond. (Smith Dep. at 11-12; Petitioner’s Exs. 1 and 2.) There is no evidence Ms. Smith had any conversations or other communications with Judge Newton or anyone else on his behalf concerning the contents of the proposed final order, and Ms. Smith testified she had no such conversations or other communications. (Smith Dep. at 12,16-17.) As stated previously, Mr. English simply told Ms. Smith to prepare a proposed final order denying habeas relief. (Smith Dep. at 12.)

Mr. English testified he did research and read the transcript of the hearing as well as whatever documents were forwarded to Judge Newton, but he does not remember seeing any post-hearing briefs. (English Dep. at 9, 12.) He does not remember having any lengthy discussion with Judge Newton about the case. (English Dep. at 12.) Mr. English does not recall ever reviewing the proposed final order or doing any research on the order. (English Dep. at 9, 13.) He likewise does not recall Judge Newton ever asking him to review the order or to do any drafting with respect to the order. (English Dep. at 9, 13.) He had nothing to do with the process of the execution of the proposed final order once it was submitted by Ms. Smith. (English Dep. at 10-11.)

Petitioner’s state habeas counsel first learned of Judge Newton’s request that Respondent’s counsel prepare a proposed final order upon receipt of a copy of Ms. Smith’s letter with the enclosed proposed final order for Judge Newton’s signature. (Desmond Dep. at 13-14; Rogan Dep. at 9.) As reflected by Mr. Desmond’s handwritten entry on Petitioner’s Exhibit 1, the cover letter, Mr. Desmond received the cover letter and proposed final order on August 24, 1992. (Petitioner’s Ex. 1; Desmond Dep. at 13.) Neither Mr. Desmond nor Ms. Rogan previously had been aware of any type of communication that anyone on behalf of the state habeas corpus court had had with Ms. Smith after the eviden-tiary hearing held on April 22 and 23 of 1991. (Rogan Dep. at 10.) Judge Newton had not asked Mr. Desmond or Ms. Rogan to submit a proposed final order at any time before August 20, 1992. (Desmond Dep. at 14; Rogan Dep. at 9-10.)

On August 28,1992, counsel for Petitioner filed on Petitioner’s behalf a Motion to Recuse Hearing Judge and a Motion to Reveal Ex Parte Communications. (Petitioner’s Exs. 3 and 4.) In the Motion to Recuse Hearing Judge, counsel for Petitioner objected to Judge Newton’s asking only one side to submit proposed findings of fact and conclusions of law. (Petitioner’s Ex. 3 at ¶ 9.) Petitioner’s counsel further explained in the filing that Petitioner would have offered competing proposed findings of fact and conclusions of law if such had been requested' or permitted from Petitioner. (Petitioner’s Ex. 3 at ¶ 10; Desmond Dep. at 14-15.)

Judge Newton summarily denied the Motion to Recuse Hearing Judge on September 28, 1992, and never invited Petitioner’s counsel to file a competing proposed order or' competing proposed findings of fact and conclusions of law. (Petitioner’s Ex. 6; Desmond Dep. at 16;-Rogan Dep. at 11-12.) Judge Newton never explicitly prohibited Petitioner’s counsel from filing a competing proposed order or competing proposed findings of fact and conclusions of law. (Rogan Dep. at 14.)

Two days after denying the Motion to Recuse Hearing Judge, Judge Newton executed an order that, except for the concluding sentence, date, and his signature, was identical to the proposed order drafted by Respondent. (Petitioner’s Ex. 7; Desmond Dep. at 17-18; Smith Dep. at 17; Rogan Dep. at 13.) That order was subsequently .filed in the Superior Court of Butts County on October 7,1992. (Petitioner’s Ex.- 7.) During-the subsequent appeal of that order to the Georgia Supreme Court, the parties stipulated “that the state habeas corpus judge adopted the proposed order as his own.” (Petitioner’s Exs. 8, 9.)

Throughout the order executed, by Judge Newton, there are no corrections of misspellings, no corrections of grammatical errors, and no corrections of incorrect citations to cases. (See generally Petitioner’s Ex. 7.) Petitioner has identified the presr; ence of twenty-one errors,.in the order, which this Court has verified. (Petitioner’s Brief Regarding Issue Remanded by Supreme Court [Doc. No. 200] at 7-8.) Significantly, both the proposed order, and the final order refer to the affidavit of an attorney who was never contacted in connection with this case, and no such affidavit was submitted as evidence. (Desmond Dep. at 10-11; Petitioner’s Ex. l'at 24-25; Petitioner’s Ex. 7 at 24-25.) These errors and issues invite, the reasonable inferences that Judge Newton failed to review the proposed order submitted by Ms. Smith before executing the final order and failed to review the relevant evidence.

Judge' Newton passed away in 2000.' (English Dep. at 10.) Mr. English does not know whether Judge Newton read the proposed order prior to signing it, (English Dep. at 13.) ‘Mr. English merely would have forwarded the proposed order along to Judge Newton immediately. (English Dep. at 8,10-11.)

B. Applicable Law

Petitioner’s habeas application was filed prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 and is therefore governed by federal habeas law as it existed prior to that point. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Questions of law and mixed questions of Jaw -and fact resolved by state habeas courts are reviewed de novo, while the state court’s factual findings are “subject to the presumption of correctness.” Freund v. Butterworth, 165 F.3d 839, 861 (11th Cir. 1999). The Supreme Court has held “[when] the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings,” the district court “ordinarily should .,, accept the facts as found” by the state court judge. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)," overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). However, “if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding[,]” then the federal court “must hold an evidentiary hearing” in an attempt to resolve any disputed factual issues. Id. at 312, 83 S.Ct. 745.

An almost verbatim codification' of the standards set forth in Townsend, 28 U.S.C.A. § 2254(d), as it applies to this case, provides as follows:

(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a' person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit-

(1) that the merits of the factual dispute were not resolved in the State ■ court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8)or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:

And in an evidentiary hearing in thé proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole,, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by. the State court was erroneous.

28 U.S.C.A. § 2254 (1976). Where' one of the eight exceptions applies, the state court’s factfinding is not presumed correct, and the petitioner must establish “the facts necessary to support his claim by only a preponderance of the evidence.” Kelley v. Secretary for Dep’t of Corrections, 377 F.3d 1317, 1335 (11th Cir. 2004) (citations omitted).

0. Contentions of the Parties

Petitioner maintains that the .factual findings of the state habeas corpus court are not entitled to a presumption of correctness due to (1) the state habeas judge’s verbatim adoption of an order prepared by Ms. Smith without any guidance as to what the state habeas judge expected in the proposed order; (2) the state habeas court’s ex parte communication with Ms. Smith; (3) the failure of the state habeas judge to correct twenty-one (21) cited errors in the proposed findings of fact and conclusions of law prepared by Ms. Smith; (4) the failure of the state habeas judge to provide Petitioner an opportunity to file his own proposed findings of fact and conclusions of law or objections to the proposed findings of fact and conclusions of law prepared by Ms. Smith; and (5) the factual error overlooked by the state habe-as judge when he adopted the proposed findings of fact and conclusions of law, which referenced an affidavit of an attorney that was not a part of the record. Petitioner contends that the only way to address the failure of the state habeas corpus court to provide Petitioner with a full, fair, and adequate factfinding process consistent with due process is for this Court to “independently hear the evidence regarding disputed factual issues between the parties and make its own de novo determination regarding them.” (Doc. No. 200 at 18.)

Respondent argues that the record establishes that Petitioner had a full and fair hearing before the state habeas corpus court, notwithstanding any procedural errors that occurred. Respondent maintains Petitioner was given the opportunity to present evidence through live testimony, numerous exhibits, and affidavits. Respondent also asserts Petitioner did have the opportunity to submit his own proposed order or objections to Respondent’s proposed order but did not avail himself of that opportunity. For these reasons, Respondent urges the Court to conclude that Petitioner has failed to establish that the state habeas proceédings were fundamentally unfair.

D. Analysis

The Supreme Court has discouraged and criticized a court’s verbatim adoption of findings of fact prepared by a prevailing party. Anderson v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Still, the Court acknowledges such findings as the findings of the court and has held that they may be disturbed only if they are clearly erroneous. Id. In the case at bar, the Supreme Court stated that it has “not considered the lawfulness of, nor the application of the habeas statute to, the use of such a practice where (1) a judge solicits the proposed findings ex parte, (2) does not provide the opposing party an opportunity to criticize the findings or to submit his own, or (3) adopts findings that contain internal evidence suggesting that the judge may not have read them.” Jefferson, 560 U.S. at 294, 130 S.Ct. 2217 (citations omitted). The Supreme Court has tasked this Court with undertaking such an analysis and determining, in light of the developed record, whether the state habeas court’s factual findings warrant a presumption of correctness. Id.

Petitioner maintains he was not provided with a “full, fair, and adequate” fact-finding process during the state habeas corpus proceedings. He therefore asserts that no presumption of correctness should apply to the factual findings under the principles of Townsend and former 28 U.S.C. § 2254(d)(2), (6), and (7). The Court agrees.

“The adequacy of a state-court procedure under Townsend is largely a function of the circumstances and the interests at stake. In capital proceedings generally, th[e] [Supreme] Court has demanded that factfinding procedures aspire to a heightened standard of reliability.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (citation omitted). “This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.” Id. (citation omitted).

“The question whether state procedures are ‘adequate’ involves two distinct inquiries. The first is whether the procedure employed in a particular case in fact afforded the defendant a full and fair hearing. The second is whether the procedure itself comports with due process.” Cabana v. Bullock, 474 U.S. 376, 399 n. 2, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). With respect to the latter inquiry, the Fourteenth Amendment of the United States Constitution forbids states from depriving any person of life without due process of law, Roberts v. Louisiana, 428 U.S. 325, 350, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The Supreme Court has stated that notice and an opportunity to be heard in a manner appropriate to the nature of the case are. essential requirements of procedural due process. See Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (citation omitted).

In this case, the factfinding procedure employed by the state habeas corpus court was not adequate to afford Petitioner a full and fair hearing and the deficient procedure employed deprived Petitioner of due process of law. The factual findings and conclusions of law ultimately adopted by Judge Newton were drafted exclusively by Ms. Smith pursuant to an ex parte request made on the state habeas judge’s behalf by the law clerk working on the case. Judge Newton did not provide any drafting instructions or guidance as to his own findings and conclusions, other than to state that the proposed order should deny habeas relief. Judge Newton did not request that Petitioner submit his own proposed factual findings and conclusions .of law, and Judge Newton did not even inform Petitioner of the request made of Ms. Smith. Once Petitioner learned of the proposed order prepared by Ms. Smith, it is true that he could have requested an opportunity to submit a competing proposed order or specific objections to the proposed order prepared by Ms. Smith, but it was reasonable for Petitioner to believe Judge Newton had reached a firm decision and that any further filings concerning the merits of the case would be futile. Judge Newton’s failure to invite Petitioner to present a competing order, even after Petitioner learned of, inquired further about, and criticized the ex parte request made of Ms. Smith, emphasizes the reasonableness of Petitioner’s belief that a competing proposed order would have been- futile. Moreover, a comparison of the proposed order prepared by Ms. Smith to the order ultimately executed by the state habeas corpus court indicates Judge Newton “uncritically accepted findings prepared without judicial guidance.” Anderson, 470 U.S. at 572, 105 S.Ct. 1504. There is thus a basis for substantial doubt as to whether the findings of fact and conclusions of law included in the final order represent the court’s own analysis and considered conclusions. This is particularly so, given that the state habeas corpus court’s order references an affidavit that was never submitted in the case and contains numerous typographical errors that Judge Newton either never saw. or overlooked. While these findings of fact and conclusions of law are nevertheless treated as findings and conclusions of the state habeas corpus court, id. at 572, 105 S.Ct. 1504, the practice of adopting verbatim findings of fact prepared by the prevailing • party- in the context of a death penalty case is especially troublesome, given that factfinding procedures in capital proceedings are to “aspire to a heightened standard of reliability,” see Ford, 477 U.S. at 411, 106 S.Ct. 2595.

Critical to the resolution of the ineffective assistance of counsel claim, in particular, was a credibility determination that Judge Newton did not appear to consider carefully, "if at all, himself. As noted "above in this Court’s discussion of the case background and factual findings upon remand and as detailed in this Court’s prior Order, Jefferson, 490 F.Supp.2d at 1324-25, Petitioner’s trial counsel, Mr. Schuster, and one of Petitioner’s mental health experts, Dr. Dudley, offered conflicting testimony concerning whether Dr. Dudley advised Mr. Schuster orally that it would be futile for Petitioner’s attorneys- to follow up on Dr. Dudley’s previous written recommendation of conducting neuropsychological testing to rule out brain damage. Mr. Schuster and Dr. Dudley also offered conflicting testimony about whether Dr. Dudley referred to Petitioner as “just a criminal.” In the order adopted verbatim by the state habeas corpus court, Judge Newton credited the testimony of Petitioner’s trial counsel-over the testimony of Dr. Dudley without providing any explanation whatsoever for that credibility determination. All of the language concerning this credibility determination is the precise language contained in the proposed- order prepared by Ms. Smith. -

The state habeas judge’s failure to indicate in any manner that the credibility determination was the product of his own observations and analysis distinguishes this case from the Supreme Court’s decision in Anderson, where the Supreme Court • criticized the practice by some courts of announcing a decision and then adopting verbatim findings of fact prepared by prevailing parties. 470 U.S. at 572, 105 S.Ct. 1504. In Anderson, the district court adopted proposed findings of fact and conclusions of law. prepared by the prevailing party. The Fourth Circuit suggested that close scrutiny of the record was warranted as a result. The Anderson court-ultimately held “that even when the trial judge.adopts proposed findings verbatim, the findings are those of the court and may be reversed, only if clearly erroneous.” Id. at 572, 105 S.Ct. 1504. Still, the Court noted in that case that the district court had (1) issued a preliminary memorandum outlining its essential findings; (2) provided the non-prevailing party an opportunity to respond to the prevailing party’s more detailed proposed findings, which the non-prevailing party did; and (3) made changes to the content and organization of the crucial findings submitted by the prevailing party, including those regarding matters requiring, credibility determinations. Id. at 572-73, 577-80, 105 S.Ct. 1504. For these reasons, the Court found “no reason to doubt that the findings issued by the District Court represented] the judge’s own considered conclusions” and “no reason to subject those findings to a more stringent appellate revfew than [was] called for by the applicable rules.” Id. at 573, 105 S.Ct. 1504.

The indicia of the judge’s independent analysis and review in Anderson are completely absent in this case. Here, Judge Newton did not provide a preliminary memorandum outlining his essential findings, and he did not otherwise provide, through Mr. English, any instructions to Ms. Smith about how the proposed order-was to be drafted, except to instruct that the proposed order was to deny habeas relief. Judge Newton did not offer Petitioner an opportunity to respond to Ms. Smith’s proposed order and did not even inform Petitioner that a request had been made of Ms. Smith to prepare proposed findings of fact and conclusions of law. Even after Petitioner learned from Ms. Smith of the ex parte request, Judge Newton still did not provide Petitioner an opportunity to offer criticism of the proposed order or to submit his own proposed order. Finally, other than altering the concluding sentence and including the date and his signature, Judge Newton made no changes to the proposed order, notwithstanding the glaring errors contained therein. Judge Newton’s reference to evidence that did not exist in this case raises doubts about whether Judge Newton was even familiar with the record at the time he executed Ms. Smith’s proposed order.

The absence of an explanation for the credibility determination in this case is significant because of the hybrid nature of the evidence that was before the state habeas corpus court and the importance of that credibility determination to the resolution of the ineffective assistance of counsel claim. Here, the state habeas judge had the challenging task of making a credibility determination based on the live testimony of Petitioner’s trial attorneys and the written affidavit of Dr. Dudley. It was critical for Judge Newton to explain his reasons for crediting the testimony of Petitioner’s trial attorneys over the testimony provided by Dr. Dudley, but the procedure that Judge Newton employed to arrive at the final order deprived Petitioner and all reviewing courts of the benefit of such reasoning and undermines the deference that ordinarily would be afforded such a credibility determination. See Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d 960, 962 (5th. Cir. 1975) (“The reviewing court deserves the assurance that the trial court has come to grips .with apparently irreconcilable conflicts in the evidence, such as appear in the case sub judice, and has distilled therefrom true facts in the crucible of his conscience.”).

The factfinding procedures employed in this case also warrant condemnation under Eleventh Circuit authority criticizing “ghostwritten” orders. As 'the Eleventh Circuit reproached'in Colony Square Co. v. Prudential Ins. Co., 819 F.2d 272 (11th Cir. 1987).

This circuit and other appellate courts have repeatedly condemned the ghostwriting of judicial orders by litigants. The cases admonishing trial courts for the verbatim adoption of proposed orders drafted by litigants are legion.-... When an interested party is permitted to draft a judicial order without response by Or notice to the opposing side, the temptation to overreach and exaggerate is overwhelming. The proposed order or opinion serves as an additional opportunity for a party to brief and argue its case and thus is unfair to the party not accorded an opportunity to respond. The quality of judicial decision-making suffers when á judge delegates the drafting of orders to a party; the writing process requires a judge to wrestle with the difficult issues before him and thereby leads to stronger, sounder judicial rulings. In addition, the ex parte communications occasioned by this practice create an obvious potential for abuse.

Id. at 275-76 (internal citations omitted). In Colony Square, the Eleventh Circuit ultimately found no due process violation where a prevailing party had drafted three proposed orders at the ex parte requests of the bankruptcy court. Id. at 276. However, that first was based on the fact that the. judge who made the request had reached a firm decision before asking the prevailing party to draft the proposed orders and had indicated the specific things that the orders were to cover. In the case before this Court, it appears Judge Newton also had reached a firm decision, but he provided no framework for the order or guidance as to the.rationale for his decision. The Colony Square orders also had been reviewed and affirmed by the district court, which provided the Eleventh Circuit some degree of comfort that the arguments of the non-prevailing party had been independently and thoroughly examined and that any deficient procedures employed by the bankruptcy judge had thus been corrected. In the case before this Court, in contrast, the presumption of correctness and deference that has followed the state habeas court’s factual findings thus far has insulated them from meaningful review.

In sum, the process by which the state habeas judge arrived at the court’s final order was fundamentally unfair. The ex parte communication with Ms. Smith compromised the fairness and reliability of the factfinding process so as to deny Petitioner a fair and adequate hearing at the state habeas level and to deny him due process of law. The failure of the state habeas judge to- solicit criticism of the proposed final order from Petitioner or to invite him to submit his own proposed order, particularly after Petitioner took issue with the ex parte contact with Ms. Smith and Ms. Smith’s preparation of the proposed order, likewise deprived Petitioner of a full and fair hearing and due process of law. Finally, the state habeas judge’s verbatim adoption of Ms. Smith’s proposed order in this case, including the evidentiary discrepancy and other numerous errors contained therein, is an affront to the heightened concern with reliability and trustworthiness due a death penalty case and places the validity of the decision in issue. This case simply presents several reasons to conclude that the state habeas court, which was the only state court to hold a hearing on Petitioner’s habeas claims, did not “reliably [find] the relevant facts.” Townsend, 372 U.S. at 313, 83 S.Ct. 745. Consequently, under 28 U.S.C. § 2254(d)(2), (6) and (7), the presumption of correctness afforded a state court’s findings of fact does not apply in this case, making the evidentiary hearing that this Court conducted necessary to resolve the factual disputes relevant to Petitioner’s ineffective assistance of counsel claim.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Findings of Fact from Federal Evi-dentiary Hearing

At the evidentiary hearing held before this Court on two separate days, the Court heard testimony from Petitioner’s trial attorneys, Marc Celia and Stephen Schuster, and from several mental health professionals, including Dr. James R. Merikangas, Dr. Gary Dudley, Dr. David Price, and Dr. Steven Macciocchi. The following factual findings concern the decision of Petitioner’s trial counsel not to present mitigating mental health evidence, during Petitioner’s sentencing proceedings and specifically address the factual dispute regarding whether Petitioner’s attorneys were advised orally by Dr. Dudley that an investigation of the traumatic head injury Petitioner suffered as a child was unnecessary. These findings also address the conflicting expert evidence presented by the parties regarding the state of Petitioner’s mental health.

1. Trial Counsel’s Investigation into Petitioner’s Mental Health

Mr. Celia and Mr. Schuster learned before trial that Petitioner suffered a head injury as a child. (Federal Hearing Tr. at 15, 128-29.) Petitioner’s mother had told them that Petitioner had been hit by a car when he was approximately two years old and that Petitioner was hospitalized as a result of that accident. (Federal Hearing Tr. at 16, 128-129.) Mr. Celia does not recall questioning the family about the head injury once he was made aware of it. (Federal Hearing Tr. at 16.) Aside from Petitioner’s past behavioral issues arising from his abuse of alcohol, no one in Petitioner’s family gave Mr. Celia or Mr. Schuster any information suggesting Petitioner had mental health problems. (Federal Hearing'Tr. at 18,121-22.)

While trial counsel learned about Petitioner’s head injury prior to trial, they did not learn about the injury or any other facts to prompt a mental health investigation early during their background investigation. Neither Mr. Schuster nor Mr. Celia ever had any problems communicating with Petitioner. (Federal Hearing Tr. at 15,119.) Mr. Celia’s interactions with Petitioner did not cause him to have any questions about Petitioner’s sanity, (Federal Hearing Tr. at 17), and Mr. Schuster testified that he saw no evidence of mental health concerns during his interactions with Petitioner, (Federal Hearing Tr. at 119). Petitioner was able to converse with Mr. Celia and Mr. Schuster in a rational way and respond to any questions they asked him. (Federal Hearing Tr. at 17.)

Notwithstanding that neither Mr. Celia nor Mr. .Schuster perceived any issues with Petitioner’s mental health, Mr. Celia testified he would always be concerned about a defendant’s mental health and that it would be a matter of routine to investigate a defendant’s mental health. (Federal Hearing Tr. at 18.) Hence, Mr. Celia and Mr. Schuster hired Dr. Dudley to perform a mental health examination as a matter of routine. (Federal Hearing Tr. at 17.) They did nqt have a specific concern regarding Petitioner’s mental health. (Federal Hearing Tr. at 17.)

Dr. Dudley conducted a general psychological evaluation of Petitioner in December of 1985. (Federal Hearing Tr. at 94.) Dr. Dudley’s evaluation of Petitioner was a combination of a general intelligence test and a couple of personality tests as well, (Federar Hearing Tr. at 94.) Dr. Dudley was not given any documents,. such as arrest records or school records, before he went in to evaluate Petitioner. (Federal Hearing Tr. at 93, 94, 96.) The,only information Dr. Dudley received about Petitioner’s background came from Petitioner himself. (Federal Hearing Tr. at 95.) He learned during his interview of Petitioner, that Petitioner had been hit by a car when he was two years of age, but,Dr. Dudley had no documents to corroborate that such an accident had occurred and Dr. Dudley had no idea at the time he conducted Petitioner’s evaluation that Petitioner had been- hospitalized for five days after that accident occurred. (Federal Hearing Tr. at 95.)

On February 10, 1986,'after completing his evaluation, Dr. Dudley prepared a re-' port that indicated, in part, the following:

One possibility that could not be explored because of his incarceration has to do with the sequelae to head injury experienced during childhood. In my opinion, it would be worthwhile to conduct neuropsychological evaluation of this individual to rule out an organic etiology.

Petitioner’s Ex. 5. Influencing his recommendation that a neuropsychological assessment be performed were Petitioner’s results on the'general intelligence test Dr. Dudley administered. (Federal Hearing Tr. at 97.) Petitioner’s verbal score, which wáS derived from subtests on a battery that relied on stories, retrieval, and usage of language-related information, was a 94. (Federal Hearing Tr. at 97.') Petitioner’s performance score, which concerned visual spatial acuity, speed of motor pérformance, and accuracy of visual perception, was 108. (Federal Hearing Tr. at 97.) According to Dr. Dudley, “[w]ith that discrepancy between the two areas of function, one has to at least suspect impairment to functions organizing the left cerebral hemisphere.” (Federal Hearing Tr. at 97.)

Dr. Dudley .also administered the Wide Range Achievement Test during his evaluation of Petitioner. (Federal Hearing Tr. at 97-98.) Petitioner’s results on that test indicated a learning disability. (Federal Hearing Tr. at 99.) Specifically, Petitioner was found to function on a tenth grade level with respect to reading; a fourth grade level "with respect to spelling; and, a seventh grade level with respect to arithmetic, (Federal Hearing Tr. at 98.) Dr. Dudley characterized Petitioner’s results as “significant degraded scores,” stated that they were consistent with a learning disability,' and indicated that a learning disability could be the result of a problem with brain function. (Federal Hearing Tr. at 99.) .

Dr. Dudley’s testing did not reveal any evidence of someone who would be chronically aggressive, but Dr. Dudley concluded from Petitioner’s results on the general psychological tests that Petitioner was likely to be impulsive and not prone to give forethought to the consequences of his actions. (Federal Hearing Tr. at 99.) The latter is a symptom of executive dysfunction, which has to do with an incapacity for planning and anticipating consequences in outcomes, organizing, sustaining attention, invoking arousal where arousal is appropriate, and inhibition of impulse where that is appropriate. (Federal Hearing Tr. at 100-01.) Dr. Dudley testified that the frontal lobes are generally thought to be the primary side of executive functioning. (Federal Hearing Tr. at 100.) ;

Consistent with the above, Dr. Dudley noted in his report that Petitioner became agitated and disorganized in his behavior during one of Dr. Dudley’s visits and refused to engage. (Federal Hearing Tr. at 101.) Petitioner had been cooperative and agreeable during Dr, Dudley’s first visit but was completely different on this occasion. (Federal Hearing Tr. at 101.) Before he left, Dr, Dudley explained to Petitioner that it was not a good idea for Petitioner to refuse to cooperate with him. (Federal Hearing Tr. at 101-02.) When Dr. Dudley went back again to see Petitioner, Petitioner apologized and explained, “I get that way sometimes, man.” (Federal Hearing Tr, at 102.) Following that visit, Dr. Dudley became concerned about whether Petitioner suffered from a neurological impairment, as Petitioner’s conduct was indicative of impulsive behavior, a lapse in judgment, and difficulty with the regulation of affective and emotional behavior. (Federal Hearing Tr. at 102.)

Following the evaluation and issuance of Dr. Dudley’s report, Mr. Celia recalls that Dr. Dudley basically stated that he did not feel like he would be particularly helpful as a mitigating witness because'Mr. Celia and Mr. Schuster’s litigation strategy was not for Petitioner to admit the crime. (Federal Hearing Tr. at 18-19.) According to Mr. Celia and Mr. Schuster, Petitioner was adamant in denying he committed the crime. (Federal Hearing Tr. at 19, 120.) Therefore, since residual doubt was one of the strategies Mr. Celia and Mr. Schuster intended to employ during the sentencing phase, they did not feel Dr.- Dudley could provide any information that would- have aligned with that strategy. (Federal Hearing Tr. at 19.)

Although Mr. Celia and Mr. Schuster received Dr. Dudley’s, report and thus were aware of Dr. Dudley’s recommendation that neuropsychological testing be done to rule out brain damage, they never moved forward with further testing. Mr. Celia acknowledged that Dr. Dudley made the recommendation in his written report that there be further evaluation of Petitioner,’but Mr. Celia never spoke with Dr. Dudley regarding this recommendation. (Federal Hearing Tr. at 19.) Mr. Celia testified inexperience was the reason for his failure to follow up with Dr, Dudley on the recommendation. (Federal Hearing Tr. at 20.) Mr. Celia does not recall even having a conversation with Mr. Schuster regarding Dr. Dudley’s recommendation of a further evaluation, and he testified to having no knowledge of any conversation between Mr. Schuster and Dr. Dudley regarding that part of Dr. Dudley’s report. (Federal Hearing Tr. at 20.)

When Mr. Schuster was questioned during the evidentiary hearing about why he and Mr. Celia did not pursue neuropsycho-logical testing, as recommended by Dr. Dudley, Mr. Schuster testified that a conversation they had with Dr. Dudley subsequent to Dr. Dudley’s provision of the written report led them-to the “decision that there was no sense pursuing any further evaluation of Mr. Jefferson.” (Federal Hearing Tr. at 120.) Mr. Schuster figured that was the proper decision “when [Dr. Dudley] told [them] he was a’ sociopath or a psychopath and not to worry about it.” (Federal Hearing Tr. at 120.) Mr. Schuster further testified that they asked Dr. Dudley about the portion of the report wherein Dr. Dudley stated that further evaluation needed to happen and, according to Mr. Schuster, Dr. Dudley stated “that Mr. Jefferson was the way Mr. Jefferson was.” (Federal Hearing Tr. at 120.) Mr. Schuster referred to Dr. Dudley’s recommendation that neuropsychological testing be conducted as a “throw-out in the report” and stated they would have asked to do the testing if Dr. Dudley had told them that they “seriously” needed to do the testing. (Federal Hearing Tr. at 121.)

Contrary to the statements Mr. Schus-ter attributes to Dr. Dudley, Dr. Dudley consistently has denied ever withdrawing or rescinding his earlier recommendation. (Petitioner’s Ex. 7 at 2 ¶ 4; Federal Hearing Tr. at 104-06, 111-12.) When questioned about Mr. Schuster’s prior testimony before the state habeas court that Dr. Dudley told Mr. Schuster that Petitioner was “just a criminal,” Dr. Dudley testified repeatedly he did not say Petitioner was “just a criminal” and was adamant that is not the type of thing he would have said. (Petitioner’s Ex. 7 at 2 ¶ 5; Federal Hearing Tr. at 105-06,112.)

Having observed the demeanor of Mr. Schuster and Dr. Dudley during the evi-dentiary hearing and having thoroughly familiarized itself with the record in this case, the Court finds that Dr. Dudley’s testimony regarding this issue of whether he led Petitioner’s trial attorneys to believe that neuropsychological testing was not necessaiy or might not be worthwhile, despite his written recommendation, is more credible than the testimony of Mr. Schuster. The Court resolves this credibility determination in Dr. Dudley’s favor for several reasons.

First, Mr. Schuster’s time sheets do not corroborate his having had a phone conversation with Dr. Dudley following Dr. Dudley’s submission of his written report on February 10, 1986. (See Petitioner’s Exs. 18 and 19.) Mr. Schuster’s time sheets reflect he had a twelve-minute conversation with Dr. Dudley about Petitioner’s mental health on December 10, 1985, which was two months before Dr. Dudley submitted his written report. (Petitioner’s Ex. 18 at 2.) Thereafter, there is no entry reflecting Mr. Schuster ever spoke with Dr. Dudley again. (See Petitioner’s Exs. 18 and 19.) Dr. Dudley did not recall ever having a conversation with Mr. Schuster following his submission of the written report, and Mr. Schuster’s time sheets, which reflect numerous calls and conversations Mr. Schuster had with others, corroborate Dr. Dudley’s recollection. This fact, alone, would not persuade the Court to credit Dr. Dudley’s testimony over Mr. Schuster’s, but it does provide the Court a reason to doubt the accuracy of Mr. Schus-ter’s version of what transpired following trial counsel’s receipt of Dr. Dudley’s report.

Second, Mr. Schuster suggested repeatedly in his testimony before this Court that both he and Mr. Celia spoke to Dr. Dudley about the recommendation in the report that neuropsychological testing be conducted. (Federal Hearing Tr. at 120, 124, 125.) However, as mentioned above, Mr. Celia testified he never spoke with Dr. Dudley regarding this particular recommendation. (Federal Hearing Tr. at 19.) Mr. Celia does not recall having a conversation with Mr. Schuster regarding Dr. Dudley’s recommendation of a further evaluation, and he has no knowledge of any conversation between Mr. Schuster and Dr. Dudley regarding that part of Dr. Dudley’s report. (Federal Hearing Tr. at 20.) Thus, Mr. Schuster’s testimony regarding the occurrence of this follow-up conversation with Dr. Dudley conflicts not only with Dr. Dudley’s recollection, but also with Mr. Celia’s.

Third, while the Court does not discount the impact that the passage of time may have had on the memories of witnesses, Mr. Schuster’s testimony regarding Dr. Dudley’s alleged comments to him regarding Petitioner has been internally inconsistent and inconsistent with the other evidence in this case. At the hearing before the state habeas corpus court, Mr. Schus-ter testified that Dr. Dudley had stated further testing likely would not be worthwhile and that Petitioner was “just a criminal.” At the hearing before this Court, Mr. Schuster said he did not pursue further testing because Dr. Dudley had said that Petitioner “was a sociopath or a psychopath.” (Federal Hearing Tr. at 120.) Notably, no mental health professional who has evaluated Petitioner has diagnosed him with psychopathy or anti-social personality disorder. (Federal Hearing Tr. at 41, 48, 145, 245-46; Petitioner’s Ex. 5.) As such, Mr. Schuster’s claim that Dr. Dudley told him Petitioner was a sociopath or a psychopath is inconsistent with his testimony before the state habeas corpus court and is not supported by any evidence in the record.

Fourth, and as mentioned above, this Court took great care to observe the demeanor of Mr. Schuster and Dr. Dudley as they testified. The Court has considered the manner in which they testified and their respective attitudes while testifying. The Court likewise has considered Mr. Schuster’s and Dr. Dudley’s respective tones of voice and levels of engagement during the hearing. The Court’s direct observations support giving more credit to Dr. Dudley’s testimony than Mr. Schus-ter’s testimony.

For all of the reasons stated, the Court credits Dr. Dudley’s testimony that he consistently maintained that a neuropsycho-logical evaluation would be worthwhile, and the Court also credits his testimony that he did not make any of the derogatory statements about Petitioner that Mr. Schuster attributes to him. There is no dispute that the neuropsychological testing recommended by Dr. Dudley could have been done, and Dr. Dudley assumed that additional testing would be done prior to Petitioner’s trial. (Federal Hearing Tr. at 105.)

2. Mental Health Evidence Regarding Brain Damage

a. Neurological Testing by Dr. Merikangas

Dr. James Merikangas, who specializes in neurology and psychology, evaluated Petitioner and concluded Petitioner suffers from a brain injury, which is likely localized to the right hemisphere in the frontal lobes of the brain. Dr. Merikangas relied on the following in reaching his conclusion: a comprehensive neurologic examination, affidavits of Petitioner’s family members, medical records from Petitioner’s childhood hospitalization following the accident, Petitioner’s educational records, Petitioner’s jail records, records of Dr. Dudley’s psychological testing, and documentation by family members that Petitioner per-forméd poorly in school, was withdrawn, suffered from frequent severe headaches, and had episodes of falling out or passing out. (Federal Hearing Tr.' at 32-33.) Dr. Merikangas performed a series of tests that would both rule in different problems and rule out different problems, including brain injury. (Federal Hearing Tr. at 36.)

Dr. Merikangas’s physical examination of Petitioner supported the brain injury diagnosis. (Federal Hearing Tr. at 40.) As an initial matter, Dr. Merikangas testified that the scar across Petitioner’s head is a sign of trauma. (Federal Hearing Tr. at 30.) Medical records from Petitioner’s hospitalization indicated that Petitioner had a huge laceration on his’head and that he spent five days in the hospital having fevers. (Federal Hearing Tr. at 32.) Dr. Mer-ikangas opined that Petitioner probably had a significant brain injury at the time of his hospitalization. (Federal Hearing Tr. at 32.) He mentioned Petitioner’s head circumference was larger than average, suggesting that he may have had some brain swelling as an infant and - perhaps as a result of his trauma when his head was run. over by the car. (Federal Hearing Tr. at 40.) In fact, Petitioner’s head circumference places him in the 98th percentile. (Federal Hearing Tr. at 76.) Petitioner also had high blood pressure, which can affect brain function. (Federal Hearing Tr. at 34.) Petitioner had asymmetrical reflexes, which indicated he had some problems with the input or output of his central nervous system. (Federal Hearing Tr. at 34.) Petitioner had decreased sensitivity to a pinprick on both his left arm and leg, which could indicate a lot of different things, such as peripheral neuropathy, spinal cord injury, or brain injury. (Federal Hearing Tr. at 34, 69-70.) The result of that test, by itself, does not mean very much. (Federal Hearing Tr. at 70.) However, considering Petitioner’s test results in totality, including the results of those tests administered by others and the other records provided to him for review, Dr. Meri-kangas opined Petitioner suffered from brain damage and that the brain damage was an acquired, post-traumatic type, as opposed to a birth defect. (Federal Hearing Tr. at 45.)

Dr. Merikangas reviewed Dr. Dudley’s report concerning Petitioner and testified that Dr.'Dudley’s evaluation of Petitioner was just a basic psychological evaluation, not a neuropsychological evaluation. (Federal Hearing Tr." at 41.) As explained by Dr. Merikangas, the basic psychological evaluation focuses on personality and the questions of thought disorder, depression, or psychosis. (Federal Hearing Tr. at 41.) The neuropsychological evaluation, on the other hand, is designed to demonstrate, evaluate, and quantify brain damage. (Federal Hearing Tr. at 41.) Dr. Dudley’s conclusions that he did not see any socio-pathic, psychopathic, or passive-aggressive indication in his testing of Petitioner did not rule out brain injury, (Federal Hearing Tr. at -41.) According to Dr. Merikan-gas, those results would tend to support abnormal behavior as being the result of brain injury rather than a personality problem. (Federal Hearing Tr. at 41.) Thus, Dr. Merikangas concurred that neu-ropsychological testing should have been performed to determine whether an organic etiology (i.e., brain damage) was present. (Federal Hearing Tr. at 41.)

Dr. Merikangas further testified regarding the large discrepancy between Petitioner’ verbal and performance test scores, as recorded by Dr. Dudley when he examined Petitioner prior to trial. (Federal Hearing Tr. at 40-41.) According to Dr, Merikangas, a large discrepancy between performance, which concerns visual spatial things, and verbal, which concerns the ability to read, speak, and understand language, suggests the existence of some brain damage. (Federal Hearing Tr. at 40-41.)

Dr. Merikangas also reviewed the report of the neuropsychological testing later done by Dr. Price and explained that Dr. Price came to the conclusion that there was right hemisphere and frontal lobe brain damage. (Federal Hearing Tr. at 41.) Dr. Price administered a more extensive battery of tests, and his testing showed, among other things, a discrepancy between verbal and performance I.Q., just as Dr. Dudley had found with his testing. (Federal Hearing Tr. at 42.) As a neurop-sychologist, Dr. Price quantified Petitioner’s brain functions .to give a catalog of performance, whereas Dr. Merikangas, as a neurologist, was equipped to use hands-on, physical testing to ascertain causes. (Federal Hearing Tr. at 42-43.)

As to the impact that brain injury may have on a person, Dr. Merikangas testified regarding several potential consequences:

Well, brain injury doesn’t make you better. And it often causes people to become short-tempered, irritable. Some suffer frequent headaches, which, of course, Mr. Jefferson was. suffering from. You can have seizures. Epilepsy. But the most common thing with a closed head injury, traumatic injury of this sort, is problems, with judgments, executive planning, and impulse control, the ability to foresee the consequences of your action in the future, as opposed to right now. There’s the kind of an immediacy to the way people act. They are more likely to be short-tempered and do improper things.

(Federal Hearing Tr. at 45.) Dr. Merikan-gas further explained that the negatives associated with brain injury improve right after the injury, but then a person suffering from brain injury is likely to suffer from premature dementia or senility". (Federal Hearing Tr. at 46.)

Dr. Merikangas did not see evidence of Petitioner being short-tempered,' temperamental, or