Full opinion text
ORDER GRANTING WRIT OF HABEAS CORPUS SEAY, Chief Judge. Petitioner was convicted of First Degree Murder and condemned to death in 1988 by the District Court of Pontotoc County, Oklahoma. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed Petitioner’s conviction and death sentence. Williamson v. State, 812 P.2d 384 (Okla.Crim.App.1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992), reh’g denied, 504 U.S. 968, 112 S.Ct. 2325, 119 L.Ed.2d 244 (1992). Petitioner filed an Application for Post-Conviction Relief before the District Court of Pontotoc County which was denied by that court on the 18th day of September 1992. The Oklahoma Court of Criminal Appeals affirmed the trial court’s Denial of Posi^Conviction Relief. Williamson v. State, 852 P.2d 167 (Okla.Crim.App.1993), cert. denied, — U.S. -, 114 S.Ct. 2122, 128 L.Ed.2d 677 (1994). Petitioner now seeks relief from his death sentence pursuant to 28 U.S.C. § 2254 asserting that his conviction and death sentence were obtained in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner has not previously sought habeas corpus relief in federal court. The facts, according to the trial record, are presented here as follows. On December 8, 1982, twenty-one-year-old Debbie Carter was found dead in her garage apartment in Ada, Oklahoma. She was discovered by her father, who had come to check on her at her mother’s request, fearing that something might be wrong. Walking up the stairs to the second floor apartment, Mr. Carter observed glass on the landing and saw the screen door and front door standing wide open. Continuing through the apartment to the bedroom, he found Debbie’s body lying face down on the floor with a washcloth stuck in her mouth. The police were called, and the investigation into the murder began. Detective Dennis Smith of the Ada Police Department was among the first to arrive at the scene. He testified at trial that the apartment showed signs of a struggle. Broken glass was found both inside and outside the front door. In the living room, the sofa cushions and a nightgown were on the floor. On the wall, written in what was later determined to be fingernail polish, were the words, “Jim Smith next will die.” On top of the kitchen table was written, “don’t look fore [sic] us or ealse [sic].” Approaching the bedroom, he found the bed blocking entry into the room. The room was in complete disarray with clothing, sheets, blankets and stuffed animals on the floor. Debbie Carter’s body, nude except for a pair of white socks, was on the floor between the bed and the wall. Written on her back in catsup were the words “Duke Graham.” The word “die” was written on her chest in fingernail polish. A blood-soaked washcloth was stuffed into her mouth and down into her throat. Underneath the body was an electric cord and a belt. The bathroom, connected to the bedroom, showed no signs of a disturbance. Four years and five months later, on May 8, 1987, Petitioner and Dennis Fritz were charged with the murder of Debbie Carter. Separate trials were held, and approximately two weeks before Petitioner’s trial began, Dennis Fritz was found guilty and sentenced to life imprisonment. The following is a time line of significant dates: 1. 12/08/82 Murder 2. 12/09/82 Autopsy 3. 03/14/83 Detective interviewed Petitioner at his mother’s home. Mother gave alibi, saying Petitioner was home by 10:00 p.m. Petitioner gave hair and saliva samples. 4. 11/09/83 Videotape of Petitioner denying involvement in murder of Debbie Carter. 5. 10/01/84-01/23/85 Petitioner allegedly overheard making incriminating statement by fellow inmate Terri Holland in Pontotoc County jail. Petitioner was in county jail during this time on unrelated charges. 6. 08/21/85 In the unrelated ease Dr. Charles W. Amos determined Petitioner was not competent to understand the charges against him or to consult with his attorney. 7. 09/26/85 District Court of Pontotoc County judicially determined Petitioner was mentally ill and unable to assist counsel in the unrelated case. 8. 10/30/85 Dr. R.D. Garcia gave opinion Petitioner was competent to stand trial in the unrelated ease. 9. 02/86 Terri Holland was called into Seminole County DA’s Office during this month. She agreed to pay $800.00 in restitution for some bad checks she had passed earlier. 10. 02/86 Terri Holland first informed DA of alleged confession by Petitioner made in winter of 1984-1985. 11. 05/01/87 Victim’s body exhumed; OSBI matched palm print at crime scene to those of the victim. 12. 05/08/87 Felony charges filed against Petitioner. 13. 05/09/87 Petitioner interviewed by OSBI agent and allegedly related dream confession. 14. 05/22/87 Petitioner allegedly related second dream about murder to John Christian, employee of Pontotoc County Sheriffs Department. 15. 06/01/87 Trial counsel appointed to represent Petitioner. 16. 06/03/87 Letter from parents of Glen Gore’s victim filed in case against Gore. 17. 07/87 Petitioner allegedly overheard by fellow inmate Cindy McIntosh in Pontotoc County Jail after preliminary hearing discussing photographs of victim with co-defendant Dennis Fritz. 18. 09/24/87 Ricky Simmons confessed to the murder of Debbie Carter. 19. 12/14/87 Petitioner filed pretrial motion to dismiss for lack of speedy trial. Motion was overruled. 20. 04/12/88 Trial of co-defendant Dennis Fritz concluded. 21. 04/20/88 Notice of Evidence in Support of Aggravators filed; no record of receipt by Petitioner’s counsel. 22. 04/21/88 Petitioner’s trial commenced. 23. 04/27/88 Jury found Petitioner guilty of Murder in the First Degree. 24. 04/28/88 Second stage of trial set punishment at death. 25. 04/29/88 Hearing on Brady issue regarding 1983 Videotape (48 hours after guilty verdict returned). 26. 05/19/88 Judgment and Sentence on Conviction filed in the District Court of Pontotoc County, Oklahoma. Petitioner asserts seventeen grounds for relief. Respondent filed a response by and through the Attorney General for the State of Oklahoma. In addition, pursuant to the order of this court, Respondent and Petitioner provided the court a complete record of the trial court proceedings which includes a transcript of the trial in Case No. CRF-87-90 and transcripts of the evidentiary hearings and hearings on motions. The court has reviewed (1) the Petition for Habeas Corpus; (2) the response to the petition filed by the State of Oklahoma; (3) the trial transcript in Case No. CRF-87-90; (4) the preliminary hearing transcript; (5) the transcripts of the hearings on motions and evidentiary hearings; and (6) the records before the Oklahoma Court of Criminal Appeals, including all state court docket sheets. As a result, this court finds that the records, pleadings and transcripts of the state proceedings provide all the factual and legal authority necessary to resolve the matters in the petition and, therefore, an evidentiary hearing is unnecessary. Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (Sumner I); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (Sumner II). Because Petitioner’s competency is the threshold issue, this court will first examine that claim. I. COMPETENCY A. Ineffective Counsel Ineffective assistance of counsel claims may fall into two categories. First are claims that the defendant was deprived of his right to effective assistance of counsel because counsel simply failed to provide adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). Claims in the first category are called “actual ineffectiveness claims.” Id. Second are claims that the government violated the defendant’s right to effective assistance of counsel by impermissibly interfering with counsel’s ability to make independent decisions about how to conduct the defense. Id. Petitioner has raised both types of claims in his Petition. To prove counsel’s performance was deficient under an “actual ineffectiveness” claim, Petitioner bears the burden of meeting the two-prong test of Strickland. In Strickland the United States Supreme Court held that a defendant must show: (1) “that counsel’s performance was deficient” with reference to prevailing professional norms, and (2) “that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. at 2064; United States v. Rivera, 900 F.2d 1462, 1472 (10th Cir.1990). Prejudice is shown by demonstrating “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068 (emphasis added); Rivera, 900 F.2d at 1472. A reasonable probability is a. probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. This review must be approached with considerable restraint. As the Supreme Court noted in Strickland: Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Petitioner argues he was denied effective assistance of counsel during the first stage of trial by counsel’s failure to fully investigate and utilize evidence of Petitioner’s mental illness. Evidence of Mental Illness Petitioner has been observed and treated for mental illness since 1979. He has been diagnosed as displaying behavior indicative of schizophrenia, Bipolar Disorder, Borderline Personality Disorder, and Paranoid Personality Disorder, as well as other types of personality disorders. However, in spite of his lengthy history of mental illness and an actual judicial determination of his incompetency in the same district court in an unrelated ease two and one-half years earlier, the competency of Petitioner to stand trial in this case was never determined. Petitioner’s counsel was aware of some of Petitioner’s mental illness problems. His stated reason for not pursuing this issue was that Petitioner had already been found competent in 1985 in another criminal proceeding, and none of the mental health professionals of whom he was aware had indicated Petitioner did not know right from wrong (Pet., App. K, Affidavit No. 6). This statement reveals that counsel’s decision was based on both inadequate information and a misconception of the law. The test to determine competency of a criminal defendant’s ability to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); see also Lafferty v. Cook, 949 F.2d 1546, 1550-56 (10th Cir.1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1942, 118 L.Ed.2d 548 (1992) (a defendant must have a rational as well as actual understanding of the proceedings against him); Ake v. State, 778 P.2d 460, 464 (Okla.Crim.App.1989). Counsel outlines by affidavit three documents he relied upon to decide whether he would raise the issue of Petitioner’s competency: (1) a letter dated October 1,1985, and signed by Dr. Garcia, the then Chief Forensic Psychiatrist at Eastern State Hospital concerning Petitioner’s competency in a pri- or, unrelated ease; (2) A letter from Norma Walker, a social worker with Mental Health Services of Southern Oklahoma; and (3) A psychological report prepared by Claudette S. Ray, M.S., the Clinical Director of the Guidance Clinic of the Pontotoc County Health Department. Counsel further states in his affidavit, “I collected no other documentation regarding Mr. Williamson’s psychiatric history.” (Pet., App. K, Affidavit No. 6). The Psychological Report by Dr. Garcia On September 26, 1985, approximately three years before Petitioner’s trial in this case a special district judge for the District Court of Pontotoc County, Oklahoma, found Petitioner mentally ill and unable to assist counsel (Pet., App. J, Index 7). Petitioner had been charged with escape from house arrest for a bogus check conviction. The judge in that case officially adjudged and decreed Petitioner unable to appreciate the nature of the charges against him, consult with his counsel or rationally assist in his defense. Id. The court further found that he “is a mentally ill person or persons requiring treatment as defined by Oklahoma Statute Title 43A Section 3 ...” Id. The court based its findings on an evaluation by Dr. Charles W. Amos and “in court observation of defendant ...” Id. Dr. Amos evaluated Petitioner approximately one month before the district court made these findings and noted that Petitioner was admitted for evaluation of his competency to stand trial on the escape charge (Pet., App. J, Index 6). Dr. Amos found Petitioner was not competent either to appreciate the charges against him or consult with his attorney. An evaluation indicated Petitioner was probably “delusional.” Dr. Amos recommended Petitioner’s transfer to Eastern State Hospital for evaluation. Id. Pursuant to Dr. Amos’s recommendation, the District Court of Pontotoc County ordered Petitioner to Eastern State Hospital for evaluation (Pet., App. J, Index 7). Petitioner was under observation at the hospital from September 30, 1985, through October 30, 1985 (Pet., App. J, Index 8). At the end of the commitment period, on October 30, 1985, approximately one month after the district court made the judicial determination of incompetency, R.D. Garcia, M.D., gave his opinion that Petitioner was competent to stand trial, but prescribed Thorazine, Dalmane, Ristoril, Duadaein, and Mellaril. Dr. Garcia also noted disturbed/psychotic behavior, diagnosed Borderline Personality Disorder, and found Petitioner was a “sociopath.” Dr. Garcia released him to stand trial, but recommended he take 100 mg. of Thorazine four times a day. Id. After Eastern State Hospital discharged Petitioner, legal proceedings resumed without further inquiry into his competency. The district court did not hold a post-examination competency hearing to determine Petitioner’s competency to stand trial. Thus, counsel’s reliance on Dr. Garcia’s evaluation of Petitioner is unreliable, because that evaluation was conducted more than two years before the trial in this ease. In addition, an opinion by a psychiatrist does not alter an earlier judicial ruling that a person is incompetent. The Pontotoc court’s initial incompetency determination and the findings of Dr. Amos were available to counsel at the time of Petitioner’s trial. The Letter from Norma Walker Counsel also had in his possession a letter dated July 16, 1987, from Ms. Norma Walker, a social worker with Mental Health Services of Southern Oklahoma (Pet., Appendix J, Index 10). In her letter Ms. Walker outlined the information contained in Petitioner’s chart with that institution, including the various times he had utilized the services of that facility since 1980, the professionals he had seen there, the drugs he had been prescribed, and other institutions where Petitioner had received treatment. In this letter Ms. Walker states: This client has been suspected by each counselor who saw him of shamming, malingering, [or] attempting to manipulate the system. The known abuse of alcohol and drugs complicates the picture. There may be neurological damage or organic brain syndrome. Or the client may know how to feign thought disorder. As an outpatient facility we are not equipped to rule out those conditions. He needs a complete neurological evaluation by experienced professionals in an inpatient facility. This is the only way to obtain a differential diagnosis in this case, in my opinion. Id. (emphasis added). Despite direct knowledge of Ms. Walker’s assessment, trial counsel ignored Petitioner’s need for a neuropsychological evaluation by experienced professionals. The fact that Petitioner never had this evaluation is particularly troubling in light of the fact that Ms. Walker herself stated her facility was not qualified to adequately assess Petitioner’s condition. Another letter also written by Ms. Walker approximately three months later, dated October 21, 1987, states: I last saw Ron Williamson on February 20, 1987, and he was not capable of managing his daily living activities. He was greatly impaired in his ability to make reasonable life decisions. He was disoriented to time, was impaired in attention span, abstract thinking and level of consciousness. He was at times delusional, also showing an associational disturbance and confused thinking. He showed very poor judgment and was not taking care of his own needs for food or shelter. He was unmedieated at that time, and refused to take medication. Even when he had been on medication, he was quite unrealistic in his expectations of how others would act. His perceptions of reality were seriously distorted. He would be unable to care for himself without being medicated, and would be hard to manage, even with medication. From my experience, I expect him to need long-term institutionalization for his diminished mental capacities and unmanageable behavior. (Pet., App. K, Affidavit; Letter No. 10) (emphasis added). It is not apparent from the record whether this letter was in counsel’s possession. However, Ms. Walker does state in her affidavit that she would have been “willing to assist and cooperate with Mr. Williamson’s defense in the prosecution of murder charges filed against him in May of 1987, and tried in April of 1988, if [she] had been contacted by Mr. Williamson or his attorney or some other authorized representative.” Id. It is, therefore, apparent from the record that information in this letter would have been available to Petitioner’s counsel if he had contacted Ms. Walker. The Psychological Report by Claudette S. Ray, M.S. The third document in the possession of trial counsel was a psychological report dated October 5, 1987, and prepared by Claudette S. Ray, M.S., the Clinical Director of the Guidance Clinic of the Pontotoc County Health Department (Pet., App. K, Affidavit; Psychological Report No. 9). Ms. Ray states in pertinent part: Ron is consciously anxious due to situational stress. He feels helpless to alter his situation or better himself. He may behave inappropriately, such as not attending preliminary hearings which would benefit him, because of his panic and confused thinking. Most individuals would be demanding to hear information and opinions that would influence their future life or death. Id. These documents clearly indicate a problem which should have alerted counsel that further investigation was necessary before he made the critical decision either to proceed to trial or forgo an insanity defense. Further, if counsel indeed visited with members of Petitioner’s family, as found by the Court of Criminal Appeals, Williamson, 812 P.2d at 413, he would have discovered the information contained in their affidavits attached to this Order. “[I]n a capital case the attorney’s duty to investigate all possible lines of defense is strictly observed.” Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987), reh’g denied, 483 U.S. 1034, 107 S.Ct. 3279, 97 L.Ed.2d 783 (1987). See also Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995); and Thomas v. Kemp, 796 F.2d 1322 (11th Cir.1986), cert. denied, 479 U.S. 996, 107 S.Ct. 602, 93 L.Ed.2d 601 (1986). “Counsel has a duty to make reasonable investigations or to make reasonable decisions that make particular investigations unnecessary.” Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066. Trial counsel here did not meet these rudimentary constitutional standards. A cursory review of the medical records of Petitioner would have revealed the following excerpts: 1. December 3,1979 St. Anthony Hospital, Oklahoma City, OK Actually this boy has demonstrated rather bizarre and sometimes psychopathic behaviour [sic] whether he is manic as the counselor in Ada thought or a schizoid individual with sociopathic trends, or the reverse, sociopathic individual with schizoid trends may never be determined____ Long term treatment may be required but he does not feel he needs treatment for schizophrenia____ (Pet., App. J, Index 1). 2. November 3, 1980, to December IS, 1980 Mental Health Services of Southern Oklahoma Initial Diagnostic Impressions: Alcohol Addiction and Unspecified Drug Dependence. Referred to Bridge House for treatment for alcoholism. (Pet., App. J., Index 2). 3. November 6-9, 1981 Central State Hospital, Norman, Oklahoma Diagnosis: Dysthymic Disorder and alcohol abuse. Initial Treatment Plan: Chemotherapy and counseling. (Pet., App. J., Index 3). 4. November 16,1981, to February 11,1982 Mental Health Services of Southern Oklahoma Discharge Diagnostic Impression: (DSM-II) 300.4. Prognosis: Fair, suicidal ideation. Medications prescribed: Asendin 50 mg. x 100 on T.i.d. Recommendations: Needs more psychotherapy (Pet., App. J, Index 4). 5. June 30, 1983, to July 6, 1983 Mental Health Services of Southern Oklahoma (Valley Hope Association) This man may be exhibiting a cry for help or he may have answered the questions in a rather random fashion. It is possible of course that he is quite disturbed and the counselor should look for psychotic symptomatology. If the profile is of some validity, we can look for a great deal of emotional turmoil____ This individual is one who would accept little responsibility for his own behavior and he is likely to strike out in anger or hostility as a defense against being hurt. He sees the world as a very threatening and scary place and defends himself by being hostile or being withdrawn. Ron seems very immature and will present a picture of one who is rather unconcerned. In looking at the sentence completion test, one might assume that Ron took the test in a rather cynical and unconcerned fashion and perhaps did not mark the answers to the MMPI statements with any degree of rational thought. Diagnostic Impression: Alcohol Dependence Schizophrenic Disorder Mixed Personality Disorder Prognosis: Poor (Pet., App. J, Index 5). 6. Auyust 21,1985 Mental Health Services of Southern Oklahoma His intellectual functioning seems average, but he displays an impaired level of consciousness. He was oriented to person, place, and time. Insight is poor based on past admission records. He is most likely delusional at this time. It should be pointed out that this examiner’s interview with Mr. Williamson shows a marked deterioration of emotional function since our last encounter in 1982. Diagnosis (DSM III) Axis I (1) Alcohol Dependence (2) Unspecified Substance Dependence (3) Atypical Psychosis Conclusions and Recommendations of Dr. Charles W. Amos: Based on Mr. Williamson’s current mental status it is felt that he cannot be evaluated on an outpatient basis. It is recommended that he be transported to Eastern State Hospital for inpatient observation and evaluation. (Pet., App. J, Index 6). 7. September 26, 1985 District Court of Pontotoc County, Oklahoma After a review of the evaluations made by Charles W. Amos M.D. from the Mental Health Services of Southern Oklahoma, Ada, Oklahoma, previous testimony and the court’s in court observation of defendant, the Court finds: (1) That the defendant is not able to appreciate the nature of the charges against him; (2) That the defendant is not able to consult with his lawyer and rationally assist in the preparation of his defense; (3) That the defendant may be able to attain competency within a reasonable time if provided with a course of treatment, therapy, or training; (4) That the defendant is a mentally ill person or a person requiring treatment as defined by Oklahoma Statute Title 43A Section 3; and (5) The defendant, if released without treatment, therapy, or training, would probably pose a significant threat to the life or safety of himself or others. Therefore, the court orders that the defendant be committed to custody of the Department of Mental Health to receive treatment, therapy, or training as specified by Eastern State Hospital.... (Pet., App. J, Index 7). 8. September 30, 1985, to October 30, 1985 Eastern State Hospital, Vinita, Oklahoma Conclusions and Recommendations by R.D. Garcia, M.D. issued to the District Court of Pontotoc County approximately one month after that court’s order: He is a sociopath and has history of alcohol abuse. He must continue to take Thorazine, 100 m.g. tablet, four times a day. Diagnosis: Alcohol Abuse with psychotic features, in remission with chemotherapy. Uncomplicated bereavement; Borderline personality disorder. Dr. Garcia opined that Petitioner was competent to stand trial. (Pet., App. J, Index 8). 9. October 15, 1986 through January 27, 1987 Mental Health Services of Southern Oklahoma Progress Notes: 12-9-86 Diagnosis Bipolar illness, manic phase 12-16-87 Sister called; Ron psychotic, won’t come home____ 12-20-87 Just before 2 p.m., sister called asking to see me with Ron and her husband, Marlin. Saw the three of them. Annette wanted to know what to do. Gave her options. Ron refuses to go voluntarily, not yet psychotic enough to be committed. Holds together in speech for brief periods, changes mind frequently, obvious difficulties at times in finishing thoughts. Sometimes holds mouth open and stares____ (Suspect possible petit mal seizures.) ... He is not yet incoherent, does exhibit extremely poor judgment and agitated behavior. Sister reports talk of suicide by gun. He will probably be violent when an attempt is made to E.O.D. him. 1-27-87 Letter from Norma Walker: Ron Williamson has been a client of MHS/SO four times, the most recent admission being on 10-15-86. He had just been released from prison and was stable on Lithium.... We do not know where he is nor what condition he is in. Without meds, he is belligerent, abusive, physically violent, has religious delusions and a thought disorder.... (Pet., App. J., Index 9). 10. November 9, 1987 Department of Human Services Granted Disability Benefits due to mental disorder. (Pet., App. J, Index 13). 11. February 28, 1987, to March 24, 1987 Central State Hospital, Norman, Oklahoma Initial Psychiatric Diagnosis: Axis I: Mixed Substance Abuse, Continuous Alcohol Abuse, Episodic Rule out Cyclothymic Disorder v. Major Affective Disorder, mixed type Axis II: Mixed Personality Disorder Axis III: No diagnosis. Prognosis: Guarded Final Diagnosis: Axis I: Major Affective Disorder, Mixed Type Mixed Drug and Alcohol Abuse, Continuous Axis II: Mixed Personality Disorder Axis III: No Diagnosis (Pet., App. J, Index 14). 12. June 1987 through 1988 Mental Health Services of Southern Oklahoma Role Performance Profile: Major Role Functionality: Grossly Impaired Personal Independence: Grossly Impaired Social Interdependence: Grossly Impaired Social Appropriateness: Grossly Impaired Global Role Functioning Scale: Grossly Impaired (Pet., App. J., Index 10). 13. September 29,1989 Eastern State Hospital, Vinita, Oklahoma Letter dated 9-28-89 from John M. Marsh, M.D., Chief Staff Physician to Alex Lizarraga, M.D., Eastern State Hospital: In the past, he has had psychiatric diagnosis of atypical bipolar disorder and schizophrenia and has been treated with Lithium, Navane, Artane and Thorazine on various occasions. Currently, he takes Mellaril 100 m.g. HS. His behavior, while at Oklahoma State Penitentiary is varied to relatively stable condition, with and without medications, to periods of rather striking depression and periods of hyperactivity and irritability with some mania____ In early September, he became depressed and developed progressive withdrawal, finally assuming a fetal position lying on his bunk and responding poorly to efforts of communication with others____ His diagnosis is unclear at this time, though he may represent an atypical bipolar disorder---- Thank you very much for seeing this patient. Progress notes from Eastern State Hospital: 9- 29-89 Potential of danger to self due to verbal threats and previous self-inflicted gestures -ie- lacerations to forearm and wrist and May 89 burned left ankle and foot unable to function at DOC setting. Upon admission to ward — placed on minimal suicide precautions____ 10- 9-89 The patient has been very despondent since his incarceration approximately 16 months ago on a first degree murder conviction out of Pontotoc County. The patient has reportedly attempted suicide on several occasions at OSP. The patient did not report hallucinations during his stay at OSP, but family members have reported earlier occurrences of visual hallucinations just prior to the patient’s arrest in 1988 [sic]____ While at OSP, the patient was on medication consisting of Mellaril, 100 mg., at h.s. In the past, the patient has been treated with Lithium, Na-vane, Artane, and Thorazine on various occasions (emphasis added). (Pet., App. J, Index 11). 14. 1992-1994 Special Needs Unit Oklahoma State Penitentiary, McAlester, Oklahoma Progress Notes: 1-5-93 Brought to IHCC complaining of heart attack____ Rambling speech pattern wants staff to kill him or get someone else to do it---- 8-10-94 A brief meeting with him ... he wants all his medications discontinued ... he claims its [sic] a waste of time and effort. I tried to convince him to adjust it, or change it, but he refused. Unable to convince him, dysphoric behavior. (Pet., App. J, Index 12). In addition to his duty to investigate, counsel also had a continuing obligation to ask that the proceedings be suspended, if he became aware of “facts sufficient to raise a doubt as to the competency” of Petitioner during any stage of the criminal proceedings. Okla.Stat. tit. 22, § 1175.2 reads: No person shall be subject to any criminal procedures after he is determined to be incompetent____ The question of the incompetency of a person may be raised by the person, the defense attorney, or the district attorney by an application for determination of competency. The application for determination of competency shall allege that the person is incompetent to undergo further proceedings, and shall state facts sufficient to raise a doubt as to the competency of the person____ (emphasis added). Section 1175.1 defines “Criminal Proceedings” as “every stage of a criminal prosecution after arrest and before judgment, including, but not limited to, interrogation, lineup, preliminary hearing, motion dockets, discovery, pretrial hearings and trial ...” (emphasis added). Therefore, it is apparent counsel’s obligation to initiate competency proceedings continues until judgment is entered, and failure to initiate a competency hearing may result in a deprivation of due process. When ... no state court competency hearing has been held and the defendant has proceeded to trial without such a hearing, the issue is not whether the state court record supports a finding of competency. Rather the inquiry on habeas is whether [defense counsel] ... denied the defendant his right to due process by ignoring evidence, including evidence at trial, indicating that the defendant might not be competent, and that a hearing to ascertain competency was therefore required. Evidence of a defendant’s trial demeanor is of course relevant in making this assessment because [defense counsel’s] ... duty to inquire as to competency continues through trial. Lafferty v. Cook, 949 F.2d 1546, 1555 n. 10 (10th Cir.1991) (emphasis in original). The record contains the following information which this court finds was sufficient to raise doubt as to Petitioner’s competency and triggered counsel’s duty to investigate, request that the proceedings be suspended and apply for a determination of competency pursuant to Okla.Stat. tit. 22, § 1175.2. First, the court finds relevant the statements and opinions of counsel as set forth in his own affidavit: ... I had significant difficulties in dealing with Mr. Williamson. Mr. Williamson behaved well enough when I visited him at the jail, although I did hear stories from the jailers about incidents of unusual behavior. However his conduct at court appearances was atrocious and unpredictable. At virtually every appearance there was some kind of outburst from Mr. Williamson____ At the preliminary hearing Mr. Williamson became so incensed that he turned a table over on my secretary and Greg Saunders, counsel for Dennis Fritz. At that point Mr. Williamson had to be removed from the courtroom. The preliminary hearing lasted for several days and the magistrate gave Mr. Williamson more than one opportunity to return to the proceedings, but Mr. Williamson always refused. As a result he missed the entire preliminary hearing.... [A]t the jury trial he continued to be disruptive. He argued with the prosecutor and the witnesses in front of the jury, and made a poor argumentative witness. Because of my previous experience with Mr. Williamson I had expected some trouble, and consequently I arranged to have my son sit behind me during the trial with instructions to bring him to the ground if he made any sudden move toward me. On the whole I found my representation of Mr. Williamson to be an extremely unpleasant experience and I was glad to get this case over with____ I was aware that Mr. Williamson was receiving medication in the Pontotoc County Jail, and was receiving medicine through Dr. Marie T. Snow, a local psychiatrist associated with Mental Health Services of Southern Oklahoma. On occasion the jailers would call me when Mr. Williamson ran out of medication and I would contact the personnel at Mental Health Services of Southern Oklahoma to arrange for Dr. Snow to call in another prescription. The only name of the drugs prescribed for Mr. Williamson at that time that I can remember is Thorazine. Early on in my representation of Mr. Williamson I became concerned that he was being over medicated because he appeared to be too drowsy on occasions when I would attempt to interview him. As a result of this problem I requested that Mr. Williamson’s dosage be reduced. Dr. Snow is an elderly lady, and is the only psychiatrist in Ada. I did not find her to be very communicative regarding Mr. Williamson’s mental condition. I never had a formal interview with her regarding Williamson, nor did I subpoena her for the trial or any hearing. However, on one occasion she did tell me not to let the jailers lock me in the cell with Mr. Williamson____ (Pet., App. K, Affidavit No. 6). Petitioner’s conduct during the criminal proceedings should also have put counsel on notice of a potentially serious problem. Indeed, counsel attempted to withdraw from his representation of Petitioner due to Petitioner’s unpredictable and often violent behavior, but the request was denied. Counsel stated, I want the record to show I am now making application to withdraw. That boy won’t cooperate with me at all. If he was paying me, I wouldn’t be here. I can’t represent him, Judge; I just can’t do it. I don’t know who’s going to, but I can’t. And I’m — if I can’t get relief here, I’m going to see if I can’t get it from the Court of Criminal — I’m not going to put up with this. I’m too damn old for it. I don’t want anything to do with him, not under any circumstances---- (PH Tr. 2). It also appears that Petitioner’s conduct became so outrageous during the preliminary hearing that counsel inquired of the judge, “Do you want me to load him down with about a hundred milligrams of — ” (PH Tr. 178). In Fisher v. State, 736 P.2d 1003, 1013 (Okla.Crim.App.1987), aff'd on reh’g, 739 P.2d 523 (Okla.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988), reh’g denied, 487 U.S. 1246, 109 S.Ct. 3, 101 L.Ed.2d 955 (1988), the court stated that appropriate action should be taken when defense counsel’s pretrial preparation and investigation are so woefully inadequate as to undermine confidence in the outcome of the trial. Further, this duty extended throughout the course of the trial, and counsel had at his disposal a state statute to request that all criminal proceedings be suspended until the issue of Petitioner’s competency was resolved. Therefore, this court finds that further investigation by Petitioner’s counsel would have led to evidence which would have materially aided the defense and created a reasonable probability that the result of the trial would have been different. Counsel’s decisions not to seek a professional opinion about Petitioner’s competency before trial, initiate competency proceedings, or pursue an insanity defense cannot be considered matters of trial strategy. These considerations seriously undermine this court’s confidence in the outcome of the trial. See Osborn v. Shillinger, 861 F.2d 612, 626 (10th Cir.1988). Important legal issues raised by mental impairment may also have been exacerbated due to the ineffective assistance of counsel. Initially is the admissibility of admissions and confessions from Petitioner based upon the voluntariness of the statements. Courts have set aside convictions based upon confessions extracted from “persons who have been subjected to persistent and protracted questioning ... or who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely and isolated places for questioning. Any one of these grounds would be sufficient cause for reversal.” Ward v. Texas, 316 U.S. 547, 555, 62 S.Ct. 1139, 1143, 86 L.Ed. 1663 (1942) (footnote omitted); See also Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967); and Lee v. State, 700 P.2d 1017, 1020 (Okla.Crim.App.1985) (ability to voluntarily and intelligently waive Miranda rights). In Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), the Supreme Court held that evidence about the manner in which a confession was secured, besides bearing on its voluntariness, often bears on its credibility, a matter that is exclusively for the jury to assess. The Court found that the physical and psychological environments that yield a confession not only are relevant to the legal question of voluntariness but also can be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence. This is especially true in a case such as this where there apparently was no physical evidence to link Petitioner to the crime. Id. Here, Petitioner was arrested on a Friday night (Tr. 467-68). He was taken from his cell within twenty-four hours of his arrest to be interrogated by Agents Featherstone and Rogers of the OSBI (Tr. 467-69). Petitioner had been interviewed at least twice previously regarding this homicide and had steadfastly denied any involvement (Tr. 472-73). Agent Rogers testified that Petitioner verbally waived his Miranda rights and proceeded to relate that he had had a dream about killing the victim (Tr. 449). Agent Rogers also testified that the interview was terminated when Petitioner invoked his right to counsel (Tr. 450). After this purported confession had already been presented to the jury, the trial court held a hearing to determine its voluntariness (Tr. 464-475). During the hearing, Agent Rogers testified that Petitioner appeared to understand his actions, and he was neither influenced by alcohol or drugs nor threatened or coerced (Tr. 466-67). On cross-examination, Agent Featherstone testified that “he [Petitioner] was not calm, cool, and collected, [yet he] could understand what he was saying” (Tr. 472). Counsel failed to explore this statement to discover the cause of Petitioner’s agitation. Agent Rogers admitted he did not videotape, audiotape, write or read the purported confession for Petitioner’s review or signature, although equipment to properly record Petitioner’s statement was readily available (Tr. 481-83). Counsel filed no motions challenging the admissibility of the admissions or the confession based on voluntariness due to the manner in which they were secured or the apparent mental problems of Petitioner. See United States v. Rivera, 900 F.2d 1462, 1473 (10th Cir.1990) (failure to file motions to suppress may render counsel ineffective). Further, counsel presented no evidence at the hearing concerning the lack of a knowing and intelligent waiver by Petitioner of his Miranda rights, although Petitioner’s admissions and confession were made during a period in 1987 when he had been in and out of mental institutions and on and off medication (Tr. 464-465). Petitioner’s mental illness may have rendered it impossible for him to understand his constitutional rights, or in any way to waive them knowingly, intelligently, and voluntarily. See Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (any use of an involuntary confession against a defendant in a criminal trial violates due process), and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The most important point not investigated by counsel was the fact that Petitioner was not on his medication when he waived his rights and gave the dream confession. This was confirmed in the October 21, 1987, letter from Ms. Norma Walker (Pet., App. K, Affidavit No. 10). When Petitioner was arrested on May 8, 1987, he had been off his medication for over a month and remained unmedicated until June 1987. Thus, Petitioner was questioned by Agent Rogers and Featherstone during a time when he may have been suffering from delusional thought, impaired consciousness, and confused thinking. Id. Ms. Walker’s letter informed counsel that Petitioner could not care for himself when he was unmedicated, yet counsel failed to present any evidence of how much Petitioner slept and ate while he was in jail and while he was off his medication (Pet., App. K, Affidavit No. 10). Counsel continually ignored overwhelming evidence of Petitioner’s mental problems. Without a comprehensive understanding of Petitioner’s psychiatric history, and absent the benefit of a court appointed psychiatrist, counsel did not and could not have had adequate knowledge to forego challenging (1) the voluntariness of his client’s confession based on his mental handicap and the manner in which it was extracted; (2) the admissibility of the admissions made during his stay in the Pontotoc County Jail after being charged with murder, but before trial; and (3) the waiver of his client’s Miranda rights. Penalty Stage The failure of counsel to present any mitigation evidence in the second stage of the proceedings also fell below the requirements set forth in Strickland. In Oklahoma, the jury is required to weigh the aggravating and mitigating factors to determine whether the death penalty should be imposed. Okla.Stat. tit. 21, § 701.11. In this case, the jury found that the following three aggravating factors applied to the murder: (1) there exists a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; (2) the murder was especially heinous, atrocious or cruel; and (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. However, there was no mitigating evidence presented, as counsel rested at the conclusion of the State’s case. As the Supreme Court has held, defense counsel must discharge significant constitutional responsibilities at the sentencing phase of a capital trial. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In a capital ease “accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may have never made a sentencing decision.” Gregg v. Georgia, 428 U.S. 153, 190, 96 S.Ct. 2909, 2933, 49 L.Ed.2d 859 (1976), reh’g denied, 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). In Gregg and its companion cases, the Court emphasized the importance of focusing the jury’s attention on “the particularized characteristics of the individual defendant.” Id. at 206, 96 S.Ct. at 2941. See also Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Roberts v. Louisiana, 428 U.S. 325, 333, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976), reh’g denied, 429 U.S. 890, 97 S.Ct. 248, 50 L.Ed.2d 173 (1976), and Woodson v. North Carolina, 428 U.S. 280, 303-305, 96 S.Ct. 2978, 2990-2992, 49 L.Ed.2d 944 (1976). To determine whether counsel’s performance was below the prevailing standards, the court must review the record. Had trial counsel investigated and secured the necessary witnesses, he could have presented evidence of Petitioner’s life history, his increasing inability to function and the considerable medical documentation. Therefore, this court concludes that counsel performed well below the prevailing norm in his handling of the penalty phase of this capital ease. Having reached this conclusion the court must next determine whether Petitioner has met his burden of proving that counsel’s ineffective assistance prejudiced him. The Tenth Circuit Court of Appeals noted in Osborn v. Shillinger, The Court intended the prejudice standard to be flexible, it emphasized that “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Instead, the defendant bears the burden of showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” 861 F.2d 612, 626 (10th Cir.1988) (quoting Strickland, 466 U.S. at 693, 694, 104 S.Ct. at 2067, 2068) (internal citations omitted). When the ineffective assistance claim relates to the sentencing phase of the trial, the standard is whether there is “a reasonable probability that, absent the errors, the senteneer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. In deciding whether Petitioner was prejudiced, the court must keep in mind the strength or weakness of the State’s case and the aggravating factors the jury found, as well as the mitigating factors that might have been presented if Petitioner had been provided effective assistance of counsel. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. Given the weakness of the case against Petitioner, this court has little doubt that the available mitigating evidence would have changed the jury’s decision to impose the death penalty. Considering the scarcity of evidence, this court concludes that had the jury been presented with mitigation evidence, including Petitioner’s long history of psychiatric problems, a reasonable probability exists that the outcome of Petitioner’s trial would have been different and the balance of aggravating and mitigating circumstances did not warrant death. B. Deprivation of Due Process Respondents argue that the issue of whether Petitioner was denied due process by the State’s failure to order a competency evaluation sua sponte is not subject to review due to a procedural bar. This issue was raised by appellate counsel as Proposition No. 32 in the Petition for Post Conviction Relief. However, the issue was deemed waived by the Oklahoma Court of Criminal Appeals in the Order Denying Post-Conviction Relief, Case No. PC-92-1010, dated May 3, 1993. It is a well-established principle that federal courts will not review a state court’s interpretation of federal law on direct review, “if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support that judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991), reh’g denied, 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109 (1991). A state court’s finding is considered independent “if it is separate and distinct from federal law.” Andrews v. Deland, 943 F.2d 1162, 1188 n. 40 (10th Cir.1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992), reh’g denied, 503 U.S. 967, 112 S.Ct. 1580, 118 L.Ed.2d 221 (1992) (citing Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985)). In Ake, the Supreme Court held Oklahoma’s waiver rule does not apply to fundamental trial error which necessarily included federal constitutional error. Ake, 470 U.S. at 74-75, 105 S.Ct. at 1091-1092. The Court stated: Thus, the State has made application of the procedural bar depend on an antecedent ruling of federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question. Id. at 75, 105 S.Ct. at 1092. Because this state procedural ruling is dependent on an antecedent ruling of federal law, “the state-law prong of the court’s holding is not independent of federal law.” Id. Therefore, under the holding of Ake, this court concludes the Court of Criminal Appeals’ decision did not rest on an “independent” state law ground and this claim is not procedurally barred. Accordingly, the court must address the merits of this claim. The conviction of an incompetent person is a denial of due process. See Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956) (per curiam decision summarily vacating the judgment and remanding to district court for a competency hearing); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). Where a doubt exists as to a defendant’s competency, the failure to conduct the proper inquiry is a deprivation of his constitutional right to due process. See Pate, 383 U.S. at 385, 86 S.Ct. at 842. Due process requires a trial court to conduct a competency hearing sua sponte whenever the “evidence raises a bona fide doubt as to the defendant’s competence to stand trial.” ... The Court has acknowledged that there are no “fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed” ... but has recommended that the factfinder consider “evidence of a defendant’s irrational demeanor at trial, and any prior medical opinion on competence to stand trial” in reaching its decision. The Court noted that even one of these factors standing alone may, in some circumstances, be sufficient. Information tending to establish the requisite doubt “need not be presented in a formal motion nor argued by defense counsel nor presented to the judge in the form of admissible evidence.” Coleman v. Saffle, 912 F.2d 1217, 1224 (10th Cir.1990), cert. denied, 497 U.S. 1053, 111 S.Ct. 22, 111 L.Ed.2d 834 (1990) (citing Drope v. Missouri, 420 U.S. 162, 180-181, 96 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975)) (internal citations omitted and emphasis added). The duty to investigate and in appropriate circumstances to request that criminal proceedings be suspended pursuant to Okla.Stat. tit. 22, § 1175.2A when the defendant’s competency is in question, is placed upon not only defense counsel but also the district attorney. See also Okla.Stat. tit. 19, §§ 215.4-215.35A. “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” Okla.Stat. tit. 5, Ch. 1 App. 3-A, Rule 3.8 comment (1995). Further, “[t]he court, at any time, may initiate a competency determination on its own motion, without an application, if the court has a doubt as to the competency of the person.” Okla.Stat. tit. 22, § 1175.2A. After a careful review of the record, this court concludes that there was sufficient evidence before the trial judge and district attorney to mandate a hearing on Petitioner’s competency to stand trial. It is apparent from the record that both the preliminary hearing and trial judges had prior knowledge of Petitioner’s mental problems. Ironically, the special district judge who presided at Petitioner’s preliminary hearing was the same judge who, less than three years earlier, declared Petitioner incompetent to stand trial in Case No. CRF 84-218 (Pet., App. J, Index 7) and then proceeded with the case without a subsequent finding to the contrary (Pet. 27). The district judge who presided at Petitioner’s trial was approached as early as 1979 by Petitioner’s sister Annette Hudson seeking professional help for her brother (Pet., App. K, Affidavit No. 4). Although these two different judges presided at the preliminary hearing and trial, the statutory duty to suspend proceedings under appropriate circumstances was upon them both. A preliminary hearing is included in the definition of “criminal proceeding” under the statute. Okla.Stat. tit. 22, § 1175.1(3). Further, Petitioner’s disruptive behavior, during both his preliminary hearing and trial proceedings, unquestionably raised serious doubts as to Petitioner’s competency. Petitioner turned counsel table over on counsel’s secretary during the preliminary hearing and was required to leave (P.H. Tr. 2-7). Despite numerous requests by the judge, Petitioner never returned. As noted earlier in this Order, one of Petitioner’s treating therapists observed that most persons in Petitioner’s position would have insisted upon being present at a proceeding as important as the preliminary hearing in a murder case (Pet., App. K, Affidavit; Psychological Report No. 9). Defense counsel also related to the trial court judge that Petitioner’s abnormal behavior and heavy medication with Thorazine interfered with his client’s ability to assist him in the preparation of the defense. In fact, many times throughout the trial defense counsel and the trial judge held bench conferences discussing Petitioner’s inability to function properly and the possible effects of his disruptive behavior upon the jury. Having found that Petitioner’s constitutional rights were abridged by the failure to receive a hearing on his competence to stand trial at the request of defense counsel, the district attorney or the trial judge, this court directs that a conditional writ of habeas corpus must issue. If the State elects to retry Petitioner, he will, of course, be entitled to raise the question of his competence to stand trial at that time and to request a special hearing on that issue. In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Supreme Court discussed whether the state could discharge its constitutional obligation by conducting a limited hearing to determine the defendant’s mental competence at the time he was tried. The Court found that a limited hearing would not be sufficient due to the difficulty of “retrospectively determining an accused’s competence to stand trial.” Pate, 383 U.S. at 387, 86 S.Ct. at 843 (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). The Court also noted that “the jury would not be able to observe the subject of their inquiry, and expert witnesses would have to testify solely from information contained in the printed record. That Robinson’s hearing would be held six years after the fact aggravates these difficulties.” Id. In Petitioner’s case the fact that seven years have elapsed since he was tried emphasizes the futility of conducting a limited hearing to determine in 1995, his competence to stand trial in 1988. If found competent to stand trial, Petitioner will have the usual defenses available to an accused. This court shall now address additional constitutional errors which are further grounds for granting the writ of habeas corpus and which may affect Petitioner in the event of retrial. II. CLAIMS OF INEFFECTIVE COUNSEL UNRELATED TO COMPETENCY In addition to claims of ineffective counsel related to competency, Petitioner contends counsel was ineffective for failing to adequately investigate two witnesses and for failing to utilize certain evidence concerning these witnesses. Further, Petitioner argues counsel was ineffective, because he failed to introduce a confession by Ricky Simmons, given after Petitioner was charged with the crime. A. Glen Gore Petitioner argues counsel did not thoroughly investigate and present evidence concerning Glen Gore as a suspect in the ease. Glen Gore was admittedly the last person to see Debra Sue Carter alive (Tr. 320). Gore said he and a friend went to another club after leaving Ms. Carter at the Coach Light Club (Tr. 316), but Tommy Glover testified for the prosecution that he saw Gore talking to Ms. Carter as she was getting into her car to leave the club (Tr. 340). Gore agreed to submit to a polygraph examination, but one was never administered (Tr. 321-22). He said he gave hair samples at least twice, perhaps three times (Tr. 322). But, when these samples were finally examined in 1988, the OSBI failed to compare them to the 32 unidentified hairs found in the victim’s apartment. Rather, the State’s expert inexplicably compared the Gore hairs to the slides he was preparing to testify about in court, i.e., the hairs he had already identified as microscopically consistent with Debra Carter, Petitioner, or Dennis Fritz. Finally, although fingerprints from 23 suspects and 21 other individuals who had been in the victim’s apartment were sent to the OSBI for comparison with the prints found in the apartment, Gore’s fingerprints were never submitted (O.R. 63-67). At the time Gore stated he would not testify at Petitioner’s trial, he was serving a forty-year sentence on convictions for, among other things, burglary, kidnapping, shooting with intent to injure, and feloniously pointing a weapon — all involving an attack on a young woman and her daughter (PH Tr. 33; Tr. 327-28; Pet. 43). According to Petitioner’s report of the criminal file in the State’s case against Gore, a plea bargain agreement was entered just one week after Gore was listed as an additional witness in Petitioner’s case. Apparently, a second kidnapping charge and a charge of assault and battery with a dangerous weapon were then dropped. The court file in that case contained a letter from the victim’s parents in which they implored the judge to set a long sentence for Gore, stating: We want you to be aware of how dangerous we feel this man is. He intends to kill our daughter, granddaughter, and ourselves. This he has told us. We have gone to great lengths to make our daughter’s home burglar proof, but all failed. To go into detail of all the times he has attacked her would make too lengthy a letter. Please give our daughter enough time to get the child raised before he is out of prison and the terror starts, again, so the little one never has to live through that again. Petitioner’s uncontested assertion is that this document was filed June 3, 1987, so it was available for impeachment purposes at the time Gore testified at the preliminary hearing (Pet. 44). Counsel did not develop any testimony regarding Gore’s prior convictions (PH Tr. 32-45). Impeachment during the preliminary hearing wa