Full opinion text
SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, J., joined. COLE, J. (pp. 215-218), delivered a separate opinion concurring in part and dissenting in part. OPINION SUHRHEINRICH, Circuit Judge. In April 1988, a unanimous three-judge panel of the Court of Common Pleas, Hamilton County, sentenced William H. Smith (“Smith” or “Petitioner”) to death for the aggravated murder of Mary Bradford. The Ohio state courts denied all of Smith’s claims for relief, as did the federal district court on habeas. Smith now appeals from the judgment of the district court denying his application for writ of habeas corpus under 28 U.S.C. § 2254, challenging both his conviction and sentence. The principal issue on appeal is whether trial counsel were ineffective for failing to present mitigating evidence at sentencing. For the following reasons, we AFFIRM the judgment of the district court. I. Background A. Facts The following facts are taken from the Ohio Supreme Court’s opinion on direct appeal. On Saturday afternoon, September 26, 1987, Mary Virginia Bradford, age forty-seven, visited the Race Inn, a neighborhood bar in Cincinnati, Ohio. While at the Race Inn, she had several beers and met, talked, and danced with William H. Smith, appellant, a regular bar patron. She left the Race Inn around 11:45 p.m. Around 4:00 p.m., on September 27, Marvin Rhodes, Bradford’s boyfriend, stopped by her apartment because he had not seen her since Friday, September 25. No one answered the doorbell, but Rhodes saw blood near the front door and found Bradford in the bedroom. Feeling her face, he found no life in her body and called the police. Responding police officers found Bradford lying stabbed to death on her bed, nude from the waist down. On the floor, near her bed, police found a woman’s pants and panties, bloodstained and turned inside out, and, on the bed, an oxygen machine used by asthmatics. Forensic examination disclosed a .13 blood-alcohol level and revealed sperm in her vagina and on her abdomen. Near the front door of the apartment, police found a chair, with a pool of blood on it, and, on the floor, blood smears including a bare bloody footprint leading to the bedroom. The apartment was otherwise exceptionally neat and clean, with no signs of disorder, disarray, or a struggle, and police found no murder weapon in the apartment. One color television, one black and white television, and a stack stereo with two speakers were missing from Bradford’s apartment. Dr. Harry J. Bonnell, Chief Deputy Coroner, testified that Bradford died as a result of ten stab wounds to her upper body and consequent loss of blood. She was five feet, three inches tall, weighed one hundred sixteen pounds, and a portion of her lungs was missing, which explained her asthmatic condition. Bon-nell numbered the wounds from one to ten for descriptive purposes (but not indicative of the order in which inflicted). The most lethal wounds, causing incapacitation within five minutes, were wound eight, a four-inch wound into Bradford’s right lung and heart, and wound nine, a four-inch wound into the sternum and the heart’s right ventricle. Wound seven, a five-inch puncture into the rib and liver, and wounds eight and nine all fractured bony structures. Wound two, four inches in depth, crossed her neck from left to right. Wound ten punctured the liver and was no more than four inches in depth. Two wounds, one and five, showed no signs of hemorrhage and thus were inflicted after death or when the heart was not pumping sufficient blood. Wounds one, three, four, and six were superficial. Bradford’s body exhibited no other evidence of injury or trauma such as bruises or defense wounds that would indicate a violent struggle. All the wounds could have been inflicted by the same, single edged knife. On September 28, 1987 homicide detectives went to where Smith lived, the home of Bertha Reid, Smith’s mother, which was about four blocks from Bradford’s house. When police arrived, Smith was not at home, and Reid let the officers in. While at Reid’s home, police noticed a television set matching the description of one of the two sets missing from Bradford’s home. Thereafter, police secured a warrant, found the missing two televisions in Reid’s home, and seized them. Reid testified that when her son came home around 2:00 a.m. on September 27, he did not act unusual, nor did he appear to be drunk, high, or upset. However, Smith did carry into Reid’s home the two television sets in question along with a large stereo system and two speakers. Reid asked where he got the televisions and stereo, and Smith replied that his girlfriend Carolyn gave them to him. Reid did not accept her son’s explanation, telling him he would “have to explain to me a little more about what’s going on.” Later that morning, Smith and his cousin, Greg took the stereo and two speakers away but left the televisions. Reid also showed police clothing that her son had worn and September 26 and 27, which police seized. Subsequent forensic analysis revealed that Smith’s shirt and shoes bore traces of human blood. On September 28, 1987, police apprehended and took Smith to police headquarters for questioning. After being advised of his rights, Smith agreed to talk to police. Smith initially asserted that he had driven Bradford home that night but had just dropped her off. He later admitted that he had been in her apartment but had left when her boyfriend arrived. Smith told police that he met Bradford at the Race Inn, later drove her and her girlfriend to another bar, and then drove Bradford home. While at her house, Smith claimed that someone he thought to be Bradford’s boyfriend arrived, and Smith decided to leave quickly. After Smith left, he realized that he had left a packet of cocaine, worth $2,500, at Bradford’s house. After he returned, Bradford’s boyfriend and the cocaine were both gone. Smith then talked with Bradford. “ * * * [W]e talked about restitution, you know. She said she’d give me some of that body. I said okay, it’s good enough for me, you know, but then after I got that [had sex with her] it wasn’t good enough, you know, so I asked her like you got any money and stuff, you know. She said she ain’t have no money. So we start arguing and next thing you know she slid over to the kitchen and got [a] little blade — [small carving knife].” According to Smith, Bradford was stabbed in the stomach during the ensuing struggle and fell onto a chair. He removed the knife from her stomach, and she dragged or walked by herself to the bedroom. He recalled stabbing her in the neck in the bedroom after she called him a motherfucker, but he did not admit inflicting the other stab wounds. When she was lying on the bed, he took her clothes off and got back on top of her and had sex again. Police asked: “Q. * * * [A]fter you had sex with her the second time, after she was stabbed, then what’d you do? “A. I gathered up my things together and started taking her stuff downstairs, “Q. What’d you take out of there? “A. Her two TVs and her stereo.” Smith said he made four trips carrying her things down to his car and that he took her things in order to sell them. Although Smith initially claimed that he did not know whether Bradford had stopped breathing, he later admitted he decided to have sex with her again because “she was still breathing then.” He said that he pulled his penis out as he started to climax and finished ejaculating on her stomach. He did this because he was thinking about getting out of the apartment. Smith claimed he threw the knife into the Ohio River and sold Bradford’s stereo in Dayton. However, police recovered her stereo in Cincinnati. When police interviewed Smith, they also seized a pair of undershorts from him stained with blood of the same type as Bradford’s. State v. Smith, 61 Ohio St.3d 284, 574 N.E.2d 510, 512-14 (Ohio 1991). B. Trial Proceedings Smith was indicted on October 21, 1987, on two counts of aggravated murder, pursuant to Ohio Rev.Code § 2903.01(B) (Counts I & II), and one count of rape (Count III), and one count of aggravated robbery (Count IV). Counts I and II each contained two death penalty specifications, one alleging aggravated murder during rape and the other alleging murder during aggravated robbery. Smith initially entered a plea of not guilty by reason of insanity as to all charges. As a result, the trial court ordered that Smith be evaluated with respect to his mental state at the time of the alleged offense. Smith was evaluated by three experts, Nancy Schmidtgoessling, Ph.D, a clinical psychologist of the Court Psychiatric Center, Roger H. Fisher, Ph.D, a clinical psychologist, and Glenn Weaver, M.D., a psychiatrist. Dr. Schmidtgoessling evaluated Smith on November 27, 1987, and on December 12, 1987. On December 14, 1987, Dr. Schmidtgoessling filed a report with the court, in which she concluded that Smith currently showed no sign of major psychological disorder and that he was sane at the time of the alleged offense. In his profile of Smith’s psychological status, Dr. Fisher stated that Smith was “fully oriented, rational and alert.... There was no evidence whatsoever of any form of mental impairment.” Dr. Fisher also stated that “[d]espite his history of hospitalizations, I have no reason to believe this man has ever had an emotional illness. I think instead he has had longstanding characterological problems from early childhood.... ” Regarding criminal responsibility, Dr. Fisher concluded that “Smith was free of any mental or emotional disease or defect. I feel he had sufficient judgment to have been able to differentiate legal right from wrong and was psychologically sound enough to have been able to refrain from illicit actions if he had chosen to do so.” Dr. Fisher added that, by his own description, Smith’s behavior “was purposeful and goal-directed. He was provoked to anger by the loss of his cocaine and acted on that anger by trying to make the victim pay him back for what he thought her boyfriend had stolen.” Dr. Weaver performed a psychiatric exam. Dr. Weaver concluded that although Smith had extremely limited impulse controls in past years, he did not possess a mental disease or defect, and that he did know the wrongfulness of his conduct. Smith thereafter withdrew his insanity defense. Trial counsel made initial contact with Jane Core of the Office of Public Defender (“OPD”), a mitigation specialist, in January 1988. In a letter dated January 21, 1988, Core informed counsel that he would need to request Smith’s background records. Core also indicated that she had made arrangements for OPD investigator Maggie Liverani to provide assistance, but that Maggie would not be available until late February. Core stated she planned to meet with counsel on February 26. In a letter dated February 8, 1988, Core thanked Ranz “for the materials regarding Mr. Smith,” especially Dr. Schmidtgoess-ling’s report, “which certainly indicated a lot of possible things to work with.” Core told Ranz that he should file a motion asking the court to cover the expenses of Liverani’s investigation, since OPD did not • have the funds, and that he would “need to make sure the Court has approved funds before she begins her investigation at the end of this month.” Finally, Core asked Ranz to forward a list of places he had requested records from as well as copies of those records as he received them. On February 29,1988, Core sent a letter to counsel chastising Ranz for not providing the requested materials, which she stated were needed for Liverani to begin her investigation. In that letter Core stated: “Because of these factors I do not feel it is possible to conduct an adequate investigation on behalf of your client ... and regret to inform you that neither Ms. Liv-erani or I will be available to provide assistance in this matter.” Counsel responded on March 1, 1988, enclosing copies of letters sent to which no replies had yet been received, and referencing Core’s letters of January 21 and February 8, acknowledging receipt of the reports already sent. Ranz also stated that the court had approved payment to Liverani. Ranz stated that Smith was quite difficult to deal with and was counsel’s only source of information. Finally, Ranz asked Core to reconsider her position. On March 11, 1988, Core reiterated her refusal to assist. Core apparently changed her mind, however, on March 24, 1988, after being apprised that Smith had waived his right to a jury trial. Nonetheless, on March 31, 1988, counsel informed Core by letter that they would not be needing Liverani, because they had made other arrangements. Trial counsel elected instead to request the “friend of the court” appointment of Dr. Schmidtgoessling. See Ohio Rev.Code § 2929.03(D)(1). Counsel met with Dr. Schmidtgoessling on March 28, 1988, two weeks prior to the sentencing hearing. Dr. Schmidtgoessling recalled that counsel “could offer no direction to the mitigation,” and that counsel seemed unfamiliar with any of the records from the past evaluation of mental competency, juvenile records, or Human Services Department records. Rather, Dr. Schmidtgoessling felt that counsel were more focused on winning at the trial level. She agreed to make a copy of all the records for counsel, and to prepare a mitigation report detailing Smith’s past developmental history and describing his current functioning. Trial began on April 4, 1988. On April 6, 1988, he was convicted in the Court of Common Pleas of Hamilton County, Ohio, by a unanimous three-judge panel of two counts of aggravated murder under Ohio Rev.Code § 2903.01(B) and two death specifications for each count under Ohio Rev.Code § 2929.04(A)(7). He was also convicted of one count of rape under Ohio Rev.Code § 2907.02, and one count of aggravated robbery under Ohio Rev.Code § 2911.01. The sentencing hearing began on April 11, 1988, and concluded on April 14, 1988. Dr. Schmidtgoessling was officially appointed as a friend of the court on April 6, 1988, following a finding of guilty by the trial court. Dr. Schmidtgoessling also testified that she called Ranz at home on April 10, 1988, because she did not know if she was supposed to testify at the sentencing hearing. According to Dr. Schmidt-goessling, Ranz did not seem to know what role Dr. Schmidtgoessling would play at the hearing. She filed her mitigation report on April 11, 1988, and testified at the mitigation hearing the same day. Given the short period of time, Dr. Schmidt-goessling relied primarily on the records she received when preparing the NGRI report. Five witnesses testified at Smith’s mitigation hearing. Two of Smith’s uncles testified briefly. Each characterized Smith as a nice person. Smith’s mother, Bertha Dean Reid, read a prepared statement to the court. In her statement Reid told the court that Smith grew up in various foster homes from the time he was 11 months until ten years old, and that during that time he was abused. She repeatedly stated that she thought Smith was mentally disturbed. She reported that Smith stole from her, and that once, when she punished him for breaking a window, Smith set fire to the kitchen curtains. She later had him probated to Longview State Hospital. In Reid’s view, “there is something wrong with William, mentally.” Reverend Timothy McDonald, Smith’s former pastor, testified via deposition that Smith sought counseling to try to find a way to deal with his drug and alcohol dependency. On cross-examination, McDonald acknowledged that Smith’s wife came for marriage counseling because there was violence in the marriage. Counsel also read a brief, unsworn statement prepared by Smith: “Sirs, I have been very truthful in my telling of the facts of what happened. “I did not go to her apartment for any reason other than to get my stuff, and I was invited. “We did go to bed together. “She got the knife, and I don’t know what happened to me. It is a big blur, and I guess I sort of went mad. “I didn’t want to hurt her, but what am I to do when faced with something like this? “I am very sorry for what did happen to her, and I am very sorry she is dead; but it was beyond my control. “I have asked for help before, and did not get it. So it is too late now. “But again, I ask for help and the mercy of the court. “Thank you, members of the panel.” As noted, Dr. Schmidtgoessling also testified, and her mitigation report was admitted into evidence. The doctor indicated that she administered the Wechsler Adult Intelligence Test, and the MMPI. Regarding his family background, Dr. Schmidt-goessling told the sentencing panel that: This is a man who came from a background, where his family members were incapable of caring for him, particularly his mother, who has a history of mental illness, as well as herself of physically abusing the children. His biological father, as far as I can determine, is unknown. There was a stepfather, who actually lived with the family, who was very abusive, intimidating, a very frightening man, according to the reports that we have, and that he grew up largely for a number of years in either foster homes for three or four years — three years, I think in the Longview Children’s Unit. So essentially, his background is one that behaviorally is marked by hyperactivity, some learning problems secondary to distractability, poor achievement in school, a lot of behavior problems, stealing, fighting in school. He was early on described by one psychologist as emotionally disturbed; and after another evaluation by a different psychologist was actually placed in the Children’s Unit at Longview, where he in fact did much better, I think because of the structure there of the school. The note shows that he got along there fairly well. I think the most important thing from a psychological point about those early developmental years is the lack of structure in the home, the lack of close nurturing by parent figure, or any adult figures, the affect [sic] of ... physical abuse and emotional abuse in the family. Dr. Schmidtgoessling noted that she found a history of mental illness in the family; both Smith’s mother and Reid, the stepfather, had been hospitalized at Long-view. Dr. Schmidtgoessling next described the testing performed on Smith. She noted that he had been tested several times. In 1965, he was found to have an IQ of 101, which is in the average range. At Longview, however, his IQ test showed him to be functioning in the borderline range of intelligence. Dr. Schmidtgoessling characterized this as “a drastic and significant drop,” attributable “only to the behavior problems or emotional problems he was experiencing at that time.” Her testing of him revealed a verbal IQ in the 70s, and a performance IQ in the low 80s. She described him “as functioning near average in terms of everyday activities.” She summarized his intelligence as “low, average to borderline range of intellectual functioning.” Schmidtgoessling stated that she did not reach any conclusion on his character based on the MMPI. Dr. Schmidtgoessling also reported some substance abuse. She stated that, although she had very little information other than Smith’s self-report, it appeared that he had a long-standing history of alcohol and marijuana use, and some cocaine use. Dr. Schmidtgoessling indicated that Smith did not have paranoia, but was very sensitive to being exploited. She stated he “ha[d] personality flaws and defects,” but that she “dfidn’t] think he [was] organically impaired and defective in that way.” She added that he “lacks empathy,” and “is inclined to do things to other people that the rest of us find very cold and unacceptable, because of his personality style....” Dr. Schmidtgoessling reported from a one-page summary from Longview Hospital. The hospital diagnosed Smith as “physically and essentially a normal, black youngster, psychologically,” but characterized him as having a “a personality-trait disturbance and an emotional, unstable personality.” Dr. Schmidtgoessling stated that this diagnosis coincided with her own, and was consistent with other records at that time. She concluded that Smith “certainly did not impress us as mentally ill in any gross fashion.” On cross-examination, Dr. Schmidt-goessling stated that, despite Smith’s developmental background and his mother’s history of mental illness, she found no evidence that Smith had ever suffered from a substantial mental illness. In Dr. Schmidtgoessling’s view, Smith was capable of appreciating the criminality of his acts. She also stated that Smith never showed any remorse for the victim. Lastly, when asked on cross-examination whether she thought the crime was a conscious choice, or maybe a psychological deficit, she stated: I certainly think his psychological deficits played into the situation. He told me that he was defending himself against someone who came at him with a knife. In that sense it was a choice. I think that he told me that this woman had agreed to the sexual activities and that he had only had sex with her once, and so that was a choice. But in terms of like his coldness, and stuff, that is part of him. That is the way he always is. As noted, Dr. Sehmidtgoessling’s mitigation report was admitted. At the outset, Dr. Schmidtgoessling stated that “[n]u-merous sources of information were used in constructing this report.” She detailed the following: Mr. Smith was evaluated by the undersigned, Nancy Schmidtgoessling, Ph.D., Clinical Psychologist, on November 27, 1987 and December 12, 1987 at the Hamilton County Criminal Justice Center, and on April 8,1988 at the Hamilton County Jail Annex. This included an interview as well as administration of the Wechsler Adult Intelligence Scale— Revised (WAIS-R) and the Minnesota Multiphasic Personality Inventory (MMPI). Also, the defendant was interviewed by Shirley W. Leahy, MSW, ACSW, Clinical Social Worker, on November 9 and 12, 1987 at the Hamilton County Criminal Justice Center. Prior to these interviews, Mr. Smith was made aware of the non-eonfidential nature of the evaluation and signed an information sheet permitting us to use information gathered from these sessions in a mitigation report. Additionally, Ms. Leahy made collateral contact with the prosecuting attorney, Mark Piepmeier; the investigating officer, Detective Joe Hoffman of the Homicide Squad; Lt. Fletcher of the Homicide Squad, the arresting officer; the defendant’s grandmother, Elizabeth Carter; the defendant’s aunt, Pam Carter; the defendant’s uncle, Gary Carter; and the Hamilton County Criminal Justice Center Psychiatric Unit. Attempts were made to reach the defendant’s mother; Mrs. Bertha Smith; Mrs. Smith has no phone number but we attempted to reach her both at a neighbor’s and ... her mother’s, although Mrs. Smith never returned our phone calls. Additionally, following Mr. Smith’s conviction, this examiner had collateral contact with the defense attorneys, Robert Ranz and Dale Schmidt, and the prosecutors, Mark Piepmeier and Pat Dinkelacker. Records were also available for review including social histories and psychological evaluations performed by the Hamilton County Department of Human Services; some records from Hamilton County Juvenile Court; a one page summary of the defendant’s treatment at Longview State Hospital; one prior psychiatric evaluation performed by the Court Psychiatric Center; records from the Ohio Department of Rehabilitation and Correction; some limited parole and probation records; very limited school records from the Cincinnati Public Schools, a copy of the disposition of Reverend Timothy McDonald; part of the defendant’s preliminary hearing; and a copy of the defendant’s statement at the Motion to Suppress. Dr. Schmidtgoessling’s report provided further details of Smith’s background, particularly in the areas of his developmental history, his stay at Longview, and his later functioning. In the mitigation report Dr. Schmidt-goessling also noted that Smith had reported a rather extensive history of alcohol and substance abuse. She also reported that Smith described being in prison twice previously, but that his entire legal history was unknown, because she could not get the court records. Dr. Schmidtgoessling reported that Smith’s current psychological functioning showed him in the low average to borderline range of intellectual functioning. Dr. Schmidtgoessling concluded: In summary, Mr. Smith is the product of a rather chaotic family life in which his basic needs for structure, discipline, and nurturance were not met. This is because he [sic] family of origin was incapable of caring for him because of his mother’s mental illness and inadequate parenting skills as well as the lack of an effective male model. Other family members were apparently disengaged or unable to overcome the family of origin’s deficits. Mr. Smith spent his earliest years in foster homes that seemed to provide the structure and discipline that he needed, but nevertheless were incapable of meeting his extensive needs. He shows an early history of behavior problems (stealing, fighting), bedwetting, hyperactivity and strong dependency needs. As he got older and moved back into the family of origin, he was apparently subjected to abuse, neglect, and intimidation. The parent figures available (Mrs. Smith and Mr. Reid) were inadequate in teaching him appropriate and effective adaptive skills. He moved out of his family of origin some place in his mid to later teens and became apparently highly influenced by “street life.” This reinforced his antisocial tendencies, and even further failed to induce a socially appropriate and age appropriate set of adaptive skills (appropriate educational attitude, stable interpersonal relationships, a substance free lifestyle). He apparently became more involved in the use of substances which he initially seemed to use to soothe his feelings of being abandoned and lonely, but which eventually became habitual to him.... At the time of the offense for which he was convicted, Mr. Smith reportedly was using alcohol and cocaine on a frequent basis, was involved in no significant relationships, and was working part-time. This man’s long-term psychological functioning is marked by a very high need for dependence which was manifest not only in his excessive interest in food as a youngster but in his ongoing substance abuse as an adult. However, his psychological capacity for intimate relationships is poor largely because he has had no significant intimate relationships himself during the critical developmental period of the first few years of life.... He has never achieved a stable sense of direction, never having experienced this in his earlier years. There are no indications that this man ever suffered a substantial mental illness such as schizophrenia, manic depression, mental retardation or other psychological disorder that would grossly impair his ability to test reality. He did suffer hyperactivity of unknown origin when younger[.] Now, he does suffer a personality disorder which impairs his ability to think towards and plan for the future, utilize judgment in a socially appropriate and effective manner, relate intimately to others and use guilt and anxiety to inhibit acting out behavior. Lastly, this man does report some symp-tomatology that may be the effect of chronic cocaine use, specifically some restlessness and hyperactivity. It is my opinion that Mr. Smith did not suffer from a gross impairment of reality testing or restraint at the time of the offenses for which he as been convicted. It is my opinion that both his personality style and his substance abuse would have impaired his ability to appreciate the situation of the victim and to apply his judgment in a socially appropriate fashion at the time of the offenses for which he was convicted. C. Trial Court Weighing Pursuant to Ohio Rev.Code § 2929.03(D)(3), the trial court weighed the aggravating factors against the mitigating factors. The court noted that by its verdict, the three-judge panel unanimously found Smith guilty of specifications I and II as to Count One and specifications I and II as to Count Two. The court then assessed the mitigating factors. Regarding the nature and circumstances of the offense, the court found that “[t]here is absolutely no question that the defendant purposely, coldly and brutally killed Mary Bradford while committing the offenses of rape and aggravated robbery. He stabbed the victim ten times and then raped her as the life drained from her body. This is not a mitigating factor and certainly does not militate for mercy.” As to the character and background of the offender, the court stated: The history, character, and background of the offender. — As discussed earlier the defendant had a difficult childhood. As a result, he developed personality disorders which adversely affected his ability to relate to others. He is unable to appreciate the needs of others and has little regard for human life. This panel recognizes Smith’s personality disorders and difficult childhood as a mitigating factor. The sentencing panel rejected Smith’s argument that the victim provoked him because she came at him with a knife. The court observed that Bradford was a slight woman who suffered from a lung ailment that required her to keep a breathing device. The sentencing panel also found no evidence of duress, coercion or strong provocation. The court found that even if the cocaine was stolen, this was not “strong provocation.” As for the third mitigating factor under § 2929.04(B), the trial court held that Smith did not suffer from a mental disease or defect at the time of the crime, and specifically noted that Smith did not claim insanity at trial. Smith’s youth was not a factor, nor his lack of significant history of criminal convictions. Further, since he was the principal and only offender, his degree of participation in the crime was not a mitigating factor. Finally, as to the catchall factors, the sentencing panel noted that although Smith claimed to be drunk and high on the night of the offense, there was no evidence presented to indicate that Smith was not in complete control of his faculties at the time. In weighing the mitigating factors against the aggravating factors, the sentencing panel concluded: A careful and meticulous review of the mitigating factors discloses that the defendant had a difficult childhood. He had no real family to take care of him— nurture him. There is a history of mental illness in his family. As a result, Smith grew up with a personality disorder that affected his ability to form personal relationships or to appreciate the needs and feelings of others. He became cold and unfeeling with a lack of regard for human life. He developed a specific discomfort and anger toward women. It is the opinion of this three-judge panel that the mitigating factors present pale before the fact that the defendant’s actions were plotted, vicious, persistent and utterly callous. Mary Bradford was not stabbed once but ten times. She then had to suffer the final indignities of being raped by Smith while she lay dying and then having her property stolen. It is clear that the defendant went to her apartment to obtain “restitution”. He obtained it in a violent and ruthless manner, with absolutely no regard for the life of Mary Bradford. We find no conduct or provocation on the part of Mary Bradford which would warrant the defendant’s lethal response. The panel unanimously concluded that the aggravating circumstances outweighed all the mitigating factors Smith advanced, and imposed the death penalty on each murder count. The panel also sentenced Smith to a minimum term of ten years and a maximum term of twenty-five years, with ten years actual incarceration to run consecutively, as to Count III (rape) and Count IV (aggravated robbery). D. Direct Appeals As required by statute, see Ohio Rev. Code Ann. § 2929.05, the Ohio Court of Appeals and Ohio Supreme Court conducted an independent weighing analysis. Both concluded that the aggravating factors outweighed the mitigating factors. The Ohio Court of Appeals held as follows: We have considered Smith’s confession, in which he said that Bradford threatened him with a kitchen knife, his difficult childhood, and the personality defect that affected his ability to relate to others. We cannot accept Smith’s claim that Bradford induced or provoked Smith’s response in light of the uncon-tradicted physical evidence relative to her slight stature, her severe respiratory disability, the absence of defensive wounds and marks on her body as noted by the coroner, the ten stab wounds, and the location of Bradford’s blood and bloody clothing in her apartment. Nor can we find that Smith’s childhood and personality defect, when compared to the nature and circumstances of the offenses herein, are of a quality to mitigate his sentence to the extent that the aggravating circumstances of rape and aggravated robbery do not outweigh the mitigating factors beyond a reasonable doubt. State v. Smith, 1990 WL 73974, at *9 (Ohio Ct.App. June 6, 1990) (per curiam). In its independent reweighing, the Ohio Supreme Court concluded that: When weighing the aggravating circumstances against mitigating factors, we find that the aggravating circumstances do outweigh the mitigating factors beyond a reasonable doubt. The aggravating circumstances are substantial the rape and robbery of a helpless woman in her own home by someone she invited in. In contrast, the mitigation case appears inconsequential. While unfortunate, Smith’s upbringing did not result in a mental disease or defect, as opposed to a character defect. Smith vacillates between accepting responsibility for what occurred and trying to shift the blame onto others. His claims lack authenticity, and he has not solidly demonstrated any remorse, sorrow, repentance, or desire for rehabilitation. State v. Smith, 61 Ohio St.3d 284, 574 N.E.2d 510, 521 (1991). E. State Post-Conviction Proceedings The OPD represented Smith in his state post-conviction proceedings. The OPD investigated Smith’s background and produced Hamilton County Social Services Records. Post-conviction counsel also contacted several clinical psychologists to evaluate Smith for organic brain dysfunction, apparently because he had been hospitalized at Longview as a child, and was administered both shock therapy and anti-psychotic drugs. Dr. Robert Smith, a clinical psychologist who specializes in substance abuse and treatment, administered a series of tests designed to detect the extent of Smith’s chemical dependence. Dr. Smith diagnosed Smith with cocaine dependence, cannabis dependence, and alcohol dependence. Dr. Smith opined that “the court ordered evaluations were remiss in adequately assessing the extent and impact of [Smith’s] alcohol and substance abuse.” Dr. Smith also stated that it was “plausible” that Smith had consumed alcohol, marijuana, and cocaine on the evening of the offense, and that, “[g]iven the data reported, it is likely that Mr. Smith’s ability to adequately judge the consequences of his behavior and to act in his own best interest may have been impaired.” Dr. James Dobbins, a clinical psychologist, also evaluated Smith. Dr. Dobbins stated that he reviewed materials provided by counsel, conducted two clinical interviews with Smith and administered the MMPI, the Shipley Institute Living Scale, Defense Scale of Jackson Personality Research Scale, and the Thematic Apperception Test. Dr. Dobbins determined that Smith “has many background and developmental problems which would contribute to a poor psychological adjustment in adult life.” Like Dr. Schmidtgoessling, Dr. Dobbins noted that Smith suffered from malnutrition and resulting vitamin deficiencies as a neonate, as well as pneumonia. Dr. Dobbins stated that Smith was raised in a severely disturbed family. Dr. Dobbins noted that Smith was placed in foster care, and then Longview State Hospital. Dr. Dobbins further noted that while at Longview, Smith was administered a psychotropic drug. Dr. Dobbins confirmed that Smith experienced a great deal of physical abuse from his parents and other caregivers. Dr. Dobbins concluded that Smith’s “school and social problems are more likely due to his chaotic family structure and the likelihood of neurological impairment from perinatal and postnatal infections, vitamin deficiencies, and long term alcohol abuse.” He diagnosed Smith as DSM III— R Axis I 305.00 Alcohol Abuse, 304.30 Cannabis Abuse, 304.20 Cocaine Dependence; and Axis II 300.90 Unspecified Mental Disorder (nonpsychotic) with antisocial features. Dr. Kathleen Burch, a clinical psychologist, also evaluated Smith to determine whether Smith showed signs of “cerebral dysfunction” that might have contributed to “adaptive deficits.” Dr. Burch administered a battery of neuropsychological tests. Like Drs. Schmidtgoessling and Dobbins, Dr. Burch noted that Smith was hospitalized as an infant with pneumonia and vitamin deficiency. Dr. Burch reported that Smith denied any history of seizures or head injuries resulting in unconsciousness. She noted that Smith’s mother was frequently under psychiatric care, that he was in various foster placements, and that at age eight, Smith was probated to Longview and was medicated with Thorazine during hospitalization. Dr. Burch observed that “[hjistory of alcohol and substance abuse has also been inconsistent.” Dr. Burch concluded that Smith had a “mild, diffuse cerebral dysfunction.” Dr. Burch noted that Smith “earned a Hal-stead-Reitan Impairment Index of 0.7, which would suggest a moderate level of impairment.” She added: “However, his performance was no more than mildly impaired on any of the measures — evidence against the presence of a discrete lesion. While the results are not strongly lateral-izing, there does appear to be more left hemisphere impairment.” Dr. Burch further observed that Smith’s “dysfunction appears static — that is, non-progressive. There is no evidence of an acute lesion, or ongoing toxic, metabolic, or infectious process.” She noted that Smith’s deficits appeared on tasks involving functions associated with frontal lobe activity such as difficulties in maintaining a cognitive set, and decreased flexibility in thinking. She further noted that his concentration and attention skills are impaired. She observed that: The pattern of results suggests either the sequelae of diffuse traumatic brain damage or of chronic alcohol abuse. He has marked difficulty with attention and concentration may be more long-standing, and the result of developmental deficit. If the deficits do, indeed result from alcoholism, they would be expected to reflect some improvement resulting from extended sobriety. In other words, if he had been tested shortly after his arrest, the test results would have most likely indicated more severe dysfunction. It is unlikely that continued abstinence would result in an further improvement of his cognitive status .... Overall, the results suggest mild attentional problems, difficulty with concentration and mental tracking, mild problems with nonverbal and verbal reasoning, and a tendency to show low initiative and respond to the obvious. The results are consistent with a pattern of diffuse, mild cerebral impairment. Dr. Burch’s tests results were similar to those of earlier reports. On the WAIS-R, Smith scored a verbal IQ of 85, a performance IQ of 89, and a full scale IQ of 85. In her conclusions, Burch reiterated that [t]he results, again, are more suggestive of the sequelae of chronic alcohol abuse or, possibly of repeated head trau-ma_The deficits observed characteristically are associated with poor impulse control and deficient planning and problem solving. The state post-conviction trial court denied Smith’s motion without an evidentiary hearing. The Ohio Court of Appeals rejected Smith’s claim of ineffective assistance of counsel in the mitigation phase. The court reasoned that: The affidavits [of family members and psychologists] share a common theme, i.e., that Smith’s early years were fraught with instability, abuse, neglect and a total lack of parental love and support. During the mitigation hearing, Smith’s mother, two uncles, his minister and a psychologist testified concerning their opinions that Smith had an unstable and difficult childhood, that he had a history of substance-abuse problems, that he was a follower and could be easily manipulated and that he had personality disorders which prevented him from relating to others. The trial court, in its opinion, stated that it “recognize[d] Smith’s personality disorders and difficult childhood as a mitigating factor.” We conclude that the evidence of Smith’s unfortunate upbringing, substance-abuse history and personality disorders, as set forth in the supporting affidavits, was merely cumulative to that presented at the mitigation hearing. Consequently, we uphold the trial court’s conclusion that Smith has presented no documentary evidence demonstrating prejudiee[.] State v. Smith, 1994 WL 273267, at *4 (Ohio Ct.App. June 22, 1994) (per curiam). The Ohio Supreme Court summarily dismissed Smith’s appeal from that decision. F. Federal Habeas The district court held that trial counsel’s investigation and preparation for mitigation were not ineffective. The district court noted in particular that trial counsel called as its expert witness Dr. Schmidt-goessling, who presented information that tended to establish several mitigating factors. Smith v. Anderson, 104 F.Supp.2d 773, 809 (S.D.Ohio 2000). The court held that Smith “fail[ed] to establish that counsel were ineffective and that Petitioner suffered prejudice from any alleged deficiency, in light of the overwhelming evidence that affirms the reliability of both the finding of guilt and the imposition of sentences.” Id. II. Standard of Review Petitioner’s habeas application was filed in 1995, prior to the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”); the pre-AEDPA standard of review therefore applies. Coleman v. Mitchell, 268 F.3d 417, 427 (6th Cir.2001); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). Under that standard, we presume the correctness of the state court factual findings, unless rebutted by clear and convincing evidence, and we review determinations of law, or mixed questions of fact and law, de novo. Coleman, 268 F.3d at 427; Mapes, 171 F.3d at 413. We may not issue a writ of habeas corpus unless the state court proceedings were fundamentally unfair as a result of a violation of the Constitution or laws or treaties of the United States. Powell v. Collins, 328 F.3d 268, 280, 2003 WL 21012621 (6th Cir.2003). III. Analysis A. Ineffective Assistance of Trial Counsel 1. Mitigation Smith argues that the district court erred in concluding that Smith was not denied constitutionally effective assistance of counsel in the penalty phase of his trial. The Sixth Amendment to the United States Constitution provides, inter alia, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. As the Supreme Court stated in Strickland, “the Sixth Amendment right to counsel exists,” and is necessary “to protect the fundamental right to a fair trial.” See Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A fair trial “is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Id. at 685, 104 S.Ct. 2052. Counsel plays a critical role in the adversarial system embodied in the Sixth Amendment because counsel’s skill is needed to accord a defendant the “ ‘ample opportunity to meet the case of the prosecution.’ ” Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). Thus, “ ‘the right to counsel is the right to the effective assistance of counsel.’ ” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). In defining the constitutional requirement of effective assistance, the Strickland court stated: In giving meaning to the requirement, however, we must take its purpose to ensure a fair trial — as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id. at 686, 104 S.Ct. 2052. This principle applies equally to a capital sentencing proceeding. Id. at 686-87, 104 S.Ct. 2052. In Strickland, the Supreme Court set forth a two-part test for evaluating ineffective assistance of counsel claims. First, the defendant must demonstrate that counsel’s performance was deficient in that counsel’s errors were so serious that counsel was not functioning as constitutionally guaranteed. Id. at 687, 104 S.Ct. 2052. Second, the defendant must establish that the inadequate assistance prejudiced the defense. To establish prejudice, the defendant must show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The proper standard for attorney performance is reasonably effective assistance. Id. Thus, to establish cause, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Reasonableness is determined by considering all the circumstances. Id. To show prejudice, the defendant must demonstrate to a reasonable probability that, but for counsel’s errors, the result would have been different. Id. at 694, 104 S.Ct. 2052. In the context of a challenge to a death sentence, the prejudice question is “whether there is a reasonable probability that, absent the errors, the sentencer — 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.” Id. at 695, 104 S.Ct. 2052. These principles are not mechanical rules, rather principles to guide the process of deciding whether the challenged proceeding was fundamentally fair. Id. at 696, 104 S.Ct. 2052. Thus, the court deciding an ineffective assistance claim need not approach the inquiry in the same order or even address both prongs if the defendant fails to establish one. Id. at 697, 104 S.Ct. 2052. Smith characterizes his ineffectiveness claims as sins of omission and affirmative mistakes. As for omissions, Smith claims that counsel were ineffective in investigating and preparing for mitigation for failing to (1) communicate and follow through with mitigation experts at the OPD, namely Core, (2) communicate and follow through with Schmidtgoessling once she was appointed as a “friend of the court” expert, (3) investigate Smith’s background, (4) develop an effective strategy for the mitigation hearing, and (5) request a full psychiatric examination, given Smith’s history at Longview State Hospital. Smith claims that, as a result, the trial counsel failed to present a full picture of Smith’s tragic life. As for affirmative mistakes, Smith claims deficient performance in counsel’s decision to allow his mother, who is schizophrenic, to read a statement that contained damaging information. He also faults counsel for introducing the testimony of his former pastor, who revealed that Smith beat his wife. Smith alleges that all of the foregoing omissions resulted in less than full and accurate mitigation evidence. Smith argues that post-trial evidence shows that he was born to a single mother, one of six children, with many different fathers. Further, his family was poor and uneducated, and involved with social services even before his birth. Smith points out that the records reveal that he had a traumatic infancy, including that his mother was schizophrenic and that his biological father was uninvolved. Smith notes further that he lived in foster homes, was abused by his stepfather, and that he himself was committed to Longview for five and one-half years, where he received shock therapy, and antipsychotic drugs. Smith adds that his I.Q. is in the borderline mentally retarded range, and that he has been diagnosed with diffuse organic brain impairment which was present at the time of the crime. We find no cause or prejudice under Strickland because all of this evidence was presented at mitigation. As exhaustively detailed above, virtually all of the mitigating elements that Smith complains of were presented via Dr. Schmidtgoess-ling’s testimony and her mitigation report. In her testimony, Dr. Schmidtogessling explained that Smith’s mother had a history of mental illness, that his biological father was uninvolved, that he was placed in a number of foster homes and at Long-view. She described the lack of structure, nurturing, and the physical and emotional abuse. Dr. Schmidtgoessling also stated that his IQ was in the borderline mentally retarded range, and that he abused alcohol, marijuana, and cocaine. Dr. Schmidt-goessling’s mitigation report describes in greater detail Smith’s family background, developmental history, his commitment to Longview, and his later functioning as a young adult. In fact, we are at somewhat of a loss in trying to discern what evidence Smith believes was not presented at mitigation. Smith himself fails to identify which documents were available and reviewed by OPD at the post-conviction phase, but not reviewed by Dr. Schmidt-goessling. The foregoing facts were obviously part of the record because both the Ohio Court of Appeals and the Ohio Supreme Court referred to them upon direct review. The Ohio Court of Appeals found that Smith’s psychiatric history reflected that he was abused as a child by his mother and stepfather. At ten years of age he spent three years in Longview Hospital’s children’s unit. He dropped out of school — according to Schmidtgoessling, in the tenth grade — with a history of hyperactivity, learning deficiency, poor achievement, and disciplinary problems. Dr. Schmidtgoessling found that Smith’s IQ fluctuated, but that he was not retarded. Smith told her that he had a long-standing history of alcohol and marijuana use and a two-year history of cocaine use, which she described as “moderate.” Dr. Schmidtgoessling concluded that Smith did not have a mental illness or defect, but suffered from a nonorganic personality defect that made him impulsive and “sensitive to being ripped off.” State v. Smith, 1990 WL 73974, at *9. The Ohio Supreme Court, as part of its independent reweighing of aggravating and mitigating factors on direct appeal, characterized the psychological evidence presented during mitigation in the following manner: Smith, born in October 1957, came from a chaotic home environment, with a schizophrenic, abusive, neglectful mother, and an unknown father. Early psychological reports on Smith showed problems. A psychologist in 1964 termed him “emotionally disturbed.” In 1965, a psychologist said his “reality contact was ‘precarious’ ” and his “thinking sometimes borders on autistic.” In 1965, after acting destructively and setting a fire, he was committed to Long-view, a state mental hospital. In childhood, he displayed “hyperactivity, some learning problems secondary to distrac-tibility, poor achievement in school, a lot of behavior problems, stealing, fighting in school.” State v. Smith, 574 N.E.2d at 519. The Ohio Supreme Court also noted Smith’s IQ scores, his reported alcohol and substance abuse, his ongoing anti-social behavior as an adult, his hypersensitivity, and the lack of schizophrenia, retardation, or any major psychological disorder. Id. at 519-20. Like the trial court, the Ohio Supreme Court weighed these mitigating factors: Smith’s history, character, and background do offer mitigating features. Smith clearly had an arduous childhood, and his early life shaped a personality with serious character defects. His limited mental capacity, childhood deprivation, and alcohol and drug dependency all reflect mitigating features. We find his history and background to be a mitigating factor, as did the trial court. Id. at 520; see also id. at 521 (“As to significant ‘other factors,’ we recognize Smith’s deprived childhood, flawed upbringing, character defects, and drug and alcohol dependency as mitigating.”). In other words, trial counsel was not ineffective because all the information of which Smith complains was presented to the sentencing panel, and was part of the record before the Ohio Court of Appeals and the Ohio Supreme Court. From what we can tell, the only allegedly new mitigating evidence that Smith presents is that he suffers from organic brain damage. That evidence is not compelling, however, because it is not conclusive. Dr. Smith never states that Smith suffers from organic brain damage. The closest thing to organic brain damage in Dr. Smith’s statement is that Smith was dependent on alcohol, marijuana, and cocaine, and that each of these chemicals affects the central nervous system. But Dr. Schmidtgoessling herself also documented Smith’s substance abuse. And Dr. Smith merely opined that it was “plausible” that Smith had abused substances on the night of the offense, and that if he did, it was “likely” that Smith’s judgment was impaired. Dr. Dobbins likewise did not diagnose Smith with organic brain damage, concluding only that there is a “likelihood of neurological impairment.” Nor did Dr. Dobbins ever explain whether this likelihood of neurological impairment would have impacted Smith’s criminal act. Dr. Burch diagnosed Smith with “mild diffuse cerebral dysfunction.” She further stated that Smith’s “performance was no more than mildly impaired on any of the measures[.]” More telling, Dr. Burch identified only one deficit that was relevant to Smith’s actions on the night of the murder — poor impulse control. Dr. Burch did not opine that Smith’s impairment constituted either diminished capacity or insanity under Ohio law. Although he faults trial counsel for failing to obtain a neuropsychological examination that would reveal evidence of organic brain damage, post-conviction counsel’s efforts on that score were equally unavailing. In essence, then, the only evidence the sentencing panel did not hear was that Smith suffered from a lack of impulse control. Yet, this was not new evidence, because as the Ohio Court of Appeals noted on direct appeal, Schmidtgoessling concluded that Smith suffered from a nonor-ganic personality defect that made him “impulsive.” See State v. Smith, 1990 WL 73974, at *9. Thus, as the Ohio Court of Appeals stated on post-conviction review, the evidence presented “was merely cumulative to that presented at the mitigation hearing.” State v. Smith, 1994 WL 273267, at *4. Furthermore, as the Warden points out, the fact that Smith forcefully stabbed the victim ten times, then had sex with her a second time, and made four separate trips to take her property to his car, and then left her to die, belies any plausible claim of lack of impulse control. Other than the slim evidence of a “mild diffuse cerebral dysfunction,” which manifested primarily as poor impulse control, Smith has failed to point to any mitigating evidence that was not actually presented. Absent the existence of some actual medical proof of an organic brain disorder, there can be no cause in the failure to find and present it, and obviously no prejudice either. See Thompson v. Bell, 315 F.3d 566, 590 (6th Cir.2003); Lorraine v. Coyle, 291 F.3d 416, 436 (6th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 1621, 155 L.Ed.2d 489 (2003). In short, trial counsel’s performance was not unreasonable. The remaining alleged omissions are of minor magnitude, and do not reflect objectively unreasonable performance, let alone prejudice. Smith criticizes trial counsel for failing to consult with Core. The record shows that Smith’s trial counsel made initial contact with Core in January 1988, and that counsel actually sent her some materials regarding Smith, including Schmidt-goessling’s NGRI report, which was quite comprehensive. Thus, Smith is incorrect to the extent he suggests that counsel did not provide any materials to Core. It also appears that trial counsel were stymied in their efforts because Core refused to proceed further without funding, and trial court did not order funds until late February 1988. It is not clear why counsel ultimately switched to Dr. Schmidtgoess-ling. Core is probably a qualified mitigation expert, but the record reflects that Dr. Sehmidtgoessling is too. Dr. Schmidt-goessling has been involved with death penalty cases since Ohio’s modem death penalty statute went into effect in 1981, and her NGRI and mitigation reports as well as her testimony demonstrate that she was very thorough in her investigation of Smith’s background in the quest for mitigating evidence. In fact, Dr. Schmidt-goessling testified that she usually became involved in mitigation at the instruction of the OPD or from a private defense attorney. Furthermore, counsel had Dr. Schmidtgoessling’s NGRI report, so at the time they decided to use her instead of Liverani, they had a good idea of what mitigation evidence she would present. A comparison of the NGRI report and mitigation report confirm this. Thus, it simply cannot be said that counsel’s choice of Dr. Sehmidtgoessling as their mitigation expert was deficient. Cf. Wickline v. Mitchell, 319 F.3d 813, 820-22 (6th Cir.2003) (holding that trial counsel were not ineffective for failing to perform a separate mitigation investigation; counsel testified that their pretrial investigation was conducted for both guilt phase and mitigation phase purposes and the mental health evidence submitted with the petitioner’s petition for post-conviction relief indicated that the petitioner did not suffer from any mental condition relevant to the murders; even if deficient performance, the petitioner failed to show prejudice). Smith criticizes counsel for failing to investigate on their own. He also claims that counsel failed to request records from the Hamilton County Juvenile Court or the Hamilton County Department of Human Services. However, Dr. Sehmidtgoessling testified that trial counsel requested and received from her the documents that formed the basis of her NGRI report. Thus, even if trial counsel’s performance was deficient, there is no prejudice. In any event, prior to mitigation counsel interviewed several witnesses, including Smith’s wife, grandmother, and other relatives. Smith faults counsel for not meeting with his mother prior to the mitigation hearing. Again, even if Smith could somehow demonstrate cause on this front, Smith has shown no prejudice. Smith also faults trial counsel for failing to communicate with Dr. Sehmidtgoessling once she was appointed as the friend of the court expert, after conviction and just pri- or to mitigation. From Dr. Schmidtgoess-ling’s deposition testimony it appears that counsel may not have been up to speed on mitigation evidence at certain points during pretrial preparation. Yet again, even if we were to conclude that trial counsel’s purported ill-preparedness prior to the mitigation hearing somehow constituted cause, Smith fails to show any prejudice whatsoever. Indeed, Dr. Schmidtgoess-ling herself presented a comprehensive portrait of Smith to the sentencing panel, and did not indicate that she was ill-prepared. Cf. Powell, 328 F.3d at 276, 2003 WL 21012621 (noting that Dr. Schmidt-goessling testified at petitioner Powell’s sentencing hearing that “she was not given sufficient time to conduct an appropriate investigation into Petitioner’s mental mak