Full opinion text
TJOFLAT, Circuit Judge: Jeffery Lynn Borden is a death row inmate in the Alabama prison system; he was convicted of capital murder in the Circuit Court of Jefferson County, Alabama, in September 1995. He seeks a writ of habeas corpus vacating his death sentence on the ground that his attorneys rendered ineffective assistance of counsel during the penalty phase of his murder trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution. To obtain the writ, Borden must establish that the decision of the Alabama Court of Criminal Appeals denying his ineffective assistance of counsel claims “(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The United States District Court for the Northern District of Alabama held that it was not and denied the writ. After reviewing the record that was before the Court of Criminal Appeals and considering the arguments of the parties’ counsel — both in their briefs to this court and in oral argument — we conclude that Borden has established neither point. We explain why Borden is not entitled habeas corpus relief after recounting the facts that led to his conviction and the reasons why the Court of Criminal Appeals rejected his claim that his attorneys’ performance in the penalty phase of his trial was constitutionally deficient. I. On December 24, 1993, Cheryl Borden and her father, Roland Dean Harris, were murdered during a family holiday gathering. The facts relating to the crime are not in material dispute: The evidence tended to show that on Christmas Eve of 1993, there was a large family gathering at the home of Juanita and Roland Harris in Garden-dale. At around 6:45 p.m., [Borden], who was married to but legally separated from the Harris’s daughter, Cheryl Borden, arrived at the Harris’s residence with his and Cheryl’s three children. The children, who had continued to live with their mother in Gardendale after her separation from [Borden], had spent the previous week visiting [Borden] in Huntsville — where [Borden] was then residing. [Borden] was to return the children to Gardendale in time to spend Christmas with their mother. When the children arrived at their grandparents’ house, their grandfather, Roland Harris, came outside to help unload their clothes and Christmas gifts from [Bordenjs car. Shortly thereafter, the children’s mother, Cheryl Borden, arrived at her parents’ house and began to help her children move some of their things from [Borden]’s ear to her car. In front of the children, [Borden] then took out [a] .380 caliber semiautomatic pistol and shot Cheryl Borden in the back of her head. Cheryl fell to the ground. Her father, Roland Harris, who was also present in the front yard, began to run toward the front door of the house yelling for someone to telephone 911. [Borden] chased Harris and fired several shots toward him and in the direction of the house. Harris made it into the house as [Borden] continued to shoot at him from the yard. One of the bullets fired from [Borden]’s gun struck and shattered a glass storm door at the front entrance of the house. Once inside the house, Harris collapsed on the floor. At some point during the shooting, a bullet had struck Harris in his back. As [Borden] shot at Harris, the three children ran through the garage of the residence and came into the house through a back entrance, screaming that their father had shot their mother and that she was dead. Several other family members were inside the house during the incident and scrambled to take cover from the gunfire. Cheryl Borden and her father, Roland Harris, were transported to a local hospital, where they died later that evening. [Borden] was arrested and charged with their murders. The pistol used in the shooting incident was recovered at the crime scene. Testimony at trial indicated that the pistol held a total of eight rounds of ammunition and that when it was recovered, it contained one unfired cartridge. There was evidence that at least some of the bullets fired by [Borden] entered the living area of the house. Borden v. State, 711 So.2d 498, 500-01 (Ala.Crim.App.1997) (footnote omitted). A. On May 6, 1994, a Jefferson County grand jury returned an indictment charging Borden with two counts of capital murder for the deaths of Cheryl Borden and Roland Harris. Count I of the indictment charged Borden with the capital offense of “[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct.’.’ Ala.Code § 13A-5^40(a)(10). Count II charged Borden with the capital offense of “[m]urder committed by or through the use of a deadly weapon fired or otherwise used from outside a dwelling while the victim is in a dwelling.” Id. § 13A-5-40(a)(16). Judge Michael W. McCormick presided over the jury trial in the Circuit Court of Jefferson County, and Borden was represented by two court-appointed attorneys, J. Massey Relfe, Jr., and Michael Shores, both of Birmingham, Alabama. Following voir dire and jury selection, the trial began on September 12,1995. At the guilt phase of the trial Borden pled the affirmative defense of not guilty by reason of mental disease or defect. Borden’s counsel sought to shift the focus away from the facts of the crime to Borden’s mental capacity from the outset. In his opening statement, defense counsel conceded that “[t]here’s not going to be a whole lot of dispute about the underlying facts in this case” and quickly turned the jury’s attention to a watershed event in Borden’s life: a severe 1977 automobile accident in which he suffered closed-head trauma and that left him comatose for four days. Continuing, counsel discussed Borden’s “bizarre behavior patterns” as “what the doctors, I think, would call depressive patterns with psychotic features that culminated in 1981 with a suicide attempt when Jeff was rehospitalized.” Counsel walked the jury through Borden’s storied mental health history, replete with hospitalizations, suicide attempts, and medications designed to address mental health issues. He culminated this history by stating, “Over the course of this time that we’ve just talked about Jeff has been hospitalized a total of eight times particularly for mental problems .... He’s placed on seven different medications .... ” Importantly, counsel indicated that the jury would hear from several witnesses, including Borden’s mother and expert medical witnesses who had evaluated Borden, and that the jury would be able to examine medical records to “find out what the doctors were saying then about Jeffs mental problems.” Following the close of the State’s case in chief, the defense first called Borden’s mother, Eloise Borden (“Mrs. Borden”), to the stand. Mrs. Borden testified that as a child and young man Borden did not experience any problems that were “out of the ordinary,” save “some depression” following his brother’s death in 1971 — when Borden was eleven years old. Defense counsel then shifted his attention to Borden’s 1977 automobile accident. Mrs. Borden testified that her son was unconscious for four days following the accident, and that once he regained consciousness he was “not aware of everything that was going on around him.” Apparently seeking to establish the accident as a turning point for Borden’s psychological profile, counsel asked Mrs. Borden about Borden’s behavioral changes following the accident. Mrs. Borden noted a change in sleep patterns as well as depression, stating that “[h]e was just, you know, a different — total change.” Mrs. Borden further testified that her son’s psychological problems reached such a point that she and her husband took him to a hospital in 1981, at which point he was diagnosed as “severely depressed” and placed on “a bunch of’ medication. She spoke further of injuries Borden suffered throughout the 1980s, one of which ultimately required neck surgery in November 1992. When asked if Borden was “exhibiting any or beginning to exhibit any other bizarre behaviors,” Mrs. Borden replied, “He was seeing things that weren’t there. People were after him. They were after his family to hurt them.” She discussed his twelve-day placement in a “secure facility” in July 1992 at Brookwood Hospital under the supervision of a Dr. L.E. Shehi, and his return to that facility in October of the same year. She spoke of his re-hospitalization — this time in Tennessee — after “he overdosed again” by taking 250 extra-strength Tylenol and 100 ibuprofen. Moreover, Mrs. Borden told the jury that Borden had been subjected to nine “shock treatments” at the Centennial Medical Center in the summer of 1993. On cross-examination, the State focused on Borden’s spotty work record. Most importantly for our analysis, the prosecutor asked Mrs. Borden whether “the medical doctor who knows the most about Jeff, who saw him most frequently [from late 1992 until late 1993] is Dr. Shehi; is that right?” She answered affirmatively. The defense next called Dr. J. Wesley Libb, a clinical psychologist working at the University of Alabama at Birmingham in the Department of Psychiatry. Dr. Libb was “primarily involved in psychological assessment of in-patients within the Center for Psychiatric Medicine.” While he had never evaluated or treated Borden prior to the murders of Cheryl Borden and Roland Harris, he later administered a “neuro-psychological battery of tests” as well as “generalf] psychological testing.” After an extensive description of the tests that he administered to Borden, Dr. Libb testified that Borden “experiences likely relatively severe character logic or personality disorder. His coping resources were really quite limited .... [H]e basically had very limited ability to deal with stress, ... a lot of difficulty in emotional control, the ability to plan ahead and to control and manage his behavior.” While Dr. Libb’s testing did not indicate schizophrenia or bipolar disorder, “all the testing suggests that he does experience episodic depression.” He added, “I could see him becoming psychotic and having psychotic-like episodes and becoming paranoid and becoming severely depressed.” Dr. Libb opined that “part of the picture here could also be consistent with the possibility that some of these deficits are related to some sort of organic brain impairment as well” and that his observations “could be” consistent with a “history of psychotic episodes.” In sum, Dr. Libb testified that he believed that Borden “historically suffered from a psychiatric disorder” that “was moderately severe or moderate” and “[n]ot inconsistent with closed-head trauma.” On cross-examination, the State sought to discredit Dr. Libb’s testimony by undermining the ability of his testing to detect “faking.” After seeking to establish that Dr. Libb’s field of expertise was incongruent with testifying regarding legal insanity, the prosecutor asked, “You’re not telling these ladies and gentlemen that this defendant doesn’t know the difference between right and wrong?” The witness replied, “No, I’m not.” On re-direct examination, Borden’s counsel elicited that Dr. Libb was not a “professional witness” and that his findings with regard to Borden’s mental health left open “the possibility of a more severe psychiatric disorder” than simply a neurosis. The defense next called Dr. Douglas Sargent, a psychiatrist with fifty years’ experience who had authored about 112 publications. Like Dr. Libb, Dr. Sargent had not treated Borden prior to the murders, but had instead evaluated him in jail at the request of defense counsel. After outlining his extensive credentials, Dr. Sargent described his methodology for evaluating Borden, stating that he relied on medical records, interviews with Borden, and discussions with those close to Borden. Regarding the interviews, Dr. Sargent stated that he “ma[de] an assessment of the credibility of the stories and then tr[ied] to check them out against other sources of information to see if [he could] validate them or refute them.” When asked specifically, “Did you have an opinion as to what his diagnosis was on” December 24, 1993, Dr. Sargent replied: Yes. I believe he suffered from two conditions at that time: One, a — an uncertainty or weakness in impulse control and some other features which I could describe, which I would call an organic closed-head injury encephalop[athy] or post-concussive syndrome. And in addition a super imposed depressive disorder, which I call a schizo affective disorder for reasons that I can describe, which he has had more or less continually since at least 1981 and which flares up from time to time requiring him to be hospitalized and for which he has been all but continuously under treatment at one mental health center or another. Dr. Sargent went on to define “schizo affective disorder” as “a mood disorder — a depression in this case, coupled with other features that suggest schizophrenia so that you can’t say he’s either schizophrenic or depressed but is — suffers from a disorder which is a combination of the two.” The witness described Borden as exhibiting “signs of a delusional disorder” who had “unrealistic false beliefs of persecution” and was “profoundly depressed” with suicidal tendencies. He described how Borden had related to him that one of his hospitalizations occurred as the result of grief that overcame him after beating his wife — explosive behavior that Borden had said “was like he couldn’t help it. He couldn’t stop it. He had no control over it.” Dr. Sargent linked this behavior to Borden’s automobile accident, stating it was a “symptom commonly found in people with closed-head injuries of the kind Jeff suffered ... called episodic discontrol.” The witness testified that Borden exhibited a “sudden disappearance of the control mechanism ... throughout the record in the frequent references by one or the other psychiatrists who had seen him in the past of his impulsive behavior.” He continued at length, discussing relevant mental diseases and disorders, including “thought disorder” and “mood congruent hallucinations and delusions.” He also discussed Dr. Libb’s report, as he had hired Dr. Libb to examine Borden. Following an explanation of the battery of drugs Borden had taken over the years, Dr. Sargent was asked, “Doctor, considering your education and experience, ... do you have an opinion as to whether or not at the time of this incident now, which was December the 24th, 1993, Jeff was suffering from a mental disease or defect?” Dr. Sargent answered affirmatively, explaining, “I believe that he was suffering from chronic schizo affective disorder partially compensated and from a closed-head injury that I have described before.” Following up, Borden’s counsel asked if Dr. Sargent had “an opinion as to whether or not Jeffs actions as — that occurred on December the 24th, 1993, were as a result of rational behavior?” The witness replied, “No, I don’t.” He also testified that he did not think that Borden could “appreciate the criminality” of his behavior. He explained, I think that he was operating under the control of a very strong impulse that he could not control, that his behavior was disorganized, ... that his mood was disordered and that he was therefore unable to ... appreciate the criminality. I don’t even think he thought about the criminality of the act at the time. On cross-examination, the State sought to emphasize the lack of objectivity inherent in the field of psychology, and walked Dr. Sargent through the medical records to point out data inconsistent with his testimony. During re-direct examination, Dr. Sargent took up the notion that Borden was “feigning” his mental illness, testifying, when you have a person hospitalized eight times for mental illness when there’s no apparent advantage to that, it’s a little hard to believe that they would be feigning mental illness in the way that they were. Besides the totality of his behavior and the reports of his behavior on the part of the medical staff who are generally quite experienced would very quickly raise the suspicion of falsification of an illness. I don’t see any reason to believe that [ ] he was not as sick as they say he was when they attended him. Defense counsel continued, asking Dr. Sargent if any of the information brought up by the prosecutor on cross-examination had had any effect on his opinion as to Borden’s diagnosis. Dr. Sargent’s responded, “None whatsoever.” Before calling his next witness, DeWayne King, a medical assistant at the county jail, defense counsel introduced into evidence Borden’s complete relevant medical history, which included records from ten medical and mental health facilities. King then testified that Borden had been placed in the “psychiatric block” of the jail, which included a single bunk and a camera, as a result of his psychiatric history. He also discussed the medication that Borden was taking while incarcerated. King stated that Borden was in the psychiatric block for “an awfully long time.” The defense presented no more witnesses. After the defense rested, the State presented testimony on rebuttal designed to undercut Borden’s affirmative defense of not guilty by reason of mental disease or defect. The State called Dr. C.J. Rosecrans, a certified forensic examiner and a professor of psychiatry in the Department of Psychiatry at the University of Alabama at Birmingham. Dr. Rosecrans was appointed by the court to determine Borden’s competency to stand trial as well as his mental state at the time of the commission of the offense. He described at length his methodology and discussions with Borden, and made several statements relevant to Borden’s defense — particularly focusing on the difference between what a psychiatrist would deem a mental disease and what the law would consider “insanity.” Dr. Rosecrans stated that he did “not believe [Borden] was operating under irresistible impulse” and that a review of Dr. Libb’s and Dr. Sargent’s reports did not change his opinion as to Borden’s mental condition at the time of the incident. Dr. Rosecrans conceded that he would not “necessarily dispute that [Borden] may have at some time in the past been suffering from mental illness or psychosis.” Elaborating, Dr. Rosecrans stated, “my impression from [Borden’s] recitation of the event at that time is that he was upset, he was angry, he was hurt, I think he was irritated, I think he was emotionally distressed, but I think ... it was not a random activity.” He concluded with a statement that, as to “the legal question you have,” Borden “could have restrained” and “it was not an irresistible impulse.” On cross-examination, defense counsel focused on Dr. Rosecrans’s limited study of Borden; the doctor had known that Borden had been admitted to a wide variety of medical facilities, but had not received or reviewed the majority of Borden’s medical records. Further, Dr. Rosecrans based his conclusions on an interview lasting ninety minutes, the contents of which defense counsel inquired about extensively. Referencing testimony given on direct examination, defense counsel asked Dr. Rosecrans, “Are you aware that irresistible impulse is not a legal defense in Alabama?” The witness indicated that he was not. Defense counsel also inquired, “So you don’t determine sanity yourself, that’s for the ladies and gentlemen of the jury?” Dr. Rosecrans replied, “Exactly so.” The prosecution called no further rebuttal witnesses to testify regarding Borden’s mental state. During closing argument, the State discussed the evidence that had been presented in support of Borden’s affirmative defense. The prosecutor sought to characterize the defense as an “excuse,” arguing that Borden had “lived a life of excuses.” Further, he asked the jury to examine Borden’s medical records and argued that “Dr. Sargent is the only one who says that this automobile accident has anything to do with this defendant’s condition. The paid expert of the defense, the only one.” The State conceded that Borden had suffered from depression, but that depression alone was insufficient to find him not guilty by reason of insanity. Rather, the prosecutor argued, this was a case of “[j]ealousy and control.” Defense counsel directly engaged the prosecutor’s argument that Borden’s defense was merely an “excuse”: How do you determine whether or not it is an excuse? History is helpful. Here’s a man who has been hospitalized eight times for, as [the prosecutor] says, excuses. He’s using it as an excuse. Well, if it’s an excuse, then he’s fooled eight doctors. He ought to get an academy award because he’s the best actor that there could be. He’s fooled eight different doctors at separate times and separate places. Read the medical reports. There’s bad stuff in the medical reports. We know there was bad stuff in there, and we know that you’re going to look at that bad stuff. But the defense offers the medical reports to you, not the State. They were admitted from the defense .... What he says in there is consistent with the defect the way those doctors see it. Not the way the doctors that testified here, but those doctors. Defense counsel also walked the jury through testimony presented by both the State and defense witnesses, the evidence contained within Borden’s medical records, and the legal standard for insanity, reminding the jury that it was ultimately up to them, and not the experts who testified, to determine the validity of Borden’s defense. On rebuttal, the prosecutor discussed the strengths and weaknesses of the witnesses that the jury had seen, and, in doing so, made an argument that is relevant to Borden’s ineffective assistance of counsel claim: And if there was a serious attempt here, folks, to give you the big picture and all the information, we’re missing somebody, aren’t we? The defendant’s mother said that in the year 1993 leading up to these shootings that nobody, nobody, knew the defendant’s condition better than Dr. Shehi. Where is he? Have you seen him? ... And don’t you think you’ve got a right to expect if they want to prove something to you, they’re going to bring the person who according to the defendant’s own mother knows more about him than anything else? And they chose not to. And I think you can infer from that why. The court then gave its instructions to the jury, which deliberated for roughly three hours. On the afternoon of September 14, 1995, the jury found Borden guilty of the capital offense charged in Count I and guilty of the lesser-induded offense of non-capital intentional murder under Count II. B. Shortly after the jury delivered its verdict, the sentencing phase of Borden’s trial began. The State readopted all of the evidence and testimony from the guilt stage of the trial and sought to prove one aggravating circumstance: “this defendant at the time he fired those shots through that door created a great risk of death to a number of people.” Similarly, defense counsel readopted “the evidence that you had before you in this case in the guilt phase” and sought to prove three mitigating circumstances: first, that Borden had no prior significant criminal history, see Ala.Code § 13A-5-51(l); second, that “this offense was committed while [Borden] was under the influence of extreme mental or emotional disturbance,” see id. § 13A-5-51(2); and third, that Borden’s ability to “appreciate the criminality of his conduct to the requirements of the law” was “substantially impaired,” see id. § 13A-5-5R6). To prove its aggravating circumstance, the State called one witness at the penalty phase: Cindy Smith, Cheryl Borden’s sister. Smith was in attendance at the Harris household on the night of the murders and had previously testified at the guilt phase of the trial. At the penalty phase, she testified to the location of the various people at the Harris’s at the time of the murders. According to her testimony, there were around ten people in the house at the time Borden shot Cheryl Borden and Roland Harris. The defense presented Borden’s mother and his three sisters as witnesses at the penalty phase of his trial. Borden’s mother testified that Borden had been receiving disability benefits for “mental disease” and that he had been living with her since his separation from his wife. Mrs. Borden stated that he would pace around like “a caged animal” because he believed that “[s]omebody was always after him.” She also relayed information about his “very poor” hygiene habits and his inability to get any sustained sleep. Finally, she testified that Borden “definitely” had an emotional disturbance in 1993, and that he was on heavy medication “for the majority of 1993.” The State did not cross-examine her. The defense next called Jennifer Borden (“Jennifer”), Borden’s nineteen-year-old sister. Jennifer lived with her parents at the time of trial, and also had lived in their home when Borden moved back following his separation from his wife. Jennifer testified that Borden returned to live at home in February 1993 and that his conduct had been “very unusual.” Elaborating, she stated that “he rarely slept if any at all. And he would sit and just stare for hours. And he would mumble things sometimes ____” She echoed Mrs. Borden’s testimony about Borden’s belief that people were “after him,” relaying an incident in which Borden had hurt himself falling off a shed and claimed that a non-existent “someone” had thrown him off. Jennifer also testified that, to her knowledge, Borden had never been charged with or convicted of a felony. Finally, she testified about his hospital visits and his 1993 suicide attempt in Tennessee. The State very briefly cross-examined Jennifer, asking her if Borden had “acted this way all the time” he lived at home. Jennifer responded affirmatively. The defense next called Denise Borden Purser, Borden’s older sister. Purser testified about changes in Borden’s mental state following his 1977 accident, recalling an incident in 1978 when Borden hallucinated, conjuring in his mind a “big black dog” with “snarling long black teeth” and “red glowing eyes.” Next, she testified about Borden’s behavior at a family reunion during the summer of 1993 when Borden “had just gotten out of the hospital from the shock treatments.” She stated that he “was like a little wild man.” Asked to describe what she meant, Purser said, “A wild man. His eyes were wild and open and all. He didn’t know us at times. He didn’t know the people around him. He would ask repeated questions over and over.” She also testified to his “very bad” hygiene habits, and that, to her knowledge, he had never been charged with or convicted of a felony. The State did not cross-examine Purser. The defense called as its last witness Becky Taylor, Borden’s oldest sister. In her brief testimony, Taylor recalled changes to Borden’s behavior after his car accident, stating that he imagined people were after him. She also testified that she had no knowledge of any past felony charges or convictions. Regarding his behavior in 1993, she said, “Jeff always was pacing the floor. And he would sit and blank stare .... He got to where he didn’t take baths or eat right, you know. That’s about basically it.” The State also declined to cross-examine Taylor. During its closing argument, the State conceded that Borden had no prior significant history of criminal activity. With regard to mitigating circumstances pertaining to Borden’s mental state, the State argued, And I believe by your verdict that you’ve already rejected any severe mental disease or defect on his part. And you’ve heard no evidence that at the time he committed this act he was under extreme mental or emotional disturbance or that he was severely impaired so as to be unable to understand the criminality of his conduct. The prosecutor concluded, “What we do have is a great risk of death to many people versus no significant history of pri- or criminal activity. One to one. What is more important is up to you.” Defense counsel took issue with the State’s characterization of the factors to be weighed as “[o]ne to one,” and argued that all three proposed mitigating circumstances had been proved. He concluded with a lengthy argument about the rationale behind the prohibition of executing the legally insane, tying in the ability to “repent” and other religious themes. He also admonished the jury with a reminder that “Thou shall not kill,” seemingly arguing that sentencing Borden to death as opposed to life without parole would be in contravention of concepts that “go[ ] back to the biblical law.” On rebuttal, the State referred to defense counsel’s arguments based on the Ten Commandments as “disgraceful,” stating that he “isn’t going to succeed in shaming you or making you feel ashamed or embarrassed or guilty about retumfing] the fair and just verdict in this case.” Notably, the State did not emphasize that defense counsel never called Dr. Shehi or any of Borden’s treating physicians at the penalty phase of trial. The court gave a lengthy charge to the jury. Significantly, in its explanation of mitigating circumstances, the court stated: a person’s capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law is not the same as his ability to know right from wrong generally or to know what he is doing at a given time or to know what he is doing is wrong. A person may indeed know that doing the act that constitutes the capital offense is wrong, and still not appreciate its wrongfulness because he does not fully comprehend or is not fully sensible to what he is doing or how wrong it is. For this mitigating circumstance to exist, the defendant’s capacity to appreciate does not have to have been totally obliterated .... On the morning of September 15,1995, the jury recommended that Borden be sentenced to death by a vote of 10-2. In delivering its verdict, the jury did not reveal which mitigating circumstances it found, if any. On November 13, 1995, the circuit court followed the jury’s recommendation and sentenced Borden to death by electrocution for the conviction under Count I. The following day, the court sentenced him to life imprisonment for the conviction of the lesser-included offense under Count II. On September 26, 1996, the circuit court issued a written sentencing order specifically identifying aggravating and mitigating circumstances found by the court as required by Alabama Code § 13A-5-47(d). The court found one aggravating circumstance: “The defendant knowingly created a great risk of death to many persons.” Id. § 13A-5-49(3). In contrast, the court found two mitigating circumstances, to wit, that the defendant had “no significant history of prior criminal activity,” id. § 13A-5-51(1), and that “[t]he capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance,” id. § 13A-5-51(2). The court concluded “that the aggravating circumstance noted above outweighs the mitigating circumstances noted and the jury’s 10 to 2 recommendation for death is the appropriate sentence.” C. On direct appeal, the Alabama Court of Criminal Appeals affirmed Borden’s death sentence but reversed his conviction for the intentional murder of Roland Harris because it violated the principle of double jeopardy. Borden v. State, 711 So.2d 498, 503-04 (Ala.Crim.App.1997). In a brief opinion, the Supreme Court of Alabama affirmed Borden’s capital conviction and sentence of death. Ex parte Borden, 711 So.2d 506 (Ala.1998). The United States Supreme Court denied Borden’s petition for a writ of certiorari. Borden v. Alabama, 525 U.S. 845, 119 S.Ct. 113, 142 L.Ed.2d 91 (1998). On August 30, 1999, Borden began his attempt to obtain state post-conviction relief by filing a Petition for Relief from Judgment Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure in the Circuit Court of Jefferson County. In his petition, Borden argued, inter alia, that his trial counsel had rendered ineffective assistance of counsel at the penalty phase of his trial. The State filed an answer to this petition on October 5, 1999. Three days later, the State filed a pair of motions, each seeking partial dismissal of Borden’s claims. One of the State’s motions sought dismissal of many of Borden’s claims — including his ineffective assistance of counsel claims — for failure to comply with Rule 32.6(b) of the Alabama Rules of Criminal Procedure. This motion requested that the court “dismiss those claims in the petition which fail to state a claim for relief or establish any material facts which entitle Borden to relief.” (emphasis added). Rule 32.6(b) provides: Specificity. The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings. Ala. R.Crim. P. 32.6(b). The State’s other motion sought dismissal of some of Borden’s claims — claims not at issue here — under Rule 32.2(a) of the Alabama Rules of Criminal Procedure, which precludes collateral relief for a petitioner who fails to comply with state procedural rules. Borden filed a response to these motions on November 1,1999, and then, on November 15, 1999, filed a Motion for Discovery to obtain institutional records and files regarding his medical and mental health. On May 15, 2000, the circuit court issued a pair of orders granting both of the State’s motions. In the order granting the State’s motion on the ground that Borden failed to plead his claims with sufficient specificity, the court stated that “the following claims, as written, are foreclosed from review under Rule 32.6(b).” Borden’s ineffective assistance of counsel claims were included in this dismissal. Nonetheless, the court ruled that “Borden may, within thirty (30) days of this Order, amend the above-cited claims to comply with the requirements of Rule 32.6(b), Ala. R.Crim. P. If Borden fails to amend his petition, the above-cited claims are foreclosed from review by this Court.” In contrast, the court’s other order dismissing claims under Rule 32.2 of the Alabama Rules of Criminal Procedure stated, “the following claims are procedurally barred under Rule 32.2(a), Ala. R.Crim. P.” (emphasis added). On September 20, 2000, Borden filed an amended Rule 32 petition for post-conviction relief. Two days later, the court granted Borden discovery of all pertinent records from the Alabama Department of Corrections. In addition, the court granted Borden discovery of materials from the prosecution pertaining to its investigation into the murders, as well as documents relating to his arrest and prosecution. For the purposes of our analysis, this amended Rule 32 petition (the “Amended Rule 32 Petition” or the “Amended Petition”) is the operative pleading in this case. See infra part II.B. In the Amended Petition, Borden presented fourteen separate grounds for post-conviction relief. The relevant ground for relief was entitled: “Trial Counsel Was Ineffective During the Penalty Phase of Mr. Borden’s Trial, and This Ineffectiveness Resulted in the Unjust and Unconstitutional Imposition of the Death Penalty.” Borden laid out his claims: 54. Trial counsel was grossly ineffective at the penalty phase of the trial, and the jury subsequently returned a 10-2 death recommendation, which was followed by the trial court’s sentence of death. Despite the wealth of mitigating factors — both statutorily enumerated and nonenumerated — trial counsel called only four witnesses, whose extremely brief testimony spans a total of only 25 pages of the transcript. Trial counsel’s deficient performance prevented the jury and the trial court from hearing and considering an abundance of mitigating evidence, and thus denied Mr. Borden a fair and accurate penalty phase determination as required under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law. Quite simply, trial counsel abdicated its constitutionally mandated obligation to present a defense at the most important phase of Mr. Borden’s capital trial. 55. It is absolutely essential that trial counsel in a capital case fully investigate the history of the client in preparation for the penalty phase of a capital proceeding. It is constitutionally required that the trial court and the jury consider “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). This includes any evidence about the defendant’s history and life that may be considered by the jury or judge as a mitigating factor. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Thus, Mr. Borden was entitled to have all aspects of his background, family life, medical history, school records, and any other life-experience that may be considered mitigating evidence presented to the jury and judge at the penalty phase of his capital trial. Counsel for Mr. Borden fell far short of this constitutionally required mandate. 56. In order to have prepared properly for the penalty phase of Mr. Borden’s capital trial, counsel should have obtained complete and accurate information relevant to Mr. Borden’s medical history, educational history, employment and training history, family and social history, his correctional history, and any religious or cultural influences. See American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 11.4.1(A)(2)(c) (adopted by the ABA house of delegates Feb. 7, 1989). Counsel in Mr. Borden’s case failed these minimum requirements of an adequate investigation. “At the heart of effective representation is the independent duty to investigate and prepare [the client’s case.]” Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982), cert. denied 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983). Counsel is under a clear duty to thoroughly investigate a client’s background in preparation for a capital penalty phase, and the failure to do so precludes a finding that the absence of a penalty phase investigation was strategic. See, e.g., Baxter v. Thomas, 45 F.3d 1501 (11th Cir.1995) (finding counsel ineffective for failing to request state hospital records, school records, social service records, and failed [sic] to contact the defendant’s sister, neighbor, or social worker); Cave v. Singletary, 971 F.2d 1513 (11th Cir.1992) (finding that the complete failure to investigate and prepare for the penalty phase rendered counsel’s assistance ineffective and required a new penalty phase); Cunningham v. Zant, 928 F.2d 1006 (11th Cir.1991) (failure to put on evidence of defendants [sic] disadvantaged background, the death of defendant’s father when the defendant was six, and evidence of defendant’s mild retardation deprived the defendant of the constitutionally mandated individual sentence determination); 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) (finding ineffective assistance of counsel where little effort was made to investigate possible sources of mitigation evidence); Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992) (criticizing counsel who did not attempt to contact family members or prepare for the penalty phase until the trial was underway, and who failed to put on any mental health mitigating evidence); Jackson v. Herring, 42 F.3d 1350 (11th Cir.1995) (finding that the failure of counsel to investigate family history and background of client is inexplicable, could not be considered strategic, and required reversal); Blake v. Kemp, 758 F.2d 523 (11th Cir.1985) (finding a presumption of prejudice where trial counsel made no effort to prepare for the penalty phase of a capital trial); see also Douglas v. Wainwright, 714 F.2d 1532, 1556 (11th Cir.1983) (“Permissible trial strategy can never include the failure to conduct a reasonably substantial investigation.”). In this instance, effective preparation and investigation by defense counsel would have revealed a host of mitigating factors, which should have been presented at Mr. Borden’s penalty phase. This failure constitutes clear ineffectiveness, cannot be characterized as strategic, and requires that this Court reverse Mr. Borden’s sentence of death. 57. Trial counsel failed to conduct a reasonable independent investigation of the case, failing, among other things, to interview adequately Mr. Borden’s family, friends and acquaintances. In addition to failing to investigate facts available from individuals then unknown to them, such as Mr. Borden’s friends and acquaintances, trial counsel failed to adequately interview the witnesses of which they were then aware. For example, trial counsel failed to sufficiently meet with Mr. Borden’s family prior to trial, despite the fact that Mr. Borden’s parents both possessed information that would have been useful to Mr. Borden’s defense. 58. Had counsel contacted other people who had interacted with Mr. Borden, they would have been able to present a complete portrait of Mr. Borden, which would have lessened his culpability for the crime, revealed numerous mitigating circumstances, and led the jury to impose a lesser sentence of life without possibility of parole. 59. In addition to defense counsel’s failure to contact people who could offer useful mitigation evidence, counsel failed to procure many necessary records documenting Mr. Borden’s life. These records include school records, health records, employment records, and religious records of both Mr. Borden and his parents and siblings. 60. If counsel had obtained these records and interviewed even a portion of the potential witnesses who were willing to testify for Mr. Borden, counsel could have established numerous mitigating factors that could have swayed the jury to a finding of life in prison rather than death. 61. Trial counsel even failed to present the vast majority of the mitigating evidence that was available to them even without an investigation. For example, trial counsel failed to offer any of the mitigating evidence which tended to show that Mr. Borden had not premeditated the crime and which tended to show that at the time of the crime he was acting under an extreme mental or emotional disturbance and his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. 62. In addition, counsel was ineffective for not obtaining the services of expert assistance for the penalty phase of the trial. Medical experts could have explained the likely causes and consequences of Mr. Borden’s emotional and physical problems; without such assistance, counsel was in no position to adequately understand or even recognize such evidence if it were encountered during the investigation for Mr. Borden’s penalty phase. B. Trial Counsel Failed to Call Any Witnesses at All Regarding Mr. Borden’s Mental Health. 65. During the penalty phase, trial counsel failed to call any witnesses at all with regard to Mr. Borden’s mental health. New testimony was needed since, as discussed more fully below, the legal standards related to Mr. Borden’s mental health at the guilt stage are significantly different from those at the penalty phase. Indeed, during closing arguments of the penalty phase, trial counsel did not even refer to the mental health testimony that had been presented during the guilt phase of Mr. Borden’s trial. 66. As during the guilt phase, trial counsel at the penalty phase failed to present testimonial evidence from any of Mr. Borden’s mental health care providers. 67. Mental health testimony would have played an important part in Mr. Borden’s mitigation case, given the reduced level of mental health deficiency necessary to create a mitigating condition. F. Trial Counsel Failed to Relate Any of the Evidence Offered During the Mitigation Phase to the Statutory Mitigation Requirements. 74. During the penalty phase, some potentially mitigatory evidence was presented to the jury. However, trial counsel failed to inform the jury of what this mitigation evidence was and how it related to the statutory mitigation factors. 75. This failure hampered the jury’s ability to apply the minimal amount of mitigating evidence offered by trial counsel to the statutory mitigation factors. (emphasis added). On October 24, 2000, the State filed an answer to Borden’s Amended Rule 32 Petition. On that day, the State also filed a separate motion for partial dismissal of Borden’s relevant claims under Rule 32.6(b). Borden responded to the State’s answer on November 9, 2000, claiming that the Amended Petition sufficiently pled his ineffective assistance of counsel claims to comply with the requirements of Rule 32.6(b). On February 28, 2001, the circuit court dismissed Borden’s entire Amended Petition, stating in a minute entry: The Court having considered the pleadings of the parties and the record of the Court grants the State’s Motion to Dismiss all of the petitioner’s claims alleging ineffective assistance of counsel at the guilt phase and the penalty phase of his trial on the following ground. 1. This Court tried the petitioner’s case and finds that he has failed to meet his burden of proof regarding allegations of ineffective assistance of counsel. This Court has also reviewed the District Attorney’s file provided by the State and finds no discoverable material; however, the Court has provided the petitioner with the Grand Jury notes in their file. The petition for relief from judgment (Rule 32) is dismissed. (emphasis added). Borden appealed, and on March 22, 2002, the Alabama Court of Criminal Appeals remanded the case to the circuit court, finding several deficiencies with the circuit court’s summary dismissal of Borden’s Amended Petition. Borden v. State, 891 So.2d 393 (Ala.Crim.App.2002). First, the appellate court found that the circuit court “appears to have misapprehended Borden’s burden at the pleading stage” when it stated that Borden had not met his “burden of proof’ in his Amended Petition. Id. at 396. Rather, the appellate court noted, Borden only had the burden to plead under Rule 32.6(b). Id. Next, the appellate court chastised the circuit court for “failing] to adequately dispose of all of the claims Borden raised in his amended petition.” Id. In addition to “not sufficiently addressing] the merits of’ Borden’s ineffective assistance of counsel claims, the “trial court failed to address any [sic] the remainder of the claims Borden raised in his petition .... ” Id. at 396-97. As such, the Court of Criminal Appeals remanded the case to the circuit court, instructing it to determine whether an evidentiary hearing should be held on any of Borden’s claims .... If an evidentiary hearing is held, the trial court shall enter specific written findings with regard to each of the claims presented at the hearing. The trial court should submit a specific written order addressing any claims that are dismissed without a hearing. Id. at 397 (citation omitted). In April 2002, before the circuit court issued an order on remand, Borden filed a second amended Rule 32 petition as well as a motion seeking to allow licensed mental health professionals access to Borden for evaluative purposes. The State moved to dismiss the second amended petition on the ground that the circuit court had no jurisdiction to entertain amendments to the petition once an appeal had been taken, arguing that “when a petitioner files a notice of appeal in the appropriate appellate court, such as the Alabama Court of Criminal Appeals, that act will transfer jurisdiction over the matter from the relevant circuit court to the appellate court.” As such, the State claimed that the circuit court on remand could only comply with the limited instructions provided by the Court of Criminal Appeals. On August 27, 2002, the circuit court granted the State’s motion to dismiss Borden’s second amended Rule 32 petition. The same day, the circuit court entered an Order on Remand denying Borden’s Amended Rule 32 petition in its entirety. The court never granted Borden an evidentiary hearing. Additionally, the court did not formally rule on the request that mental health professionals be given access to Borden. In dismissing the entire Amended Petition in its Order on Remand, the circuit court first divided many of Borden’s claims into two groups: “Procedurally Barred Claims,” which were “procedurally defaulted from ... review” under Rule 32.2 of the Alabama Rules of Criminal Procedure, and “Claims That Lack a Sufficient Factual Basis,” which were “dismissed because they do not contain a sufficient factual basis” under Rule 32.6(b). The claims dismissed for failure to plead a sufficient factual basis included: Claim II (paragraphs 55-60) — The claim that trial counsel were ineffective because they failed to investigate mitigation; Claim II (paragraph 62) — The claim that trial counsel were ineffective because they failed to obtain the services of experts for the penalty phase of the trial; Claim II-B (paragraphs 65-67) — The claim that trial counsel were ineffective because they failed to call any witnesses at all regarding Borden’s mental health during the penalty phase; Claim II-F (paragraphs 74-75) — The claim that trial counsel were ineffective because they failed to relate any of the evidence offered during the penalty phase of the trial to the statutory mitigating circumstances; In addition, the court found fifteen claims that it “determine[d were] not procedurally barred and contained] a sufficient factual basis,” discussing them separately in a section titled, “Merits of Remaining Ineffective Assistance of Counsel Claims.” In dismissing these claims, the court generally relied on information contained within the record to refute the allegations. Two of these claims are relevant to our discussion. In discussing Borden’s general allegation that his counsel were ineffective during the penalty phase of his trial — contained in paragraph 54 quoted above — the circuit court quoted the Alabama Rules of Criminal Procedure at length and concluded, “Borden’s claims concerning his attorneys’ failure to investigate and present mitigation are denied because Borden failed to plead these claims with specificity. Rule 32.6(b), Ala. R.Crim. P.” Declining to stop its analysis there, the court continued to address the merits of Borden’s claim. The court concluded that Borden’s attorneys clearly investigated, presented, and argued mitigating circumstances during the penalty phase of his trial. Borden’s allegations in his amended Rule 32 petition that he failed to find and present more unspecified evidence does not establish deficient performance or that he was prejudiced by the actions of his trial counsel. Because these claims are not sufficiently specific and fail to state a claim for relief, these claims are denied. See Rule 32.7(d), Ala. R.Crim. P. (emphasis added). Also in the “Merits” section of the Order on Remand, the circuit court dismissed the claim that Borden’s counsel were ineffective during the penalty phase of his trial for failing to “present the vast majority of the mitigating evidence that was available to them even without an investigation.” Deeming this claim “without merit,” the court discussed the “significant amount of mitigation evidence [produced] during the penalty phase of his capital murder trial,” including “testimony from two doctors, a medical assistant, and four family members.” The court stated its belief that “Borden’s trial counsel provided enough information to the jurors to enable them to find that Borden’s alleged mental or emotional disturbance constituted a mitigating circumstance.” As such, the court held that Borden had “failed to establish deficient performance” and further had “not attempted to demonstrate that he was prejudiced by the actions of his trial counsel. The record in this case reveals that Borden can never satisfy his burden of proof as to this claim. See Ala. R.Crim. P. 32.3. This claim is denied.” On August 22, 2003, the Alabama Court of Criminal Appeals affirmed the circuit court’s Order on Remand. Borden v. State, 891 So.2d 393 (Ala.Crim.App.2003). In doing so, the appellate court issued a lengthy Memorandum discussing its reasoning in review of the circuit court’s decisions. The Court of Criminal Appeals began by affirming the circuit court’s dismissal of Borden’s second amended petition, stating that it would “review only the allegations contained in the first amended petition in our analysis of whether the circuit court correctly found that many of the claims of ineffective assistance of counsel were not sufficiently pleaded.” Id. at 397. Citing Rule 32.3 of the Alabama Rules of Criminal Procedure for the proposition that state petitioners seeking post-conviction relief bear the burden to plead facts necessary to entitle relief, the court continued on to affirm the denial of an evidentiary hearing: [A] Rule 32 petitioner is not automatically entitled to an evidentiary hearing on any and all claims raised in the petition. To the contrary, Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition if the court determines that the claims in the petition are not pleaded with sufficient specificity, in violation of Rule 32.6(b), or if the claims are precluded, pursuant to Rule 32.2, or if the allegations fail to state a claim, or if the court determines that no material issue of law or fact exists which would entitle the petitioner to relief. Id. at 5. The Court of Criminal Appeals then proceeded to address Borden’s claims one by one, utilizing Rule 32.6(b) to dismiss relevant claims that Borden failed to plead with the requisite specificity. For example, in dismissing Borden’s claim that his counsel failed to investigate and introduce mitigating evidence at the penalty phase of his trial, the court stated: In the allegations of the paragraphs which are set out above, Borden made only broad, vague assertions regarding counsel’s alleged failures, and he put forth conclusions of law and only bare allegations that his constitutional rights had been violated. Such vague assertions and unsupported conclusions are insufficient to withstand summary dismissal for they failed to contain the required specificity and a full disclosure of the factual basis. Rule 32.6(b), Ala. R.Crim. P. Id. at 22. This language is representative of the court’s handling of Borden’s ineffective assistance claims. The appellate court also criticized Borden for failing “to identify even a single name of the many ‘family, friends and acquaintances’ who, he alleged, should .have been but were not interviewed ‘adequately.’ ” Id. at 22-23. Later in the Memorandum, the court explicitly cited the Strickland test for determining ineffective assistance of counsel when discussing Borden’s claim that counsel failed to present facts at the penalty phase of his trial that tended to support the purported mitigating circumstances. The court stated, “Borden has failed to plead this claim with sufficient specificity and has, as a result, failed to state a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Id. at 29. Nowhere in the Memorandum did the court state that it was refusing to adjudicate Borden’s relevant ineffective assistance claims due to the operation of a state procedural rule; rather, it repeatedly stated that Borden simply did not state a claim with sufficient factual support as required by Rule 32.6(b) to preclude summary dismissal under Rule 32.7(d) of the Alabama Rules of Criminal Procedure. On November 14, 2003, Borden’s application for rehearing in the Court of Criminal Appeals was denied without opinion, and on May 28, 2004, the Alabama Supreme Court denied Borden’s petition for a writ of certiorari. D. On June 25, 2004, Borden filed a petition seeking habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Alabama. On September 9, 2008, the district court denied Borden’s petition without conducting an evidentiary hearing. In its Memorandum of Opinion, the district court found that Borden had procedurally defaulted on his ineffective assistance of counsel claims, because Rule 32.6(b) was an independent and adequate state procedural rule. In addition, the district court undertook an “Alternative Merits Consideration,” finding that [e]ven if the state courts’ procedural default ruling ... can be construed as a decision on the merits, Borden cannot show that the decision was contrary to or an unreasonable application of clearly established federal law, nor can he show that the decision was based upon an unreasonable determination of the facts in light of the evidence before the state courts. On August 28, 2009, the district court granted Borden’s motion requesting a Certificate of Appealability (“COA”), certifying three issues for our review: 1. Was the “specificity requirement” of Rule 32.6(b) of the Alabama Rules of Criminal Procedure firmly established and regularly followed by the Alabama courts at the time of petitioner’s Rule 32 proceedings, so that it was an “adequate” basis for procedural default under federal law? 2. Did counsel provide ineffective assistance when they failed to interview and present as witnesses during the penalty phase of trial the petitioner’s “treating” physicians, identified in medical and psychological records admitted into evidence, where the records were available to the jury and two other (non-treating) mental health experts testified about the petitioner’s mental state during the guilt phase of trial? 3. Can a claim of ineffective assistance of counsel be based on the “cumulative effect” of multiple non-prejudicial errors by counsel when none of the individual errors themselves warrants a finding of ineffective assistance under Strickland? We address these questions in turn. II. A. As a threshold matter, we must determine whether the application of Rule 32.6(b) by the Alabama courts to Borden’s ineffective assistance claims precludes our review. See, e.g., Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). “A state court’s rejection of a petitioner’s [federal] constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim.” Id. (citing Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.1990)). In contrast, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dictates that a federal court deferentially review a petitioner’s claims that a state court has “adjudicated on the merits.” 28 U.S.C.' § 2254; see also infra part II.B. The district court determined that Borden’s ineffective assistance of counsel claims dismissed under Rule 32.6(b) were procedurally barred, a mixed determination of fact and law that we review de novo. Judd, 250 F.3d at 1313. Upon thorough review of Alabama law and the record in this case, we hold that the state court summary dismissals of Borden’s constitutional claims under Rule 32.6(b) were adjudications on the merits, and are therefore not procedurally barred, but subject t