Full opinion text
CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. SILER, J. (pp. 525-28), delivered a separate opinion concurring in part and dissenting in part. OPINION CLAY, Circuit Judge. Petitioner David Eugene Matthews, who was sentenced to death for murder by the State of Kentucky, appeals the district court’s order denying Petitioner’s claims and dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons set forth below, we AFFIRM in part and REVERSE in part. BACKGROUND I. Factual Background On June 29, 1981, Petitioner David Eugene Matthews (“Matthews” or “Petitioner”) shot his estranged wife Mary Marlene Matthews (“Marlene”), and his mother-in-law Magdalene Cruse (“Magdalene”) with a .22 caliber revolver fired from no more than eighteen inches away. The murders took place in the house Petitioner had previously shared with his wife before moving out a few weeks prior to the murders. Petitioner and Marlene had been married for approximately two and a half years before the murders. Their marriage was tumultuous, and the couple separated often. During these separation periods, Petitioner moved out of the couple’s home that they rented from Marlene’s family, and moved in with his mother a few blocks away. The Kentucky Supreme Court found that “[t]hese separations were marked by extreme hostility,” Matthews v. Commonwealth, 709 S.W.2d 414, 417 (Ky.1985) (“Matthews I ”), and Marlene would often yell at Petitioner from across the street. See id. Marlene also frequently “swore out criminal warrants against [Petitioner] for harassment.” Id. In the five weeks preceding the murders, Marlene swore out two warrants against Petitioner. One charged Petitioner with sexually abusing Marlene’s six-year-old daughter, Petitioner’s step-daughter. The second warrant charged Petitioner with burglary, for breaking and entering into Marlene’s residence. Petitioner was arrested pursuant to the first warrant, and released under a court order forbidding him from further contacting Marlene. Petitioner was not served with the second warrant until after the murders. The Matthews and Cruse families also had a tense relationship. Magdalene often called and “harassed” Petitioner’s mother, Margaret Laverne Matthews (“Laverne”), on the telephone. Laverne also often told Petitioner fabrications about Marlene’s promiscuity in an effort to come between them. On the evening of June 28, 1981, the night preceding the murders, Petitioner went to a bar with Carol Engel, a woman he had been seeing during the weeks leading up to the crimes, and drank heavily. Petitioner also took Dexedrine and Valium. Additionally, after drinking and taking pills, Petitioner asked Engel to borrow fifty dollars because he wanted to purchase a gun to protect his mother from the Cruse family. Engel lent him the money. According to the Kentucky Supreme Court, “[i]n the account of the events on the night of the murder given by [Petitioner] to the psychiatrist, [Petitioner] said that he broke into his wife’s home at about 1:00 or 2:00 a.m. He found his mother-in-law in bed and shot her” in the head. Matthews I, 709 S.W.2d at 417. Petitioner left Magdalene mortally wounded. Magdalene died later that day. After shooting his mother-in-law, Petitioner “went into the next room, had sexual relations one or two times with his wife, stayed with her until about 6:00 a.m., and shot and killed her.” Id. According to the evidence presented to the Kentucky trial court through Petitioner’s psychiatrist, Petitioner “shot his wife twice because he thought he had missed the first time.” Id. The following morning, Lawrence Cruse (“Cruse”), Marlene’s father and Magdalene’s husband, went to Marlene’s home. Cruse found a pocketknife on the steps, and observed that the side door screen had been cut and the glass broken. See id. Once inside, he found Magdalene mortally wounded, and Marlene’s twice-shot body. Upon leaving Marlene’s house, Petitioner returned to his mother’s house. After telling his mother that he had shot Marlene and all of his problems were over, he disposed of the gun in the yard, asked his mother to wash his clothes, took some Valium pills,'and went to sleep. The police arrived later that day, and informed Petitioner that he was suspected of murdering Marlene and Magdalene. Petitioner denied his involvement in the murders, but cooperated with the police. The police recovered the gun from Petitioner’s mother’s house that day, and took Petitioner into custody. Subsequently, Petitioner was indicted for both murders, and for burglary. II. Procedural History Petitioner was arrested on June 29, 1981. On August 18, 1981 a grand jury indicted Petitioner for the murders of Mary Marlene Matthews, and Magdalene Cruse, and the burglary of Marlene’s home. (See App. at 45, Pet. for a Writ of Habeas Corpus.) Petitioner’s trial, which was bifurcated into culpability and penalty phases, began in November 1982. The culpability phase lasted four days and resulted in convictions for both murders and the burglary. The penalty phase lasted only one afternoon and resulted in sentences of a term of years for the burglary, and death for each of the murders. On direct review, Petitioner raised 37 assignments of error. These included, “arguments relating] to the statutory construction and administration of Kentucky’s death penalty statute;” “[e]vidence of the burglary warrant and the sexual abuse warrant taken out before the murders should not have been admitted;” “[Petitioner’s] presentation of evidence of domestic conflict occurring before the murders took place was unduly limited;” “[testimony admitted on cross examination of [Petitioner’s] psychiatrist violated the psychologist/patient privilege;” “[t]he evidence did not sustain using the burglary charge as an aggravating factor justifying the death penalty;” “[t]he evidence did not sustain using multiple murders as an aggravating factor justifying the death penalty, and the jury’s findings were insufficient on this point;” “use of the word ‘recommend’ ... in the court’s [death penalty] instructions [to the jury] was error;” “[t]he trial court failed to adequately instruct the jury when the jury inquired about parole;” and “[t]he trial judge used improper and erroneous considerations in imposing sentence.” Matthews I, 709 S.W.2d at 418. Petitioner’s direct appeal culminated on September 26, 1985 when the Kentucky Supreme Court affirmed Petitioner’s conviction, and rejected all of Petitioner’s assignments of error. Although the Kentucky Supreme Court’s opinion only analyzed eight issues at length, the court stated that it “considered all of the[] issues [Petitioner raised].... As to those [the Kentucky Supreme Court] d[id] not discuss, [the court] note[d], for the record, that they have been considered and rejected.” Id. at 417. In December 1986, Petitioner filed a “Motion to Set Aside, Correct or Vacate Judgment” pursuant to Kentucky Rule of Criminal Procedure 11.42 (“RCr 11.42”) in the Jefferson Circuit Court. The Kentucky trial court initially denied Petitioner’s RCr 11.42 motion for post-conviction review. See Mattheios v. Commonwealth, No. 81-CR-0915 (Jefferson Cir.Ct. Aug. 10, 1990). Counsel, however, successfully moved the trial court to reconsider its order. On December 23, 1991, the Kentucky trial court vacated Petitioner’s death sentence, finding that the penalty phase jury instruction lessened the jury’s sense of moral responsibility for Petitioner’s sentence, and was, therefore, defective. (See App. at 45, Matthews v. Commonwealth, No. 81-CR-0915 (Jefferson Cir.Ct. Dec. 23, 1991) (order vacating death sentence).) In a new action, the Commonwealth appealed the Kentucky trial court’s order vacating Petitioner’s death sentence. In this appeal, the Kentucky Supreme Court reversed the trial court’s vacatur of Petitioner’s death sentence, and ordered the Kentucky trial court to examine all of the issues raised on Petitioner’s motion for reconsideration. See Commonwealth of Ky. v. Hon. Ken Conlife and David Eugene Matthews, 92-SC-732-OA (Ky. Dec. 17, 1992) (unpublished). On remand, with a new judge presiding, the trial court denied* Petitioner’s motion for reconsideration. Petitioner appealed. His motion for reconsideration was first denied on November 20, 1997, and denied again on rehearing on March 19, 1998. See Matthews v. Commonwealth, No. 96-SC-805-MR (Ky. Nov. 20, 1997) (unpublished). Petitioner’s direct appeal and state collateral review culminated on October 5, 1998 when the United States Supreme Court denied his petition for a writ of certiorari. Petitioner filed a petition for a writ of habeas corpus in the district court on February 12, 1999, pursuant to 28 U.S.C. § 2254. In his initial petition, Petitioner raised 46 grounds for relief, several of which had numerous sub-parts. These included several ineffective assistance of counsel claims; claims regarding the jury instructions in the penalty phase; claims regarding improper exclusion of mitigation evidence, and improper inclusion of irrelevant evidence; as well as failure to grant a directed verdict on the murder charges, among others. On May 7, 1999, Petitioner filed an amended habeas petition, requesting relief on several additional grounds. These included: (1) a claimed Brady violation for failing to disclose to the defense that Petitioner was on a powerful anti-psychotic while in jail awaiting trial; (2) that racial animus impermissibly tainted the Kentucky state court proceeding; and (3) that the length of Petitioner’s post-sentencing, pre-execution confinement renders capital punishment disproportionate to the offense in violation of the Eighth Amendment. CSee App. at 341-84, Am. Pet. for a Writ of Habeas Corpus.) On April 20, 2000, during the pendency of his petition in the district court, Petitioner filed a second RCr 11.42 motion for post-conviction review in Kentucky state court. This RCr 11.42 motion asserted several new claims for relief. In response, the district court dismissed Petitioner’s habeas petition on August 1, 2001, for failure to exhaust state court remedies. However, after this Court’s decision in Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002) (stating that it “is eminently reasonable” for “a district court [to] dismiss only the unexhausted claims in the habeas petition and stay further proceedings on the remaining portion until the petitioner has exhausted his/her remedies in state court” to avoid “the preclusion of a timely-filed petition for the writ due to the need to accord state courts the opportunity to adjudicate claims”), the district court issued Petitioner a certificate of appealability on the dismissal issue. Petitioner appealed, and we remanded his habeas petition to the district court for further consideration in light of Palmer. In the interim, the Kentucky Supreme Court denied Petitioner’s amended RCr 11.42 petition. Petitioner had thus exhausted all available state remedies on all of his claims on remand, and in March and July of 2006 the district court conducted evidentiary hearings on Petitioner’s habeas petition. (See App. at 630-31, Mem. Op.) The district court referred Petitioner’s habeas petition to a magistrate judge for a report and recommendation. In a 220 page report, the magistrate judge recommended granting Petitioner’s habeas petition on two grounds. These were that: 1) the trial court[] fail[ed] to grant a directed verdict on the murder counts where the Commonwealth did not prove the absence of extreme emotional disturbance beyond a reasonable doubt, as required by the then-applicable Kentucky murder statute; and 2) appellate counsel failfed] to argue on direct appeal that the term ‘extreme emotional disturbance’ should have been, but was not, defined in the jury instructions in either the guilt or penalty phase of Matthews’ trial. (Id. at 410, Rep. and Recommendation.) The district court nevertheless denied Petitioner’s habeas petition stating that “[w]hat is required constitutionally are fair procedures and evidence sufficient to warrant the trial’s sanction ... the [district] [c]ourt believes that ... the Kentucky courts have met these basic requirements of constitutional fairness and justice.” (Id. at 632, Mem. Op.) Although the district court denied Petitioner’s petition in toto, on March 20, 2009, the district court granted Petitioner a certificate of appealability on three grounds. The district court found that reasonable jurists could disagree with its resolution of the claims concerning: (1) the trial court’s failure to grant a directed verdict on the murdér counts based on the Commonwealth’s alleged lack of proof on the extreme emotional disturbance element; ... (2) appellate counsel’s alleged ineffectiveness for failing to argue that the term “extreme emotional disturbance” should have been, but was not, defined in the jury instructions in either the guilt or penalty phases of Matthews’ trial; ... [and] (3) Matthews’ claim that the prosecutor engaged in prosecutorial misconduct during the closing statements in the guilt phase by denigrating the defense of extreme emotional disturbance thereby denying Matthews a fundamentally fair trial. (Id. at 261, Order Granting Limited Certificate of Appealability.) The district court stated that “[t]he remainder of the claims presented by Matthews were clear-cut and easily addressed. The [district] [c]ourt [was] persuaded that reasonable jurists would not debate the correctness of its assessment of these claims.” (Id.) On May 26, 2009, this Court granted Petitioner an expanded certificate of appealability. As expanded, the certificate of appealability included: (1) whether Petitioner’s trial counsel were ineffective in investigating, preparing and presenting penalty phase evidence; (2) whether Petitioner’s trial counsel were ineffective in failing to try to introduce evidence of Petitioner’s extreme emotional distress (“EED”) in the penalty phase that the trial court had excluded in the culpability phase; (3) whether Petitioner’s trial counsel were ineffective in failing to object to the prosecutor’s misstatements of the law of EED in both the culpability and penalty phases; (4) whether the trial court’s exclusion of additional evidence of Petitioner’s EED violated his constitutional rights to present a defense in the culpability phase and a fair and reliable sentence in the penalty phase; (5) whether Kentucky’s murder statute was unconstitutionally vague on its face and as applied to Petitioner because EED was neither defined by statute or case law; and (6) whether Petitioner’s appellate counsel were ineffective. Petitioner filed this timely appeal, asserting all of the grounds for relief contained in the expanded certificate of appealability. DISCUSSION I. Standards of Review Petitioner asserts six grounds for habeas relief in the instant appeal: (1) that the state violated clearly established federal law by failing to prove all of the elements of murder as defined under Kentucky law at the time of his trial; (2) prosecutorial misconduct; (3) ineffective assistance of trial counsel; (4) unconstitutional exclusion of mitigation evidence in his trial’s penalty phase; (5) that the Kentucky murder statute was unconstitutionally vague; and (6) ineffective assistance of appellate counsel. In reviewing the district court’s decision regarding Petitioner’s claims that the state failed to prove all of the elements of murder; prosecutorial misconduct; unconstitutional exclusion of mitigation evidence; and that the Kentucky murder statute was unconstitutionally vague, we review the district court’s finding of facts for clear error and questions of law de novo. See Haliym v. Mitchell, 492 F.3d 680, 689 (6th Cir.2007); Campbell v. Coyle, 260 F.3d 531, 539 (6th Cir.2001). However, “[b]ecause an ineffective assistance of counsel claim involves mixed questions of law and fact,” Harries v. Bell, 417 F.3d 631, 636 (6th Cir.2005), in reviewing Petitioner’s ineffective assistance of trial and appellate counsel grounds for relief, “we review the district court’s disposition of the claim de novo and its findings of fact for clear error.” Id. II. Legal Framework Petitioner filed his petition for a writ of habeas corpus in 1999, after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (“AED-PA”) amendments to 28 U.S.C. § 2254. Petitioner’s petition is thus governed by AEDPA. As amended by AEDPA, section 2254(d) states: [a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. A decision is “contrary to ... clearly established federal law” pursuant to section 2254(d)(1) if “the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decided a case differently than the Supreme Court on a set of materially indistinguishable facts.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir.2006) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court decision “involved an unreasonable application of clearly established federal law” pursuant to section 2254(d)(1) if “the state court identified] the correct governing legal principle but unreasonably applies that principle to the facts of the prisoner’s case. Clearly established Federal law, as determined by the Supreme Court of the United States, refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state[ ]court decision.” Id. at 763 (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). Finally, pursuant to AEDPA, “the factual findings of a state court are presumed to be correct and can only be contravened if Petitioner can show by clear and convincing evidence that they are erroneous.” Id. (citing 28 U.S.C. § 2254(e)(1)). III. Procedural Default Prior to addressing the merits of Petitioner’s claims, we must determine whether the claims are properly before us, or if they have been procedurally defaulted. Respondent does not contend that Petitioner procedurally defaulted any of the following claims: that the state failed to prove all of the elements of murder; prosecutorial misconduct; ineffective assistance of trial counsel; unconstitutional exclusion of mitigation evidence; and that the Kentucky murder statute was unconstitutionally vague. A respondent failing to raise his procedural default challenge waives it. See Baze v. Parker, 371 F.3d 310, 320 (6th Cir.2004) (“The state may waive a defense,” including procedural default, “by not asserting it.”)- Therefore, with respect to these claims, to the extent that Petitioner may have defaulted any of the issues, Respondent has waived its procedural default defense. Respondent does, however, assert that Petitioner procedurally defaulted his ineffective assistance of appellate counsel claim. Petitioner raised his ineffective assistance of appellate counsel claim for the first time in his federal habeas corpus petition. However, by definition, Petitioner could not have raised his ineffective assistance of appellate counsel claim on direct appeal. Furthermore, according to Kentucky law, Petitioner could not have raised this claim in his state post-conviction motion. The Kentucky Supreme Court has stated that “claims of ineffective assistance of appellate counsel ... cannot be raised in a RCr 11.42 motion.” Taylor v. Commonwealth, 63 S.W.3d 151, 165 (Ky.2001). Petitioner’s habeas petition was his first opportunity to raise his ineffective assistance of appellate counsel claim, and he did not procedurally default this claim by not previously raising it. Because we are satisfied that Petitioner did not procedurally default any of his grounds for habeas relief, we will address the merits of his claims. IV. Burden of Proving Extreme Emotional Disturbance Petitioner argues that the prosecutor failed to prove all of the elements of murder under Kentucky law, and that, therefore, his conviction violated his Fourteenth Amendment due process rights. Petitioner asserts that Kentucky’s definition of murder when he committed the crimes at issue included the absence of EED as an element of the crimes, and that the state failed to meet its burden of proof on the EED element. Therefore, Petitioner contends that based on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), his conviction “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254. Under In re Winship, in order for a conviction to pass constitutional muster, the state must prove every element of the crime beyond a reasonable doubt. See In re Winship, 397 U.S. at 364, 90 S.Ct. 1068; Gall v. Parker, 231 F.3d 265, 286 (6th Cir.2000) (“Gall II”). Therefore, the inquiries necessary to evaluate this ground for relief are: (1) whether the absence of EED was an element of the crime of murder under Kentucky law in effect at the time of Petitioner’s crimes; and (2) if so, whether the state carried its In re Win-ship burden, including proving the EED element beyond a reasonable doubt. The Kentucky murder statute in effect at the time of the murders stated that a person commits murder when: with the intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Ky.Rev.Stat. § 507.020(l)(a). In the years preceding Petitioner’s crimes, the Kentucky Supreme Court reiterated on numerous occasions that, “the failure to act under the influence of extreme emotional disturbance is an element of the offense of murder.” Edmonds v. Commonwealth, 586 S.W.2d 24, 27 (Ky. 1979); see also Bartrug v. Commonwealth, 568 S.W.2d 925, 926 (Ky.1978) (“[T]he statute makes the absence of extreme emotional disturbance an essential element of the offense of murder.” The Kentucky “legislature clearly intended the prosecution to bear the risk of non-persuasion on the element of mitigation.”); Ratliff v. Commonwealth, 567 S.W.2d 307, 309 (Ky.1978) (“[T]he prosecution carried the burden to satisfy the jury of the absence of extreme emotional disturbance.”). In June of 1981 when Petitioner committed the crimes at issue, Kentucky law defined the absence of EED as an element of murder. During the months preceding Petitioner’s crimes, the Kentucky Supreme Court refined the distribution of the burden of proving the EED element. In Gall v. Commonwealth, 607 S.W.2d 97, 108-09 (Ky.1980) {“Gall I”), the Kentucky Supreme Court stated that “[t]he Commonwealth bore the burden of proof’ on the EED element, but “[a]n instruction of murder need not require the jury to find that the defendant was not acting under the influence of extreme emotional disturbance unless there is something in the evidence to suggest that he was, thereby affording room for a reasonable doubt in that respect.” See also Smith v. Commonwealth, 599 S.W.2d 900, 905 (Ky.1980). Thus, after Gall I, the burden of proving the EED element was distributed between the parties. The defendant bore the initial burden of production required to trigger the inclusion of the EED element as an element of the crime. Once the defendant satisfied its burden of production and “raised a reasonable doubt” regarding the EED element, the state bore the ultimate burden of persuasion, and was required to prove the EED element beyond a reasonable doubt. In the years following Petitioner’s crimes, the Kentucky Supreme Court redistributed the burden of proving EED, and placed it entirely on the defendant. In Wellman v. Commonwealth, 694 S.W.2d 696 (Ky.1985), decided four years after Petitioner’s crimes, the Kentucky Supreme Court stated that “[t]he presence or absence of extreme emotional distress is a matter of evidence, not an element of the crime.” Id. at 697. To dispel any ambiguity, the Kentucky Supreme Court further declared that “[t]o the extent that ... cases declare absence of extreme emotional distress to be an element of the crime of murder, they are expressly overruled.” Id. Wellman was the law when the Kentucky Supreme Court decided Petitioner’s direct appeal. However, because Gall I was the law when Petitioner committed the crimes, the Kentucky Supreme Court was constitutionally required to apply Gall I to Petitioner’s case. As the Supreme Court stated in Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (internal quotations and citations omitted), an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.... The fundamental principle that the required criminal law must have existed when the conduct in issue occurred, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue it must not be given retroactive effect. According to Bouie, it is impermissible for a court to apply a new judicial construction of the criminal law to prior crimes. In Gall II, 231 F.3d at 305-06, we analyzed the constitutionality of applying the post -Wellman understanding of parties’ EED burdens to earlier conduct, and applied Bouie to a materially indistinguishable ease. We explained that although the Kentucky Supreme Court’s later cases discussing EED “held that absence of EED was not an element of murder,” under Bouie, “the Kentucky Supreme Court’s explicit alterations of its interpretation of EED in cases such as Wellman ... [may] not be applied to” preceding conduct. Id at 305. Bouie prohibits retroactive application of Wellman, as Wellman was not a conclusion that was foreseeable at the time of Petitioner’s crimes. As we explained in Gall II, “[u]nder the most reasonable reading of the statute’s plain text ... absence of EED was an element of the crime.” Id Moreover, “[b]eyond the statute itself, [the] Kentucky Supreme Court’s earliest interpretations of the statute, its decision to apply this reading retroactively to cases that occurred shortly after the statute came into effect ... and its explicit acknowledgment that the later cases were directly overruling the prior cases, all support this view.” Id at 305-06. Finally, application of the Kentucky Supreme Court’s later formulation of the EED burden to crimes previously committed contravenes Bouie as “[i]t is also clear that the retroactive application of those cases would substantially disadvantage [a defendant], both by removing an element of murder, and by making [the defendant’s] burden of showing EED substantially more difficult.” Id at 306. Thus, at Petitioner’s trial, if Petitioner raised a reasonable doubt regarding the EED element, the state bore the burden of establishing the EED element beyond a reasonable doubt. Notwithstanding that Gall I was the law at the time of Petitioner’s crimes, the Kentucky Supreme Court nevertheless applied the new Wellman formulation of its murder statute to uphold Petitioner’s conviction on direct appeal. See Matthews I, 709 S.W.2d at 421 (‘We have recently written on this subject in Wellman v. Commonwealth ... clarifying that the absence of extreme emotional disturbance is not an element of the crime of murder which the Commonwealth must affirmatively prove. The trial court’s instructions in regard to extreme emotional disturbance were adequate, and the proof supported the jury’s findings of intentional murder.”). However, because the Kentucky Supreme Court’s decisions subsequent to Petitioner’s crimes cannot constitutionally govern the disposition of Petitioner’s appeal, Petitioner’s murder conviction can only be upheld if the state proved the elements of murder, as defined by Gall I, beyond a reasonable doubt. As we explained above, under Gall I, EED was only an element of murder if the defendant raised a reasonable doubt as to its presence. Therefore, the defendant had the initial burden of production. Once the defendant met this burden, the burden shifted, requiring the state to prove the EED element beyond a reasonable doubt. See Gall I, 607 S.W.2d at 108-09. Therefore, once Petitioner presented sufficient evidence demonstrating his EED to carry his burden of going forward, the prosecution was required to demonstrate the absence of EED beyond a reasonable doubt to convict Petitioner of murder. Convicting Petitioner of murder when the prosecution failed to prove the EED element beyond a reasonable doubt, contravened the Supreme Court’s established precedent requiring the state to prove every element of a crime beyond a reasonable doubt. See In re Winship, 397 U.S. at 364, 90 S.Ct. 1068. In this case, we look to Kentucky’s substantive treatment of EED to determine whether Petitioner met his production burden, and triggered EED’s inclusion as an element of murder. At the time of the murders, the Kentucky statute did not clearly define EED. However, under Kentucky law at the time of Petitioner’s crimes, “a mental disorder, whether or not it amounts to legal insanity, may constitute a reasonable explanation or excuse for extreme emotional disturbance.” Gall I, 607 S.W.2d at 109; see also Gall II, 231 F.3d at 302. For EED to be included as an element of murder, Petitioner had to introduce sufficient evidence, which could include evidence of a mental disorder, to raise a reasonable doubt regarding whether he was under the influence of EED when he committed the crimes. See Gall I, 607 S.W.2d at 108-09. At trial, Dr. Lee Chutkow, the psychiatrist who evaluated and diagnosed Petitioner in advance of trial, testified that Petitioner suffered from an adjustment disorder and alcohol abuse. (See App. at 1196, Trial Tr.) An adjustment disorder, explained Dr. Chutkow, is a “temporary emotional and behavioral disturbance” in individuals “subject to a variety of stresses, either psychological, social, physical, or a combination of stresses for days, weeks or months.” (Id.) Symptoms of an adjustment disorder can include impaired judgment and self control, as well as attempts to hurt others. (See id.) On redirect examination, Petitioner’s counsel asked Dr. Chutkow whether he was “able to formulate an opinion as to whether at the time of the offenses on June the 29, 1981 ... [Petitioner’s] mental state ... amounted to an extreme emotional disturbance or not?” Dr. Chutkow replied, “Yes. He was developing for several weeks, I believe, progressively, extreme tension, irritability, and almost a kind of fear of his late wife.” (Id. at 1205.) The Kentucky Supreme Court applied the relevant definition of EED to determine that several defendants were operating under EED. However, these defendants often suffered from more serious conditions than did Petitioner, including mental disorders akin to paranoid schizophrenia. See, e.g., Ratliff, 567 S.W.2d at 309; Gall I, 607 S.W.2d at 109; Edmonds, 586 S.W.2d at 26. Nevertheless, through Dr. Chutkow’s testimony, Petitioner presented evidence that Petitioner was suffering from a mental condition in the form of EED. Dr. Chutkow’s testimony raised a reasonable doubt regarding the EED element, and shifted onto the state the burden of proving the EED element beyond a reasonable doubt. The constitutionality of Petitioner’s conviction thus rests on whether the state met this burden of proof. In general, to determine whether the prosecution carried its burden on an element of a crime we ask “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In the instant case, we must determine whether “any rational trier of fact” could have found that the prosecution proved the EED element beyond a reasonable doubt. The prosecution presented no evidence of its own regarding the EED element. Moreover, in cross-examining Dr. Chutkow, the prosecution only elicited further statements supporting Petitioner’s EED at the time of the crimes. For example, when the prosecution asked Dr. Chutkow whether he had testified that Petitioner “was suffering from some extreme emotional disturbance at the time,” Dr. Chutkow replied ‘Yes.” (App. at 1219-20, Trial Tr.) Under Kentucky law, the prosecution was not required to present direct evidence regarding a defendant’s mental state in order to sustain its burden of proof on the EED element. See Gall I, 607 S.W.2d at 109. However, because Petitioner satisfied his burden of going forward with respect to the EED element, and the prosecution neither undermined nor contravened Petitioner’s EED evidence, there remained a reasonable doubt regarding the EED element. Therefore, no rational trier of fact could have found beyond a reasonable doubt that Petitioner acted in the absence of EED, and convicting Petitioner violated the requirements articulated in In re Winship. Accordingly, the Kentucky courts violated clearly established federal law as articulated by the United States Supreme Court in In re Winship by shifting the burden of proving the EED element onto Petitioner. At the time of Petitioner’s crimes, the absence of EED was an element of murder under Kentucky law; however, the state failed to prove the EED element beyond a reasonable doubt. We therefore grant Petitioner a writ of habeas corpus on this ground. V. Prosecutorial Misconduct Petitioner argues that the prosecutor’s improper denigration of Petitioner’s EED defense in his closing argument undercut the integrity of Petitioner’s trial, and violated the due process clause of the Fourteenth Amendment. In his closing arguments the prosecutor stated, “[Petitioner is] covering up, Ladies and Gentlemen, because he himself does not believe that ... any disorder he might have are his reasons for murdering his wife and mother-in-law. They aren’t reasonable. Nobody’s going to believe that’s a reason.” (App. at 1309, Trial Tr.) The prosecutor elaborated: [Petitioner] is arraigned, he meets his attorney and either he tells his attorney, I did it or I didn’t do it. One way or the other. But the attorney knows what the evidence is. By the way, the defendant knows what the evidence is, because while he’s giving this statement, it’s sitting forth right in front of him at the Homicide Office. Here’s the gun. Here’s the shoes, David. “Nah, nah, I never saw it before, I never borrowed a gun. I never borrowed any money. I wasn’t there. I was at home in bed asleep.” He’s denying it there. And what does his attorney think? His attorney sees all this evidence, and he’s going through his mind, what kind of legal excuse can I have? What’s the man’s defense? Self protection? No, there’s no proof of a gun found at that house on 310 Lytle Street. Protection of another? The defendant’s mother is at home on Lytle Street. He isn’t protecting her over there on North 24th Street. Intoxication? Yeah, well, he was drinking that night. Maybe that will mean something. But that isn’t enough Ladies and Gentlemen. Mr. Busse has to contact a psychiatrist to see his client, and he comes in and sees his client one month after the day of his arrest, one month to the day, and by that time, Mr. David Eugene Matthews sees his defense in the form of Doctor Chutkow, and do you think this guy is aware of what’s going on? He’s competent, he can work with his attorneys, and he enhances his story to Doctor Chutkow. Yeah, I was drinking. I was drinking a lot. I was taking a lot of pills, too, and let me tell you about the pills I was taking. Don’t you think he has a purpose in enhancing his story to the psychiatrist? Don’t you think he would exaggerate his fears about his wife, his mother-in-law, and all these other things about what other people might be doing to his mother? Don’t you think he would overstate the extent of his intoxication to his psychiatrist? It’s the defense of last resort, Ladies and Gentlemen. He has no excuse for his conduct, but that’s his only way out. (Id. at 1309-11.) In reviewing a petition for habeas corpus based on prosecutorial misconduct, “the relevant question is whether the prosecutor’s comments so infected the trial with unfairness as to make the conviction a denial of due process.” Lundgren, 440 F.3d at 778 (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). This Court engages in a two step inquiry to determine whether the prosecutorial misconduct rises to the level of unconstitutionality. “To satisfy the standard for prosecutorial misconduct, the conduct must be both improper and flagrant.” Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006). Our prior decisions dealing with prosecutorial misconduct provide some guidance regarding the nature of improper prosecutorial conduct. In determining whether the [prosecutor’s] statements ... were proper, there are several guidelines available. First, advocates have an obligation to put forth only proper arguments based on the evidence in the record. Also they must obey the cardinal rule that a prosecutor cannot make statements calculated to incite the passions and prejudices of the jurors. Finally, [this Court] h[as] held ... that a prosecutor may not make improper comments designed to completely undercut the defendant’s sole mitigation theory, effectively denying him fair jury consideration. Id. In Gall, “[r]ather than attacking Gall’s insanity evidence by pointing to counterevidence that Gall was sane, the Commonwealth simply assaulted the very use of the defense.” Gall II, 231 F.3d at 314. The prosecutor in Gall called Gall’s insanity defense “the last line of defense.” Id. The prosecutor also stated that “Gall is legally feigning insanity,” and “reminded the jury not to be hoodwinked into the defense of insanity.” Id. at 313-14. We “ha[d] no doubt that these tactics were improper,” in Gall. Id. at 315. The prosecutor’s denigrating statements in Gall were more pervasive than those of the prosecutor in this case. Indeed, we found in Gall II that “[t]hese comments and misrepresentations comprised part of a broader strategy of improperly attacking Gall’s insanity defense.” Id. at 313. Nevertheless, the prosecutor’s comments in this case are sufficiently similar to those in Gall that they rise to the level of impropriety. The prosecutor in Petitioner’s trial likewise did not point to any substantive evidence rebutting Petitioner’s EED claim. Instead, he cast aspersions on Petitioner’s EED claim by suggesting collusion between Petitioner, his attorney, and his psychiatrist, stating that Petitioner was “competent,” could “work with his attorneys,” and saw “his defense in the form of Doctor Chutkow.” (App. at 1310-11, Trial Tr.) Therefore, the prosecutor suggested that Petitioner “enhance[d] his story to Doctor Chutkow,” to manufacture his EED defense. (Id.) The prosecutor also denigrated the EED defense itself stating, “[i]t’s the defense of last resort, Ladies and Gentlemen. He has no excuse for his conduct, but that’s his only way out.” (Id.) Although “a prosecutor may not make improper comments designed to completely undercut the defendant’s sole mitigation theory, effectively denying him fair jury consideration,” Broom, 441 F.3d at 412, that is precisely what the prosecutor did in Petitioner’s trial. Thus the prosecutor’s conduct was improper, satisfying the first prong of the prosecutorial misconduct test. Regarding the second, flagrancy, factor of the prosecutorial misconduct test we have stated: [o]nce conduct is held to be improper, there are four factors [to] consider in determining flagrancy: (1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the [petitioner]. Id. Application of these factors demonstrates that the prosecutor’s conduct in Petitioner’s trial was flagrant, depriving Petitioner of a constitutionally proper trial. First, the prosecutor’s statements were likely to mislead the jury. A prosecutor, Misrepresenting facts in evidence ... may profoundly impress a jury and may have a significant impact on a jury’s deliberations. This is particularly true in the case of prosecutorial misrepresentation because a jury generally has confidence that the prosecuting attorney is faithfully observing his obligation as a representative of a sovereignty, whose interest in a criminal prosecution is not that it shall win a case, but that justice will be done. Gall, 231 F.3d at 313. In light of the weight that juries accord a prosecutor’s statements, there is a significant danger that Petitioner’s jury seriously considered the prosecutor’s allegations that Petitioner was exaggerating the extent of his EED, and colluding with his attorney and doctor to manufacture his EED defense. The next element of the flagrancy inquiry is, “whether the remarks were isolated or extensive.” Broom, 441 F.3d at 412. In this case, in contrast to Gall where the prosecutor’s denigration of Gall’s insanity defense was “part of a broader strategy,” Gall II, 231 F.3d at 313, the prosecution’s improper statements were confined to his closing arguments. However, the remarks, which spanned two pages of the trial transcript, and comprised nearly a quarter of his closing statement, were hardly isolated. The third factor is, “whether the remarks were deliberately or accidentally made.” Broom, 441 F.3d at 412. There is no direct evidence regarding intent. However, when “the prosecutor! ] ... opts to select inappropriate arguments and use them repeatedly during summation ... [t]he intentionality of the prosecutor’s improper remarks can be inferred from their strategic use.” Bates v. Bell, 402 F.3d 635, 648 (6th Cir.2005). In this case, the prosecutor presented a lengthy narrative to the jury detailing his theory of Petitioner’s exaggeration and collusion. This suggests that the prosecutor deliberately presented the improper arguments. Finally, we must consider “the total strength of the evidence against the [petitioner].” Broom, 441 F.3d at 412. In assessing the “total strength of the evidence against [Petitioner], [this Court] must distinguish between evidence of the [Petitioner’s] guilt of the underlying criminal charge and evidence of any ... mitigating circumstances.” Id. at 413. The only issue considered in Petitioner’s trial was whether or not he killed his wife and mother-in-law under the influence of EED. Actual innocence was not an issue. As previously discussed, the prosecution presented no evidence rebutting Petitioner’s demonstration that he was acting under the influence of EED while committing the crimes. The strength of the evidence available to rebut Petitioner’s EED defense was dubious. Therefore, the fourth factor suggests that the prosecutor’s statements satisfy the flagrancy requirement set by this Court. The prosecutor’s comments during closing arguments regarding Petitioner’s supposed exaggeration of his EED, and collusion with his attorney and doctor, were both improper and flagrant. “[T]he Commonwealth’s misconduct was sufficiently egregious to render the entire trial fundamentally unfair.” Gall II, 231 F.3d at 315. Accordingly, the prosecution’s statements suggesting that Petitioner and his defense team colluded to manufacture his EED claim, and exaggerated the extent of his EED, rendered Petitioner’s trial unfair, and denied him of his constitutionally protected due process rights. It was unreasonable for the Kentucky Supreme Court to reach a contrary result. VI. Ineffective Assistance of Trial Counsel In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court stated that “[t]he 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.” Thus, to prevail on an ineffective assistance of counsel claim, a petitioner “must demonstrate that counsel’s representation fell below an objective standard of reasonableness and that the [petitioner] was prejudiced by the ineffective assistance of counsel.” Carter v. Bell, 218 F.3d 581, 591 (6th Cir.2000) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “Representation is deficient,” under the Strickland test, “when counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. Moreover, to satisfy the prejudice prong of Strickland, a petitioner “need not show that counsel’s deficient conduct more likely than not altered the outcome in the case, rather, only that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Lundgren, 440 F.3d at 770 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 799. Strickland’s prejudice prong is further refined in the context of a death sentence. “When a petitioner challenges a death sentence, the 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.” Harries, 417 F.3d at 637 (internal quotations omitted). Furthermore, “[u]nder federal law, one juror may prevent the death penalty by finding that mitigating factors outweigh aggravating factors.... [Therefore,] the prejudice prong is satisfied if there is a reasonable probability that at least one juror would have struck a different balance.” Lundgren, 440 F.3d at 770 (quoting Wiggins v. Smith, 539 U.S. 510, 523-28, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). 1. Ineffective Assistance of Trial Counsel in Investigation, Preparation and Presentation of Penalty Phase Evidence Petitioner argues that trial counsel were ineffective for: (1) failing to adequately diagnose and demonstrate the severity of Petitioner’s EED and mental health conditions; (2) failing to investigate, discover and present a variety of mitigating facts relating to both Petitioner’s and his family’s histories, to wit, evidence of mental illness in Petitioner’s family; alcoholism in Petitioner’s family; Petitioner’s own alcohol and drug abuse, which indicated a possibility of brain damage; and vast amount of non-statutory mitigating evidence relevant to Petitioner’s upbringing and character. (See App. at 456, Rep. and Recommendation.) Petitioner further claims that “[c]ounsel were also ineffective in failing to try to present [additional mitigation] testimony in the penalty phase ... even though the trial judge had excluded the same testimony in the culpability phase.” (Br. of Pet’r at 41.) Petitioner argues that because “Mitigation must be offered to the jury[,] counsel ha[d] a duty to present it,” and that, “[o]pting not to try to represent this evidence ... amounted to deficient performance.” (Id. at 42.) “The Eighth and Fourteenth Amendments to the United States Constitution dictate that the sentencer in a capital case may not be precluded from considering any relevant circumstances as a mitigating factor.” Carter, 218 F.3d at 594 (citing Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)). Evidence appropriate for admission as “Mitigating evidence includes 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.” Id. (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)) (internal quotation marks omitted). We have, therefore, emphasized that “a thorough and complete mitigation investigation is absolutely necessary in capital cases.” Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir.2006). “Capital defense counsel has an affirmative duty to pursue mitigation evidence and to conduct an appropriate investigation into potential mitigating factors.” Imndgren, 440 F.3d at 770. As such, “investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Id. at 771 (internal quotations and citations omitted). Because “it is undisputed that [a] petitioner has a right — -indeed, a constitutionally protected right — to provide the jury with ... mitigating evidence,” Carter, 218 F.3d at 594, and because the extent of admissible mitigation evidence is sweeping, “notwithstanding the deference Strickland requires, neither this [C]ourt nor the Supreme Court has hesitated to deem deficient counsel’s failure to fulfill this obligation.” Harries, 417 F.3d at 637. a. Evidence of Petitioner’s EED and Mental Health In the instant appeal of his petition for a writ of habeas corpus, Petitioner asserts that his trial counsel were ineffective in preparing Dr. Lee Chutkow, the psychologist who evaluated Petitioner and testified at trial. Due to counsel’s deficiencies, Petitioner argues, Dr. Chutkow’s diagnosis did not reflect the seriousness of Petitioner’s mental disorders, and Petitioner was prejudiced during the mitigation phase of trial. To assess Petitioner’s mental health, Petitioner’s trial counsel hired both a psychiatrist and a neuropsychologist to evaluate Petitioner in advance of trial. Only Dr. Chutkow, the psychiatrist, provided a relevant diagnosis. Dr. Chutkow met with Petitioner several times to question Petitioner about his personal history, and his relationship with his wife and family. Dr. Chutkow also spoke with Petitioner’s mother. Based on these evaluations, Dr. Chutkow diagnosed Petitioner with adjustment disorder and alcohol abuse. (See App. at 467-68, Rep. and Recommendation.) Petitioner’s habeas counsel hired a psychologist, Robert Smith, Ph.D., to evaluate Petitioner’s mental health, and to assess the reliability of Dr. Chutkow’s diagnosis which was presented at Petitioner’s trial. (See id. at 3709-808, Tr. of Hr’g 7/19/2006.) At an evidentiary hearing held before the magistrate judge on July 19, 2006, Petitioner’s habeas counsel questioned Dr. Smith regarding the sufficiency of Dr. Chutkow’s examination and diagnosis. Dr. Smith explained that in his professional opinion, in diagnosing Petitioner it was important to identify “corroborating data regarding the characteristics of an individual’s behavior and use of alcohol and other drugs to confirm the information that’s provided by David Matthews.” (Id. at 3719.) The diagnosing psychologist in Petitioner’s case was tasked with “trying to determine if information from the defendant is reliable, what you look for are consistencies ... what you are looking for is overlaps ... recognizing that that data then is likely to be valid and reliable.” (Id. at 3720.) Therefore, explained Dr. Smith, “the important thing in reaching a diagnosis would be to have [family] history because historical data becomes very important about the progression of a disorder; family history, because again, genetic influences can be important.” (Id. at 3719.) Dr. Smith concluded that “[he] did not believe that Dr. Chutkow’s diagnosis was reliable,” (id. at 3717), because “the material that [Dr. Chutkow] had was limited. He did not have information from family. He did not do a detailed history of David Matthews’ use of alcohol and other drugs beginning in childhood through adolescence and into adulthood. So as a result, he didn’t have the information to make a reliable diagnosis.” (Id. at 3717-18.) In reaching his own diagnosis, Dr. Smith did a full history of David Matthews’ family, asking about each family member who may have used or abused alcohol or other drugs. Then went through his entire life. Asking about his use of different substances at different times, looking for patterns of use, and looking for any indications of progression. Then looked at his testing results ... from ... Dr. Chutkow, medical records for David Matthews and family members. Affidavits of family members and friends, and a number of court documents. (Id. at 3718-19.) Based on these inquiries, Dr. Smith “made two primary” diagnoses regarding Petitioner’s condition at the time of the crimes. (See id. at 3721.) He diagnosed Petitioner with “substance dependence, alcohol dependence, [and] amphetamine abuse,” as well as “narcissistic personality disorder.” (Id.) Petitioner contends that Dr. Smith’s more severe diagnoses are more accurate reflections of Petitioner’s mental health at the time of the crimes than were Dr. Chutkow’s. Although Dr. Smith testified before the magistrate judge regarding the inadequacies of Dr. Chutkow’s diagnosis and trial testimony, (see id. at 3717-21, Tr. of Hr’g 7/19/2006), in his deposition, Mr. Busse, one of Petitioner’s trial counsel, stated that contrary to Dr. Smith’s assertion, “Dr. Chutkow did numerous tests ... and then he did several follow-up reviews of Mr. Matthews ... [and that Dr. Chutkow is] a very competent ... very strong psychiatrist. And he testified to what he believed was accurate and true to the best of his knowledge.” (Id. at 3851, Busse Dep.) Busse also explained that notwithstanding critiques of Dr. Chutkow’s examination two decades after the fact, not only did “Dr. Chutkow [do] a thorough and complete exam,” (id. at 3884), but Petitioner’s defense team were limited in their options for experts in Petitioner’s trial because “in 1981, psychiatrists were not signing up all over Jefferson County[, Kentucky] to testify in death penalty cases.” (Id. at 3919.) Petitioner’s contentions that his trial counsel were ineffective in choosing Dr. Chutkow to evaluate him and testify at trial, and that Dr. Chutkow’s clinical methodology was legally insufficient, are unavailing. We have stated that “[e]ounsel’s diligence in obtaining not just the constitutionally mandated single mental health expert, but two mental health experts,” as did counsel in this case, “shows that counsel engaged in a reasonable investigation into Petitioner’s mental state at the time of the crimes.” Lundgren, 440 F.3d at 772. Furthermore, “[t]o the extent that Petitioner’s argument can be framed as one impugning the competency of the [psychiatrist] retained to assist trial counsel, Petitioner’s argument has little merit.” Id. We explained in Lundgren that “[t]he Constitution does not require that an indigent criminal defendant be able to retain the expert of his choosing, only that a competent expert be made available,” and that “[a] licensed practitioner is generally held to be competent, unless counsel has good reason to believe to the contrary.” Id. Therefore, because there is no evidence in the record challenging Dr. Chutkow’s competence and credentials, Petitioner’s argument that counsel’s choice and preparation of Dr. Chutkow were ineffective, fails. b. Mitigation Investigation and Presentation Petitioner also argues that his trial counsel were ineffective for failing to investigate, discover and present a variety of mitigating facts relating to Petitioner’s and his family’s histories, to wit, evidence of mental illness in Petitioner’s family; prevalence of alcoholism in Petitioner’s family; Petitioner’s own alcohol and drug abuse; and a vast amount of non-statutory mitigating evidence relevant to Petitioner’s upbringing and character. To evaluate whether counsel’s investigation was deficient, we compare the “net effect of the undiscovered and unpresented evidence, viewed cumulatively,” Morales v. Mitchell, 507 F.3d 916, 936 (6th Cir.2007), with the “evidence trial counsel [discovered and] presented on Petitioner’s behalf.” Haliym, 492 F.3d at 708. i. Omitted Evidence To demonstrate that his trial counsel were ineffective for failing to sufficiently investigate and present mitigation evidence, Petitioner presents affidavits from several individuals personally acquainted •with him, and his life prior to the crimes. The affiants include: Rita Baete, Petitioner’s first cousin; Beverly Higdon, Petitioner’s younger sister; Barbara Kaegin, Laverne Matthews’ friend, and Petitioner’s childhood babysitter; Jerry Matthews, Petitioner’s brother; Linda Matthews, Jerry Matthews’ wife, and Petitioner’s sister-in-law; Anna Rose Seward, Laverne’s sister, and Petitioner’s aunt; Brenda Mattingly, Petitioner’s first cousin; Anthony Wayne Matthews, Petitioner’s son; Judy Kay Carrier, Petitioner’s girlfriend from the fall of 1974 through the summer of 1975, and the mother of one of Petitioner’s children; and Laverne Matthews. The affiants each averred facts regarding the categories of mitigating evidence that Petitioner contends his trial counsel failed to discover and present at the trial’s penalty phase. Many of the affiants also testified, and were cross-examined, at an evidentiary hearing regarding Petitioner’s habeas petition held before the magistrate judge. (See App. at 3334-809, Evidentiary Hr’g 7/7/2000.) Several individuals who affirmed that they would have been willing to testify at Petitioner’s trial, provided evidence regarding the history of mental illness in Petitioner’s family. Rita Baete explained that her mother, Petitioner’s maternal aunt, “was severely mentally ill for many years,” that her “mother heard voices,” experienced delusions, and “was hospitalized many times over the years because of her mental illness.” (Id. at 3941, Baete Aff.) Furthermore, Baete indicated that she perceived “personality traits in other family members ... similar to [those of her mother].... Specifically, ... Margaret Laverne Matthews, Anna Rose Seward ... Roger Wayne Matthews and Beverly Matthews Higdon act[ed] at times like [her] mother did. [And that m]any people in [the] family ha[d] ‘short fuses,’ and experience[d] serious episodic mood swings.” (Id.) Beverly Higdon also detailed the history of mental illness in Petitioner’s family. Specifically, she listed the following incidents: (1) “maternal uncle, William Beard committed suicide;” (2) “Grandfather Beard’s sister committed suicide;” (3) “Timothy Ray Matthews, [Petitioner’s] son committed suicide at the age of seventeen;” (4) “maternal aunt ... was hospitalized and treated for mental illness;” and (5) she “was hospitalized in 1980 at Our Lady of Peace Hospital and treated for Depressive Neurosis as well as habitual excessive drinking.” (Id. at 3946, Higdon Aff.) Petitioner’s brother, Jerry Matthews, also averred that he thought “[his] brother Roger Wayne ha[d] mental problems,” and that “Wayne [wa]s a strange person. He d[id] not know how to have a relationship with anyone.” (Id. at 3