good relationship with his five year old sister. Id. at
After this brief testimony, the lawyers presented arguments on
the aggravating and mitigating circumstances. The jury's verdict
was a death sentence for the murder of Tammy Mock and life
imprisonment for Holly Jacobs' death. As to Tammy Mock, the jury
found the following aggravating circumstances: the offense was
committed by means of torture; and the defendant was convicted
of another murder committed either before or at the time of the
offense at issue. The jury found the following to be mitigating
factors: that the defendant was under an emotional disturbance;
and his record. Ultimately, the jury concluded that the
mitigating circumstances were outweighed by the aggravating
circumstances and a death sentence was imposed for the murder of
B. The evidence
Petitioner now claims that powerful mitigation evidence was
available. However, because trial counsel failed to investigate,
he was not aware of it and did not present it at the sentencing
hearing. A summary of what an investigation into the
petitioner's background would have revealed follows:
Petitioner does not have a stable family background.
Petitioner's mother was a heavy drinker and drank while she was
pregnant with him. She was beaten by his alcoholic father in
front of their children, including the petitioner. App. Ex. 4,
Declaration/Affidavit of Marjorie Winston, ¶ 8. See also App.
Ex. 5, Declaration/Affidavit of Hazel Jacobs Hinson, ¶ 10 and
App. Ex. 6, Affidavit/Declaration of Lois Jacobs, ¶ 9.
(Hereinafter "Ex. 4", "Ex. 5" and "Ex. 6" respectively).
Petitioner was afraid of his father because of the beatings he
gave his mother. Ex. 4, 8; Ex. 5, ¶ 11. The beatings would
sometimes leave her bloodied and bruised. Ex. 5, ¶ 11; App. Ex.
7, Declaration/Affidavit of Delois Jacobs, ¶ 2 (hereinafter "Ex.
7"). Eventually, petitioner's mother left her husband, and she
and her children never saw him again. Accordingly, the
petitioner never had any kind of real relationship with his
father. Id.; Ex. 4 ¶ 8.
Moreover, petitioner's mother allowed him to drink in bars
from a young age, and he began drinking at home by the age of
twelve. His mother gave him money to buy beer. His aunt came to
his house several times to find him, his mother and brother
intoxicated. Ex. 4, ¶ 16.
After the breakup with petitioner's father, his mother became
involved with a new boyfriend, Eugene. They were together for
about ten years. Ex. 6, ¶ 11. Eugene started drinking and
becoming in-toxicated with petitioner when petitioner was
thirteen years old. He would sometimes get into a rage and beat
petitioner when they were both drunk. Ex. 4, ¶ 11.
Petitioner's mother would take him to the bars and give him
drinks. She would also take him with her when she went to spend
time on the street and when she met other men. Id. at ¶ 9; Ex.
5, ¶ 11. At times when the petitioner was "older" his mother
would sometimes leave him with his aunt as a babysitter while
she went out drinking. Despite his age, petitioner would cry
when left. Ex. 4, ¶ 4. The mother would often return drunk the
next morning to pick up the children. Id. at 10.
Additionally, petitioner's older brother constantly beat him
and on one occasion stabbed him. Ex. 4, ¶ 15; Ex. 5, ¶ 13; Ex.
6, ¶ 14; Ex. 7, ¶ 4. When the stabbing occurred, the mother was
visiting with a sister in Virginia. After being told of the
stabbing, she did not cut short the visit to return home to
attend to her son. Ex. 4, ¶ 15. She did not even go to the
hospital to see Daniel. Ex. 6, ¶ 14. On several other occasions,
petitioner's mother had to
stop petitioner's brother from beating on him. Ex. 7, ¶ 4.
Petitioner attempted to get employment to help support his
mother once her boyfriend left. However, he was not intelligent
enough to fill out some of the applications and could not keep a
job. Ex. 4, ¶ 13. He was not able to hold even the most simple
jobs. Ex. 7, ¶ 7. Eventually, the mother found another boyfriend
whom she met at a shelter. She started drinking more heavily,
and the boyfriend began to abuse her and the petitioner. Ex. 4,
¶ 14. Petitioner was depressed because of his mother getting
beaten and once again, the petitioner's mother left the
boyfriend because she had been beaten so badly. Id.
In addition, petitioner also suffered from cognitive problems.
He was always slow and confused. Ex. 5, ¶ 2. He would stare into
space or at the television for hours. App. Ex. 9,.
Declaration/Affidavit of Angie Jacobs, ¶¶ 2-3. At approximately
six years of age, petitioner was involved in a car accident and
a piece of metal from the radio went into his head and remained
there. At the hospital, he went untreated for a long period of
time, because his mother was not there and the hospital needed
her permission to treat him. After this accident, he became
afraid to go outside and seemed even slower mentally. Ex. 4, ¶
As a teenager, petitioner would sit around the house naked
with uncombed hair staring at the television. Id. ¶ 5. His
mother had to dress him and comb his hair and treat him like a
little child. Id. His mother even bathed him as a young adult.
Ex. 5, ¶ 5. Nonetheless, relatives would come to the house and
find petitioner naked, or nearly so, dirty and unkempt sitting
in front of the television Id. Even when he became a young
adult he still acted like a child. His aunt would try to engage
him in conversation, and all he would do was giggle and grin.
Ex. 4, ¶¶ 3-4; Ex. 5, ¶ 2; Ex. 6, ¶¶ 2-4. His mother knew
petitioner had problems but did not seek professional help — she
merely kept him home. Id. at ¶ 9.
Moreover, medical witnesses could have testified to cognitive,
mental and emotional problems suffered by the petitioner. Dr.
Patricia Fleming, a licensed clinical psychologist and
neuropsychologist, examined the petitioner at the request of
post conviction counsel. She interviewed him and his mother and
administered a psychological and neuropsychological test battery
to him. App. Ex. 2, Affidavit/Declaration of Dr. Patricia
Fleming, ¶ 3 (hereinafter "Ex. 2"). She concluded that the
petitioner suffers from mild mental retardation with a full
scale I.Q. of 63. Id. at ¶ 9. She also found that organic
brain damage was suggested and consistent with his background of
apparent prenatal maternal alcohol abuse, head traumas and
exposure to physical abuse and neglect. Id. She further
concluded that the petitioner suffers from serious psychological
and emotional impairments including schizoid personality
disorder*fn6 which causes significant functional impairment
and distress. Id. at ¶ 11. Dr. Fleming came to the conclusion
that the petitioner's traumatic childhood, mental retardation,
organic brain damage, emotional impairments and personality
disorder cause significant psychological, emotional and
cognitive impairments. Id. at ¶ 12.
Julie Kessel, M.D., a practicing psychiatrist, Board Certified
by the American Board of Psychiatry and Neurology, conducted a
forensic psychiatric evaluation of the petitioner. She likewise
found him to be mentally retarded with an I.Q. below 70. App.
Ex. 3, Declaration of Julie
Kessel, M.D., ¶ 3 (hereinafter "Ex. 3"). She also concluded that
for most of his life petitioner has suffered from extreme mental
and emotional disturbance, including mental retardation, brain
damage and schizoid personality disorder. In addition he has
suffered from the effects of childhood abuse, alcohol and drug
abuse,*fn7 trauma and neglect. Id. at ¶ 13. Further, he has
suffered from dysthymia since his teenage years which is
characterized by a chronic depressed mood, impairments in
appetite and sleep, lack of energy, low self-esteem and
difficulty concentrating and making decisions. Id. ¶ 8.
The sole doctor to examine the petitioner prior to the trial
was Dr. Robert Davis, a medical doctor and psychiatrist with a
clinical and forensic practice in Harrisburg, Pennsylvania. He
was not informed that the prosecution was seeking the death
penalty. Moreover, he was not asked to conduct an evaluation
with respect to any possible mental health-related mitigating
circumstances but was asked only to conduct an evaluation
concerning any mental health issues regarding the petitioner's
criminal responsibility (insanity or some form of diminished
capacity) and competency to stand trial. App. Ex. 1,
Affidavit/Declaration of Dr. Robert Davis ¶ 1-2 (hereinafter
"Ex. 1"). He was not provided with any materials concerning
petitioner's background. Id. at ¶ 3. Dr. Davis states:
As is well understood among forensic mental health
professionals, the scope of an evaluation for
purposes of mitigation at a capital sentencing
proceeding is far broader than that for competency or
criminal responsibility at trial. Mental, cognitive
and emotional impairments and disturbances that do
not render a person incompetent or insane are
nevertheless highly relevant for purposes of
mitigation. In addition, collateral information
concerning the individual's background and life
history, including medical and other records,
childhood abuse and/or neglect, history of drug or
alcohol abuse, and accounts of the individual's life,
background and development from people who knew him
as a child, teenager or adult, are particularly
important for purposes of mitigation. Furthermore, to
the extent there is any indication of possible
organic impairment, psychological and
neuropsychological testing is indicated in capital
cases. In fact, my practice in capital cases is to
request such testing to screen for brain damage or
other impairments not immediately seen upon a
standard psychiatric evaluation.
Id. at ¶ 6.
Dr. Davis states that had he been provided with the necessary
collateral information in the instant case he could have
provided a report and testimony concerning the harmful effects
of abuse and neglect on children, the global impairments
suffered by those who are mentally retarded, the significance of
organic brain damage, the impairments resulting from schizoid
personality disorder and the exacerbating effects on all of
these impairments by the abuse of alcohol and drugs. Ex. 1, ¶
Jacobs presents this evidence to establish that mitigating
evidence exists that may have influenced the jury to agree upon
a lesser sentence. We have expanded the record to include the
affidavits/declarations referenced above that were submitted by
the petitioner. See Rule No. 6 of the Rules Governing Habeas
Corpus Proceedings under Section 2254. Respondents indicated
that they do not oppose the expansion. See Doc. 26. See
Blackledge v. Allison, 431 U.S. 63, 81, 97 S.Ct. 1621, 52
L.Ed.2d 136 (1977) (explaining that the court may direct
expansion of the record to include any appropriate material that
will enable the judge to dispose of some
habeas petitions that are not dismissed on the pleadings,
without the time and expense required for an evidentiary
hearing). Accordingly, we find that this evidence was available
and could have been presented to the jury during the penalty
No doubt exists but that such evidence as has been presented
by petitioner would count as mitigating. Pennsylvania statutory
law provides for the following two mitigating factors: "The
capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired." 42 Pa.C.S.A. § 9711(e)(3); and "The
defendant was under the influence of extreme mental or emotional
disturbance." 42 Pa.C.S.A. § 9711(e)(2).
C. Pennsylvania Supreme Court analysis
In its PCRA opinion, the Pennsylvania Supreme Court addressed
trial counsel's alleged failure to investigate mitigating
evidence and found that trial counsel was not ineffective. The
court concluded that trial counsel had a reasonable basis for
his course of conduct. This conclusion was based upon the
following: there was no evidence that counsel was aware of
Jacobs' mental problems; all the mental health evidence that
trial counsel had obtained indicated that the petitioner was not
mentally incapacitated; petitioner's mental state was in fact
raised as a mitigating factor; and the jury found a mitigating
factor in that the petitioner was under extreme mental and
emotional disturbance. Commonwealth v. Jacobs, 727 A.2d at
To address the merits of the petitioner's habeas corpus claim
with regard to the Pennsylvania court's ruling, we must
determine, as set forth supra, whether: 1) the petitioner has
demonstrated that United States Supreme Court precedent requires
an outcome contrary to that reached by the state court; or 2)
the state court decision represents an unreasonable application
of Supreme Court precedent. That is, the state court opinion,
when evaluated objectively and on the merits; resulted in an
outcome that cannot reasonably be justified. Matteo, 171 F.3d
It is beyond question that clearly established federal law, as
determined by the United States Supreme Court, exists and is
applicable to the instant case. The law is the previously
explained Strickland case which deals with ineffectiveness of
counsel. See Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). Our task is to determine whether
the Pennsylvania Supreme Court's rejection of the petitioner's
claim is contrary to or involved an unreasonable application of
this established law. Id.
Pennsylvania's courts apply a standard for ineffectiveness of
counsel that is identical to the standard set forth by the
United States Supreme Court in Strickland. Therefore, the
Pennsylvania Supreme Court's ruling was not contrary to
established United States Supreme Court precedent. Werts v.
Vaughn, 228 F.3d 178, 203-04 (3d Cir. 2000). Hence, we must
proceed to determine if the Pennsylvania Supreme Court's
decision represents an unreasonable application of federal court
precedent. In other words, we must determine whether the state
court opinion, when evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be justified.
As explained more fully supra, Strickland requires a two
step analysis. A court must first examine whether counsel's
representation fell below an objective standard of
reasonableness under prevailing professional norms, and if so,
whether petitioner was prejudiced by counsel's substandard
performance. While addressing this issue, we bear in mind that
basic concerns of counsel during a capital sentencing proceeding
are to neutralize the aggravating circumstances advanced by the
state, and to present mitigating evidence." Starr v. Lockhart,
23 F.3d 1280, 1285 (8th Cir. 1994) cert. denied sub nom Norris
v. Starr, 513 U.S. 995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994).
Trial counsel even admitted at the PCRA hearing that he was
concerned because he believed there was "a real risk" of a first
degree murder conviction. Res. Ex. 16, N.T. PCRA hearing 5/29/97
D. Strickland's first prong, deficient performance
Petitioner claims that his trial counsel was ineffective for
failing to investigate and present mitigating evidence. To begin
its analysis, the Pennsylvania Supreme Court noted that trial
counsel did conduct an investigation into the petitioner's
mental state. As noted above, trial counsel had the petitioner
examined by Dr. Robert Davis, a psychiatrist, to determine
whether the petitioner suffered from a mental impairment that
would have negated his criminal responsibility or rendered him
incompetent to stand trial. Dr. Davis determined that the
petitioner did not suffer from any such impairment and that he
was competent to stand trial.*fn9 Jacobs, 727 A.2d at
At issue, currently, however, is whether an evaluation was
performed with regard to mitigating evidence not whether the
petitioner suffered a mental impairment that would have affected
his criminal responsibility or competency to stand trial. As set
forth above, Dr. Davis states that an evaluation for mitigating
evidence is different from an evaluation for criminal
responsibility/competency to stand trial. He was asked only to
perform the latter, and was not informed that the prosecution
was seeking the death penalty.
Moreover, the Pennsylvania Supreme Court misconstrued the
affidavit/declaration of the examining psychiatrist. The court
concluded that "[Dr. Davis] notes, however, that collateral
information regarding [petitioner's] upbringing would have been
required for him to conclude that further testing was
necessary." Id. at 750, 727 A.2d 545. In support of this
conclusion, the court cites paragraphs 6, 8, 10 and 11 of Dr.
Davis's affidavit. Id. A review of the affidavit/declaration,
including these paragraphs, reveals that the Supreme Court is
Dr. Davis was not informed by trial counsel that this was a
capital case. In capital cases, it is Dr. Davis's practice to
request testing to screen for brain damage or other impairments
not readily seen upon a standard psychiatric evaluation.
Pet.App. 1, Affidavit/Declaration of Dr. Robert Davis, ¶ 6. No
further collateral evidence was necessary to trigger such
testing. Dr. Davis simply had to know that the prosecution was
seeking the death penalty. He further opined that had he been
provided with the relevant background evidence and requested to
conduct a mitigation evaluation he "would definitely have
requested psychological testing. Even without this collateral
information, had I been asked to conduct a mental health
mitigation evaluation, I would have requested psychological
testing." (emphasis added). Id. at ¶ 8. Dr. Davis did not need
information that was not within the attorney's knowledge to
conclude that further testing was needed. All he needed was to
know that it was a capital case and/or a request to perform a
mitigation evaluation. Therefore, we find that the Pennsylvania
Supreme Court erred in its analysis.
Moreover, even if we were to accept the Pennsylvania Supreme
Court's reasoning that Dr. Davis needed more information to
conclude that further testing was necessary, their opinion would
still be flawed. The court found that trial counsel was not
ineffective for failing to explore the mitigating evidence
because he did not have the relevant background information on
the petitioner that Dr. Davis would have needed to perform a
mitigation evaluation. The court stated that "the record,
however, fails to reveal that trial counsel was aware of the
circumstances surrounding [Jacobs'] upbringing. Nor does
[Jacobs] assert that counsel was aware of these matters."
Jacobs, 727 A.2d at 551. The court reasoned that because
counsel did not possess the information, he was not ineffective
in failing to have the mitigation evaluation performed.
The Pennsylvania Supreme Court's reasoning represents an
unreasonable application of United States Supreme Court
precedent. The important point is not that counsel did not have
the information, but rather, we must examine why counsel did
not have the information. Here, counsel did not have the
information because he failed to investigate and obtain the
relevant information. The fact that trial counsel did not have
such information merely supports the conclusion that he did not
fully investigate — it does not justify the failure to
investigate and present evidence as the Pennsylvania Supreme
United States Supreme Court precedent holds that "[c]ounsel
has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. 2052.
Moreover, the duty to investigate encompasses an investigation
into mitigating circumstances including family background and
mental health mitigating evidence. "To descend to the level of
ineffective assistance of counsel, a lawyer's performance must
be poor indeed . . . [A]t the penalty phase of a capital case, a
failure to investigate or to adequately prepare expert witnesses
may sink to that level." Wallace v. Stewart, 184 F.3d 1112,
1118 (9th Cir. 1999) cert. denied 528 U.S. 1105, 120 S.Ct.
844, 145 L.Ed.2d 713 (2000).
The United States Supreme Court has cited with approval the
ABA Standards for Criminal Justice for the proposition that
trial counsel has an obligation to conduct a thorough
investigation of the defendant's background for the sentencing
phase of a trial. Williams, 529 U.S. 362, 396, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000). Pursuant to the ABA Standards for
The lawyer . . . has a substantial and important role
to perform in raising mitigating factors both to the
prosecutor initially and to the court at sentencing.
This cannot effectively be done on the basis of broad
general emotional appeals or on the strength of
statements made to the lawyer by the defendant.
Information concerning the defendant's background,
education, employment record, mental and emotional
stability, family relationships, and the like, will
be relevant, as will mitigating circumstances
surrounding the commission of the offense itself.
Investigation is essential to fulfillment of these
functions. . . .
1 ABA Standards for Criminal Justice, 4-4.1, commentary, p.
4-55 (2d ed. 1980).
One of the underpinnings of this facet of the law is that
under United States Supreme Court precedent, the major
requirement of the penalty phase of a trial is that the sentence
be individualized by focusing on the particularized
characteristics of the defendant. See Eddings v. Oklahoma,
455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In addition,
the United States Supreme Court has recognized the principle
that "punishment should be directly related to the personal
culpability of the criminal defendant. If the sentencer is to
make an individualized assessment of the appropriateness of the
death penalty, evidence about the defendant's background and
character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and
mental problems, may be less culpable than defendants who have
such excuse." (internal quotation omitted) Penry v. Lynaugh,
492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
It is not surprising then that many circuit courts of appeals
cases from various circuits have found counsel ineffective for
failing to investigate and present evidence of family history,
character, background and mental deficiencies. See Glenn v.
Tate, 71 F.3d 1204 (6th Cir. 1995) cert. denied 519 U.S. 910,
117 S.Ct. 273, 136 L.Ed.2d 196 (1996) (counsel ineffective for
failing to present evidence of mental history and family
background where evidence was submitted that the crime was not
the product of mental retardation or organic brain disease);
Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir. 1991) (defense
counsel's lack of investigation into mental and family history
of a defendant with low intelligence was ineffective assistance
of counsel); Antwine v. Delo, 54 F.3d 1357, 1367 (8th Cir.
1995) cert. denied sub nom Bowersox v. Antwine, 516 U.S. 1067,
116 S.Ct. 753, 133 L.Ed.2d 700 (1996) (defense counsel has a
duty to investigate possible mental health mitigation evidence);
Wallace v. Stewart, 184 F.3d at 1115-18 (9th Cir. 1999)
(counsel has duty to investigate background information and
bring it to the attention of experts); Armstrong v. Dugger,
833 F.2d 1430, 1433-34 (11th Cir. 1987) (trial counsel
ineffective for failure to discover available mitigating
evidence regarding petitioner's mental retardation and organic
Moreover, the Third Circuit Court of Appeals has held that
"[w]hile counsel is entitled to substantial deference with
respect to strategic judgment, an attorney must investigate a
case, when he has cause to do so, in order to provide minimally
competent professional representation." United States v.
Kauffman, 109 F.3d at 190.
The Third Circuit Court of Appeals has likewise indicated that
a failure to produce mitigating evidence can be ineffective
assistance of counsel. The court held that counsel is not
ineffective for holding back such information, if it is held
back for a tactical reason. Deputy v. Taylor, 19 F.3d 1485,
1494 (3d Cir. 1994) cert. denied 512 U.S. 1230, 114 S.Ct.
2730, 129 L.Ed.2d 853 (1994). In Deputy, defense counsel did
not investigate within the defendant's family, the mitigating
effect of his traumatic childhood and his alcohol dependence.
Instead, he had decided to focus in the penalty phase on the
fact that the defendant had been changed by a religious
conversion. Id. at 1493-94. Because a tactical reason existed
for the failure to present the mitigation evidence to the jury,
trial counsel was deemed effective. Id. If it is effective
assistance of counsel to fail to investigate and present such
evidence when a tactical reason exists for such a failure, then
by implication, it is ineffective assistance of counsel to fail
to investigate and present such evidence when no tactical reason
exists for such failure.
Likewise in Riley v. Taylor, 237 F.3d 300, 2001 WL 43597,
the Third Circuit Court of Appeals examined the issue of
ineffective assistance of counsel and its application to
background information and mental examinations. In that case,
counsel was found to have acted within the bounds of
effectiveness where he failed to introduce background
information at the penalty phase. However, he had a strategic
reason for doing so, and his client did not want his family
background discussed at the penalty phase. Id. at 326-327.
Moreover, a mental examination was not warranted because the
attorney had no reason to think that one would be helpful. Id.
at 327. In the instant case, an investigation into the
petitioner's background certainly would have indicated that
further psychological/mental testing was appropriate.
The instant case is analogous to the case of Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
where the United States Supreme Court applied Strickland and
found deficient performance of counsel for failing to fulfill
the obligation to conduct a thorough
investigation of the defendant's background. In Williams,
counsel failed to investigate and present, inter alia, the
following evidence in a capital sentencing phase: extensive
records graphically describing the defendant's nightmarish
childhood; that defendant was borderline mentally retarded and
did not advance beyond the sixth grade in school; prison records
commending the defendant for helping to crack a prison drug ring
and for returning a guard's missing wallet; or testimony of
prison officials who described the defendant as least likely to
act in a violent, dangerous or provocative way. Id. at 396,
120 S.Ct. 1495.
Accordingly, we find that the great weight of federal law
requires defense counsel in a capital case to investigate a
defendant's background, cognitive status and mental health for
mitigating evidence. The federal law that leads us to this
conclusion has been dictated by the United States Supreme Court
and the circuit courts of appeals including the Third Circuit
Court of Appeals. In the instant case, trial counsel did not
perform an adequate investigation and much relevant evidence was
left undiscovered and not presented to the jury. Consequently,
we conclude that trial counsel's performance was deficient.
E. Strickland's second prong — prejudice
Secondly, under Strickland, we must determine whether the
petitioner was prejudiced due to counsel's deficient
performance. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. To
establish prejudice, the petitioner must demonstrate "that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Williams,
529 U.S. at 391, 120 S.Ct. 1495.
In the instant case, petitioner's background history of abuse
and/or the reality that he was mentally retarded and suffered
from other cognitive and psychological problems might well have
influenced the jury's appraisal of his moral culpability. Id.
at 398, 120 S.Ct. 1495. As summarized by the Sixth Circuit Court
of Appeals many circuits have found prejudice in similar
Our sister circuits have had no difficulty in
finding prejudice in sentencing proceedings where
counsel failed to present pertinent evidence of
mental history and mental capacity. . . . [S]ee,
e.g., Stephens v. Kemp, 846 F.2d 642, 652-55 (11th
Cir.), cert. denied, 488 U.S. 872, 109 S.Ct. 189,
102 L.Ed.2d 158 (1988) ("the resulting prejudice is
clear"); Blanco v. Singletary, 943 F.2d [1477,
1505 (11th Cir.), cert. denied, 504 U.S. 943, 112
S.Ct. 2282, 119 L.Ed.2d 207 (1992)] (prejudice
requirement "clearly met" by counsel's failure to
present evidence of epileptic seizures and organic
brain damage); Loyd v. Whitley, 977 F.2d 149,
159-60 (5th Cir. 1992), cert. denied,
508 U.S. 911, 113 S.Ct. 2343, 124 L.Ed.2d 253 (1993)
(failure to present mitigating evidence of
substantial mental defects "undermines our
confidence in the outcome"). We would be badly out
of step with the other circuits were we to conclude
that there was no prejudice in the case at bar.
Glenn v. Tate, 71 F.3d at 1211.