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Quintero v. Westbrooks

United States District Court, M.D. Tennessee, Nashville Division

March 31, 2017

DERRICK QUINTERO, Petitioner,
v.
BRUCE WESTBROOKS, Warden, Respondent.

          MEMORANDUM OPINION

          Kevin H. Sharp, Chief Judge

         Petitioner Derrick Quintero, a state prisoner on death row at Riverbend Maximum Security Institution, was convicted on two counts of first degree murder for killing an elderly couple, Myrtle and Buford Vester, in their Stewart County home sometime during the night of June 20 or the early morning hours of June 21, 1988. Petitioner and his co-defendant, William Hall, were sentenced to life in prison for Mr. Vester's murder and death for Mrs. Vester's murder.[1] After Tennessee courts affirmed his convictions and sentences on direct appeal and post-conviction, Petitioner filed a petition in this Court under 28 U.S.C. § 2254 for the federal writ of habeas corpus, in which he claimed, inter alia, that his trial counsel were ineffective at his sentencing hearing. (Docket Entry No. 16, at 63-71.) Specifically, Petitioner asserted in Claim 15 of his petition that his trial counsel were ineffective for failing to investigate and present compelling mitigation evidence, including childhood injuries that left him brain damaged and prone to severe seizures, and for failing to make any plea for Petitioner's life at sentencing. (Docket Entry No. 16, at 63-71.)

         The parties agreed that Petitioner had exhausted only three specific ineffective-assistance-of-trial-counsel [IATC] claims in state court in connection with his sentencing hearing: (1) failing to present the testimony of Kathleen Bernhardt; (2) failing to maintain a mitigation specialist/investigator; and (3) failing to make a closing argument at sentencing. (Docket Entry Nos. 152, at 51; 165, at 44.) On December 12, 2014, the Court dismissed those three specific sub-claims, along with all of Petitioner's other claims. (Docket Entry Nos. 169, 170.) The dismissal did not include the defaulted portions of Claim 15:

That does not resolve the entirety of Claim 15, however. Although Petitioner's current mitigation claims are loosely connected to his claim that trial counsel was ineffective for failing to maintain the services of a mitigation investigator, Respondent has asserted that Claim 15 presents multiple theories of ineffective assistance and that “[m]any have not been previously presented.” (Docket Entry No. 152, at 51.) Specifically, he asserts that “Quintero's claims, and the newly alleged facts supporting them, related to unpresented mitigation evidence and failure to obtain psychological testing are procedurally defaulted.” (Id. at 52.) Petitioner acknowledges that these claims were not presented to state court. (Docket Entry No. 165, at 44.) Accordingly, with the exception of Bernhardt's testimony, there is no state court determination on the merits of Petitioner's claims about the specific mitigation evidence he faults his trial counsel for not presenting, and this Court may only review the merits of the claim if it finds cause and prejudice to excuse the default.

(Docket Entry No. 169, at 92.)

         Defaulted habeas claims are ordinarily barred from federal judicial review unless the petitioner demonstrates “cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court announced that the ineffective assistance of post-conviction counsel can, under limited circumstances, establish cause for the default of a claim of ineffective assistance of trial counsel. Martinez, 132 S.Ct. at 1320; see also Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) (holding that Martinez applies in Tennessee). Petitioner asserted that his post-conviction counsel were ineffective for failing to present the defaulted portions of his underlying IATC claim, and that the new sub-claims and evidence were therefore reviewable pursuant to Martinez. (Docket Entry No. 165, at 44.)

         At the time that it dismissed Petitioner's other claims, the Court summarized portions of Petitioner's ineffective-assistance claim, including evidence of neuropsychological dysfunction consistent with a childhood injury and generally troubled childhood, and found that it had some factual support and was sufficiently debatable to warrant further proceedings. (Id. at 94.) Accordingly, the Court concluded that the claim was “substantial” for the purpose of satisfying one component of the test under Martinez to overcome the default of the claim, and granted Petitioner an evidentiary hearing to develop the merits of the underlying claim and demonstrate that post-conviction counsel were ineffective for failing to raise it. (Docket Entry No. 170, at 1; Docket Entry No. 169, at 94.)

         The hearing[2] ultimately spanned six days in February and May of 2016, during which the Court heard the testimony of seven witnesses for Petitioner and two witnesses for Respondent, and received more than seventy exhibits into evidence. (Docket Entry Nos. 210-213, 226-227, 230-236.) Since the hearing, the parties have exhaustively briefed the remaining issue and their proposed findings regarding the evidence. (Docket Entry Nos. 245, 247, 249, 253, 254, 255, 259.) The Court now evaluates the parties' arguments and the evidence in light of the applicable standards from Martinez and Strickland v. Washington, 466 U.S. 668 (1984), and concludes that Petitioner fails to satisfy those standards.

         I. STANDARDS OF REVIEW

         Under Martinez, to establish “cause” to obtain review of an otherwise procedurally defaulted claim, a petitioner must show that (1) he had ineffective assistance of post-conviction counsel during the “initial-review collateral proceeding, ” Martinez, 132 S.Ct. at 1315; and (2) that the defaulted claim is “substantial, ” that is, “that the claim has some merit.” Id. at 1318. The United States Court of Appeals for the Sixth Circuit has explained in relevant part that “to constitute cause to overcome procedural default under Martinez, a petitioner must show that: (1) he has a substantial claim of IATC [ineffective-assistance-of-trial-counsel]; (2) counsel on initial state collateral review was nonexistent or ineffective; [and] (3) the state collateral review proceeding was the initial review proceeding as to the IATC claim alleged.” Atkins v. Holloway, 792 F.3d 654, 658 (6th Cir. 2015) (citing Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013)). The court went on to describe the proper framework for evaluating claims under Martinez:

As to these claims, the district court should determine . . .: (1) whether state post-conviction counsel was ineffective; and (2) whether [Petitioner's] claims of ineffective assistance of counsel were “substantial” within the meaning of Martinez, Sutton [v. Carpenter, 745 F.3d 787 (6th Cir. 2014)], and Trevino. Questions (1) and (2) determine whether there is cause. The next question is (3) whether [Petitioner] can demonstrate prejudice. Finally, the last step is: (4) if the district court concludes that [Petitioner] establishes cause and prejudice as to any of his claims, the district court should evaluate such claims on the merits. Under this framework, which is consistent with Supreme Court precedent and our holding in Sutton, [Petitioner] has a long way to go before the district court could even evaluate the merits of his claims. Moreover, even “[a] finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted.” Martinez, 132 S.Ct. at 1320.

Atkins, 792 F.3d at 660 (some internal citations omitted). More recently, the court has elaborated on what is required to satisfy those first three prongs:

First, [Petitioner] must establish that his underlying ineffective assistance of trial counsel claims are “substantial, ” “which is to say that ... [they have] some merit.” Martinez, 132 S.Ct. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Or, in certificate of appealability parlance, it is “debatable among jurists of reason.” Abdur' Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015); see also Atkins, 792 F.3d at 660 (“The Court in Martinez cited Miller-El v. Cockrell ... for purposes of defining a ‘substantial claim, ' and Cockrell describes the standard for issuing a COA.”). . ..
Second, [Petitioner] must also establish he received ineffective assistance of counsel during his initial-review collateral proceeding under the familiar Strickland standards. Martinez, 132 S.Ct. at 1318. Under Strickland v. Washington's two-prong test, a person challenging his counsel's representation must show (1) deficient performance, i.e., that “counsel's representation fell below an objective standard of reasonableness” and (2) prejudice. 466 U.S. 668, 687-88, 691-92 (1984). Courts must “apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). To establish prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A ‘reasonable probability' is a probability ‘sufficient to undermine confidence in the outcome, ' but something less than a showing that the outcome more likely than not would have been different.” Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004) (quoting Strickland, 466 U.S. at 693, 694). This “difference” is “slight and matters ‘only in the rarest case.'” Harrington, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 697).

Porter v. Genovese, - F. App'x -, No. 16-5317, 2017 WL 167469, at *3-4 (6th Cir. Jan. 17, 2017).

         As noted above, the Court previously determined based on Petitioner's allegations that the merits of Petitioner's underlying ineffective-assistance claim were sufficiently debatable to be considered “substantial.” But in order to show that he had ineffective assistance during post-conviction proceedings, Petitioner must still satisfy the familiar standard established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). That is, he must show both that his post-conviction counsel's performance was constitutionally deficient and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the [post-conviction] proceeding would have been different.” Id. at 687, 694.

         If Petitioner succeeds in proving that post-conviction counsel were ineffective in failing to raise the underlying claim, he overcomes the default bar and the IATC claim is then subject to review on its merits under the same Strickland standard. Where a claim has not been adjudicated on the merits in state court, but is still subject to federal review despite the bars of exhaustion and default, the federal court reviews the claim de novo. Moritz v. Lafler, 525 F. App'x 277, 282 (6th Cir. 2013) (quoting Cone v. Bell, 556 U.S. 449, 472 (2009)); accord Bies v. Sheldon, 775 F.3d 386, 395-96 (6th Cir. 2014) (“Because Bies' Brady claim was never ‘adjudicated on the merits in State court proceedings, ' the limitations imposed by § 2254(d) do not apply, and we review the claim de novo.”).

         II. RELEVANT STATE COURT PROCEEDINGS

         A determination of whether Petitioner's post-conviction counsel were ineffective for not presenting the remaining IATC claim (and, if necessary, whether trial counsel actually were ineffective) requires the Court to consider the additional evidence in light of the theories and evidence that were actually presented in state court on Petitioner's behalf. At his opening statement in the sentencing phase of trial, counsel hinted that the defense did not agree with the jury's guilty verdict, but acknowledged “you've made that decision, and now we're in this phase.” (Docket Entry No. 33-6, at 110-11.) He went on to signal what Petitioner's theory in that phase would be:

As the General stated, you've looked at the State's case. Circumstantially, any doubts you have lingering on that case, you can consider in mitigation. During voir dire, we asked many of you if you felt it would be important in your decision-making process at this stage to have proof of who did what. You may again consider whether or not that has been proven to your satisfaction in making this decision.
We are also going to attempt to show you some proof to let you get to know Rick Quintero. You're going to be meeting some of his family members and have them testify before you about what it was like growing up in the Quintero household. We submit that we feel it's important for you to understand his life up to this point to make a decision.

(Docket Entry No. 33-6, at 111-12.) Thus, part of Petitioner's strategy, as it has been in this case, was to assert that there was still some doubt about his guilt, and that it would be wrong to impose the death penalty when there was no direct evidence that Petitioner was at the crime scene or what role he played in the murders if he were there. Counsel also sought to humanize Petitioner and make him sympathetic to the jury with information about his background and character. The Tennessee Supreme Court summarized the mitigation evidence presented at sentencing relevant to that point:

In mitigation, Quintero presented the testimony of his uncle and aunt, Paul and Josey Quintero, who said that Quintero's parents drank constantly. Quintero's father would stay away from home for long periods of time, and his mother had extramarital affairs. Quintero was hungry for love and affection when he visited his uncle and aunt's home.
Paul Quintero testified that Quintero was always eager to seek his approval and never gave him any trouble. Quintero's parents did not discipline their children unless they were angry or drunk, at which time they would beat the children. Testimony also indicated that Quintero never had clothes which properly fit him, and as a result, he was ridiculed by the other children at school.
Paul and Josey Quintero testified that they had attempted to remain in contact with Quintero since learning of the criminal charges. They related that Quintero had obtained his GED in prison and was also enrolled in refrigeration and air conditioning classes. They believed that Quintero had improved himself and would make something productive of his life.
Quintero's cousin, Angela Alva, testified that she and Quintero were at one time very close. She also related how Quintero's parents had abused alcohol, and testified that Quintero had kept company with his older brother, Roderick, who was a bad influence and not a good role model. According to Alva, Quintero was a follower, and Roderick was aggressive.
A video deposition was shown of Helen Mimms Johnson, Quintero's first grade teacher. Johnson testified that Quintero was mischievous but never mean. He was held back a year and had trouble being attentive in class. Quintero was never very clean and always seemed exhausted when he came to school. Johnson never met Quintero's parents because they never attended any parent-teacher meetings.
Angela Holland and her 15-year-old son, Roderick Kent Quintero II, testified. Holland had been married to Quintero's brother for approximately three years. Holland and her son had maintained contact with Quintero and said that he had been influential in helping his nephew stay out of trouble.

State v. Hall, 976 S.W.2d 121, 131 (Tenn. 1998).

         The state court's summary was accurate as far as it went, but it omitted several details that are relevant to Claim 15. Those additional details include testimony that Petitioner's mother would lock him and his older brother out of the house when she was mad at them (Docket Entry No. 33-7, at 30), and that she would whip their legs with a switch, “especially when she was drinking [and] got a little bit out of hand.” (Docket Entry No. 33-7, at 32.) His aunt testified that Petitioner's mother would “whip [her children] quite hard with the belt, ” and occasionally threw things at them when she lost her temper, but that the children were very good when they were at the aunt's house. (Docket Entry No. 33-7, at 54-55.) At the conclusion of her testimony, his aunt pleaded that Petitioner “is a very good person, and he was a good child, that he was not raised right, and he didn't have a chance in the first place, and that I don't think he needs to be dealt with really hard because he needs a chance in life.” (Docket Entry No. 33-7, at 60-61.) Petitioner's uncle testified that “basic fundamental rights and morals” were not emphasized in Petitioner's home growing up. (Docket Entry No. 33-7, at 33.)

         Angela Alva (Petitioner's step-cousin and wife of his first cousin Andrew) testified that Petitioner was “a real loving little boy” as a child, and did “the normal kid things that all children do.” (Docket Entry No. 33-7, at 72.) She said that Petitioner had talked to her when he was confused and upset about seeing his mother in bed with one of his uncles. (Docket Entry No. 33-7, at 74.) She testified that she saw Petitioner's mother beat her children to the floor with a belt “many, many times, ” and two or three times saw Petitioner's father dragging, throwing and hitting Petitioner and his brother with fists. (Docket Entry No. 33-7, at 76-77.) She said that Petitioner's parents had a wall lined with giant bottles of liquor, that they drank morning and night, and that the family never sat down to a balanced meal. (Docket Entry No. 33-7, at 78.) The children had to fend for themselves to eat, and Petitioner would try to feed his younger siblings. (Docket Entry No. 33-7, at 78-79.) Petitioner worked “very, very hard, ” and sometimes stayed out of school to work for his father. (Docket Entry No. 33-7, at 79.) Petitioner's step-cousin testified that his parents “always were demeaning him, making him feel bad, making him feel worthless, ” that his mother would chase him out of the house saying “I just want you to leave, ” and that the children played outside in the cold without gloves “and their hands were like ice.” (Docket Entry No. 33-7, at 87-88.) Petitioner's first cousin, Andrew Alva (Angela's husband, whose testimony is not mentioned in the state court's summary) testified that Petitioner was doing hard manual labor with his father by the age of thirteen, and that his father would keep him out of school to help with the work. (Docket Entry No. 33-7, at 99-101.) He once saw Petitioner's father in a violent rage chasing one of his sons with a claw hammer. (Docket Entry No. 33-7, at 104.) During that incident, the father's breath smelled of alcohol, and Alva saw both parents drinking “numerous times, ” along with neglect, and a general lack of discipline peppered with “violent outburst, beatings” with a belt. (Docket Entry No. 33-7, at 101- 105.)

         Petitioner's former sister-in-law, Angela Holland, testified that there was daily drinking in his home when he was growing up, and that she knows a “very kind, gentle side” of Petitioner. (Docket Entry No. 33-7, at 117, 121.) In all, counsel called seven people to testify to Petitioner's background of deprivation and maltreatment, and his good nature and capacity for rehabilitation despite those circumstances.

         To create or remind the jury of any residual doubt about his guilt, Petitioner's counsel also called a serologist from the Tennessee Bureau of Investigation to testify at the sentencing hearing that she tested the victims' stolen car that was recovered in Memphis[3] and did not find any evidence of blood in the car or on items removed from the car, including a shotgun. (Docket Entry No. 33-7, at 137-39.)

         In imposing the death penalty for Mrs. Vester's murder, the jury weighed that evidence against the prosecution's evidence at the sentencing phase:

During the sentencing phase, the State introduced proof that both Quintero and Hall had previous convictions for crimes involving the use or threat of violence. The State showed that Quintero had been previously convicted of two charges of escape in the first degree and one charge of first degree robbery. . ..
Finally, the State introduced additional photographs and testimony concerning Mrs. Vester's body. Mrs. Vester was found lying in her bedroom just outside the bathroom. The State introduced photographs depicting the amount of blood on the bathroom floor and depicting the blood on the bottoms of Mrs. Vester's feet. The State also introduced a photograph of the front of Mrs. Vester's body to demonstrate to the jury the severity of her injuries and the brutality of the attack.

State v. Hall, 976 S.W.2d at 131. Including the guilt phase, the evidence regarding Mrs. Vester's murder was that she had been shot with two different guns and stabbed thirteen times:

Here, the proof showed that Mrs. Vester was initially shot from her bedroom window. She was then shot two more times. One of the wounds was from a shotgun blast and nearly severed her forearm. As she struggled to save herself, stepping in her own blood, she was stabbed 13 times, resulting in the two fatal wounds. The medical testimony indicated that Mrs. Vester could have lived up to fifteen minutes after receiving these wounds. The medical examiner testified that there were no torture wounds, wounds inflicted for the purpose of torturing the victim, or defensive wounds, with the potential exception of the wound to Mrs. Vester's forearm. Because the medical examiner could not determine the position of the arm when Mrs. Vester was shot, he could not rule out the possibility that this was a defensive wound. Moreover, the presence of blood in Mrs. Vester's bed, bedroom, and bathroom clearly indicates a struggle was involved.

State v. Hall, 976 S.W.2d at 163 (adopting opinion of state court of criminal appeals).

         After deliberation, the jury found that five statutory aggravating circumstances In Mrs. Vester's murder outweighed any mitigating evidence and warranted imposition of the death penalty: (1) Petitioner was previously convicted of one or more felonies involving the use or threat of violence; (2) the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind (the “HAC” factor); (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of themselves or others; (4) the murder was committed while Petitioner was engaged in committing or was an accomplice in the commission of, or was attempting to commit, or fleeing after committing or attempting to commit, any first-degree murder, robbery, burglary, larceny, or several other enumerated crimes;[4] and (5) the murder was committed while Petitioner was in lawful custody or in a place of lawful confinement or during his escape from lawful custody or from a place of lawful confinement. Id. at 123. Because all but the HAC factor applied equally to Mr. Vester's murder, it is clear that the more brutal nature of Mrs. Vester's murder made the difference in imposing the death penalty for that crime, which one of the jurors later confirmed. (Docket Entry No. 34-10, at 130-31.)

         In his amended post-conviction petition, Petitioner's post-conviction counsel claimed that trial counsel had been ineffective in many respects, the first of which was the failure to investigate and prove that “on numerous occasions, when given an option of violence to innocents, Petitioner opted for non-violence.” (Docket Entry No. 34-9, at 74-75.) The amended petition went on to reiterate that trial counsel failed to identify and develop evidence that “demonstrated that Petitioner was not violent in similar circumstances.” (Id. at 76.) Other ineffective-assistance claims asserted in the state petition included (but were not limited to): (1) the failure to take steps that would have led to the discovery and presentation of an alibi defense; (2) failure to take steps that “would have uncovered legitimate defenses for Petitioner including several scenarios which strongly suggest that Petitioner did not commit the murder in this case”; (3) failure to take steps through which “valuable mitigation evidence would have been developed and presented”; (4) failure to request a jury instruction that lingering doubt regarding Petitioner's guilt could serve as a non-statutory mitigating factor; (5) failure to develop and pursue “[s]ignificant evidence which supported a viable defense theory, including Petitioner's innocence”; and (6) failure to present “significant evidence in existence at that time which supported viable defense theories, including but not limited to: evidence of other possible perpetrators not pursued or investigated by law enforcement officials, evidence of alibi, and evidence of Petitioner's lack of violence in similar circumstances in the past.” (Id. at 75, 76, 82, 84, 91, 94.)

         At the 2003 joint hearing on the post-conviction petitions filed by Petitioner and Hall, two of their fellow inmates testified that James Blanton, who had died since they were all convicted of the murders, had confessed to them that he had killed the Vesters without Petitioner or Hall. Quintero v. State, No. M200502959CCAR3PD, 2008 WL 2649637, at *13-14 (Tenn. Crim. App. July 7, 2008). Petitioner and his father both testified about an elaborate alibi involving Petitioner and Hall's flight from Leatherwood to Nashville before the murders happened, and the elder Quintero's meeting them in Nashville and driving them to Memphis. Id. at *14-18. The Tennessee Court of Criminal Appeals summarized the rest of the relevant evidence presented at the post-conviction hearing:

Kathleen Bernhardt had an encounter with Quintero and five of his fellow escapees in a church in Kentucky on Thanksgiving in 1983. Bernhardt was by herself practicing the piano when Quintero and the other men entered the church. Bernhardt testified that one of the men approached her from behind and held a rag over her mouth. However, she said Quintero shook his head at the man indicating to him to remove his hand from Bernhardt's mouth. The men took some food from the refrigerator and asked Bernhardt for the keys to her car. The men tied her to a chair. She testified, however, that none of the men treated her with disrespect. The men left a little money for the food and asked Bernhardt not to call the police until an hour after they were gone.
Jo Hall, a juror in the trial of this case, testified that her husband was the sheriff in Humphreys County from 1976 until 1980. However, she testified that this fact did not have any bearing on her decision as a juror. She stated that the facts introduced at trial surrounding the killing of Mrs. Vester was [sic] the predominant reason she voted for the death penalty. In deciding to vote for death, Hall stated she did not make a distinction between the two appellants' roles in the murders. Hall recalled that defense counsel attempted to place the blame on another individual, but Hall believed the evidence cleared this individual. She could not recall a particular name, but she testified that the name Zach Pallay sounded familiar. . . .
Mr. Quintero [Sr.] testified he was never contacted prior to trial by either of the appellants' attorneys or investigators. According to Mr. Quintero, though he would have testified on his son's behalf, his son was adamant that he not get involved in the matter. Although he knew a trial was scheduled, Mr. Quintero stated [he] did not know the actual date of the trial. Mr. Quintero admitted that his son contacted him numerous times from prison after he was arrested for the murders in this case.
Appellant Quintero testified on his own behalf at the [post-conviction] hearing. He had previously been convicted of armed robbery in 1979 and two separate escape charges in 1983 and 1984. Quintero did not testify at the trial in this case, and he stated the decision was not his but rather a “unilateral decision” made by his attorneys. According to Quintero, his attorneys never discussed with him the option of testifying. Based upon his previous experiences testifying at trials, his other attorneys would not prepare him in advance but would simply call him to the stand during trial. Quintero said he was surprised when his attorneys did not call him to testify before the close of evidence. Quintero testified that the sheriff was administering cold medications to him at jail during the time of the trial. He further testified this medication made him groggy during the actual trial and he did not realize until it was too late that his attorneys rested their case.
Quintero testified that his attorneys only visited him twice in prison prior to trial. Quintero testified his attorneys informed him they could not receive collect calls from him in prison due to office budget concerns. He stated that he spoke with his attorneys on the phone approximately ten times. He said his attorneys attempted to convince him to plead guilty and testify against Hall and Blanton in exchange for a life sentence. His attorneys apparently told him that the evidence against him was overwhelming. However, according to Quintero, they never informed him of the date or time of the murders as known by the prosecution or asked him whether he had an alibi.
Quintero assumed his attorneys would be in contact with his family, and he was surprised to learn that they did not call his father. Quintero acknowledged, however, that a mitigation specialist interviewed his family. He claims the only investigation his attorneys were doing was related to mitigation, not the guilt phase of the trial. Quintero testified his attorneys told him that the budget concerns of the office prevented them from investigating the case personally, so they had to rely on the investigation of Hall's counsel. Quintero told his attorneys about the facts surrounding the Bernhardt incident, but they did not investigate the matter. The appellant told his attorneys Pallay was lying when he testified at trial that he knew Quintero since he was six years old because, according to Quintero, Pallay did not meet Quintero until 1979. However, Quintero said his attorneys did not respond.
Quintero testified that he respected the elderly, and that he would not have harmed the victims in this case. He said, “I'd probably shoot whoever was trying to shoot her [Mrs. Vester].” When they first arrived in the Leatherwood community, which was a retirement community, Quintero instructed the other escapees not to harm anyone because the police “would never stop looking for us.” If he had testified at trial, Quintero stated he would have emphasized that he would not have hurt the victims in this case. If he encountered anyone during the burglaries which were committed, he stated he would have tied them up like he did Ms. Bernhardt.
Quintero recounted the events surrounding his escape from prison in Kentucky, as he would have testified at trial. Although Quintero was getting close to his parole date, he decided to join the escape. When asked why he would do such a thing, he did not have a good response. Quintero had between five and six hundred dollars on his person. Accordingly, he stated there was no reason for him to hurt anyone over money. Quintero believed he was the only escapee with any money. Prior to the escape, he obtained new clothes and some food and had his hair and beard cut. He knew Blanton was in prison for murder prior to their escape. And he also knew that Blanton and Hall did not get along. Quintero stated that he, Montgomery and Hudson were “partners” and that after the escape the three of them planned to stick together. However, five of the escapees, Quintero, Hall, Blanton, Montgomery and Hudson, ended up stealing a truck together.
Quintero thought they were heading to Missouri after they stole the truck. He stated he was surprised to learn they wound up in Clarksville, Tennessee. Quintero grew up in Clarksville, and he was afraid someone might recognize him. He decided they should travel to the Leatherwood community because it was a wooded area and he knew Zach Pallay lived there. . . .
Quintero stated the five escapees then ran into the woods and came upon the Foster residence. Quintero testified they were looking for guns because they thought the police might be looking for them at this point. When asked why he needed a gun, Quintero stated: “Because I was ... being hunted. And I was going to escape. You know, I was at war. I had-You know, this gets in my personal political beliefs, but I didn't have a problem with the people, society in general. I was at war with the-with the government. You know, the police administration. That's what promulgated all of the escapes, you know, the result-my mistrust of authority and the abuse of authority and-and those kinds of things.” Quintero testified he would have no qualms shooting a police officer who was aiming a gun at him.
Inside the Foster house, Quintero grabbed a 12 gauge shotgun and sawed off the barrel. However, he stated he rendered the weapon inoperable when sawing off the barrel. He also sawed off the stock and barrel of a 20 gauge shotgun which Blanton gave him. Quintero testified he wore brown jersey gloves while handling the guns and suggested to the other men they should do the same. . . .
On cross-examination, Quintero testified he did not tell his trial attorneys his version of the facts. Instead, he “wanted to hear what they had to say.” When asked whether he informed his attorneys about his alleged alibi, Quintero testified he did not because “they got me to a point I just didn't trust them anymore. I didn't have no faith in them, the system.” When questioned further, Quintero stated neither of his attorneys ever asked him if he had an alibi or anything else about the case. In response to the question, “So you made a conscious decision not to tell your lawyers about this alleged alibi, ” Quintero responded, “Well, I guess-I guess it boils down to that; yeah. A stupid decision, I guess, but it was-it was conscious, I guess.” According to Quintero, neither he nor his attorneys knew the actual date or time of the murders.
Quintero stated that mitigation was the only matter in which his attorneys were interested. He said he cooperated with his attorneys in that respect. Although he stated he was not interested in the mitigation aspect of his case, Quintero believed he should assist his attorneys in gathering information about his background. He assumed investigation into the actual facts of the case was being done independently by his attorneys. Quintero testified he had a better rapport with the mitigation expert in his case and that he was thus able to better communicate and provide information to him. He said he adamantly communicated to his attorneys that he did not kill the victims.
Quintero testified he has read a transcript of the evidence from his trial. Quintero was subpoenaed to testify in Blanton's trial, but he stated his attorneys advised him not to testify. According to Quintero, he did not see Blanton again after June 18, 1988, until they met in Memphis. Quintero first told someone about his alibi in 1999 when he filed the instant post-conviction proceeding. When asked why he sat next to his attorneys at trial for seven weeks and not once tell them he was not present on the date the murders occurred, Quintero responded that he “never did really understand when the Vesters were killed.” Quintero testified he remembered trial testimony from the fishermen who heard gunshots the night of June 20, 1988, as well as evidence that the Vesters' newspaper, dated June 20, 1988, was found inside their house. However, when questioned on cross-examination, “And that didn't strike you as, hey, wait a minute, I wasn't there, ” Quintero did not respond.
Quintero testified on cross-examination that he stole the gloves he was wearing from the garage of the Foster house. Quintero testified he never went into the Crawford home. When asked whether his testimony, that he would not hesitate shooting an officer who pointed a gun at him, would have “won you points and favors in front of the jury, ” Quintero stated that his comments about that “didn't have anything to do with what I was on trial for.” Quintero stated he did not call anyone in his family from the Leatherwood community and he stated he did not direct Hall to call anyone. He testified that his parents and brother Brian lived in separate residences on the same property in Texas, and that his parents did not have a telephone at that time. Quintero testified about his prior record, which included one guilty plea for armed robbery and two convictions following jury trials for escape, and acknowledged that he “had pretty good experience-or a lot of experience-in court in the criminal process” and was familiar with his rights. . . .
Another juror testified that evidence about Quintero's encounter with Ms. Bernhardt, where no violence occurred, “probably would have” made a difference. However, on cross-examination, this juror also stated evidence about Quintero's previous escapes would have influenced his decision to vote for the death penalty. . . .
Shipp Weems, District Public Defender for the 23rd Judicial District, was appointed to represent Quintero at trial. Weems had been practicing law since 1976. Weems testified that at the time of his appointment in this case he and his three assistants each carried an open caseload of approximately 800 cases each [sic]. Weems was assigned to seven capital cases during that time. Weems had previous experience trying capital cases. Weems stated his office did not have the resources available to handle that many cases at once. Weems testified the court knew about his caseload, but he recognized it was his job to defend those cases. His office did not employ a separate investigator during that time, as that position was filled by another attorney due to the caseload. Weems remembered requesting services for an investigator in other capital cases, which requests were denied, but did not remember specifically filing a similar motion in this case.
Weems testified that he never spoke with Quintero's father. Although he stated that he would have liked to interview Mr. Quintero, he said the reason he did not was lack of time and resources. Weems believed he met with Quintero in prison more than two times prior to trial. Weems did not recall any conversations he had with Quintero about an alibi. Weems, however, acknowledged the procedure for filing a notice of alibi. Though he stated none was filed in this case, he also stated that this was something that would not have been ignored.
According to Weems, counsel did not investigate the facts or circumstances surrounding Quintero's previous convictions. In retrospect, he stated he would have been obligated to investigate that information. Acknowledging his office's budget concerns during the period of his representation of Quintero, Weems testified that his office did not accept collect telephone calls. Weems testified that budget restraints adversely affected his ability to adequately prepare his cases for trial.
Weems did not believe they presented a strong mitigation defense at sentencing. Weems testified that Mr. Quintero's testimony combined with the testimony of Ms. Bernhardt potentially could have made a difference in this case, which was based on circumstantial evidence. However, during cross-examination, Weems agreed that the prosecutor could have made the argument that, because Quintero was apprehended after tying up Ms. Bernhardt, he would not have made the same mistake again with the victims in this case. . . .
The mitigation specialist for whom Weems received funding met with Quintero a number of times prior to trial. Weems did not call him as a witness because he was not satisfied with his work product. However, Weems did not believe the trial court would approve funding for another mitigation specialist. . . .
Weems stated that, although he did not necessarily ask all of his clients if they had an alibi, he would expect those who did to inform him of such. He never heard Quintero mention evidence of an alibi in this case. Weems commented on his defense strategy: “[B]ecause the case was circumstantial, we were basically employing the fact that they couldn't prove it beyond a reasonable doubt.” After Blanton's case was severed, Weems advised his client it would be “a horrible, horrible mistake for him to testify at that trial.” Weems identified the affidavit Quintero signed when Blanton's trial was severed. In the affidavit, Quintero stated that he did not see Blanton in Stewart County after approximately 11:00 p.m. on June 18, 1988. Weems testified, though, that he did not ask Quintero to provide him a time-line of his whereabouts between June 18 and June 22, 1988. Further, Quintero stated in the affidavit that he would assert his Fifth Amendment right not to testify at Blanton's trial. . . .
The State called Attorney Steve Stack to testify at the [post-conviction] hearing. Stack was Weems' co-counsel for Quintero at trial. Stack tried two previous capital murder cases. Stack confirmed Weems' opinion about the mitigation investigator. Stack testified that he met with Quintero a number of times before trial. Stack also advised Quintero against testifying at Blanton's trial. Stack testified that he investigated the facts of this case. Stack remembered the appellants being restrained in shackles at the conclusion of the guilt phase of the trial. . . .
During examination by Quintero's counsel, [certified master social worker Deborah] Wolkhaner agreed that evidence a person had passed up an opportunity to be violent to an elderly person would have supported the position that someone did not seek or provoke violence. She further described the purposes and benefits of a mitigation specialist. . . .
Dr. Auble [an expert in neuropsychology][5] thought she was contacted by Quintero's trial counsel but she did not remember the specifics, including whether the contact was before or after the trial.

Quintero, 2008 WL 2649637, at *14, 15-20, 21, 25-28, 29.

         III. EVIDENCE PRESENTED AT THE 2016 EVIDENTIARY HEARING

         A. Buchanan Records

         Paul Buchanan, Petitioner's lead counsel at post-conviction, is deceased. Petitioner submitted exhibits from the Texas state bar documenting Buchanan's disciplinary history there. In December 1994 Buchanan received a public reprimand by default in a disciplinary action arising from a client's complaint that he failed to conduct discovery in a civil lawsuit in 1989. (Docket Entry No. 231, at 3-8.) In June 1998 Buchanan was found to have committed professional misconduct in 1993 in connection with a legal dispute with his then-wife's ex-husband, who had filed a bar complaint against him. (Id. at 9-21.) Buchanan's Texas law license was suspended from June 1998 to June 1999, to be followed by probated suspension until January 2000. (Id. at 15.) On January 8, 2001, the Texas board entered findings and a judgment, agreed to by Buchanan and disciplinary counsel at or soon after a November 17, 2000 disciplinary hearing, to the effect that Buchanan suffered from a disability of mental depression and would submit to a probated suspension of his Texas license for four years, during which he could practice law with an attorney monitor, would undergo semi-annual psychological evaluations by a medical doctor, and would fully cooperate with the doctor's treatment plan.[6] (Id. at 22-27.) The Tennessee Board of Professional Responsibility does not have a record of Buchanan's reporting his Texas disciplinary actions to Tennessee's disciplinary counsel, as Tennessee Supreme Court Rule 9 § 25 required. (Docket Entry No. 230, at 557.)

         B. Reno Quintero

         Petitioner's first witness at the hearing was his brother, Reno Quintero, the purpose of whose testimony was to provide “specific instances of abuse and neglect that permeated the household day in and day out” with “vivid illustrations of the impact of the Quintero parents' alcohol abuse and maltreatment of the children, and how they modeled misconduct throughout these children's lives, ” and to establish “similar patterns of conduct and alcohol abuse in the extended family.” (Docket Entry No. 211, at 5-6.) Reno described life in the Quintero home as “hell.” (Id. at 20).

         Their parents, Nina and Sal both drank daily, starting at breakfast. Sal drank a fifth during the morning and then start another bottle at lunch. (Id. at 22-23.) Sal gave Reno and his brother Brian Boone's Farm wine to go to church. Reno never saw his parents give Petitioner alcohol, but his parents were aware that Petitioner and his two oldest siblings drank. (Id. at 49- 50, 62.) Sal drank every day, was generally a “happy drunk, ” and was generally not physically abusive. He never hit Reno, but once grabbed him by the hair when he was angry. (Id. at 23- 25.) When Petitioner was moving out of the house at fourteen or fifteen years old, he and Sal got into a fight, and Sal kicked Petitioner “pretty hard” between the legs. That is the only time Reno recalled Sal's being violent with Petitioner. (Id. at 45-46.)

         Mother Nina was “the mean one.” When Nina drank Tequila, the “fire” would “move across her eyes, and she would be instantly mean.” She would whip the Quintero children with “broomsticks, belts, whatever she got in her hand, ” hard enough to leave marks. Reno recalled one incident where Nina held a .38 to his head, and another time, she threatened to beat him to death with a hammer. Reno also recalled an incident where Sal was handling a .45 and it “went off” and grazed his arm. Nina later beat Reno for telling a teacher about the gunshot wound. (Docket Entry No. 211, at 21, 23-26.)

         The house was filthy, the children did not have clean clothes to wear, and Reno and Brian did not bathe. He was sure that Petitioner experienced the dirty house, but was also sure that Petitioner bathed because he was going out on dates. Sometimes there was no food in the house, and Reno said that his parents thought more about their alcohol than providing food. He said he thought that Petitioner, Shelley and Rod received Christmas gifts like pants, shoes and belts, but that Reno was singled out not to get gifts. (Docket Entry No. at 33, 37-39.) Reno testified that, while he and Petitioner were living in the house, Reno never saw or heard his parents get into any physical altercation. Reno only heard screaming and yelling. According to Reno, his mother bragged about having hit his father with a frying pan before Reno was born, and knocking his teeth out. (Docket Entry No. 211, at 47-49.)[7]

         Reno recalled that Petitioner went to prison in 1979 for robbing a McDonald's. He said he thought Petitioner did not commit that crime, and that their oldest brother Rod, whom Petitioner looked up to and followed, “used [Petitioner] to take that charge.” (Docket Entry No. 211, at 28-29.) Reno recalled that their sister Shelley used to steal items off the clothesline or from houses and then later would brag about it. (Id. at 30.) The older siblings, Petitioner, Rod, and Shelley, smoked pot and drank. They would come in to the house high and drunk, and sometimes his parents would scream and yell about it, and sometimes they would not. (Id. at 49-50.) Reno said Nina and Sal did not teach the children right from wrong. (Id. at 61).

         When Reno was six or seven, he and Brian had a pile of bike parts they used to build bikes. Petitioner “would help [them] a little bit, ” but then he would “veer off” because he, Shelley and Rod were doing drugs. Reno did not remember whether Petitioner was as capable as he and Brian were at bike-building.[8] (Docket Entry No. 211, at 30-31.) He testified that he did not remember anything that made it seem that Petitioner was “off” in any way. (Docket Entry No. 211, at 30.)

         Reno recalled all of the children occasionally stayed with Nina's parents. His grandfather did not like the children and called them “pepper belly” because they had a Hispanic father. Nina would send the children there to stay even though she knew her father physically abused them. Reno recalled that all of Nina's family members were “shine drinkers, ” except for Aunt Nina and Hanna Jo. His uncle Clifford could become violent when he drank. (Docket Entry No. 211, at 40-45.)

         When Reno was twelve or thirteen, after Petitioner was already in prison, Reno and Brian were left in Nashville to live on their own for twelve to eighteen months after his father moved to Texas for work and his mother became “stressed out about the situation” and moved there as well. He testified about his mother regularly beating him before she joined his father, about eating out of trash cans or at a friend's house or stealing food while she was gone, about going to school only to eat, and drinking almost every day. Reno recalled that once when Nina returned home to visit, she opened the door, saw a pyramid made out of beer cans, and left. He did not see her again for two or three months. Reno said that Nina was “forced” to come back and get the boys after he cut himself on a screen door in a fight with Brian and had to go to the hospital. (Docket Entry No. 211, at 55-60.)

         Reno recalled being interviewed by Mr. Einstein, but he did not remember the substance of the conversation. During the period before Petitioner's trial, Reno wanted to avoid thinking about his family and would not have been available to testify at trial. (Docket Entry No. 211, at 64-65.)

         C. Frank Einstein

         Frank Einstein, Ph.D, was a self-employed sentencing consultant and served as the mitigation investigator on Petitioner's case.[9] (Docket Entry No. 211, at 69.) Mr. Einstein did not conduct a guilt/innocence investigation. He understood his job as gathering information to construct a social history that could be used at sentencing and could be used to determine what witnesses to call and what experts to retain. (Id. at 75.) He conducted an investigation, including interviews with thirty-five people and collection of relevant records, and prepared a social history report, which he provided to the attorneys. (Id. at 78-81; Docket Entry No. 230, at 4-52). The report contained a description of Petitioner's life and family background, summarized the sentencing investigation, discussed possible mitigation themes and contained general suggestions for experts. The report also contained a genogram illustrating the history of chemical dependence in Mr. Quintero's family, newspaper articles, school records, and an article about fetal alcohol syndrome. Mr. Einstein believed the report would be used as the “raw material” to form a sentencing strategy, and would form the basis for what witnesses to call, what further investigation to conduct, and what experts to use. (Docket Entry No. 211, at 78-82; Docket Entry No. 230, at 4-52.) According to Einstein's April 17, 1991 letter, Petitioner's parents and many close relatives had not cooperated with his investigation. (Docket Entry No. 230, at 4.) Einstein testified that he did further investigation and prepared interview memoranda after he completed the written report. (Docket Entry No. 211, at 80.)

         One of the mitigation themes Mr. Einstein identified was a family history of chemical dependence. Mr. Einstein explained that based on the interviews he conducted, there was a long history of chemical dependence in multiple generations of Petitioner's family. He believed such a background has real effects on one's development. (Docket Entry No. 211, at 83-84.)

         The second mitigation theme was dysfunctional home life. This theme was suggested by family interviews that revealed drinking in the home, problems within the home, Petitioner's mother, Nina's infidelity, his witnessing his mother being intimate with another man, violence in the home, and the parents' lack of interest in education. (Id. at 84-85.) Another mitigation theme was the lack of moral guidance, which was suggested by interviews revealing Sal and Nina neglected the children and gave them alcohol when they were young. (Id. at 85.) The next theme he noted was childhood history of injuries and epilepsy. This theme was suggested by medical records and by his interview with Petitioner's parents, who told him about the history of head injuries, seizures and hospitalizations. (Id. at 86-87, 89-90.) Another mitigation theme Einstein identified was Petitioner's own alcohol and drug abuse, which he learned about through interviews with Petitioner. (Id. at 89-90.)

         Einstein would typically have suggested to attorneys that they consult with an expert on a particular theme. He thought he must have had a discussion with petitioner's trial counsel about experts, but he did not have a record of having that discussion and did not remember what they discussed. He remembered writing one letter in which he recommended that petitioner's counsel consider a certain expert. (Docket Entry No. 211, at 90-91.) The letter was not introduced into evidence, and Einstein did not testify about which expert he recommended, in what field the person was an expert, or whether counsel had contacted the expert.

         According to Einstein, he did not complete the investigation in this case. (Docket Entry No. 211, at 100-01.) Einstein said that he did not feel he had adequate funding for the investigation, but the only thing he could point to that he was unable to do because of lack of funding was out-of-state travel. (Id. at 95.) On cross-examination, Einstein said that developing rapport was the main reason for wanting to interview people in person, but he could not point to any particular information that he would have gained by visiting any witness in person. (Id. at 110-11.)

         Einstein was asked about the statement in his report concerning Petitioner's mother drinking during her pregnancy with Petitioner: “Nina Quintero probably drank while she was pregnant with Rick, and her drinking may have resulted in pre-natal damage to Rick.” (Docket Entry No. 211, at 108; Docket Entry No. 230, at 23.) Einstein testified that the basis for that statement was that several people told him Petitioner's mother drank quite a bit, but he did not remember if anybody told him they specifically saw Petitioner's mother drink during the pregnancy. (Docket Entry No. 211, at 108-09.) Concerning the statement in his report that “[t]he one childhood photograph we have of [Petitioner] does suggest the long philtrum (space between the upper lip and the nose) which is characteristic of Fetal Alcohol Syndrome” (Docket Entry No. 230, at 23), Einstein testified that the photograph he was relying on was the photograph from Petitioner's school records that he attached to his report.[10] (Docket Entry No. 211, at 109-10; Docket Entry No. 230, at 31.) Einstein admitted that he does not have any expertise in the physical characteristics of fetal alcohol syndrome. (Docket Entry No. 211, at 110.)

         About the bike accident Petitioner reportedly had before age four, discussed on pages three and four of Einstein's report, Einstein agreed that there are no hospital records to confirm the accident, that he did not know how hard Petitioner hit his head, that he did not know what treatment Petitioner received for the reported head injury, and that he did not know if there was any kind of cognitive impairment that would have resulted from the head injury. He also agreed that there were no records of Petitioner's being taken to the hospital or treated for the incident when he reportedly swallowed a glue cap and stopped breathing.[11] (Docket Entry No. 211, at 113-15.)

         Einstein spoke with Dr. Pamela Auble on January 7, 1991. He did not recall what they spoke about, but he mailed her Petitioner's school records. (Docket Entry No. 211, at 212.) After the trial, Weems sent Einstein a letter asking him to provide his file on Petitioner to the post-conviction team, and Einstein gave his file to Dr. Ann Charvat. (Docket Entry No. 211, at 99-100.)

         D. Michael Gelbort

         Clinical neuropsychologist Dr. Michael Gelbort testified that when one of Petitioner's habeas attorneys asked him to give an opinion about Petitioner, he first confirmed that there were events in Petitioner's early life that might have caused neuropsychological problems and that an evaluation was warranted. (Docket Entry No. 211, at 126.) He discussed several events from Petitioner's childhood medical records that he found significant, including a clonic convulsive seizure at age four, followed by abnormal electroencephalograms (EEGs), the prescription of anti-seizure medications phenobarbital and Dilantin, continued seizures up until age ten, and a fall off a bicycle. (Id. at 130-31, 133.) Dr. Gelbort interpreted that history to indicate brain dysfunction or brain damage going back to age three. (Id. at 131.)

         In addition to reviewing Petitioner's medical and education records and social history, Dr.

         Gelbort interviewed Petitioner and administered a battery of neuropsychometric testing, from which he concluded, to a reasonable degree of neuropsychological certainty, the following:

That many of his areas of performance, a lot of his test scores are average or even slightly better. And then there are some areas where he is inconsistent and weak. And his scores show up, at least in relative terms, if not in absolute terms, as showing impairment, limiting factors, inabilities, or disabilities.

(Docket Entry No. 211, at 134-35.) Specifically, Petitioner demonstrated relative strengths and weaknesses on the Wechsler memory scale; was slightly slower than expected based on his intellect, but within normal limits on the Trail Making test; scored in the impaired range on the Halstead Category test, having particular trouble on one subtest, appearing to learn slowly on others, and doing fine on the easier subtests; and performed better than expected - ranging from average to slightly above average on all the academic tests. (Id. at 135-36.) Dr. Gelbort opined that “tests of higher cognitive abilities found mild slowing with borderline deficient capabilities.” (Id. at 137.) On the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III), Petitioner scored an overall IQ of 103, which is average, with most of his subscores being average and perhaps better than expected based on his history, but others were significantly weaker. (Id. at 135, 138, 185.) On the verbal tests measuring the left hemisphere of Petitioner's brain (the dominant side that controls logic and language) he scored consistently in the average range and functioned “pretty well overall, ” despite an occasional “slight glitch” in processing speeds. (Id. at 137, 139-140.) His lowest score on the verbal side related to concrete verbal reasoning, which involves picking up specific details and specific relationships between various objects or concepts. (Id. at 187-88.) On the nonverbal or visual-spatial tests measuring the right hemisphere of his brain (the intuitive side), Petitioner's scores varied more widely, with some being high average while the score on the most significant test in the group fell into the impaired range. (Id. at 137, 139-140.) Dr. Gelbort testified that the variable right hemisphere processing was like having a brain that was “short-circuiting” and not functioning the way it should as compared with the other hemisphere - that it can “do the job sometimes, intermittently, ” but is not consistent. (Id. at 140.)

         Dr. Gelbort said that he sees this brain function pattern regularly, and that “judgment generally suffers” with it, but because it is variable, one cannot predict that it will cause trouble in any particular situation. (Docket Entry No. 211, at 140-41.) People with this problem “become cognitively overwhelmed, and that's what leads to bad choices.” (Id. at 141.) It is most often treated with anti-seizure medications or mood stabilizers, which “calm the nervous system and allow the person to function at a slightly slower, more intentional rate of speed.” (Id.) He did not say whether anyone has prescribed such treatment for Petitioner as an adult.

         Dr. Gelbort could not say what caused Petitioner's dysfunction, but believed based on the historical records that it was “very long-standing, ” and said there were things in Petitioner's history that “could give rise” to his type of impairment dating back to when he was three to five years old, or even from trauma at birth or in utero - “who knows?” (Id. at143.) Specifically, he said he based that opinion on the “description in some of the teachers' records of him being overly active, ” and Petitioner's not doing well in school. (Id. at 144-45.)

         Dr. Gelbort explained that a “relative” cognitive impairment exists where, for example, a person with an IQ of 130 wakes up from a coma after a car accident with an IQ of 100. A 100 IQ is average, so the person does not have an absolute impairment, but has a relative impairment compared to his own normal brain function. According to Dr. Gelbort, it would be wrong to conclude that this person is fine because of his average IQ, because people with acquired brain dysfunction like that will not function the same as someone who has functioned at that level his whole life. (Id. at 145-46.) He explained that, like a chain with just a few weak links, a person with a relative cognitive impairment may function fine in most situations, but when his brain function is put under stress his abilities will be defined by the weakest links; “[t]hat's when things are going to fall apart.” (Id. at 147.) The unpredictability of this pattern is emotionally frustrating and confusing to the person who exhibits it. (Id. at 147-48.) Above the level of absolute impairment, “most people have something of a sawtooth pattern where they have relative strengths and weaknesses, ” and what their weaknesses are will determine how their function is impacted: “You know, if it's attention and concentration and you can make up for it, you can overcome those deficits. If it's in judgment or reasoning problem-solving at a high level, you probably should be kept from making big decisions.” (Id. at 150-51.) Dr. Gelbort said that research shows that upwards of 70 percent of the prison population exhibits mild cognitive deficits in certain areas. (Id. at 155.)

         According to Dr. Gelbort, a person like Albert Einstein, who was known to have a very high IQ - presumed for the sake of the hypothetical to be 150 - but also had some attentional problems and areas where he was weaker than others, might “only” score a 120 on those weaker components. (Docket Entry No. 211, at 183.) Albert Einstein would therefore be an example of relative cognitive impairment. (Id. at 184.) Dr. Gelbort said Petitioner is also relatively cognitively impaired, because underlying his overall IQ of 103, he had individual test scores that would be on par with an IQ as high as 120 and others as low as 80. (Id. at 184-85.) He testified that even the drop between the scores on par with 120 and 100 is “statistically significant.” (Id. at 185.)

         Dr. Gelbort said that Petitioner is “intelligent enough in many areas, ” but that there is enough variability and confusion in his pattern that it would make Gelbort nervous to have him around his kids, because “strange things or odd things or eccentric things can happen when you have this pattern of function and dysfunction.” Dr. Gelbort would expect Petitioner's responses to challenging social situations to be “maladaptive as often as not, ” and that Petitioner would not be able to figure out things like “when should I get out of here?” (Docket Entry No. 211, at 156- 57.)

         On cross-examination, Dr. Gelbort said that neurologists are medical doctors who are “more in a position to diagnose physical damage to the nervous system, ” through medical tests like MRIs and CT scans. He said that he is not a neurologist and has not diagnosed Petitioner with any kind of physical damage to his nervous system or physical brain damage.[12] (Id. at 159- 60.) He said that a seizure disorder and abnormal EEG constitute brain dysfunction. (Id. at 161.) Some seizure disorders are congenital and can run in families, either because of a congenital defect in a family's brains or because of a genetic predisposition, and not all seizures are necessarily caused by head trauma. He repeated that he did not know what caused Petitioner's seizures. (Id. at 162.)

         Dr. Gelbort testified that Petitioner's cognitive impairments are in areas that are less likely to be recognized by a layperson or even some professionals than other impairments would be. (Id. at 163.) When asked what behaviors by Petitioner evidence his cognitive impairment, Dr. Gelbort again referenced the description of him in school records as overly active, his “variable reports, ” and said that “the reason we're here today could be an example of an outgrowth of his cognitive abnormalities.” He said he believed that there were other examples of maladaptive behaviors by Petitioner in Einstein's social history, but he could not specify any. (Id. at 165-67.) He also believed that more than one teacher described Petitioner as exhibiting hyperactive traits, but could not say who, other than second-grade teacher Carolyn June-Johnson, had made that report, and said that reports from multiple other teachers that Petitioner was very quiet and not a behavior problem did not address hyperactivity. (Id. at 167- 170.) He acknowledged that he had probably seen that Petitioner received average marks for self-control in first through fifth grades and an excellent mark for sixth grade, but testified that those marks did not go to the issue of hyperactivity because hyperactive people can control themselves in short bursts. (Id. at 170-71.) He said Petitioner's grades in school were mixed, with a few As and other grades ranging from Bs to Ds, but acknowledged that the fact that Petitioner regularly missed school at times could contribute to that mix. (Id. at 172.)

         Dr. Gelbort testified that people without cognitive impairments can have poor self-control, and that people can have poor grades without having cognitive impairments or a learning problem. (Id. at 171-73.) Likewise, not all people who engage in abhorrent behavior have cognitive impairments, and not everyone who has a cognitive impairment goes on to commit murder. (Id. at 197-98.)

         Dr. Gelbort acknowledged that during his interview, Petitioner reported to him that he had experienced a stroke in 1997, and that he described symptoms that can be symptoms of a stroke. (Docket Entry No. 211, at 144, 173.) Petitioner had also told him during the interview that since the stroke he had had more trouble “thinking in a focused way.” (Docket Entry No. 212, at 4-5.) Petitioner's prison medical records establish that on May 12, 1997, he reported to medical staff at 2 p.m. that he was experiencing dizziness, numbness on the left side of his body and headache, and said he had “been getting these spells since my B.P. had gotten up so high.” (Docket Entry No. 232, at 254.) He was holding his left arm. (Id.) The nurse who saw him called and reported his complaints to a nurse practitioner, who agreed to see him the following day. (Id.) At 10:40 the next morning, he told the registered nurse practitioner that had been exercising when he started having numbness in his left arm and leg that last ten to fifteen minutes, that he had had a headache and numbness on the left side of his face for two to three weeks, and that the chest pain he had experienced since November was getting worse. (Docket Entry No. 232, at 255.) The registered nurse practitioner recorded that she observed a tremor on the left side of his mouth with “sl[ight] paralysis visible, ” but his grips were equal, and he did not have any gait problems. (Id.) She assessed Petitioner's symptoms as possible Bell's palsy, and recommended checking his recent lab work and for him to have a consult with an M.D. (Id.) In clinic visits after that, Petitioner occasionally referenced having had a stroke in May 1997. (Docket Entry No. 232, at 259, 275.)

         Dr. Gelbort testified that those facts were not inconsistent with Petitioner's having had a stroke, but they did not “indicate” that he had a stroke, and that a transient ischemic attack (TIA) or recurring TIAs would “probably make more medical sense.” (Docket Entry No. 211, at 179- 80.) He said he did not believe Petitioner to be a malingerer, but testified that his medical records show that in June 1997 he was referred for a psychiatric consultation for anxiety/depression, due to his “multiple somatic complaints with little objective anatomical finding to substantiate a medical/structural disorder.” (Docket Entry No. 212, at 6; Docket Entry No. 232, at 452.) Dr. Gelbort assumes, although there is no record of it, that “a competent physician doing their job” would have done a first round of behavioral testing to see if there were findings that warranted sending Petitioner for a CT or MRI to diagnose a stroke. (Docket Entry No. 212, at 11.) He saw nothing in Petitioner's medical record where a physician expressly stated whether Petitioner did or did not have a stroke. (Id. at 12-13.) Based on what he saw in the records, Dr. Gelbort said “[t]he possibility exists, but there's more questions to be asked and information . . . to be discovered, if it's available.” (Docket Entry No. 211, at 144.) He said that there are tests that could be done that might indicate whether Petitioner had had a stroke, but to his knowledge those tests had not been done. (Id. at 180.) Dr. Gelbort acknowledged that it was possible to have a stroke and resulting cognitive impairment without any residual physical signs, such as a droopy eyelid or numbness, and that the “possibility exists” that if Petitioner had a stroke in 1997, that was the cause of his cognitive impairments on Dr. Gelbort's tests. (Docket Entry No. 211, at 180-81.) He admitted it was possible, therefore, that Petitioner did not have any of those cognitive impairments at the time of the murder in 1988. (Id. at 182.) He also acknowledged that depression and anxiety can affect patients' performance on testing, but said that he did not detect enough anxiety or depression in Petitioner to make the data unreliable. (Docket Entry No. 212, at 14-15.)

         Dr. Gelbort said that Petitioner has a limited impairment in visual abstract reasoning, and poor processing speed and ability to pick up on details. (Docket Entry No. 211, at 187.) He said that the main tests that measure abstract reasoning include the picture arrangement, matrix reasoning and category tests. (Id. at 200-01.) The category test, in which Petitioner received his only impaired score in absolute terms, consists of seven subtests, and the threshold for absolute impairment is 51 errors on the entire test. (Docket Entry No. 211, at 201-05.) Petitioner made 56 errors out of a possible 208 errors, which Dr. Gelbort said would be categorized as a “mild impairment, ” but qualified that with the statement that mild impairment would be more like a mild cancer than a mild cold. (Id. at 205, 208.) Thirty-five of Petitioner's errors on the category test were on a single subtest, and he had zero, one or two errors on four of the subtests. (Id. at 202-205.) On the picture arrangement test, Petitioner's score was average. On the matrix reasoning test, he earned his highest score on any of the WAIS subtests, demonstrating that he can think abstractly on a high level “if it's tested in a certain fashion.” (Id. at 209-210.)

         During their interview, Petitioner relayed to Dr. Gelbort that when some third person had asked his mother about drinking while she was pregnant with him, she was very sensitive or belligerent, so Dr. Gelbort's impression was that she probably consumed some amount of alcohol while pregnant but that further information about that was not available. (Docket Entry No. 212, at 4.) Dr. Gelbort did not diagnose Petitioner with fetal alcohol syndrome or fetal alcohol exposure. (Id.)

         Dr. Gelbort reiterated that it is impossible to predict what impact Petitioner's impairment has on his behavior in any particular situation, such as the night of the murders, but that he carries the impairment at all times, and if a situation stresses his weaknesses, he is more likely to respond in a maladaptive way than someone who does not have his impairment. (Docket Entry No. 211, at 192-200.) He likened going through life with an impairment like Petitioner's to taking a test when you have the flu: it will not cause you to get any particular answer right or wrong, but it makes you less likely to get the right answer. (Id. at 192-93.)

         E. Mark Cunningham

         Forensic and clinical psychologist Dr. Mark Douglas Cunningham testified that Petitioner's habeas counsel contacted him in February 2015 and asked him to identify the adverse development factors that could have been presented regarding Petitioner at his sentencing hearing in 1991. (Docket Entry No. 212, at 47.) He reviewed Einstein's report, along with the interviews and records he collected, Dr. Gelbort's report and addendum, the habeas investigator's interviews of Petitioner and several of his relatives, the criminal histories of Petitioner and two of his siblings, and portions of the records from Petitioner's state and federal legal proceedings. (Docket Entry No. 230, at 126-28.) Dr. Cunningham did not interview Petitioner, despite the fact that his own text on evaluations at capital sentencing teaches that “[e]xtended direct contact with the defendant is also likely to augment the credibility of the expert and the associated evaluation findings” and that “direct evaluation contact with a capital defendant is considered the best practice.” (Docket Entry No. 210, at 13-16.) He testified that he limited the research on which he relied for his opinions to what was available at the time of Petitioner's trial in 1991. (Docket Entry No. 212, at 143.)

         Dr. Cunningham testified that there were twenty-six mitigating “adverse developmental factors” in Petitioner's background that would mitigate his culpability, which fell generally into several categories: Transgenerational, Parenting and Family, Neurodevelopmental, Community, and Disturbed Trajectory.

         1. Adverse Transgenerational Developmental Factors

         Based on evidence of family dysfunction, substance abuse and violent tendencies on both sides of Petitioner's family for three generations, the first adverse factor Dr. Cunningham discussed was “transgenerational family dysfunction and distress.” (Docket Entry No. 212, at 90.) In addition to the substance abuse and physical abuse that Petitioner experienced and witnessed in his family, the behaviors on which Dr. Cunningham relied for this factor included abuse that did not directly involve Petitioner (such as his brother's reported spousal abuse), abuse of which Petitioner was not aware (such as the sexual abuse by his uncles of his sister and cousin), and a murder later committed by a man to whom Petitioner's mother Nina was briefly married when she was fifteen and whom Petitioner never knew. Dr. Cunningham testified that the subsequent actions of Nina's first husband had important implications for Petitioner because her “choos[ing] a bad guy to marry” is “informative of who she is” and what she “bring[s] to bear in his parenting.” (Docket Entry No. 213, at 74-75.) Essentially, his parents were damaged by their own backgrounds and were therefore unable to parent properly, which in turn damaged Petitioner. Dr. Cunningham explained that family dysfunction, even dysfunctional behavior before Petitioner was born or of which he was unaware, had implications for Petitioner through hereditary predispositions, modeling, sequential emotional damage and learned family scripts. His report states that “maladaptive behaviors, including criminal activity and violence may result from ‘sequential emotional damage, '” and that “[t]he children of these neglectful or abusive parents are . . . thus at greater risk for broad adverse adult outcomes including . . . criminal activity, and violence.” (Docket Entry No. 230, at 137.) Accordingly, “[Petitioner's] participation in the conviction offenses is thus not a singularly individual story, but instead occurs within a multigenerational context.” (Id.)

         Dr. Cunningham next identified the factor “hereditary predisposition for alcohol and drug abuse/dependence.” (Docket Entry No. 212, at 90-93.) He identified a dozen family members with reported histories of substance abuse and explained that if a first degree relative (father, mother, brother, or sister) is an alcohol or drug abuser, a person is four times more likely to abuse drugs and alcohol. (Id. at 91). His report acknowledges that there was testimony at trial about the heavy drinking of both of Petitioner's parents. (Docket Entry No. 230, at 137.) Dr. Cunningham noted that there is no evidence that Petitioner was intoxicated at the time of the murders, but explained that his drug abuse during adolescence arrested his emotional development and prevented him from developing the “emotional muscles to cope with adulthood.” (Docket Entry No. 212, at 93-97). He testified that the fundamental concept of Alcoholics Anonymous is to develop the emotional maturity that had “atrophied” during years of substance abuse, and that because Petitioner had never participated in such a program or done “those kinds of things that might help him develop that even while in custody, ” he was “essentially, coming out of prison with the operating capacities of this young adolescent.” (Id. at 94-95.) He said that treatment in prison “does not represent the operational experience of that on the outside, ” but “it helps . . . [it] maximizes the likelihood of them staying sober on the outside and bringing their coping skills to bear.” (Id. at 96.) Dr. Cunningham admitted that he had not reviewed Petitioner's prison records in order to determine whether he had participated in a treatment program. (Id. at 95.)

         Another transgenerational adverse factor Dr. Cunningham identified was a hereditary predisposition to personality pathology, which he said is a risk factor for “criminality and violence.” (Docket Entry No. 230, at 141.) He testified that certain personality traits, particularly antisocial traits such as a tendency toward criminality and violence, are inherited. (Docket Entry No. 212, at 98-99; Docket Entry No. 230, at 139-141.) Dr. Cunningham said that the subheading in his report under this factor that is titled “Implications of hereditary predisposition to psychological disorder and personality pathology” contained a typographical error and should have simply said “Implications of hereditary predisposition to personality pathology.” (Docket Entry No. 212, at 110; Docket Entry No. 230, at 140.) His testimony and report said that traits on a personality pathology “continuum” have a hereditary component, even if they do not rise to the level of a diagnosis, but the portions of the DSM-III-R that he quoted for the implications of this factor in his report only discuss the increased likelihood of having a disorder (specifically, the quotations address the likelihood of antisocial personality disorder, somatization disorder, and psychoactive substance use disorder) if relatives have the disorder. (Docket Entry No. 230, at 140-41.) On cross-examination, Dr. Cunningham said that the “DSM-III-R talks about the hereditary aspects of personality pathology on the antisocial continuum.” Later, he acknowledged that the DSM-III-R does not say that it applies to disorders on a continuum, but said that the DSM-III-R is just “a limited treatise for classification purpose” and that “[t]he larger literature in psychology describes these predispositions as being on a continuum.” He said that he had not supplied any study that did so.[13] (Docket Entry No. 213, at 55-61.) Dr. Cunningham listed several examples of antisocial behaviors by Petitioner's family members, but acknowledged that neither Petitioner nor any of his relatives had ever been diagnosed with antisocial personality disorder. He also included Nina's first husband, who was not biologically related to Petitioner, because the fact that he later committed murder and died in prison provides additional perspective about Nina. (Id. at 73-74.) He acknowledged that scientists have not identified a gene for personality pathology or for predisposition to commit murder. (Id. at 72-73.)

         2. Neurodevelopmental Adverse Factors

         Dr. Cunningham identified “probable fetal alcohol exposure” as an adverse factor for Petitioner. There is no direct evidence that Petitioner's mother drank during her pregnancy, but Dr. Cunningham infers that she did because of her history of heavy drinking, reports from three of her in-laws that they thought she drank while she was pregnant, and a report that she was once belligerent and defensive when someone asked her if she drank while pregnant. He testified that scientific literature shows that any amount of alcohol during pregnancy is teratogenic or toxic, and that such cases fall into three categories: fetal alcohol syndrome, where the mother consumed enough alcohol often enough that it caused the child to develop a distinct syndrome including facial characteristics, cognitive changes and heart defects; fetal alcohol effects, where the amount of alcohol consumed does not give rise to the syndrome, but still causes varying impacts on the nervous system and physical development that may not be sufficiently observable or clustered to be described as a syndrome; and “then exposure is down from that. It's the idea that this is a continuum; that alcohol is toxic. And it's only a function of how much alcohol, how often, and at what stage as we're looking at the nature of the impact.” (Docket Entry No. 213, at 7-8.) He testified that a 1991 study by Streissguth and others showed that adults with a history of fetal alcohol syndrome and fetal alcohol effects continued to exhibit maladaptive behaviors, poor judgment, distractibility and difficulty perceiving social cues. (Id. at 9.) He admitted that Petitioner had not been diagnosed with fetal alcohol syndrome, and that the authors of the Streissguth study had disclaimed any “firm conclusions” about patients with only fetal alcohol effects, due to insufficient sample size. (Docket Entry No. 210, at 29-30.) He also admitted that he had no information about the timing, frequency or extent of Nina's drinking while she was pregnant, and that he had not attempted to place Petitioner in a specific spot on the continuum to any level of scientific certainty. (Docket Entry No. 210, at 30-33.) In fact, one of the family reports on which Dr. Cunningham based his inference that Nina drank during pregnancy was from Raymond Quintero, who said he did not think she drank very much during the pregnancy. (Docket Entry No. 212, at 136-37).

         Dr. Cunningham identified an incident of obstructed airway anoxia in childhood as an adverse factor. He based this finding on a family report that Petitioner had “died and been resuscitated when he swallowed a glue cap, ” and on a medical record two months later that included the parents' subjective report that Petitioner had become cyanotic and been resuscitated by his father after swallowing a plastic bottle cap. (Docket Entry No. 213, at 10-11; Docket Entry No. 230, at 142.) There is no record that Petitioner received any emergency medical treatment on the day of the incident, but a hospital record from May 29, 1966, indicates that his parents reported that “This 4 y/o WM was in his normal state of good health until March when he swallowed plastic bottle cap and became completely cyanotic. Father administered mouth to mouth and sucked cap from child's larynx. Child recovered in about 10 minutes.” (Docket Entry No. 213, at 11-12; Docket Entry No. 230, at 142.) Dr. Cunningham testified that anoxia is a neurological insult to the brain, and that if it is sustained it can have implications for brain function. (Docket Entry No. 213, at 13-14.)

         In Petitioner's case, Dr. Cunningham testified that those implications included brain damage that manifested in the seizure disorder that Petitioner developed that year, which he identified as a separate adverse factor. (Docket Entry No. 213, at 14-15; Docket Entry No. 230, at 143-44.) Petitioner's seizures are well-documented in medical records and reports from family members, and he was medicated for them as a child. One of the hospital records about his seizures indicated a need to rule out “brain damage secondary to anoxia, ” but Dr. Cunningham did not see any records of the testing that would have been done to rule out or confirm brain damage. (Docket Entry No. 213, at 14-15.) He relayed descriptions from medical records of Petitioner's tonic/clonic convulsive seizures, one of which involved falling and hitting his head, and caused a trip to the emergency room where x-ray showed tissue swelling in his scalp and an EEG revealed “slowing electroencephalographic pattern with apparent focal slowing, greater left posterior hemisphere as compared with other areas, and occasional apparent focal sharp waves from this region.” (Docket Entry No. 213, at 18-19; Docket Entry No. 230, at 144.) Dr. Cunningham testified that the seizures themselves may have involved anoxia and caused additional neurological insults. (Docket Entry No. 213, at 20.) Dr. Cunningham testified that Petitioner's final diagnosis at the time of the onset of his seizures in April 1966 was “probable grand mal epilepsy, etiology unknown, ” but he found it “notabl[e]” that the March glue cap incident was not reported to medical staff during that visit, so they did not connect the seizures to that incident.[14] (Docket Entry No. 213, at 19; Docket Entry No. 230, at 144.) Dr. Cunningham acknowledged that it is typically not possible to identify the cause of a seizure disorder, and that they can be hereditary and run in families. On cross-examination, he said that he might have seen a report that Petitioner's brother Brian also had seizures, but believed that Brian had also had a significant head injury.[15] Aside from the fact that Petitioner's seizures began a month after his reported anoxic event, Dr. Cunningham did not have any evidence of a causal relationship between the two. (Docket Entry No. 210, at 36-39.)

         Dr. Cunningham identified head injury as a related adverse factor affecting Petitioner. There is a single medical record in July 1966 indicating that at age four and a half Petitioner had fallen off a bicycle, was dazed with a minor laceration and swelling on his right parietal area, and began having seizures 15-20 minutes later. (Docket Entry No. 230, at 106-07, 146-47; Docket Entry No. 213, at 27-28.) Another clinic record a few days later includes a report from Petitioner's mother that an increase in Petitioner's dosage of phenobarbital and Dilantin had helped, and that Petitioner's convulsions had stopped completely until his fall. (Docket Entry No. 213, at 28; Docket Entry No. 230, at 147.) Dr. Cunningham also relied on these anecdotal reports from various family members and a teacher about head injuries for which there are no medical records: Petitioner reportedly fell from the handlebars of a bicycle onto a concrete curb at age one or two, which his mother reported resulted in an overnight stay in the hospital where holes were drilled in his skull to relieve pressure, but she said she was unclear about the details and might have been describing an injury to one of Petitioner's brothers instead; Petitioner's head was shaved after a possible head injury sometime before the age of three or four; Petitioner's “head was split open and bleeding” at eight years old, but he was not taken to a doctor; Petitioner's second grade teacher recalled he had a history of head injury;[16] Petitioner's “head was crushed” when he was very young; Petitioner fell out of a bicycle basket before the age of three; Petitioner flew over the handlebars of a bicycle and landed on his head on concrete when he was around three years old, after which his parents said he began having seizures, “staring spells” and lapses in focus and attention; and he had additional head injuries when he was struck in the forehead with a pool cue and fell off the monkey bars. (Docket Entry No. 230, at 145-46.) Dr. Cunningham interpreted these reports to indicate three separate head injuries from bicycle falls: one falling out of a basket, another falling off the handlebars, and the third being the July 1966 fall documented in the medical records. (Docket Entry No. 213, at 27.)

         However, he acknowledged that years of excessive alcohol consumption and the passage of twenty-five years may have caused Nina's confusion in her report, and that it was possible that the family members were misremembering the details and were all describing the same accident that happened when he ...


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