Death Penalty

Summary of Cases Citing 1989 ABA Guidelines
Cases cited to more than one 1989 Guidelines and are marked with an asterisk. Cases cited to both the 1989 and 2003 Guidelines are marked with †.

Guideline 1.1 Objective

1. Yarbrough v. Johnson, 520 F.3d 329 (4th Cir. Mar. 17, 2008).* †
On appeal to the 4th Circuit, Yarbrough argued his trial counsel was ineffective for failing to hire a DNA expert to contradict the evidence that was used against him. The state's case relied heavily on the DNA evidence at the crime scene and Yarbrough argued that his counsel's failure to rebut any of this evidence "fell below 'prevailing professional norms' as they are defined by the (2003) American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines")." 2008 U.S. App. LEXIS at *12. Yarbrough asserts that the ABA Guidelines "require that 'expert assistance should always be requested and provided' for the 'proper preparation of capital cases' (emphasis added), and which are not to be taken as 'aspirational' but as a minimum standard under the Sixth Amendment." Id.
The District Court rejected this argument and the 4th Circuit agreed that the "failure to comply with the ABA Guidelines regarding the requesting of funds for expert assistance does not establish counsel's performance as constitutionally deficient per se." Id. at *22.
The 4th Circuit analyzed the language of the ABA Guidelines and determined that the Guidelines give a "mixed message about whether they are aspirational or mandatory in every circumstance." Id. The court continues:
On the one hand they would impose on defense counsel a mandatory, nonaspirational, minimum requirement to request public funds and obtain expert assistance in the preparation of virtually every capital case, because everywhere that the Guidelines direct what counsel "should" do, they advise that the term "should" is to be construed as a mandatory term. See ABA Guidelines intro. (1989) ("'Should' is used throughout as a mandatory term and refers to activities which are minimum requirements"). In this manner, the ABA Guidelines appear to mandate that "[u]tilization of experts has become the rule, rather than the exception, in proper preparation of capital cases," id. 1.1 cmt., and "counsel should demand on behalf of the client all necessary experts for preparation of both phases of trial," id. 11.4.1 cmt. On the other hand, the Guidelines also seem to acknowledge that a defendant cannot routinely have experts, because to have them requires calling upon local jurisdictions "to authorize sufficient funds to enable counsel in capital cases to conduct a thorough investigation . . . and to procure the necessary expert witnesses and documentary evidence," id. 8.1 cmt., which suggests an aspirational nature to the Guidelines. The Guidelines observe that "funds available to appointed defense counsel are substantially below those available to the prosecution" and that "[t]his inequity is unconscionable." Id. In short, the ABA Guidelines say that defense counsel should -- now meaning only "should" -- try to use experts more routinely, but that this goal depends on government funding which, for now, does not allow this goal to be achieved routinely.
Id. at *22-23. The court concluded that the "ABA Guidelines provide noble standards for legal representation in capital cases and are intended to improve that representation, they nevertheless can only be considered as a part of the overall calculus of whether counsel's representation falls below an objective standard of reasonableness; they still serve only as "guides," Strickland, 466 U.S. at 688, not minimum constitutional standards." Id. at *26.


Guideline 5.1 Attorney Eligibility

1. United States v. Suarez, 233 F. Supp. 2d 269 (D.P.R. Nov. 22, 2002).
The District Court held that the Federal Public Defender met all criteria necessary for appointment as "learned counsel" required by federal statute for capital cases. In making this determination, the court looked to the ABA Guidelines. Suarez, 233 F.Supp.2d at 271. The court stated that it was unable to find any federal appellate court guidance on the precise definition of "learned counsel" and instead looked to the ABA Guidelines. Id. The court's opinion reproduced Guideline 5.1 (1989). Id. at 272. Following Guideline 5.1 in the opinion, the court applied the Guideline to the public defender appointed in the case and found that he was qualified to be appointed as "learned counsel" pursuant to ABA Guidelines.

2. United States v. Miranda, 148 F. Supp. 2d 292 (S.D.N.Y. Jun. 21, 2001).
After being indicted for conspiracy and murder, which carried a possible death sentence, Miranda sought additional court-appointed counsel on the grounds that he was charged with a capital crime. Judge Cote ordered a conference to determine whether the proposed second court-appointed attorney requested by Miranda qualified as "learned" in the law applicable to capital cases.
In Judge Cote's decision to hold a conference, she relied upon ABA Guideline 5.1 (1989), cited in full in the opinion. Miranda, 148 F.Supp.2d at 295-6. In writing about the Guidelines, Judge Cote explained that, "[I]n addition to familiarity with the jurisdiction and extensive criminal litigation training and experience, the ABA recommends that at least one attorney representing a defendant charged with a capital crime have previously 'tried to completion' a capital case." Id. at 296. The requirements of Guideline 5.1 were comparable to those required of counsel in capital cases tried in New York pursuant to Section 35-b of the Judiciary Law. Id.

Guideline 8.1 Supporting Services

1. Yarbrough v. Johnson, 520 F.3d 329 (4th Cir. Mar. 17, 2008).* †
On appeal to the 4th Circuit, Yarbrough argued his trial counsel was ineffective for failing to hire a DNA expert to contradict the evidence that was used against him. The state's case relied heavily on the DNA evidence at the crime scene and Yarbrough argued that his counsel's failure to rebut any of this evidence "fell below 'prevailing professional norms' as they are defined by the (2003) American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines")." 2008 U.S. App. LEXIS at *12. Yarbrough asserts that the ABA Guidelines "require that 'expert assistance should always be requested and provided' for the 'proper preparation of capital cases' (emphasis added), and which are not to be taken as 'aspirational' but as a minimum standard under the Sixth Amendment." Id.
The District Court rejected this argument and the 4th Circuit agreed that the "failure to comply with the ABA Guidelines regarding the requesting of funds for expert assistance does not establish counsel's performance as constitutionally deficient per se." Id. at *22.
The 4th Circuit analyzed the language of the ABA Guidelines and determined that the Guidelines give a "mixed message about whether they are aspirational or mandatory in every circumstance." Id. The court continues:
On the one hand they would impose on defense counsel a mandatory, nonaspirational, minimum requirement to request public funds and obtain expert assistance in the preparation of virtually every capital case, because everywhere that the Guidelines direct what counsel "should" do, they advise that the term "should" is to be construed as a mandatory term. See ABA Guidelines intro. (1989) ("'Should' is used throughout as a mandatory term and refers to activities which are minimum requirements"). In this manner, the ABA Guidelines appear to mandate that "[u]tilization of experts has become the rule, rather than the exception, in proper preparation of capital cases," id. 1.1 cmt., and "counsel should demand on behalf of the client all necessary experts for preparation of both phases of trial," id. 11.4.1 cmt. On the other hand, the Guidelines also seem to acknowledge that a defendant cannot routinely have experts, because to have them requires calling upon local jurisdictions "to authorize sufficient funds to enable counsel in capital cases to conduct a thorough investigation . . . and to procure the necessary expert witnesses and documentary evidence," id. 8.1 cmt., which suggests an aspirational nature to the Guidelines. The Guidelines observe that "funds available to appointed defense counsel are substantially below those available to the prosecution" and that "[t]his inequity is unconscionable." Id. In short, the ABA Guidelines say that defense counsel should -- now meaning only "should" -- try to use experts more routinely, but that this goal depends on government funding which, for now, does not allow this goal to be achieved routinely.
Id. at *22-23. The court concluded that the "ABA Guidelines provide noble standards for legal representation in capital cases and are intended to improve that representation, they nevertheless can only be considered as a part of the overall calculus of whether counsel's representation falls below an objective standard of reasonableness; they still serve only as "guides," Strickland, 466 U.S. at 688, not minimum constitutional standards." Id. at *26.

Guideline 11.4.1 Investigation

1. Rompilla v. Beard, 545 U.S. 374 (2005). †
The Supreme Court overturned the Third Circuit's decision in Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004) and found the Pennsylvania Supreme Court's failure to find defense counsel ineffective objectively unreasonable. Specifically, the Court held that counsel was required to review the record of the defendant's previous conviction when they had been put on notice by the prosecution that the prior record was going to be introduced as aggravating evidence during sentencing. Rompilla, 545 U.S. at 377.
In discussing the obligations of defense counsel as they were understood at the time of Rompilla's trial, the opinion emphasizes that counsel is required to review material that the state will use against the defendant, id. at 375, and discusses the ABA Guidelines in detail:
In 1989, shortly after Rompilla's trial, the ABA promulgated a set of Guidelines specifically devoted to setting forth the obligations of defense counsel in death penalty cases. Those Guidelines applied the clear requirements for investigation set forth in the earlier Standards to death penalty cases and imposed a similarly forceful directive: "Counsel should make efforts to secure information in the possession of the prosecution or law enforcement authorities, including police reports." Guideline 11.4.1.D.4. When the United States argues that Rompilla's defense counsel complied with these Guidelines, it focuses its attentions on a different Guideline, 11.4.1.D.2. Brief for United States as Amicus Curiae 20-21. Guideline 11.4.1.D.2 concerns practices for working with the defendant and potential witnesses, and the United States contends that it imposes no requirement to obtain any one particular type of record or information. Id. But this argument ignores the subsequent Guideline quoted above, which is in fact reprinted in the appendix to the United States' brief, that requires counsel to " 'make efforts to secure information in the possession of the prosecution or law enforcement authorities.' "
Later, and current, ABA Guidelines (2003) relating to death penalty defense are even more explicit:
"Counsel must ... investigate prior convictions ... that could be used as aggravating circumstances or otherwise come into evidence. If a prior conviction is legally flawed, counsel should seek to have it set aside. Counsel may also find extenuating circumstances that can be offered to lessen the weight of a conviction."Our decision in Wiggins made precisely the same point in citing the earlier 1989 ABA Guidelines. 539 U.S. at 524 ("The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'"
For reasons given in the text, no such further investigation was needed to point to the reasonable duty to look in the file in question here. Rompilla, 545 U.S. at 387, n.7.

2. Wiggins v. Smith, 539 U.S. 510, (2003). *
The Supreme Court granted a new sentencing hearing after holding that trial counsel's failure to fully investigate Wiggins' background constituted ineffective assistance of counsel. Counsel failed to present evidence of several instances of physical and sexual abuse Wiggins experienced at the hand of his mother and a series of foster parents. Wiggins' mother, a chronic alcoholic, frequently left Wiggins and his siblings at home alone without any food or money, forcing them to beg for food and to eat paint chips and garbage. She once forced Wiggins to put his hand up against a hot stove burner, which led to his hospitalization. The father in Wiggins' second foster home repeatedly molested and raped him. At age 16, Wiggins ran away from his foster home and began living on the streets. He returned intermittently to additional foster homes, including one in which the foster mother's sons allegedly gang-raped him on more than one occasion. Trial counsel failed to conduct a mitigation investigation and social history, and none of this information was presented at the penalty phase of trial.
The Supreme Court noted that:

Counsel's conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)--standards to which we long have referred as "guides to determining what is reasonable." Strickland, supra, at 688, 466 U.S. 668; Williams v. Taylor, supra, at 396, 529 U.S. 362. The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences) (emphasis added).
Id. at 524.

3. Newland v. Hall, No. 05-15981, 2008 U.S. App. LEXIS 10433 (11th Cir. May 14, 2008).
Petitioner argues that he had ineffective assistance because counsel did not present mitigating evidence about his childhood and social history. Petitioner cites 1989 ABA Guideline 11.4.1(C) which states that counsel should investigate and present mitigating evidence at both the guilt and penalty phases of trial. The court cites several 11th Circuit cases which hold that assistance is not ineffective for not discovering and presenting mitigating evidence if the defendant does not give the attorney such information or reason to believe that the information is available. See Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1211 (11th Cir. 2007), Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1193, 1211 (11th Cir. 2002), Williams v. Head, 185 F.3d 1223, 1237 (11th 1999). The court held that petitioner's counsel met the reasonably competent attorney standard. Petitioner's factual situation is not analogous to Rompilla and Wiggins because petitioner instructed counsel not to contact his family members and generally discouraged counsel from researching his past.

4. Villegas v. Quarterman, No. 07-70032, 2008 U.S. App. LEXIS 8210 (5th Cir. Apr. 16, 2008). *
Petitioner applied for a certificate of appealability arguing that his counsel failed to investigate and present mitigating evidence during the penalty phase of his trial and as a result was ineffective. The court cited to 1989 ABA Guideline 11.4.1(C) which provides that counsel's investigation "should comprise efforts to discover all reasonably available mitigating evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Additionally, the court cited 1989 ABA Guideline 11.8.6 which states that a reasonable investigation will include topics such as "the accused's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences."
"However, counsel's failure to research and present mitigating evidence during the penalty phase is not per se ineffective assistance." See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir. 1997). Although counsel has a duty to make reasonable investigations they may also make a reasonable decision not to make unnecessary investigations. Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-91). Furthermore, Strickland does not "require defense counsel to present mitigating evidence at sentencing in every case." Id. at 533. A court must "decide if the investigation supporting counsel's decision not to introduce mitigating evidence . . . was itself reasonable." Id. at 522-23 (quoting Strickland, 466 U.S. at 691). There is a "strong presumption" that counsel's conduct "falls within the wide range of reasonable professional assistance." Bell v. Cone, 535 U.S. 685, 698 (2002) Counsel is not ineffective because the court disagrees with his trial strategy. Strickland, 466 U.S. at 689.
The court held that counsel did investigate and present mitigating evidence during both the guilt and penalty phase of the trial. Therefore petitioner had adequate representation and his certificate of appealability was denied.

5. Sowell v. Collins, No. 1:94CV237, 2008 U.S. Dist. LEXIS 25643 (S.D. Ohio Mar. 31, 2008).
Sowell was tried and sentenced to death before a three-judge panel. Sowell appealed to the District Court for the Southern District of Ohio seeking federal habeas corpus relief. Sowell argued that his counsel was ineffective for failing to present an adequate mitigation investigation into his background and childhood.
The District court cited to the Supreme Court's practice of referring to the "standards of the American Bar Association ("ABA") as guides to determining what is reasonable representation in a capital case." 2008 U.S. Dist. LEXIS at *53. The District court specifically addressed Wiggins v. Smith:
The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Wiggins v. Smith, 539 U.S. 510, 523 (2003).
Sowell, 2008 U.S. Dist. LEXIS at *54-55. Similar to Wiggins, Sowell's defense counsel failed to present an investigation into his childhood:
Despite the fact that petitioner grew up in extreme poverty and suffered severe abuse and neglect as a child, counsel did not present any information concerning petitioner's childhood, background, or social history. Counsel did not call one family member to testify. The panel did not hear that petitioner was one of seven children, and the Sowell family was so poor that the children were malnourished and routinely had nothing to eat. The panel did not hear that petitioner began stealing food at a young age, and his infant brother died of starvation. The panel did not hear that petitioner had no shoes until he was five years old, and that he and his siblings were often bitten by rats.
Id. at *11-12. Citing to the 2003 ABA Guideline 10.7 in Hamblin v. Mitchell, the District court continued:
The 2003 ABA guidelines state that "penalty phase preparation requires extensive and generally unparalleled investigation into personal and family history." Id. at 487 n.2. The guidelines further provide that counsel need to explore family and social history, including physical, sexual or emotional abuse, and family history of mental illness, cognitive impairments, substance abuse or domestic violence, as well as poverty and familial instability. Id.

Id. at *55. The District court identified defense counsel failures as constituting ineffective assistance. "[Sowell's] counsel performed deficiently by failing to discover, develop or present substantial mitigating evidence concerning petitioner's background and social history." Id. at *53. The court concluded, "…there is a reasonable probability that had counsel done so, at least one member of the three-judge panel would have voted against the imposition of the death penalty." Id. As a result, Sowell was granted federal habeas relief on his ineffective assistance of counsel claim.

6. Vasquez v. Quarterman, No. CC-05-059, 2008 U.S. Dist. LEXIS 25047 (S.D. Tex. Mar. 28, 2008).
Vasquez appealed an ineffective assistance of counsel claim to the District Court for the Southern District of Texas. Vasquez claimed he received ineffective assistance based on counsel's failure to "adequately investigate and present available mitigation evidence." 2008 U.S. Dist. LEXIS at *19.
The court cited section 11.4.1 of the 1989 American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guidelines"). Id. Section 11.4.1 of the ABA Guidelines recommend, ". . .counsel for a capital defendant should make 'efforts to discover all reasonably available mitigating evidence.' ABA Guidelines 11.4.1 (1989)." Id. The court acknowledged, "[a]lthough the ABA Guidelines are not mandatory, they are the only standards of reasonable practice that either side has offered the Court. Furthermore, the Supreme Court has repeatedly relied upon the ABA Guidelines to inform its determination of the 'objective standard of reasonableness' set forth in Strickland v. Washington." Id. at *19-20.
In concluding, the court recognized that Vasquez's counsel ". . .failed to perform an objectively reasonable investigation of mitigating evidence." Id. at *28. However, the court ruled that counsel's inadequacies did not "prejudice the defense," failing to meet the second prong of the Strickland test. Id. at *31. Therefore, Vasquez's claim was denied. Id.

7. Yarbrough v. Johnson, 520 F.3d 329 (4th Cir. Mar. 17, 2008).* †
On appeal to the 4th Circuit, Yarbrough argued his trial counsel was ineffective for failing to hire a DNA expert to contradict the evidence that was used against him. The state's case relied heavily on the DNA evidence at the crime scene and Yarbrough argued that his counsel's failure to rebut any of this evidence "fell below 'prevailing professional norms' as they are defined by the (2003) American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines")." 2008 U.S. App. LEXIS at *12. Yarbrough asserts that the ABA Guidelines "require that 'expert assistance should always be requested and provided' for the 'proper preparation of capital cases' (emphasis added), and which are not to be taken as 'aspirational' but as a minimum standard under the Sixth Amendment." Id.
The District Court rejected this argument and the 4th Circuit agreed that the "failure to comply with the ABA Guidelines regarding the requesting of funds for expert assistance does not establish counsel's performance as constitutionally deficient per se." Id. at *22.
The 4th Circuit analyzed the language of the ABA Guidelines and determined that the Guidelines give a "mixed message about whether they are aspirational or mandatory in every circumstance." Id. The court continues:
On the one hand they would impose on defense counsel a mandatory, nonaspirational, minimum requirement to request public funds and obtain expert assistance in the preparation of virtually every capital case, because everywhere that the Guidelines direct what counsel "should" do, they advise that the term "should" is to be construed as a mandatory term. See ABA Guidelines intro. (1989) ("'Should' is used throughout as a mandatory term and refers to activities which are minimum requirements"). In this manner, the ABA Guidelines appear to mandate that "[u]tilization of experts has become the rule, rather than the exception, in proper preparation of capital cases," id. 1.1 cmt., and "counsel should demand on behalf of the client all necessary experts for preparation of both phases of trial," id. 11.4.1 cmt. On the other hand, the Guidelines also seem to acknowledge that a defendant cannot routinely have experts, because to have them requires calling upon local jurisdictions "to authorize sufficient funds to enable counsel in capital cases to conduct a thorough investigation . . . and to procure the necessary expert witnesses and documentary evidence," id. 8.1 cmt., which suggests an aspirational nature to the Guidelines. The Guidelines observe that "funds available to appointed defense counsel are substantially below those available to the prosecution" and that "[t]his inequity is unconscionable." Id. In short, the ABA Guidelines say that defense counsel should -- now meaning only "should" -- try to use experts more routinely, but that this goal depends on government funding which, for now, does not allow this goal to be achieved routinely.
Id. at *22-23. The court concluded that the "ABA Guidelines provide noble standards for legal representation in capital cases and are intended to improve that representation, they nevertheless can only be considered as a part of the overall calculus of whether counsel's representation falls below an objective standard of reasonableness; they still serve only as "guides," Strickland, 466 U.S. at 688, not minimum constitutional standards." Id. at *26.

8. Saranchak v. Beard, 538 F. Supp. 2d 847 (M.D. Pa. Jan. 4, 2008).
Petitioner filed a habeas petition for ineffective assistance at trial. Petitioner argued that counsel's preparation and performance of the diminished capacity defense was inadequate because counsel provided only lay testimony as evidence of his diminished capacity during the penalty phase of trial. The court cited 1989 ABA Guideline 11.4.1 as the prevailing norm for counsel's preparation and performance of the diminished capacity defense. The court held that counsel's performance was deficient because; (1) after a court appointed psychiatrist evaluated petitioner and found him competent to stand trial, counsel took no further steps to discover evidence of petitioner's mental disorder or chronic alcohol abuse (2) counsel did not provide the psychiatrist with evidence of petitioner's diminished capacity before the guilt phase of trial (3) counsel did not introduce evidence from petitioner's school records, teachers, family members and probation officer detailing mental illness and alcohol abuse during the guilt phase of trial and (4) counsel's testimony did not indicate any strategic reason for failing to investigate or present evidence to support the diminished capacity defense. The court found that counsel's deficiency prejudiced petitioner and that counsel's errors fell outside the wide range of reasonable professional assistance. Petitioner's was granted habeas relief on his claim of ineffective counsel during the guilt phase of trial by failing to investigate, discover, and present evidence to support a diminished capacity defense.

9. Leavitt v. Arave, No. CV-93-24-S-BLW, 2007 U.S. Dist. LEXIS 72906 (D. Idaho Sept. 28. 2007).
Petitioner contended that his Sixth Amendment rights were violated during his trial when counsel failed to pursue an investigation of the mental condition of Petitioner, either to obtain further reports on organic brain damage or to obtain an independent psychological examination.
The Idaho District noted that although the United States Supreme Court has declined to adopt specific guidelines for adequate attorney conduct under the Sixth Amendment, it has looked to the ABA Guidelines for persuasive guidance in determining what was professionally reasonable at a particular time. Wiggins v. Smith, 539 U.S. 510, 524 (2003)(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984). According to the ABA Guidelines, a reasonably competent defense attorney in a capital case was expected to complete a thorough investigation of the defendant's background and social history in advance of the penalty phase, engaging in "efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduce by the prosecutor." See ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C) (February 1989) 2007 U.S. Dist. LEXIS at *32-33. This includes a duty to search for evidence that might suggest the defendant is mentally impaired, a fact that has long been considered to be mitigating. Summerlin v. Schiro, 427 F.3d 623, 630 (9th Cir. 2005).

The court held that Petitioner has established at least a reasonable probability that, but for counsel's unprofessional errors, a sentencer would conclude that he does not deserved to be executed. Because Petitioner has proven a Sixth Amendment violation, the court shall grant relief from the sentence of death.

10. Diaz v. Quarterman, 239 Fed. Appx. 886 (5th Cir. Jul. 3, 2007).
The Fifth Circuit Court of Appeals affirmed the district court's denial of habeas relief. While addressing the petitioner's ineffective assistance of counsel claim, however, the court noted that "prevailing professional norms" require a defendant's attorney to investigate multiple areas of inquiry. Citing to Wiggins the court stated:
In the context of the punishment phase of trial, the Supreme Court has indicated that prevailing professional norms require counsel to investigate thoroughly the defendant's background, including his "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (quoting ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES 11.4.1(C), at 93 (1989)).
239 Fed. Appx. at 889. The court found Diaz was not prejudiced in defense counsel's failure to present testimony of family members during the penalty phase, "absent clear and convincing evidence to the contrary." Id. at 890.

11. Stevens v. McBride, 489 F.3d 883 (7th Cir. Jun. 18, 2007).
The Seventh Circuit Court of Appeals affirmed the judgment of the district court in denying habeas relief as to the defendant's conviction, but vacated the judgment as it related to the death sentence and remanded the case with instructions to issue a conditional writ of habeas corpus. The court found that the failure to present certain mitigating evidence during the sentencing phase constituted ineffective assistance of counsel. In addition, the presentation of an expert witness whose testimony was damaging at trial and whom the defense counsel considered to be a "quack" at sentencing was also ineffective assistance.
The court noted that Strickland particularly referred to the "ABA Guidelines as the '[p]revailing norms of practice as reflected in American Bar Association standards' as 'guides to determining what is reasonable. . ." Id. at 895. The court also noted that Strickland "emphasized that a court's ultimate determination of counsel's effectiveness must be grounded in the specific circumstances of the case." Id.
The court found defense counsel failed to address "whether Stevens was suffering from an extreme emotional disturbance or was unable to appreciate the wrongfulness of his conduct at the time of the murder…" Id. at 896. The court stated, "The ABA Guidelines state that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989)." The court concluded that the "conduct of Stevens's lawyers at his capital sentencing proceedings fell below the constitutional minimum standard and that this was prejudicial to Stevens." Id. at 898.

12. Marshall v. Beard, No. 03-795, 2007 U.S. Dist. LEXIS 96885 (E.D. Pa. May 10, 2007).
Petitioner contested his capital sentence raising claims related to both the guilt and penalty phases of his trial. Petitioner argued that his trial attorney was inadequate because he did not properly establish the defense of diminished capacity. The court noted 1989 ABA Guideline 11.4.1.7 which explains that counsel "should secure the assistance of experts where it is necessary or appropriate for . . . preparation of the defense . . . and rebuttal of any portion of the prosecution's case at the guilt/innocence phase." The court found that the petitioner's counsel had fallen below an objective standard of reasonableness in preparing and presenting the defense of diminished capacity when measured by the ABA Guidelines. See Strickland, 466 U.S. at 688. The court held that counsel's preparation for trial was inadequate because he relied solely on a court-employed expert's brief testimony about the petitioner's competency to stand trial and failed to pursue and obtain a defense expert on the diminished capacity defense.
However, the court also found that the petitioner acted with deliberation and premeditation, and stated that even a fully supported diminished capacity defense would not have altered the outcome of the proceeding. Therefore, the petitioner's claim for relief was denied.

13. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. May 10, 2007).
The United States District Court for the Northern District of Georgia vacated the defendant's sentence and ordered a new sentencing hearing based on the ineffective assistance of counsel provided by the defendant's trial counsel. The court found that defense counsel was deficient in failing to investigate and present mitigating evidence of possible brain damage.
In citing the ABA Guidelines, the court noted the ineffective assistance of counsel standard set out in Strickland and cited to Guideline 11.4.1(c) (1989). That guideline provides that "investigation into possibly mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutors." 490 F.Supp.2d at 1326.

14. Anderson v. Sirmons, 476 F.3d 1131 (10th Cir. Feb. 21, 2007).
The Tenth Circuit Court of Appeals reversed the district court's denial of habeas relief as to the defendant's sentencing and was remanded to the district court with instructions to issue a writ of habeas corpus. The court found that defense counsel's failure to investigate or discover readily available mitigation evidence regarding the defendant's family history and mental health amounted to constitutionally deficient performance. In addition, the court also found that defense counsel's conduct prejudiced the proceedings, as it left the motive for the murders unanswered.
In citing to the ABA Guidelines, the court noted that investigation into mitigating evidence involves discovering "all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Anderson, 476 F.3d at 1142 (citing ABA Guideline 11.4.1(C)). The court declared that evidence relating to the defendant's mental health history and family life represented "just the kind of mitigation evidence trial counsel is obligated to investigate and develop as part of building an effective case in mitigation during the penalty phase of the trial." Id. at 1144.

15. Outten v. Kearney, 464 F.3d 401 (3d Cir. Sept. 28, 2006).
The Court of Appeals for the Third Circuit reversed and remanded the case to the district court with an order to grant a writ of habeas corpus as to the penalty phase of the trial. The court ordered the state court to conduct a new sentencing hearing, or in the alternative, to sentence the defendant to life imprisonment. The court found that the defendant's trial counsel failed to conduct a reasonable investigation into the defendant's background and failed to present appropriate mitigating evidence during the penalty phase. The lack of investigation rendered counsel ineffective. The court declared that had counsel investigated and discovered mitigating evidence, at least one juror would have voted differently.
In citing the (1989) ABA Guidelines, the court noted that the ABA "applied the clear requirements for investigation set forth in the earlier Standards of death penalty cases and imposed . . . similarly forceful directives." Outten, 464 F.3d at 417 (quoting Rompilla v. Beard, 545 U.S. at 376 n.7). The court further noted that the prevailing professional norms for capital cases required the trial counsel "to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guideline 11.4.1.

16. Shelton v. Carroll, 464 F.3d 423 (3d Cir. Sept. 28, 2006). †
Shelton appealed to the Third Circuit seeking federal habeas corpus relief. Shelton argued that his counsel was ineffective for failing to present an adequate mitigation investigation into his background and childhood. The Court noted 11.4.1 of the 1989 Guidelines:
A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.
. . . .
C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.
and the commentary to current Guideline 10.7:
This Guideline is based on portions of Guideline 11.4.1 of the original edition. Changes in this Guideline [not applicable to trial counsel's performance in this case] clarify that counsel should conduct thorough and independent investigations relating to both guilt and penalty issues regardless of overwhelming evidence of guilt, client statements concerning the facts of the alleged crime, or client statements that counsel should refrain from collecting or presenting evidence bearing upon guilt or penalty.
American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 10.7 (2003).
Ultimately, however, the Court decided that "it was Shelton, not his attorney, who decided to limit the scope of the investigation and the presentation of mitigating evidence to the jury" and denied Shelton's' claim for habeas relief on that basis.

17. Hedrick v. True, 443 F.3d 342 (4th Cir. Mar. 31, 2006).
In the course of assessing Hedrick's claim of ineffective assistance of counsel due to inadequate mitigation investigation, the Fourth Circuit majority noted that "investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' " Wiggins v. Smith, 539 U.S. 510, 524 (2003) (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), at 93 (1989) [hereinafter ABA Guidelines] ). Hedrick, 443 F.3d at 347. The Fourth Circuit concluded that even though the trial counsel did not uncover and present all evidence of Hedrick's family history of drug and alcohol abuse, incompetent parenting, and his mother's criminal record (welfare fraud), this did not arise to the level of ineffective assistance of counsel.

18. Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. Mar. 13, 2006) (Clay, J., majority/Merritt, J., dissenting). †
The Sixth Circuit affirmed Lundgren's conviction and sentence, stating that defense's failure to present an insanity plea did not constitute ineffective assistance of counsel. In this case, both the majority and the dissent cited the ABA Guidelines.
The majority cites to Wiggins and the ABA Guidelines in the context of discussing the reasonableness of counsel's decision: "More recent ABA Guidelines, which the United States Supreme Court has recognized as reflecting prevailing professional norms, emphasize that "investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1(C), p. 93 (1989) and adding emphasis)." 440 F. 3d at 771.
The lengthy dissent cites both the 1989 and the 2003 ABA Guidelines in finding that the failure of Lundgren's counsel to present the insanity defense was "manifestly ineffective." Judge Gilbert Merritt's dissent quotes Hamblin v. Mitchell, 354 F. 3d 482, 487 (6th Cir. 2003), for the principle that the 2003 Guidelines "merely represent a codification of longstanding, common-sense principles of representation understood by diligent, competent counsel in death penalty cases." 440 F. 3d at 797. The dissent in Lundgren also went on to cite the Commentary to the 1989 and 2003 Guidelines: "The 2003 ABA Guidelines similarly counsel attorneys to 'consider all legal claims potentially available,' to 'thoroughly investigate the basis for each potential claim,' and to 'be significantly more vigilant about litigating all potential issues at all levels in a capital case than in any other case." ABA Guidelines 10.8(1) (2), p. 86 (2003); id. at 10.8, commentary, p. 89." 440 F. 3d at 797.

19. Martinez v. Dretke, No. Civ.A. G-02-718, 2006 U.S. Dist. LEXIS 25192 (S.D. Tex. Feb. 7, 2006), rev'd sub nom, Martinez v. Quarterman, 481 F.3d 249 (5th Cir. 2007).
The District Court granted Martinez's petition for writ of habeas corpus based on the ineffective assistance of counsel provided to Martinez. Martinez's counsel failed to properly investigate his client's epilepsy, which could have been used as mitigation evidence. While defense counsel claimed that he believed a death sentence in the case was a "virtual guarantee" and that is why no mitigation investigation was undertaken, the court pointed to the commentary in 1989 ABA Guideline 11.4.1 which states that counsel "may not sit idly by, thinking that investigation would be futile." Id. at 3. Relying on the 1989 Guidelines and the Wiggins decision, the court noted that while the Guidelines are not binding on a federal court's decision, the Supreme Court has clearly indicated that they should be taken into consideration. In light of what the ABA Guidelines dictate about the duty to fully investigate a client's case and the Wiggins decision, the district court held that Martinez's attorney had not fully investigated potential mitigation evidence and, in so doing, had rendered ineffective counsel. Id.
The Fifth Circuit Court of Appeals reversed, and stated that defense counsel made reasonable professional judgment to limit their investigation into the defendant's mitigating evidence at the punishment phase; and also that the defendant could not show that this strategic decision by defense counsel had prejudiced him, but the court did not claim that any ABA Guidelines were improper. See Martinez v. Quarterman, 481 F.3d 249 (5th Cir. 2007)

20. Mason v. Mitchell, 396 F. Supp. 2d 837 (N.D. Ga. Oct. 31, 2005). *
The District Court, in denying Mason's petition for habeas corpus relief, held that Mason's counsel did not provide ineffective assistance in conducting the mitigation investigation for the sentencing phase of the trial. In reaching this determination, the court looked to the 1989 ABA Guidelines and quoted Guideline 11.4.1, as well as the commentary to the Guideline. 396 F.Supp.2d at 852. The court used Guideline 11.4.1 to detail what investigation Mason's attorney should have undertaken in regard to mitigation evidence, and then turned to Guideline 11.8.3 to analyze what steps the counsel needed to take in preparation for the mitigation presentation. Id. As noted by the court, the ABA Guidelines state that counsel should discuss the sentencing phase with their client and that counsel must be proactive in their mitigation investigation and presentation. Id. at 852-53. After quoting the Guidelines, the court held that Mason's counsel undertook sufficient efforts to investigate and procure mitigation evidence and found that the investigation was not unreasonable. Id. at 854. In reaching their ultimate decision the court contrasted the facts in Mason's case from those present in Wiggins. Id. Finally, the court found that defense counsel's overall mitigation strategy was sufficient, based on ABA Guideline 11.8.6 (1989). Id. at 855. The court found that counsel performed a thorough investigation of Mason's background and that he sought advice from other qualified attorneys, who had experience in trying death penalty cases. Id. The court noted that obtaining advice from other counsel regarding mitigation strategy comports with ABA Guidelines. Id.

21. Mitts v. Bagley, No. 1:03 cv 1131, 2005 U.S. Dist. LEXIS 44018 (N.D. Ohio Sept. 29, 2005).
In denying Mitts' petition for writ of habeas corpus, the District Court ruled that Mitts' counsel did not render ineffective assistance in his investigation of potential mitigation evidence. In reaching this decision, the court cited the Wiggins decision and quoted ABA Guideline 11.4.1.(C) (1989). 2005 WL 2416929 at *83. After quoting the Guideline, and setting out the facts of the counsel's performance in Wiggins, the court in this case found that Mitts' counsel sufficiently investigated potential mitigation evidence and found that the counsel did not render ineffective assistance. Id.

22. Clark v. Mitchell, 425 F.3d 270 (6th Cir. Oct. 4, 2005) (Rogers, J., majority/Merritt, J., dissenting). †
The Sixth Circuit affirmed Clark's conviction and sentence, holding that the defense failure to call a neuroscientist or pharmacologist to present mitigating evidence during sentencing did not constitute ineffective assistance of counsel. Clark argued that such testimony would have established the existence of organic brain damage. Defense counsel, however, relied upon the report of the retained psychologist, which did not indicate that such brain damage was a potential factor and did not recommend any further medical testing. The Court held that defense counsel was not ineffective for relying on the opinion of the expert psychologist. Id. at 286. The opinion made note of the fact that by employing a defense psychologist to conduct an independent evaluation, defense counsel was acting in conformity with 2003 ABA Guideline 4.1. Id. at n. 5.
In dissent, Circuit Judge Merritt argued that the necessity of further medical testing was indicated in the psychologist's report, in language simply ignored by the majority. The opinion cites to the 1989 ABA Guideline 11.4.1 (C) for the proposition that the defense must not rely on the counsel's own observations and beliefs regarding the defendant's symptoms but rather investigate the defendant's medical and educational history. The court then notes 2003 ABA Guideline 10.7 which further describes the necessity of a mental health investigation. Id. at 291, n.1. Merritt goes on to argue that the majority simply flouts the holdings of Wiggins v. Smith, 539 U.S. 510 (2003) and Rompilla v. Beard, 545 U.S. 347 (2005), which recognize the ABA Guidelines as the normative standards for defense counsel; the opinion emphasizes the duty as articulated in the 1989 edition of the Guidelines to provide for neurological testing in appropriate circumstances. Id. at 293-94.

23. Moore v. Parker, 425 F.3d 250 (6th Cir. Oct. 4, 2005) (Martin, J., dissenting).
The Sixth Circuit affirmed a denial of post-conviction relief for ineffective assistance of counsel. In dissent, Judge Martin argued that at the sentencing phase of trial defense counsel failed to perform according to prevailing professional standards, as reflected by the duties of counsel articulated in the (1989) ABA Guidelines. Citing to the reference of the 1989 ABA Guideline 11.4.1 in Wiggins v. Smith, 539 U.S. 510 (2003), the dissent powerfully emphasizes that defense counsel has a duty to thoroughly investigate the background of the defendant, including medical history, family and social history, and prior correctional experience; this duty was breached when counsel decided to more narrowly limit the scope of the investigation into mitigating circumstances. "The Supreme Court has made clear that the 'ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the 'prevailing professional norms' in ineffective assistance cases.' Hamblin v. Mitchell, 354 F.3d 482, 486 (6th Cir.2004)(quoting Wiggins, 539 U.S. at 524.)." Id. at 261.

24. Thomas v. Beard, 388 F. Supp. 2d 489 (E.D. Pa. Aug. 19, 2005).
The District Court granted Thomas's petition for writ of habeas corpus based on ineffective assistance of counsel. The court found that Thomas' trial counsel failed to investigate and/or present mitigating evidence during the sentencing phase of the murder trial and that this failure was prejudicial to Thomas. In making this determination, the court cited to the Wiggins decision and quoted ABA Guideline 11.4.1(C) (1989). Thomas, 388 F.Supp.2d at 505. Specifically, the court quoted language from Wiggins which held that a mitigation investigation "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Id. The court found Thomas's counsel to be ineffective based on the ABA Guidelines even though Thomas may have directed his attorney not to present the mitigating evidence. Id. at 508.

25. Harries v. Bell, 417 F.3d 631 (6th Cir. Jul. 28, 2005).
Judge Cook wrote for the Sixth Circuit affirming a finding of ineffective assistance of counsel for failure to investigate and present any mitigating evidence at the penalty phase of Randy Harries' Tennessee murder trial. Citing to Wiggins as an example, the opinion cites the 1989 ABA Guideline 11.4.1 and the necessity of counsel's investigation of potentially mitigating evidence. The court goes on to aver that "notwithstanding the deference Strickland requires, neither this court nor the Supreme Court has hesitated to deem deficient counsel's failure to fulfill this obligation." Id. at 637. In discussing whether the failure to investigate mitigating evidence could be seen as reasonable, the court notes that in 1973 the Tennessee Supreme Court adopted the American Bar Association Standards for the Administration of Criminal Justice as the "standard for defense counsel," as well as noting the more recent adoption of the ABA Guidelines (1989) by the Supreme Court in Wiggins. Id. at 638. The Court refers to this adoption as "binding precedent." Id.

26. United States v. Karake, 370 F. Supp. 2d 275 (D.D.C. May 19, 2005). †
The District Court, in deciding what evidence a defendant is entitled to in discovery regarding the aggravating factors enumerated in a death penalty notice, utilized the ABA Guidelines as guiding principles in determining how broad in scope the discovery should be. Recognizing that the government would use the aggravating factors in the potential penalty phase of the trial, the court cited the ABA Guidelines governing the investigatory duties of counsel with respect to the penalty phase of a capital trial. Karake, 370 F.Supp2d at 278. Citing Guideline 11.4.1(C)(1989), the court stated that counsel must "discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Id. Additionally, the court noted Guideline 10.11(A) (2003), which states that counsel must "seek information that … rebuts the prosecution's case in aggravation" and Guideline 10.11(H)(2003) which requires counsel to "determine at the earliest possible time what aggravating factors the prosecution will rely upon in seeking the death penalty and what evidence will be offered in support thereof." Id. The court noted that these Guidelines are "fundamental principles" and looking to them would "assist the government in its assessment of whether and how to narrow the scope of any amended death penalty notice." While the court did not formally determine what discovery would be granted regarding the aggravating factors, it did set out what principles should be followed by the government regarding discovery of the aggravating factors.

27. Woodard v. Mitchell, No. 1:98CV1403, 2005 U.S. Dist. LEXIS 22109 (N.D. Ohio Sept. 30, 2005). *
The U.S. District Court for the Northern District of Ohio denied the defendant's request for habeas relief as to his conviction, but did grant habeas relief as to the sentencing. The court found that defense counsel was ineffective for failing to investigate and prepare for the mitigation phase of the trial. Specifically, the court found that defense counsel failed to conduct an adequate investigation into the defendant's family and social history. In addition, defense counsel failed to discuss his strategy with the client and did not inform him as to the nature of the sentencing hearing, but rather advised him to plead for his life. The court found that defense counsel's conduct was prejudicial to the outcome of the trial.
In citing to the 1989 ABA Guidelines 11.4.1, 11.8.3, and 11.8.6, the court noted that defense counsel should begin investigating mitigating evidence "immediately upon counsel's entry into the case and should be pursued expeditiously." Woodard, 2005 U.S. Dist LEXIS at *30. The court also noted the importance of defense counsel discussing the sentencing phase with the client before it occurs, and it emphasized the different topic areas, including family and social history that should be addressed during the sentencing phase of the proceedings. Id. at *31.

28. Allen v. Woodford, 395 F.3d 979 (9th Cir. Jan. 24, 2005), amending Allen v. Woodford, 366 F.3d 823 (9th Cir. May 6, 2004).
The Ninth Circuit affirmed Allen's conviction and sentence. Although the court found that trial counsel's performance had been deficient during sentencing, it did not find that his deficient performance prejudiced the outcome of the trial and therefore denied relief.
Regarding the fact that second counsel was not sought, the court recognized that "the use of second counsel in defending capital cases is now recommended by the American Bar Association," but found that such a standard was not the prevailing norm at the time of Allen's trial in 1982. Allen, 395 F.3d at 998 (internal citation omitted).
The court looked to Wiggins when it assessed counsel's failure to adequately investigate and present mitigation evidence and cited 1989 ABA Guideline 11.4.1 (C) providing that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Id. at 1001. The court found that counsel did not begin to prepare mitigation evidence until a week before trial, and that his performance failed to meet the prevailing norms for reasonable performance at the time of trial. For these reasons, the court held that "counsel's untimely, hasty, and incomplete investigation of potential mitigation evidence for the penalty phase fell outside the 'range of reasonable professional assistance.'" Id. at 1001 (citing Strickland, 466 U.S. 668, 689 (1984)).

29. Kandies v. Polk, 385 F.3d 457 (4th Cir. Sept. 24, 2004) (Gregory, J., majority/Michael, J., concurring).
In the majority opinion, Judge Gregory stated that "[t]he Supreme Court, while using standards such as those set forth by the American Bar Association as guides for what is reasonable, has repeatedly declined to adopt a rigid checklist of things that defense counsel must do in all cases because 'no particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.'" Id. at 470 (quoting Strickland v. Washington, 466 U.S. 668 at 688-89).
In his concurring opinion, Judge Michael analyzed Mr. Kandies' counsel's performance by looking to the ABA Guidelines. Judge Michael emphasized that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances." Id. at 479 (quoting Strickland, 466 U.S. at 688). Judge Michael further noted that "courts must measure 'reasonableness under prevailing professional norms.' The American Bar Association's standards describing the duties of counsel are 'guides to determining what is reasonable.' Here, the ABA's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases offer specific guidance for client interviews in death penalty cases. 'As soon as is appropriate, counsel should,' among other things, 'collect information relevant to the sentencing phase of trial including, but not limited to: . . . family and social history (including physical, sexual or emotional abuse).' ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(D)(2) (1989) (emphasis added). The state court and my colleagues overlook this crucial standard." Kandies, 385 F.3d at 479.
Pointing out that defense counsel in this case failed to investigate evidence of childhood sexual abuse as a mitigating factor, Judge Michael stated that "[c]ounsel's utter failure to inquire into an area specifically mentioned in the ABA Guidelines is a good indicator that his performance was constitutionally deficient." Id. (quoting Strickland, 466 U.S. at 688). Judge Michael further stated that "the ABA guidelines and common sense dictate that it is counsel's responsibility to inquire into specific areas that might prove useful in mitigation. Counsel cannot expect the accused or his family and friends to know what sorts of facts in the accused's background might be relevant to sentencing. Moreover, it is unrealistic to assume that facts going to mitigation - facts that are often painful to discuss because they may involve abuse or emotional trauma -- will be freely volunteered in open-ended interviews." Id. at 480.
Cert. granted, 545 U.S. 1137 (2005) (Judgment vacated and remanded to the Fourth Circuit Court of Appeals)

30. Lovitt v. True, 330 F. Supp. 2d 603 (E.D. Va. Aug. 6, 2004). *
In response to Mr. Lovitt's argument that his counsel's background investigation fell short of what is required by both the prevailing professional norms and the standards established by the American Bar Association, the Eastern District of Virginia acknowledged that the ABA standards "are widely accepted by federal courts." Id. at 643. The court went on to state that "[t]he ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigation evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Id. (quoting ABA Guidelines 11.4.1(c) (1989). The Eastern District recognized that "[f]ederal courts have frequently relied upon the ABA standards as 'guides to determining what is reasonable' and that "[t]he ABA standards suggest that the scope of counsel's inquiry should include the defendant's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences. ABA Guidelines, 11.8.6, at 113." Lovitt, 330 F. Supp. 2d at 643.
The Court held, however, that "[p]etitioner has failed to persuade this Court that his counsel's decision not to perform additional mitigation investigation constituted anything less than sound trial strategy." Id. at 644-645.

31. Rompilla v. Horn, 355 F.3d 233 (3rd Cir. Jan. 13, 2004) (Alito, J., majority/Sloviter, J., dissenting).
A three-judge panel of the Third Circuit overturned the district court's decision granting Rompilla a new penalty phase trial, which had been based in part on a finding that his trial counsel was ineffective during the sentencing phase. At issue was counsel's failure to adequately investigate and present evidence regarding Rompilla's family history and educational background, as well as his mental competence.
The majority insisted that the Guidelines are "only guides," and that counsel's failure to meet the standards set forth there does not necessarily indicate ineffective assistance under the standards articulated in Strickland. Id. at 259 n.14.
But in a strongly worded dissent, Judge Sloviter argued that Wiggins and Williams were both decided under the Strickland standard, and, therefore "these two later cases demonstrate how Strickland should be applied." Id. at 275. She noted that "[i]n Wiggins, the Supreme Court quoted from the American Bar Association's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989). . ." regarding the investigation of mitigating evidence, and found that counsel's performance fell short of its "well-defined norms." Id. at 283 (citation omitted). Judge Sloviter considered the majority's "attempt to reconcile its conclusion that Rompilla's counsel provided effective assistance of counsel with the conclusion in Wiggins . . . nothing short of astonishing." Id.

359 F.3d 310 (3rd Cir. 2004). Petition for rehearing denied. However, Judge Nygaard filed an opinion, joined by Judges Sloviter and McKee, agreeing with Judge Sloviter's earlier dissent. Judge Nygaard wrote:
[t]he issue before us implicates the most fundamental and important of all rights - to be represented by effective counsel. All other rights will turn to ashes in the hands of a person who is without effective, professional and zealous representation when accused of a crime (emphasis added). Id. at 310.
After giving examples of other capital cases in which "the range of what is deemed 'effective' (by the courts) has widened to …an astonishing spectrum of shabby lawyering." Id. at 311. He continued:
These disturbing examples of inept lawyering in capital cases have propelled professional organizations to act. The American Bar Association has promulgated "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." These Guidelines upgrade the minimum standard from "quality" legal representation to "high quality" legal representation. See American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REV. 913, 939 (2003) (outlining the 2003 Revisions to the Guidelines). Included in those guidelines is the requirement that the capital defendant should "receive the assistance of all expert, investigative, and other ancillary professional services ... appropriate ... at all stages of the proceedings." Here, in my view, counsel's failure to conduct even the most rudimentary investigation into Rompilla's background falls short of being "effective" representation. I believe this level of representation violates not only the standards set out by the American Bar Association, but by accepting it as adequately effective, we continue to degrade the standard set out in Strickland, and ignore the sentiments expressed by Justice Sutherland in Powell v. Alabama.
Id. at 311-12 (citation omitted).

32. Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. Dec. 29, 2003). * †
In this capital case from Ohio, the Sixth Circuit granted a new penalty phase trial as the result of ineffective assistance of counsel. Defense counsel made no investigation into Hamblin's severely deprived and violent childhood or his psychological condition, and did nothing in preparation for the sentencing phase.
The majority opinion opened with an analysis of the proper standard against which to measure counsel's performance. It looked to the Supreme Court's decision in Wiggins, noting that "[i]n its discussion of the 1989 ABA Guidelines for counsel in capital cases, the Court held that the Guidelines set the applicable standards of performance for counsel . . . . Thus, the Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the 'prevailing professional norms' in ineffective assistance cases" (emphasis added). Id. at 486 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). The court then cited 1989 ABA Guidelines 11.4.1 and 11.8.6 describing counsel's duty to investigate and present mitigating evidence at both the guilt and sentencing phases of trial.
The court went on to review several of its own prior decisions from the 1990s, concluding that "[o]ur analysis of counsel's obligations matches the standards of the 1989 Guidelines quoted by the Supreme Court in Wiggins." Hamblin, 354 F.3d at 486. Although Hamblin's trial took place before publication of the 1989 Guidelines, the court explained that they apply nonetheless:
[T]he standards merely represent a codification of longstanding, common sense principles of representation understood by diligent, competent counsel in death penalty cases. The ABA standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of longstanding norms referred to in Strickland in 1984 as "prevailing professional norms" as "guided" by "American Bar Association standards and the like." We see no reason to apply to counsel's performance here standards different from those adopted by the Supreme Court in Wiggins and consistently followed by our court in the past. The Court in Wiggins clearly holds . . . that it is not making "new law" on the effective assistance of counsel . . . ."
Id. at 487 (internal citations omitted). The court also noted that the "[n]ew ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins or our court's previous cases concerning counsel's obligation to investigate mitigation circumstances." Id. at 487. The court then quoted extensively from the Guidelines regarding the duty to investigate mitigating evidence.
In concluding its discussion of the appropriate standards to use in evaluating counsel's performance, the Sixth Circuit explained that "[w]e cite the 1989 and 2003 ABA Guidelines simply because they are the clearest exposition of counsel's duties at the penalty phase of a capital case, duties that were recognized by this court as applicable [in] 1982." Id. at 488.
The court held that "[t]he record reveals that defense counsel's representation of Hamblin at the penalty stage of the case fell far short of prevailing standards of effective assistance of counsel as outlined in Wiggins, our previous cases and the 1989 and 2003 ABA Guidelines." Id. at 489. In its analysis, the court quoted from 2003 ABA Guideline 10.7, explaining that "ABA and judicial standards do not permit the courts to excuse counsel's failure to investigate or prepare because the defendant so requested." Id. at 492.

33. Longworth v. Ozmint, 302 F. Supp. 2d 535 (D.S.C. Oct. 31, 2003).
The District Court in South Carolina found that failure to address the petitioner's procedurally defaulted claim of ineffective assistance of counsel would not result in a fundamental miscarriage of justice. Distinguishing the facts of this case from the petitioner's case in Wiggins v. Smith, the District Court emphasized that "[t]he Supreme Court noted in Wiggins that counsel 'abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources.' 123 S.Ct. at 2537 (citing the (1989) ABA Guidelines [11.4.1] for capital defense work)." Id. at 569 n.23. In Longworth, the District Court found that "by contrast, the evidence demonstrates that an investigation was made into the Petitioner's social, family, educational, medical, and employment history, through family members, medical records and experts, and that this information was known to counsel, but that counsel made the strategic decision not to use it because it was 'unremarkable'." Id.

34. Davis v. Woodford, 384 F.3d 628 (9th Cir. Jun. 24, 2003) (Fletcher, J., dissenting).
In Davis, Judge Betty Binns Fletcher referred to the 1989 ABA Guideline 11.4.1 in her dissent, finding that "ineffective assistance of counsel probably affected the outcome" of the case. Id. at 655. Judge Fletcher noted that Davis's defense attorneys failed in their duty to present all available, non-cumulative mitigating evidence: "In Wiggins, the Court noted that the ABA Guidelines for capital defense work provide that effective assistance 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Id. at 661-62 (citing Wiggins v. Smith, 539 U.S. 510, 524 (2003) emphasis in the original). The dissent concluded that the petitioner should be granted an evidentiary hearing on several issues, including his competence to stand trial during the penalty phase and the incompetence of counsel based on failure to call additional mitigation witnesses.

35. Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. Oct. 14, 1994) (Ebel, J., dissenting).
The Tenth Circuit affirmed the Eastern District of Oklahoma's denial of Brecheen's petition for writ of habeas corpus. Although Brecheen's trial counsel failed to present certain mitigating evidence at the penalty phase, the Tenth Circuit found this did not constitute ineffective representation.
Judge Ebel wrote in a dissenting opinion that he did not agree with the majority's conclusion that Brecheen had failed to establish that he had ineffective trial counsel during the sentencing phase. Judge Ebel wrote that, "The sentencing phase of a capital case is a vitally important proceeding and it requires careful preparation, advanced consultation with the client, and vigorous advocacy. It is not a stepchild to the guilt phase of the trial, but itself deserves to share center stage with the guilt phase." Brecheen, 41 F.3d at 1370. The dissent continued to explain the importance of mitigating evidence in the sentencing phase of a trial and cited ABA Guidelines 11.4.1(A) & (C) (1989). Id.

36. Dunlap v. People, 173 P.3d 1054 (Colo. May 14, 2007). *
Dunlap was sentenced to death for the murder of four Chuck E. Cheese employees during the commission of a robbery.
During the course of the trial Dunlap was transferred to Colorado Mental Health Institute at Pueblo (CMHIP) to undergo a mental health competency examination. Id. at 1064. Trial counsel appointed Dr. Fairbairn to render an independent psychiatric evaluation of Dunlap, but to counsel's dismay, Dr Fairbairn's opinion if admitted at trial, would have ultimately damaged Dunlap's defense. Id. "Dr. Fairbairn's eventual opinion was that 50 percent of the time Dunlap was normal, 40 percent of the time he was malingering symptoms, and 10 to 20 percent of the time he suffered from some sort of psychosis. Dr. Fairbairn did not diagnose a major mental illness." Id. Defense counsel filed a motion to exclude the evidence generated at CMHIP and the trial court ruled that the state could not use the evidence unless the defense "opened the door by presenting mental health evidence." 173 P.3d at 1064.
Citing to the 1989 version of the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Sections 11.4.1 and 11.8.3, the Colorado Supreme Court stated, "Trial counsel in a death penalty case has the duty to investigate potential sources of mitigation evidence for the penalty phase of the trial. Strickland, 466 U.S. at 690-91." Id. at 1065. However, in this case the court agreed that presenting mental health mitigation evidence would have been "risky at best given the substantial amount of damaging evidence" generated from CMHIP. Id. at 1067. The court stated, "We decline to hold that in this case the decision to avoid such risky evidence, and the consequent decision to cut short the mental health investigation, falls below an objective standard of reasonableness." Id.

37. Davis v. State, 2006 Ala. Crim. App. LEXIS 31 (Ala. Crim. App. Mar. 3, 2006), abrogated by Ex parte Clemons, No. 1041915, 2007 WL 1300722 (Ala. May 04, 2007).
In denying petitioner's request for habeas corpus relief, the Court of Criminal Appeals ruled that Davis' claim of ineffective assistance of counsel was procedurally barred. 2006 WL 510508 at *10. The court noted, however, that had the claim not been procedurally barred the court would be "compelled to grant relief and order a new sentencing hearing." Id. The court stated that "Davis's most troubling claim is that counsel failed to investigate and present mitigation evidence at the penalty phase. The evidence Davis alleges should have been discovered and presented is powerful." Id. at *7. The court concluded that counsel "failed to conduct the type of reasonable investigation sanctioned by the ABA." Id. at *10.
Citing ABA Guideline 11.4.1(C) (1989), the court noted that "The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Id. at 9. According to the court, petitioner's counsel "failed to conduct the type of investigation sanctioned by the Guidelines developed by the American Bar Association." Id. Additionally, the court found that defendant's counsel did nothing to investigate the prior offense that the State relied on to prove the aggravating circumstance that Davis had previously been convicted of a crime of violence. Id. As noted by the court, the United States Supreme Court ruled in Rompilla v. Beard, 545 U.S. 374, that counsel's performance was ineffective at the penalty phase because of a failure to investigate a prior felony that the State relied on to establish an aggravating circumstance. Id. The Davis court stated that the Rompilla decision, which determined that undiscovered mitigating evidence "might well have influenced the jury's appraisal of culpability," was applicable to Davis' case. Id.

38. Commonwealth v. Hall, 872 A.2d 1177, (Pa. Apr. 29, 2005) (Saylor, J., dissenting).
Dissenting from a denial of post-conviction relief for ineffective assistance of counsel in the Supreme Court of Pennsylvania, Justice Saylor emphasized the duty of counsel to investigate "relevant mental-health and life-history aspects of mitigation," criticizing the majority for failing to address the question of whether counsel ever in fact did so. Id. at 1193 (citing Wiggins v. Smith, 539 U.S. 510, 525-26 (2003)). The dissent quotes a reference to the 1989 ABA Guideline 11.4.1 (C) used in Wiggins the counsel must "discover all reasonably available mitigating evidence." Id. at 1194 n.3 (citation omitted).
39. Harris v. State, 947 So. 2d 1079 (Ala. Crim. App. 2004), rev'd on other grounds, Ex Parte Jenkins, 972 So. 2d 159 (Ala. Apr. 8, 2005). *
The Court of Criminal Appeals of Alabama found that Harris's trial counsel (who had previously never represented a defendant in a capital case) was ineffective during the penalty phase of the trial. Trial counsel did not offer evidence of the abuse Ms. Harris suffered in her three marriages, including at the hand of the man she was convicted of killing in this case. The court cited to Wiggins v. Smith, 539 U.S. 510 (2003), in its analysis of counsel's effectiveness and noted that "any reasonably competent attorney would have realized that pursuing these leads [the available mitigating evidence about Ms. Harris' troubled past] was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner's background." 947 So.2d at 1128.
In finding counsel's performance deficient, the court stated that "Harris has affirmatively shown . . . that there was a wealth of mitigating evidence readily available to counsel that counsel should have investigated before it can be said that counsel's strategy for the penalty phase was a reasonable strategic choice. In other words, counsel made their decision while uninformed as to 'the overall character' of potential witnesses testimony." Id. at 1129.
In its discussion of the ABA Guidelines, the court noted that "[a]s the United States Supreme Court explained in Wiggins, the value of counsel's 'strategic' decision depends on 'the adequacy of the investigations supporting [that] judgment.' Id. at 1127. The court then quoted from the Wiggins opinion's language on the ABA Guidelines.
Counsel's conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)--standards to which we long have referred as 'guides to determining what is reasonable.' (Citations omitted). The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences) (emphasis added); 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 ('The lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing ... Investigation is essential to fulfillment of these functions').
Id. (quoting Wiggins, 539 U.S. at 524-25).

40. Presley v. State, 978 So. 2d 63 (Feb. 25, 2005).
The Court of Criminal Appeals of Alabama reversed the summary dismissal of Presley's appeal for relief from his capital murder conviction and sentence of death. The court held that due process was violated when the lower circuit court failed to serve petitioner's counsel with a copy of orders filed in the case and subsequently summarily dismissed the case.
The Court of Criminal Appeals noted that another reason for its decision was that Presley raised claims of ineffective assistance of counsel at the penalty phase-claims that required further investigation rather than a summary dismissal. Presley alleged that trial counsel conducted no investigation into his history and upbringing, and had such investigation been done, counsel would have discovered a troubled background, including sexual and physical abuse, drug and alcohol abuse, and extreme poverty. The court further noted that the trial record "reflect[ed] that counsel presented no evidence at the sentencing hearing and that he argued at closing that only one mitigating circumstance applied-that Presley was 16 years old at the time of the crime." Id. at *19. The court cited Wiggins v. Smith, 539 U.S. 510 (2003), for its standard on deficient performance based on counsel's failure to investigate and present evidence of Wiggins' background and difficult life history:
The [Supreme] Court noted that it had previously referred to the standards for capital defense work articulated by the American Bar Association (ABA)-standards to which we have long referred as guides to determining what is reasonable. Noting that the ABA Guidelines provide that counsel should attempt to discover 'all reasonably available mitigating evidence,' the [Supreme] Court found that counsel's review of only social services records and the presentence investigation report and the failure to pursue additional information was unreasonable.
Presley, 2005 Ala. Crim. App. LEXIS 52 at *21, citing Wiggins v. Smith, 539 U.S. at 524 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added in Wiggins ).

41. Commonwealth v. Williams, 863 A.2d 505 (Pa. Dec. 22, 2004) (Saylor, J., dissenting).†
The Supreme Court of Pennsylvania examined a number of claims for post-conviction relief presented by Williams, among them ineffective assistance of counsel, prosecutorial misconduct, and various due process violations. The Court held that none of the claims merited relief.
Justice Saylor dissented, arguing that Williams had established ineffective assistance of counsel at the penalty phase, primarily for failing to develop adequate mitigating evidence. Citing a reference to the 1989 ABA Guideline 11.4.1 (C) in Wiggins v. Smith, 539 U.S. 510 (2003), the opinion recognized defense counsel's "obligation to 'discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Williams, 863 A.2d at 527 (citation omitted). Justice Saylor drew upon substantial support from the 2003 ABA Guidelines throughout his opinion, commenting that "[I]n my view, the drafters' claim that the Guidelines "embody the current consensus about what is required to provide effective defense representation in capital cases" is not an exaggerated one. Id. at 527 n.6 (citation omitted). In particular the Saylor refers to 2003 ABA Guidelines 1.1, 4.1, 10.5, 10.7(A)(2), and 10.11.
The dissent pointed to a number of instances in which the conduct of defense counsel fell short of professional standards. Justice Saylor utilized 2003 ABA Guideline 4.1 in arguing that counsel was irresponsible in scheduling his first meeting with the defendant only one week before trial, id. at 528 n.7, that "competent counsel would have reviewed records from Appellant's other criminal proceedings," id. at 528, that a previous psychotic episode merited professional evaluation, id. at 528 n.8, and that counsel was unjustified in relying on his own opinion of the defendant's psychological state, id. at 528 n.9. Then, Saylor used 2003 ABA Guidelines 10.5 and 10.7(A)(2) to rebut counsel's suggestion that the defendant's adamant commitment to fighting the validity of his conviction excused a lack of penalty phase preparation. Id. at 531 n.17, n.19.
The dissent criticized the majority for too lightly disregarding "the potency of life-history and mental-health mitigation in terms of capital sentencing," claiming that such an approach is contrary to Supreme Court precedent and the ABA Guidelines. Williams, 863 A.2d at 533 (citation omitted). Justice Saylor explained his perspective on the role of mitigating evidence in the sentence process, quoting 2003 ABA Guideline 10.11: "None of this evidence should be offered as a counterweight to the gravity of the crime, but rather to show that the person who committed the crime is a flawed but real individual rather than a generic evildoer[.]" Id. at 534, n.22 (citation omitted). Indeed, psychological evidence of the type at issue here would "provide some sort of explanation for Simmons's abhorrent behavior." Id. at 543, n.23 (relying on 2003 ABA Guideline 10.11 to support this contention).
Justice Nigro filed a separate dissent, agreeing with Justice Saylor that the defendant received ineffective assistance of counsel in the penalty phase. Williams, 863 A.2d at 524.

42. Franks v. State, 599 S.E.2d 134 (Jun. 8, 2004).
The Supreme Court of Georgia affirmed Franks' conviction and sentence, finding no reversible error in the trial court's decision. The court addressed Mr. Frank's claim that trial counsel's mitigation investigation was inadequate by reviewing Wiggins v. Smith, 539 U.S. 510 (2003): "In Wiggins v. Smith, the United States Supreme Court measured trial counsel's mitigation investigation against the 1989 American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases [11.4.1]. The Court described these Guidelines as 'well-defined norms' and noted that they have long been considered as appropriate guides to determining the reasonableness of counsel's performance." Id. at 147 (citations omitted).

43. Armstrong v. State, 862 So. 2d 705 (Fla. Oct. 30, 2003) (Anstead, J., concurring).*
The Supreme Court of Florida ordered a new penalty phase proceeding as the result of the introduction of a vacated prior conviction. Judge Anstead wrote a concurring opinion focusing on Armstrong's claim of ineffective assistance of counsel during the penalty phase. He first reviewed the standards for the investigation of mitigation evidence set forth by the Supreme Court in Wiggins and then compared the performance of Armstrong's counsel with that of counsel in Wiggins:
The 1989 ABA Guidelines that the Supreme Court concluded should have guided counsel's investigation in Wiggins should have provided similar guidance to Armstrong's counsel. These standards underscore not only the importance of defense counsel's investigation into mitigating factors, but also the understanding that often strategy shifts between the penalty and guilt phases of a capital trial. In general, preparation for both the penalty and guilt phases is essential, and counsel should be aware that "the sentencing phase of a death penalty trial is constitutionally different from sentencing proceedings in other criminal cases." 1989 ABA Guidelines 11.8.1, at 123. "If inconsistencies between the guilt/innocence and the penalty phase defenses arise, counsel should seek to minimize them by procedural or substantive tactics." 1989 ABA Guidelines 11.7.1(B), at 115. In conducting the investigation into those individuals who might present testimony at the penalty phase, counsel is required to seek out witnesses who are "familiar with aspects of the client's life history that might affect ... possible mitigating reasons for the offense(s), and/or mitigating evidence to show why the client should not be sentenced to death." Id. 11.4.1(D)(3)(B), at 95.
862 So.2d at 723. He also cited to Guideline commentary, which explained the unique nature of sentencing proceedings in capital cases. Judge Anstead concluded that defense counsel's investigation into mitigation was inadequate because it failed to discover the quantity and quality of evidence that actually existed.

Guideline 11.4.2 Client Contact

1. Crandell v. Bunnell, 144 F.3d 1213 (9th Cir. May 19, 1998), overruled by Schell v. Witek, 218 F.3d 1017 (Cal. 2000).
The Ninth Circuit affirmed the district court's grant of Crandell's petition for habeas corpus. Judge Beezer held that defense counsel's representation was incompetent and the appointment of substitute counsel was warranted.
The district court, in granting the habeas petition, made a number of findings regarding the ineffectiveness of Crandell's trial counsel. Among these findings were that the public defender personally visited Crandell only one or two times, "violently disagreed" with Crandell, "failed to make reasonable efforts to establish a relationship of trust and confidence with Crandell," undertook little discovery, initiated no investigation of either guilt or penalty phase evidence, and made no attempt to interview any witnesses. 144 F.3d at 1217. At the district court habeas petition hearing, Crandell presented an expert witness on the professional norms for counsel in capital defense cases who testified that the public defender's behavior was "absolutely outrageous." Id. The expert's conclusion was based in part on the ABA Guidelines and the Ninth Circuit cited specifically to ABA Guideline 11.4.2 (1989) Id. The Ninth Circuit affirmed the district court's finding that Crandell's trial counsel was incompetent and that the state trial court should have appointed substitute counsel. Id.
The case was overruled by Schell v. Witek, only as to the standard applicable to motions to substitute counsel. 218 F. 3d. 1017 (Cal. 2000).

Guideline 11.6.1 The Plea Negotiation Process

1. Stitt v. United States, 369 F. Supp. 2d 679 (E.D. Va. Apr. 1, 2005).
Judge Jackson in the Eastern District of Virginia evaluated a petition for post-conviction relief, including multiple ineffective assistance claims. Considering one such claim based on the failure of counsel to advise the defendant to take a plea agreement for a life sentence, the Stitt opinion notes that "[t]he standards of the American Bar Association ("ABA") may serve as a guide to what is reasonable, but only as a guide, not a determinative rule. See Strickland, 466 U.S. at 688-89; see also Jones v. Murray, 947 F.2d 1106, 1110 (4th Cir.1991)." Stitt, 369 F.Supp.2d at 689. The court goes on to quote 1989 ABA Guideline 11.6.1 concerning negotiated pleas at length, emphasizing that in a capital case attorneys ought to remain open to the possibility of a settlement, regardless of personal opinions about the likely outcome of the case. Id. Although critical of the lead counsel's insistent refusal to enter negotiations with the State Department, the court found the claim to be without merit because co-counsel made repeated efforts to secure a plea agreement that the defendant rejected after weighing the differing advice offered by members of the defense team. Id. at 691. Ultimately, the court granted relief for ineffective assistance of counsel based on a conflict of interest hidden by lead counsel during trial for financial reasons. Id. at 695.
Rev'd on other grounds, 475 F.Supp.2d. 571 (holding that the district court must hold a resentencing hearing without convening a jury to consider the death penalty).

Guideline 11.7.1 General Trial Preparation

1. Armstrong v. State, 862 So. 2d 705 (Fla. Oct. 30, 2003) (Anstead, concurring). *
The Supreme Court of Florida ordered a new penalty phase proceeding as the result of the introduction of a vacated prior conviction. Judge Anstead wrote a concurring opinion focusing on Armstrong's claim of ineffective assistance of counsel during the penalty phase. He first reviewed the standards for the investigation of mitigation evidence set forth by the Supreme Court in Wiggins and then compared the performance of Armstrong's counsel with that of counsel in Wiggins:
The 1989 ABA Guidelines that the Supreme Court concluded should have guided counsel's investigation in Wiggins should have provided similar guidance to Armstrong's counsel. These standards underscore not only the importance of defense counsel's investigation into mitigating factors, but also the understanding that often strategy shifts between the penalty and guilt phases of a capital trial. In general, preparation for both the penalty and guilt phases is essential, and counsel should be aware that "the sentencing phase of a death penalty trial is constitutionally different from sentencing proceedings in other criminal cases." 1989 ABA Guidelines 11.8.1, at 123. "If inconsistencies between the guilt/innocence and the penalty phase defenses arise, counsel should seek to minimize them by procedural or substantive tactics." 1989 ABA Guidelines 11.7.1(B), at 115. In conducting the investigation into those individuals who might present testimony at the penalty phase, counsel is required to seek out witnesses who are "familiar with aspects of the client's life history that might affect ... possible mitigating reasons for the offense(s), and/or mitigating evidence to show why the client should not be sentenced to death." Id. 11.4.1(D)(3)(B), at 95.
862 So.2d at 723. He also cited to Guideline commentary, which explained the unique nature of sentencing proceedings in capital cases. Judge Anstead concluded that defense counsel's investigation into mitigation was inadequate because it failed to discover the quantity and quality of evidence that actually existed.

Guideline 11.8.1 Obligation of Counsel at Sentencing Phase of Death Penalty Cases

1. Armstrong v. State, 862 So. 2d 705 (Fla. Oct. 30, 2003) (Anstead, J., concurring).*
The Supreme Court of Florida ordered a new penalty phase proceeding as the result of the introduction of a vacated prior conviction. Judge Anstead wrote a concurring opinion focusing on Armstrong's claim of ineffective assistance of counsel during the penalty phase. He first reviewed the standards for the investigation of mitigation evidence set forth by the Supreme Court in Wiggins and then compared the performance of Armstrong's counsel with that of counsel in Wiggins:
The 1989 ABA Guidelines that the Supreme Court concluded should have guided counsel's investigation in Wiggins should have provided similar guidance to Armstrong's counsel. These standards underscore not only the importance of defense counsel's investigation into mitigating factors, but also the understanding that often strategy shifts between the penalty and guilt phases of a capital trial. In general, preparation for both the penalty and guilt phases is essential, and counsel should be aware that "the sentencing phase of a death penalty trial is constitutionally different from sentencing proceedings in other criminal cases." 1989 ABA Guidelines 11.8.1, at 123. "If inconsistencies between the guilt/innocence and the penalty phase defenses arise, counsel should seek to minimize them by procedural or substantive tactics." 1989 ABA Guidelines 11.7.1(B), at 115. In conducting the investigation into those individuals who might present testimony at the penalty phase, counsel is required to seek out witnesses who are "familiar with aspects of the client's life history that might affect ... possible mitigating reasons for the offense(s), and/or mitigating evidence to show why the client should not be sentenced to death." Id. 11.4.1(D)(3)(B), at 95.
862 So.2d at 723. He also cited to Guideline commentary, which explained the unique nature of sentencing proceedings in capital cases. Judge Anstead concluded that defense counsel's investigation into mitigation was inadequate because it failed to discover the quantity and quality of evidence that actually existed.

Guideline 11.8.2 Duties of Counsel Regarding Sentencing Options, Consequences and Procedures

1. Morris v. Beard, No. 01-3070, 2007 U.S. Dist. LEXIS 44707 (E.D. Pa. Jun. 20, 2007).
The Eastern District of Pennsylvania found that defense counsel failed to conduct a reasonable investigation of mitigating evidence and failed to present that evidence during the penalty phase of the proceedings. The court declared that defense counsel's failure to make a sufficient argument violated Morris' Sixth Amendment right to effective assistance of counsel. In addition, the court found that Morris' counsel operated under a conflict of interest.
In citing the ABA Guidelines, the court relies on the 1989 edition and states that under a Strickland claim, the method to determine the prevailing norms of professional conduct is to reference the ABA Guidelines, which are referred to as "guides to determine what is reasonable." 2007 U.S. Dist. LEXIS at *54. The court also stated that although the Guidelines were adopted five years after the defendant's conviction, they simply reflect prevailing norms in the legal profession that had already existed. Id. The court finds the Guidelines to be "effective standards by which to judge the reasonableness of counsel's conduct." Id. Finally, the court notes that the Guidelines are a codification of "long-standing, common-sense principles of representation understood by diligent, competent counsel in death penalty cases." Id. at 55.
The court cited to Guidelines 11.8.2(D) in stating that defense counsel has a duty to investigate and present all available mitigating evidence to the jury in the most effective way possible. Id. The court elaborated on the type of mitigating evidence to produce, commenting on relevant types of evidence, such as "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Id. at *56. Further, the court noted that defense counsel in a death penalty case has a duty to begin investigating mitigating evidence "at the start of the case." (emphasis added). Id. at *79.

2. Summerlin v. Schriro, 427 F.3d 623 (9th Cir. Oct. 17, 2005).
The Ninth Circuit granted a petition for habeas relief as to the penalty phase of a capital trial, holding that defense counsel was prejudicially ineffective for failure to present mitigating evidence. The court cites Rompilla v. Beard,125 S. Ct. 2456 (2005) for the proposition that ABA Standards for Criminal Justice represent the "indicia of obligations for criminal defense attorneys." Following this, the opinion makes several references to the 1980 ABA Standards for Criminal Justice in effect at the time of the trial in question. The court begins by identifying the general duty to investigate mitigating evidence, and moves on to cite specific areas (such as mental health, substance abuse, and prior criminal record) which defense counsel has a duty to investigate. The court cites1989 ABA Guideline 11.8.2 which states counsel's "virtually absolute" duty to do whatever necessary to "avoid the death penalty and achieve the least restrictive and burdensome sentencing alternative," even in the face of resistance by the criminal defendant. 427 F.3d at 638.

Guideline 11.8.3 Preparation for the Sentencing Phase

1. Dunlap v. People, 173 P.3d 1054 (Colo. May 14, 2007). *
Dunlap was sentenced to death for the murder of four Chuck E. Cheese employees during the commission of a robbery.
During the course of the trial Dunlap was transferred to Colorado Mental Health Institute at Pueblo (CMHIP) to undergo a mental health competency examination. Id. at 1064. Trial counsel appointed Dr. Fairbairn to render an independent psychiatric evaluation of Dunlap, but to counsel's dismay, Dr Fairbairn's opinion if admitted at trial, would have ultimately damaged Dunlap's defense. Id. "Dr. Fairbairn's eventual opinion was that 50 percent of the time Dunlap was normal, 40 percent of the time he was malingering symptoms, and 10 to 20 percent of the time he suffered from some sort of psychosis. Dr. Fairbairn did not diagnose a major mental illness." Id. Defense counsel filed a motion to exclude the evidence generated at CMHIP and the trial court ruled that the state could not use the evidence unless the defense "opened the door by presenting mental health evidence." 173 P.3d at 1064.
Citing to the 1989 version of the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Sections 11.4.1 and 11.8.3, the Colorado Supreme Court stated, "Trial counsel in a death penalty case has the duty to investigate potential sources of mitigation evidence for the penalty phase of the trial. Strickland, 466 U.S. at 690-91." Id. at 1065. However, in this case the court agreed that presenting mental health mitigation evidence would have been "risky at best given the substantial amount of damaging evidence" generated from CMHIP. Id. at 1067. The court stated, "We decline to hold that in this case the decision to avoid such risky evidence, and the consequent decision to cut short the mental health investigation, falls below an objective standard of reasonableness." Id.

2. Woodard v. Mitchell, No. 1:98CV1403, 2005 U.S. Dist. LEXIS 22109 (N.D. Ohio Sept. 30, 2005). *
The U.S. District Court for the Northern District of Ohio denied the defendant's request for habeas relief as to his conviction, but did grant habeas relief as to the sentencing. The court found that defense counsel was ineffective for failing to investigate and prepare for the mitigation phase of the trial. Specifically, the court found that defense counsel failed to conduct an adequate investigation into the defendant's family and social history. In addition, defense counsel failed to discuss his strategy with the client and did not inform him as to the nature of the sentencing hearing, but rather advised him to plead for his life. The court found that defense counsel's conduct was prejudicial to the outcome of the trial.
In citing to the 1989 ABA Guidelines 11.4.1, 11.8.3, and 11.8.6, the court noted that defense counsel should begin investigating mitigating evidence "immediately upon counsel's entry into the case and should be pursued expeditiously." Woodard, 2005 U.S. Dist LEXIS at *30. The court also noted the importance of defense counsel discussing the sentencing phase with the client before it occurs, and it emphasized the different topic areas, including family and social history that should be addressed during the sentencing phase of the proceedings. Id. at *31.

Guideline 11.8.6 The Defense Case at the Sentencing Phase

1. Wiggins v. Smith, 539 U.S. 510, (2003). *
The Supreme Court granted a new sentencing hearing after holding that trial counsel's failure to fully investigate Wiggins' background constituted ineffective assistance of counsel. Counsel failed to present evidence of several instances of physical and sexual abuse Wiggins experienced at the hand of his mother and a series of foster parents. Wiggins' mother, a chronic alcoholic, frequently left Wiggins and his siblings at home alone without any food or money, forcing them to beg for food and to eat paint chips and garbage. She once forced Wiggins to put his hand up against a hot stove burner, which led to his hospitalization. The father in Wiggins' second foster home repeatedly molested and raped him. At age 16, Wiggins ran away from his foster home and began living on the streets. He returned intermittently to additional foster homes, including one in which the foster mother's sons allegedly gang-raped him on more than one occasion. Trial counsel failed to conduct a mitigation investigation and social history, and none of this information was presented at the penalty phase of trial. The Supreme Court noted that:
Counsel's conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)--standards to which we long have referred as "guides to determining what is reasonable." Strickland, supra, at 688, 466 U.S. 668; Williams v. Taylor, supra, at 396, 529 U.S. 362. The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences) (emphasis added).

Id. at 524.

2. Villegas v. Quarterman, No. 07-70032, 2008 U.S. App. LEXIS 8210, (5th Cir. Apr. 16, 2008). *
Petitioner applied for a certificate of appealability arguing that his counsel failed to investigate and present mitigating evidence during the penalty phase of his trial and as a result was ineffective. The court cited to 1989 ABA Guideline 11.4.1(C) which provides that counsel's investigation "should comprise efforts to discover all reasonably available mitigating evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Additionally, the court cited 1989 ABA Guideline 11.8.6 which states that a reasonable investigation will include topics such as "the accused's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences."
"However, counsel's failure to research and present mitigating evidence during the penalty phase is not per se ineffective assistance." See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir. 1997). Although counsel has a duty to make reasonable investigations they may also make a reasonable decision not to make unnecessary investigations. Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-91). Furthermore, Strickland does not "require defense counsel to present mitigating evidence at sentencing in every case." Id. at 533. A court must "decide if the investigation supporting counsel's decision not to introduce mitigating evidence . . . was itself reasonable." Id. at 522-23 (quoting Strickland, 466 U.S. at 691). There is a "strong presumption" that counsel's conduct "falls within the wide range of reasonable professional assistance." Bell v. Cone, 535 U.S. 685, 698 (2002) Counsel is not ineffective because the court disagrees with his trial strategy. Strickland, 466 U.S. at 689.
The court held that counsel did investigate and present mitigating evidence during both the guilt and penalty phase of the trial. Therefore petitioner had adequate representation and his certificate of appealability was denied.

3. Hudson v. Quarterman, No. 07-70039, 2008 U.S. App. LEXIS 7922, (5th Cir. Apr. 9, 2008).
Petitioner applied for a certificate of appealability arguing that his counsel failed to investigate his background for mitigating factors such as mental health issues and to present such evidence at the penalty phase of trial. The court cited 1989 ABA Guideline 11.8.6 (C) as the standard recommended for investigation of petitioner's background. However, the court also noted that another widely accepted 1989 ABA Guideline indicates that counsel is not obliged to investigate and present such evidence if there is a strategic reason for this decision. Smith v. Quarterman, 471 F.3d 565, 570 (5th Cir. 2006). The court held that because the petitioner originally agreed with counsel not to present such evidence at the penalty phase and there was evidence of petitioner's college education and history of steady employment any errors made by counsel were harmless. Therefore petitioner's request for a certificate of appealability was denied.

4. Clark v. Quarterman, No. 2:03cv357, 2007 U.S. Dist. LEXIS 68249 (E.D. Tex. Sept. 14, 2007).
The District Court for the Eastern District of Texas reversed the decision of the Texas Court of Criminal Appeals, holding that petitioner did in fact show that his trial counsel was ineffective for failing to interview Petitioner's mother.
Petitioner, an inmate convicted of capital murder and sentenced to death, filed a motion for habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of Texas. Petitioner argued that defense counsel failed to investigate or present evidence which would have mitigated against the imposition of the death penalty. Specifically, Petitioner claims that counsel failed to investigate his family background or his social, medical and mental history.
The District Court cited a well-established precedent, that to prove ineffective assistance of counsel, a criminal defendant must show that his attorney's assistance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a petitioner must demonstrate that counsel's representation fell below an objective standard or reasonableness. Id. at 688. To determine what is reasonable, the district court looked to the (2003 and 1989) ABA Guidelines. See Wiggins v. Smith, 539 U.S. 510, 524 (2003). Specifically, the court referred to ABA Guideline 11.8.6 which states that counsel should consider presenting information on medical history, educational history, and family and social history. Id. (emphasis in original). Petitioner's defense counsel admittedly failed to consider this potentially mitigating evidence. Thus, the court was persuaded that Petitioner's counsel fell "far short of professional norms when they failed to investigate his background, [especially since] counsel's affidavit indicates that there was no strategy behind the decision to forego an investigation of or to present evidence or Petitioner's childhood." Clark v. Quarterman, 2007 U.S. Dist. LEXIS 68249 *6.
The district court held that defense counsel was ineffective for failing to interview Petitioner's parents, despite arguments that Petitioner himself blocked counsel from conducting the interviews. However, the fact that Petitioner insisted his parents not be called to testify at the punishment phase does not excuse counsel's duty to investigate possible mitigating evidence. The ABA Guidelines expressly state that "[t]he duty to investigate [mitigating evidence] exists regardless of the expressed desires of a client."

5. Mason v. Mitchell, 396 F. Supp. 2d 837 (N.D. Ga. Oct. 31, 2005). *
The District Court, in denying Mason's petition for habeas corpus relief, held that Mason's counsel did not provide ineffective assistance in conducting the mitigation investigation for the sentencing phase of the trial. In reaching this determination, the court looked to the 1989 ABA Guidelines and quoted Guideline 11.4.1, as well as the commentary to the Guideline. 396 F.Supp.2d at 852. The court used Guideline 11.4.1 to detail what investigation Mason's attorney should have undertaken in regard to mitigation evidence, and then turned to Guideline 11.8.3 to analyze what steps the counsel needed to take in preparation for the mitigation presentation. Id. As noted by the court, the ABA Guidelines state that counsel should discuss the sentencing phase with their client and that counsel must be proactive in their mitigation investigation and presentation. Id. at 852-53. After quoting the Guidelines, the court held that Mason's counsel undertook sufficient efforts to investigate and procure mitigation evidence and found that the investigation was not unreasonable. Id. at 854. In reaching their ultimate decision the court contrasted the facts in Mason's case from those present in Wiggins. Id. Finally, the court found that defense counsel's overall mitigation strategy was sufficient, based on ABA Guideline 11.8.6 (1989). Id. at 855. The court found that counsel performed a thorough investigation of Mason's background and that he sought advice from other qualified attorneys, who had experience in trying death penalty cases. Id. The court noted that obtaining advice from other counsel regarding mitigation strategy comports with ABA Guidelines. Id.

6. Woodard v. Mitchell, No. 1:98CV1403, 2005 U.S. Dist. LEXIS 22109 (N.D. Ohio Sept. 30, 2005). *
The U.S. District Court for the Northern District of Ohio denied the defendant's request for habeas relief as to his conviction, but did grant habeas relief as to the sentencing. The court found that defense counsel was ineffective for failing to investigate and prepare for the mitigation phase of the trial. Specifically, the court found that defense counsel failed to conduct an adequate investigation into the defendant's family and social history. In addition, defense counsel failed to discuss his strategy with the client and did not inform him as to the nature of the sentencing hearing, but rather advised him to plead for his life. The court found that defense counsel's conduct was prejudicial to the outcome of the trial.
In citing to the 1989 ABA Guidelines 11.4.1, 11.8.3, and 11.8.6, the court noted that defense counsel should begin investigating mitigating evidence "immediately upon counsel's entry into the case and should be pursued expeditiously." Woodard, 2005 U.S. Dist LEXIS at *30. The court also noted the importance of defense counsel discussing the sentencing phase with the client before it occurs, and it emphasized the different topic areas, including family and social history that should be addressed during the sentencing phase of the proceedings. Id. at *31.

7. Smith v. Dretke, 422 F.3d 269 (5th Cir. Aug. 17, 2005).
In this opinion, the Fifth Circuit granted a certificate of appealability to Smith on several issues, including the issue of whether his trial counsel was ineffective. In doing so, the Fifth Circuit discussed at length the Supreme Court jurisprudence in Wiggins and Rompilla and cited to the ABA Guidelines. "The [Supreme] Court held that Wiggins' trial counsel's investigation was inadequate because 'counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources.' 539 U.S. at 524 (citing the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.8.6, p. 133 (1989)(stating that among the topics counsel should consider presenting are medical history, educational history, employment history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences))." 422 F. 3d at 279. At the penalty phase, Smith's counsel called only 4 witnesses to testify. One was Smith's mother, who testified that he grew up in impoverished circumstances and that she was a single mother on welfare. In post-conviction, however, affidavits from many family members, including several of Smith's siblings, many cousins, and his grandmother, with whom he lived at some points in his childhood, indicated that Smith's mother frequently abused and whipped her children and that none of her children could read nor write. Smith's trial counsel did not interview any of these family members.

8. Earp v. Ornoski, 431 F.3d 1158 (9th Cir. July 14, 2005).
The Ninth Circuit held that the petitioner was entitled to, among other things, an evidentiary hearing on his ineffective assistance of counsel claim "because he has demonstrated a colorable claim that counsel's mitigation investigation was deficient in light of the evidence uncovered, and that he suffered prejudice thereby." Id. at 1185.
Earp had argued that he was denied effective assistance of counsel due to defense counsel's failure to follow up on leads discovered by the defense investigator. The defense counsel failed to present the following mitigating evidence in the penalty phase: 1) records of Earp's educational history, including documentation of a history of emotional problems and possible psychological or neurological problems, 2) further information about Earp's family background (history of alcoholism, depression and suicide), a history of substance abuse and mental problems, and 3) neurological and psychiatric evaluations indicating organic brain damage resulting from a childhood head injury. The Ninth Circuit analyzed the facts presented in relation to those presented in the Wiggins v. Smith case. In doing so, the Ninth Circuit cited to the (1989) ABA Guidelines: "The relevant ABA Guidelines state that counsel in capital cases should consider the following information about a petitioner: medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences. Id. (citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.8.6, p. 133)." Earp, 431 F. 3d at 1175.

9. Lovitt v. True, 330 F. Supp. 2d 603 (E.D. Va. Aug. 6, 2004). *
In response to Mr. Lovitt's argument that his counsel's background investigation fell short of what is required by both the prevailing professional norms and the standards established by the American Bar Association, the Eastern District of Virginia acknowledged that the ABA standards "are widely accepted by federal courts." Id. at 643. The court went on to state that "[t]he ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigation evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Id. (quoting ABA Guidelines 11.4.1(c) (1989). The Eastern District recognized that "[f]ederal courts have frequently relied upon the ABA standards as 'guides to determining what is reasonable' and that "[t]he ABA standards suggest that the scope of counsel's inquiry should include the defendant's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences. ABA Guidelines, 11.8.6, at 113." Lovitt, 330 F. Supp. 2d at 643.
The Court held, however, that "[p]etitioner has failed to persuade this Court that his counsel's decision not to perform additional mitigation investigation constituted anything less than sound trial strategy." Id. at 644-645.
10. Harris v. State, 947 So. 2d 1079 (Ala. Crim. App. 2004), rev'd on other grounds, Ex Parte Jenkins, 972 So. 2d 159 (Ala. Apr. 8, 2005). *
The Court of Criminal Appeals of Alabama found that Harris's trial counsel (who had previously never represented a defendant in a capital case) was ineffective during the penalty phase of the trial. Trial counsel did not offer evidence of the abuse Ms. Harris suffered in her three marriages, including at the hand of the man she was convicted of killing in this case. The court cited to Wiggins v. Smith, 539 U.S. 510 (2003), in its analysis of counsel's effectiveness and noted that "any reasonably competent attorney would have realized that pursuing these leads [the available mitigating evidence about Ms. Harris' troubled past] was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner's background." 947 So.2d at 1128.
In finding counsel's performance deficient, the court stated that "Harris has affirmatively shown . . . that there was a wealth of mitigating evidence readily available to counsel that counsel should have investigated before it can be said that counsel's strategy for the penalty phase was a reasonable strategic choice. In other words, counsel made their decision while uninformed as to 'the overall character' of potential witnesses testimony." Id. at 1129.
In its discussion of the ABA Guidelines, the court noted that "[a]s the United States Supreme Court explained in Wiggins, the value of counsel's 'strategic' decision depends on 'the adequacy of the investigations supporting [that] judgment.' Id. at 1127. The court then quoted from the Wiggins opinion's language on the ABA Guidelines.
Counsel's conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)--standards to which we long have referred as 'guides to determining what is reasonable.' (Citations omitted). The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences) (emphasis added); 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 ('The lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing ... Investigation is essential to fulfillment of these functions').
Id. (quoting Wiggins, 539 U.S. at 524-25).

11. Peterka v. State, 890 So. 2d 219, (Fla. Sept. 30, 2004).
The Supreme Court of Florida affirmed the trial court's order denying post-conviction relief and denied Peterka's petition for habeas corpus. The Court, discussing a claim of ineffective assistance in the penalty phase, reviewed the standards for the investigation of mitigating evidence established in Wiggins v. Smith, 539 U.S. 510 (2003):
[E]fforts should be made to discover available mitigating evidence and evidence to rebut any aggravating evidence from such sources as "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influence." Id. at 223, 123 S.Ct. 2527 (citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.8.6, at 133 (1989)).
890 So.2d 219, 236. The Court determined that counsel's investigation of mitigating circumstances had been adequate and that the failure to present certain mitigating elements was a legitimate strategic decision. Id.

12. In re Larry Douglas Lucas, 94 P.3d 477 (Cal. Jul. 26, 2004).
The California Supreme Court found that defense counsel's failure to conduct an adequate investigation of available mitigating evidence for possible use at penalty trial was ineffective assistance of counsel. Trial counsel's
failure to investigate petitioner's early social history was not consistent with established norms prevailing in California at the time of trial, norms that directed counsel in death penalty cases to conduct a reasonably thorough independent investigation of the defendant's social history--as agreed by respondent's own expert and as reflected in the ABA standards relied upon by the court in the Wiggins case. The (1989) ABA Guidelines provide that investigation into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence....' Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. [ABA Guidelines] 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, ... family and social history, [and] prior ... juvenile correctional experience....)"
Id. at 503, citing (Wiggins, 539 U.S. at 524, 123 S.Ct. at pp. 2536-2537).

13. Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. Dec. 29, 2003). * †
In this capital case from Ohio, the Sixth Circuit granted a new penalty phase trial as the result of ineffective assistance of counsel. Defense counsel made no investigation into Hamblin's severely deprived and violent childhood or his psychological condition, and did nothing in preparation for the sentencing phase.
The majority opinion opened with an analysis of the proper standard against which to measure counsel's performance. It looked to the Supreme Court's decision in Wiggins, noting that "[i]n its discussion of the 1989 ABA Guidelines for counsel in capital cases, the Court held that the Guidelines set the applicable standards of performance for counsel . . . . Thus, the Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the 'prevailing professional norms' in ineffective assistance cases" (emphasis added). Id. at 486 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). The court then cited 1989 ABA Guidelines 11.4.1 and 11.8.6 describing counsel's duty to investigate and present mitigating evidence at both the guilt and sentencing phases of trial.
The court went on to review several of its own prior decisions from the 1990s, concluding that "[o]ur analysis of counsel's obligations matches the standards of the 1989 Guidelines quoted by the Supreme Court in Wiggins." Hamblin, 354 F.3d at 486. Although Hamblin's trial took place before publication of the 1989 Guidelines, the court explained that they apply nonetheless:
[T]he standards merely represent a codification of longstanding, common sense principles of representation understood by diligent, competent counsel in death penalty cases. The ABA standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of longstanding norms referred to in Strickland in 1984 as "prevailing professional norms" as "guided" by "American Bar Association standards and the like." We see no reason to apply to counsel's performance here standards different from those adopted by the Supreme Court in Wiggins and consistently followed by our court in the past. The Court in Wiggins clearly holds . . . that it is not making "new law" on the effective assistance of counsel . . . ."
Id. at 487 (internal citations omitted). The court also noted that the "[n]ew ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins or our court's previous cases concerning counsel's obligation to investigate mitigation circumstances." Id. at 487. The court then quoted extensively from the Guidelines regarding the duty to investigate mitigating evidence.
In concluding its discussion of the appropriate standards to use in evaluating counsel's performance, the Sixth Circuit explained that "[w]e cite the 1989 and 2003 ABA Guidelines simply because they are the clearest exposition of counsel's duties at the penalty phase of a capital case, duties that were recognized by this court as applicable [in] 1982." Id. at 488.
The court held that "[t]he record reveals that defense counsel's representation of Hamblin at the penalty stage of the case fell far short of prevailing standards of effective assistance of counsel as outlined in Wiggins, our previous cases and the 1989 and 2003 ABA Guidelines." Id. at 489. In its analysis, the court quoted from 2003 ABA Guideline 10.7, explaining that "ABA and judicial standards do not permit the courts to excuse counsel's failure to investigate or prepare because the defendant so requested." Id. at 492.

1989 ABA Guidelines In General

1. United States v. Murphy, 50 M.J. 4 (C.A.A.F. Dec. 16, 1998).
The U.S. Court of Appeals for the Armed Forces set aside the death sentence of James Murphy because Murphy was denied effective assistance of counsel. While the court cited its decision in Loving (34 M.J. 1065), wherein the court declined to mandate that military defense counsel meet the (1989) ABA Guidelines, the court in this case did note that the ABA Guidelines are "instructive." Murphy, 50 M.J. at 13. After analyzing Murphy's various claims of ineffective assistance, the Court of Appeals agreed with the district court that his trial counsel was ineffective.