UNITED STATES of America v. Donald FELL, Defendant-Movant, 944 F. Supp. 2d 297

Memorandum Opinion and Order WILLIAM K. SESSIONS III, District Judge. Donald Fell has moved under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence of death, to vacate and set aside his judgment of conviction and to grant him a new trial. The Government has opposed the motion, and requested

summary dismissal of Fell’s claims. Fell has separately moved for leave to conduct discovery pursuant to the Federal Rules of ■Civil and Criminal Procedure, and to serve document requests and subpoenas pursuant to those rules. Following review of the § 2255 motion, the Court orders

summary dismissal in part. The claims regarding juror misconduct and the requests for discovery are addressed in separate decisions. I. Background and Procedural History The following narrative is taken from the record and the exhibits and sworn declarations submitted with the motion. On November 26, 2000, in Rutland, Vermont, Donald Fell and Robert Lee repeatedly knifed Donald’s mother Debra and her friend Charles Conway, killing them. The next morning, Fell and Lee kidnapped Teresca King, a grocery store worker, and stole her car.

After crossing into New York, they stopped by the road, accompanied her into the woods and beat her to death. On November 30/2000, Fell and Lee were arrested in Clarksville, Arkansas, driving King’s car. Upon their transfer to the District of Vermont they were charged with interstate kidnapping and car-jacking, in violation of 18 U.S.C. § 1201(

a) and 2119. The Federal Public Defender was appointed to represent Fell, and attorneys Alexander Bunin and Gene Primomo of the Albany office of the Federal Public Defender for the Northern District of New York entered their appearance on December 14, 2000.

On February 1, 2001, a federal grand jury returned a four-count indictment charging Fell and Lee with car-jacking resulting in death in violation of 18 U.S.C. § 2119(3) (Count 1); kidnapping resulting in death in violation of 18 U.S.C. § 1201(a) (Count 2); brandishing a firearm in furtherance of crimes of violence in violation of 18 U.S.C. § 924(c)(l)(A)(ii) (Count 3); and being fugitives who transported a firearm in interstate commerce in violation of 18 U.S.C. § 922(g)(2) (Count 4). Counts 1 and 2 were capital offenses. Fell and Lee were arraigned on February 7, 2001.

Under 18 U.S.C. § 3005, a capital defendant has the right to the appointment of two attorneys, at least one of whom “shall be learned in the law applicable to capital cases.” 18 U.S.C. § 3005. The Court must consider the recommendation of the Federal Public Defender. Id. Attorney Bunin sought the appointment. Letter dated Dec. 11, 2000, Fell Ex. 202. He represented that he had capital case experience in the state of Texas, and that attorney Primomo had tried a federal capital case. Hr’g Tr. 10, June 11, 2002, ECF No. 67.

In fact, although Bunin had some state court capital appellate and habeas experience during the early 1990s, this was his first capital trial. Primomo’s one capital trial experience dated from 1993 in the Eastern District of Oklahoma. Fell Ex. 263. After Bunin leaked information discussed in a sealed hearing concerning a potential plea agreement to local newspapers, and filed bare-bones motions to suppress and for change of venue, the Court expressed 'concerns about the quality of Fell’s defense, and appointed Paul Volk, a Vermont attorney, to team with Bunin and Primomo.

Hr’g Tr. 10-12; Order of App’t, ECF No. 54. Although Volk had extensive criminal trial experience, he had never been involved in a capital trial. From late 2000 through 2001, Fell’s defense attorneys focused on resolving the case with a guilty plea to life imprisonment without the possibility of release. They had reason to believe that the United States Attorney’s Office for the District of Vermont would accept such a resolution. Counsel hired mental health experts, and retained a mitigation specialist who undertook a preliminary investigation of Fell’s social history.

In early May 2001, defense counsel received a report from their expert Dr. Mills, that detailed the results of a two-day evaluation of Fell. The evaluation included two hours of psychological test administration, as well as review of twenty-four documents concerning his case provided by the defense. Dr. Mills concluded that Fell was an alcoholic with incipient psychosis or pre-psychotic breakdown. Fell’s score on one of the tests suggested that he was easily dominated, supporting Fell’s claim that Lee was the dominant one of the pair. Dr.

Mills also concluded that Fell’s psychiatric condition was “overwhelmingly” caused by the biological and environmental influences to which he had been subjected in his youth, and that his psychiatric condition was not something he chose. Fell Ex. 4. Fell’s counsel provided this information and reports from the other experts to the United States Attorney’s Office in May 2001. Fell signed an agreement to plead guilty in exchange for life imprisonment without release on October 24, 2001.

By the time Fell and the United States Attorney for the District of Vermont had reached their agreement however, the United States Department of Justice had determined that all local decisions not to seek the death penalty in death-eligible cases had to be confirmed by the Attorney General. In January 2002, the Attorney General rejected the plea agreement. On January 30, 2002, the government filed a Notice of Intent to Seek Death Penalty with respect to Fell.

It listed four threshold culpability factors as set forth in 18 U.S.C. § 3591(a)(2)(A)-(D), and three statutory aggravating factors identified in 18 U.S.C. § 3592(c). The notice also listed four non-statutory aggravating factors. After the government filed its Notice of Intent, the parties negotiated an agreement for the penalty phase to be tried to the Court following a guilty plea to the charges. This option was also rejected by the Attorney General. In another attempt to resolve the case, the parties agreed to make Fell available to government mental health experts for examination.

If those experts believed that there were mitigating factors that would support a guilty plea to life imprisonment without the possibility of release, the parties would jointly argue to the Justice Department that changed circumstances supported a plea bargain to a sentence of life without the possibility of release. The government’s experts, Richard Wetzel, Ph.D. and John Rabun, M.D., examined Fell in September and December 2002. They were not permitted to inquire about the murders, Fell’s state of mind during the murders or his use of a knife, and they conducted their interviews with defense counsel present.

Both experts concluded that there were mitigating facts in Fell’s background. See Fell Ex. 7, Ex. 8. The parties’ request for reconsideration was submitted in February 2005. Among pre-trial motions filed in mid-2002, Fell moved for a declaration that the Federal Death Penalty Act of 1994 (“FDPA”) was unconstitutional. ECF Nos. 44 & 65. On September 24, 2002, the Court held that the FDPA’s relaxed evidentiary standard for a jury’s finding of eligibility for imposition of the death penalty violated the United States Constitution’s Sixth Amendment and Due Process Clause. United States v.

Fell, 217 F.Supp.2d 469, 489 (D.Vt.2002), vacated 360 F.3d 135 (2d Cir.), cert. denied 543 U.S. 946, 125 S.Ct. 369, 160 L.Ed.2d 259 (2004). The Government filed an interlocutory appeal on October 22, 2002, and the decision was vacated and remanded on February 3, 2004. United States v. Fell, 360 F.3d 135, 146 (2d Cir.2004). On October 18, 2004, the United States Supreme Court denied Fell’s petition for a writ of certiorari, and the mandate issued October 28,2004. ECF No. 73.

On December 1, 2004, Fell filed a Rule 12.2(b)(2) notice of expert evidence of a mental condition indicating his intent to introduce expert evidence bearing on a mental condition should he be convicted of a capital crime. ECF No. 74. Upon receipt of the Rule 12.2 notice, the government sought an unrestricted examination of Fell, pursuant to Federal Rule of Criminal Procedure 12.2(c)(1)(B), by its psychiatrist Michael Weiner, M.D., whom it had retained in early 2004.

The Court ordered that Fell undergo a complete psychiatric examination, but that the examination be conducted by either or both of the government’s original experts, Dr. Rabun or Dr. Wetzel, who had conducted the limited examination of Fell in 2002. Pursuant to Rule 12.2(c)(2), the results or reports of the examination were to be sealed and not disclosed to attorneys for the defendant or the government unless the jury reached a guilty verdict on one or more of the capital counts and Fell confirmed his intent to offer expert evidence on mental condition during sentencing proceedings.

See Fed.R.Crim.P. 12.2(c)(2); Order, Apr. 7, 2005, ECF No. 101. Prior to any mental health testing the government was to provide to defense counsel a list of any tests its expert wished to perform; the list was not to include more than one test intended to assess the same functions; and the parties were to reach agreement on the testing or submit the issue to the Court for resolution. No mental health testing was to be performed by either party until a final decision was reached as to which tests were to be conducted by the government’s expert. See Order 2-3.

At a status conference on December 16, 2004, the Court set a trial date of May 3, 2005, with a deadline of January 21, 2005, for the filing of pretrial motions. Attorney Bunin represented that his mitigation specialist would be unavailable before May, but that the defense would be ready to begin jury selection that month. Status Conf. Tr. 3-4, ECF No. 255. Jury selection began on May 4, 2005, with individual voir dire, and continued through June 6, 2005. Prior to voir dire, prospective jurors completed a lengthy questionnaire. The jury was selected on June 9, 2005.

The guilt phase of the trial began on June 20, 2005, and ended on June 24, 2005. In his opening statement, trial counsel admitted that Fell killed Charles Conway, that Lee killed Debra Fell, that they then went out to look for a car, found Teresca King and took her and her car to New York. He stated that although Fell was still legally intoxicated, the next day he knew what he was doing when “they walked her into the woods, and Donnie Fell pushed her to the ground and he kicked her and Robert Lee kicked her, and Robert Lee picked up a rock and he smashed her head.” Trial Tr. vol. 1, 57:16-19, June 20, 2005.

Bunin’s rationale was to stress to the jury that Fell admitted responsibility for the crimes, but still to require the government to prove its case. The Court however queried whether Bunin had in fact made a judicial admission to the capital charges. Id. at 60-62. The defense presented no witnesses during the guilt phase and conducted very little cross-examination. On June 24, the jury returned a guilty verdict on all four counts. The penalty phase of the trial began on June 28, 2005, and extended for nine days.

Opening its case on July 1, defense counsel told the jury that they would hear expert testimony from Dr. Mark Mills, a medical doctor and psychiatrist, and Dr. Mark Cunningham, a psychologist. Counsel then presented evidence limited to Fell’s history before the age of fifteen. Counsel also introduced a “mitigation binder,” fifty-one exhibits consisting of more than three hundred pages of documents which included photographs, social services records, police records, hospital and psychological records and educational records. See Ex. List, ECF No. 202; Donald Fell Mitigation Binder, ECF No. 301, Ex. 1.

Some of the documents were difficult to decipher, several of them highlighted Fell’s aggressive behavior toward his mother as a child and some mentioned Fell’s apparent lack of remorse when confronted with the results of his behavior. Most of the documents were presented without testimony from penalty-phase witnesses to place the documents in context. On July 5, 2005, 2005 WL 1634067, Fell’s counsel received a lengthy report from Dr. Weiner. The report stated that Dr. Weiner had scored Fell on the PCL-R, a scale for the assessment of psychopathy. For the scoring, Dr.

Weiner relied upon behavioral observations of Dr. Wetzel’s videotaped interview of Fell, for which Dr. Weiner provided the questions. Counsel immediately moved to exclude Dr. Weiner’s report and testimony as violating the Court’s April 7 order, among other things. See Mot. in Limine to Exclude Report & Testimony of Michael Weiner, M.D., ECF No. 182. The Court interpreted the motion as seeking a Daubert hearing, as well as a review of the actions of the government attorneys and experts, and scheduled a hearing for the following Monday, July 11. Trial Tr. vol. 8-2, 72-85, July 6, 2005.

During the discussion concerning the scheduling of the Daubert hearing, trial counsel informed the Court that the defense had not received discovery with respect to the bases for Dr. Weiner’s opinions, including numerous interviews conducted along with the FBI. Id. at 75-76. The government indicated that it would provide the discovery. Id. at 77:3, 84:12-15. On July 7, before having received or reviewed this discovery, the defense announced that it would rest without calling any of its mental health experts, and withdrew its Rule 12.2 notice. Trial Tr. vol. 9-2, 3:9-15, July 7, 2005.

The defense took the position that the government would then be unable to call Dr. Weiner in rebuttal, but the government pointed out that the defense had introduced evidence concerning Fell’s mental condition through lay witnesses and through documents in the mitigation binder. Id. at 74-75. The Court noted that whether the government would call Dr. Weiner — and the allowable scope of his testimony — was an open question. Id. at 74:22-75:2; 75:12-23.

When the Court recessed on July 7, it had not determined whether the government attorneys or their experts had violated the Court’s April 7 order, and if so whether sanctions of any sort, including preclusion of testimony, was appropriate. It had not determined the scope of allowable rebuttal testimony from the government experts. Id. at 75-76. On July 8, the defense withdrew the mitigating factor that Fell was under mental and emotional disturbance when the crimes were committed.

The government sought a further stipulation that Fell was not mentally ill and was not suffering from any significant mental disorder at the time of the crimes, to which defense objected.

The Court proposed a stipulation that the defendant did not suffer from mental illness to the extent that it diminished his capacity to commit the offenses, and clarified that it would accept a stipulation that confirmed that the defense was not raising a diminished capacity defense to the charges, while leaving open the defense’s ability to argue that Fell’s background, including his mental health background, mitigated against the imposition of the death penalty. Trial Tr. vol. 10-1, 58-63, July 8, 2005.

Defense counsel however eventually agreed that the jury would be read the following stipulation: after his arrest in late 2000, Donald Fell was subjected to full psychological and psychiatric examinations. Those examinations determined that, one, he had no cognitive or neurological deficits; two, his intellect and cognitive functions were intact; three, he did not suffer from any mental disease or defect. The examination also found that Fell was competent to stand trial, and knew the difference between right and wrong at the time of offenses on November 27th, 2000. Trial Tr. vol. 11, 93:24-94:8, July 12, 2005.

The defense also sought to exclude any rebuttal evidence relevant to Fell’s teenage years, arguing that because the defense had not presented such evidence, it was irrelevant. The Court disagreed, finding that the years before Fell committed the crimes were relevant, although it made clear that it would appropriately balance the probative value and the prejudicial impact. Trial Tr. vol. 10-1, 63-66. The defense rested without calling its mental health experts, and the government did not call any mental health experts in rebuttal.

On July 14, 2005, the jury unanimously found that Fell should receive a sentence of death on the two capital counts.

In addition to the statutory aggravating factors, the jury unanimously found that the government proved beyond a reasonable doubt the following non-statutory aggravating factors: (1) that Fell participated in the abduction of King to facilitate his escape from the area in which he and an accomplice had committed a double murder; (2) that Fell participated in the murder of King to prevent her from reporting the kidnapping and carjacking to authorities; (3) that Fell participated in the murder of King after substantial premeditation to commit the crime of carjacking; (4) that Fell caused loss, injury and harm to the victim and the victim’s family.

Special Verdict Form, EOF No. 200. Although a substantial number of jurors found that Fell had demonstrated the existence of factors that would mitigate against imposition of a sentence of death, no juror found that Fell’s capacity to appreciate his conduct was significantly impaired; that he did not present a risk to prison officials or other inmates; or that he had shown remorse for killing King.

All of the jurors found aspects of Fell’s background to be mitigating factors, including his total life experience; childhood physical and sexual abuse; witnessing family violence; the lack of positive role models; his treatment and institutionalization for mental health conditions; that his parents were violent alcoholics who abandoned him as a child; his longstanding abuse of alcohol and drugs; and the failure of state social and mental health services to intervene in the abuse and to treat or address his early behavior. Id. Fell filed motions for judgment of acquittal and for new trial, which were denied.

On June 16, 2006, the Court imposed a sentence of death, consistent with the jury’s verdict. Fell timely appealed. On June 27, 2008, a panel of the Second Circuit Court of Appeals affirmed the judgment and the sentence. United States v. Fell, 531 F.3d 197, 240 (2d Cir.2008). His request for panel rehearing or rehearing en banc was denied. United States v. Fell, 571 F.3d 264, 264 (2d Cir.2009). The judgment became final on March 22, 2010, when the United States Supreme Court denied his petition for writ of certiorari. Fell v. United States, 559 U.S. 1031, 130 S.Ct. 1880, 176 L.Ed.2d 403 (2010).

On March 21, 2011, Fell timely filed this motion for collateral relief pursuant to 28 U.S.C. § 2255. In his motion, Fell claims that his counsel were constitutionally ineffective in manifold ways, that the government engaged in misconduct before and during trial, and that jury error deprived him of a fair and impartial jury.

In addition he claims that the United States Attorney General decided to seek the death penalty against him based on constitutionally impermissible factors, that as an individual who was developmentally a juvenile at the time of his crimes it would violate the Eighth Amendment to execute him, and that the manner of his execution would violate the Eighth Amendment. The government argues that all of Fell’s claims should be summarily dismissed on the pleading, or at least dramatically reduced. II. Legal Standards A.

Federal Collateral Review Pursuant to 28 U.S.C. § 2255, a federal prisoner in custody may move the court that imposed the sentence to vacate, set aside or correct the sentence on the ground that the conviction and/or sentence violates the. United States Constitution. 28 U.S.C. § 2255(a); see Davis v. United States, 417 U.S. 333, 343-44, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Although § 2255 affords a comprehensive remedy to a prisoner who makes a successful challenge, the remedy “does not encompass all claimed errors in conviction and sentencing.” United States v.

Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Respect for the finality of judgments requires that once a defendant has had an opportunity to present his federal claims through the direct appeal process a court may “presume that he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). There is thus a “basic distinction between direct review and collateral review[:] ... an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Id. at 165, 102 S.Ct. 1584.

Generally, a claim that was litigated on direct appeal cannot be raised in a § 2255 proceeding. See Cabrera v. United States, 972 F.2d 23, 25 (2d Cir.1992). An intervening change in the law may permit collateral review of such a claim, however, Davis v. United States, 417 U.S. at 342, 94 S.Ct. 2298, although “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague v.

Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). “[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Frady, 456 U.S. at 167-68, 102 S.Ct. 1584. An argument that the legal basis for the claim was not reasonably available to counsel at trial or on appeal may constitute cause for a procedural default.

Bousley v: United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). A prisoner may also obtain collateral relief if he can establish that the constitutional error probably resulted in the conviction of one who is actually innocent, by demonstrating that in light of all the evidence it is more likely than not that no reasonable juror would have convicted him. Bousley, 523 U.S. at 623, 118 S.Ct. 1604.

Trial counsel’s failure to recognize or raise the factual or legal basis for a claim does not constitute cause for a procedural default, as long as counsel’s performance is not constitutionally ineffective. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986). To demonstrate actual prejudice, Fell must show not “merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170, 102 S.Ct. 1584.

Where a petitioner claims to be “actually innocent” of the death penalty to which he has been sentenced, excusing a procedurally defaulted claim, he must show by clear and convincing evidence that but for a constitutional error no reasonable juror would have found him eligible for the death penalty under the applicable law. See Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (construing a § 2254 petition). B. Rules Governing

Section 2255 Proceedings According to the Rules Governing

Section 2255 Proceedings, the court to which the motion is submitted may summarily dismiss the motion “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.”

Section 2255 Rule 4(b); see Armienti v. United States, 234 F.3d 820, 823 (2d Cir.2000).

Summary dismissal may be appropriate if the motion is clearly inadequate on its face, or the record demonstrates that the moving party is entitled to no relief, assuming all the facts alleged in the motion and supporting papers are true. See Garcia Montalvo v. United States, 862 F.2d 425, 427 (2d Cir.1988) (per curiam); see also Menzer v. United States, 200 F.3d 1000, 1005-06 (7th Cir.2000) (holding that

summary dismissal is appropriate where the record conclusively demonstrates that a defendant is entitled to no relief). To warrant an evidentiary hearing Fell “need establish only that he has a ‘plausible’ claim ..., not that ‘he will necessarily succeed on the claim.’ ” Puglisi v. United States, 586 F.3d 209, 213 (2d Cir.2009) (quoting Armienti, 234 F.3d at 823); see also Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (holding that specific fact allegations, when viewed against the record, warrant

summary dismissal only when they are “palpably incredible,” or “patently frivolous or false” (internal quotation marks and citation omitted)). To make that determination this Court reviews the claims, the exhibits and relevant portions of the record, taking them in the light most favorable to Fell. If material facts are in dispute, an evidentiary hearing will be scheduled. See Puglisi 586 F.3d at 213 (“If material facts are in dispute, a hearing should usually be held, and relevant findings of facts made.”); accord Raysor v. United States, 647 F.3d 491, 494 (2d Cir.2011) (“ ‘[Second Circuit] precedent disapproves of

summary dismissal of petitions where factual issues exist[ ].’ ”) (quoting Pham v. United States, 317 F.3d 178, 184 (2d Cir.2003)). A movant who survives

summary dismissal may be authorized to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure for good cause.

Section 2255 Rule 6(a). Good cause exists “ ‘where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.’ ” Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (quoting Haris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969)) (discussing Rule 6(

a) of the Rules Governing

Section 2254 Cases); accord Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir.2003); Garafola v. United States, 909 F.Supp.2d 313, 335-36 (S.D.N.Y.2012). The scope and extent of discovery granted is committed to the discretion of the district court. Bracy, 520 U.S. at 909,117 S.Ct. 1793. III.

Claims Fell raises sixteen claims of ineffective assistance of counsel that individually or cumulatively require vacating his convictions and sentence and ordering a new trial; eight claims of prosecutorial misconduct; a claim that he was deprived of his right to an impartial jury in several ways; a claim that the United States Attorney General’s decision to seek the death penalty in his case was based on constitutionally impermissible factors; a claim that as an individual who was developmentally a juvenile at the time of his offenses, his execution would violate the Eighth Amendment; and a claim that his manner of execution would violate the Eighth Amendment.

A. Ineffective Assistance of Counsel Claims The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... .to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The Sixth Amendment’s “ ‘right to counsel is the right to the effective assistance of counsel.’ ” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). “The benchmark for judging any claim of ineffectiveness [is] whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. In Strickland, the United States Supreme Court set forth a two-part test for determining ineffective assistance of counsel, a performance prong and a prejudice prong. E.g., Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012).

A petitioner (1) “must show that counsel’s performance was deficient, so deficient that in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance, and (2) he must show that the deficient performance prejudiced the defense, in the sense that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Matthews v.

United States, 682 F.3d 180, 186 (2d Cir.2012) (internal quotation marks and citations omitted); accord Strickland, 466 U.S. at 687-694, 104 S.Ct. 2052. “Judicial scrutiny of counsel’s performance must be highly deferential,” and employ a strong “presumption that, under the circumstances, the challenged action or omission might be considered sound trial strategy. Id. at 689, 104 S.Ct. 2052 (internal quotations marks and citation omitted). Effective assistance of counsel encompasses a duty to investigate.

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Id. at 690-91, 104 S.Ct. 2052. The duty to make a thorough investigation extends to the sentencing phase of a. trial. E.g., Williams v.

Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The procedural default rule does not apply to claims of constitutionally ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

In considering a collateral attack based on ineffective assistance of counsel, the- district judge, often the one who presided at trial, “may take testimony from witnesses for the defendant and the prosecution and from the counsel alleged to have rendered the deficient performance,” id. at 505, 123 S.Ct. 1690, a procedure that allows consideration of the claim on a fully developed record. 1. Claim V The heart of Fell’s motion attacks trial counsels’ abandonment of their mental health case at sentencing.

Specifically, Fell alleges that midway through the penalty phase of his trial, after filing a motion to exclude the testimony of Dr. Weiner on Daubert and prosecutorial misconduct grounds — and before obtaining discovery, participating in a scheduled hearing or obtaining a ruling — counsel abandoned the motion, withdrew their Rule 12.2 notice, decided not to call any mental health experts, and agreed to a damaging stipulation.

They stipulated that Fell had no cognitive or neurological deficits; that his intellect and cognitive functions were intact; that he did not suffer from any mental disease or defect; and that he knew the difference from right and wrong at the time of the offenses. The defense had promised that the jury would hear from their mental health experts. Instead the last piece of evidence the jury received was the stipulation. The government stressed the stipulation in its summation and rebuttal summation.

Withdrawal of their expert mental health evidence was inconsistent with the defense strategy as presented in their opening statements during the guilt and penalty phases of the trial. The government contends that trial counsel were making strategic decisions that were neither objectively unreasonable nor prejudicial to Fell’s case. From its standpoint, counsel were faced with two very damaging reports by two credible mental health experts, Drs. Wetzel and Weiner, and made a reasonable strategic decision to withdraw their mental health case to prevent the jury from hearing their testimony.

The Court finds that, crediting the facts as alleged by Fell, Claim V states a plausible, non-frivolous claim. The Court cannot determine without further development of the facts whether the decision to withdraw the mental health case was a reasonable strategic decision. At a minimum, Fell has proffered that lead counsel Bunin was mistaken in thinking that the Court had already ruled that Dr. Weiner could testify. See Fell Ex. 264 at ¶ 51; April 24, 2006 Op. & Order 11-12, 23-24 & n.6, ECF No. 236.

Fell should have the opportunity to show that this and other factors nullified trial counsels’ ability to make an informed strategic decision. 2. Claim IV Fell’s motion faults the failure to conduct an adequate investigation into an array of mental health impairments, arguing that the investigation failed to meet prevailing professional norms, missed obvious signs of impairment and essentially ceased once counsel believed they had negotiated a plea agreement. In December 2004, when the defense issued its Rule 12.2(

b) notice, trial counsel had not reviewed the case with any of the doctors they had retained in early 2001 in connection with presenting a mitigation case for negotiating a plea, nor did they ask their experts to conduct more thorough evaluations or update their reports. Dr. Mills, who the defense had indicated would testify at trial, never received a complete social history of Fell, and counsel had only limited discussions concerning his report or expected testimony. See Fell Ex. 260. Bunin met Dr. Mills the day he was scheduled to testify. The government responds that the investigation was reasonably thorough.

The neurological, psychological and psychiatric experts who trial counsel retained and with whom they consulted found no significant cognitive impairment or mental health abnormalities. The defense obtained medical records from Fell’s psychiatric hospitalizations and information from family members, teachers, social workers, police officers and others to construct a social history. .

Although Fell contends that the information provided to his mental health experts was incomplete and inadequate, none of them labeled their findings preliminary or provisional or recommended that the defense supply additional background information. Claim IV also states' a plausible, non-frivolous claim. Whether the mental health investigation was adequate, and whether counsel missed obvious signs of mental impairment, depends on resolution of disputed facts, and cannot be determined without development of the record. 3.

Claim III Fell’s motion faults the failure to investigate and present readily available mitigation evidence. More than four and one half years elapsed between his arrest and his trial. During part of that time the defense believed it had a plea agreement, and between September 2002 and October 2004 the case was on appeal. From mid-2002, when pretrial motions — including the motion to declare the federal death penalty statute unconstitutional — were filed, until October 2004 when the mandate returned to this Court, neither Fell’s lawyers nor the mitigation specialist did any work to prepare the case for trial.

See Primomo Deck, Fell Ex. 263; Bunin Deck, Fell Ex. 264; Ayres Deck, Fell Ex. 265. Fell asserts that the mitigation specialist, at trial counsels’ direction, did very little work on his case during this time period. She did some preliminary investigation in the first half of 2001 to provide support for the plea negotiation, but did not complete a social history investigation. See Ayres Deck ¶ 4. By late 2004 and early 2005, the mitigation specialist had limited time to work on Fell’s defense, and she was unable to complete a social history investigation for a comprehensive mitigation presentation. See id. ¶ 9.

She spent very little time with potential witnesses, or with Fell. See id. ¶¶ 9-10. She did not oversee the collection of documents such as school and social services records that would be relevant to a mitigation case. See id. ¶¶ 11-12.

Fell argues that as a result the defense team failed to obtain readily available social history records, failed to investigate the aggravating factors it expected the government to present, conducted cursory interviews of Fell and his sister, failed to meet and interview other family members or neighborhood witnesses, and failed to obtain a complete social history of their client. Fell’s mental health experts received incomplete information about his background.

At the penalty phase of trial the defense introduced a “mitigation binder” that consisted of hundreds of pages of documents, for the most part presented without context. The significance of the documents was left to the jury to determine, essentially without guidance from the defense witnesses.

The government emphasizes that the defense presented fourteen witnesses in the penalty phase, who collectively testified about Fell’s childhood in a sufficiently compelling manner as to persuade the jurors to find unanimously that he was sexually and physically abused as a child, that his parents were violent alcoholics who abandoned him, that he was hospitalized several times for mental health conditions as a child and teenager, and that he began regularly abusing alcohol and drugs as a child and continued to do so until the time of his arrest. Special Verdict Form 13-14.

In addition, a substantial majority of jurors found that Fell was raised without positive role models, that he was forced to witness family violence, including seeing his parents stab each other, and that his total life experience and the failure of state services to intervene constituted mitigating factors. Id.; see also Fell, 531 F.3d at 230-31 (noting that Fell presented “extensive mitigation evidence”). That trial counsel did not discover or present additional mitigating background information was professionally reasonable, argues the government.

Fell has alleged on the basis of numerous extra-record sworn declarations that the jury heard a superficial, truncated and inaccurate narrative of his life. He has provided declarations from the defense team that suggest that the failure to conduct a more extensive investigation into Fell’s background was not reasonable, and that the failure to present a complete social history to the jury, including his teenage years, was therefore not an informed decision. Fell has raised factual issues with respect to deficiency, and is entitled to present evidence on this issue.

Deficiency and prejudice may be found where counsel presented a “superficially reasonable” mitigation theory during the penalty phase. Sears v. Upton, — U.S. -, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010) (per curiam). “[Counsel’s effort to present some mitigation evidence [does not] foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant.” Id. That inquiry must be “probing and fact-specific.” Id.

Given that the Court’s task will be to assess the probability of a different outcome at sentencing, it must “ ‘consider the totality of the available mitigation evidence — both that adduced at trial, and the evidence [proffered in the post-conviction proceeding]— and reweig[h] it against the evidence in aggravation.’ ” Id. (quoting Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (second alteration in original)). That task cannot be accomplished at the

summary dismissal stage. 4. Claim VI — Ineffective Assistance of Counsel a. Christopher Eike assault On February 26, 2002, the government gave notice of its intent to introduce evidence of other crimes, wrongs and acts committed by Fell. ECF No. 35. Included in that notice was conduct mentioned by Fell in his interviews with law enforcement between November 30 and December 2, 2000. In a telephone interview of Fell by New York State Police senior investigator Tom Aiken, Fell stated that he had “caught” a “dude” trying to rape his sister and “put him in a coma for a day.” Fell Ex. 60 at 36.

On the second day of trial FBI Special Agent Jimmie Caudle testified about the statements Fell made during this interview as part of the government’s case in chief: Fell also advised that, that he had gotten into some legal trouble at the most recent Woodstock Festival. And there was an incident where, as Fell described it, he quote beat the shit unquote or end quote out of an individual who he said was trying to rape his sister. Lee advised that he put the guy in a coma for about a day and that charges were eventually dropped against Mr. Fell. Trial Tr. vol. 1, 6:17-7:1, June 21, 2005.

In addition a tape recording of this statement was played to the jury. Id. at 36. Prior to trial, Fell moved in limine to exclude evidence of prior acts and to require the government to make a specific proffer describing the testimony. ECF No. 93. The government’s proffer in opposition did not mention this incident as one of the acts it intended to introduce. ECF No. 112. The Court denied Fell’s motion without prejudice, suggesting that Fell move to exclude specific acts to which he objected.

No further motion was filed on this issue, nor did trial counsel move to redact the transcript of Fell’s interview, nor did trial counsel object to the testimony by Agent Caudle. In the penalty phase of trial, the defense called Fell’s sister, Teri Fell. On cross-examination the government asked Teri about the incident. Q Was there a time when you also saw your brother be very angry and use his feet? A ... I’m not sure what you are referring to? Q Did you ever see him kick someone violently? A Yes. Q What did you see him do? A He beat a kid up and he was kicking him. Q How serious was it? A It was pretty serious.

Q Did the kid go into shock and into a coma? A Yes, he did. Q And in terms of what your brother did to this person, did he do anything other than stomp on the person? A He punched him. Q Did he urinate on him? A Yes. Trial Tr. vol. 7-1, 146:15-25; 153:13-18, July 1, 2005. On redirect, the defense elicited that she and her brother were among a group of young people who were doing drugs at the festival the summer before Fell came to Vermont. One of them, Christopher Eike, was grabbing her and trying to kiss her and she told him to stop or she’d have her brother beat him up.

He did not stop; Fell asked him to stop; Eike punched Fell and Fell and others beat Eike, and hurt him, as Teri put it, “very badly.” Id. at 157:25. The redirect examination then focused on Fell’s acceptance of responsibility for the assault. On re-cross, the government asked again about the assault: Q And what did they specifically do? A They punched him and kicked him, and then Donnie urinated on him, and then covered him up with a shirt because he was wet. * * * Q How many times did they kick him? A I don’t know. Q Was he unconscious at one point? A At the end he was unconscious.

Q How many times do you think they kicked him until he became unconscious? A I don’t know. Q Was it clear that the person was defenseless? A Yes. Q And he kept kicking him? A Yes. Q Now, he began to shake, right, on the ground because of the shock? A Yes. Q And so at that point, he was unconscious and trembling on the ground? A Um hum. Q And your brother urinated on him? A Yes. Id. 161:1-162:13. In summation the government pointed out the similarities between the two assaults that occurred just a few months before the crimes in this case. What did she tell you?

Donald Fell committed a horrible, violent assault on a person the same way he then later killed Terry King. He did it intentionally. He did it violently. And he did it with the utter depravity that you have heard about in this ease. He did it in that case. Remember what he did after he beat that man with his feet into a coma. Trial Tr. vol. 12, 60:12-19, July 13, 2005. In rebuttal, the government reiterated: “It wasn’t enough for him, in New York, in August 2000, to knock that guy down and to stomp him into a coma. Then he urinated on him as the guy lay convulsed.” Id. 124:5-7.

In addition to Fell’s post-arrest statements, the government provided trial counsel with a copy of the New York state police incident report and statements taken from Fell and Lee by the Sullivan County Sheriffs Department, as well as statements from Lee’s brother and an additional witness. Counsel also received, prior to trial, a copy of the FBI’s report of its interview with Eike on June 15, 2005 at a state correctional facility in Pennsylvania. Eike confirmed that the group were high.

He stated that Fell punched him in the face, Eike fell, Fell punched him repeatedly in the face and slammed his head against the floor. Fell urinated on Eike’s leg and kicked him in the head and ribs. Eike passed out and regained consciousness in an ambulance. Fell Ex. 129. Counsel did not receive a copy of Eike’s criminal history, nor apparently was one requested. The defense team did not attempt to interview Eike, or any of the others present during the incident, with the exception of Teri Fell.

The team did not attempt to explore the extent of Eike’s injuries or whether the comments about him being in a coma were true. According to information obtained by post-conviction counsel, Eike’s injuries were significantly over-reported: he was treated for shock at the scene, and transported to a local hospital where he was treated for a scalp contusion and knee pain and released. See Fell Ex. 56, 286. There was evidence that Eike had been briefly unconscious; there was no evidence that Eike had ever been in a coma.

Fell claims that trial counsel were ineffective for failing to investigate an allegation that counsel were on notice that the government would attempt to use, both as 404(

b) material in the guilt phase and as an aggravating factor in the penalty phase. The government argues that an attempt to portray Eike’s injuries as minor would have been inconsistent with the defense strategy to portray Fell as accepting responsibility for his actions. The trouble with its argument at this stage of the proceedings is that it is not clear whether such a strategy was the product of informed decision-making, given the apparent failure to investigate the incident. For purposes of withstanding

summary dismissal, Fell has adequately pled that counsel were ineffective for failing to investigate and to counter the Eike assault allegation. b. Gacek shooting Fell also mentioned in his statements to law enforcement on December 2, 2000, that when he was a child he accidentally shot his friend John Gacek in the shoulder. Fell Ex. 62. Defense counsel were on notice as of February 26, 2002, that the government intended to introduce evidence of other acts that Fell mentioned in his interviews. ECF No. 35.

In his pretrial motion in limine Fell sought to require the government to specify which acts it intended to introduce. ECF No. 93. The government responded with seven specific acts, none of which were the Gacek incident, but also stated that it expected to offer Fell’s confessions at trial, which did include mention of the Gacek shooting. As with the Eike incident, Fell made no further attempt to preclude mention of the Gacek shooting at trial. The government introduced Fell’s statements to law enforcement as part of its guilt-phase case in chief.

In its penalty-phase opening statement, the government stated that Donald Fell’s pattern of uncontrollable behavior began to take a turn for the worse when he was about 11 years old, and between the ages of 11 and 13, his behavior led to several admissions in psychiatric hospitals.... In April 1992 he was institutionalized after shooting a boy with a nine millimeter pistol, barely missing his heart. This was the episode you heard him describe in one of his taped admissions when he said that the boy jumped in front of the bullet.

Hospital records from the time state that Fell, quote, shows no remorse, and threatens to shoot his mother, close quote. After more counseling sessions with doctors, family and healthcare providers, Fell was released after he expressed remorse and apologized to his mother. Trial Tr. vol. 5-1, 39:8^0:9, June 28, 2005. Fell’s mitigation binder included records from the Wilkes-Barre General Hospital from April 1992 where he was referred at age eleven, three days after the shooting.

The records summarized the incident: “Three days ago, Donald and his friend were playing with a 9 mm. police handgun which belonged to the other boy’s father. The gun went off while Donald was holding it and the other boy was hit in the shoulder.” Mitigation Binder, Ex. 25.

The records also refer to other complaints of violent behavior toward others, and document that although at first Fell bragged about the shooting and was “oppositional” and “defiant”, after some time in the hospital with counseling and adjustment of medications he “seemed to greatly regret the incident” and “[a]t the time of discharge ... showed genuine remorse for shooting his friend.” Id.

In cross-examining Fell’s social worker, Deanna German, however, the government showed her and quoted a hospital record from the following year that summarized Fell’s past history as having “ ‘accidentally’ shot a boy in the chest with a handgun.” In its penalty-phase summation, the government stated again: what happened was there was a new problem within [the Fell] family. That was Donald Fell. He became violent.

He began to make choices about keeping knives in his room, about throwing things at other people, at stabbing one of Teri Fell’s friends, of unfortunately, almost tragically, shooting one of his friends. That’s the beginning of Donald Fell. And that’s the first glimpse we have of the Donald Fell that we now have today, and who he became. Trial Tr. vol. 12, 56:8-16, July 13, 2005. Returning to its theme, the government stated: Why is [Fell] being sent to the [psychiatric] hospital? He is being sent to the hospital because he’s violent. And the violence is extreme. The violence is him keeping knives.

The violence is anger towards his mother. Threats towards his mother. Throwing things at his mother. Throwing knives at his mother. Danger to his sister. Picking up a weapon. He claims, accidentally, shooting another child. Id. at 58:20-59:3. Fell claims that trial counsel were ineffective for failing to investigate the circumstances of the shooting. There were several available witnesses who would have confirmed that the incident was an accident.- None were interviewed by the defense team.

Fell’s friend John Gacek would have testified that he was showing off his father’s gun, and that “[i]t was a stupid mistake, and I still feel that it was my fault.” John Gacek Deck, Fell Ex. 251. Gacek’s mother would have testified that “[immediately after the accident, Donny was upset and scared. John spent the night in the hospital, and Donny came to see him at our house the next day. Donny ran over to John and put his arms around him, and they both started to cry. They held on to each other for a long time.” Adele Gacek Deck, Fell Ex. 252.

Gacek’s stepfather would have testified that after the accident Donny was scared and worried about John, who was his best friend. Donny felt terrible about what happened. After John got home from the hospital, Donny came over to see him. Donny was very upset and remorseful. John and Donny were hanging on each other like two little girls, both crying. They kept saying, ‘You’re still my friend. You’re still my friend.” We knew that Donny felt bad about what happened. Schuldaski Deck, Fell Ex. 253.

The government argues that the testimony of these witnesses would not have added to the information that the defense already had, from Fell himself and from the hospital records, but merely offered a different point of view. From the hospital records and Fell’s statements, the government repeatedly indicated to the jury its skepticism that the shooting was accidental or that Fell felt remorse for his conduct. The Gacek family’s different point of view is exactly what Fell argues was essential to persuade the jury that the shooting was accidental and his remorse genuine.

Although taken alone, the failure to investigate the Gacek shooting incident further might not constitute ineffective assistance of counsel, where Fell is arguing that multiple instances of failure to investigate cumulatively amounted to ineffective assistance,

summary disposal of the allegation is not warranted. 5. Claim VII — Ineffective Assistance of Counsel During the penalty phase, the defense presented evidence to support the mitigating factors that

(1) Fell did not present a risk to prison officials or other inmates if he was sentenced to life in prison without possibility of release (Mitigation Factor 5), and

(2) Fell had made positive contributions to the correctional facility by working, gaining an education and helping to resolve inmate grievances (Mitigation Factor 6). In rebuttal, the government submitted Fell’s disciplinary record and two videotapes of incidents in which Fell failed to comply with commands and showed aggressive behavior to correctional officers. A videotape of an incident on March 17, 2004, depicted Fell being verbally aggressive and eventually spitting at a correctional officer named Marc Pelkey.

According to Fell’s motion, trial counsel knew about the March 17 incident as early as February 2005, including the name of the officer. On May 18, counsel was informed that the government might call Officer Pelkey as a witness. Counsel did not request the disciplinary or grievance records of any of the officers involved. Had counsel investigated, they would have learned that Pelkey had a record of using excessive force against inmates, that he had been required to attend anger management classes and that he had been investigated for using excessive force following the March 17 incident with Fell. Fell Ex. 256. .

The government used the prison incident evidence to argue against according Fell’s Mitigating Factors 5 and 6 any weight, contending that “the violations have increased,” “they have gotten more serious,” and “it’s getting worse.” Trial Tr. vol. 12, 46:22-3; 47:2, July 13, 2005. Further: “Maturing in prison? You saw him on those videotapes;” “Donald Fell’s going to be a problem in prison. And that should be obvious to everyone.” Id. at 47:11-12; 48:4-5.

In its cross-examination of Fell’s case worker at the correctional facility, the government elicited testimony regarding Fell’s involvement in religious activities of a variety of different faiths, including participation in Christian Bible studies, fasting for Ramadan, and Native American rituals. The case worker also testified that Fell had filed grievances and a lawsuit requesting Native American services at the facility. The implication was that Fell’s interest was insincere and manipulative, and that he was a troublemaker. The government stressed this in its summation: Let’s get real....

What positive contributions has this man made to the Northwest Correctional Facility? ... They want to claim that he is a positive contribution in resolving grievances? You heard from Jason Rushlow. The man generated grievances. Are you kidding me? You saw the lawsuit.... This man signs up for bible study, and then files a lawsuit claiming to be ... a native American. He files a lawsuit so that he can practice his Native American religion on the yard. It’s bogus, ladies and gentlemen. You know it’s even more bogus because, believe it or not, he observes Ramadan as a Muslim. Id. at 48:13 — 19:4.

Present in the courtroom for much of the trial was Deacon Steve Ratte. According to his declaration, he would have been able to present this information accurately and in a positive light. Deacon Ratte is a member of the Catholic church who has ministered to inmates at the correctional facility for twenty-eight years. He began meeting regularly with Fell for several years before his trial.

Deacon Ratte would have testified that Fell took his involvement with religious services very seriously and was interested in learning about other religions, that he was intellectually curious and wanted to be involved in many of the limited activities that the facility offered, including exploring other religions and thinking critically about them. Fell Ex. 255. He could have provided additional positive information about Fell’s interactions with other inmates. Trial counsel did not seek to have Deacon Ratte testify. He was willing to. They never met with him to learn what evidence he could provide.

According to Fell, Ratte’s testimony would have countered the suggestion that his participation in a variety of religious activities was an insincere and cynical manipulation, and would have offered a positive view of Fell’s behavior in a prison environment. The government contends that it was reasonable not to call Deacon Ratte, and that even if it was error Fell cannot show prejudice.

Where, as here, Fell argues that collectively trial counsels’ errors were prejudicial, he has adequately alleged ineffective assistance in the failure to investigate and present available evidence to mitigate or counter the government’s case against according any weight to mitigation factors 5 and 6. 6. Claim VIII — Ineffective Assistance of Counsel a.

Evidence regarding co-defendant Robert Lee Fell claims that trial counsel were constitutionally ineffective in failing to investigate Robert Lee and failing to interview a witness who claimed to have seen Lee, Fell and Teresca King by the road near where she was killed. He argues that the jury was deprived of information that would demonstrate that Lee was the more culpable of the pair, in contrast to the government’s portrayal of Lee as less aggressive and a follower.

At an early point in their representation of Fell, trial counsel successfully moved to prevent any evidence of Fell’s relationship with his co-defendant Lee from reaching the jury. Government mental health experts were not permitted to question Fell about his relationship with Lee. Lee’s post-arrest statements were excluded from trial. Several letters written by Lee from jail were also excluded. These letters and statements suggested that Fell, not Lee, was the leader and instigator of the crimes.

Trial counsel also was in possession of information that suggested that Lee had instigated the death of King: Fell’s post-arrest statements, and a preliminary mental health evaluation of Fell that concluded that he was easily dominated by others. Mills Report, Fell Ex. 3 at 5. Trial counsel were on notice that Lee was a disturbed individual, information that included the circumstances of Lee’s death on September 20, 2001.

Trial counsel did not request or receive discovery from the government concerning Lee, nor did they ask their mental health experts to examine the relationship between Fell and Lee, nor did they conduct their own investigation into the relationship between the two. See, e.g., Primomo Decl. ¶ 11, Fell Ex. 263; Bunin Deck ¶ 38, Fell Ex. 264. In its guilt-phase summation the government stressed that although Fell admitted the basic facts of the crimes, he “la[id] off a lot of the responsibility on Bobby Lee.” Trial Tr. vol. 4-1, 51:22-23, June 24, 2005; see also idl 65:13-15.

Near the close of its argument, the government stated: “And if there was any more doubt about the dominance of Donald Fell in the Lee-Fell relationship listen to what he said when the police officer asked him .on tape what he would have done at the Price Chopper if Lee had tried to stop him from car jacking Terry King.” Id. 71:22-72:2,. It then played the tape recording of Fell boasting that if Bobby had held the shotgun on him “I would have stuck it up his ass.” Fell Ex. 62. at 29.

At the outset of the penalty phase of the trial, the defense had alleged as a mitigating factor that “Donald Fell would not have committed the crimes without the influence of Robert Lee.” Trial Tr. vol. 11, 16:9-11, July 12, 2005. Trial, counsel avoided presenting any evidence about Lee or his relationship with Fell. At rebuttal, the Court ruled that the government could present evidence that Fell was the leader of the two, but could not present evidence concerning Lee’s character, because none had been introduced by the defense. Id. at 16-17.

The government moved to strike the mitigator, and trial counsel moved to amend the mitigator to state that Donald Fell and Robert Lee acted in concert in committing the crimes (Mitigating Factor 10). The Court accepted the amendment. In rebuttal, the government presented the testimony of a childhood friend of Fell and Lee who testified that Fell was a •leader and agreed that Lee the quietest and least violent of the group. Id. at 46:12-47:5. The government argues in favor of

summary dismissal that presenting no evidence to the jury concerning Fell’s relationship with Lee was an informed strategic decision, based on trial counsels’ concern that this would open the door to damaging evidence in rebuttal. Without discovery and further development of the record, however, it is not possible to determine that the decision not to present evidence of Lee’s character or relationship with Fell, if strategic, was an informed and reasonable one. b.

Evidence regarding Francis Bellantoni Francis Bellantoni supplied a statement to the New York state police on December 12, 2000, in which he described seeing a car by the side of state highway 22 in Dover Plains, New York, on his way to work. He noticed the car had Vermont license plates, that two men outside the car were apparently arguing, and that a woman was sitting in the back seat of the car. After he had passed the car he returned to retrieve his cell phone which he had left at home.

He passed the car again, and this time he noticed that the woman was walking towards the woods, with the two men about eight to ten feet behind her. When he passed by again on his way to work, the car and the people were gone. See Bellantoni statement, Fell Ex. 68. Bellantoni’s statement was provided to the defense.. The defense did not interview him. Had the defense interviewed Bellantoni, they would have learned the following additional information.

Although Bellantoni could not identify either man, he observed that one was yelling at the other, and that the second time he observed the pair, the one who had been yelled at was trailing behind the other as the three individuals approached the woods. See Fell Ex. 301. Fell argues that this information provides critical evidence to support the defense theory that Fell and Lee were arguing because Lee was in favor of killing King while Fell wanted to let her go. See December 1, 2000 Fell statement, Fell Ex. 60.

The government argues that even assuming that the three individuals were Fell, Lee and Terry King, and that Bellantoni — traveling in his car at speed on the highway — made accurate observations, there is no way of knowing which man was the apparent aggressor. Trial counsel used the Bellantoni evidence in opening: “a passing motorist saw [Fell and Lee] arguing by the side of the road.” Trial Tr. vol. 1, 57:12-14, June 20, 2005. Conducting further investigation of this witness would not, it contends, have supported the defense theory that Lee was the aggressor.

The argument that the failure to investigate was sound strategy cannot be resolved on

summary dismissal. Trial counsel emphasized Fell’s hesitation over killing King and that Fell and Lee disagreed about whether to do so. Yet the only evidence before the jury on this point was the arguably self-serving statements of Fell upon his arrest. Bellantoni’s observations corroborated Fell’s statements. The issue is not whether the jury would have credited Bellantoni’s testimony had the defense called him, but whether trial counsel made an informed decision not to interview the witness at all. 7.

Claim IX Fell claims that his trial counsels’ failure to conduct an adequate forensic investigation constituted ineffective assistance of counsel. From the outset of the case trial counsel pursued a strategy of acceptance of responsibility. As a consequence they conducted no forensic investigation into the relative roles of Fell and Lee in the death of Teresca, King.

They were unable to present any forensic support for their contention that Fell would not have committed the crimes but for the influence of Robert Lee, a contention that was modified during the penalty phase of trial to assert that the two acted in concert. The government consistently portrayed Fell as a leader and Lee as quiet and less violent. More significantly, the forensic pathologist who conducted King’s autopsy, Dr. Michael M.

Baden, indicated in his autopsy report and in testimony at trial that King died as a result of both the blows to her face and consequent brain injury, and the compression of her neck with asphyxia. See Autopsy Report, Fell Ex. 65; Trial Tr. vol: 5-1, 89-90, June 28, 2005. Dr. Baden gave his opinion that a rock wielded by one of her assailants caused extensive skull fractures and brain injury, and the neck injury was consistent with having been stomped by a boot. Id. at 83, 86-88. From Fell’s statements to police the defense had information that Lee had hit King with a rock and that Fell had used his feet.

Fell Interview Dec. 1, 2000 at 22, Fell Ex. 60. Fell has submitted a report from Dr. Charles V. Wetli, a board-certified forensic pathologist and former chief medical examiner, who reviewed the autopsy report and concluded that there was no evidence of asphyxiation, and that the damage to King’s brain from the injury caused by the rock would have resulted in immediate loss of consciousness. In his opinion the “stomping and kicking did not inflict any lethal-injuries,” and the sole cause- of death was “blunt craniocerebral trauma.” Wetli Report, Fell Ex. 306.

In capital cases a defendant’s “punishment must be tailored to his personal responsibility arid moral guilt.” Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). A sentence of death “may not be imposed unless the sentencer has examined the defendant’s ‘own personal involvement in the crimes.’ ” United States v. Webster, 162 F.3d 308, 322 (5th Cir.1998) (quoting Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987)).

Section 3591(a)(2)(A)-(

D) of Title 18 United States Code requires a jury to find one of four “gateway” mental intent factors beyond a reasonable doubt before it may consider whether a sentence of death is justified. In Fell’s case the jury, unanimously found that the government had proven all four factors beyond a reasonable doubt. Special Verdict Form, ECF No. 200. Fell claims that trial counsels’ failure to investigate the forensic evidence deprived him of the argument that he was not death-eligible because his actions did not directly result in King’s death. The government takes issue with some of Dr.

Wetli’s conclusions, and the significance that Fell would place on those conclusions. More importantly, it argues that even if Dr. Wetli’s testimony would have supported a challenge to the first two intent factors, Fell would still have been death-eligible under the last two intent factors. These factors apply if Fell participated in

an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, or if he intentionally and specifically engaged in

an act of violence, knowing that the act created a grave risk of death, and the victim died as a direct result of the act. 18 U.S.C. § 3591(a)(2)(C), (D). The challenge to the forensic evidence is relevant to all four factors, however. The “act” in the case of factor C and the “act of violence” in the case of factor D must directly result in the victim’s death. Armed with this forensic evidence, counsel could have argued that it was Lee whose actions directly resulted in Teresca King’s death, and that she was not “killed twice.” Dr. Wetli’s report does not of course establish that Dr.

Baden’s conclusions were invalid or unsupported, or that Fell was ineligible for the death penalty. Fell’s claim is that trial counsel unreasonably failed to conduct a forensic investigation that might have clarified his and Lee’s respective roles in a situation where a jury was required to make an individualized determination of Fell’s intent in order to find him eligible for the death penalty. Instead, counsel accepted uncritically and argued to the jury that Fell “was directly responsible ... for at least one of the causes of death of Mrs. King.” Trial Tr. vol. 12, 79:22-24, July 13, 2005.

Summary dismissal of this claim is not warranted. 8. Claim X The government alleged as a statutory aggravator that Fell “committed the offense in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse to Teresca King.” Superseding Indictment, ECF No. 57. In its penalty-phase opening statement, the government stated: “[Y]ou will learn that as Terry lay on her back in Dover, her head was kicked so savagely that teeth were knocked out, later found on both sides of her body. One of her earrings was found several feet away.

You will hear that her throat was crushed by a boot pressing down on her neck with about 150 pounds or more of pressure.” Trial Tr. vol. 5-1, 36:12-18, June 28, 2005. The evidence established that an earring, and the post for that earring, were found approximately three to four feet from King’s head, around her mid-thigh. Two teeth were recovered, one to the left of her body by her left forearm, and one above and to the right side of her head. Id. at 64-65. Dr. Baden testified that King’s body had been lying where it was found for a number of days.

There was evidence of blunt force injury to her head and fractures of skull and jaw bones. There was also evidence of injury to her neck: fractures of her right collar bone and extensive damage to the windpipe and Adam’s apple. Id. at 80, 82-83. Dr. Baden opined that “[t]he pressure on the neck ... indicated severe compression of the neck by a powerful force---- [T]hese injuries were much more extensive than what we would see in a hand compression of the neck.” Id. at 83:16-21. The government drew Dr.

Baden’s attention to Fell’s and Lee’s boots, and he opined that a boot of that type would cause the injuries he observed to the neck area, “And that could all be done with one forceful blow, one forceful — when I say stomp, a real hard impact with the type of boot that I examined.” Id. at 87:19-25. The government asked “about how many pounds of pressure were required to do that.” Id. at 88:25-90:1. Dr. Baden responded: You need more — more than — more than 150 pounds of pressure; from various informations we have from examining dead bodies, that just leaning on the neck wouldn’t be enough.

There would have to be a forceful application of at least 150 pounds of pressure, because normally, for example, normally we see people hang themselves, and when people hang themselves, there’s no fractures. Even though the person may weigh 200 pounds, and the head weighs about 12 pounds, so there’s 190 pounds of pressure, it doesn’t cause a fracture, but if that same amount of force were brought down with — that’s why I use the term stomp — with a force, then that would cause a fracture. But not just the pressure itself. It’s the focal, sudden application of that pressure. Id. at 89:2-16. Dr.

Baden concluded that King died from the blows to her head and the injuries to her brain, and the injuries to her neck: ... I think in the combination of both, I think most of the injuries, she was still alive, alive from the point of view of the heart’s still beating. Unconscious most probably from the first blows to the face, but that there was kind of an overkill. There were many more injuries that were produced, caused, than would have been necessary for her to die. Id. at 90:7-13.

On cross-examination, defense counsel established that it was impossible to tell which boot caused the injuries, and that an individual intent on killing might not have known that he was inflicting more injury than necessary to kill. Id. at 91, 94. In its opposition to the defense’s motion for judgment on this aggravating factor, the government stressed Dr. Baden’s testimony describing King’s injuries as “overkill,” and that King’s neck sustained injury consistent with 150 pounds of pressure being exerted, noting that neither assailant weighed more than 135 pounds, and contending that one of them jumped on her.

See Trial Tr. vol. 6, 73-74, June 29, 2005. It also emphasized the location of teeth and the earring at the crime scene, indicating “gratuitous additional injuries” and “violence or a struggle above and beyond the lethal blows.” Id. at 75:11-17. The Court denied the motion for judgment, noting among other things, “separate impact injuries to [King’s] mouth and jaw, sufficient to dislodge two of her teeth” which were recovered on opposite sides of her body. Mem. & Order 2, ECF No. 173.

In summation the government reminded the jury that one tooth was found on one side of King’s body, and one tooth on the other, and argued: “What does that mean? That means that there were separate blows one way, and then another [blow] the other way. They were so powerful that her teeth came out of her mouth whole. But those blows did not kill her.” Trial Tr. vol. 12, 23:7-11, July 13, 2005. The government argued further: You remember the testimony. The earring and post were found even further from her body. What does that mean?

That means either that the assault of Terry King began when she was standing up several feet from where she was found, and they were hitting her so hard that it literally was torn off, or that this was part of the further stomping in this case by the defendant, where again, she was hit so hard that earring was literally driven off the side of her head. Id. at 23:19-24:2. Finally in support of this statutory aggravating factor the government argued that King was “actually killed twice,” that “[i]n Dr. Baden’s opinion, this was overkill,” and that she was “killed multiple times.” Id. at 24:21-22; 25:14.

Fell submits that trial counsel were ineffective for failing to investigate and challenge the forensic evidence. The autopsy report indicated that King’s “right earlobe [was] largely absent due to ... animal activity.” Fell Ex. 65. Despite this indication that the earring, if belonging to King, might have been transported away from her body by an animal, counsel did not challenge the evidence or the inference that the earring had been knocked from her head by the blows she sustained. Fell’s expert Dr.

Wetli has opined that the displaced earring and teeth were the result of animal activity and not the result of blunt force trauma. Wetli -Report, Fell Ex. 306. Fell also argues that trial counsel were ineffective for failing to challenge the scientific basis for the government’s contention that 150 pounds of force were applied by a boot to crush King’s neck, and failing to challenge the scientific basis for the government’s contention that she was killed more than once. Fell’s expert Dr.

Wetli is of the opinion, to a degree of reasonable medical certainty, that there is no basis for the conclusion that 150 pounds of pressure were applied to Mrs. King’s neck, that there were no signs of asphyxia, and that the sole cause of death was blunt force trauma to the head. Id. Fell has adequately pled that trial counsels’ failure to obtain a forensic pathologist’s review or otherwise to investigate the facts upon which they knew the government would rely to prove the statutory aggravator of serious physical abuse was constitutionally deficient. 9.

Claim XI Fell claims that his trial counsel were ineffective for failing to conduct a forensic or fact investigation into the deaths of Debra Fell and Charles Conway. Trial counsel apparently did not request or were not provided with complete discovery concerning the Rutland homicides, and the Rutland City Police Department has refused to provide access to certain documents and physical evidence to post-conviction counsel. The government protests that Fell’s Claim of ineffective assistance for failure to uncover exculpatory forensic evidence is therefore speculative and fails to state a claim.

It is the alleged failure to obtain complete discovery from the Rutland crime scene and to subject it to forensic analysis that forms the basis for Fell’s claim. The deaths of Debra Fell and Charles Conway were obviously critical elements of the government’s case. The government alleged a statutory and a non-statutory aggravating factor in connection with their killing. See Notice of Intent to Seek Death Penalty 3 at II.3; . III.l, ECF No. 32.

Although Fell confessed to his role in their deaths and related various details of the crimes, he also admitted to having consumed alcohol and crack cocaine, and he repeatedly stated that he didn’t know or couldn’t remember what precipitated the events. Q: What happened originally at the house that started all this? A: Ah, really, I, really don’t know. Its its ah. Q: You had a long standing argument with your mom? A: No, we were, none of us were arguing. That was ah, it just happened. I don’t know ah. Q: What made you get mad all of the sudden this morning? A: I really don’t know.

Fell Interview Dec. 1, 2000 at 34-35, Fell Ex. 61. Q: Can you kind of explain to me what happened prior to you and Bobby leaving Vermont? A: Well what happened was, is we were all kind of wasted, you know pretty fucked up. My mom was [pretty well] [we were all] smoking crack and you know drinking lots of alcohol and shit. To tell you the truth I don’t really know what happened to lead up to what happened; you know what I mean. Q: Do you, do you know what caused you to do that to Charlie? A: I have no idea.

I have no, you know I was getting along with him, we weren’t mad and nobody was fighting or arguing we were all having a good time. Q: ... [W]hat was going on just before you grabbed that knife? A: The way I’ve been looking at this I was sitting there drinking playing our card game, the radio was on, classic rock was playing on the Foxx. I don’t know I remember getting up and picking the knife up, I don’t remember my way through the hallway, I don’t really remember the first cut, but I remember the rest of the stabs.

Q: But backing up just before you grabbed the knife, what were you saying to Bobby or what was Bobby saying to you? A: I don’t know really the stage but really laughing and having a good time playing cards, getting drunk I know we were already drunk but just getting more you know. Q: ... Well what I’m looking for is what triggered you? A: You mean like a motive? Q: Yes a motive perhaps, but what triggered you to grab the knife and go do this. A: I couldn’t tell you. Fell Interview Dec. 2, 2000, at 6, 8, 43, 44, Fell Ex. 62.

The government provided the defense with the statement of Debra Fell’s downstairs neighbor, Pat Johnson, who told investigators on November 30, 2000, that she had heard loud noises coming from the apartment above her for hours, both male and female voices as well as sounds like things were being thrown. Gov’t Ex. J, ECF No. 338. Johnson was on the government’s witness list. Gov’t Ex. K. According to Johnson, no one from the defense contacted her prior to trial. Fell Ex. 271. In her declaration she states that On the night Debbie and Charlie died, it was very loud. I heard a lot of fighting and arguing.

I heard both female and male voices get loud and angry with the yelling. There was a lot of thumping and it sounded like someone was playing the drums. It sounded like they were throwing things around. The slamming and banging voices and the yelling went on for hours. It sounded like someone was going to come through the ceiling. Id. Fell argues that, given some evidence of a prolonged altercation leading up to the killings, trial counsel had a duty to investigate any circumstances that might have countered the government’s portrayal of Debra Fell and Charles Conway as “defenseless vic

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