Tommy KING, Petitioner, v. Ricky BELL, Warden, Respondent, 392 F. Supp. 2d 964

MEMORANDUM ECHOLS, District Judge. Pending before the Court is the Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254 by Petitioner, Tommy King (“King”). (Docket Entry No. 26.) Respondent, Warden Ricky Bell (“the State”), filed an Answer to the Petition (Docket Entry No. 49) and later filed a Motion for

Summary Judgment (Docket Entry No. 53), to which King responded in opposition. The Court has carefully reviewed the Petition, the Answer, and the voluminous state court record, as well as the pleadings and exhibits the parties filed in support of and in opposition to the pending Motion for

Summary Judgment. For the reasons stated below, both the Motion for

Summary Judgment and the Petition for Writ of Habeas Corpus will be GRANTED IN PART and DENIED IN PART. The Motion for

Summary Judgment will be DENIED on the following two issues: (1) whether King’s Sixth Amendment right to effective assistance of counsel at the sentencing phase of trial was abridged because his attorneys (

a) failed to investigate and present available mitigating evidence and (

b) failed to object to the State’s closing argument; and (2) whether the State failed to disclose Brady impeachment evidence that King could have utilized during the penalty phase to challenge the credibility of the State’s rebuttal character witness, Detective James Jackson. The Court will hold an evidentiary hearing on the two issues identified. As to all remaining claims, the Motion for

Summary Judgment will be GRANTED and the Petition will be DENIED. I. FACTS AND PROCEDURAL HISTORY A. The Offense This case arises from a murder and armed robbery that occurred on May 27, 1982, in Columbia, Tennessee. King, who was then thirty-two years old, and his accomplice, Ronald Davis, lived in Chattanooga, Tennessee. They left Chattanooga in a car owned by Davis’s sister. The car broke down and was towed into Columbia. King and Davis left the car at a mechanic’s shop near the Third Street Inn, a tavern owned by the murder victim, Mark Lock-ridge.

The pair stayed two or three days at the apartment of Johnny Sharp, where they met Carolyn Gunn, who knew them as “Tommy” and “Ronnie.” King and Davis did not have enough money to pay for the car repairs, so Davis attempted to sell stolen clothing. Davis tried to sell a jogging suit to Abraham Webster at his house on May 26. Davis returned to Webster’s sometime after three o’clock in the afternoon the next day, May 27, trying to sell a pair of blue jeans and a blouse. Davis asked Webster if he would be interested in buying a .357 Magnum, but Webster did not see the gun.

Davis and King went into the Third Street Inn between three and four o’clock on the afternoon of May 27 to try to sell men’s blue jeans and jogging suits. A patron of the tavern, Daniel Harris, saw Lockridge and King engaged in a discussion in the kitchen area. Lockridge agreed to buy some blue jeans for approximately $60, but he produced a $100 bill in payment and neither King nor Davis could make change. Lockridge told them to come back later and he would pay them.

Harris saw King and Davis return to the bar later, and he observed them with Lockridge in the kitchen area of the bar looking at “a big shiny gun,” but he did not know who was showing the gun to whom. King and Davis stayed in the bar drinking beer for a while and then both left at different times. Thereafter, Lockridge tried to sell the blue jeans to patrons of the bar. At approximately 10:30 p.m. on May 27, Harris was tending bar while Lockridge and William Johnson were in the kitchen rolling dice. Customers Tony Holt and Carolyn Gunn were also in the bar.

King and Davis returned to the tavern and asked for Lockridge. Gunn was on her way to the restroom. She saw King and Davis walk in the door, and they did not appear to have anything in their hands. Harris went into the kitchen to get Lock-ridge, who then walked in front of Harris back to the bar. As they turned the corner from the kitchen, King, who had stepped behind the bar, fired a shot into the ceiling with a shiny gun that looked like the one Harris had seen King, Davis and Lockridge examining earlier in the day.

King said, “Here is what it is, I want everybody to lay on the floor and don’t move.” King and Davis scuffled with Lockridge and pushed him to the floor. The cash register sat on a small table to the side of the kitchen door close to Lock-ridge’s head. Harris lay down on the floor in the doorway behind Lockridge between the bar and the kitchen. Johnson stood in the kitchen. King stepped over Harris into the kitchen and told Johnson to get on the floor. Davis then forced Holt, who had been asleep in a booth, to get behind the bar and lay down on the floor. J.C.

Venoi and Yolanda Williams pulled up in Williams’ car at Venoi’s home across the street from the tavern when the first shot rang out. Venoi crossed the street and entered the bar. He immediately ran into Davis near the door. Davis told him to “hit the back and get down.” Venoi headed for the bathroom in the back of the bar. He did not know if Davis had a weapon. On his way to the back, Venoi saw Lockridge standing up near the beer cooler next to the bar. King was standing behind the bar, and Venoi saw Harris, Holt and Johnson lying on the floor in the back.

Venoi dropped down to the floor in the kitchen and crawled to the bathroom, where he found Gunn sitting in the corner. Gunn was very upset and Venoi tried to quiet her. Venoi heard “a lot of talking” in the bar, but he could not identify who was saying what. According to Harris, when Lockridge started to move, one of the men told Lock-ridge, “hold still, you are the one we are going to kill anyhow.” Davis tried to take money from the cash register. Lockridge jumped up and slammed Davis into the cash register. Harris raised up and looked. He then heard a shot and rolled over.

Harris believed King, who was right beside him, fired the shot, and Lockridge fell back to the floor. Venoi heard that shot from his hiding place in the bathroom. According to Harris, King then searched the victims’ pockets and wallets for cash while Davis took money from the cash register. King opened Harris’s wallet, but threw it down because Harris did not have any money. King stated, “We ought to just kill you anyhow.” Harris answered, “Ah, man, don’t do that.” King retorted, “Let’s just kill them all.” Davis warned, “No, slim, let’s don’t do that.” Harris heard King take money and car keys from Lockridge.

King then stepped closer to the kitchen and said, “Don’t move, don’t even raise your head up an inch, if you do, you don’t know if I am gone or not, and I will just blow your brains out.” Outside the bar, Davis tried to get into Yolanda Williams’s yellow Buick Electra parked next to Lockridge’s nearly identical car. When Williams objected, Davis got into Lockridge’s car. King left the bar, pointed a pistol at Williams and told him to get down on the ground. The men then sped off in Lockridge’s car. Lockridge was critically wounded by the bullet that entered the base of his neck on the left side.

He died one week later at Vanderbilt University Hospital. Gunn told investigators the men’s names were “Tommy” and “Ronnie.” The police recovered Lockridge’s ear the next day outside the Chattanooga apartment of King’s girlfriend. King and Davis were arrested at the apartment. King turned over the car keys. Police recovered the weapon, a .357 Magnum Python Colt, four-inch, nickel-plated pistol loaded with three shells, behind the bathroom radiator in the apartment. Ballistics tests confirmed the bullet that killed Lockridge was fired from the pistol.

Both King and Davis gave statements to the police that King and Lockridge argued about payment for the clothes, Lockridge pulled a gun, King struggled with Lockridge for control of the gun, and the shooting was accidental. B. Indictment and Trial The grand jury indicted both men for felony murder in the perpetration of an armed robbery (Count I), premeditated murder (Count II), and armed robbery (Count III). Because the State sought the death penalty, the trial court appointed two attorneys to represent King, George L. Lovell and Gary M. Howell. Robert C.

Sanders and Bobby Sands, of the District Attorney General’s Office, prosecuted for the State. Pre-trial motions were heard, and the trial took place November 8-13, 1982. Selection of the death-qualified jury consumed two trial days and resulted in an all-Caucasian, all-male jury. The State called fifteen witnesses who testified consistently with the facts set forth above. Harris demonstrated for the jury how far King was standing from Lockridge when he fired the second shot, but the record does not reflect the distance. The pathologist who conducted the autopsy, Dr.

Lelia Mauricio, testified the entrance wound was a clean, sharp, oval or semicircular wound that measured one centimeter in diameter. The bullet traveled in a downward trajectory with no deflection. There was no exit wound. Dr. Mauricio recovered the main bullet, but there were also multiple fragments left in the body. She determined the cause of death to be upper spinal cord injury. She did not describe powder burns at the entrance wound because she received the body many days after the shooting.

Gunn testified she was a close friend of Lockridge and knew he owned a gun that he kept in a bank bag near the cash register. She told the jury she had held the gun. An investigator testified an empty bank bag was discovered next to the cash register after the shooting. In his own defense, King explained that he and Davis returned to the Third Street Inn to collect money Lockridge owed them. When Lockridge refused to pay or produce the clothing, an argument ensued. Lockridge became angry and made a quick move to the waistband of his trousers.

King grabbed Lockridge’s arm, raised it into the air, and tried to twist the gun away when the gun fired, striking Lock-ridge in the neck. King said there was one man in front of him and one behind, so he fired a round into the ceiling and told them both to get down on the floor because he was “afraid of [his] back when [he] was going out of the door.” During direct examination, King admitted his previous convictions for attempt to commit a felony, possession of burglary tools, and kidnaping. Davis did not testify.

He called one witness, Benny Rosalez, Jr., a hospital medical records custodian, who testified that Lockridge’s medical records indicated a 1.5 x 1.5 centimeter bullet entrance wound and a 3.3 x 4 centimeter powder burn. This was significant defense evidence because the State’s firearms examiner, Lanny Wilder, had testified the diameter of a .357 Magnum bullet is 8 to 8.5 millimeters, just under one centimeter. Dr. Mauricio had testified the entrance wound was one centimeter in diameter.

Wilder agreed with defense counsel on cross-examination that, if a gun were fired at close range, the gas from the gun’s muzzle would cause the entrance wound to enlarge because the gas would follow the path of the bullet. King later argued to the jury that this evidence corroborated his own account of an accidental shooting at close range. The State called two rebuttal witnesses, Lockridge’s wife and brother, who testified that Lockridge did not own a gun.

King sought to elicit Gunn’s testimony that she was involved in a romantic relationship with Lockridge in an effort to show she was in a better position to know whether he owned a gun than were Lockridge’s wife and brother. The court disallowed the testimony. The State also recalled Venoi in rebuttal, who stated that, while he was in the bathroom, he heard only, “you are the one I was supposed to kill anyhow.” He confirmed he heard the second shot while he was in the bathroom and the statement was made after the second shot.

The State also recalled Johnson and Harris, who told the jury they were with Lock-ridge earlier in the day and he was not carrying a gun. The trial court instructed the jury on first-degree felony murder committed in the course of armed robbery, second-degree murder, and voluntary and involuntary manslaughter. The court did not instruct on Count 2, premeditated murder, or Count 3, armed robbery, due to the State’s election to proceed only on Count 1. The jury found King guilty of first-degree felony murder and Davis guilty of aiding and abetting second-degree murder.

The jury set Davis’s sentence at imprisonment for 99 years. The court imposed Davis’s sentence and, at the jury’s request, proceeded to the sentencing phase of King’s trial the next morning, a Saturday. King again took the stand. He stated he was thirty-two and had lived in Chattanooga twelve years. He talked briefly about his two brothers and two sisters, all living, and he stated both of his parents died in 1975, when he was twenty-seven. King was employed for eighteen months as an insurance salesman for Atlanta Life in Chattanooga, working on commission.

He found a better paying job as a cook at the Brass Register Restaurant, where he worked for approximately two years until he had stomach surgery. After that, he helped his brother “off and on” with masonry. King stated he was divorced and had a three-year old boy who had visited the courtroom with his mother during the trial. He again admitted his “scrapes with the law”: receiving stolen property over $100, possession of burglary tools, two attempts to commit a felony and kidnaping. King testified the kidnaping charge arose following a domestic dispute with his wife in 1977.

He asked her to go for a ride and talk about their marital problems, but she refused. He “put her in the car” and they rode around Chattanooga for about an hour. When police stopped King for running a stop sign, King’s wife told the police she was in the car unwillingly. King pled guilty to kidnaping, served seven or eight months of a two-year sentence, and continued to live with his wife for a period of time after his conviction until their divorce in 1978. King denied that he harmed his wife.

Counsel asked if King had ever harmed anybody, to which he responded, “Not intentionally, no[,]” and counsel then tendered King for cross-examination. His entire direct testimony at the penalty phase was transcribed in eight and one-half pages. The State’s cross-examination consumed seventeen pages of the trial transcript. In reiterating King’s employment history, the State brought out that King attended classes at the University of Tennessee — • Chattanooga on a government job training program before he worked as an insurance salesman.

King admitted his child was born out of wedlock, and he stated he supported the child as much as he could. As to criminal history, King testified his felony convictions occurred between 1977 and 1979. He admitted he was indicted for grand larceny of a television, went to prison for receiving stolen property, and was actually in prison during one of the years he told the jury he was employed because he got mixed up on the dates.

He also conceded his first conviction for an attempt to commit a felony involved burglary of an automobile and his second conviction for attempt to commit a felony involved a robbery with three co-defendants. He admitted that, at the time Lockridge was killed, he was on unsupervised probation for ten years imposed in 1977. He denied he was supervised by a probation officer in Chattanooga, and denied that anyone had explained the rules of probation to him. As to an attempt to commit robbery, King agreed his probation officer told him in 1979 to stay out of any more trouble.

In November 1979, his probation was revoked and he served additional months at the workhouse and was released in 1980. The State admitted into evidence certified copies of King’s prior convictions. The State elicited testimony from King that he did not have any connection to Columbia, Tennessee, and he did not know anyone in the community, including the murder victim. Finally, King stated that, at the time of the shooting, he lived in Chattanooga with his 28-year old sister, who paid the rent and utilities, and he helped out when he could.

Trial counsel asked three short questions on re-direct to clarify that two of the convictions, for burglary of an automobile and possession of burglary tools, occurred on the same day in September 1976. King could not remember what was taken from the vehicle, but he recalled the burglary tool was a coat hanger. Defense counsel then rested the mitigation case. The State called one witness, Detective James Jackson of the Chattanooga Police Department. Jackson had previously testified for the State in the guilt phase. He said he had known King for about seven years.

He reported King’s reputation in the community for truth and veracity was “bad” and stated he would not believe King’s testimony in a court of law. On cross-examination, defense counsel asked one question: “Detective Jackson, has the source of your information about Tommy King’s reputation come from people who are drug dealers, involving drugs?” Jackson answered, “Some of them have, and some of them have just been victims.” (Trial Tr. at 633-634.) Counsel then gave closing sentencing arguments and the trial court again instructed the jury.

After a forty-minute deliberation, the jury fixed King’s punishment at death by electrocution. The jury unanimously found three statutory aggravating circumstances:

(1) King was previously convicted of one or more felonies, other than the present charge, which involved the use or threat of violence to the person;

(2) King knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder; and (3) the murder was committed while King was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, robbery. The jury also unanimously found that there were no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating circumstances.

The two statutory mitigating circumstances submitted to the jury were that “the defendant has no significant history of prior criminal activity involving threat or violence to the person” and the “murder was committed under circumstances which the defendant reasonably believed to provide a moral justification for his conduct.” (Addendum No. 2, Trial Tr. at 677.) C. Post-Conviction History The trial court denied King’s motion for a new trial and his amended motion for a new trial. In a 4-1 decision, the Tennessee Supreme Court affirmed King’s conviction and death sentence. State v.

King, 694 S.W.2d 941 (Tenn.1985). Justice Brock concurred in the majority opinion in all respects except as to the constitutionality of the death penalty. Id. at 947 (Brock, J., dissenting). King then pursued post-conviction relief. Following an evidentiary hearing, the trial court dismissed the first post-conviction petition in 1988, and the Tennessee Court of Criminal Appeals affirmed in a short unpublished opinion the next year. King v. State, No. 88-221-III, 1989 WL 28912 (Tenn.Crim.App. Mar.31, 1989). In August 1989, the Tennessee Supreme Court denied King permission to appeal.

King filed a second post-conviction petition on July 3, 1989. The trial court held an evidentiary hearing and denied the petition. The Tennessee Court of Criminal Appeals affirmed in an unpublished decision. King v. State, No. 01C01-9512-CC-00415, 1997 WL 59464 (Tenn.Crim.App.1997). The Tennessee Supreme Court granted King’s application for review to consider whether the jury’s consideration of the felony murder aggravating circumstance warranted vacation of the death penalty under State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992).

In that case the Tennessee Supreme Court held use of the felony murder aggravating circumstance duplicated the elements of the underlying felony murder and failed to narrow the class of death-eligible murderers as required by

Article I,

Section 16 of the Tennessee Constitution and the Eighth Amendment to the U.S. Constitution. The Middlebrooks holding directly contradicted the Tennessee Supreme Court’s earlier ruling against King on the same issue in his direct appeal. In State v. Howell, 868 S.W.2d 238 (Tenn.1993), the Tennessee Supreme Court adopted a harmless error analysis for Middlebrooks error, and in Barber v. State, 889 S.W.2d 185, 186 (Tenn.1994), ruled that Middlebrooks should be applied retroactively.

Applying Howell in King’s case, a three-justice majority of the Tennessee Supreme Court held the Middlebrooks error was “harmless beyond a reasonable doubt due to the strength of the remaining valid aggravating circumstances and the relative weakness or absence of any mitigating circumstances.” King v. State, 992 S.W.2d 946, 947 (Tenn.1999). Two justices agreed that Middlebrooks error existed, but disagreed with the majority’s application of Howell and the conclusion reached. Id. at 952 (Anderson, C.J., and Birch, J., dissenting).

The dissenters believed that “resen-tencing is necessary because the State has failed to prove beyond a reasonable doubt that the sentence would have been the same had the jury given no consideration to the unconstitutional aggravating circumstance.” Id. (emphasis in original). II. STANDARD OF REVIEW The Court’s review of the petition, filed in 2001, is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

The Court may grant the writ of habeas corpus on a claim that was adjudicated on the merits in state court if that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The state court’s factual findings are presumed to be correct and they can be contravened only if King can show by clear and convincing evidence that the state court’s factual findings were erroneous. 28 U.S.C. § 2254(e)(1). King is entitled to an evidentiary hearing if he alleges sufficient grounds for issuance of the writ, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing. Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir.2002). A party may obtain

summary judgment if the evidence establishes there are not any genuine issues of material fact for trial and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Hutchison v. Bell, 303 F.3d 720, 728 (6th Cir.2002). The opposing party must set forth facts showing that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The evidence of the non-movant must be believed, and he is entitled to have all justifiable inferences drawn in his favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. ANALYSIS OF THE CLAIMS The Court will first explore whether trial counsel rendered ineffective assistance at the sentencing phase of King’s trial and whether the State should have disclosed Brady impeachment evidence. Next, the Court will address the merits of other claims King raised in state court on direct appeal and in post-conviction proceedings and as to which the state courts granted review on the merits.

The Court will then turn to the claims King procedurally defaulted in state court and explain why King has not established cause and prejudice or a miscarriage of justice to overcome his procedural defaults. For ease of reference, the Court will identify each claim by the paragraph number King assigned to it in the federal habeas petition. King’s numbering of the claims begins at ¶7 and ends at ¶38. A.

Merits Review ¶ 23 — Ineffective assistance of trial counsel at sentencing “The Eighth Amendment requires a jury to consider the circumstances of the crime and the defendant’s character and background during the sentencing phase of a capital trial.” Byrd v. Collins, 209 F.3d 486, 526 (6th Cir.2000).

In deciding whether King is entitled to habeas relief for trial counsel’s failure to investigate and present mitigating evidence at sentencing, the Court must “evaluate the totality of the available mitigation evidenee-both that adduced at trial, and the evidence adduced in the habeas proeeeding[s] in reweighing it against the evidence in aggravation.” Williams, 529 U.S. at 397-398, 120 S.Ct. 1495; Wiggins v. Smith, 539 U.S. 510, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

The jury returned its verdict of guilt at 10:15 p.m., on Friday, November 12, 1982. (Addendum No. 2, Trial Tr. at 587.) The trial judge immediately sentenced Davis to prison as the jury recommended, and then set King’s death penalty sentencing hearing to begin the next morning, Saturday, November 13. (Id. at 588.) Based on the record presently before the Court, it appears that trial counsel expended minimal effort to prepare for the sentencing hearing.

The attorneys’ time records establish that lead counsel, George Lovell, billed 2 hours on the morning of the sentencing hearing for an “attorney discussion.” He billed 4.8 hours for the hearing itself. (Docket Entry No. 72-1 at 7.) On the same morning, co-counsel Gary Howell billed 2.5 hours for “consultation with co-counsel” and 4.5 hours for the sentencing hearing. (Id. at 3.) See Greer v.

Mitchell, 264 F.3d 663, 676-677 (6th Cir.2001) (noting attorney time records indicated no preparation for sentencing until after guilt phase, and failure to anticipate finding of guilt to prepare for sentencing is constitutionally impermissible).

According to Howell’s recent declaration, defense counsel focused their limited sentencing efforts on researching the statutory aggravating and mitigating factors and consulting with each other about the content of closing argument. (Docket Entry No. 79-4, Howell Decl. at ¶ 6.) Critically, Howell does not recall “making any factual investigation for the penalty phase of Tommy King’s trial.

The only preparation for sentencing that I am aware of took place after the jury returned their verdict of guilt.” (Id. at ¶ 7.) King was a cooperative client, and he did not place any restrictions on the defense team concerning their investigation or preparation. (Id. at ¶ 4.) At the time of trial, Howell was a new member of the bar. Shortly after he received his law license in 1982, the court appointed him to assist in representing King. Howell did not have any training or experience in homicide cases, let alone in capital trials.

Lovell had practiced law for about seven years, but the record does not describe any experience he may have had in capital murder cases. (Id. at ¶¶ 1-2, 5.) Neither party presents this Court with Lovell’s declaration. In 1987, assisted by newly-appointed counsel, Charles P. Dupree, King filed his first post-conviction motion, alleging, among other things, that he was denied his Sixth Amendment right to counsel at sentencing because trial counsel did not investigate his background and present available mitigating evidence.

At the evi-dentiary hearing, however, neither King nor the State called the trial attorneys to testify. King provided the court with a copy of the trial transcript. King took the stand along with his brother, Bernard T. King, Sr., and his first cousin, Frances Brewer. (Addendum No. 8, Post-Conviction Tr. at 4-25.) Bernard King worked in mechanical maintenance for the Tennessee Valley Authority and had done so for seventeen years. Frances Brewer worked as a systems engineer for IBM, a job she held for ten years.

Both would have been willing to testify at the sentencing phase that King was raised in a loving home, he grew up in the church, he was not a violent person, and murder would not have been in his character. Brewer explained that King and his brother, Bernard, came to live with her parents, Alice and Jamie Brewer, when their own parents separated, so she and King were raised as siblings. The two of them were extremely close, not only because they were raised together and he looked out for her, but because their parents, Alice and Jamie Brewer, were murdered.

Bernard King and Frances Brewer testified King’s trial attorneys did not notify them about the trial, did not keep them apprized of developments in the case, and did not ask them to provide mitigation testimony. Brewer learned from people on the street in Chattanooga that King was in jail in Columbia awaiting trial. She visited King in Columbia before the trial. King told her his attorneys would contact her, but they did not. King did not know the date of his trial. Both witnesses learned about the trial after it was over.

On cross-examination, the witnesses conceded their family was not close at the time of King’s trial. Brewer did not make a point to tell family members about King’s situation because of her own difficulties at the time. She tried to visit him in Columbia a second time, but learned on her arrival that he had been convicted and transferred to the penitentiary. King testified he provided his trial counsel with contact information for his brother, sister, and his biological father, who lived in New York. King confirmed he did not tell Brewer the trial date because he did not know it himself.

On cross-examination, King admitted that he completed twelfth grade and could read and write, but he did not send his family any letters about his situation. The prosecutor asked, “So you did not really perceive [your siblings] as actually taking the witness stand on your behalf?” King replied, “Well, maybe not to testify about what happened in general, but you know, our lives together, I did have a family.” (Id. at 25.) On redirect, King stated Lovell asked about family members and King told him about Bernard, Frances, another brother, and his biological father.

Lovell told King he would ask them to testify “[i]f we would get in touch with them.” (Id.) The trial court rejected the ineffective assistance claim, finding: [A]ny value that testimony of good rearing and character by the petitioner’s family may have is nullified by the fact they did not have communication with the petitioner or each other during the time period relevant to the murder. Therefore, the court concludes as a matter of law that the petitioner’s proof on this matter does not show that Mr.

Lo-vell’s failure to present these witnesses is outside the range of competence demanded of an attorney in a criminal case. (Addendum No. 7, Order Dismissing Petition For Posb-Convietion Relief at 21.) Regarding the claim that counsel failed to object to the State’s improper closing argument during the penalty phase, the court found: [A]s a general principle, personal opinions expressed by an attorney in closing arguments are not proper. However, the Assistant Attorney General did not specifically opine in his argument that this case deserved the death penalty.

Rather, he opined that this case justified the Court in charging the jury on the law concerning the imposition of the death penalty. The Court therefore concludes as a matter of law that although the Assistant Attorney General’s comment was improper, it was not of such magnitude or character that trial counsel’s failure to object to it is outside the range of competence demanded of an attorney in a criminal case. (Id.) In a short, unpublished opinion, the Tennessee Court of Criminal Appeals affirmed. King v. State, 1989 WL 28912 (Tenn.Crim.App. Mar.31, 1989).

The appellate court observed: Neither side chose to call the appointed attorneys who initially represented defendant, although claims of ineffective assistance of counsel were made and relied upon. We have concluded that in this case remand for a new hearing is unnecessary, but there is much to recommend hearing from attorneys who have been accused of ineffective assistance during the course of the evidentia-ry hearing upon that issue. Id. at *1.

Concerning counsel’s failure to investigate and call family members to testify in mitigation, the appellate court affirmed, concluding King failed to show prejudice, “that is, there is no showing of a reasonable likelihood that the sentencing body would not have imposed the death penalty if these witnesses had testified.” Id. at *2. The court affirmed the trial court’s reasoning with regard to the propriety of the prosecutor’s closing argument. Id. King again raised these two ineffective assistance claims in his second post-conviction petition.

Through two new appointed attorneys, King submitted his affidavit averring that Dupree did not thoroughly explain the first post-conviction petition before the evidentiary hearing took place, King did not understand the importance of calling the trial attorneys to testify about the claims of ineffective assistance, and had he understood the importance of such testimony, he would have insisted that the witnesses be called.

King provided a second affidavit concerning mitigation testimony that could have been offered at his sentencing, including details about the murder of his parents in 1975 and the effect the killings had upon him, his remorse for Lockridge’s death, his regular attendance at St. Phillips Lutheran Church with his parents as a youth, and his participation in school and community activities.

He averred that his trial attorneys did not give him the opportunity to tell them about these matters in preparation for his sentencing hearing. (Addendum No. 19, Exs. 3 & 4.) In an effort to prove the existence of mitigating circumstances that may have spared him the death penalty, King filed a motion requesting funds to hire an investigator/mitigation specialist and a licensed psychologist on June 12, 1995.

The trial judge heard argument on July 13, 1995, and summarily denied the motion in a short order eleven days before the scheduled evidentiary hearing on the second post-conviction motion. (Addendum No. 15 at 11-77; Addendum No. 16, Hr’g Tr.) King sought permission to take an extraordinary appeal on the denial of expert services, but the Tennessee Court of Criminal Appeals denied the request for a stay on July 24, 1995, the day of the evidentiary hearing, and denied the application for appeal on July 25, 1995. (Addendum No. 17.) The evidentiary hearing occurred as scheduled.

King testified only to authenticate his affidavits. Defense investigator James McCaslin, however, informed the court he located eleven witnesses who were not contacted by King’s trial attorneys and who would have been willing to provide mitigation testimony about King’s caring, non-violent nature, his positive upbringing, his involvement in school and church activities, his volunteer work with the elderly, his good reputation in the community, and his emotional devastation following his parents’ brutal murders by individuals who were never identified and prosecuted.

McCaslin described in detail what the witnesses would have said if called to testify. King introduced into evidence the billing records of his trial attorneys. The trial court dismissed the entire second post-conviction petition on October 25, 1995, finding that the claims of ineffective assistance had been “previously determined.” The Tennessee Court of Criminal Appeals summarily affirmed, ruling the ineffective assistance claims had been “previously determined” in the first post-conviction proceeding and King was not constitutionally entitled to effective assistance of post-conviction counsel, citing State v.

Oates, 698 S.W.2d 79, 81 (Tenn.Crim.App.1985) and House v. State, 911 S.W.2d 705, 711-12 (Tenn.1995). King, 1997 WL 59464 at *1-4. In support of this federal habeas petition, King provides the declarations of several witnesses who would have been available and willing to testify on King’s behalf at the sentencing phase of trial in 1982. Bernard King, who testified at King’s first post-conviction hearing, provides more extensive detail about Tommy King’s upbringing. (Docket Entry No. 72-3, Bernard King Deck) For clarity, the Court will refer to King as “Tommy” and to his family members by their first names.

Tommy’s biological parents, Bernie and Rosetta, separated when he was nine months old. Rosetta was an alcoholic. Bernie moved to New York after the divorce. Bernie’s sister, Alice, and her husband, Jamie Brewer, accepted Tommy and his brother, Bernard, into their home and lovingly raised them with their own children, Freddy and Frances. Tommy’s two other biological siblings, Lamar and Vicki, were raised by another family nearby. Tommy and Bernard considered the Brewers to be their parents, and they called Rosetta and Bernie by their first names.

Alice Brewer tried to maintain a connection between Tommy and Bernard and their biological parents, and she never spoke negatively about Rosetta and Bernie. Rosetta died of cirrhosis of the liver at age 32, when Tommy was approximately fourteen years old. (Id. at ¶¶ 1-7.) Alice Brewer was an active force in Tommy’s life. She was a constant presence at school, always volunteering and keeping in touch with teachers about her children’s progress.

Tommy was raised in a household that valued education, involvement in the church, polite manners and behavior, and sharing with others less fortunate, even though they lived in the projects. The Brewers disciplined their children, while Vicki and Lamar were raised with no supervision and were allowed to do as they pleased. (Id. at ¶¶ 8-11.) As a teenager, Tommy started running around with Lamar and getting into trouble. On one occasion, after Alice Brewer disciplined Tommy and Bernard, Tommy asked to move to New York to stay with his biological father, Bernie.

The Brewers allowed him to go, and Lamar went with him. (Id. at ¶¶ 11-13.) Bernie did not maintain discipline. The boys developed a pattern of skipping school and getting into more trouble than they could have found in Chattanooga. When things got out of hand, Bernie asked Alice Brewer to take Tommy back, but neither of them had money to pay for his travel. Tommy thus spent his formative years in New York with little supervision. Bernard and Lamar entered the service during the Vietnam War. When Tommy tried to join with Lamar, he was rejected because of his young age.

Tommy remained in New York and became addicted to heroin. Later, he returned to Chattanooga as a young adult. (Id. at 13-15.) The turning point in Tommy’s life was the murder of Alice and Jamie Brewer in 1975. Alice helped a mentally retarded and schizophrenic family member, Arnold Hughley, with cooking, shopping and finances. According to Bernard King, Black Moslems visiting the neighborhood teased Hughley with a rubber snake. Hughley grabbed a gun from his house and killed one of them. The police arrived and a huge crowd gathered.

Black Mos-lems pulled up in a vehicle with a loudspeaker and announced to the crowd that no one should talk to the white police; they would seek their own justice for the killing. No one would talk to the police. (Id. at ¶ 16.) The Black Moslems sought out the family and friends of Hughley for retribution. Alice and Jamie Brewer were abducted by men wearing ski masks. Neighbors witnessed the abduction. The Brewers’ bodies were found a week later, shot and burned in an abandoned car in Alabama. The police arrested some Black Moslems returning to Tennessee with guns that matched the shells found at the scene.

A photo lineup, which included pictures of those arrested with the guns, were shown to witnesses, who identified the men as having been in the neighborhood prior to the abduction posing as census workers going door to door asking questions about the Brewers and their friends and family. The arrested individuals were released for lack of evidence and the case was never prosecuted. Two other persons who associated with Hughley were also abducted and killed. Their bodies were found in Georgia.

Four houses, including Bernard’s and Vicki’s, were firebombed. (Id. at ¶¶ 17-18.) The injustice of the Brewers’ murders overwhelmed Tommy King. His whole attitude toward life changed. He could not understand why the Brewers, who lived such good lives should have been murdered, and he who had lived a bad life should still be living.

After the killings, Tommy would tell Bernard that he had seen and talked to “Mama.” Bernard tried to convince him it was not possible, but he insisted he talked to “Mama.” When Tommy worked at the Brass Register Restaurant in 1979, Bernard received phone calls from Tommy’s boss asking him to come because Tommy was seeing and hearing something that others could not see or hear. Tommy insisted he was seeing “Mama” and was having a conversation with her. Tommy began using drugs to an even greater extent than before.

His relationship with the mother of his young son ended just before the robbery and shooting in Columbia. (Id. at ¶¶ 19-22.) Bernard knew that Tommy had been charged in Columbia. He tried to call Tommy’s attorneys, but they did not return his calls. He did not understand that capital cases included a mitigation phase where personal information about Tommy and his family would be vital. Bernard would have testified about the events in Tommy’s life if he had been contacted.

He remains in close touch with Tommy King by telephone to this day. (Id. at ¶¶ 23-24.) Tommy is one year younger than his brother, Lamar King. (Docket Entry No. 72-3, Lamar King Deck) Lamar grew up with Vicki about one mile from where the Brewers lived. Lamar saw Tommy every day at school. He knew that Tommy was especially attached to Alice. She imposed a curfew and would not let Tommy or Bernard go out after dark or before they did their homework. For Tommy, the move to New York was a total change, from parents who were very involved and in touch with what he was doing, to a total lack of supervision.

After serving two tours in Vietnam, Lamar returned to New York addicted to black tar opium, cocaine and marijuana. He found Tommy addicted to heroin. They lived in New York another year and then returned to Chattanooga. When the Brewers were murdered, “Tommy lost his whole world, his whole world crumbled[.]” (Id. at ¶ 17.) He “really broke down” when he saw their bodies. (Id. at ¶ 14.) He bottled his feelings inside and could not talk about it. Instead, he turned to drugs. Lamar saw Tommy almost every day during that period.

Tommy had always been a calm person able to get along with others, but after the murders, he could not cope. Lamar believes that counseling would have helped Tommy, but in those days, counseling was not ordinarily pursued. Tommy had flashbacks and believed he actually saw and talked to Alice. When Tommy was arrested for capital murder, Lamar was living in Chattanooga. The attorneys did not contact him, and he did not know that family information was important. Lamar would have been willing to testify about anything he knew about Tommy and the family.

In fact, Lamar attended some of the trial, but the attorneys did not question him. (Id. at ¶ 18.) Annie Williams lived with King from 1979 to May 1982. (Docket Entry No. 72-3, Williams Deck at ¶ 1.) King often mentioned the Brewers to her and told her how unjust it was that no one had been arrested for their murders. She believes their killings “really did something to Tommy’s mind[.]” (Id. at ¶ 4.) As quickly as King would begin talking about the murders, he would stop and cry and then break off the conversation.

Often he would holler “Mama” during sleep and frequently he woke up sweating from nightmares. (Id. at ¶¶ 2-5.) Police arrested King for the Lockridge killing at Williams’ apartment in May 1982. She was taken to the police station and kept there all day. King’s attorneys did not contact her, even though she believes they surely had her name and address because King was arrested at her apartment.

She would have been willing to testify about what she knew and believes she would have remembered more details at that time. (Id. at ¶ 8.) Helen Mathis lived near the Brewers when King was growing up. (Docket Entry No. 72-3, Mathis Decl. at ¶ 1.) She was close to Alice Brewer, who had “loving rules.” Everyone who met her loved her. (Id. at ¶ 3.) Because Mathis worked on Sundays, she sent her two boys to church with the Brewers and their children. When the Brewers’ bodies were discovered, she stayed with the family until after the funeral.

It was hard for all of the Brewer/King children to accept the way the Brewers were killed and the fact that no one was ever tried for their murders. It was especially hard for Tommy King. (Id. at ¶¶ 8-9.) Afterwards, he was heavily involved in drugs, and she saw him almost every day because he and her oldest son were best Mends. Tommy would tell her two or three times a week that he saw “Mama.” (Id. at ¶ 10-12.) She tried to convince him it was his imagination, but he insisted he saw her. King’s lawyers did not contact Mathis.

She would have been willing to testify about King and his family. (Id. at ¶ 13.) Lydell Lovelace grew up with Tommy King on the same street and went to the same schools. (Docket Entry No. 72-3, Lovelace Decl. at ¶ 1.) Neighborhood children went to the Brewers’ to play. Lovelace moved to Gary, Indiana as a young man and picked up a heroin habit. When he and Tommy King both returned to Chattanooga, they shot up heroin together four or five times a day until the money ran out. (Id. at ¶¶ 5-7.) After the Brewers were killed, King’s drug use escalated. He talked about their deaths all of the time.

He was greatly distressed by their deaths and because no one was prosecuted. His whole life became a search for drugs to dull his pain. King used parabenzamine with heroin, known as a “speed ball,” to feel the effect of the drug faster. (Id. at ¶ 8-10.) Lovelace overcame his drug addiction and has been “clean” for over twenty years. He owns a clothing business, works for the city of Chattanooga, and is an associate pastor.

He also would have been willing to testify for King at his trial. (Id. at ¶ 12-13.) Joseph Mathis grew up with King. (Docket Entry No. 72-3 at ¶ 1.) When King came back from New York, Mathis watched his older brother and King use heroin together. They would shoot up seven or eight times a day. Sometimes they were so shaky that Mathis helped them by holding the belt on their arms.

They used a lot of different drugs and when they could not get heroin, they used paregoric. (Id. at ¶ 5-7.) King used more drugs after the Brewers were murdered. (Id. at ¶ 9.) Mathis visited the Brewers’ house after the murders, where Tommy King was staying.

He saw King sitting on the piano bench with a big smile on his face; King said he had just seen his mother. (Id. at ¶ 10.) The defense team did not contact Mathis, although he would have been willing to testify on King’s behalf. (Id.) George McReynolds was the chef at the Brass Register Restaurant from 1975 to 1986. (Docket Entry No. 79-5, McRey-nolds Aff.) King worked as a cook for a period of months in the late 1970’s under his direct supervision. On at least two occasions, King had “anxiety attacks” while at work. On one occasion, King passed out and EMT personnel were called.

McReynolds learned from another cook that King’s attacks were related to his disturbance over the murder of the Brewers. King’s brother, Bernard, was called to the restaurant on these occasions. No one contacted him about King until August 2005. (Id.) Joseph Davis worked with King in the kitchen at the Brass Register. (Docket Entry No. 72-3, Davis Decl. at ¶ 1-2.) King was a good worker. He told Davis the Brewers had been killed, but no one had been charged. The lack of prosecution was very frustrating to King, who had breakdowns because he could not get over their deaths.

Davis and others took King outside to help him relax. Several times an ambulance was called because it appeared King was having a heart attack. (Id. at ¶ 4.) Davis described King’s breakdowns as “seizures related to trauma. They seemed to hit Tommy like a brick.” {Id. at ¶ 5.) Davis would have been willing to testify if asked. {Id. at ¶ 6.) Medical records show that King was hospitalized in late March 1979 for three small caliber gunshot wounds. (Docket Entry No. 73-4 at 8-9.) He suffered a graze abrasion to the left chest, a through- and-through shot of the right elbow, and a gunshot wound to the abdomen.

He underwent surgery and left the hospital seven days later. {Id.) Additional medical records indicate King was hospitalized in early December 1979 for a heroin overdose. (Docket Entry No. 73-4 at 2-7.) The medical history described King as “a 29-year old black male, who apparently has been tormented by the murders of his parents for some time now and apparently is especially tormented during periods of intoxication or drug abuse.” (Id. at 5.) The report further stated: “Apparently, the patient has been feeling somewhat depressed of recent days and also has been again tormented by the thoughts of his parents’ murder.” (Id.) At the time of the overdose, King was no longer employed at the Brass Register Restaurant.

He had been seen previously for an alcohol problem and had been recently jailed for public drunkenness and disorderly conduct. (Id.) The discharge

summary states: “Apparently his parents were killed three years ago, and since then he has had episodes of depression, heavy alcohol abuse, and IV drug abuse. No definite history of drug overdose in the past.” (Id. at 3.) King was diagnosed with heroin overdose, depression, and chronic substance abuse. Following a psychiatric consultation, King was referred to the Chattanooga Psychiatric Clinic. (Id. at 4.) George W. Woods, Jr., M.D., performed a neuropsychiatric evaluation of King in connection with this habeas petition. (Docket Entry No. 72-1 at 15-23.) Dr.

Woods interviewed King, who is now 55 years old, on May 25, 2005, and August 18, 2005. In addition, he reviewed King’s statement given to police at the time of the Lockridge shooting, the trial transcript, excerpts of the 1987 post-conviction hearing during which Bernard King and Frances Brewer testified, and King’s 1995 affidavits filed in support of his second post-conviction petition. Dr. Woods also examined the declarations described above. He personally interviewed Joseph Davis and Lydell Lovelace. Dr.

Woods reviewed birth certificates of the family, academic records of the Brewer/King children, King’s 1979 medical records concerning his gunshot wounds and heroin overdose, and King’s conviction records. In Dr.

Woods’ professional opinion, which he holds to a reasonable degree of medical certainty, King suffered from Post Traumatic Stress Disorder (“PTSD”) at the time of the offense. (Id. at 16.) He also opines that, at the time of the offense, King suffered from Cognitive Disorder Not Otherwise Specified, then known as atypical organic brain syndrome. (Id.) “These mental disorders, synergistic in their effects, impaired Mr. King’s ability to conform his behavior to the law” at the time of the offense. (Id.) During the interviews, King told Dr.

Woods that his brother, Bernard, knew the Brewers were not their parents, but he did not realize his “Aunt Rosetta” was his biological mother until her death. King felt a loss when Rosetta died, but not commensurate with losing a mother. After Rosetta died, Alice Brewer told King that Rosetta was his mother. The impact of the news was tumultuous for King and, in Dr.

Woods’ words, “sent him on an emotional transition from which he would never recover.” (Id. at 16.) When King went to live with his father, he was overwhelmed by the fast life of New York, and his relationship with his stepmother, also named Alice, was problematic. King’s girlfriend quickly introduced him to heroin. (Id. at 17.) Although King progressed from snorting to intravenous use of heroin by his late teens, he also worked in the garment district with his father and at United Parcel Service in New York. King had a few brushes with the law in New York, but he was not convicted of any felonies.

He returned to Chattanooga hoping to move away from his addiction, but he continued to shoot heroin. Yet, King worked while he maintained his drug habit, relying on wages to pay his bills and on shoplifting and theft to support his drug addiction. (Id.) According to Dr. Woods, King’s addiction was augmented by neurologically-derived difficulties in decision-making. King had difficulty with the Category Test, an instrument designed to examine decision-making and problem solving skills.

Although King’s IQ is average at 100, his ability to make informed decisions is impaired. “These cognitive deficits played into both his continued addiction as well as his decision-making at the time of the offense.” (Id.) Because King has been incarcerated since 1982, there apparently is no other causative factor for his poor performance on the Category Test. (Id. at 19.) In Dr.

Woods’ opinion, the attacks King suffered while working at the Brass Register Restaurant were panic attacks, consistent with an anxiety disorder. (Id. at 18.) King described daily nightmares of the Brewer murders for years and occasional nightmares to this day.

He “could not get away from the ruminative ... thinking of his parents being burned, and was tormented by thoughts of whether they were alive or dead as their bodies were being burned.” (Id.) King felt “profound guilt for not having protected them from their horrific death.” (Id.) He recalled his last conversation with Alice Brewer at her business, as several Black Moslems walked by and glanced inside. She asked King if he thought they would hurt her. He assured her they would not.

He thought there would be retaliation against Hughley, but he did not foresee that the Brewers were in any danger. (Id.) “To have been so wrong has crushed him, and, in many ways, broken his spirit. 30 years later, Tommy King cried about the death of his parents and his inability to have protected them.” (Id.) King described a high degree of panic and paranoia after the murders. He was hyper-vigilant and would jump at almost any sound. His traumatic stress increased when he was shot in March 1979. He became increasingly fearful and depressed.

By the end of 1979 he was hospitalized with a serious heroin overdose that he “acknowledged was a suicide attempt.” (Id. at 19.) In Dr. Woods’ opinion, at the time of the offense, King met the Diagnostic and Statistical Manual-Ill (DSM-III) definition of PTSD. (Id.) Dr. Woods reviewed a Supplementary Report filed by Detectives Messick and Hall which documented King’s account of the offense as an accidental shooting and which included the sentence, “Mr. King asked about the condition of Mr. Lock-ridge.” The statement was consistent with King’s recollection during an interview with Dr.

Woods that he and Davis called the police station to inquire about Lock-ridge’s condition before they were apprehended. In Dr. Woods’ opinion, King described his own sense of fear and aroused startle response at the time of the offense. He acknowledged becoming hyper vigilant when, in his opinion, Mr. Loekridge appeared to be reaching for a gun. He also acknowledged calling the police station, attempting to see how Mr. Loekridge was faring.

These behaviors are consistent with someone, who, after reacting strongly to a previously experienced stressor, was not able to conform his behavior to the law. (Id. at 21.) In addition to all of this evidence, King provides copies of numerous documents supporting his social history, including birth, divorce and death records and newspaper articles reporting on the murders of the Brewers and the others, and the events that led up to the murders. (Docket Entry Nos. 72-3 at 16-30, 72-4 at 10, 73-1 at 1-8, 73-3 at 1-7, 73-4 at 1.) Based on this record in opposition to

summary judgment, it is apparent to the Court that trial counsel did not investigate King’s social history to uncover evidence that could have been brought to the sentencing jury’s attention in mitigation of the death sentence. In fact, Howell now attests that “[i]f I had known of the information contained in Dr. Woods’ report I would have called the witnesses mentioned in the report and Dr. Woods to testify at Mr. King’s trial as well.” (Docket Entry No. 79-4, Howell Deck ¶ 10.) Howell further avers: These witnesses could have offered testimony to explain how Tommy got himself in this situation to begin with.

I believe this evidence would have been quite relevant as mitigation in Mr. King’s case.” (Id.) Because lead counsel, George Lovell, has not provided a declaration or testified in the state post-conviction proceedings, the Court does not know what he might have to say about his representation of King. The State has not had an opportunity to present Lovell’s testimony, if it is favorable, in this habeas action nor has the State had a chance to cross-examine Howell or the new mitigation witnesses not presented in state court.

The law is clear, however, that King had a constitutionally-protected right to provide the jury with mitigating evidence that at least one of his trial attorneys now concedes he failed to discover and offer and that would have been helpful to King’s case. Williams, 529 U.S. at 393, 120 S.Ct. 1495. Howell candidly admits that he and Lovell confined their entire sentencing phase preparation to locating the death penalty statute and preparing for closing argument on the morning of the sentencing hearing.

There is no indication on this record that counsel even discussed sentencing with King before the hearing began or that counsel prepared King for his sentencing testimony. Failure to investigate and prepare for a death penalty sentencing hearing cannot qualify as a reasonable, strategic decision of counsel when no investigation at all was done. See id. at 396, 120 S.Ct. 1495. Cf. Bell v. Thomp son, — U.S. -, -, 125 S.Ct. 2825, 2835, 162 L.Ed.2d 693 (2005) (noting counsel’s strategic decision not to present a mitigation case, though unsuccessful, was based on a reasonable investigation into Thompson’s background).

In assessing the reasonableness of counsel’s investigation in this case, the Court must consider the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further. Wiggins, 539 U.S. at 527, 123 S.Ct. 2527.

Based on King’s guilt-phase testimony, it seems that counsel would have known before trial that, during the immediately preceding five- to seven-year period, the couple who raised King died; King committed a rash of felonies when he had not been previously convicted; the kidnaping crime involved King’s wife, with whom he continued to live after his conviction; King fathered a child by another woman following the divorce from his wife; his employment was sporadic, although he was a good worker; he had undergone major surgery, and he had attended the University of Tennessee.

King testified he provided family contact information to Lovell, but the Court does not know on this record if those leads were followed. Also, the attorneys apparently made no effort to delay the sentencing hearing to allow more time to investigate and locate witnesses in preparation for testimony at the sentencing hearing. Had counsel investigated the facts already within their knowledge, they likely would have discovered much of the mitigating evidence that has now been revealed. See Wiggins, 539 U.S. at 525, 123 S.Ct. 2527; Mason v.

Mitchell, 320 F.3d 604, 623 n. 12 (6th Cir.2003) (observing limited information obtained by defense counsel did not discharge duty to investigate, but triggered it). “With every effort to view the facts as a defense lawyer would have done at the time, it is difficult to see how counsel could have failed to realize that without examining the readily available [evidence] they were seriously compromising their opportunity to respond to a case for aggravation.” Rompilla v.

Beard, — U.S. -, -, 125 S.Ct. 2456, 2465, 162 L.Ed.2d 360 (2005). “Mitigating evidence ... may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.” Williams, 529 U.S. at 398, 120 S.Ct. 1495. See also Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (noting consideration of defendant’s life history is part of the process of inflicting the death penalty); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (invalidating state law that did not permit consideration of defendant’s background).

In three recent federal habeas cases decided post-AEDPA in which trial attorneys years ago performed deficient investigations prior to capital sentencing hearings, the Supreme Court granted the prisoners relief on the ground that they were denied constitutionally adequate assistance of counsel as compelled by the Sixth Amendment and the clearly established law of the Supreme Court stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rompilla, 125 S.Ct. at 2460-2461; Wiggins, 539 U.S. at 515-516, 123 S.Ct. 2527; Williams, 529 U.S. at 369, 120 S.Ct. 1495.

In the 2000 Williams case, the Supreme Court applied Strickland to conclude that counsel’s failure to discover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision because counsel had not fulfilled their duty to conduct a thorough investigation of the defendant’s background. 529 U.S. at 396, 120 S.Ct. 1495.

The Court reversed the Fourth Circuit’s decision, which, like the state courts, found no constitutional error, because the analysis was contrary to, and an unreasonable application of, clearly established Supreme Court law as stated in Strickland. 529 U.S. at 399, 120 S.Ct. 1495. Williams did not make new law. Wiggins, 539 U.S. at 522, 123 S.Ct. 2527. “In highlighting counsel’s duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides,” the Supreme Court applied the same “clearly established” precedent of Strickland that it applied in Wiggins. Id.

In Strickland, the high court underscored that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary[,]” 466 U.S. at 688-689, 104 S.Ct. 2052, and directed that a particular decision not to investigate “must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 691, 104 S.Ct. 2052. The Strickland opinion had been available approximately five years when the Tennessee Court of Criminal Appeals ruled on King’s first post-conviction appeal in 1989.

See Mason, 320 F.3d 604, 614 (6th Cir.2003) (under AEDPA, court must look only to Supreme Court holdings that existed at time of state court decision). In Wiggins, the Supreme Court held that the attorneys’ decision not to expand their investigation of the defendant’s life history for mitigating evidence beyond the presentence report and social service records in their possession fell short of prevailing professional standards. 539 U.S. at 523-524, 123 S.Ct. 2527. The Court reversed the Fourth Circuit’s deference to the Maryland Court of Appeals’ objectively unreasonable application of Strickland.

Id. at 527-528, 123 S.Ct. 2527. In Rompilla, the Supreme Court held that a defense attorney is required to make reasonable efforts to obtain and review material that he knows the prosecution will rely on as evidence of aggravation even if the defendant and family members suggest that no mitigating evidence is available. 125 S.Ct. at 2460. This is a high standard imposed upon counsel to advocate for his client even if the client himself is not motivated to supply information that might mitigate his sentence.

The Court reversed the Third Circuit’s decision that the Pennsylvania state courts had reasonably applied Strickland. Id. at 2461. These cases are critically important here, for on the record as it stands before the Court, it appears trial counsel failed to conduct any investigation whatsoever, nor did they request additional time to do so, even though leads were available to them. See Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir.1999) (the “prospect of being put to death unless counsel obtains and presents something in mitigation” magnifies counsel’s responsibility to investigate).

In light of the prevailing standards governing attorney conduct at the time, King’s attorneys had a duty and obligation to conduct a thorough investigation: It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities.

The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty. 1 ABA Standards for Criminal Justice 4-4.1 (2d.ed.1982) (quoted in Rompilla, 125 S.Ct. at 2466); Coleman v. Mitchell, 268 F.3d 417, 449 (6th Cir.2001); Carter v. Bell, 218 F.3d 581, 596-597 (6th Cir.2000). “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.” 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1982); Wiggins, 539 U.S. at 524, 123 S.Ct. 2527. The ABA standards describe counsel’s obligation “in terms no one could misunderstand in the circumstances of a case like this one[.]” Rompilla, 125 S.Ct. at 2465-2466. The Supreme Court has long referred to the ABA standards as guides to determine what is reasonable when evaluating whether counsel performed de-ficiently.

Wiggins, 539 U.S. at 524, 123 S.Ct. 2527; Williams, 529 U.S. at 396, 120 S.Ct. 1495; Strickland, 466 U.S. at 688-689, 104 S.Ct. 2052; Harries v. Bell, 417 F.3d 631, 638 (6th Cir.2005) (pre-AEDPA analysis). See also Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975) (directing Tennessee defense attorneys to turn to the ABA standards for guidance). If it is true that trial counsel did not investigate mitigating evidence that would have helped King at the penalty phase, then such a failure would itself be objectively unreasonable. Wiggins, 539 U.S. at 523, 123 S.Ct. 2527.

The Court must measure counsel’s performance for “reasonableness under prevailing professional norms,” which requires “a context-dependent consideration of the challenged conduct” as seen from the perspective of counsel at the time. Id.; Strickland, 466 U.S. at 688, 104 S.Ct. 2052. An abdication of advocacy on King’s behalf at the penalty phase of trial, given the apparent availability of witnesses willing to testify, would constitute deficient performance under Strickland.

Id. at 531-533, 123 S.Ct. 2527; Williams, 529 U.S. at 391-398, 120 S.Ct. 1495; Rompilla, 125 S.Ct. at 2467; Harries, 417 F.3d at 636-642; Austin v. Bell, 126 F.3d 843, 849 (6th Cir.1997). To establish that counsel’s deficient performance constituted a Sixth Amendment violation, however, King must also show that counsel’s conduct prejudiced his defense. Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052).

Prejudice manifests where the defendant shows “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ Id. (quoting Strickland, 466 U.S. at 692, 104 S.Ct. 2052). A “reasonable probability” is one sufficient to undermine confidence in the outcome. Id. “In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Id. The prejudice King suffered from what appears to be counsel’s deficient performance at the sentencing phase comes directly from one of the attorneys.

Howell attests that in the last twenty-three years of practicing law, he has handled many homicide and attempted homicide cases in Mau-ry County and the surrounding area. (Docket Entry No. 79-4, Howell Decl. at ¶ 11.) Based on his experience, he now believes “that had the [mitigation] evidence been presented in Mr. King’s case, the outcome of his case would most likely have been different.” (Id.) The trial transcript indicates that King’s attorney knew of his checkered criminal history, but he failed to explain or try to mitigate this damaging evidence.

He failed to present evidence of King’s social history, the trauma caused by the murders of the Brewers, and other evidence that might have been offered to explain the origin of his unusual criminal behavior between 1977 and 1979, and to mitigate the consequences of his actions. Instead, Lovell, King’s own attorney, asked, “Tommy, you have not been a choir boy have you?” (Addendum No. 2, Trial Tr. at 594.) Counsel then led his client a second time through a litany of his prior convictions.

By failing to pay sufficient attention to pertinent dates when King was working or in prison, counsel left his unprepared client exposed to a withering cross-examination. Even though King stated he was mixed up on the dates, he may have damaged his credibility when he said he was working but actually he was in jail.

His inability to recall the details of his life in the previous few years might not have seemed so devious if evidence had been presented to the jury about the extent of King’s addiction to heroin, his reliance on theft and robbery to support Ms habit, and his mental condition following the murder of the Brewers. The State followed King’s confused and contradictory testimony with a law enforcement character witness, Detective James Jackson, who testified that King’s reputation for truth and veracity in the community was “bad” and stated King could not be believed in a court of law.

Counsel did not object to this opinion testimony or try to minimize the damage by presenting family members and Mends who had a different opinion of King’s reputation and veracity. Instead, defense counsel asked the witness if he got his information from drug dealers, which may have raised a suspicion to the jury that King might have been involved in dealing drugs, too. No mention was made of some of the more positive aspects of King’s past, such as his regular church attendance and participation in school and community activities as a child.

The failure to introduce such favorable evidence opened the door for the prosecutor to argue in closing: “I never once heard from this defendant in the two times that he testified from this stand, that he ever [darkened] the door of a Church, not once did I hear that.” (Addendum No. 2, Trial Tr. at 674.) In addition, counsel did not ask King whether he felt any remorse for Lock-ridge’s killing, or try to raise the possibility in the jurors’ minds that King’s assaul-tive behavior toward Lockridge, also an African American who allegedly had cheated him, may have been connected to his mental problems and latent hatred for the Black Moslems who murdered the Brewers.

In pursuit of the death penalty, the prosecutor repeatedly commented on the absence of mitigating evidence: Then there are some mitigating factors ... you could consider the defendant has no significant history of prior criminal activity, well that is out. By his own mouth he is a professional criminal without regard to the law. (Docket Entry No. 50, Addendum 2, Trial Tr. at 642.) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance; that is not present.

No hint of anything of that nature in this record. (Id.) [T]he defense may argue that the murder was committed under circumstances which the defendant reasonably believed to provide a moral justification for his conduct....

What morals does Tommy King argue from; the morals of Tommy King, that what is yours can be mine, and what laws are made are made for you but not for me, probation is for somebody else, I am on probation but what does it matter I will come to Mau-ry County and do as I wish, and I will do as I wish in Hamilton County, and go back and beat the system. (Id. at 643.) The defendant was an accomplice in the murder, this again is a mitigating (sic), committed by another and the defendant’s participation was relatively minor, major actor, the star of the show as far as murder, death, and robbery go. (Id. at 643-644.) The youth or advanced age of the defendant at the time of the crime, he can neither claim youth, or he can neither claim advanced age; he is thirty-two (32) years of age, about the average age of this jury if we averaged your age out. (Id. at 644.) The capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law as a result of mental disease defect intoxication.

That is not present. (Id.) Where is (sic) the mitigating circumstances upon which the defendant can argue to you credibly that he should not be held accountable for his deeds and suffer the consequences. Now, you promised me, you promised everybody, and you promised your God under oath, and you promised this Court that you will follow the law and the facts; and I believe that you meant that oath, and I believe that you are just real serious about it. (Id.) But I will draw one stark contrast for you between Mr.

Lovell’s emotionalism and that of his client, and ask you if at any time from this witness stand you ever saw one tear of remorse from Tommy Lee King? Not one.

And I apologize for raising my voice ... but it just seems to me ... it provides a really stark contrast to this man who by his own testimony for the greater part of his life, adult life, has done nothing but rob and steal and live off the illegally obtained goods of those honest people who have worked for it. (Id. at 670.) We also [have] the matter of the mitigating circumstances, and I can’t find them, they are just not there. (Id. at 672.) We have a man who has been afforded all of the benefits of the society, of this system, who has gotten into trouble and we have made attempts to rehabilitate him with probation, we have made attempts to let him come back on to the streets and learn to live within our society and adapt himself to your rules, and he has flaunted it....

Now, he has demonstrated finally and for all times that he never intends to adapt himself to the rules of civilized behavior and, therefore, this society can no longer tolerate him, now that is what it boils down to. (Id. at 675.) This was a cold-blooded first degree murder, and if there was ever in my opinion a ease that justifies the imposition of ... the death penalty, gentlemen, this is it. (Id.) Had the jury heard some of the mitigating evidence which could have been presented in King’s favor, there is a reasonable probability that the outcome of the sentencing would have been different.

See Strickland, 466 U.S. at 692, 104 S.Ct. 2052.

Such evidence included his solid upbringing in a good home after the separation of his parents, his attendance at church and school, his early discipline and good work ethic, the horrifying murders of the Brewers by members of the Black Panthers, his guilt and subsequent nightmares for failing to protect them even after he reassured Alice Brewer that she was safe, his undisciplined lifestyle as a youngster in New York where he became addicted to drugs, his continuing frustration with the system that did not prosecute the Brewers’ killers but prosecuted him, his addiction to other drugs when he returned to Chattanooga, the loss of his close personal relationships, his own wounding by gunfire, and his mental problems and suicide attempt.

King was not limited to presenting evidence to support only the statutory mitigating factors; he was entitled to present any relevant mitigating evidence. Hitchcock v. Dugger, 481 U.S. 393, 398-399, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings, 455 U.S. at 110, 102 S.Ct. 869; Lockett, 438 U.S. at 604, 98 S.Ct. 2954. The jury was entitled to hear this information to complete fairly and accurately their sentencing task. As the Supreme Court said in Gregg v.

Georgia, 428 U.S. 153, 190, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (emphasis in original): If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sen-fencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.

One juror, having heard the mitigation evidence, might have voted differently.

See Wiggins, 539 U.S. at 537, 123 S.Ct. 2527 (“Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance.”) The mitigating evidence amassed in King’s post conviction proceedings “adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury, and although we suppose it is possible that the jury could have heard it all and still have decided on the death penalty, that is not the test.” Rompilla, 125 S.Ct. at 2469; Harries, 417 F.3d at 640.

The undiscovered mitigating evidence, taken as a whole, “might well have influenced the jury’s appraisal” of King’s culpability, see Williams, 529 U.S. at 398, 120 S.Ct. 1495; Wiggins, 539 U.S. at 538, 123 S.Ct. 2527, and “the likelihood of a different result if the evidence had gone in is ‘sufficient to undermine confidence in the outcome’ actually reached at sentencing”. Rompilla, 125 S.Ct. at 2469 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The Sixth Circuit has come to similar conclusions in recent cases. See Mason v.

Mitchell, 320 F.3d 604, 624-626 (6th Cir.2003) (remanding for evidentiary hearing concerning failure to develop mitigating evidence of petitioner’s troubled childhood); Coleman, 268 F.3d at 450-452 (finding ineffective assistance during mitigation phase for failure to investigate or present evidence of troubled background); Greer, 264 F.3d at 676-677 (finding significance in counsel’s failure to begin preparation for mitigation phase until after verdict of guilt); Skaggs v.

Parker, 235 F.3d 261, 269-270 (6th Cir.2000) (finding failure to present meaningful mitigating evidence fell below Sixth Amendment standard); Carter, 218 F.3d at 600 (holding counsel’s complete failure to investigate and present mitigation caused such prejudice that court need not decide deficient performance); Groseclose v. Bell, 130 F.3d 1161, 1170-1171 (6th Cir.1997) (holding counsel’s failure to present mitigating evidence was only one of many constitutional errors); Austin, 126 F.3d at 848 (finding failure to investigate and present mitigation case undermined adversarial process); Glenn v.

Tate, 71 F.3d 1204, 1206-1208 (6th Cir.1995) (holding failure to present mitigating evidence of mental history and capacity resulted in unreliable outcome). As stated earlier, in denying post-conviction relief, the state trial court ruled that “any value that testimony of good rearing an

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