        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2    Thompson v. Bell                             No. 00-5516
    ELECTRONIC CITATION: 2004 FED App. 0195P (6th Cir.)
                File Name: 04a0195p.06                     ATTORNEY         GENERAL,       Nashville,    Tennessee,    for
                                                           Appellee.
UNITED STATES COURT OF APPEALS                               MOORE, J., delivered the opinion of the court, in which
                                                           CLAY, J., joined. SUHRHEINRICH, J. (pp. 7-105),
               FOR THE SIXTH CIRCUIT                       delivered a separate opinion concurring in part and dissenting
                 _________________                         in part.

 GREGORY THOMPSON,                 X                                           _________________
           Petitioner-Appellant, -                                                 OPINION
                                    -
                                    -  No. 00-5516                             _________________
            v.                      -
                                     >                       KAREN NELSON MOORE, Circuit Judge. Eighteen
                                    ,                      months ago, this panel in a split decision producing three
 RICKY BELL, Warden,                -                      different opinions affirmed the decision of the district court
          Respondent-Appellee. -                           granting summary judgment to respondent in this habeas
                                  N                        corpus action. Judge Suhrheinrich later conducted sua sponte
        Appeal from the United States District Court       a second, thorough review of the record and came to the
   for the Eastern District of Tennessee at Chattanooga.   conclusion that the facts as adduced in deposition testimony
   No. 98-00006—R. Allan Edgar, Chief District Judge.      not part of the district court record supported the granting of
                                                           the writ. See infra (Suhrheinrich, J., concurring). Upon
           Decided and Filed: June 23, 2004                reviewing the deposition of Dr. Faye Sultan, and investigating
                                                           the procedural complications of this case, it is clear that this
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit             extremely probative testimony requires that we vacate the
                   Judges.                                 district court’s grant of summary judgment in favor of
                                                           respondent.
                  _________________
                                                             Judge Suhrheinrich summarizes most effectively the Sultan
                       COUNSEL                             deposition and its value in assessing Gregory Thompson’s
                                                           mental state at the time of the crime. Where his opinion goes
ARGUED:       Dana C. Hansen Chavis, FEDERAL               too far is in its accusations of fraud on the court; while his
DEFENDER SERVICES, Knoxville, Tennessee, for               explanation for the omission of the Sultan deposition from the
Appellant.   Jennifer L. Smith, OFFICE OF THE              official record before the court is possible in the narrowest
ATTORNEY GENERAL, Nashville, Tennessee, for                sense, the power of this court should not be used to make
Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL         such accusations without more definite proof than the factual
DEFENDER SERVICES, Knoxville, Tennessee, for               record of this case reveals.
Appellant.   Jennifer L. Smith, OFFICE OF THE


                            1
No. 00-5516                            Thompson v. Bell        3    4     Thompson v. Bell                              No. 00-5516

   Dr. Sultan’s deposition was taken by trial counsel for           913 F.2d 89, 97 (3d Cir. 1990) (citing inconsistent circuit
respondent, but was not included with the evidence submitted        precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir.
as part of Bell’s motion for summary judgment. Slightly             1980), the rule in this circuit has consistently been that Rule
more than one year later, contemporaneous with the                  10(e) does not allow such inclusion. See, e.g., Inland Bulk,
preparation of this appeal, appellate habeas counsel made a         332 F.3d at 1012; S & E Shipping Corp. v. Chesapeake &
Rule 60(b) motion in the district court asking to include the       Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir. 1982). We adhere
Sultan deposition as part of the record. At the same time,          to our previous interpretation that Rule 10(e) does not allow
Thompson’s counsel submitted that deposition to this court as       inclusion in the appellate record of material that the district
part of his motion to hold this appeal in abeyance during the       court did not consider.
pendency of the Rule 60(b) motion. Applying the principle
of Occam’s razor, we conclude that more than likely, a                 Although Rule 10(e) is thus unavailable, we recognize that
genuine mistake was made, one which was not realized until          a number of our sister circuits have held that the courts of
a different attorney looked at the case. To conclude otherwise      appeals have the inherent equitable power to supplement the
is to disbelieve sworn testimony by an officer of the court,        record on appeal, where the interests of justice require. See
and to assume that habeas counsel conspired to conceal              United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir.
evidence beneficial to their client, for no discernible reason      2000) (“[U]nder some circumstances, we have an inherent
— evidence loses power, rather than gains it, by being              equitable power to supplement the record on appeal.
revealed on the “eve of execution” in a second habeas               However, we conclude the present case” does not present
petition. Reading Judge Suhrheinrich’s opinion, one might           those circumstances.); Ross v. Kemp, 785 F.2d 1467, 1474
conclude that this court had only recently unearthed the            (11th Cir. 1986) (relying on Dickerson, infra, and exploring
Sultan deposition, when in fact it was submitted to the panel       circumstances under which exercise of that power is
prior to oral argument as part of the abeyance motion.              appropriate); Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th
                                                                    Cir. 1984) (“Although a court of appeals will not ordinarily
   We did not consider it, however, in rendering our decision,      enlarge the record to include material not before the district
believing ourselves to be bound by the record created in the        court, it is clear that the authority to do so exists.”); Dickerson
district court. Upon reflection, and after reviewing Judge          v. Alabama, 667 F.2d 1364, 1368 (11th Cir. 1982) (relying on
Suhrheinrich’s forceful assessment of the probity of the            court’s inherent equitable powers to supplement the record in
Sultan deposition, we believe it is appropriate to use our          habeas case); Turk v. United States, 429 F.2d 1327, 1329 (8th
inherent equitable powers to expand the record on appeal to         Cir. 1970) (“[I]n the interest of justice, this court may order
consider the deposition. Ordinarily, a court of appeals should      the record enlarged.”); Gatewood v. United States, 209 F.2d
only consider evidence made part of the district court record.      789, 792-93 & n.5 (D.C. Cir. 1953) (sua sponte ordering
Where through error or accident material matters are omitted        preparation of transcript for record “in the interest of both
or misstated, Federal Rule of Appellate Procedure 10(e)             parties, and of the due administration of justice”); see also
allows correction of the appellate record to include the            Charles Alan Wright et al., Federal Practice & Procedure
corrected material. See Inland Bulk Transfer Co. v. Cummins         § 3956.4, at 349-51 (3d ed. 1999 & Supp. 2003) (“In special
Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003). While              circumstances, however, a court of appeals may permit
some circuit courts have held that Rule 10(e) allows the            supplementation of the record to add material not presented
inclusion of material the district court did not consider, see In   to the district court.”); 20 Moore’s Federal Practice,
re Capital Cities/ABC, Inc.’s Appl. for Access to Sealed Trs.,      § 310.10[5][f], at 310-19 (3d ed. 2000) (“In extraordinary
No. 00-5516                            Thompson v. Bell        5    6    Thompson v. Bell                            No. 00-5516

situations, the circuit court may consider material not             357 F.3d 461, 464 (4th Cir. 2004) (“The mandate of the court
presented to the district court when it believes the interests of   has not yet issued in this case, and, therefore, we may, at our
justice are at stake.”). Although recent Sixth Circuit cases        discretion, ‘amend what we previously decided . . . .’”
indicate that we have not yet “embraced the notion that the         (quoting Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.
record can be supplemented under an appellate court’s               1980)); First Gib. Bank v. Morales, 42 F.3d 895, 898 (5th Cir.
equitable authority,” see Inland Bulk, 332 F.3d at 1012, in at      1995) (relying on Alphin, 552 F.2d at 1035, to reconsider
least one earlier state habeas case we have so supplemented         decision where mandate had not yet issued). We therefore
the record, citing to Dickerson, 667 F.2d at 1367. See              rely on our inherent power over a case until our mandate
Prather v. Rees, 822 F.2d 1418, 1420 n.1 (6th Cir. 1987)            issues in reconsidering our opinion in this case.
(“Although the parties did not provide the court with copies
of the state court briefs, this court may supplement the record       The judgment of the district court is therefore VACATED,
when necessary.”); see also Adams v. Holland, 330 F.3d 398,         and the case is REMANDED for further proceedings not
405-06 (6th Cir. 2003) (recognizing exception to Rule 10(e)         inconsistent with this opinion. Thompson’s execution is also
in habeas cases: “where substantial portions of [the state trial    STAYED for 180 days to permit the district court to proceed.
transcript] were omitted before the District Court, a habeas
case should be remanded to the District Court for
consideration in light of the full record.”). Because the
evidence here was apparently negligently omitted, because
the evidence is so probative of Thompson’s mental state at the
time of the crime, because there is no surprise to respondent
as it was his counsel who took the deposition, and because
this is a capital case, we believe that the circumstances of this
case merit consideration of the Sultan deposition pursuant to
our equitable power to supplement the record on appeal,
despite the omission of the deposition from the District Court
record. We therefore vacate the grant of summary judgment,
and remand the case to the District Court for a full evidentiary
hearing.
  It remains to be explained the source of our power to so
reconsider our earlier opinion, as we do not join in Judge
Suhrheinrich’s allegation of fraud on the court. Instead, we
rely on our inherent power to reconsider our opinion prior to
the issuance of the mandate, which has not yet issued in this
case. Although a court of appeals should withdraw an
already-issued mandate only to prevent a miscarriage of
justice, see Calderon v. Thompson, 523 U.S. 538 (1998), at
least two of our sister circuits have reconsidered opinions
where the mandate has not yet issued. See Wilson v. Ozmint,
No. 00-5516                            Thompson v. Bell       7    8       Thompson v. Bell                                No. 00-5516

 ______________________________________________                    in my chambers, who also happens to be a board-certified
                                                                   psychiatrist, expressed concern as to why Thompson’s post-
  CONCURRING IN PART, DISSENTING IN PART                           conviction expert, Gillian Blair, Ph.D., and Thompson’s
 ______________________________________________                    habeas experts, Barry Crown, Ph.D. and Faye Sultan, Ph.D.,
                                                                   had not directly addressed the question as to whether
  SUHRHEINRICH, Circuit Judge, concurring in part and              Thompson did or did not exhibit symptoms of a major mental
dissenting in part.                                                illness at the time of the crime or sentencing, and, if he did,
                                                                   whether the symptoms were sufficient at that point to support
                       I. Introduction                             a diagnosis of mental illness which should have been
                                                                   presented as mitigating evidence at the sentencing hearing.
  Petitioner-Appellant Gregory Thompson (“Thompson” or             I then conducted my own review of the entire certified record,
“Petitioner”) was convicted of first degree murder and             in addition to my prior review of the joint appendix. As a
sentenced to death by the State of Tennessee. In a previous        result of my review of the entire certified record, I feel that it
decision, this Court affirmed the district court’s denial of his   is incumbent upon me, as a judicial officer sworn to uphold
request for a writ of habeas corpus. See Thompson v. Bell,         the Constitution, and as authoring judge of the initial opinion,
315 F.3d 566 (6th Cir. 2003), cert. denied, 124 S. Ct. 804         to reverse that ruling and issue this opinion. Although I am
(2003). The Supreme Court denied Thompson’s petition for           now merely a concurring/dissenting judge in this matter, I
writ of certiorari. On February 25, 2004, the State of             wish it to be known that the initiative for this decision came
Tennessee granted the State’s motion to set an execution date      from my chambers. The majority’s ruling is based upon their
and has ordered that the Warden of the Riverbend Maximum           review of my draft opinion, prepared after my discovery, and
Security Institution or his designee execute the sentence of       the hundreds of hours of work that followed, reviewing the
death on August 19, 2004, “unless otherwise ordered by this        entire record, researching the law, and drafting this opinion.
Court or other appropriate authority.” This matter is now
before this Court on its own motion.                                 The question thus is whether our prior ruling was mistaken,
                                                                   because there is, and was, in fact available proof that
   Essential to our conclusion that Thompson was not denied        Thompson was suffering from a serious mental disease or
effective assistance of counsel due to counsel’s failure to        defect at the time of the 1985 offense which would have
introduce evidence that he suffered from schizophrenia at the      substantially impaired his ability to conform his conduct to
time of the offense was our finding that Thompson “has never       the requirements of law.1 Also at issue, and integral to the
submitted to any court any proof that he suffered from severe
mental illness at the time of the crime.” Thompson, 315 F.3d
at 590. Subsequent to the issuance of our decision on January          1
9, 2003, information has come to the attention of the Court              The Tennessee Code Annotated, § 39-13-204(j) lists as a mitigating
which requires us to determine whether our decision to affirm      factor:
                                                                        (8) The capac ity of the defendant to app reciate the wrongfulness
the district court’s denial of Thompson’s petition for writ of          of the defendant’s conduct or to conform the defendant’s
habeas corpus relief from his death sentence was improvident.           conduct to the requirements of the law was substantially
                                                                        impaired as a result of a mental disease or defect or intoxication
   While reviewing various Sixth Circuit death penalty cases            which was insufficient to establish a defense to the crime but
in preparation of a law review article on the subject, an intern        which substantially affect the defendant’s judgment[.]
                                                                   Tenn. Cod e Ann. § 39-13-304 (j)(8) (2003).
No. 00-5516                            Thompson v. Bell       9    10    Thompson v. Bell                             No. 00-5516

primary question, is whether the federal habeas counsel in this    the Navy, when he was beaten in the head with a hammer by
case committed fraud on the court by intentionally or              three fellow servicemen.
recklessly failing to present critical evidence on the question,
of which they had knowledge, to the district court. For the           On March 28, 1985, less than three months from the date of
reasons that follow, we vacate our prior ruling and                the offense, the trial court ordered that Thompson be referred
conditionally grant the writ.                                      to the Multi-County Mental Health Center for a forensic
                                                                   evaluation to determine (1) his competency to stand trial and
                      II. Background                               to assist in his own defense, and (2) his mental capacity at the
                                                                   time of the crime. On April 4, 1985, the trial court entered
  The facts are set forth in great detail in our prior opinion.    another order directing Thompson to undergo a forensic
See id. However, because the present inquiry involves              evaluation at a state facility, Middle Tennessee Mental Health
voluminous facts and procedural history not presented to us        Institute (“MTMHI”), for a maximum of thirty days. A team
on appeal as part of the joint appendix, it is necessary to        of forensic psychologists at MTMHI evaluated Thompson
revisit much of the case, and to review and present the new        and found him to be competent.
materials. To the extent possible, I have attempted to present
the relevant facts in chronological and procedural order.             Trial counsel questioned the state team’s impartiality and
                                                                   requested funds to secure further psychiatric evaluations. On
                A. State Court Proceedings                         July 29, 1985, the trial court granted counsel funds to hire an
                                                                   independent psychiatrist. Instead, counsel used the funds to
                        1. Trial Court                             hire Dr. Copple, a clinical psychologist. Trial counsel stated
                                                                   that the effort to hire a psychiatrist “was not successful.” Id.
  Brenda Lane was murdered on January 1, 1985. Thompson            at 573. Also as part of their trial preparation, counsel traveled
was apprehended the next day. On January 29, 1985, the trial       to Thompson’s home town where they interviewed various
court appointed counsel. On February 26, 1985, less than two       family members and acquaintances of Thompson.
months after the murder, counsel filed a notice of insanity
defense and also requested a mental or psychological                 Thompson did not present a defense at trial, and the jury
evaluation of Thompson to determine (1) whether Thompson           convicted him of the first degree murder of Brenda Lane. At
was competent to stand trial, and (2) his mental capacity at       the sentencing phase, Thompson’s former girlfriend, Arlene
the time of the crime. On March 25, 1985, less than three          Cajulao, testified that she knew Thompson from 1980 until
months after the murder, trial counsel filed a supplementary       June 1984. She described Thompson as caring and sensitive.
motion for a psychiatric examination and a neurological            On cross-examination, she testified to incidents concerning
examination to determine (1) whether Thompson was                  Thompson’s violent behavior while in the Navy.
competent to stand trial and assist counsel with his defense,      Thompson’s sister, Nora Jean Walton, testified about his
(2) whether Thompson was suffering from a mental illness on        activities in Georgia upon his return from Hawaii after his
the date of the offense, and (3) whether Thompson was in           discharge from the Navy. Dr. Copple also testified. He stated
need of hospitalization for further psychiatric treatment and      that he spent roughly eight hours examining Thompson over
evaluation. The affidavit in support stated that Thompson had      several sessions. Copple stated that during the first session,
previously suffered two concussions, one when he was               he was basically looking at what things Thompson would be
sixteen years old from a car accident, and the second while in     capable of doing in a prison setting. Copple testified that, in
No. 00-5516                           Thompson v. Bell     11    12   Thompson v. Bell                             No. 00-5516

his opinion, Thompson had an unusually strong need to                                 2. Post-Conviction
nurture other people that had impelled him to some unwise
actions. Copple felt that Thompson did not have an adult            On October 16, 1990, Thompson filed a petition for post-
anti-social personality disorder. On cross-examination           conviction relief, claiming in relevant part that trial counsel
Copple stated that he did not think Thompson was suffering       failed to investigate adequately Thompson’s background and
from any mental illness.                                         personal and medical history for the existence of mitigating
                                                                 evidence. See Thompson, 315 F.3d at 576. On February 1,
  The State presented in rebuttal the deposition testimony of    1991, post-conviction counsel filed an ex parte, sealed motion
Dr. Robert Glenn Watson, who had participated in the staff       seeking “funds to hire a licensed psychologist or psychiatrist
evaluation of Thompson at MTMHI. Watson found no                 and an investigator to assist in the preparation of his case for
intellectual impairment. Watson also testified that they found   post-conviction relief.” Id. at 577. In support, counsel
no real evidence of organicity or brain damage. Watson also      attached the affidavit of Dr. Gillian Blair, a clinical
administered the Minnesota Multiphasic Inventory-II              psychologist. Blair noted that Thompson’s post-incarceration
(“MMPI”), but determined that the tests results reflected        medical records indicated that Thompson had been variously
malingering. Watson further stated that on May 24, 1985, at      diagnosed as having bipolar affective disorder, schizo-
a staff conference, based on all the data, the staff concluded   affective disorder, and schizophrenia, paranoid type, and was
that:                                                            taking Lithium, Haldol, and Cogentin. Id. Blair opined that
                                                                 “[i]f Mr. Thompson is found to be suffering from
  [Thompson] exhibited none of the signs of an affective         neurological or psychological impairment as described above,
  illness. His judgment and insight are rather poor.             it is likely that some degree of such impairment would have
  Psychological testing revealed him to be functioning in        existed at the time of the offense and would have been a
  the average range intellectually, to exhibit no signs of       significant factor in determining whether or not Mr.
  organicity or brain damage on the Bender-Gestalt Test          Thompson was able to appreciate the wrongfulness of his
  and the Bender Interference Procedure. Personality             conduct or to conform his conduct to the requirements of law
  profiles revealed no evidence of a psychosis, but              when he committed the homicide of which he stands
  indicated malingering in the mental illness direction.         convicted.” Id. Blair indicated that Thompson needed a full
  (For example, the schizophrenic score was at T 120,            psychological evaluation. Id.
  while clinical observations revealed no evidence of a
  thought disorder.)                                               The state trial post-conviction court held an evidentiary
                                                                 hearing on March 27 and March 29, 1995. At the hearing
   The staff at MTMHI diagnosed Thompson as Axis 1, Adult        Blair testified that she reviewed Thompson’s institutional
Antisocial Behavior, 071.01. The forensic team therefore         records, beginning with the 1985 MTMHI assessment. She
concluded that Thompson was mentally competent to stand          also interviewed Thompson in March and April 1992, and at
trial and was not suffering from a mental disease or defect.     that time administered “a basic psychological battery of tests
                                                                 with some additional . . . neuropsychological tests because of
  The jury imposed the death penalty at the conclusion of the    the history of head injuries that Mr. Thompson had received
penalty phase, and the trial court entered judgment sentencing   and that were well documented in his medical record.” Id. at
Thompson to death by electrocution. Thompson thereafter          578-79. Blair then articulated the following opinion:
pursued his direct appeals to no avail.
No. 00-5516                           Thompson v. Bell     13    14       Thompson v. Bell                                  No. 00-5516

  The Riverbend medical record indicated that since 1985,          violent and possibly in his mother but none of those
  Mr. Thompson had shown a deteriorating mental status.            records were available.
  He had become psychotic. He had been treated with
  anti-psychotic medication at that time. He was treated         Id. Blair therefore stated that she did not have an opinion
  with Haldol, Cogentin, and Lithium, and three different        about Thompson’s diagnostic
  treating physicians at that time: Dr. Dyner [sic], Dr.
  Deal, and Dr. Humble had all over the years from 1985          status in 1985. Id.
  to 1990 had diagnosed him as either having bipolar
  disorder or a schizo affective disorder or schizophrenia.         On cross-examination, Blair stated that she had reviewed
  They described his agitated behavior. They described his       all of the records included in the files from MTMHI. This
  hostility. They described his inappropriate affect, his        included daily progress notes, medication sheets, the report of
  experience of auditory hallucinations, his delusions, his      psychological testing, the discharge summary, the admission
  paranoia, his thoughts of persecution. He had attempted        summary, the staff conference report, and the social worker’s
  suicide of a couple of occasions. He had set fire to his       history. Id. When asked whether she thought MTMHI’s
  cell burning both his hands and his face. They had             testing procedure was unreliable, she averred that it was not
  certainly–two of those psychiatrists and maybe all three       unreliable, but simply “not extensive enough.” Id. Blair
  of them had considered the possibility that he was             further testified that from her own testing,2 she did not
  malingering, that he was faking mental illness and             believe that Thompson was faking or attempting to fake
  throughout their Riverbend records, it was clear that          mental illness.
  those psychiatrists had discounted the possibility of
  malingering because they didn’t feel that it accounted for       On May 15, 1995, the post-conviction court denied
  all of the psychotic symptoms they saw in him.                 Thompson’s claims. The court found that defense counsel
                                                                 had made an adequate investigation into their client’s
Id. at 579.                                                      background and prior medical history. The court stated that
                                                                 state post-conviction counsel had presented no proof of
  Blair was also asked what other facts would be necessary       mental problems that would have provided Thompson with a
for her to develop an opinion as to Thompson’s condition at      defense or shielded him from the death penalty. Id. at 580.
the time of the offense. She stated that “the most important
thing that would be necessary would be a full history and full
medical records of Mr. Thompson prior to the commission of            2
                                                                        Blair stated that she ad ministered the following tests:
the offense.” Id. She added that:                                          The tests that I administered in 1992 that directly addressed
                                                                      whether there was psychosis or no t, I administered the PA I, I
  From the records I was able to review, it was clear that            administered the MM PI II which replaces the MM PI which was
  the social history was very sketchy in terms of his remote          administered in 1985. I administered the Rorschach, which was
                                                                      not adm inistered in 1985. The PAI wa s not ad ministere d in
  history, his childhood and his upbringing, and also                 1985. I administered the MC MI II and I adm inistered the
  family history of mental illness. There seemed to be a              Rorschach, which is a projective test of personality which was
  [sic] strong evidence to suggest that there was mental              not–the others are all objec tive. They are all tests in which
  illness in his family, probably in his father who                   individual answers true or false and the Rorschach is very
  committed suicide and was known to be extremely                     different.
                                                                 Id. at 579-80.
No. 00-5516                                Thompson v. Bell   15   16        Thompson v. Bell                                  No. 00-5516

The Tennessee Criminal Court of Appeals held that                  Warden to disclose his expert witnesses by December 31,
Thompson had failed to establish that any type of                  1998. The scheduling order also provided that the Warden’s
psychological impairment in general may have existed which         answer to the petition for writ of habeas corpus was to be
would have been mitigating evidence.” Id. That court               filed on or before July 17, 1998, and that the parties file a
specifically noted that “Dr. Blair declined to give an opinion     joint schedule of needed discovery by July 24, 1998.
on these important issues, and the evidence does not
preponderate against the trial court’s finding that the defense      On May 26, 1998, Assistant Attorney General Glenn R.
attorneys were not ineffective.” Id. (quoting Thompson v.          Pruden became counsel of record for the Warden.
State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997)).
                                                                                               a. The Petition
                B. Federal Habeas Proceedings
                                                                     As required by the scheduling order, Thompson filed his
                          1. District Court                        petition for writ of habeas corpus on June 12, 1998.
                                                                   Thompson alleged in relevant part that his trial counsel were
  On January 23, 1998, Thompson filed a petition for writ of       ineffective for failing to: (1) perform a reasonable
habeas corpus pursuant to 28 U.S.C. § 2254. (DCTR 1).3 He          investigation of his background and mental health history;
also filed a motion and application for appointment of counsel     (2) secure adequate expert assistance regarding his mental
to investigate, prepare and file the petition, pursuant to 21      health; (3) discover available evidence of mental illness
U.S.C. § 848(q)(4)(B). (DCTR 2). On January 29, 1998, the          caused by two serious head injuries; and (4) investigate and
court granted Thompson’s motion for appointment of counsel         challenge Thompson’s competency to stand trial as well as
and designated the Federal Defender Services of Eastern            his competency at the time of the offense.4 He also
Tennessee, Inc., to provide Thompson with an attorney to
prepare and file a petition for a writ of habeas corpus and “to
prepare for and participate in all proceedings in connection            4
                                                                        In fact, the allegation, as stated in his traverse, reads as follows:
therewith.” (DCTR 3).                                              The petition alleges in releva nt part that:
                                                                             In violation of the F ifth, Sixth, Eighth, and Fourteenth
  On March 9, 1998, the district court held a scheduling               Amendments, petitioner was denied the effective assistance of
conference. Attorney Stephen M. Kissinger was present                  counsel at the guilt phase of trial, the sentencing p hase o f trial,
representing Thompson. Assistant Tennessee Attorney                    on appeal, and in post-conviction proceedings. In particular,
                                                                       counsel failed to perform reasonably, and there is a reasonable
General John H. Baker III was present on behalf of the State.          probab ility, sufficient to undermine confidence in the outcome
(DCTR 6). On March 11, 1998, the district court entered a              of trial, sentencing, ap peal, and p ost-conviction proceedings, that
scheduling order. The court required, in relevant part, that           had counsel performed reasonably, petitioner would not have
disclosure of anticipated use of any expert witness and                been convicted or sentenced to death, and/or would have
disclosure of information regarding the expert and the                 received relief on appeal or in po st-conviction proc eedings.
expert’s expected testimony was to be completed by                     Spe cifically, counsel was ineffective for the following non-
                                                                       exclusive list of reasons:
Thompson by October 30, 1998. The court directed the
                                                                        a.    Counsel at all critical stages failed to reasonably
                                                                              investigate Mr. Tho mpson’s background and mental
   3
                                                                              health history. Had counsel done so, they would have
       District Court Record (“D CTR ”).                                      discovered that Petitioner had, in the years following
No. 00-5516                                   Thompson v. Bell        17   18        Thompson v. Bell                                        No. 00-5516

                                                                           claimed that he was denied funding for mental health and
                                                                           investigative experts during the state trial and post-conviction
        his graduation fro m high school, interm ittently                  proceedings. The petition was signed by Stephen M.
        demonstrated bizarre and delusional thought patterns,              Kissinger.
        particularly during ob jectively stressful situations.
        They would have also discovered that members of                      On August 25, 1998, the district court entered an order
        Petitioner’s family, e.g., his father, had a long and              granting Respondent’s motion for extension of time for filing
        pervasive history of severe mental illness. There is a
        reaso nable probab ility that such ev idenc e, when
                                                                           a discovery schedule, moving the deadline to September 2,
        coupled with evid ence prese nted d uring trial, would             1998.
        have convinced one or more jurors that Mr.
        Thomp son’s confession was not the truth, but rather the             On October 22, 1998, Thompson filed an amended petition
        product of the interaction betwee n his mental illness,            for writ of habeas corpus. Thompson contended, in pertinent
        his desire to     protect his co-defendant, Joanne                 part, that the state courts denied him funding for mental
        McN amara, and illegal questioning by po lice, as we ll
        as to provide relevant mitigating evidence at the                  health and investigative experts at trial and during state post-
        sentencing phase of trial. Trial counsel, however,                 conviction proceedings, implicating his fundamental rights to
        failed to perform a reasonable investigation, failed to            due process, equal protection, and effective assistance of
        find such evidence, and consequently failed to present             counsel. (DCTR 17). Thompson also complained that he was
        the following evidence to the jury, both during the guilt          denied expert funding, in violation of his Fifth, Sixth, Eighth
        phase and during the sentencing p hase o f the trial.

   b.   Coun sel was ineffective for failing to fully investigate
        and present relevant evidence of Mr. Thompson’s
        mental health history, and to secure adequate expert                          i.    Counsel failed to discover and interview
        assistance to defend Mr. T hompson including                                        pertine nt, available witnesses who could have
        psychologists, neuropsychological, and/or neurological                              testified and or informed appropriate mental
        experts to estab lish valid m itigating facto rs including,                         health experts of M r. Thompson’s descent
        but not limited to, three statutory mitigating factors                              into intermittent bizarre and delusional
        under Tennessee law, i.e, that Mr. Thompson suffered                                behavior following high schoo l;
        from substantial mental disord ers and dem onstrable
        physical brain dam age which made him unable to                               ii.   Counsel failed to discover available evidence
        conform his behavior to the law; left him under the                                 of mental illness caused by two serious head
        influence of extreme mental or emotional disturbance,                               injuries.
        substantially impaired his ability to appreciate the
        wrongfulness of his conduct at the time of the offense,                       iii. Counsel failed to obtain medical and other
        and non-statutory mitigation under both Tennessee and                              important records for the purpose of
        federal law. As importantly, had counsel secured such                              prese nting evidenc e in mitigation.
        mental health history, the result of any p rofessio nally
        adeq uate pre-trial competency and insanity                             c.    Counsel failed to obtain adequate expert assistance,
        examination (including, if indee d it was, o r had been,                      i n c l u di n g c o n fi d en t ia l p s yc h o l o g i ca l,
        professiona lly adequate, the pre-trial competency                            neuro psychological, and neuro logical experts.
        examination actually p erform ed in M r. Thompson’s
        case) would have been different. Specifically, but not                  d.    Counsel failed to investigate and challenge Petitioner’s
        exclusively:                                                                  competency to stand trial as well as his competency at
                                                                                      the time of the offense.
No. 00-5516                             Thompson v. Bell     19   20    Thompson v. Bell                          No. 00-5516

and Fourteenth Amendment rights. He alleged in relevant                  schizophrenia were found consistent with
part:                                                                    Petitioner’s psychotic disorder even at his then
                                                                         current “stable” level of functioning. Since his
  a.   Both trial and post-conviction counsel knew                       incarceration, Petitioner has been heavily
       Petitioner’s mental state was an important issue                  medicated. For example, Petitioner has taken
       but without assistance from a competent                           Lithium and Klonopin, both indicated for
       investigator and mental health expert, counsel                    bipolar disorder; Depakene and Depakote
       was unable to explain and overcome the state                      indicated for epileptic conditions and rapid
       mental hospital’s initial findings.                               cycling bipolar disorder due to brain disease;
                                                                         the anti-psychotic drugs Haldol, Haloperidol,
  b.   Attorney Parsons was aware of Petitioner’s                        Mellaril, Navane, Thioridazine, and Trilafon;
       history of head injuries and “the significant                     Cogentin/Benztropine to minimize the effect of
       [sic] of those head injuries and what that can do                 such drugs; the sedative Vistaril; and,
       to somebody.” P.C. Vol. I, p.38. Later, counsel                   Ativan/Lorazepam and Valium to reduce
       also witnessed “a period when he [Petitioner]                     agitation.
       got sick mentally.” P.C. Vol. I, p.83. Trial
       counsel requested funds for a mental health                 d.    Post-conviction counsel repeatedly requested
       expert but were denied. Instead, Petitioner was                   funds for a mental health expert.           The
       sent to Middle Tennessee Mental Health                            prosecutor argued that post-conviction counsel
       Institute (MTMHI) for a competency                                were not entitled to experts at state expense.
       evaluation. Although MTMHI found Petitioner                       P.C. Vol. 1, p.16. In support of the motion for
       to be competent, Mr. Parsons continued to                         funding, counsel submitted the affidavit of Dr.
       believe further evaluation was needed. . . .                      Gillian Blair. Dr. Blair’s affidavit and post-
                                                                         conviction testimony reflected her need for a
  c.   Records from Riverbend Maximum Security                           complete social history, additional testing and
       Institution reflect that several different treating               interviews before she could render an opinion
       psychiatrists have diagnosed Petitioner as                        on Petitioner’s mental status at the time of the
       having either a bipolar affective disorder, cyclic                crime, at trial, and at the present time. See
       mood disorder, schizo-affective disorder or                       generally P.C. Vol. I, pp. 199-219. Dr. Blair
       schizophrenia.       All of the psychiatrists                     opined that based on the Riverbend records, her
       described Petitioner’s agitated behavior,                         test results from 1992, and the brief social
       hostility, inappropriate affect, auditory and                     history available, further investigation and
       visual hallucinations, delusions, paranoia, and                   examination of Petitioner was required. Dr.
       thoughts of persecution.             Psychiatrists                Blair testified that since 1985 Petitioner had
       considered the possibility of Petitioner’s                        shown a deteriorating mental status. P.C. Vol.
       malingering and all discounted that possibility.                  II, p. 209. Petitioner had been diagnosed with
       State examiners at Riverbend ruled out                            bipolar disorder, schizo affective disorder or
       malingering noting that it did not explain all                    schizophrenia. Id. She further testified that
       psychotic features. Test results indicating                       schizophrenia and bipolar disorder, indeed all
No. 00-5516                            Thompson v. Bell     21   22     Thompson v. Bell                           No. 00-5516

       forms of psychosis, generally begin in early                Thompson further alleged ineffective assistance of counsel,
       adulthood, Id. at 215, which coincides with the           for the following non-exclusive reasons:
       timing of the instant offense. Dr. Blair stated
       that Petitioner’s troubles in the Navy, just prior          1.    Counsel at all critical stages failed to
       to the crime, would suggest that he was                           reasonably investigate Mr. Thompson’s
       becoming mentally ill at that time. Id. at 216.                   background and mental health history. Had
       However, further information was needed to                        counsel done so, they would have discovered
       render an opinion and diagnosis of Petitioner at                  that Petitioner had, in the years following his
       that time. Dr. Blair also stated that further                     graduation from high school, intermittently
       evaluation of Petitioner was necessary to                         demonstrated bizarre and delusional thought
       determine his present competency. Id. at 207.                     patterns. They would have also discovered that
                                                                         members of Petitioner’s family, e.g., his father,
  e.   The court denied funding for expert assistance                    had a long pervasive history of severe mental
       at the post-conviction hearing. The court                         illness. Trial counsel, however, failed to
       reasoned that funds were unnecessary because                      perform a reasonable investigation, failed to
       Petitioner had not shown a “need,” further                        find such evidence, and consequently failed to
       funding would result in a delay of the                            present the following evidence to the jury, both
       proceedings and the issue was a matter of                         during the guilt phase and during the sentencing
       record. . . .                                                     phase of the trial.
  f.   Although the court found no “need” for further              2.    Counsel was ineffective for failing to fully
       expert assistance, the court later used the fact                  investigate and present relevant evidence of Mr.
       that Dr. Blair could not express an opinion as to                 Thompson’s mental health history, and to
       the issues of Petitioner’s mental health to limit                 secure adequate expert assistance to defend Mr.
       Dr. Blair’s testimony and, subsequently, to                       Thompson inclu ding p sychologi s ts,
       deny Petitioner relief from his unconstitutional                  neuropsychological, and/or neurological experts
       conviction and sentence.          For example,                    to establish valid mitigating factors including,
       throughout        Dr. Blair’s testimony, the                      but not limited to, three statutory mitigation
       prosecutor made repeated objections on the                        factors under Tennessee law, i.e., that Mr.
       basis that Dr. Blair did not have an ultimate                     Thompson suffered from substantial disorders
       opinion. See e.g. P.C. Vol. II, pp. 208, 215,                     and demonstrable physical brain damage which
       216, 220, 259. Although the court allowed                         made him unable to conform his behavior to the
       most of Dr. Blair’s answers, it did so remarking                  law; left him under the influence of extreme
       that the weight of the testimony was specious.                    mental or emotional disturbance, substantially
       See id. The court, however, did not allow Dr.                     impaired his ability to appreciate the
       Blair to testify about mitigating circumstances.                  wrongfulness of his conduct at the time of the
                                                                         offense, and non-statutory mitigation under
(Footnotes omitted.).                                                    both Tennessee and federal law.              As
                                                                         importantly, had counsel secured such mental
No. 00-5516                            Thompson v. Bell    23    24       Thompson v. Bell                                  No. 00-5516

      health history, the result of any professionally           that the allegations before the court did not establish good
      adequate pre-trial competency and insanity                 cause for discovery as required under Rule 6(a) of the Rules
      examination (including, if indeed it was, or had           Governing Section 2254 Cases in the United States District
      been, professionally adequate, the pre-trial               Court. That same day the court entered an order allowing
      competency examination actually performed in               Thompson to take the depositions of Dr. Michael Rutter, Dr.
      Mr. Thompson’s case) would have been                       Robert Hoen, and Dr. John Pruett, mental health experts. The
      different. Specifically, but not exclusively:              order further allowed Respondent the right to take the
                                                                 depositions of Thompson’s two experts, neuropsychologist
      i. Counsel failed to discover and interview                Barry Crown, Ph.D, and psychologist Faye Sultan. (DCTR
         pertinent, available witnesses who could                18). The magistrate judge noted that the execution of
         have testified and/or informed appropriate              Thompson would violate the Eighth Amendment due to
         mental health experts of Mr. Thompson’s                 Thompson’s incompetence. The order also noted a Brady
         descent into intermittent and delusional                claim.5
         behavior following high school.
                                                                   Also on November 2, 1998, Thompson filed his initial
         ....                                                    witness list. His “[e]xpert witnesses and testimony” included
                                                                 the following:
        . . . Had counsel been informed, they would
      have recognized that witness accounts, of
      Petitioner’s bizarre change in behavior signaled
      the onset of mental illness. The lingering
      question would have been answered. The                          5
      outcome of Petitioner’s capital conviction and                    Although not fully articulated as such, the magistrate judge appears
      sentence probably would have been different.               to have b ased its conclusion o n the follo wing allegation in Th omp son’s
                                                                 amended p etition, which the court quoted in its order:
                                                                      41. CLAIM 41- BRA DY CLAIM
(DCTR 17; footnotes omitted). The amended petition for writ             a. Throughout P etitioner ’s court proceedings the prosecutor
of habeas corpus was signed by Stephen M. Kissinger.                  engaged in false and/or misleading questioning and use of
                                                                      reports to argue that Petitioner was competent and not mentally
                        b. Discovery                                  ill. The prosecu tor misled Petitioner’s judge and jury despite
                                                                      having evidence to the contrary, and without revealing such
   On November 2, 1998, the magistrate judge held three               evidence, thereby committing gross misconduct. For example,
                                                                      during the Petitioner’s postconviction proceedings, the state
telephone conferences with Attorney Kissinger and Assistant           argued that Petitioner was not mentally ill, was competent at the
Attorney General Jennifer Smith regarding Thompson’s                  time of trial, was p resently competent, and was competent to be
request for discovery regarding those matters alleged in the          executed, despite ten years of records to the contrary.
petition, to which Respondent objected. The court’s order             Institutional records clearly illustrate Petitioner’s ‘significant
states that, during the hearing, Kissinger advised that he            history of psychosis requiring multiple medications.’
                                                                      Petitioner’s mental health treatment plan contemporary to the
needed to obtain the depositions of three mental health expert        postconviction hearing reveals a diagnosis of schizoph renia with
personnel who had seen and treated Thompson during his                presenting problems of auditory and visual hallucinations and
period of incarceration. Respondent maintained his objection          paranoid ideatio n. . . .
                                                                 (DC TR 18).
No. 00-5516                            Thompson v. Bell      25   26    Thompson v. Bell                             No. 00-5516

 a. Dr. Barry Crown, Penthouse Ste 310, Red Road,                   the time of the offense and at the time of trial. She will
 South Miami, FL 33143, will provide foundation                     testify that Petitioner’s mental illness was severe and
 testimony to establish himself as an expert in                     that it substantially impaired the ability of the Petitioner
 neuropsychology. He will testify that he has been                  to distinguish between right and wrong and/or to
 provided with background information regarding                     conform his conduct to the requirements of the law
 Petitioner’s medical and social history, that he has               and/or prevented Petitioner from doing the same. She
 interviewed, and administered a battery of indicated               will testify that Petitioner’s mental illness prevented
 neuropsycholgical tests to the Petitioner. He will testify         Petitioner from meaningfully assisting in his own
 that the results of those tests indicate that Petitioner           defense at trial and during state post-conviction
 suffers from organic brain damage. He will testify that            proceedings and/or from fully comprehending the nature
 the brain damage observed, as well as Petitioner’s social          of those proceedings. She will further testify that
 and medical history, is consistent with schizophrenia.             arguments regarding Petitioner’s mental state made by
 He will testify that Petitioner’s brain damage                     counsel for the State of Tennessee during state post-
 substantially impaired the ability of the Petitioner to            conviction proceedings were both outside the scope of a
 distinguish between right and wrong and/or to conform              lay person’s knowledge and that the prosecutor’s
 his conduct to the requirements of the law and/or                  statements misrepresented Petitioner’s prison medical
 prevented Petitioner from doing the same. He will                  records.
 testify that Petitioner’s brain damage prevented
 Petitioner from meaningfully assisting in his own                (DCTR 19) (emphases added).
 defense at trial and during state post-conviction
 proceedings and/or from fully comprehending the nature             On November 30, 1998, Respondent appealed the
 of those proceedings. He will further testify that               magistrate judge’s discovery order. The district court
 arguments regarding Petitioner’s mental state made by            affirmed the ruling. Significantly, the district court stated the
 counsel for the State of Tennessee during state post-            following:
 conviction proceedings were both outside the scope of a
 lay person’s knowledge and that the prosecutor’s                   Additionally, if the facts are developed to show that
 statements misrepresented Petitioner’s prison medical              petitioner’s mental health should have been introduced as
 records.                                                           mitigating evidence, petitioner may be entitled to relief.
                                                                    The magistrate judge heard argument of counsel and then
 b. Dr. Faye Sultan, 8430 University Executive Park                 ruled that certain specific discovery would be
 Drive, Suite 690, Charlotte, NC 28262, will provide                allowed. . . . Not only has Thompson raised the issue of
 foundation testimony to establish herself as an expert in          ineffective assistance of counsel for failure to fully
 clinical and forensic psychology. She will testify that            explore his mental health for mitigating purposes at his
 she has been provided with background information                  sentencing, which trial counsel testified he should have
 regarding Petitioner’s medical and social history, that she        explored Thompson’s mental health further . . . ; the
 has interviewed, and administered a battery of indicated           record also includes factual allegations that there was
 psychological tests to the Petitioner. She will testify that,      some mental health evidence that could have been
 on the basis of her examination, it is her expert opinion          introduced as mitigating evidence.          Furthermore,
 that Petitioner suffers from schizophrenia and did so at           Thompson alleges he did not receive a full and fair post-
No. 00-5516                           Thompson v. Bell      27    28     Thompson v. Bell                           No. 00-5516

  conviction hearing in state court because he was denied           On February 12, 1999, Thompson filed an ex parte motion
  funds to hire a mental health expert to prove his               for a temporary mandatory restraining order, for preliminary
  incompetency/insanity at trial and at execution. If the         and permanent injunctive relief, and for an order finding
  fact are fully developed, he may be able to demonstrate         Thompson incompetent to proceed, continuance, and to toll.
  he is entitled to relief.                                       (DCTR 34). In support, Thompson alleged in part as follows:
    After a cursory review of the numerous volumes of               1.    Petitioner suffers from schizophrenia. During
  state documents[] involved in this case, it appears that                the vast majority of his incarceration
  Thompson has alleged a factual basis for some of his                    Respondent has medicated Petitioner in order to
  claims and the magistrate judge so found. For example,                  treat his mental illness.
  petitioner claims trial counsel failed to properly
  investigate his mental health history and present                 2.    On or about September 1998, Respondent
  mitigating evidence at trial and sentencing. Petitioner                 stopped providing Petitioner with appropriate
  contends he had two serious head injuries and                           psychiatric medication.
  intermittent bizarre and delusional thought patterns and
  witnesses to testify to such, and this mitigating evidence        3.    Petitioner’s mental health thereafter radically
  should have been introduced. Furthermore, petitioner                    declined.     Petitioner is now unable to
  contends that his institutional records reveal a diagnosis              meaningfully assist counsel or understand the
  of schizophrenia with problems of auditory and visual                   nature of the proceedings in which he is being
  hallucinations and paranoid ideation. If petitioner proves              required to participate. Moreover, because of
  these factual allegations, he may be entitled to relief.                the severe nature of Petitioner’s mental illness,
                                                                          Respondent’s refusal to provide appropriate
(Footnote omitted) (DCTR 22).                                             psychiatric care is tantamount to subjecting
                                                                          Petitioner to physical torture. See, Exhibit A,
  On December 24, 1998, Respondent filed his initial expert               Declaration of Faye Sultan PhD. attached.
witness list disclosure. It listed simply Dr. Theodore H.
Blau, who would “testify as an expert in the area of forensic             ....
neuropsychology. Dr. Blau will be called, if necessary, to
rebut the testimony of petitioner’s expert witnesses, Dr. Barry     6.    Petitioner has no remedy at law. . . . Given the
Crown and Dr. Faye Sultan, as disclosed in petitioner’s initial           Petitioner’s incontrovertible right both to
witness list of October 30, 1998.” (DCTR 24).                             receive proper psychiatric care and to seek
                                                                          federal habeas corpus relief the likelihood that
  On December 29, 1998, Attorney Kissinger moved to                       he will prevail on the merits of his motion are
appear pro hac vice. (DCTR 25).                                           great. Should Respondent be allowed to
                                                                          continue to deprive Petitioner of proper
  On February 3, 1999, the district court granted Thompson’s              psychiatric care Petitioner will suffer
request for an extension of time to conduct discovery. The                irreparable injury. Not only is he being
court set the discovery date at June 11, 1999, and the                    rendered incompetent, he is, for all intents and
dispositive motion cutoff at July 2, 1999. (DCTR 32).                     purposes, being tortured.
No. 00-5516                           Thompson v. Bell     29   30       Thompson v. Bell                               No. 00-5516

(Footnotes omitted.). The motion was signed by Attorney         of his surroundings, and requiring immediate emergency
Kissinger (by permission). (DCTR 34).                           attention. (Id).
  Attached to the February 1999 motion is the declaration of      On April 7, 1999, Thompson moved to withdraw his ex
Faye Sultan, Ph.D, a clinical psychologist. Sultan stated in    parte motion for injunctive relief and for an order finding him
relevant part that                                              incompetent to proceed, principally because on April 6, 1999,
                                                                Dr. Sultan saw Thompson and concluded that his condition
    At the request of attorneys at the Federal Defender         had improved, due to an adjustment in his medication. Thus,
  Services of Eastern Tennessee, I initiated a psychological    the factual basis for the motion no longer existed. (DCTR
  evaluation of Mr. Gregory Thompson in August, 1998.           64). On April 29, 1999, the court granted the motion to
  Formal psychological testing and extensive clinical           withdraw the ex parte motion. (DCTR 67).
  interview were conducted with Mr. Thompson at the
  Riverbend Maximum Security Prison in Nashville,                  On June 28, 1999, the district court entered an order
  Tennessee on 8-20-98. This interview was conducted as         extending the discovery deadline to July 30, 1999. The court
  a “Contact Visit”, with no physical barrier between this      extended the deadline to allow Respondent to depose
  examiner and Mr. Thompson, and Mr. Thompson was               Thompson’s expert witnesses, Drs. Crown and Sultan, and to
  not physically restrained in any way.                         allow Petitioner to depose Respondent’s expert witness, Dr.
                                                                Theodore Blau. On July 9, 1999, Respondent filed a motion
    In addition to the data gathered during this                for summary judgment as to all claims raised in the amended
  examination, I was asked to review extensive                  petition for writ of habeas corpus. (DCTR 81-82). On July
  documentation about Mr. Thompson’s psychiatric,               15, 1999, Thompson deposed Respondent’s expert, Dr. Blau.
  military, and legal history. These data also serve as         On July 20, 1999, Respondent deposed Petitioner’s expert.
  bases for the opinions rendered here. These data include      Dr. Crown.6 On July 29, 1999, Thompson filed his response
  psychiatric records and examinations regarding Mr.            to Respondent’s motion for summary judgment.
  Thompson for approximately the past fifteen years,
  administrative and medical records from the Tennessee            On August 2, 1999, Respondent filed a motion for
  Department of Corrections, and legal and police               reimbursement of deposition expenses.            (DCTR 87).
  documents relating to the original offenses for which Mr.     Respondent claimed that Dr. Crown’s deposition testimony
  Thompson is currently incarcerated. In total, hundreds of     was considerably       different than that represented in
  pages of records and documents have been reviewed for         Petitioner’s initial witness list. Specifically, Respondent
  the purpose of this evaluation.                               alleged that, based on Petitioner’s initial disclosure
                                                                concerning Dr. Crown’s testimony, particularly as to
(DCTR 34). Dr. Sultan also stated that in August 1998           Petitioner’s mental state at the time of the offense, “i.e., his
Thompson met all of the diagnostic criteria for the major       ability to distinguish between right and wrong and/or to
mental illness schizophrenia, episodic, with interepisode       conform his conduct to the requirements of law, competency
residual symptoms. She further indicated that Thompson’s
condition had rapidly deteriorated between August 1998 and
February 1999. In Dr. Sultan’s opinion, Thompson was                 6
experiencing a severe psychiatric crisis, making him unaware        As will be explained shortly, counsel for Resp ondent depo sed
                                                                Thomp son’s other named exp ert, Dr. Faye Sultan, PhD. on July 22, 1999.
No. 00-5516                             Thompson v. Bell       31    32   Thompson v. Bell                            No. 00-5516

at the time of trial,” counsel for Respondent traveled to            in connection with the July 20, 1999, deposition of Dr.
Miami, Florida to depose Dr. Crown. Respondent further               Crown.
claimed that, at the beginning of the deposition, he was
presented “for the first time” with an affidavit indicating Dr.         On August 4, 1999, Petitioner filed a motion in limine,
Crown’s proposed testimony, which was significantly                  seeking to exclude Dr. Blau’s testimony on the grounds that
different from the October 30, 1998, initial witness list            Dr. Blau neither formed an opinion nor was asked to form an
disclosure. The affidavit indicated no opinion as to                 opinion regarding any of the issues raised in the petition:
Thompson’s mental state at the time of the offense or at trial,      “Despite all issues being clearly framed by the allegations in
no opinion indicating that brain damage substantially                the petition, Respondent never sought, nor did Dr. Blau
impaired Thompson’s ability to conform his conduct to the            render, any opinion contrary to such allegations.” (Footnote
requirements of law and/or to distinguish between right and          omitted.). (DCTR 88). Also on August 4, Petitioner filed a
wrong, and no opinion concerning Thompson’s ability to               motion for costs incurred in deposing Dr. Blau. Petitioner
assist counsel in his defense at trial or comprehend the nature      alleged in pertinent part:
of that proceeding.
                                                                       2. On July 15, 1999, undersigned counsel conducted
   Respondent alleged that, “contrary to representations in            the deposition of Dr. Blau in order to discover the
Petitioner’s initial expert disclosure, Dr. Crown testified in his     substance of his testimony at the evidentiary hearing. At
deposition that he had not rendered, nor had he been asked to          that time Dr. Blau testified that he had been asked to
render, an opinion concerning Petitioner’s mental status at the        render an opinion only in regard to Mr. Thompson’s
time of the offense in this case.” (DCTR 87). The motion               competency to proceed in the instant action . . . ; that he
stated that Dr. Crown testified that he was also not asked to          had not reached any opinion other than that reflected in
render an opinion concerning Petitioner’s competence at the            his report on the competency to proceed . . . ; and that in
time of trial. The motion further alleged that “Dr. Crown              order to render additional opinions he would require
testified that he had seen petitioner on one occasion, June 12,        further interviewing and testing of Mr. Thompson. . . .
1998, and was prepared to render an opinion concerning
petitioner’s competence and mental status on that day.”                3. It is clear that although Respondent was on notice of
Thus, in Respondent’s view, “Dr. Crown offered no                      Petitioner’s mental health claims which are detailed in
testimony pertinent to any claim presented in the amended              his habeas petition and was on notice regarding
petition for writ of habeas corpus.” Respondent therefore              Petitioner’s anticipated expert’s testimony, Respondent
claimed that, had he been advised of the precise nature of Dr.         either instructed Dr. Blau not to render any opinion
Crown’s testimony, as required under Fed. R. Civ. P.                   during deposition regarding the issues in the petition or
26(a)(2)(B) and by the district court’s order of March 11,             Dr. Blau failed to formulate such opinions. It appears
1998, he likely would not have deposed Dr. Crown.                      that Respondent made the strategic decision to limit Dr.
Respondent contended that, given the clear representations in          Blau’s testimony to Mr. Thompson’s competency to
his October 1998 expert disclosure statement, Petitioner had           proceed given Dr. Blau’s sworn testimony that his
a duty to disclose the nature of Dr. Crown’s testimony.                opinion was limited to Mr. Thompson’s competence to
Respondent sought an order requiring Petitioner to reimburse           proceed, the fact that Dr. Blau only evaluated Mr.
Respondent in the amount of $2,768.71 for expenses incurred            Thompson on one occasion for the specific purpose of
                                                                       competency to proceed, and that Respondent did not
No. 00-5516                                  Thompson v. Bell       33   34     Thompson v. Bell                                    No. 00-5516

  provide a copy of Petitioner’s habeas petition to Dr.                          ....
  Blau.
                                                                           7. Not one of these questions asked whether Dr. Crown
  4. Undersigned counsel relied upon Respondent’s                          had an opinion on the issue of mental state at the time of
  representation that Dr. Blau would rebut Petitioner’s                    the offense, at trial, or at any other time for that matter.
  expert witnesses. Had undersigned known that Dr.                         They queried only regarding the communications
  Blau’s opinion was limited to Mr. Thompson’s                             between Dr. Crown and undersigned counsel. As a
  competency to proceed, an issue which is no longer                       matter of fact, only once in the excerpts attached to
  before this court, he would not have taken Dr. Blau’s                    Respondent’s motion does Mr. Pruden ask any question
  deposition and incurred expenses totaling $4,097.01.                     which could reasonably be interpreted as seeking Dr.
                                                                           Crown’s opinions on these issues.
(DCTR 89) (emphasis added) (footnote omitted). Petitioner
requested a court order requiring Respondent to pay those
costs. The motion for costs is signed by Stephen M.
Kissinger.                                                                        trial?

  On August 5, 1999, Thompson filed a response opposing                           (Crown deposition at Page 7, lines 11-13)
Respondent’s motion for reimbursement of deposition
expenses. In it he contended that the opinions Dr. Crown                              So if I understand you co rrectly, you were only
                                                                                  asked [by Respondent’s counsel] to make a
expressed in his deposition were materially consistent with                       competency determination at the time you met M r.
Thompson’s initial witness list. In response to Respondent’s                      Thom pson?
contention that Dr. Crown failed to provide an opinion at
deposition regarding Thompson’s mental condition at the                           (Id. at Page 7, lines 19-21)
time of the offense, Thompson stated that “[t]his allegation is
                                                                                  Have you been asked to render any opinions concerning Mr.
untrue or irrelevant for at least two reasons.” First,                        Thomp son’s mental status at the time of the murder of Brenda
                                                                              Lane?
  5. Insofar as Respondent’s complaint relates to Dr.
  Crown’s response to the Assistant Attorney General
  Pruden’s very few questions which Respondent elected                            (Id. at Page 8, lines 7-9)
  to attach to his motion, Dr. Crown was not asked whether                   Not specifically. Does that mean that you have not been asked that
  he had an opinion regarding Petitioner’s mental condition              specific question?
  at the time of the offense or at trial. Instead Mr. Pruden
  chose to focus on the communication between Dr. Crown                           (Id. at Page 8, lines 11-12[)]
  and Respondent’s counsel.[7]
                                                                                   So you have not been asked to render an opinion to Mr.
                                                                              Kissinger yet one way or the other regarding M r. Thomp son’s
   7
                                                                              ability to distinguish between right and wrong or conform his
       6. Respo ndent po sed the following questions:                         conduct to the requirements of the law at the time of M s. Lane’s
                                                                              murder?
          Have you been asked to render any determination about
          whether he was competent to stand trial at his criminal                 (Id. at 17-20).
No. 00-5516                            Thompson v. Bell      35    36   Thompson v. Bell                            No. 00-5516

  8. On that occasion, Dr. Crown responded that he was             from one severe schizotypal mental illness at the time of the
  unable to render such an opinion because he could not be         offense as well as his state court trial rather than another
  certain whether he had been provided all relevant                severe schizotypal mental illness, Dr. Crown’s deposition
  information. Crown deposition at Page 9, lines 4-15.             testimony is clearly consistent with the information contained
  Rather than show that he had no opinion on a material            in Petitioner’s Initial Witness List.” Thompson also alleged
  issue, Dr. Crown’s answer demonstrated that he would             that Respondent was not in a position to complain that Dr.
  not carelessly issue an opinion until counsel for                Crown’s testimony did not make the connection between
  Respondent defined the facts upon which counsel wished           Petitioner’s mental illness and competency at the time of the
  Dr. Crown to base that opinion. Despite Dr. Crown’s              offense, because Respondent “with full knowledge that Dr.
  qualified response, counsel for Respondent never asked           Crown was of the opinion that Petitioner was severely
  Dr. Crown whether, assuming that Dr. Crown had all               mentally ill at the time of the offense, either chose not to
  relevant information, he had an opinion regarding Mr.            inquire regarding the afore-described connection or forgot to
  Thompson’s mental state at the time of the offense and/or        do so.” (DCTR 90) (emphasis added). Thompson therefore
  at trial, nor did counsel provide Dr. Crown with                 claimed that he had demonstrated that the information in his
  supplemental fact which Respondent deemed relevant               initial witness list was consistent with Dr. Crown’s testimony.
  and then ask him whether, based upon the combined                He further claimed that even if it was materially inconsistent,
  information, he held an opinion on those regards.                Respondent could not complain because he had previously
                                                                   made this allegation to the magistrate judge, who granted
  9. The reasons Respondent failed to discover Dr.                 Respondent the right to depose both Drs. Crown and Sultan
  Crown’s opinions in these areas were not because Dr.             before Respondent ever contacted Dr. Blau. Thus, Thompson
  Crown held no such opinions. Respondent’s counsel                claimed that Respondent had been granted the opportunity to
  either made a strategic decision to focus on the conduct         determine the exact opinions of Dr. Crown before Dr. Blau
  of counsel (or perhaps to attempt to create the illusion         was ever contacted. (DCTR 90).
  that Dr. Crown’s opinions regarding these areas will
  come as a complete surprise to the Respondent when                 Next, Thompson asserted that Dr. Blau stated during his
  they are stated at hearing), or he simply neglected to ask       deposition that he was contacted by Respondent’s counsel,
  the relevant questions.                                          Pruden, on November 2, 1998, to retain him as a
                                                                   psychological expert and that he was asked simply “to review
(DCTR 90).                                                         records in respect to competence to proceed regarding Mr.
                                                                   Thompson, and possible questions were whether Mr.
   Thompson articulated a second reason, namely that Dr.           Thompson is competent to act as a party participant in habeas
Crown’s deposition did substantially conform to the                corpus proceedings,” and also whether he “could determine
information contained in his initial witness list because          psychologically his mental condition and status with respect
Crown stated during his deposition “that Petitioner suffers        to his capacity to understand his legal position and his
from bipolar disorder of a schizo-affective type and that the      options.” (DCTR 90 (quoting Deposition of Theodore H.
onset of this affliction was prior to the alleged offense. Crown   Blau, Ph.D., July 15, 1999, Page 5, lines 8-19). Thompson
deposition at Pages 32-34, in passim.” Thompson added that         further alleged that Dr. Blau was asked whether he had been
“[u]nless Respondent can seriously maintain that it is material    asked to examine Thompson regarding any area other than
in this case whether Dr. Crown found that Petitioner suffered      competency and that “[h]is response clearly demonstrated that
No. 00-5516                           Thompson v. Bell     37    38   Thompson v. Bell                          No. 00-5516

not only had he not examined and/or reached any opinions in            future date prior to the evidentiary hearing to
any area other than Petitioner’s present competency, the only          render such an opinion?
neuropsychological examination he had conducted was ‘at
best’ . . . a screening examination.” (DCTR 90 ¶ 6).              A: It hasn’t been suggested or asked of me.
Thompson therefore moved for an order denying
Respondent’s motion for reimbursement of deposition               Q: So if I understand you correctly then, you were
expenses. (DCTR 90).                                                 only asked to make a competency determination
                                                                     at the time you met Mr. Thompson?
   In his reply, Respondent stated simply that the documents
attached to its motion for reimbursement plainly                  A: That is correct.
demonstrated that Thompson’s October 1998 disclosure was
materially different from the testimony offered at Dr. Crown’s    Q: And when was that, sir?
deposition and in his affidavit. (DCTR 91). Attached as an
exhibit was a complete copy of Dr. Crown’s July 20, 1999,         A: June 12th of 1998.
deposition. Much of it bears repeating here:                      Q: All right. His mental status. Please elaborate
  Q: Specifically, what issues regarding Mr.                         for me, what about his mental status have you
     Thompson and his case have you been asked to                    been asked to opine?
     review and render expert opinions on, sir?                   A: I have been asked to evaluate it.
  A: At this point, I have been asked to consider his             Q: His mental status at present?
     competency and also his mental status.
                                                                  A: Well, it was his status as of the time that I saw
  Q: Okay. Let’s take them one at a time, then.                      him. I haven’t seen him since June 12th of
     Competency, are you talking strictly about his                  1998.
     present competency in the habeas corpus
     proceedings?                                                 Q: Have you been asked to render any opinions
                                                                     concerning Mr. Thompson’s mental status at
  A: I am talking about his competency at the time                   the time of the murder of Brenda Lane?
     that I saw him.
                                                                  A: Not specifically, no.
  Q: Have you been asked to render any
     determination about whether or not he was                    Q: Not specifically. Does that mean that you have
     competent to stand trial at his criminal trial?                 not been asked that specific question?
  A: No.                                                          A: That is correct.
  Q: Has anything been said to you that would lead                Q: Have you rendered an opinion, though, in that
     you to believe that you might be asked at a                     regard?
No. 00-5516                         Thompson v. Bell   39   40   Thompson v. Bell                           No. 00-5516

 Q: No, not as of this time.                                 A: That is correct.
 Q: So you have not rendered an opinion to Mr.               Q: What materials have you been provided to
    Kissinger yet one way or another regarding Mr.              review concerning Mr. Thompson?
    Thompson’s ability to distinguish between right
    and wrong or conform his conduct to the                  A: I have seen what I believe to be his Department
    requirements of the law at the time of Ms.                  of Corrections file from it’s [sic] inception.
    Lane’s murder?
                                                             Q: And when you say his Department of
 A: That is correct.                                            Corrections file, do you mean his
                                                                medical/mental health file?
 Q: Has Mr. Kissinger, or anyone else representing
    Mr. Thompson, represented to you that they               A: It’s his medical file, as well as his general file,
    would like you to render such an opinion                    including disciplinary reports, including
    during the course of your employment?                       adjustment reports.

 A: No.                                                      Q: Have you reviewed any other records?

 Q: Just so I am clear then, your mental status              A: I have seen the depositions of three of the
    evaluation of Mr. Thompson is only to evaluate              employees of Prison Health Services. I have
    his mental status at present?                               seen the reports of the mental health facility that
                                                                Mr. Thompson spent thirty days in prior to his
 A: I have only seen him on one occasion, June                  original trial. I have seen the testimony of the
    12th of 1998. So what I have to say would be                mental health professions at his trial, Dr.
    related to that examination. I have looked at               Kogley.
    other records, but I don’t know they are
    necessarily complete, and I couldn’t render an           Q: Cobley?
    opinion based on the lack of completeness, or
    what I assume is the lack of completeness.               A: Cobley. I have seen the materials from Dr.
                                                                Blaire.
 Q: So you don’t feel that based on the materials
    that you have reviewed to date that you could,           Q: How about Dr. Watson?
    based on your professional experience, render
    an opinion about Mr. Thompson’s mental state             A: Watson. I have seen Dr. Watson.
    say back in 1985 at the time of the murder?
                                                             Q: When you say materials from Dr. Blaire, does
 A: As I sit here today, I could not.                           that simply mean her testimony, or have you
                                                                seen other--
 Q: So you are not prepared to render any opinion
    in that regard today?
No. 00-5516                               Thompson v. Bell           41   42   Thompson v. Bell                             No. 00-5516

  A: I have seen the raw data, or parts of raw data.                      He also indicated that Kissinger had not at that time asked
     Actually, the entire raw data are not in the                         him to do so.
     materials that were provided to me. And then I
     have seen Dr. Blau’s report and Dr. Blau’s raw                         Dr. Crown opined that Thompson suffers from an auditory
     data.                                                                processing deficit. He further indicated that Thompson has
                                                                          some sort of organic brain damage, but that he did not
  Q: And you just received Dr. Blau’s--                                   pinpoint it to a specific portion of the brain. Dr. Crown stated
                                                                          that he did not intend to make any further evaluation of
  A: Correct.                                                             Thompson’s organic brain damage unless asked. Dr. Crown
                                                                          indicated that he knew that Thompson had suffered traumatic
(DCTR 91).                                                                head injuries. He testified that he had not seen Thompson’s
                                                                          military medical records. Dr. Crown testified that the
   Dr. Crown also indicated that he had reviewed Thompson’s               organicity was secondary to other mental impairments,
medication portfolio from his records at Riverbend Maximum                namely schizo-affective disorder, bipolar subtype, with
Security Institution. When asked, Dr. Crown stated that he                organic components. Dr. Crown stated that he reached this
had not read, and not been asked to read, the trial transcript,           conclusion
but that he had asked Mr. Kissinger “to provide me with
whatever materials he wished.” (DCTR 91). Dr. Crown                         from looking at the reports of the treating physician, the
acknowledged that he had not given Kissinger a specified list               psychiatrists, and psychiatric nurses, and nurse
of items he wished to review, but was “relying on whatever                  practitioners that have had the opportunity to monitor
it is Mr. Kissinger” gave him.                                              him over the last fourteen years, that I have concluded
                                                                            that he’s best treated with anti-psychotic medication, that
  Dr. Crown also stated that he met with Thompson on                        schizo-affective disorder is a disorder that affects
June 12, 1998, at Riverbend for about two and one half hours.               thoughts related to reality and results in distortions of
Dr. Crown indicated that, at that time, he took a brief history,            reality.
a standard basic demographic clinical interview, and
administered a group of tests.8 Dr. Crown testified that the                  It also results in distortions of affect, meaning, the way
only written record of his evaluation was his July 20 affidavit;            that behavior is expressed. And I believe that his affect
that he would only prepare a written report if Kissinger asked.             has been variable from rather depressed to highly
                                                                            agitated and aggressive. And so, putting that together, I
                                                                            believe he does have a schizo-affective disorder of the
                                                                            bipolar type, meaning, there is a considerable spread in
   8                                                                        his emotionalities, that there is a distortion in his
    Dr. Cro wn stated that he administered the following tests:             perception of reality, that he tends to fragment at times,
   The Shipley Institute of Living Scale; the G-F-W Auditory
   Selective Attention Test; the Catego ry Te st; the Kaufman
                                                                            and tends to be directed by hallucinatory activity.
   Neuropsychological Assessment Procedure; the Luria Mem ory
   Test; the Reitan-Indiana A phasia Screening Test; the Rey-               . . . [I]n Mr. Thompson’s case, there are notations
   Osterreith Complex Figure Test; the Trailmaking Test; W ord              throughout his medical records that he has auditory
   Generation, F/A/S; Finger Oscillation T est; and the W isconsin          hallucinations. He also related to me that at the time I
   Card So rting T est.
No. 00-5516                           Thompson v. Bell      43    44   Thompson v. Bell                         No. 00-5516

  saw him he was auditory hallucination free, but that he          Next, counsel asked Dr. Crown:
  frequently got command hallucinations that there were
  voices coming from within him that were telling him              Q: And if I understood your answers earlier
  what to do, which is what happens in an auditory                    correctly, you do not have an opinion at this
  hallucination state.                                                time as to the exact nature of this brain damage
                                                                      for which you have seen some indicia?
(DCTR 91). The following colloquy between counsel for
Respondent and Dr. Crown, then took place:                                ....

  Q: Based on your review of Mr. Thompson’s                        A: I don’t specifically know the causation. I
     records or the records that were provided to                     believe it may be secondary to his thought
     you, what do you conclude, or when did you                       disorder since we know that in people who do
     conclude, was the onset of these auditory                        have chronic thought disorders that the thought
     hallucinations?                                                  disorder itself may either be caused by or may
                                                                      result in some damage to the brain. For
  A: I have no real pinpoint. For that, most                          example, schizophrenics very often have
     typically, people with schizo-affective disorder                 enlarged ventricles of the brain.
     tends to develop in late adolescence to early
     adulthood.                                                    Q: I notice that you did not attempt to administer
                                                                      an MMPI to Mr. Thompson. The reason for
  Q: From the materials you have reviewed, do you                     that, sir?
     see anything in those materials that show that
     this is when it occurred in Mr. Thompson?                     A: In the regular course of my neuropsychological
                                                                      evaluations, I tend not to administer a
  A: I believe he began to have a more difficult time                 personality questionnaire. I leave that for, or
     with life in his–in the last stages of his military              the assessment of personality, specifically to a
     service. So I believe that the beginnings of it                  clinical psychologist or a psychiatrist.
     would be tracked to that. I haven’t seen the
     records, but I believe that that’s probably when              Q: In this case, this would be something that you
     I would anticipate that it would have begun.                     would defer basically to Dr. Sultan?

  (Emphases added.)                                                A: I would defer in terms of administering or
                                                                      interpreting of the personality testing. Yes.
   Counsel for Respondent also asked Dr. Crown whether he
had talked with any of Thompson’s family members to gain           Q: Would an MMPI-2 be useful in terms of
insight into his background while growing up. Dr. Crown               assessing organic brain damage?
stated that he had not, nor had he spoken with school teachers,
counselors, or ministers. Dr. Crown also indicated that he         A: No, not necessarily. No.
had not spoken with Joanne McNamara, or Arlene Cajulao.
                                                                   ....
No. 00-5516                           Thompson v. Bell     45   46        Thompson v. Bell                        No. 00-5516

  A: No. If I thought it was necessary to form a                  Q: In terms of competency, did you evaluate him
     neuropsychological opinion, I would have given                  as being competent?
     it.
                                                                  A: At the time that I saw him, it’s my opinion he
  Q: And in this case you didn’t?                                    was competent.
  A: That is correct.                                             (DCTR 91).
  Q: And part of that is because you are not                       In response to Thompson’s motion for costs, Respondent
     interested in determining whether or not he can            reiterated that in his October 30, 1998, initial witness list,
     distinguish between right and wrong?                       Thompson stated that he intended to call two expert
                                                                witnesses, Dr. Barry Crown and Dr. Faye Sultan. Respondent
  A: I was asked to assess his neuropsychological               stated that with regard to the substance of the expert
     status, and that to [sic] extent, I wasn’t asked to        testimony, Petitioner indicated that each would testify in
     consider issues of determining right or wrong,             pertinent part that Petitioner’s mental condition substantially
     sanity, and I wasn’t asked specifically to                 impaired his ability to distinguish between right and wrong
     consider personality. But when I looked at him,            and/or to conform his conduct to the requirements of law.
     it was clear to me that Mr. Thompson also had              Respondent contended that on December 24, 1998,
     personality problems. He had a thought                     Respondent notified Petitioner that he intended to call Dr.
     disturbance.                                               Theodore Blau as an expert in the area of forensic
                                                                neuropsychology to rebut the testimony of Drs. Crown and
      I assumed that someone else would be looking              Sultan. Respondent further claimed that, pursuant to the
      at him in terms of those thought disturbances,            November 2, 1998 order of the magistrate judge, Respondent
      the personality difficulties, and I just recently         conducted the depositions of Dr. Crown and Dr. Sultan on
      learned that Dr. Sultan had looked at him.                July 20, 1999, and July 22, 1999, respectively. 9 Respondent
                                                                further contended that, prior to those depositions, Respondent
(Emphasis added.) Dr. Crown stated that he had worked with      received no information from Petitioner other than that
Dr. Sultan on several capital cases.                            contained in the initial witness list, nor had Respondent been
                                                                provided with any information concerning the data or other
  Counsel for Respondent recapped:                              information considered by the witnesses in forming their
  Q: My understanding then is you were solely asked             opinions, as required by Fed. R. Civ. P. 26(a)(2)(B). Finally,
     to talk about Mr. Thompson’s current                       Respondent asserted that, although it was clear from
     competency. That’s what you have been asked                Respondent’s notice of expert witnesses that Dr. Blau would
     to render an opinion about–or competency at                be called to rebut the testimony of Petitioner’s experts,
     the time you saw him?                                      Petitioner chose to schedule the deposition of Dr. Blau on

  A: Competency and mental status.
                                                                     9
                                                                         Kissinger defended b oth dep ositions.
No. 00-5516                            Thompson v. Bell      47   48   Thompson v. Bell                         No. 00-5516

July 15, 1999, before the previously-scheduled depositions of      does he intend to make such an evaluation. (Court File
Drs. Crown and Sultan.                                             No. 91, Exhibit 1, pp. 24-28). Dr. Crown believes this
                                                                   organicity is secondary to a thought disorder which he
 c. The District Court’s Ruling on the Rule 56 Motion              refers to as a schizo-affective disorder-bipolar subtype
                                                                   with organic components. Dr. Crown bases his
  On February 17, 2000, the district court issued a                conclusion on the reports of the people who have treated
Memorandum granting Respondent’s summary judgment                  Thompson for the last fourteen years. (Court File 91,
motion as to all claims and dismissing his § 2254 motion.          Exhibit 1, p. 35).
The district court stated in relevant part:
                                                                      Respondent hired Dr. Blau to rebut Dr. Crown’s
    Petitioner claims experts recently obtained by him             testimony. Portions of Dr. Blau’s testimony have been
  have revealed that he was incompetent under Tennessee            filed with the Court. Dr. Blau testified he did not
  law at the time of the crime and throughout his court            observe or see any indications of organic brain damage
  proceedings. Petitioner has failed to state the name of          on the test he administered. Dr. Blau found Thompson’s
  the expert and failed to provide the proof of these              responses during testing were rational and appropriate.
  revelations. The Court has read the deposition of Dr.            (Court File No. 89, Attachment C, pp. 31, 47-48).
  Crown, (Court File No. 119, Exhibit 1) but was unable
  to located [sic] his opinion that Thompson was                     Thompson has failed to provide any significant
  incompetent at the time of the crime and throughout his          probative evidence which would make it necessary for
  court proceedings. As a matter of fact, Dr. Crown stated         this Court to resolve a factual dispute. . . . Thompson
  he was not asked to render any determination about               has not provided this Court with anything other than
  whether or not Thompson was competent during his state           factually unsupported allegations that he was
  jury trial. (Court File No. 91, Exhibit 1, pp. 7-9). Dr.         incompetent at the time he committed the crime and at
  Crown stated he was only asked to make a competency              the time of his jury trial. Nor has Thompson provided
  determination at the time he met Mr. Thompson on June            this Court with any significant probative evidence that
  12, 1998. After meeting with Thompson for two and a              Thompson was suffering from a significant mental
  half to three hours, which consisted of taking a brief           disease that should have been presented to the jury
  history for twenty-five to thirty minutes and the                during the punishment phase as mitigation evidence.
  remainder of the time was spent administering tests, it
  was his opinion that Thompson was competent on June                Petitioner had two different psychological evaluations
  12, 1998. (Court File No. 91, Exhibit 1, p. 7-47).               and both resulted in findings of competency at the time
                                                                   of the crime and at the time of trial. Additionally, the
    Dr. Crown did testify Thompson had a significant               record shows that trial counsel did reasonably
  auditory processing deficit which means he is easily             investigate Thompson’s background and mental health
  distracted by external auditory stimuli. (Court File No.         history.
  91, Exhibit 1, p. 20). He further testified that some of the
  test results led him to conclude that there was some sort       Memorandum dated February 17, 2000 at 53-55 (emphases
  of organic brain damage. However, he is not able to             added) (DCTR 124).
  make any assessment of the severity of the damage nor
No. 00-5516                            Thompson v. Bell      49   50   Thompson v. Bell                            No. 00-5516

            d. The Motion to Alter or Amend                         was, or would be, applied to claims arising from facts not
                                                                    heretofore presented to the state courts of Tennessee is
  On March 2, 2000, Petitioner filed a motion to alter or           independent of federal law; and (2) whether the State of
amend the judgment pursuant to Fed. R. Civ. P. 59. By way           Tennessee’s interference with Mr. Thompson’s attempts
of introduction, the motion states:                                 to present claims arising from his unquestionably severe
                                                                    mental illness either deprived Mr. Thompson of a full
    As an initial point, undersigned counsel apologizes for         and fair opportunity to present the facts supporting those
  any lack of clarity which may exist in Petitioner’s               claims to the state courts of Tennessee or provided
  pleadings.1 Though counsel disagrees with the Court’s             “cause” for not presenting the facts supporting those
  criticism of those pleadings, the fact that the Court’s           claims to the state courts of Tennessee.
  Decision is contrary to controlling authority and sound
  legal reasoning provides empirical evidence that                (DCTR 126, at 1-2). Thompson then presented argument on
  undersigned counsel has somehow failed to bring that            two issues, namely, that “The Tennessee Courts Will Not
  authority and reasoning to the Court’s attention. Mr.           Apply the Tennessee State Post-Conviction Statute of
  Thompson should not suffer because of counsel’s                 Limitations to Petitioner’s ‘Later-arising’ Claims in a Manner
  shortcomings. Furthermore, this Court should not face           that is Independent of Federal Law, “ and that “The
  almost certain reversal simply because counsel phrased          Tennessee Court’s Refusal To Afford Petitioner Mental
  otherwise irrefutable arguments in such a way that the          Health Services During State Post-conviction Proceedings
  Court remained unaware of the proper resolution of              Constituted a State Obstacle to the Presentation of Facts
  Respondent’s Motion for Summary Judgment. In an                 And/Or Claims Arising From Mr. Thompson’s Mental
  effort to fulfill his duty to both his client and the Court,    Illness.” In conclusion, Thompson reiterated that although
  counsel now attempts to phrase those arguments in such          the motion to alter or amend did not specifically address
  a way that the Court is fully aware of their nature and         every error in the district court’s decision, which he
  asks this Court to alter or amend the judgment entered          specifically reasserted, “[t]he errors addressed herein,
  herein to fully address such arguments and thereafter           however, go to the very integrity of the judicial process.”
  deny Respondent’s Motion for Summary Judgement.2                (DCTR 126 at 10). The motion was signed by Stephen M.
                                                                  Kissinger.
  ____________________
                                                                  e. The District Court’s Ruling on the Motion to Amend
    1The Court’s Decision contains several negative
  comments regarding perceived deficiencies in                       On March 31, 2000, the district court denied the motion,
  undersigned counsel’s pleadings.                                holding that Thompson had failed to present any additional
                                                                  information which justified reconsideration and an order
    2Though Mr. Thompson does not waive or concede                altering or amending judgment. (DCTR 128).
  any of the issues and/or arguments raised by the
  pleadings which were not expressly or previously waived           On April 21, 2000, Thompson filed his notice of appeal to
  or conceded, and the same are reasserted herein,                this Court.
  Petitioner’s Motion to Alter or Amend centers on two
  primary issues: (1) whether the procedural bar which
No. 00-5516                                 Thompson v. Bell         51     52   Thompson v. Bell                            No. 00-5516

                    f. The Rule 60(b) Motion                                  of the claims. With regards to the merits of Mr.
                                                                              Thompson’s mental health related claims, he maintains
  On March 2, 2001, Thompson, through undersigned                             that he made a sufficient showing of a genuine issue of
appellate habeas counsel, Dana C. Hansen, also of the Federal                 material fact to overcome Respondent’s summary
Defenders Office of Eastern Tennessee, filed a motion under                   judgment motion notwithstanding Dr. Sultan’s opinions.
Fed. R. Civ. P. 60(b).10 In that motion, Thompson                             However, Dr. Sultan’s opinions certainly are directly
“respectfully request[ed] the Court to relieve Mr. Thompson                   relevant to the mental health related claims and should be
from the final order entered on February 17, 2000, for the                    considered by the Court. Counsel for Mr. Thompson
purpose of entering an order to supplement the record with                    engaged in [sic] Dr. Sultan’s services for the sole
Respondent’s deposition of Dr. Faye E. Sultan, Ph.D, and the                  purpose of offering her opinions to support his
accompanying report of Dr. Sultan.” (DCTR 133, at 1).                         constitutional claims. The failure of counsel to ensure
Thompson claimed that the petition was timely. “The order                     that Dr. Sultan’s opinions were filed in the record is a
entered in Mr. Thompson’s case granting summary dismissal                     result of excusable neglect.
of his amended petition for writ of habeas corpus was entered
on February 17, 2000. Therefore this motion, being filed                    (Id. at 2) (emphasis added).
within one year of the order, is timely.” (Id.)
                                                                              In support of his claim that Dr. Sultan’s deposition and
  Thompson explained “Dr. Sultan’s Involvement in this                      report were not included in the record because of mistake,
Case:”                                                                      inadvertence, surprise, or excusable neglect, Thompson stated
                                                                            the following:
     Earlier in Mr. Thompson’s District Court proceedings,
  Respondent took the deposition of Dr. Sultan. The                           District Court counsel for Mr. Thompson, Stephen M.
  district court record presently contains a summary of her                   Kissinger, was under the mistaken belief that the
  conclusions in an expert disclosures pleading (R. 19) and                   evidence was in the record.1 To the extent that counsel
  an affidavit detailing her opinion regarding Mr.                            should have nonetheless known that Respondent had not
  Thompson’s mental health status in February 1999 (R.                        placed Dr. Sultan’s deposition and report in the record,
  34). Having examined Mr. Thompson and viewed his                            counsel’s failure to ascertain that fact and file the same
  social and medical history, Dr. Sultan executed a report                    himself was the result of excusable neglect. During the
  in addition to her testimony at Respondent’s deposition.                    time period in question, counsel’s office was in a state of
  (Attachments A & B).                                                        turmoil and his caseload was excessively burdensome.
    Although this Court denied Mr. Thompson’s mental
  health related claims partially on procedural grounds, Dr.
  Sultan’s deposition and report are important to the merits

    10
       On March 2, 2001, Hansen filed with this C ourt a m otion to hold
case in abeyance pending Thompson’s contemporaneous Rule 60(b)
motion in the district court. Dr. Sultan’s deposition is attached to that
motio n. W e den ied that reque st by ord er dated M arch 2 1, 20 01.
No. 00-5516                              Thompson v. Bell     53   54     Thompson v. Bell                            No. 00-5516

  As described fully in the attached affidavit of counsel,           3.    Social, environmental, psychological, and
  Stephen M. Kissinger, this state of disorder contributed                 economic factors in the life of Mr. Thompson
  to counsel’s excusably negligent failure to realize that                 which might have [to] be considered to be
  Dr. Sultan’s deposition and report were not filed in the                 mitigating in nature at the time of his trial.
  record. (Attachment C).
                                                                   (DCTR 133, Attachment A; emphasis added).
__________________
                                                                      Dr. Sultan’s report indicated that she began psychological
       1. Respondent’s deposition of Dr. Crown and the             evaluation of Thompson on August 20, 1998. At the first
       accompanying report were placed in the record by            session, which lasted four hours, Dr. Sultan conducted a
       Respondent. (R. 91). Because Respondent had moved           clinical interview and administered the MMPI-2. Dr. Sultan
       for costs incurred in, inter alia, hiring its own mental    also noted that she did not assess Thompson’s levels of
       health expert, Dr. Blau, on the grounds that Dr. Blau’s     current intellectual and neuropsychological functioning
       services were unnecessary because Petitioner had no         because they had recently been assessed by Dr. Crown.
       expert opinions to support the mental health related
       allegations contained in the petition, counsel for Mr.        Thereafter, Dr. Sultan initiated “a very extensive review of
       Thompson was under the mistaken belief that                 legal, military, medical, prison and psychiatric/psychological
       Respondent had placed his deposition of Dr. Sultan          records.” Regarding “Relevant Psychological/Psychiatric
       and the report which Dr. Sultan had supplied to             Data Contained in Records,” Dr. Sultan stated:
       Respondent in the record.
                                                                        The [sic] is substantial documentation throughout the
(Id. at 3) (emphasis added). Thompson therefore asked the            Tennessee Department of Corrections records that Mr.
Court to order the record supplemented with the deposition           Greg Thompson has suffered from significant mental
and report of Dr. Faye E. Sultan, PhD, and that the district         illness since at least the time of his incarceration in 1985.
court revisit its previous summary denial of Thompson’s              He has been treated almost continuously with some
petition. (Id.)                                                      combination of major tranquilizer and/or anti-depressant
                                                                     and/or anti-anxiety medications. He has received a
                    (i). Dr. Sultan’s Report                         variety of diagnostic labels including Psychosis,
                                                                     Psychosis Not Otherwise Specified, Paranoid
  Attached to the motion are three exhibits. The first is a          Schizophrenia, Mania, Mixed Substance Abuse,
psychological report prepared by Dr. Sultan, dated July 22,          Schizophrenia, BiPolar Affective Disorder,
1999. Dr. Sultan states the referral questions as follows:           Schizoaffective Disorder, Malingering, and Adult
                                                                     Antisocial Behavior. This is clearly indicative of the
  1.     Mr. Thompson’s current psychological status[.]              Tennessee DOC mental health staff’s view that Mr.
                                                                     Thompson has experienced major mental illness
  2.     Mr. Thompson’s likely psychological status and              throughout at least most of his period of incarceration.
         mental state before and surrounding the time of             Further, there is extensive documentation contained in
         the 1985 offense.                                           these records of many episodes of bizarre aggressive
                                                                     and/or self destructive behavior.
No. 00-5516                            Thompson v. Bell      55    56   Thompson v. Bell                           No. 00-5516

(Id.)                                                               children’s basic daily needs, highly critical, and unable
                                                                    to care properly for the children. Ms. Wharton described
   Next, Dr. Sultan stated that she interviewed five individuals    many instances of such abuse and neglect. She described
“who provided significant supplemental information about the        the period following their mother’s death as particularly
life circumstances and past/present psychological functioning       chaotic and neglectful, recalling that often there was no
of Mr. Gregory Thompson.” Dr. Sultan interviewed Ms.                food in the home and that the children would take money
Maybelle Lamar, Thompson’s maternal grandmother. Dr.                from under their grandmother’s mattress to go and buy
Sultan reported that Lamar assumed complete responsibility          food. In the period following their mother’s death, Ms.
for Thompson and his two older siblings after Thompson’s            Wharton        reported that her grandmother was
mother was killed when Thompson was five years old. Dr.             continuously drunk and unable to care for her
Sultan reported Lamar’s description of Thompson as follows:         grandchildren. According to Ms. Wharton, Greg
                                                                    Thompson frequently witnessed his sister Nora being
     Ms. Lamar described Mr. Thompson as displaying                 beaten by their grandmother.
  significantly “different” behavior when he returned to
  visit her following his discharge from the U.S. Navy.                Ms. Wharton further recalled that she and her younger
  “Greg didn’t act the same”. Unlike the ‘eager to please’,         brother had witnessed the brutal beating and rape of their
  passive, sometimes funny gentle boy who she had                   mother by their biological father. She recalls Greg
  reared, Mr. Thompson was “angry”, “sometimes sad”. “I             standing in the scene screaming and sobbing
  don’t think he wanted me to know what was going on                uncontrollably.
  with him. He mostly just stayed away from me.” Ms.
  Lamar reported that she noticed Mr. Thompson                      Of particular relevance is Ms. Wharton’s recollections
  sometimes “staring off into space” or “talking to                 about Mr. Thompson repeatedly banging his head against
  himself”. She would ask him about these behavior. [sic]           the wall of their home on many occasions during their
  “He’d deny it. He acted like he didn’t know what I was            early childhood. This behavior frequently followed their
  talking about.” Ms. Lamar recalls being quite concerned           grandmother yelling at Greg “You have the Devil in
  about her grandson’s mental state during this time. She           you.” Mr. Thompson would tell his sister that he was
  did not recall ever being asked questions at any time             attempting to “knock the Devil out” of his head in this
  before or during Mr. Thompson’s trial.                            way. Ms. Wharton recalls believing that this behavior
                                                                    was quite odd.
(DCTR 133 Attachment A).
                                                                       Ms. Wharton reported that Greg would frequently cry
  Dr. Sultan also interviewed Ms. Nora Jean Hall Wharton,           at school during the early school years, and as a result,
Thompson’s older sister. Dr. Sultan reported:                       was often the victim of intense mockery from his
                                                                    classmates. Because Ms. Wharton was in the same
    Ms. Wharton described Mr. Greg Thompson as a                    classroom as her brother she observed these behaviors
  highly sensitive, passive, timid, emotionally vulnerable          and often intervened on her brother’s behalf. She
  child. She described a childhood of great hardship.               described Mr. Thompson’s response to this abuse as
  According to her report, their grandmother, Ms.                   quite passive.
  Maybelle Lamar was verbally abusive, neglectful of the
No. 00-5516                            Thompson v. Bell      57   58   Thompson v. Bell                            No. 00-5516

    Following his discharge from military service, Ms.              antecedent. She reported that Mr. Thompson sometimes
  Wharton described Mr. Thompson’s behavior as                      thought that people were “after” him. He would close all
  significantly different than his prior conduct and attitude.      the curtains in the house because he did not want the
  She reported several episodes of bizarre behavior which           person who was “looking” for him to see him through the
  included a sudden intense emotional reaction without              curtains. She remembers being quite concerned about
  obvious external provocation. Mr. Thompson would                  Mr. Thompson’s mental state.
  become extremely angry, would cry and scream for a
  lengthy period of time, would appear as if he might or           Dr. Sultan next reported her “Summary and Conclusions,”
  actually become physically violent or aggressive, and           which we quote here in full:
  then would suddenly retreat. Ms. Thompson reported
  this behavior and her concerns about it to her                    Mr. Gregory Thompson has experienced symptoms of a
  grandmother. Ms. Lamar suggested that Ms. Wharton                 major mental illness throughout his adult life. Indeed,
  take her brother to the psychiatric unit of the local             there is information available which suggests that Mr.
  hospital for treatment. Ms. Wharton did not attempt to            Thompson was displaying significant signs of mental
  get any treatment for Mr. Thompson and reports feeling            illness from the time he was a small child. Self-injurious
  quite guilty about this.                                          behavior is reported as early as six years old. There is
                                                                    extensive documentation contained within the records
    Nora Jean Wharton described her own struggles with              reviewed for this evaluation that Mr. Thompson has
  mental illness throughout the past fifteen years. She has         experienced a thought disorder and/or an affective
  received counseling to assist her in coping with the              disorder of some type for many years.
  effects of her abusive childhood and she has been treated
  with a combination of a major tranquilizer (Stellazine)           It is my opinion that Mr. Gregory Thompson is most
  and anti-depressant medications. She reported her                 appropriately diagnosed, according to the Diagnostic
  younger half-sister Kim has also suffered from                    and Statistical Manual of Mental Disorders, Fourth
  significant mental illness.                                       Edition, as having Schizoaffective Disorder, Bipolar
                                                                    Type. As is typical of this illness, symptoms became
(DCTR 133 Attachment A).                                            apparent in early adulthood. Mr. Thompson was
                                                                    suffering serious mental illness at the time of the 1985
  Dr. Sultan also relayed the report of Michael Chavis, an          offense for which he has been convicted and sentenced.
investigator for the Federal Defenders Office of Eastern            This mental illness would have substantially impaired
Tennessee, from his interview of Ms. Cajulao in summer of           Mr. Thompson’s ability to conform his conduct to the
1998.                                                               requirements of the law.
  Mr. Chavis reported that Ms. Cajulao described Mr.                Further, Mr. Thompson was the victim of severe
  Thompson as displaying increasingly bizarre behavior              childhood emotional abuse and physical neglect. His
  during the latter part of their relationship. Similar to          family background is best described as highly neglectful
  descriptions proved [sic] by Ms. Nora Wharton, Ms                 and economically deprived. Mr. Thompson repeatedly
  Cajulao reported several episodes of “paranoid” and               witnessed episodes of violence during his childhood in
  aggressive behavior which had no apparent external                which one family member assaulted or brutalized
No. 00-5516                                  Thompson v. Bell          59    60   Thompson v. Bell                            No. 00-5516

  another.     There are significant aspects of Mr.                                 state, his level of functioning at the present
  Thompson’s social history that have been recognized as                            time.
  mitigating in other capital cases.
                                                                               Q: Were you also asked if you would be able to
  It is important to note that all of the information related                     determine his competency at the time of his
  to Mr. Thompson’s early mental illness and social                               criminal trial in 1985?
  history was available at the time of his 1985 trial.
                                                                               A: That was not an initial question, no.
Id. (emphases added). Again, this report is dated July 22,
1999.11                                                                             ....

           (ii.) Dr. Sultan’s Deposition Testimony                             Q: Did Mr. Chavis express to you any opinion as
                                                                                  to what he thought Mr. Thompson’s
  The second attachment is Dr. Sultan’s deposition. Pruden,                       psychological condition was, his mental status
counsel for Respondent, took Dr. Sultan’s deposition on July                      was, at the time of the offense?
22, 1999. Appearing on behalf of Thompson was Stephen
Kissinger. Michael Chavis was also present.                                    A: The only opinion that he expressed to me was
                                                                                  that he thought that he was not in good shape,
  Dr. Sultan told Respondent that she was first contacted by                      that he had deteriorated. He didn’t label it in
Chavis on behalf of Kissinger in July or August of 1998. Dr.                      any particular way. Said he didn’t think that he
Sultan testified that                                                             was doing as well.
  A. Mr. Chavis asked me about my availability and                           (Emphasis added.) (DCTR 133 Attachment B).
     asked if I would be willing to perform a
     psychological evaluation to assess what Mr.                               Dr. Sultan also stated that she had consulted with Dr.
     Thompson’s psychological condition might                                Crown. She stated that Chavis told her
     have been like at the time of the offense in 1985,
     to assess whether it was possible to make such                          Dr. Crown would be conducting the neuropsychological and
     an appraisal, to see whether there were factors                         intellectual assessment. Dr. Sultan testified that she needed
     in his personal background that might have                              to check Dr. Crown’s test results so that she could include
     been investigated at the time of trial that would                       them in her opinion, but that she did not provide Dr. Crown
     have had bearing on his psychological status at                         with any of her diagnostic information.
     the time of the offense, and Mr. Chavis also
     suggested that they wanted to know something                               When asked whether she had prepared a social history on
     about Mr. Thompson’s current psychological                              Thompson, Dr. Sultan indicated that she had not yet but that
                                                                             it had been provided as part of the prison records. Dr. Sultan
                                                                             testified that she had spoken with Thompson’s grandmother
    11                                                                       and sister, and had attempted to speak with his brother Curtis.
        The documents to which Dr. Sultan refers are not actually attached
to the report. They are attached to her deposition testimony, Attachment     She further stated that, although she had not spoken with any
B, and marked as Exhibit 3 to that deposition.                               of Thompson’s school teachers, school administrators, or
No. 00-5516                          Thompson v. Bell     61    62   Thompson v. Bell                            No. 00-5516

neighbors, she had reviewed testimony from them. Dr. Sultan            and she saw those behaviors as very unusual for
was not sure whether she had reviewed the actual transcript            him and reported to Mr. Chavis that Mr.
from Thompson’s court martial, but stated that, at a                   Thompson seemed unaware of what had
minimum, she had reviewed the testimony of at least some of            provoked it and didn’t even seem after the fact
the witnesses. She had not contacted any of Thompson’s                 to remember what had taken place, would
supervisors in the military.                                           simply, after a period of time, calm himself
                                                                       down and return to normal behavior. I found all
  Although Dr. Sultan also had not spoken with Cajulao, she            of that quite significant.
interviewed Chavis, who spent several days with Cajulao in
1998. Dr. Sultan stated that she found Cajulao’s observations     (Id. at 55-56).
“beneficial” in reaching her diagnosis. Specifically,
                                                                  Shortly thereafter, Pruden called for a break, and took that
  A: Ms. Cajulao described to Mr. Chavis that                   opportunity to take a look at Dr. Sultan’s report. Upon return,
     during the course of the four-year relationship            Pruden asked Dr. Sultan:
     she had with Mr. Thompson, Mr. Thompson
     became increasingly bizarre in behavior that he              Q: What indicates to you or what indicia are there
     exhibited. There were a number of occasions in                  for you that suggest Mr. Thompson was
     which there were incidents that took place in                   displaying significant signs of mental illness
     the military that he described to her as him                    from the time he was a small child? How do
     having been attacked. The facts of the situation                you arrive at that conclusion?
     may in fact not be that, but that was his
     description to her, that he was being picked on,             A: During my interview with Mr. Thompson’s
     that he was being bullied, that he was being                    sister–and let me say all of her names–Ms. Nora
     attacked.                                                       Jean Hall Wharton, Ms. Wharton spontaneously
                                                                     began to talk to me about Mr. Thompson’s
         He became depressed, according to her, over                 behavior in the time period immediately
      time and increasingly paranoid. At some point                  following their mother’s death.
      she would come home from work, and he
      would be in their home with the curtains drawn,                  By the time of the first grade, Mr. Thompson,
      standing by himself in the dark telling her that                 when he was being yelled at by his
      people were after him and that he didn’t want                    grandmother, she was reportedly verbally
      people to be able to look at him through the                     abusive in the following fashion: She would
      windows.      She remembers being quite                          yell at him-- you have the devil in you, boy.
      concerned about his behavior.                                    She would then observe Mr. Thompson
                                                                       standing or sitting beside a wall repeatedly
        There are a couple of situations that she                      banging his head into the wall. She, in her role
      described to Mr. Chavis in which, with no                        as protector of him, would ask him what was
      external provocation that she could identify,                    going on, and he would tell her he was trying to
      Mr. Thompson became quite violent with her,                      knock the devil out of his head. She recalls at
No. 00-5516                          Thompson v. Bell     63   64   Thompson v. Bell                          No. 00-5516

     the time, although she was quite young herself,                 permitted much interaction outside of their
     being worried about his behavior and thinking                   home.
     it as was very odd.
                                                                (Id. at 60).
     One of things that we know about people who
     develop thought disorders is that frequently in            Dr. Sultan further testified that:
     childhood you’ll see one or more peculiarities
     in behavior. This would certainly fit in that                   She [Ms. Wharton] recalled another episode
     category. She recalls other instances.                          during which her biological father was brutally
                                                                     beating and raping their mother on the floor in
 Q: Sort of self-punishment or a self-exorcism type                  front of them when the children were quite
    thing?                                                           small, perhaps Mr. Thompson was himself three
                                                                     or four. She was maybe four or five. Mr.
 A: A self-injurious behavior is what we would call                  Thompson’s reaction to that was to stand and
    it I think. Mr. Thompson, when he was Greg,                      scream and scream and scream and scream
    in the first and second and third grade had                      during the entire episode.
    rather frequent crying episodes in classrooms
    that Ms. Wharton recalls also as very unusual in                 Any of the–taking the self-injury aside, setting
    the context of his schoolroom situation. She                     that aside, any one of those behaviors in
    describes him as being the subject of torment on                 isolation might not be particularly significant.
    the part of the students because he behaved in                   Putting them together, we begin to see a pattern
    an odd fashion. Sometimes he would simply                        of intense emotional reactivity.
    begin to cry and wail and scream and
    apparently made a sound like a fire engine                  Q: So basically, if I understand it, it’s the self-
    when he was sobbing and developed the                          injurious behavior and the crying and the way
    nickname Fire Engine. That’s reported in the                   you see him reacting to these physical abuses of
    trial transcript. She told me much more detail                 others?
    about actually the extent of those kind of
    emotional outbursts.                                        A: Yes.

     At home it was rather common for Mr.                       Q: And that is indicative of a sign of mental illness
     Thompson to begin to cry and scream during                    to you? I just want to make sure that I’m
     times when Ms. Wharton herself was being                      understanding what you’re telling me. If I’m
     beaten by their grandmother. Ms. Wharton was                  not, please explain it to me.
     the victim of physical abuse on the part of the
     grandmother. Mr. Thompson observed much of                 A: I think I understand your question. It is an early
     this since they were together virtually all of the            indicator of a problem that’s likely to develop.
     time, and Nora Wharton was not really                         With the benefit of hindsight, it takes on the
                                                                   significance of a precursor, because then we see
No. 00-5516                          Thompson v. Bell     65   66   Thompson v. Bell                         No. 00-5516

     the escalating pattern of dysfunction and                  Q: . . . You don’t know to what degree the children
     abnormality.                                                  were malnourished then?
 Q: Sort of a causal relationship is what you’re                A: No. I don’t know. I do know that–and this is
    seeing developing?                                             confirmed by the grandmother–in the six weeks
                                                                   approximately following their mother’s death,
 A: I’m not sure what causes what. There are often                 the children were left alone virtually all of the
    early indices of later mental illnesses that you               time because Ms. Lamar was drunk and in bed,
    don’t know exactly what it’s going to look like                and so we have a five, a six, and a seven-year-
    later, but you realize in looking at the child that            old child in a house with no food. They would
    there’s a high likelihood that something is not                occasionally steal money from underneath her
    going to be right when that person achieves                    mattress while she was sleeping, and one of
    maturity.                                                      them would go to the store to try to find some
                                                                   food. Occasionally a neighbor would provide
 Q: Because of the environment, for example, in                    them with a meal or a can of food. I don’t
    which he’s growing up?                                         know whether they were malnourished over an
                                                                   extended period of time. I do know that there
 A: Perhaps. Perhaps because of the genetics                       is, from Ms. Wharton’s perspective, rather
    involved. Perhaps because of the situations                    serious psychological damage from that time.
    he’s exposed to, as you said, the environment.
    Perhaps because of whatever factors there are.              Q: You have no medical documentation showing
    Perhaps nutrition plays a role in this. These                  any malnourished condition or that it’s caused
    children were without food for significant                     some problem with his brain, do you?
    periods of time as well. I don’t know all of the
    reasons, but what I know is that if you look                A: I don’t. These children were never taken to the
    back in the childhood of this man, the                         doctor, so there wouldn’t be any medical
    beginnings of mental illness are apparent.                     documentation.            There’ s p r obably
                                                                   documentation in the school system. According
 Q: Besides Ms. Wharton’s report of lack of food,                  to Ms. Wharton, Ms. Lamar was so drunk at the
    have you seen any evidence that the children                   beginning of the school year following their
    were taken away because of malnutrition?                       mother’s death that she forgot to sign the
                                                                   children up for lunches at school. They didn’t
 A: No. Ms. Wharton did tell me, however, that                     have anything to eat during the day, so they
    there was a neighbor who had planned to make                   forged her signature on a permission slip so that
    a report to Social Services, so perhaps I’ll have              they could eat. They were discovered and
    the opportunity to interview that neighbor as                  punished by the school superintendent people,
    well.                                                          and a form was sent home to Ms. Lamar. She
                                                                   then signed it, and the children were able to eat
No. 00-5516                         Thompson v. Bell     67   68   Thompson v. Bell                           No. 00-5516

     lunch after that point. A couple weeks passed                  take into account both thought disorder and
     for all of that to get straightened out.                       affective illness.
     Ms. Wharton has undergone a lot of therapy in                  The very best diagnosis to describe all of the
     recent years and says that she’s now able to                   complex of symptoms that I just talked to you
     describe situations that she wasn’t very                       about is schizoaffective disorder, bipolar type.
     comfortable acknowledging to herself, these
     being one of them.                                        Q: You note in your report Mr. Thompson was
                                                                  observed having a significant change in
 Q: Your diagnosis of Mr. Thompson is                             behavior after he was discharged from the
    schizoaffective disorder, comma, bipolar type.                Navy. What significance do you attach to that
    What leads you to that diagnosis from what                    fact?
    you’ve reviewed and your testing results?
                                                               A: Well, it’s interesting, because the state Court of
 A: What leads me to the diagnosis is that there is a             Appeals actually notes this, that prior to his
    long history, perhaps at this point almost a 20-              entry into the military Mr. Thompson is
    year history, of simultaneous thought disorder                described almost uniformly–well, in fact,
    on the part of Mr. Thompson documented                        uniformly according to their opinion–as
    throughout all the records, and affective                     passive, as compliant, as eager to please, as
    disorder, emotional disorder, being unable to                 gentle, as timid, as eager to run from attacks.
    regulate his emotions, sometimes falling into
    the pits of despair and becoming suicidal,                      At some point–and we don’t know, because I
    sometimes becoming highly agitated and manic                    haven’t seen any psychiatric records from the
    and having too much energy, too much                            military at this point; I don’t know if there are
    exuberance, and grandiose thinking. The                         any–we don’t know whether or not the change
    thought disorder is manifested in persecutory                   in Mr. Thompson is perceived as other than
    ideas, delusions of grandeur–lots of different                  behavioral disruption, but, in fact, his
    kinds of delusions actually–auditory                            description of that time is that he began to
    hallucinations that he sometimes admits to,                     notice that people were trying to hurt him all
    sometimes suspected by the doctors who are                      the time, that officers and other people of his
    doing the examination.                                          rank and slightly above his rank attempted to
                                                                    provoke him, that they sometimes physically
     The psychological testing early on in Mr.                      assaulted him, that he thought he was being
     Thompson’s incarceration confirm the presence                  followed a lot, and that he sometimes struck out
     of a psychotic process. There was an MMPI                      in what he thought was defense and then later
     administered to him by a prison psychologist in                found out from other people who he knew and
     1990 that is described as valid and indicative of              trusted that there wasn’t anything to defend
     psychotic process, and throughout the prison                   against or that there might not have been
     record he receives a variety of diagnoses that                 anything to defend against.
No. 00-5516                          Thompson v. Bell     69   70   Thompson v. Bell                           No. 00-5516

 Q: This is what he related to you during your                       approach her grandmother about what to do for
    interview last August?                                           treatment for him.
 A: Right. The people who saw him after the                     (Id. at 62).
    military each were struck by how very different
    he seemed. That was the word that kept being                Pruden then asked:
    used, “different.” Sometimes the people I was
    speaking to were not able to describe what                  Q: You state that the schizoaffective disorder,
    different meant, but, for example, the                         bipolar type, would substantially impair Mr.
    grandmother said that he was different as in not               Thompson’s ability to conform his conduct to
    right, that he wasn’t himself. Ms. Wharton tells               the requirements of the law. How so?
    me that the grandmother was very well aware
    that he was in deep psychological distress, and,            A: There are points in time when Mr. Thompson is
    in fact, the grandmother suggested that he be                  out of contact with reality. He is responding to
    taken to the psychiatric unit at Grady Hospital                situations that simply don’t exist or that he
    in Atlanta, I believe, for treatment. The                      perceives in extremely exaggerated or different
    grandmother observed him staring off into                      form. A person is not able to conform one’s
    space for long periods of time. She observed                   conduct to the law if you are frankly delusional
    him mumbling to himself. When she asked him                    or hallucinating in some way. Mr. Thompson
    what he was doing, he told her he had no idea                  over the years has had both of those symptoms.
    what she was talking about. She said that was
    very different from the boy who left her to go              Q: So it’s this delusional aspect of this disorder
    into service.                                                  that is the main factor that would keep him
                                                                   from having the ability to conform his conduct
     The sister has even a better glimpse of him than              to the requirements of law, if I understand you
     that, because he actually went to live with her               correctly?
     for a while, and she said he was bizarre. She
     described him as paranoid. She said that he                A: Is it the main factor? Let me say that I think it’s
     would explode for no reason at all, that she was              at least as potent a factor if not more as the
     afraid of him for the very first time in her life,            other aspect of his mental illness, which is that
     that they had always been terribly close, the sort            he has emotional disregulation.
     of close where if there was only one piece of              Q: Meaning?
     bread to eat they would share it, that they
     always looked out for one another, and that                A: Meaning Mr. Thompson often is not in control
     suddenly he was behaving in ways that she                     of his emotions. He has episodes of rage, of
     simply could not identify. She described three                aggression, that he doesn’t understand or relate
     very serious episodes of aggression and                       to very well. He’s told about them later.
     emotional upset that she said are what led her to             Sometimes he remembers them, sometimes he
                                                                   doesn’t.
No. 00-5516                           Thompson v. Bell     71   72    Thompson v. Bell                          No. 00-5516

(Id. at 69).                                                      made regarding Respondent’s filing of the report and
                                                                  deposition of Dr. Sultan, which were, however
  The deposition concluded shortly thereafter.                    reasonable, incorrect. Counsel’s failure to verify this
                                                                  assumption regarding these documents was neglect.
                (iii.) Kissinger’s Affidavit                      Given the extraordinary pressure under which counsel
                                                                  was operating at that time, such neglect was excusable.
  The third attachment is Kissinger’s affidavit. In it, he
explains in relevant part the following:
                                                                     And further this affiant saith not.
  2. I was appointed to represent the Appellant, Gregory
  Thompson, on January 29, 1998, by the district court.         (Id. Attachment C)(emphasis added). Kissinger’s affidavit is
                                                                dated March 1, 2001.
  3. In approximately November of 1999, Ms. Leah
  Prewitt, the Federal Defender for the Eastern District of     g. The District Court’s Ruling on the Rule 60(b) Motion
  Tennessee, was forced by illness to cease activities on
  behalf of Federal Defender Services of Eastern                  On April 17, 2001, the district court denied Thompson’s
  Tennessee, Inc. Ms. Prewitt’s duties were assumed by          motion to reconsider the order denying his motion to alter or
  Ms. Elizabeth Ford, an Assistant Federal Defender in the      amend judgment pursuant to Fed. R. Civ. P. 60(b). First, the
  office. Because Ms. Prewitt had not resigned, Federal         district court held that it had previously determined the Rule
  Defender Services of Eastern Tennessee, Inc., was not         60(b) motion was filed outside the one year time period. The
  able to hire a permanent replacement for Ms. Prewitt.         district court noted that, according to its calculation the
  Because Ms. Ford could not do both Ms. Prewitt’s job          motion was required to be filed no later than February 16,
  and her own, Federal Defender Services of Eastern             2001, to be considered timely. DCTR 139 (citing Fed. R. Civ.
  Tennessee, Inc. assigned a portion of Ms. Ford’s              P. 6 and 60(b)). The district court then noted that:
  caseload to affiant.
                                                                  Thompson now argues, without citing authority, that the
  4. Affiant, however, already had an extremely heavy             calculation of the Rule 60(b) one-year limitation period
  capital habeas corpus caseload, including, but not limited      should not begin until March 31, 2000, the date this
  to, Mr. Thompson’s case. In fact, his capital caseload          Court denied his Rule 59 motion to alter or amend the
  was so heavy that Federal Defender Services of Eastern          judgment. Thompson’s interpretation is contrary to the
  Tennessee, Inc. was forced to hire a second attorney to         plain language of the rule. Thompson has not cited, nor
  handle capital habeas corpus cases in July of 2000.             has the Court found, any authority to support his
  When a portion of Ms. Ford’s cases were assigned to             position. The rule specifies that the motion should be
  affiant, that caseload became so great that affiant made        made within a reasonable time, and in this case “not
  errors which, however understandable, were nonetheless          more than one year after the judgment, order, or
  errors.                                                         proceeding was entered or taken.” Rule 60(b) of the
                                                                  Federal Rules of Civil Procedure. In the case before this
  5. Despite the affiant’s efforts, there were occasions          Court, the order dismissing the habeas petition was
  when he made assumptions, such as the assumption he             entered on February 17, 2000. [Court File No. 125].
No. 00-5516                           Thompson v. Bell      73   74     Thompson v. Bell                         No. 00-5516

(Id. at 3).                                                                        2. Appeal to this Court
  Next, the district court stated, and we quote in full, the       Thompson did not appeal from the order of the district
following:                                                       court’s denying his motion to alter or amend judgment. On
                                                                 appeal to this Court, Thompson articulated the issues for
  Moreover, the Court specifically noted in its                  review as follows:
  memorandum opinion dismissing the habeas petition,
  that Thompson procedurally defaulted his claim that he           I.    Whether the district court erred when it
  was incompetent at the time of the crime and an the time               reviewed Mr. Thompson’s claims under the “all
  of trial. [Court File No. 124, at 35]. Furthermore, when               reasonable jurists” standard denounced by the
  addressing Thompson’s claim of ineffective assistance                  Supreme Court in (Terry) Williams v. Taylor to
  of counsel for failing to adequately investigate his                   summarily deny Mr. Thompson’s petition.
  mental health, the Court placed Thompson on notice
  that he failed to provide evidence of his allegations that       II. Whether the district court erred in denying Mr.
  he was incompetent at the time of the crime and trial.               Thompson’s habeas petition without a hearing
  [Court File No. 124, at 53].                                         where Mr. Thompson did not fail to develop the
                                                                       factual basis of his claims in state court and
     Petitioner claims experts recently obtained by him                whether the district court erred by making
     have revealed that he was incompetent under                       factual findings without affording Mr.
     Tennessee law at the time of the crime and                        Thompson the opportunity to present evidence
     throughout his court proceedings. Petitioner has                  with regards to those findings.
     failed to state the name of the expert and failed to
     provide proof of these revelations. The Court has             III. Whether Mr. Thompson received ineffective
     read the deposition of Dr. Crown, (Court File No.                  assistance of counsel in both the guilt and
     119, Exhibit 1) but was unable to located [sic] his                sentencing phases of his capital trial where
     opinion that Thompson was incompetent at the time                  counsel failed to investigate and present
     of the crime and throughout his court proceedings.                 evidence regarding Mr. Thompson’s mental
     As a matter of fact, Dr. Crown stated he was not                   illness and social history and failed to present
     asked to render any determination about whether or                 evidence in support of a life sentence in
     not Thompson was competent during his state trial.                 violation of due process and the Sixth
                                                                        Amendment.
  Id. Thus, the filing of this request more than one year
  after Thompson was placed on notice that such                    IV. Whether Mr. Thompson’s Fifth, Sixth, Eight,
  information was not in the record is unreasonable and not            and Fourteenth Amendment rights were
  excusable neglect.                                                   violated when the state withheld exculpatory
                                                                       evidence which clearly supported Mr.
(Id. at 3-4) (bold and underlining added).                             Thompson’s claim of serious mental illness and
                                                                       its debilitating effects and presented false
                                                                       evidence regarding Mr. Thompson’s mental
No. 00-5516                                   Thompson v. Bell          75     76    Thompson v. Bell                             No. 00-5516

         health during         trial   and     post-conviction                    However, even if this matter were before us as a second
         proceedings.                                                          habeas petition, it would not matter, because the AEDPA
                                                                               does not bar a second or successive petition premised upon
  Curiously, appellate habeas counsel Dana Hansen did not                      fraud upon the court. See Workman v. Bell, 245 F.3d 849,
appeal the denial of the Rule 60(b) motion, despite her                        852 (6th Cir. 2001) (“In our equally divided opinion denying
apparent realization that Dr. Sultan’s deposition testimony                    further relief for the petitioner . . ., all of the judges agreed
and report were never made part of the district court record.                  that the court can reconsider the petition if there was a fraud
                                                                               upon the court.”) Cf. Calderon v. Thompson, 523 U.S. 538,
                                                                               556-57 (1998) (holding that the principles of the AEDPA
                            III. Discussion                                    apply in general to a recall of the mandate because a “State’s
                                                                               interests in finality are compelling when a federal court of
                      A. Procedural Posture                                    appeals issues a mandate denying federal habeas relief;”
                                                                               exempting claims of “fraud upon the court, calling into
  This case is governed by the Anterrorism and Effective                       question the very legitimacy of the judgment”); Workman,
Death Penalty Act of 1996, and we have already ruled on the                    227 F.3d at 334 (stating that “[o]ne of the reasons which
initial habeas petition. See Thompson v. Bell, 315 F.3d 566                    would justify recalling a mandate is the potential existence of
(6th Cir. 2003), cert. denied, 124 S. Ct. 804 (2003).                          a fraud upon the court”). Indeed, in Calderon, the Supreme
However, as alluded to above, this matter is before us in a                    Court stated that “a mandate may be recalled when it is
unique procedural posture, on our own motion, and prior to                     necessary to address new circumstances before the court
the issuance of the mandate.12 Thus, we are not obliged to                     which are ‘grave’ and ‘unforeseen’ or which are, in other
satisfy the requirements for the filing of a second or                         words, unforeseeable circumstances which implicate the
successive petition outlined in 28 U.S.C. § 2244. See                          justice of the judgment previously rendered.” Workman, 227
Workman v. Bell, 227 F.3d 331, 334 (6th Cir. 2000) (en banc;                   F.3d at 334 n.3 (citing Calderon, 523 U.S. at 549).
equally divided court) (stating that “[a]s a general rule, when
a mandate is recalled with respect to a petition for writ of                   B. Ineffective Assistance of Trial Counsel at Mitigation
habeas corpus, the petitioner first must satisfy the
requirements for the filing of a second or successive petition                    As the United States Supreme Court recognized in
as outlined in § 2244(b)).                                                     Strickland, “the Sixth Amendment right to counsel exists, and
                                                                               is needed, in order to protect the fundamental right to a fair
                                                                               trial.” Srickland v. Washington, 466 U.S. 668, 684 (1984).
                                                                               “‘[T]he right to counsel is the right to effective assistance of
    12                                                                         counsel,’” id. (quoting McMann v. Richardson, 397 U.S. 759,
       On July 26, 2002, Respondent-Appellee, Ricky Bell, filed a motion       771 n.14 (1970)), and a defendant can be deprived of that
for reconsideration o f our order filed July 26, 2002, granting Petitioner’s
ex parte motion for authoriz ation to expand the appointment of counsel
                                                                               right by counsel’s failure to render “‘adequate legal
to include state court proceedings. That motion has not yet been ruled on.     assistance.’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335,
                                                                               344 (1980)).
     Furthermore, our docket sheet reflects that, on March 1 4, 2003, D ana
C. Hansen filed a motion to stay the mandate, and that we granted it on          In Strickland, the Supreme Court held that
March 24, 200 3. On D ecem ber 2 , 200 3, Dana H ansen filed a motion to
further stay the mandate, which this Court granted on December 12, 2003.
No. 00-5516                           Thompson v. Bell      77   78     Thompson v. Bell                                     No. 00-5516

  [a] convicted defendant’s claim that counsel’s assistance      failed to present any evidence indicated that he suffered from
  was so defective as to require reversal of a conviction or     symptoms of mental illness at the time of the offense. See
  death sentence has two components. First, the defendant        Thompson, 315 F.3d at 589. In other words, we could not
  must show that counsel’s performance was deficient.            have found ineffective assistance because there was no
  This requires showing that counsel made errors so              showing that trial counsel missed available evidence, and we
  serious that counsel was not functioning as the “counsel”      were mislead by incomplete records.
  guaranteed the defendant by the Sixth Amendment.
  Second, the defendant must show that the deficient               According to Dr. Sultan’s July 1999 testimony, Thompson
  performance prejudiced the defense. This requires              was suffering from a serious mental illness at the time of the
  showing that counsel’s errors were so serious as to            offense.13 Moreover, “all of the information related to Mr.
  deprive the defendant of a fair trial, a trial whose result    Thompson’s early mental illness and social history [and] was
  is reliable.                                                   available at the time of his 1985 trial.” Had trial counsel
                                                                 adequately interviewed family members, counsel would have
Id. at 687.                                                      found that Thompson exhibited troubling behaviors from an
                                                                 early age. Thompson engaged in self-injurious behaviors as
  When the duty at issue is the duty to investigate, “counsel    a young child. As a young adult, and prior to the murder,
has a duty to make reasonable investigations, or to make a       Thompson had mood swings and episodes during which he
reasonable decision that makes particular investigations         acted in a bizarre manner and appeared to lose contact with
unnecessary.”      Id. at 690; see also id. at 688-89.           reality. He talked to himself. At times he became agitated,
Reasonableness is determined by considering all of the           crying and screaming for no apparent reason. At other times,
circumstances. Id. at 688. However “[p]revailing norms of        he appeared paranoid, keeping the drapes closed, fearing that
practice as reflected in American Bar Association standards      he was being followed. As Dr. Sultan observed, although each
and the like,” are guides to determining reasonableness. Id.;    instance taken alone might not be sufficient, when combined
see also Hamblin v. Mitchell, 354 F.3d 482, 486-88 (6th Cir.     with Thompson’s abnormal responses, they are indicative of
2003) (same).                                                    an early psychopathology.
   Also relevant to the question of whether the scope of           As Dr. Blair indicated at the state post-conviction hearing,
counsel’s investigation was reasonable is what counsel           a complete social and family history is critical to the
actually knew. “In assessing the reasonableness of an
attorney’s investigation, . . . a court must consider not only
the quantum of evidence already known to counsel, but also            13
                                                                        Schizophrenia is a chronic disorder of thought, characterized by
whether the known evidence would lead a reasonable attorney      delusions, hallucina tions, diso rganized sp eech or gro ssly disorganized
to investigate further.” Wiggins v. Smith, 539 U.S. 510, 123     orientation or catatonic beha viors. See American Psych iatric Association,
S. Ct. 2527, 2538 (2003).                                        Diagnostic and Statistical Manual of Mental Disorders pp. (rev. 4th ed.
                                                                 2000) (“DSM -IV”). There is no definite laboratory or radiological test
                                                                 that establishes the diagnosis of schizoph renia, rather, the d iagnosis is
                 1. Deficient Performance                        based on longitudinal historical information. As individuals with
                                                                 schizo phrenia may not disclose the full extent of their symptoms, an
  In our previous opinion we held that trial counsels’           evaluation for the presence or absence of schizo phrenia or o ther psychotic
investigation was sufficient, principally because Thompson       disorders is not co mplete without a thorough social history obtained from
                                                                 family members or friends who have known the patient over time.
No. 00-5516                             Thompson v. Bell       79    80   Thompson v. Bell                             No. 00-5516

establishment of a diagnosis of mental illness. See                  that his mother was a chronic alcoholic and that he was sent
Thompson, 315 F.3d at 579. Yet, according to Dr. Blair,              to various foster homes, factors which would have led any
MTMHI’s records only contained sketchy information related           reasonably competent attorney to pursue); Williams v. Taylor,
to Thompson’s history before he committed the murder. Dr.            529 U.S. 362, 395-98 (2000) (finding ineffective assistance of
Copple’s testimony indicated that he did not take a thorough         counsel because counsel failed to investigate and introduce
history: “I did get a little bit of general information, such as     readily available evidence of the petitioner’s nightmarish
his age, his education.” Dr. Copple did not appear to be             childhood, including severe and repeated beatings by his
aware of Thompson’s possible symptoms. When asked about              father, and available evidence showing that the petitioner was
Thompson’s report of mood swings, Copple indicated that he           borderline mentally retarded; also finding prejudice in that the
did not believe Thompson ever had mood swings or reported            evidence “might well have influenced the jury’s appraisal of
them to Dr. Watson.                                                  his moral culpability”); Hamblin, 354 F.3d at 489-91
                                                                     (holding that defense counsel’s representation of the
  This readily available social and family history evidence,         petitioner fell short of prevailing standards because had
had trial counsel obtained it, should have been reported to          counsel investigated, they would have found a large body of
experts for psychiatric evaluation. After all, it was counsel        mitigating evidence of an unstable and deprived childhood,
who traveled to Thompson’s home town to interview family             characterized by extreme poverty, neglect, and family
members and friends and would have had access to the                 violence, as well as signs of a mental disability or disorder);
information. Furthermore, the evidence was not subtle,               Coleman v. Mitchell, 268 F.3d 417, 451-54 (6th Cir. 2001)
counsel did not need any expertise in psychiatry, as even            (finding ineffective assistance at mitigation where counsel
Thompson’s family members were aware of Thompson’s                   failed to present evidence of the petitioner’s horrific
need for a psychiatric evaluation.                                   childhood, his mental and emotional disorders, and low IQ);
                                                                     Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000) (finding
   Trial counsel were also ineffective for failing to obtain and     ineffective assistance where counsel failed to present
present a comprehensive social history. Thompson was the             evidence “of a childhood in which abuse, neglect and hunger
victim of verbal abuse and neglect of sufficient severity that       were normal”).
by first grade Thompson was exhibiting odd behaviors. He
repeatedly banged his head in response to his grandmother              Like trial counsel in Wiggins, trial counsel here had more
yelling at him. He wailed in the classroom and received the          than sufficient leads to investigate further. Cf. Wiggins, 123
nickname of “Fire Engine” due to the unusual sound of his            S. Ct. at 2536-37 (holding that trial counsel’s decision not to
sobs. At age three or four, he observed his father brutally          expand their investigation beyond a presentence investigation
beat and rape his mother. His mother died when he was five           report and department of social services records which
years old and he was left with his maternal grandmother who          revealed facts concerning the petitioner’s alcoholic mother
was continuously drunk for the first six weeks and did not           and his problems in foster care, as well as his self-report of a
even provide food for the children. All of this information          miserable childhood was unreasonable). Thompson’s trial
was powerful mitigating evidence that should have been               counsel were aware that Thompson had exhibited possible
presented to the trier of fact at sentencing. See Wiggins v.         symptoms of a mental illness. Trial counsel filed a notice of
Smith, 539 U.S. 510 (2003) (holding that the scope of trial          insanity defense and requested that Thompson undergo a
counsel’s investigation was unreasonable when counsel failed         mental evaluation. In a letter dated March 29, 1985 to Dr.
to investigate the petitioner’s social history, including the fact   Taran of Multi-County Mental Health, counsel explained that
No. 00-5516                            Thompson v. Bell      81    82    Thompson v. Bell                                No. 00-5516

Thompson was experiencing “extreme mood changes.”                  social history and present powerful, readily available
Counsel also knew of Thompson’s violent behaviors in the           mitigating evidence, and by failing to pursue known leads that
military, which were in stark contrast to Thompson’s previous      might have helped them to prepare their case in mitigation.
history. In addition, as described in the report, Thompson         In light of Dr. Blair’s post-conviction testimony that a full
described hearing auditory hallucinations “all of his life”        history was needed to determine whether Thompson was
when admitted to MTMHI. As counsel testified at the post-          schizophrenic at the time of the offense, the state court
conviction evidentiary hearing, “[t]he thing that struck me so     postconviction courts’ denial of funds amounted to an
strongly throughout this whole case was really to do with that,    objectively unreasonable application of Strickland under 28
and that was the difference in the man when he lived in            U.S.C. § 2254(d)(1).
Georgia and grew up there and what kind of person he was as
opposed to someone who committed–allegedly committed                            C. Misconduct of Habeas Counsel
this act, this murder and that was a tip off that there may have
been some kind of brain injury.” Thompson, 315 F. 3d at 577.          The next issue is whether Kissinger may have intentionally,
In short, trial counsel’s investigation into Thompson’s            or at a minimum recklessly, failed to timely and properly
background did not reflect reasonable professional judgment        present critical evidence to the district court and this
in light of what they knew and suspected. Cf. Wiggins, 123         Court–evidence which, in the words of the district court,
S. Ct. at 2542 (holding that trial counsel’s decision to end       might have entitled Thompson to relief. Simply put, the
their investigation when they did was unreasonable in light of     question is this: how and why did habeas counsel fail to
the evidence counsel uncovered in the social service records).     timely and properly present Dr. Sultan’s expert opinion
                                                                   testimony that “Mr. Thompson was suffering serious mental
                        2. Prejudice                               illness [Schizoaffective Disorder, Bipolar Type] at the time of
                                                                   the 1985 offense for which he has been convicted and
  The failure to present this mitigating evidence was              sentenced. This mental illness would have substantially
prejudicial. Cf. Wggins, 123 S. Ct. at 2542 (holding that the      impaired Mr. Thompson’s ability to conform his conduct to
petitioner’s evidence of severe privation and abuse in his         the requirements of law.” Psychological Report prepared by
early life while in the custody of his alcoholic mother and        Dr. Faye Sultan, dated July 22, 1999.
physical abuse in subsequent years in foster care prejudiced
his defense). As the Supreme Court stated in Wiggins,                This matter is somewhat reminiscent of Demjanjuk v.
“Petitioner thus had the kind of troubled history we have          Petrovsky, 10 F.3d 338 (6th Cir. 1993).14 There, on its own
declared relevant to assessing a defendant’s moral                 motion, this Court vacated the judgment of the district court
culpability.” Id. at 2542 (and cases cited therein). Finally, as   denying the petitioner’s writ of habeas corpus upon finding
was true in Wiggins, “[h]ad the jury been able to place the        that the judgments in the underlying extradition proceedings
petitioner’s excruciating life history on the mitigating side of   were wrongly procured as a result of prosecutorial
the scale, there is a reasonable probability that at least one
juror would have struck a different balance.” Id. at 2543.
                                                                        14
  In sum, trial counsels’ conduct failed to render effective              Although Demjanjuk involved misconduct by federal prosecutors,
assistance of counsel guaranteed by the Sixth Amendment by         I see no reason why defense attorneys should not be held to a similar
failing to conduct a reasonable investigation of Thompson’s        standard of integrity, especially when defense counsel are federal
                                                                   defenders sp ecializing in hab eas and cap ital cases.
No. 00-5516                                   Thompson v. Bell         83     84    Thompson v. Bell                              No. 00-5516

misconduct that constituted fraud on the court.15 Id. at 356.                   his loyalty to the court, as an officer thereof, demands
As in Demjanjuk, we must decide if “the conduct outlined                        integrity and honest dealing with the court. And when he
herein constitutes fraud on the court or attorney misconduct                    departs from that standard in the conduct of a case he
sufficiently serious to require corrective action on our part.”                 perpetrates fraud upon a court.
Id. at 352.
                                                                              Id. at 352 (quoting 7 James Wm. et al., Moore’s Federal
  As we observed in Demjanjuk, fraud upon the court “is a                     Practice ¶ 60.33). Finally, we remarked that “[a]lthough
somewhat nebulous concept,” defined as embracing                              there are cases holding that a ‘plan or scheme’ must exist in
                                                                              order to find fraud on the court, we agree . . . that a scheme,
  only that species of fraud which does or attempts to,                       based on a subjective intent to commit fraud, is not required
  subvert the integrity of the court itself, or is a fraud                    in a case such as this. Reckless disregard for the truth is
  perpetrated by officers of the court so that the judicial                   sufficient.” Id. at 352-53 (holding that Department of Justice
  machinery cannot perform in the usual manner its                            Attorneys committed fraud on the court by failing to disclose
  impartial task of adjudging cases that are presented for                    to the courts and to the detainee exculpatory information in
  adjudication, and relief should be denied in the absence                    their possession).
  of such conduct.
                                                                                 Demjanjuk defined fraud on the court as consisting of
Id. (quoting 7 Moore’s Federal Practice and Procedure,                        (1) conduct by an officer of the court, (2) directed towards the
¶ 60.33)). See also Hazel-Atlas Glass Co. v. Hartford                         judicial machinery itself, that is (3) intentionally false,
Empire Co., 322 U.S. 238, 245 (1944) (holding that fraud                      wilfully blind to the truth or is in reckless disregard for the
upon the court generally involves a deliberately planned                      truth, is (4) a positive averment or concealment when one is
scheme to subvert the integrity of the judicial process). Cases               under a duty to disclose, and that (5) deceives the court. Id.
dealing with fraud on the court usually turn on whether the                   at 348.
improper actions involved the parties alone, or whether the
attorneys in the case were also involved. Demjanjuk, 10 Fd.                      The first and second fraud on the court factors appear to be
3d at 352. As we further observed in Demjanjuk, “[a]s an                      easily met. Thompson’s attorneys are clearly officers of the
officer of the court, every attorney has a duty to be                         court, see generally Hickman v. Taylor, 329 U.S. 495, 510
completely honest in conducting litigation,” and that                         (1947) (noting that “[h]istorically, a lawyer is an officer of the
                                                                              court and is bound to work for the advancement of justice
  while an attorney should represent his client with                          while faithfully protecting the rightful interests of his
  singular loyalty, that loyalty obviously does not demand                    clients”), and their representation of Thompson in these
  that he act dishonestly or fraudulently; on the contrary                    habeas proceedings was and is clearly directed at the judicial
                                                                              machinery of the court.
    15
       Spe cifically, we found that attorneys for the Department of Justice
                                                                                The fourth and fifth factors also appear to be present.
Attorneys “acted with reckless disregard for the truth and fo r the           Habeas counsel for Thompson had an obligation, as part of
government’s obliga tion to take no steps that preve nt an ad versary from    their duty to represent zealously their client, to present to the
presenting his case fully and fairly” when they withheld exculpatory          court material, critical, available evidence, which in this case
materials from the petitioner. Demjanjuk v. Petrovsky, 10 F.3d 338, 354       would virtually have ensured the relief Thompson requested
(6th Cir. 1993).
No. 00-5516                               Thompson v. Bell        85    86   Thompson v. Bell                            No. 00-5516

in his federal habeas corpus petition. This meant presenting,           it was not presented at the summary judgment stage, the
by affidavits or otherwise, proof of Thompson’s mental                  district court held that
illness at the time of the offense in response to Respondent’s
motion for summary judgment. See Fed. R. Civ. P. 56(e)                      Thompson has failed to provide any significant
(stating that “[w]hen a motion for summary judgment is made               probative evidence which would make it necessary for
and supported as provided in this rule, an adverse party may              this Court to resolve a factual dispute. . . . Thompson has
not rest upon the mere allegations or denials of the adverse              not provided this Court with anything other than
party’s pleading, but the adverse party’s response, by                    factually unsupported allegations that he was
affidavits or as otherwise provided in this rule, must set forth          incompetent at the time he committed the crime and at
specific facts showing that there is a genuine issue for trial.           the time of his jury trial. Nor has Thompson provided
If the adverse party does not so respond, summary judgment,               this Court with any significant probative evidence that
if appropriate, shall be entered against the adverse party”).             Thompson was suffering from a significant mental
See also Fed. R. Civ. P. 56(c) (stating that “[t]he judgment              disease that should have been presented to the jury
sought shall be rendered forthwith if the pleadings,                      during the punishment phase as mitigation evidence.
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no           Petitioner had two different psychological evaluations
genuine issue as to any material fact and that the moving                 and both resulted in findings of competency at the time
party is entitled to judgment as a matter of law”). If counsel            of the crime and at the time of trial.
knew that it had positive, mitigating proof in the form of an
expert opinion that Thompson suffered from a mental illness             Memorandum Opinion dated February 17, 2000, at 54-55.
at the time of the offense such that it would have substantially
impaired his ability to conform his conduct to the                        This Court labored under the same misimpression that there
requirements of the law–information that the district court             was no evidence to establish that Thompson suffered from a
specifically indicated in its discovery order might entitle             serious mental disease or defect at the time of the offense:
Thompson to the relief he requested–then that information                   Moreover, not one of Thompson’s post-trial experts
should have been presented in response to Respondent’s                    have opined that Thompson suffered from organicity or
motion for summary judgment so as to prevent the grant of                 mental illness at the time of the crime or trial. Blair,
summary judgment in Respondent’s favor and against                        Thompson’s state post-conviction expert, also a clinical
Thompson.                                                                 psychologist with ties to Vanderbilt, declined to give an
  Here, both the district court and this Court were deceived.             opinion, stating simply that more information was
That is, both courts assumed that probative evidence as to                needed. Significantly, she did not fault the testing
Thompson’s mental illness at the time of the crime did not                procedures used by MTMHI or Copple, but merely stated
exist because counsel failed to present it.16 Based on the                that they were not extensive enough. Indeed, she
natural assumption that such evidence did not exist because               performed many of the same tests. Similarly, neither
                                                                          Crown nor Sultan ever expressed an opinion that
                                                                          Thompson was mentally ill at the time of the crime. In
    16
                                                                          fact, Crown stated that he was not asked to render such
       This seems to be a pretty natural assumptio n, given counsel’s     an opinion. . . . On the other hand, Crown found
obligation to zealously represent their client.
No. 00-5516                           Thompson v. Bell      87   88    Thompson v. Bell                                   No. 00-5516

  Thompson competent in June 1998, which is consistent                ....
  with Copple’s findings and the MTMHI evaluation in
  1985.                                                            Thompson has not presented any evidence of
                                                                   incompetence at the time of the crime or trial in either the
    Also, as the district court found, Thompson failed to          state or federal proceedings. As previously noted, none
  submit any medical records or proof to any court that he         of Thompson’s experts have stepped up to the plate on
  actually sustained the alleged head injuries or that they        the key issue of Thompson’s competence at the time of
  resulted in any permanent damage. Further, he has                trial.
  never submitted to any court any proof that he suffered
  from severe mental illness at the time of the crime.           Id. at 590-92 (emphases added).

Thompson, 315 F.3d at 589-90 (emphases added). That is not         In short, both the district court and this Court were mislead
all we said:                                                     into believing that significant mitigating evidence of
                                                                 Thompson’s mental illness at the time of offense did not
     Counsel has now had numerous opportunities via              exist. It quite clearly did exist, and that evidence was in
  expert testimony to establish that Thompson suffered           habeas counsel’s possession, via Dr. Sultan’s July 22, 1999
  from organic brain disease or mental illness at the time of    report and July 22, 1999, deposition, prior to the filing of
  the crime. And yet, at each opportunity, counsel fails to      Thompson’s response in opposition to Respondent’s motion
  secure an answer to the critical issue of whether              for summary judgment, which Thompson filed on July 29,
  Thompson was mentally ill at the time of the crime. In         1999 (DCTR 86), and prior to Thompson’s filing of
  essence, counsel is attempting to rely on, as proof, two       Supplemental Brief in Support of Response in Opposition to
  inferences: 1) because Thompson allegedly suffered             Respondent’s Motion for Summary Judgment, on September
  head injuries, he must have suffered brain damage, and         14, 1999.17 (DCTR 104).
  2) because he is currently suffering from schizo-affective
  disorder, he must have been suffering from mental illness        This leaves the third factor. Here the question is whether
  at the time of the crime. But inferences are not proof, as     habeas counsel’s conduct in failing to present available
  even Thompson’s experts seem to recognize, for each            evidence of Thompson’s mental illness at the time of the
  and every one fails to automatically take the leap from        crime was intentionally false, wilfully blind to truth, or in
  these inferences to the conclusion that he was mentally        reckless disregard for the truth. In his affidavit attached to
  incompetent at the time of the murder. However, absent         Thompson’s Rule 60(b) motion, Kissinger states that “an
  some evidence of organic brain damage or mental illness        extremely heavy capital habeas corpus caseload, including,
  at the time of the crime, trial counsel cannot be deemed       but not limited to, Mr. Thompson’s case” caused him to make
  ineffective for failing to discover something that does not
  appear to exist. As we held in Lorraine v. Coyle, 291
  F.3d 416, 436 (6th Cir. 2002), “[i]t simply cannot be said          17
                                                                        In his opposition to Respondent’s motion for sum mary judgm ent,
  that trial counsel’s conduct fell below an objective           Thompson asked the court for an order allowin g him to file a brief in
  standard of reasonableness under Strickland simply             regard to the issues of exhaustion of state remedies. The district court
  because the leads [of possible brain damage] led               granted Thomp son’s request via written order on September 8, 1999,
  nowhere.”                                                      directing Thompson to file his brief no later that Tuesday, September 14,
                                                                 199 9.
No. 00-5516                           Thompson v. Bell     89    90   Thompson v. Bell                             No. 00-5516

“errors,” thereby suggesting that his conduct in this matter       In his petition for post-conviction relief in state court,
was negligent and not intentional or in reckless disregard for   Thompson claimed that trial counsel failed to adequately
the truth.                                                       investigate his background for the existence of mitigating
                                                                 evidence, and sought to hire a licensed psychologist or
  Our incredulity over this explanation stems from a simple      psychiatrist and an investigator. Attached to that request was
premise: how could counsel possibly forget or overlook the       the affidavit of Dr. Gillian Blair, a clinical psychologist, who
critical piece of evidence–i.e., an expert opinion that          specifically stated that if Thompson were suffering from a
Thompson suffered from a significant mental disease or           neurological or psychological impairment bipolar affective
defect at the time of the offense–that both trial and habeas     disorder or schizoaffective disorder, it was likely that some
counsel purportedly sought for over a decade in both the state   degree of that impairment would have existed at the time of
and federal courts, and which habeas counsel obtained at the     the offense and would have been a significant factor in
very latest (but obviously much sooner) seven days prior to      determining whether Thompson could have conformed his
the filing of Thompson’s response to Respondent’s                conduct to the requirements of law. Dr. Blair stated that
dispositive motion?                                              Thompson needed a full psychological evaluation. She
                                                                 testified to the same effect at the state post-conviction
   Virtually every pleading in both the state and federal        hearing. The state post-conviction court denied Thompson
proceedings is directed toward this end. Within two months       funds, however.
of the murder, trial counsel requested a mental evaluation of
Thompson to determine his mental capacity at the time of the        On appeal to this Court, habeas counsel asserted that the
crime. Within three months of the murder, trial counsel filed    state post-conviction courts placed Thompson in a Catch-22
a supplementary motion for a psychiatric examination and a       situation by denying them the funds needed to obtain the
neurological examination to determine if Thompson was            requisite expert opinion and then finding no ineffective
suffering from a mental illness on the date of the offense.      assistance because there was no proof in the record that
Less than three months after the offense, Thompson was           counsel failed to present any available evidence of a mental
referred to the Multi-County Mental Health Center for a          disease or defect. And habeas counsel went out and hired a
forensic evaluation to make that determination, and a week       neuropsychologist and a clinical psychologist. Dr. Sultan
later the trial court entered another order directing Thompson   conducted the very examination and evaluation that Dr. Blair
to undergo a forensic evaluation at MTMHI.                       outlined was necessary but could not provide because of lack
                                                                 of funds. Dr. Blair stated that “the most important thing that
  Trial counsel were not content with the state’s evaluation     would be necessary would be a full history and full medical
and requested funds to hire an independent psychiatrist. They    records of Mr. Thompson prior to the commission of the
ultimately hired Dr. Copple. Dr. Copple examined Thompson        offense.” She further indicated that from her limited review,
principally to see what he would be capable of doing in a        Thompson’s social history, his childhood and upbringing
prison setting and did not perform a thorough review of          were “sketchy.”
Thompson’ social history. Amazingly, habeas counsel
faulted trial counsel’s choice of Copple because he did not         Dr. Sultan found the “other facts” Dr. Blair indicated would
conduct a thorough review of Thompson’s family history and       be necessary to develop an opinion as to Thompson’s
medical background.                                              condition at the time of the offense. In her report, Dr. Sultan
                                                                 stated that she “initiated a very extensive review of legal,
No. 00-5516                            Thompson v. Bell      91    92    Thompson v. Bell                              No. 00-5516

military, medical, prison, and psychiatric/psychological             Despite the representations in his initial witness list, as
records.” Dr. Sultan also interviewed several individuals who      Respondent discerned on July 20, 1999, Dr. Crown had no
provided significant information about Thompson’s                  opinion as to Thompson’s mental state at the time of the
childhood and family background, including Thompson’s              offense. In other words, at the time of Dr. Crown’s
grandmother, older sister, and a girlfriend. These witnesses       deposition, eight months after the initial witness list was filed
revealed an abusive, traumatic childhood and clear signs of        and several days before Thompson’s response to the summary
schizophrenia onset in early adulthood prior to the offense.       judgment was due, Dr. Crown had not been asked to form an
Based on that review, Dr. Sultan opined that Thompson              opinion on the issue he was purportedly retained to evaluate
displayed significant signs of mental illness from the time he     and the key issue in the case. Dr. Crown’s deposition
was a small child and manifested symptoms of schizo-               testimony verifies that habeas counsel never asked him to
affective disorder in early adulthood, prior to the 1985           render an opinion as to Thompson’s mental state at the time
offense.                                                           of the murder. Furthermore, even though Dr. Crown
                                                                   concluded that Thompson had a schizo-affective disorder,
   The principal bases for Thompson’s petition and amended         which he acknowledged tends to develop in late adolescence
petition for writ of habeas corpus were his allegations that       to early adulthood, and which he further acknowledged
trial counsel were ineffective for: (1) failing to perform a       appeared to have begun in the last stages of Thompson’s
reasonable investigation of his background and mental health       military career, Dr. Crown stated that he was not asked, and
history; (2) failing to secure adequate expert assistance          had not pinpointed, the onset date.
regarding his mental health; and (3) failing to reasonably
investigate and challenge Thompson’s competency at the time           In contrast, in the initial witness list, Petitioner stated that
of the offense. Thompson also claimed he was denied                Dr. Crown would testify that he had “been provided with
funding for mental health and investigative experts during the     background information regarding Petitioner’s medical and
state trial and post-conviction proceedings.                       social history,” and “administered a battery of indicated
                                                                   neuropsychological tests,” which would “indicate that
   Thompson’s initial witness list represented that Dr. Crown      Petitioner suffers from organic brain damage.” The witness
would testify that Thompson’s brain damage, as well as his         list further represents that Dr. Crown would testify “that the
medical and social history, are consistent with schizophrenia.     brain damage observed, as well as Petitioner’s social and
The initial witness list further indicated that Dr. Sultan would   medical history, is consistent with schizophrenia,” and that
testify that Thompson suffers from schizophrenia and did so        “Petitioner’s brain damage substantially impaired the ability
at the time of the offense. Moreover, from the outset habeas       of the Petitioner to distinguish between right and wrong
counsel represented to the district court, through the             and/or to conform his conduct to the requirements of the law.”
pleadings, that Thompson would establish that trial counsel        The disparity between Dr. Crown’s actual deposition
failed to present available mitigating evidence. Indeed, the       testimony and the witness list is patent.
district court’s November 1998 ruling affirming the
magistrate judge’s November 2, 1998, discovery order                 Less clear is why habeas counsel did not ask Dr. Crown for
explicitly stated that if the facts were developed to show that    an opinion on Thompson’s mental status at the time of the
Thompson’s mental health should have been introduced as            offense.     Habeas counsel’s attempt, in response to
mitigating evidence, Thompson might be entitled to relief.         Respondent’s motion for reimbursement of deposition costs,
                                                                   to shift the burden of procuring such an opinion from Dr.
No. 00-5516                               Thompson v. Bell        93    94   Thompson v. Bell                            No. 00-5516

Crown to Respondent, is absolutely audacious. Habeas                       Most troubling of all, of course, is the presence and
counsel actually argued that Respondent had the burden of               substance of Dr. Sultan’s testimony. Dr. Sultan conducted the
procuring that opinion from Dr. Crown. How ironic that                  background investigation, interviewed Thompson’s family
habeas counsel would suggest that procuring such expert                 members and provided the exact diagnosis that habeas
opinion testimony was somehow the Warden’s burden, given                counsel claims trial counsel was under a constitutional
that habeas counsel equally faulted defense trial counsel for           obligation to discover and present. And she provided the
failing to procure and present same. We have a hard time                service at Kissinger’s request. The record reflects that habeas
believing that, on the brink of summary judgment, habeas                counsel were in communication with Dr. Sultan as early as
counsel somehow got confused over who had the burden in                 August 1998. In an affidavit signed on February 10, 1999,
the habeas proceeding of proving ineffective assistance of              attached to Thompson’s ex parte motion for a temporary
trial counsel.                                                          mandatory restraining order, Dr. Sultan alleged that she had
                                                                        reviewed hundreds of pages of records and documents about
  More outrageous is Kissinger’s representation on behalf of            Thompson’s psychiatric, military, and legal history, and had
his client in that same response that Dr. Crown’s statement             first met with Thompson on August 20, 1998. Kissinger,
substantially conformed to the information contained in the             through Chavis, asked Dr. Sultan for that opinion, received a
initial witness list because Dr. Crown stated “in passing” in           report with that exact conclusion on July 22, 1999 and heard
his deposition that Thompson suffers from a bipolar disorder            Dr. Sultan testify to that effect on July 22, 1999. After all,
of a self-afflicted type and that the onset of this affliction was      Kissinger was counsel of record for Thompson at Dr. Sultan’s
prior to the alleged offense. As review of Dr. Crown’s                  deposition. How then could counsel fail to include any
deposition testimony makes clear, Dr. Crown stated                      mention of Dr. Sultan’s expert opinion in Petitioner’s
Thompson has a schizo-affective disorder, which typically               response brief to Respondent’s motion for summary
occurs in early adulthood, but Dr. Crown also made clear that           judgment? It is virtually inconceivable to think that counsel
he was not asked to opine whether Thompson actually                     could overlook this information as he was preparing the
manifested symptoms prior to the offense and further stated             response to the summary judgment motion. Dr. Sultan’s
that he had “no real pinpoint.”                                         deposition testimony and accompanying report were obtained
                                                                        a mere seven days before the brief was filed. How could
  Again we cannot escape the irony of Kissinger’s assertions            counsel possibly forget about its best evidence, and in such a
in that motion that Respondent either made “a strategic                 short span of time?
decision” not to procure Dr. Crown’s opinion regarding
Thompson’s mental health at the time of the offense, or that               Habeas counsel’s conduct following the district court’s
Respondent “forgot to do so.” 18                                        issuance of its opinion granting summary judgment to
                                                                        Respondent seriously undercuts the possibility that habeas
                                                                        counsel’s account is believable. On March 2, 2000, two
    18
       Also disturbing was habeas counsel’s parallel motion for         weeks after the district court granted summary judgment to
reimbursement costs for the deposition of Dr. Blau. Habeas counsel      Respondent in an opinion which explicitly stated that
scheduled that deposition prior to the depositions of D rs. Crown and   Thompson had failed “to provide this Court with any
Sultan, knowing full well that all the information Respondent had was   significant probative evidence that Thompson was suffering
what habe as counsel ha d stated in the initial witness list. Such      from a significant mental disease that should have been
gamesmanship, on the eve of the due date o f Thompson’s response to
Resp ond ent’s mo tion for summary jud gment, is inexcusable.           presented to the jury during the punishment phase as
No. 00-5516                                 Thompson v. Bell         95    96   Thompson v. Bell                            No. 00-5516

mitigating evidence,” Thompson filed a motion to alter or                     Then, for the first time, counsel offered to supplement the
amend judgment. Habeas counsel claimed that it filed that                  record with Dr. Sultan’s report and deposition testimony upon
motion “[i]n an effort to fulfill his duty to both his client and          its enlightened view that “Dr. Sultan’s opinions certainly are
the Court.” Yet the motion does not attempt to present the                 directly relevant to the mental health related claims,” and
“forgotten” evidence, Dr. Sultan’s opinion. Instead, it merely             further acknowledgment that “[c]ounsel for Mr. Thompson
presented two clarifying arguments. Ironically, habeas                     engaged in Dr. Sultan’s services for the sole purpose of
counsel stated that while not waiving or conceding any of the              offering her opinion to support his constitutional claims.”
other arguments previously raised, the motion centered on                  Habeas counsel argued excusable neglect based on a heavy
these two issues because they went “to the very integrity of               caseload and a disorderly office, and further stated that
the judicial process.” If counsel’s “failure to remember” Dr.              Kissinger “was under the mistaken belief” that the evidence
Sultan’s testimony, after a pointed reminder by the district               was in the record. In a footnote, Kissinger further explained
court that “Petitioner had two different psychological                     his “mistaken belief” as follows: Because Respondent had
evaluations and both resulted in findings of competency at                 placed Dr. Crown’s deposition testimony and accompanying
the time of the crime and at the time of trial,” is not reckless           report in the record, as part of its motion for reimbursement
disregard for the truth, what is?                                          costs, and because Respondent had moved for costs in hiring
                                                                           its own mental health expert, Dr. Blau, on the grounds that
   And habeas counsel apparently continued to forget about                 Blau’s services were unnecessary as Petitioner had no experts
Dr. Sultan’s opinion. Habeas counsel waited still another                  to support the mental health related issues, Kissinger
year to bring this information forward. And it waited for a                apparently assumed that Respondent would also have
year from the district court’s denial of Thompson’s motion to              included the deposition testimony and report of Thompson’s
alter or amend judgment, not one year from the date of the                 only other mental health expert to bolster its request for
underlying judgment. As the district court pointed out, this               deposition costs.
motion was untimely, because the plain language of Rule
60(b) sets an absolute time limit on the motion of one year in                This explanation makes little sense. In the first place, Dr.
addition to the requirement that the motion be filed within a              Sultan’s deposition testimony and accompanying report,
reasonable time. Fed. R. Civ. P. 60(b). The district court                 unlike Dr. Crown’s, do support the mental health related
therefore lacked the authority to grant relief. See Ackerman               allegations and is consistent with the witness list statement.
v. United States, 340 U.S. 193, 197 (1950) (“A motion for                  More importantly, Kissinger’s explanation seeks to obscure
excusable neglect as provided in Rule 60(b)(1) must, by the                the fundamental fact that Thompson’s habeas counsel had an
rule’s terms, be made not more than one year after the                     independent responsibility to both Thompson and the court to
judgment was entered.”). Again, we find it curious that                    present Dr. Sultan’s opinion in Thompson’s opposition to
habeas counsel’s remembrance of depositions past came just                 Respondent’s motion for summary judgment, and ultimately,
a hair too late to fit within the parameters of Rule 60(b).19              to meet Thompson’s burden of establishing that he was
                                                                           entitled to the requested relief, a grant of the writ of habeas
                                                                           corpus based on constitutional error. Kissinger’s attempt to
    19
                                                                           shift the “blame” to Respondent is inexcusable.
       As reflected in its order denying Petitioner’s motion to alter or
amend judgment, the district court obviously sensed that something was       Furthermore, habeas counsel’s filing of an obviously
amiss, but its hands were tied by counsel’s strategic choice to file an
untimely Rule 6 0(b)(1) m otion.
                                                                           untimely Rule 60(b) motion can be conceived of as “a fraud
No. 00-5516                                    Thompson v. Bell          97     98     Thompson v. Bell                                       No. 00-5516

perpetrated . . . so that judicial machinery cannot perform in                                 IV. Response to Majority Opinion
the usual manner.” That is precisely what happened in this
case. The district court was prevented from administering full                      The majority opinion agrees that Dr. Sultan’s opinion
justice because it lacked all of the vital information necessary                requires us to vacate the district court’s grant of summary
to afford the proper relief.                                                    judgment in favor of respondent. However, it posits that my
                                                                                opinion “goes too far in its accusations of fraud on the court;”
   As exhaustively detailed above, the essence of Thompson’s                    on the grounds that “while his [my] explanation for the
claim throughout the entire course of the state and federal                     omission of the Sultan deposition from the official record
proceedings was that he was suffering from a mental disease                     before the court is possible in the narrowest sense, the power
or defect at the time of the offense. Habeas counsel criticized                 of this court should not be used to make such accusations
trial counsel for failing to procure this evidence, and was                     without more definite proof than the factual record of this
aware from the outset how it needed to establish ineffective                    case reveals.” Rather, the majority would find that the more
assistance of trial counsel at mitigation, as reflected by its                  plausible explanation is that “a genuine mistake was made,
early decision to retain Drs. Crown and Sultan. Habeas                          one which was not realized until a different attorney looked
counsel then did exactly what it faulted trial counsel for                      at the case,” and that “[t]o conclude otherwise is to disbelieve
failing to do.20 That is, habeas counsel conducted the                          sworn testimony by an officer of the court.”
investigation that it alleged trial counsel were constitutionally
ineffective for failing to perform. That investigation revealed                   The majority opinion correctly recognizes that, at this
that Thompson was suffering from a serious mental illness at                    juncture, I am inclined to disbelieve Kissinger’s
the time of Brenda Lane’s murder. It also revealed significant                  representations of excusable neglect because I find it utterly
aspects of Thompson’s social history long recognized as                         implausible that counsel could forget about his most
mitigating in other capital cases. This Court simply cannot, at                 important piece of evidence, expert testimony assessing
this juncture, accept counsel’s explanation that it forgot to                   Thompson’s mental state at the time of the crime, given that
remember that critical evidence until slightly one year after
judgment. There appears to be no acceptable excuse for
habeas counsel’s behavior.21
                                                                                To conclude otherwise is to disbelieve sworn testimony by an officer of
                                                                                the court, and to assume that habeas counsel conspired to conceal
                                                                                evidence beneficial to their client, for no discernible reason.”
    20                                                                               Once again, if one reminisce s, the cap ital case o f Byrd v. Collins, 209
        Trial counsel cannot be faulted for relying on the evaluation of a      F.3d 486 (6th Cir. 2000), cert. denied, 531 U.S. 1082 (2001) (first habeas
credentialed expert which was entirely consistent with the evaluation of        petition), and In re Byrd, 269 F.3d 54 4 (6th Cir. 2001) (successive
an inpatient psychiatric team specializing in forensics that also concluded     petition) comes quickly to mind. There, habeas counsel sat for twelve
Thompson was not mentally ill. Nonetheless, as previously discussed,            years on an affidavit by a codefendant that allegedly would have
trial counsel’s failure to investigate and present Thomp son’s social history   established petitioner Byrd ’s actual innocence, an d did not file their
provides an independent basis for finding ineffective assistance of counsel     second habeas petition introducing the evidence and “actual innocence”
at mitigation under Wiggins.                                                    argument until one w eek b efore the petitioner’s scheduled execution date.
    21
                                                                                On this basis, a majority of the judges in regular active service invoked
        W e can only assume that habeas counsel planned to unve il Dr.          the inherent equitable powers of the court to stay the p etitioner’s
Sultan’s opinion on the eve of Thompson’s execution. Judge Moore                execution and remand the matter for the development of a factual record.
differs, conc luding that “more than likely, a genuine mistake was made,        See In re Byrd, 269 F.3d 585 (6th Cir. 2001). So there may be a rational,
one which was not realized until a different attorne y looked at the case.      strategic, calculated reason for hab eas co unsel’s purpo rted ne gligence.
No. 00-5516                                    Thompson v. Bell          99     100 Thompson v. Bell                                       No. 00-5516

his principal strategy throughout the habeas proceedings was
to claim Sixth Amendment ineffective assistance of counsel
based on trial counsel’s failure to obtain that very evidence.                     psychiatrist.    Respondent moved for summ ary jud gment,
From day one, habeas counsel knew that in order to make a                          asserting only that the claims were either procedurally barred or
successful constitutional challenge, he had to acquire an                          the state court decision was no t contrary to or an unreasonable
expert opinion to the effect that Thompson was suffering from                      application of federal law (A px. 442) beca use D r. Blair had not
                                                                                   offered a final opinion on Thompson’s mental health at the time
schizophrenia at the time of the offense, as reflected by the                      of the offense (which, of course, she was prevented from doing
fact that counsel hired two experts who would purportedly say                      by the post-conviction court’s denial of funding). Respondent
that. Furthermore, even assuming short-term memory loss                            further asserted Thompson was not entitled to present further
due to a crushing workload, Kissinger sat through Dr.                              evidence in support of his claims in a federal court evidentiary
Sultan’s deposition a mere seven days before he signed and                         hearing. Thomp son responded to the summary judgment motion
filed the response to the summary judgment motion. On the                          by asserting that he had not failed to develop the factual basis of
                                                                                   his claim; instead, the state court had, through the after-the fact
eve of its filing, how could he, how did he, forget what Dr.                       application of procedural rules governing the appointment of
Sultan said, and utterly fail to make the slightest allusion to                    experts in state post-conviction cases, p revented him from fully
her expert opinion–especially since she provided precisely                         developing his claim in state court and that he was therefore
what he needed to support his ineffective assistance claim?                        entitled to an evidentiary hearing to present further evidence in
                                                                                   suppo rt of his claims.
                                                                                        W hen the district court issued its decision granting
  Even assuming that Kissinger innocently suffered from                            Resp ondent’s motio n for sum mary judgment, however, it by-
virtual amnesia during this critical phase of the federal district                 passed Resp ond ent’s argument as well as Thomp son’s response
court proceedings, and appellate habeas counsel Dana Hansen                        and instead held that the claim would be denied be cause
caught the error when she took over the appeal and tried to                        Thompson had failed to present affidavits or other evidence
correct it, why then did she fail to appeal the district court’s                   (Apx. 711). The district court never provided T hom pson with
                                                                                   notice of its intentio n to rely on this ground nor did it provide
denial of the Rule 60(b) motion or otherwise seek to                               him with an opportunity to present such evidenc e prio r to
supplement the record on appeal under Fed. R. App. 10(e)                           entering judgment against him. Thompson had such evidence in
given the obvious importance of that testimony and the                             his possession and, contrary to the findings of the district co urt,
gravity of the situation before us?22                                              most of it was in the record.
                                                                                        Habeas counsel had a neuropsychologist, Dr. Barry Crown,
                                                                                   examine Thomp son. T he result was a finding of organic brain
    22
                                                                                   damage, secondary to schizo-affective disorder, bipolar subtype.
         I am also troubled by the fact that in Thomp son’s petition for writ      (Apx. 711).
of certiorari, signed by Dana C. Hansen Chavis, as counsel of record for                ....
Petitioner, Hansen refers to Dr. Sultan’s opinion reg arding Thom pson’s                Additiona lly, forensic psychologist Dr. Faye Sultan
as if it were properly presented to the district court and made part of the        repo rted:
record. In that brief, Hansen Chavis represents as follows:                             It is my opinion that Mr. G regory T homp son is most
            Thomp son’s habeas corpus alleged ineffective assistance of                 app ropriately diagnosed , acco rding to the D iagnostic
      trial counsel via the failure to adeq uately inve stigate and o btain             and Statistical M anual of Mental D isorders, Fo urth
      adequate expert assistance regarding T hom pson’s mental health                   Edition, as having Schizoaffective Disorder, Bipolar
      at the time of the offense and failure to direct an expert inquiry                Type. As is typica l of this illness, symptoms became
      into mental health mitigation and to obtain adequate expert                       apparent in early adulthood. Thompson was suffering
      assistance regarding Thompson’s mental health at the time of the                  serious mental illness at the time of the 1985 offense
      offense and failure to direct an expe rt inquiry into mental health               for which he has been convicted and sentenced. This
      mitigation and to obtain rebuttal evidence against the State’s                    mental illness would have sub stantially impaired
No. 00-5516                                      Thompson v. Bell 101         102 Thompson v. Bell                                         No. 00-5516

                                                                                 Kissinger’s and Hansen’s unusual performance is, and
                                                                              should be criticized as, inadequate, and should not escape
           Thomp son’s ability to conform his conduct to the                  close judicial scrutiny. Both of these attorneys are federal
           requirements of the law.                                           defenders, specializing in death penalty cases. If their
                Further, Thom pson was the victim of severe                   conduct was negligent, then perhaps they should not perform
           childhood emotional abuse and physica l neglect. His               this kind of work in the future. If their conduct was
           family back ground is best described as highly
           neglectful and economically deprived. Thompson
                                                                              something more than that, then appropriate disciplinary action
           repeatedly witnessed episode s of violence d uring his             should be taken. Furthermore, my and the majority opinion’s
           childhood in which one family member assaulted or                  disagreement over the proper characterization of this conduct
           brutalized another. There are significant aspects of               is precisely why there is a need for the district court or a duly-
           Thomp son’s social history that have been recognized as            appointed Special Master to conduct a full evidentiary hearing
           mitigating in other capital cases (R. 133, Attachment A,           on this issue to ascertain the truth.
           Sultan report, p. 6).
     Despite this unrebutted expert testimony the district court noted
     from the trial court record tha t “[t] he tea m a t Cen tral Sta te         The majority opinion correctly states that we could not
     concluded there was no organicity (brain da mage) and Dr.                consider Dr. Sultan’s deposition testimony because it was not
     Copple [the industrial p sycholog ist] fo und no in dication o f brain   made a part of the record before the district court, and beyond
     damage” (Apx . 701 ) and ruled, due to a lack of affidavits              the scope of our appellate review. See Lippi v. City Bank, 955
     “Thompson has failed to provide any significant probative
     evidence which w ould ma ke it necessa ry for this Cou rt to resolve
                                                                              F.2d 599, 604 (9th Cir. 1992). See also United States v.
     a factual dispute” (Apx. 711). The petition was dismissed.               Barrow, 118 F.3d 482, 487 (6th Cir. 1997) (stating that, “[i]n
Thomp son’s P etition for Certio rari, p.1 4-16 (emp hasis ad ded ).          general, the appellate court should have before it the record
     Hansen also rep resented that:                                           and facts considered by the District Court”); cf. Sovereign
           The district co urt enga ged in fact finding to grant              News Co. v. United States, 690 F.2d 569, 571 (6th Cir. 1982)
     Resp ond ent’s motion by crediting the opinions of Respondent’s
     experts over Thompson’s experts and by disregarding the
                                                                              (stating that “[a] party may not by-pass the fact-finding
     findings of Thomp son’s experts that he was psychotic when he            process of the lower court and introduce new facts in brief on
     committed the offense (A px. 657). The district co urt also d id         appeal”). Furthermore, appellate habeas counsel did not file
     not give Thom pson an oppo rtunity to co rrect ce rtain                  a Fed. R. App. P. 10(e) motion to supplement the record 23
     fundamental misconcep tions up on wh ich the d istrict court’s
     decision was bas ed . T he district court erred further by making
     findings that were unsupported or contradicted by other
     evidence, and drawing inferences adverse to Tho mpson, contrary
     to well-settled summary jud gment standa rds.                                 jury during the punishment phase as mitigation evidence.” Id.
Id. at 24.                                                                    Id. at 28.
     Furthe r, Hansen asserted that:                                               In short, the brief before the United States Supreme Court accuses the
           The district court disregarded the rulings of Thom pson’s          district court of ignoring probative evidence that it did not even have
     experts–in particular Dr. Blair’s opinion that Thompson likely           before it in any form when it granted summ ary jud gment to Respo ndent.
     was schizo phrenic whe n he co mmitted the o ffense, D r. Sultan’s           23
     opinion that Thompson suffers from schizo-affective disorder                     Federal Rule of Appellate Procedure 10(e) allow s the appellate
     and that his mental problems began wh ile he was in the                  record to be sup plemented “if anything material to either party is omitted
     military–i.e. long b efore the offense. Instead the court cursorily      from or misstated in the record by error or accident.” Fed. R. App. P.
     concluded Thom pson had not provided “any significant                    10(e). It “ is clear from the ru le’s wording [that] ‘[t]he purpose of the
     probative evidence that Thompson was suffering from a                    rule is to allow the [ ] court to correct omission s from or misstateme nts in
     significant mental disease that should have been presented to the        the record for appe al, not to introduce new evidence in the court of
No. 00-5516                                   Thompson v. Bell 103             104 Thompson v. Bell                                        No. 00-5516

nor make any reference to Dr. Sultan’s July 1999 testimony                     appeal the district court’s 60(b) ruling. It is disingenuous for
in the appellate brief.24 Nor did appellate habeas counsel                     the majority opinion to suggest that we “had” the deposition
                                                                               before us at the time of the initial review and therefore had
                                                                               not just recently “unearthed” it. Indeed, had the deposition
app eals.’” Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d
                                                                               had been properly placed before this Court, we could have
1007, 1012 (6th Cir. 2003 ) (quoting S&E Shipping Corp. v. Chesapeake          exercised our equitable powers at that time. Our previous
& O. Ry. Co., 678 F.2d 636, 64 1 (6th Cir. 1982) (alteration in original).     decision was based on the absence of the evidence. The only
Dr. Sultan’s July 29, 1999 testimony and accompan ying report do not           reason we have it now was because I conducted an
qualify as omissions from the record because Kissinger never referenced        independent review of the record.
her expert opinion on the issue o f T hompson’s mental status at the time
of the offense; i.e., he did not rely on that evidence as part of meeting
Thomp son’s burden under Fed. R. C iv. P. 56.
                                                                                  The majority opinion holds that we can exercise our
                                                                               inherent equitable power to supplement the record on appeal.
    24
        Tho mpson’s appellate brief, prepared by Dana C . Hansen,
                                                                               Here I agree, because I feel that the “special circumstances”
provides merely that:                                                          of this case–a fortuitous discovery that, if left unaddressed,
           Mr. Thompson then filed a petition for writ of habeas corpus        will result in a grave miscarriage of justice–justifies our
     under 28 U .S.C.A. § 2254 (W est 2000), claiming inter alia               invocation of this authority.      Indeed, by reviewing Dr.
     ineffective assistance of trial counsel via the failure to o btain        Sultan’s opinions on the merits and altering the opinion, that
     adequate expert assistance regarding Mr. Thompson’s mental
     health at the time of the offense. Respondent moved for
                                                                               is what I did in my capacity as a judicial officer. However,
     summary judgment while conc eding that this po int was properly           our inherent equitable authority to review material that was
     cognizab le on its merits (R. 82: M otion for Summary Jud gment,          never reviewed by the district court to right a very grave
     p. 18-19; Apx. 442 ).                                                     wrong in this case should not immunize Kissinger’s and
           The defense then had an other specialist, Dr. Crown,                Hansen’s professional performance from further examination.
     examine M r. Thomp son. T he resu lt was a finding of organic
     brain dam age, secondary to schizo-affective disorder, bipolar
                                                                               Thus, although it provides a separate basis for jurisdiction,
     subtype. (R.1 24: M emo randum, p. 54; A px. 711).                        those inherent equitable powers should not be used to cover
Final B rief of Appe llant, Gregory Thomp son, p. 14.                          up potentially fraudulent conduct by counsel on the court by
     Later, Han sen asse rted o n behalf of T hom pson that                    federal habeas counsel. Again, though, this matter needs a
           [t]he district court clearly weighed the partial testimony of       thorough examination in the district court.
     Drs. Crown and Blair versus that of the state experts and made
     findings of fact in favor of Resp ondent. (Id. at 53-54; Apx.
     710). This is improper at the summary judgment stage.
                                                                                 Finally, if further investigation into the attorneys’ conduct
     Anderson, supra. The district court did no t view the facts in the        here is not pursued, this could create dangerous precedent.
     light most favorable to Mr. Thom pson to determine whether any            That is, it virtually invites habeas counsel to save their best
     “genuine issue of material fact” appeared on which a reasonable
     fact-finder could return a verdict for Mr. Thomp son.
Id. at 42.
     Hansen never men tions Dr. Sultan’s name or refers to her opinion         crime and trial, Hansen, presented, inter alia, ample quotations from and
in the brief.                                                                  references to Dr. Sultan’s testimony and rep ort, attached to T hom pson’s
     However, Hansen makes ample reference to Dr. Sultan’s testimony           Rule 60(b) motion. She failed to indicate, however, that said evidence
and report in Thomp son’s petition for rehearing.               See Gregory    was not properly presented to the district court, and therefore never part
Thomp son’s Petition for Rehearing and Suggestion for Rehearing En             of the record for review to this Court. She did not indicate that she failed
banc In a Capital Case, pp. 12-22. In fact, in support of the assertion that   to appeal the d istrict court’s Rule 6 0(b) ruling. She did not invoke the
Thompson presented evidence that he was mentally ill at the time of the        inherent equitable p owers of the C ourt.
No. 00-5516                                Thompson v. Bell 105

evidence for last, thereby undermining principles of finality
and the AEDPA. And, at the same time, it potentially
encourages counsel to engage in risky strategy, because there
is no guarantee that any given panel of the Sixth Circuit will
bypass the strict procedural and substantive requirements of
the AEDPA simply because the matter happens to involve the
death penalty. Here, but for the chance discovery of the
Sultan affidavit, this matter could have gone in a different
direction, and Thompson might well have been executed as
scheduled on August 19, 2004.25
                          V. Conclusion
   In the face of this record, Kissinger’s explanation is
implausible, and if not intentionally false, most certainly
appears to be in reckless disregard for the truth. Meanwhile,
a man’s life hangs in the balance. As in Demjanjuk, we have
“acted pursuant to our inherent power to protect the integrity
of the judicial process within this Circuit.” Demjanjuk, 10
F.3d at 356. Cf. Hazel-Atlas Glass Co., 322 U.S. at 244
(recognizing a court’s inherent power to grant relief, for
“after-discovered fraud,” from an earlier judgment,
“regardless of the term of [its] entry”). As part of the order of
remand, I would instruct the district court to conduct full
evidentiary hearings on both the issue of ineffective
assistance of counsel at mitigation and fraud upon the court.




    25
       Meanwhile, Gregory Thompson has been facing the true specter of
the death penalty since at least January 9, 2003. For this fundamental
reason, I feel that habeas counsel’s performance was truly, ho rribly,
ineffective.
