                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 18a0249n.06

                                                No. 14-5994


                            UNITED STATES COURTS OF APPEALS                                       FILED
                                 FOR THE SIXTH CIRCUIT                                     May 23, 2018
                                                                                       DEBORAH S. HUNT, Clerk
KURT ROBERT SMITH,                                              )
                                                                )
        Petitioner-Appellant                                    )
                                                                         ON APPEAL FROM THE
                                                                )
                                                                         UNITED STATES DISTRICT
v.                                                              )
                                                                         COURT FOR THE EASTERN
                                                                )
                                                                         DISTRICT OF KENTUCKY
COOKIE CREWS, Warden,                                           )
                                                                )
                                                                                      OPINION
        Respondent-Appellee.                                    )
                                                                )



     BEFORE: WHITE and STRANCH, Circuit Judges; MICHELSON, District Judge.

        JANE B. STRANCH, Circuit Judge.                     Kurt Robert Smith, a Kentucky prisoner

represented by counsel, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2254.

A jury convicted Smith of the wanton murder of his infant son, and he was sentenced to life

imprisonment. His conviction and sentence were affirmed on direct appeal and collateral review,

and the district court denied his § 2254 petition, finding the state court’s determination that trial

counsel’s performance was not deficient to be a reasonable application of Strickland v.

Washington, 466 U.S. 668 (1984). We granted a certificate of appealability (COA) to Smith on

two ineffective assistance claims, one regarding counsel’s failure to investigate a mental health

defense and the other her failure to investigate other mitigating evidence.




        
           The Honorable Laurie J. Michelson, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 14-5994
Smith v. Crews

       Despite reservations about the adequacy of Smith’s representation in his criminal trial,

we AFFIRM under the deferential standards of the Antiterrorism and Effective Death Penalty

Act (AEDPA).

                                   I.      BACKGROUND

       On the evening of March 20, 2001, Smith, then seventeen years old, was taking care of

his six-week-old son, Blake, at his father and step-mother’s home. Smith v. Commonwealth, No.

2008-CA-001135-MR, 2009 WL 2901223, at *1 (Ky. Ct. App. Sept. 11, 2009). The baby, still

recovering from an operation for a digestive problem, was up most of the night vomiting and

crying. Id. At around 4:00 a.m. on March 21, Blake woke up crying. Id. Exhausted, Smith

admittedly “lost it.” Id. He shook his son back and forth and dropped him on the floor. Id. The

baby cried and then appeared to fall asleep. Id. Unaware that he had caused Blake serious

injury, Smith placed him back in his bassinet. Id. When Smith next checked on Blake, the baby

“had lost his color” and “his lips had turned purple and blue,” causing Smith to realize Blake was

severely injured. Id. Later that morning, Smith’s step-mother, after hearing an “abnormal” cry

from Blake, found Smith holding his son and called 911. Id. Blake was pronounced dead on

March 23, 2001. Medical evidence established that Blake had suffered fatal head injuries that

were consistent with blunt force trauma and shaken-baby syndrome. Id.

       At trial, Smith admitted he caused Blake’s death. Id. The Commonwealth produced

evidence, however, that Smith had initially attempted to conceal his guilt, and the jury heard

testimony regarding previous questionable conduct by Smith towards Blake, including screaming

and that the baby sustained a bruised nose while in Smith’s care. Id. The jury convicted Smith

of wanton murder, and he was sentenced to life imprisonment. Id. at *2. The Kentucky




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Supreme Court affirmed his conviction on direct appeal. Smith v. Commonwealth, No. 2002-SC-

0293-MR, 2003 WL 22415620 (Ky. Oct. 23, 2003).

         Smith then filed a post-conviction motion, originally denied by the state trial court

without an evidentiary hearing, alleging three claims of ineffective assistance from his trial

counsel. Smith, 2009 WL 2901223, at *2. The Kentucky Court of Appeals affirmed in part, and

reversed in part and remanded to the trial court for an evidentiary hearing on two of the

ineffective assistance claims—one based on counsel’s failure to investigate Smith’s mental

health at the time of the offense, and the other on her failure to investigate and present mitigation

testimony at the penalty stage of the trial. Smith v. Commonwealth, No. 2006-CA-000064-MR,

2007 WL 1194688, at *5 (Ky. Ct. App. Apr. 13, 2007).

         At the evidentiary hearing, held on October 4, 2007, Smith’s trial counsel and four

potential mitigation witnesses testified. Smith, 2009 WL 2901223, at *3. Smith’s motion for

funds to retain a mental health expert was held in abeyance pending determination of whether

counsel’s decision not to employ an expert was “trial strategy or an abdication of advocacy.” Id.

at *3.

         Trial counsel, who had previously represented Smith in a case where he was charged with

and acquitted of marijuana possession, explained her investigation and trial strategy. Id. She

remembered talking to Smith’s mother, father, stepmother, sister, stepbrother, and other family

members and friends, and had “feelers” at the institution where Smith was incarcerated that

would have alerted her to potential mental health issues. Id. at *3–4. She also reviewed

documents related to Smith’s background—his custodial evaluations, parents’ divorce file,

school records, juvenile transfer documents, and dispositional reports from two previous juvenile

convictions. Id. at *3. Counsel admitted difficulty coming up with an effective strategy—


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largely because there was no question as to Smith’s guilt, and he had been contradictory and

untruthful in prior statements to police. Id. She ultimately decided the best trial strategy would

be to humanize Smith in front of the jury by showing that, while trying his best to parent a baby

with medical problems, he was simply too young and immature for such responsibility and

pressure, which caused him to “snap.” Id. at *4. She also chose to put Smith on the stand in the

hope that he would show genuine remorse—despite knowing that Smith was “never completely

honest with her” about what had happened. Id. at *3–4.

       When asked whether she had considered consulting a mental health expert, counsel

testified that she deliberately decided not to because “[she] never saw anything that made [her]

think he was suffering from a mental illness as defined by Kentucky law”: there was no

indication that Smith was suffering from a “mental illness or mental[] retardation” or “was

becoming incompetent to stand trial” as understood by “Chapter 504” of the Kentucky Revised

Statutes. Instead, she considered Smith to be exhibiting “antisocial behavior.” Counsel also

expressed concern that introducing evidence as to Smith’s difficult home life and mental state

would risk allowing the Commonwealth additional opportunities to diminish the jury’s sympathy

for Smith with unfavorable evidence of angry outbursts, juvenile drug convictions, and general

maladaptive behavior.    Smith, 2009 WL 2901223, at *4.         She concluded that such a risk

outweighed the potential reward of putting mitigating witnesses on the stand during sentencing.

Id.

       Following counsel’s testimony at the evidentiary hearing, four other witnesses testified to

Smith’s troubled relationship with his parents and the negative effects that their divorce had on

him. Id. at *5. They testified of Smith’s inability to cope with stressful situations, and the

physical and emotional abuse he received from his father and stepmother. Smith claims that


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Smith v. Crews

these witnesses, who had sent letters to the trial judge because his counsel was unresponsive to

their communications, should have been called to give mitigation testimony at sentencing.

Smith, 2009 WL 2901223, at *5.

       The state trial court denied Smith’s claims, finding that counsel’s alleged errors were

based on strategic trial decisions and that “[a]ny error complained of would not have resulted in a

different outcome for [Smith].” Citing the two-pronged test of Strickland, 466 U.S. at 687, the

Kentucky Court of Appeals affirmed on the deficiency prong without reaching the question of

prejudice. Smith, 2009 WL 2901223, at *6–9. The Kentucky Supreme Court denied review.

       Smith then petitioned for relief under § 2254 in the U.S. District Court for the Eastern

District of Kentucky.       The district court, adopting a magistrate judge’s report and

recommendations, denied relief on the merits, concluding that the Kentucky Court of Appeals

did not apply Strickland unreasonably in finding that Smith’s counsel was not deficient. Smith v.

Taylor, No. 5:10-CV-91-KKC-HAI, 2014 WL 3513180, at *4 (E.D. Ky. July 16, 2014). We

granted a limited COA on two issues:

       (1) whether the district court was correct when it ruled that the state court’s denial
       of Smith’s ineffective-assistance claim based on counsel’s failure to investigate a
       mental health defense was a reasonable application of clearly established federal
       law; and (2) whether the district court was correct when it ruled that the state
       court’s denial of Smith’s ineffective-assistance claim based on counsel’s failure to
       investigate mitigating evidence was a reasonable application of clearly established
       federal law.

Smith v. Crews, No. 14-5994 (6th Cir. Mar. 16, 2015).

                              II.      STANDARD OF REVIEW

       Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas corpus relief

may be granted on claims that were adjudicated in state court only if the state-court adjudication

of the claim resulted in a decision that (1) “was contrary to, or involved an unreasonable


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Smith v. Crews

application of, clearly established Federal law, as determined by the Supreme Court of the

United States,” or (2) “was based on an unreasonable determination of the facts.” 28 U.S.C.

§ 2254(d). “We review de novo a district court’s denial of a writ of habeas corpus.” Ramonez v.

Berghuis, 490 F.3d 482, 486 (6th Cir. 2007). “And where, as here, the district court has reviewed

only trial transcripts and other court records, any factual determinations by the district court are

also reviewed de novo.” Id.

       We granted Smith a COA on two ineffective assistance of counsel claims, to which

federal courts apply the “unreasonable application” prong of § 2254(d)(1). Mitchell v. Mason,

325 F.3d 732, 738 (6th Cir. 2003) (citing Harpster v. Ohio, 128 F.3d 322, 327 (6th Cir. 1997)).

A state-court decision is an unreasonable application of clearly established Supreme Court law

when it “applies [Supreme Court] precedents to the facts in an objectively unreasonable

manner.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted); see Mitchell, 325 F.3d

at 738 (“[A] federal habeas court may not issue the writ simply because that court concludes in

its independent judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must also be unreasonable.” (quoting

Williams v. Taylor, 529 U.S. 362, 411 (2000))). This is a “difficult to meet . . . and highly

deferential standard . . . [that] demands that state-court decisions be given the benefit of the

doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citations and quotation marks

omitted).

       To establish ineffective assistance, Smith must show that his attorney’s performance was

deficient and that he was prejudiced as a result. Strickland, 466 U.S. at 687. Counsel’s

performance is deficient where it falls below an objectively reasonable standard. Id. at 688.

This standard also is “highly deferential”—thus, “doubly so” on federal habeas review—and


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requires us to “apply a strong presumption that counsel’s representation was within the wide

range of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104–05 (2011)

(internal quotation marks omitted) (quoting Strickland, 466 U.S. at 689).

                                            III.     ANALYSIS

        Smith argues that his trial counsel performed deficiently by failing to conduct a

reasonable investigation into a possible mental health defense and into potential mitigation

witnesses, and that the Kentucky Court of Appeals unreasonably applied Strickland when it

determined otherwise. On habeas review, the pivotal question is whether the state court’s

determination was a reasonable application of Strickland. See Harrington, 562 U.S. at 101.

Below, we analyze separately the reasonableness of the state court’s determinations on the

alleged deficiencies of Smith’s counsel.

        A.       Failure to Investigate Mental health Defense

        The issue underlying the first ineffective assistance claim is the Kentucky defense of

extreme emotional disturbance (EED), which, according to Smith, his trial counsel could have

successfully pursued had she consulted a mental health expert.1 In Kentucky, a successful EED

defense reduces the degree of an intentional homicide from murder to manslaughter. McClellan

v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986). Kentucky defines EED as “a temporary

state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause

one to act uncontrollably from the impelling force of the extreme emotional disturbance rather

than from evil or malicious purposes.” Id. at 468–69. To constitute EED, there must be “a

reasonable explanation or excuse” for the emotional state, as “determined from the viewpoint of


        1
         Commentary to Ky. Rev. Stat. §§ 507.020 and 507.040 suggests that EED is available for intentional, but
not wanton, murder. However, the Supreme Court of Kentucky has discussed EED in a case involving wanton
murder without hinting at the commentary’s distinction. Holland v. Commonwealth, 466 S.W.3d 493, 503 (2015).
We therefore proceed with the discussion assuming that Smith’s assertion is correct.

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Smith v. Crews

a person in the defendant’s situation under the circumstances as defendant believe them to be.”

Id. at 469. In other words, “there must be a triggering event—a ‘sudden and uninterrupted’ event

that ‘triggers the explosion of violence on the part of the criminal defendant.’” Bowling v.

Parker, 344 F.3d 487, 500 (6th Cir. 2003) (quoting Foster v. Commonwealth, 827 S.W.2d 670,

678 (Ky. 1991)).

         EED, which falls under Chapter 507 of the Kentucky Revised Statutes, is distinct from

“incompetency,” “insanity,” and “mental illness,” which are defined in Chapter 504.2                             See

McClellan, 715 S.W.2d at 468. Accordingly, EED “is not established by evidence of insanity or

mental illness.” Bowling, 344 F.3d at 500 (quoting Stanford v. Commonwealth, 793 S.W.2d 112,

115 (Ky. 1990)). “It is the presence of adequate provocation . . . which is essential to a finding

of EED,” though mental illness “is entirely relevant to a subjective evaluation of the

reasonableness of the defendant’s response to the provocation.”                      Fields v. Commonwealth,

44 S.W.3d 355, 359 (Ky. 2001).

         Under Strickland, counsel “has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland,

466 U.S. at 691. “[S]trategic choices made after less than complete investigation are reasonable




         2
         Chapter 504 defines “incompetency to stand trial” as a “lack of capacity to appreciate the nature and
consequences of the proceedings against one or to participate rationally in one’s own defense,” and an incompetent
defendant cannot “be tried, convicted or sentenced so long as the incompetency continues.” Ky. Rev. Stat.
§§ 504.060(4), 504.090. “Insanity” is “a lack of substantial capacity to appreciate one’s conduct or to conform
one’s conduct to the requirements of law,” and it “absolves one of criminal intent and is therefore a complete
defense.” McClellan, 715 S.W.2d at 467–68; see Ky. Rev. Stat. §§ 504.030, 504.060(5). And “mental illness”
means “a substantially impaired capacity to use self-control, judgment, or discretion which can be related to
physiological, psychological, or social factors,” but it “does not absolve one of criminal responsibility but entitles
one so convicted to treatment.” McClellan, 715 S.W.2d at 468; see Ky. Rev. Stat. §§ 504.060(6), 504.150.

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precisely to the extent that reasonable professional judgments support the limitations on

investigation.” Id. at 690–91.

       In Williams v. Taylor, the Supreme Court found that trial counsel’s failure to “fulfill their

obligation to conduct a thorough investigation” of the defendant’s “nightmarish” background and

mental state could not be “justified by a tactical decision” to focus on his remorse and

cooperation with police, or to prevent comparatively meager unfavorable evidence—specifically,

past juvenile records—from being admitted. 529 U.S. at 395–96, 398. Counsel in Williams

ended his investigation based on a misunderstanding that state law prevented potentially

mitigating records from being introduced. Id. at 395. If counsel had investigated, he would have

found, among a “voluminous” amount of mitigating evidence, that the defendant was “borderline

mentally retarded” and criminally neglected as a child, and that he was among the inmates “least

likely to act in a violent, dangerous or provocative way” and had “thrive[d] in a more regimented

and structured environment.” Id. at 396.

       The Supreme Court again “illustrat[ed] . . . the proper application of [Strickland]” in

Wiggins, 539 U.S. at 522.        Finding a state court’s application of Strickland “objectively

unreasonable,” the Court explained that “[e]ven assuming [counsel] limited the scope of their

investigation for strategic reasons, Strickland does not establish that a cursory investigation

automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing

court must consider the reasonableness of the investigation said to support that strategy” and “not

only the quantum of evidence already known to counsel, but also whether the known evidence

would lead a reasonable attorney to investigate further,” measured objectively “under prevailing

norms.” Id. at 523, 527 (citing Strickland, 466 U.S. at 691). The Court faulted the state court for

“merely assum[ing] that the investigation was adequate” when “counsel chose to abandon their


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investigation at an unreasonable juncture, making a fully informed decision with respect to

sentencing strategy impossible.” Id. at 527–28.

       The Government implies that Williams and Wiggins are not the clearly established law

that the state courts should have applied because they apply only to the penalty stage of death-

penalty cases. But Strickland itself was a death-penalty case, and neither the Supreme Court nor

our circuit has drawn a distinction between capital and non-capital cases or the guilt and penalty

stages of trial in applying the framework of Strickland. See, e.g., Harrington, 562 U.S. at 101–

07; Berghuis v. Tompkins, 560 U.S. 370, 389–91 (2010); Ramonez, 490 F.3d at 486–91; Towns v.

Smith, 395 F.3d 251, 257–61 (6th Cir. 2005).

       Smith maintains that his counsel’s decision not to consult a mental health expert to

explore the possibility of an EED defense was unreasonable, and thus her chosen strategy was

not supported by sufficient investigation. He asserts that the evidence known by his counsel

would lead a reasonable attorney to investigate further the possibility of an EED defense. See

Wiggins, 539 U.S. at 527. In addition to the horrific nature of the crime itself, counsel knew that

Smith had shown disturbing, antisocial behavior, likely stemming from his difficult childhood

and relationship with his family, and that he had seen a therapist previously. Smith’s parents had

gone through a bitter divorce and custody battle that counsel believed had a negative impact on

Smith, after which his home life continued to deteriorate.         As Smith aged, he exhibited

increasingly out-of-control behavior, such as angry outbursts, disruptiveness in the classroom,

and picking up and slamming down a desk. Smith’s juvenile record showed him to be a troubled

adolescent who suffered from a drug-abuse problem, was “unhappy at home,” and had difficulty

“effective[ly] communicati[ng] within [his] family.” Shortly before Blake’s death, moreover,

Smith’s 16-year-old brother died in a car accident. Smith’s mother additionally testified that she


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told counsel that Smith needed a mental health evaluation because he had been abused mentally

and physically in his father’s household.

       Counsel alluded to Smith’s hardships in her testimony, stating her belief that he

“snapped” when he killed his son and was in denial about the murder, and explaining that he

refused to “come clean” or “open up” to her. In addition, despite her admitted difficulty in

coming up with an effective defense, counsel recommended, and the court directed, that Smith

receive “psychological, psychiatric, emotional, [or] mental health counseling, however you want

to phrase it,” in prison; in so recommending, she acknowledged that the “Department of

Corrections,” when they see Smith’s history, “are going to want to reach out to him and provide

him treatment.”

       Facing all of this evidence, counsel chose not to consult a mental health expert but

instead to go to trial with “no defense” because, she testified, nothing suggested Smith suffered

from “mental illness” or “incompeten[cy].” This explanation shows that she incorrectly believed

an expert evaluation to be relevant only to defenses of incompetency, insanity, or mental illness

under Chapter 504. See Williams, 529 U.S. at 395 (in finding deficient performance, noting

counsel’s misunderstanding that state law prevented mitigating records from being introduced).

       The Kentucky Court of Appeals acknowledged the possible insufficiency of counsel’s

explanation that she did not consult an expert because there was no evidence to support a defense

based on “mental illness.” See Smith, 2009 WL 2901223, at *8. We share that concern. See

Harrington, 562 U.S. at 106 (“Criminal cases will arise where the only reasonable and available

defense strategy requires consultation with experts or introduction of expert evidence, whether

pretrial, at trial, or both.”). As counsel admitted, merely consulting with an expert to explore an

EED defense did not risk making unfavorable evidence admissible because, at least at that time,


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Kentucky Rule of Criminal Procedure 7.24(3)(B)(i) required notice of an expert evaluation only

if “the defendant intends to introduce expert testimony relating to a mental disease or defect.”

       Applying the framework of Strickland and other Supreme Court cases interpreting it, we

are inclined to conclude that counsel’s purported strategic decisions on expert consultation were

based on insufficient investigation because she failed to consult a mental health expert before

choosing among her options. Without an expert consultation on Smith’s mental health, counsel

could not make an informed decision to forgo an EED defense in favor of her sympathy strategy.

See English v. Romanowski, 602 F.3d 714, 728–29 (6th Cir. 2010) (finding counsel’s failure to

investigate a witness rendered unreasonable his decision not to call the witness for fear of

unfavorable testimony); see also Elmore v. Holbrook, 137 S. Ct. 3, 8 (2016) (Sotomayor, J.,

dissenting from denial of certiorari) (“To the contrary, we have often emphasized that an

attorney who learns some information about a defendant’s background is under an obligation to

pursue that information in order to ‘mak[e] an informed choice among possible defenses.’”

(citation omitted)).

       But AEDPA requires us to recognize a second level of deference—not only to the choices

made by counsel, but also to the decisions of state courts. Here, the Kentucky Court of Appeals

found no error in the circuit court’s conclusion that counsel’s choice not to consult a mental

health expert was not deficient performance, but instead the result of a reasonable “strategic trial

decision.” Smith, 2009 WL 2901223, at *7. Regarding counsel’s testimony that “she saw no

indications that [Smith] suffered from mental illness in her conversations and interactions with

him and his family,” the state court “acknowledge[d] that this explanation, standing alone, might

not suffice to explain [counsel’s] failure to more thoroughly investigate a mental health defense

in this case.” Id. at 8. Nevertheless, given counsel’s concern that the “risk of allowing the


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Commonwealth to introduce a plethora of damaging evidence against him,” and because

counsel’s “defense was predicated on portraying Smith in as sympathetic a light as possible

given that his role in Blake’s death had been firmly established,” the state court found counsel’s

concerns about damaging evidence and her strategy to be reasonable, even if they “perhaps could

be second-guessed in hindsight.” Id.

       Strickland declares that “strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the limitations

on investigation.” Id. at 690–91. As described in Wiggins, a reviewing court must consider “not

only the quantum of evidence already known to counsel, but also whether the known evidence

would lead a reasonable attorney to investigate further, measured objectively under prevailing

norms.”    539 U.S. at 522 (internal citations omitted).        The Kentucky Court of Appeals

recognized the extent of the investigation that counsel carried out and the “full and conscientious

effort to provide Smith with the best defense possible in the face of highly unfavorable facts.”

Smith, 2009 WL 2901223, at *8. The decision not to have a mental health evaluation conducted

on Smith “perhaps could be second-guessed in hindsight but cannot be condemned as

unreasonable or otherwise deficient.”       Id.    Accordingly, the Kentucky Court of Appeals

concluded that counsel “ma[d]e a reasonable decision that ma[de a] particular investigation

unnecessary.” Id. at *7 (quoting Strickland, 466 U.S. at 691). Although we do not necessarily

agree with this conclusion, as discussed above, we cannot say that it was an objectively

unreasonable application of Supreme Court precedent. See Cullen, 563 U.S. at 181 (Describing

the habeas review standard for ineffective assistance claims as a “difficult to meet . . . and highly

deferential standard . . . [that] demands that state-court decisions be given the benefit of the

doubt.” (internal citations and quotation marks omitted)). The governing standard impels us to


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find that the state court did not unreasonably apply Strickland when it concluded that trial

counsel did not provide ineffective assistance of counsel by failing to have a mental health

evaluation conducted on Smith. As a result, we need not address prejudice.

       B.      Failure to Investigate Mitigating Witnesses

       Smith also argues that his counsel was ineffective for failing to investigate and present

mitigating witnesses at sentencing.      A trial counsel’s failure to conduct “a reasonable

investigation of a defendant’s psychiatric history and family background and to present

mitigating evidence to the jury at sentencing[] can constitute ineffective assistance”—even

where counsel believes further investigation would be futile or where presenting the evidence

may open the door to unfavorable evidence. Poindexter v. Mitchell, 454 F.3d 564, 577–78 (6th

Cir. 2006) (internal quotation marks omitted) (quoting Wiggins v. Smith, 539 U.S. 510, 522–23

(2003)) (collecting cases). An investigation into mitigating evidence is unreasonable where

defense counsel “failed to act while potentially powerful mitigating evidence stared them in the

face . . . or would have been apparent from documents any reasonable attorney would have

obtained.” See Bobby v. Van Hook, 558 U.S. 4, 11–12 (2009) (citing Wiggins, 539 U.S. at 525;

Rompilla v. Beard, 545 U.S. 374, 389–93 (2005)). A strategic decision not to present mitigating

evidence after a thorough investigation, however, is “virtually unchallengeable.” Strickland, 466

U.S. at 690.

       Smith maintains that his counsel failed to conduct a reasonable investigation into

mitigating witnesses before sentencing, and thus her uninformed decision not to present any

mitigation witnesses to avoid opening the door to unfavorable evidence was unreasonable. At

the evidentiary hearing, Smith presented four witnesses—his elementary school guidance

counselor, Gay Cecil; his mother, Brenda Smith; his sister, Beverly Smith; and a family friend,


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Donna Tudor—who testified about the negative effect that Smith’s troubled home life and

parents’ divorce had on his mental state. Counsel never spoke to Cecil or Tudor, and Smith’s

mother and sister testified that counsel would not listen to what they had to say. At least some of

these witnesses sent letters to the trial judge directly because they believed counsel was

unresponsive.

       The Government responds with the state court’s finding that counsel talked to “Smith’s

mother, father, stepmother, sister, stepbrother, and a number of other family members and

friends,” and reviewed “a number of items relating to Smith’s background and history, including

custodial evaluations, his parents’ divorce file, his school records, juvenile transfer documents,

and dispositional reports from Smith’s two prior juvenile convictions.”            Smith, 2009 WL

2901223, at *3. Counsel also averred that, “people knew where [she] was and how to get in

touch with [her] if they had something they wanted to say. I would talk to anybody in this case

and all my cases.” Based on this investigation, counsel, who also had previously represented

Smith in juvenile matters, claimed to be “fully aware” of the issues on which the witnesses at the

evidentiary hearing testified. Smith, 2009 WL 2901223, at *3, *7–8.

       Though this is a close question, under governing precedent, counsel’s investigation into

mitigation facts was not deficient. “The Supreme Court has found more limited investigations

into a defendant’s background justified where any evidence presented would have a double

edge.” Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir. 2006) (citations and internal quotation

marks omitted) (collecting cases).     Counsel’s investigation into and knowledge of Smith’s

background, family history, relevant documents, and witnesses, provided sufficient information

for her to reasonably decide not to investigate additional mitigation witnesses.




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       The governing precedent likewise confirms that this information was sufficient for

counsel to make a reasonable choice between the options of putting mitigation witnesses on the

stand or not.    That choice avoided opening the door to potentially unfavorable evidence,

including Smith’s criminal convictions and antisocial behavior. See, e.g., Carter, 443 F.3d at

531–32 (Counsel’s decision found reasonable “[g]iven the lack of mitigating evidence available

in this case and the likelihood that the testimony of [the defendant’s] family members would

have done more harm than good.”); Clark v. Mitchell, 425 F.3d 270, 286 n.6 (6th Cir. 2005)

(“[C]ounsel made a strategic decision to limit testimony about [the defendant’s] past in order to

prevent ‘opening-the-door’ to evidence of [his] criminal background” that “supports the

reasonableness of the [state court’s] determination regarding the performance of defense

counsel.”); Darden v. Wainwright, 477 U.S. 168, 186 (1986) (“[T]here are several reasons why

counsel reasonably could have chosen to rely on a simple plea for mercy from petitioner himself.

Any attempt to portray petitioner as a nonviolent man would have opened the door for the State

to rebut with evidence of petitioner’s prior convictions. This evidence had not previously been

admitted in evidence, and trial counsel reasonably could have viewed it as particularly

damaging.”).

       The Kentucky Court of Appeals correctly identified and explored Smith’s claim that

counsel did not “seek out and use readily available mitigation witnesses during the penalty stage

of trial.” Smith, 2009 WL 2901223 at *8. The state court found reasonable counsel’s fear “that

presenting the mitigation testimony proposed by Smith risked painting him in an even more

unfavorable light before the jury.” Id. at *9. In light of the controlling authority and the doubly

deferential AEDPA standard applicable to this ineffective assistance claim, we cannot say that

the decision of the Kentucky Court of Appeals is an unreasonable application of governing law.


                                               -16-
No. 14-5994
Smith v. Crews

                                    IV.     CONCLUSION

       We AFFIRM the district court’s ruling that the Kentucky Court of Appeals did not apply

Supreme Court precedent in an objectively unreasonable manner when it concluded on the

claims before us that Smith’s representation was not deficient.




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