                       Certiorari granted, January 9, 2006

                Vacated by Supreme Court, January 9, 2006




                               PUBLISHED
                                                       Filed: June 10, 2005

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


DARICK DEMORRIS WALKER,                      
              Petitioner-Appellant,
                  v.
                                                        No. 04-22
                                                       (CA-01-1196-A)
PAGE TRUE, Warden, Sussex I State
Prison,
             Respondent-Appellee.
                                             

                                 ORDER


  Appellant filed a petition for rehearing en banc, and appellee filed
an opposition to the petition.

   A member of the Court requested a poll on the petition for rehear-
ing en banc. The poll failed to produce a majority of judges in active
service in favor of rehearing en banc. Chief Judge Wilkins, Judges
Widener, Wilkinson, Niemeyer, Luttig, Williams, Michael, Motz,
Traxler, King, Shedd and Duncan voted against rehearing en banc.
Judge Gregory voted in favor of rehearing en banc and filed a dissent.

   The Court denies the petition for rehearing en banc. Entered at the
direction of Judge Luttig for the Court.

                                                  For the Court

                                                  /s/ Patricia S. Connor
                                                              Clerk

GREGORY, Circuit Judge, Dissenting:

  This case, if distilled to its essence, asks this question: what level
of legal assistance for defendants in state capital cases is tolerable
2                          WALKER v. TRUE
enough to justify this Court’s denial of the protection of the "great
writ"? Because the level of representation at the sentencing phase of
Walker’s capital case was too low to be tolerable under a fair assess-
ment of his Sixth Amendment rights, I respectfully dissent from the
order denying rehearing en banc.

   Walker was appointed two lawyers to defend him in his capital
case. One lawyer was an experienced capital case litigator but the
other lawyer, who was primarily responsible for the sentencing phase
of the trial, never defended a capital case.

   Counsel received public school records that contained a psycholog-
ical evaluation report on Walker when he was eleven years and six
months old, stating that his:

    INTELLECTUAL FUNCTIONING:

    . . . Performance on the Bender Visual Gestalt Test revealed
    significant delays in perceptual motor development. Using
    the Koppitz scoring method, he achieved a z-score of minus
    2.57 which is equivalent to a standard score of 61 or the 0.9
    percentile level. Quantitatively, the number of errors which
    he made is similar to what would be expected of the typical
    six year old child. While there is some integration difficul-
    ties and tendencies to rotate all or part of designs, the major
    difficulties which he displayed were accurately copying the
    acute angles in the more difficult designs. This type of error
    is most commonly found in protocols of individuals who are
    mentally retarded or who have some type of organic defi-
    ciency . . . .

    PERSONALITY FUNCTIONING:

    . . . Projective drawings are significantly more immature
    than would be expected for a person with his intelligence
    level or even with his level of delay in perceptual motor
    development, and his human figure drawing, which is a
    cephalopod, is similar to what would be expected of a child
    four years, six months of age, based on the Goodenough
                           WALKER v. TRUE                             3
    scoring criteria. Intellectually, a drawing of this caliber
    would be expected of a person, at his age, with an I.Q. of
    39 which falls in the severely mentally retarded range. Such
    an immature drawing indicates either psychological regres-
    sion with grossly impaired reality contact or organic
    involvement . . . .

    RECOMMENDATIONS:

    . . . Due to the gross personality immaturity, inconsistencies
    between current test scores as well as inconsistencies
    between present and past test scores, it is recommended that
    Darick receive a complete psychological evaluation in one
    year to evaluate his intellectual development and to rule out
    organic or psychotic disturbance that might be interfering
    with his adjustment.

Walker was never tested as a follow up to the psychological evalua-
tion report’s clinical findings and impressions relative to organic
brain dysfunction.

   Although Dr. Thomas, the court appointed expert, previously told
counsel that he could not give favorable mitigating testimony based
on all of the information available to him at that time, he told counsel
that he really needed to receive Walker’s school records. Despite
knowing their importance, counsel never gave the school records,
which included the psychological evaluation report, to Dr. Thomas or
any other expert. In fact, Walker’s counsel never told Dr. Thomas that
the psychological report existed. Moreover, counsel never moved for
a continuance to conduct any investigation of the newly discovered
report relating to an organic brain dysfunction.

   It is now known, based upon post-trial examinations by experts,
that Walker does have an organic brain disorder. This is strong miti-
gating evidence that would have been available at trial if counsel’s
representation had not been constitutionally deficient. All of counsel’s
purported general proficiency in investigating and preparing for
Walker’s defense does not and can not balance or excuse counsel’s
specific deficiency in failing to provide any expert with the psycho-
logical report relating to organic brain dysfunction.
