                           PUBLISHED
                                              Filed: October 4, 2006

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


GEORGE CALE BUCKNER,                  
             Petitioner-Appellant,
                 v.
                                                 No. 05-14
MARVIN POLK, Warden, Central
Prison, Raleigh, North Carolina,
               Respondent-Appellee.
                                      

                              ORDER

  Appellant filed a petition for rehearing and rehearing en banc.

  Judge Shedd and Judge Duncan voted to deny panel rehearing.
Judge Gregory voted to grant panel rehearing.

   A member of the Court requested a poll on the petition for rehear-
ing en banc. A majority of the judges in active service voted to deny
rehearing en banc. Chief Judge Wilkins and Judges Widener, Wilkin-
son, Niemeyer, Williams, Michael, Motz, Traxler, King, Shedd, and
Duncan voted to deny rehearing en banc. Judge Gregory voted to
grant rehearing en banc.

  The Court denies the petition for rehearing and rehearing en banc.

   Judge Duncan wrote an opinion concurring in the denial of rehear-
ing en banc. Judge Gregory wrote a dissenting opinion.

  Entered at the direction of Judge Duncan for the Court.
2                          BUCKNER v. POLK
                                        For the Court

                                        /s/ Patricia S. Connor
                                                Clerk

DUNCAN, Circuit Judge, concurring in the denial of rehearing en
banc:

   The reasons underlying the panel majority opinion on the merits
are set forth in detail at Buckner v. Polk, 453 F.3d 195 (4th Cir. 2006).
I write here briefly only to clarify the facts presented on this appeal,
and to set forth, as the dissent does not, both the issue before us and
the standard of review that mandates the denial of the petition for
rehearing en banc.

   The dissent’s characterization to the contrary, the majority’s opin-
ion in this case does not even implicate, let alone "heighten," "a
defendant’s burden to establish a violation of his Sixth Amendment
right to counsel." See infra dissent at 4. The majority opinion simply
applies the stringent standard of review imposed by the Anti-
Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C.
§ 2254 (2000), to conclude, as, indeed it must, that the state MAR
court’s factual findings underlying its decision that Buckner’s counsel
was not ineffective are not clearly erroneous. Even if they were, anal-
ysis under AEDPA further dictates that Buckner’s newly proffered
evidence is so cumulative of that which his counsel did offer at sen-
tencing that the failure to present it could not constitute prejudice.

   Significantly, in deciding whether Buckner has demonstrated the
deficiency of the state court adjudication, we must presume the state
court’s factual findings to be correct absent clear and convincing evi-
dence to the contrary. § 2254(e)(1). For that reason, we do not "now
know," as the dissent would have it, that Buckner’s dysfunctional
childhood caused personality abnormalities, because the state court
expressly found the new expert testimony on which the dissent seeks
to rely to be "not credible." [J.A. 453]. Moreover, although the dissent
contests the reasonableness of trial counsel’s performance, the state
court made extensive findings of fact to the effect that trial counsel
met with individuals at the North Carolina Center for Death Penalty
Litigation, hired a psychologist to interview Buckner, obtained a pre-
                           BUCKNER v. POLK                            3
trial psychological evaluation, and secured the appointment of an
investigator to assist in obtaining mitigation evidence—all in the face
of repeated refusals by Buckner (and members of his family) to co-
operate, and Buckner’s insistence that no events in his childhood
affected him in any way. Although the dissent ignores these facts and
appears to disagree with them, it does not even attempt to refute them
by clear and convincing evidence.

   Even if we were free to disregard the state court’s factual findings
underlying its assessment of the reasonableness of counsel’s perfor-
mance, as the dissent would have us do, the dissent further fails to
rebut the state court’s conclusion regarding the absence of prejudice.
In determining that trial counsel’s performance did not prejudice
Buckner, the state court pointed to the mitigation evidence portraying
Buckner as the product of a troubled home, whose father had a history
of alcohol abuse and whose brother died in a house fire when he was
young. Indeed, the very fact on which the dissent relies so heavily—
the jury’s notations regarding the death of Buckner’s brother in a fire
and lack of parental involvement as mitigating factors—reinforces the
extent to which trial counsel made it aware of those unfortunate
aspects of Buckner’s life. As discussed in the panel majority opinion,
this court has consistently upheld as not unreasonable state court find-
ings of no prejudice from counsel’s failure to introduce evidence
adding only minimal detail or support to mitigating factors counsel
already presented to the jury. Buckner, 452 F.3d at 206 (citing
McHone v. Polk, 392 F.3d 691, 709-10 (4th Cir. 2004)).

   In the face of evidence of guilt characterized by the state court as
"overwhelming," [J.A. 454] and a finding of first degree murder under
alternate theories of felony murder, lying in wait, and premeditation
and deliberation, the dissent proffers nothing more than pure specula-
tion to support its assertion that the newly minted affidavits (two of
which contain sections copied verbatim from one another) would
have tipped the scales of a juror’s consideration. Given the AEDPA
standard of review, the failure of Buckner and the dissent to rebut the
state court’s adverse credibility finding and the substantive weakness
and cumulative nature of the new evidence, this court’s denial of the
motion for reconsideration is not only appropriate, but compelled.
4                           BUCKNER v. POLK
GREGORY, Circuit Judge, dissenting from the denial of rehearing en
banc:

   I dissent from the Court’s denial of rehearing en banc. This case
presents an exceptionally important issue regarding a defense attor-
ney’s constitutional obligations under the Sixth Amendment to inves-
tigate his client’s mental health in the course of preparing for a capital
murder prosecution. Although much of my reasoning is set forth in
my dissent from the majority’s opinion, Buckner v. Polk, 453 F.3d
195, at 208-225 (4th Cir. 2006), I write again to emphasize the dis-
turbing degree to which the majority heightens a defendant’s burden
to establish a violation of his Sixth Amendment right to counsel.

                                    I.

   In this case, counsel were well aware of two blatantly traumatic cir-
cumstances in George Cale Buckner’s childhood: his father’s alcohol-
ism, and the fire that killed his younger brother and severely
disfigured his father right before his eyes. Despite learning of these
facts early in their preparations for trial, counsel drastically underesti-
mated the importance of preparing for the sentencing phase and did
not know that they could present psychological mitigation evidence
at the sentencing phase. When they began their preparations for the
sentencing phase during the one month before trial, counsel did not
procure an expert opinion regarding the psychological effects of
Buckner’s father’s alcoholism or the fire. As the majority acknowl-
edges, Buckner’s lead counsel for the sentencing phase of the trial
"turned his attention to preparing mitigation evidence during the guilt
phase of the trial, only one week before the sentencing phase began."
(emphasis added) Buckner, 453 F.3d at 201.

   Following Buckner’s conviction, counsel hastily culled together
some limited facts concerning Buckner’s father’s alcoholism and the
fire. However, they failed to develop the psychological effects of
these circumstances in any meaningful way at the sentencing hearing.
In fact, the prosecution aptly exploited counsel’s ineptitude by point-
ing out that they had never established any negative effects arising
from these circumstances. Moreover, the prosecution itself acknowl-
edged the traumatic nature of the fire, but asserted that counsel did
                           BUCKNER v. POLK                             5
not identify the fire as a mitigating factor. Tellingly, counsel did not
and could not respond to these arguments.

   Although the jury ultimately recommended death, the jury adopted
the fact that Buckner had grown up with an alcoholic father as a miti-
gating factor, and penciled in three additional mitigating factors in the
catchall mitigation provision on the Issues and Recommendation
Form:

    A. Brother died in fire.

    B. Two people involved in the murder.

    C. Lack of parental involvement.

J.A. 302.

                                   II.

   To establish ineffective assistance of counsel under the Sixth
Amendment, Buckner must show that (1) counsel’s performance was
"deficient"; and (2) "the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Specif-
ically, the second prong of Strickland requires Buckner to demon-
strate "‘that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’" Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting
Strickland, 466 U.S. at 694)).

   On this record, Buckner has shown a "reasonable probability"—
which, as the majority acknowledges, is less than a preponderance of
the evidence, Buckner, 453 F.3d at 203 — that he would not have
been sentenced to death but for counsel’s failure to develop and pre-
sent psychological mitigation evidence. The jurors were obviously
interested in Buckner’s father’s alcoholism and the fire as mitigating
factors, but could not properly weigh these circumstances given the
utter lack of testimony explaining how they contributed to his crimes.
We now know, through the benefit of four expert witnesses in the
habeas proceedings, that Buckner’s dysfunctional childhood caused
6                           BUCKNER v. POLK
personality abnormalities, an excessively underdeveloped maturity
level, and possibly, post-traumatic stress disorder. Given that evi-
dence concerning a defendant’s disadvantaged childhood and mental
or emotional disturbances has proven, time and again, to be highly
compelling mitigation evidence at sentencing, see Boyde v. Califor-
nia, 494 U.S. 370, 382 (1990); Smith v. Mullin, 379 F.3d 919, 943
(10th Cir. 2004); Middleton v. Dugger, 849 F.2d 491, 495 (11th Cir.
1989), the now-available expert evidence easily could have persuaded
at least one juror to choose life imprisonment over death.

   Finding that Buckner failed to show prejudice stemming from
counsel’s deficient performance, the majority does not even address
the jury’s expressed interest in Buckner’s father’s alcoholism and the
fire.* The import of the majority’s decision is to raise the standard for
showing prejudice beyond a "reasonable probability" to an insur-
mountable level. Specifically, the majority’s decision completely dis-
regards the fact that one juror has the power to change the result in
a death penalty prosecution, and that, in this case, at least one juror
expressed his or her intent to weigh Buckner’s father’s alcoholism
and the fire as mitigating factors. Given the jury’s concerns regarding
these circumstances despite the woefully lacking record, there is cer-
tainly a "reasonable probability" that Buckner would have been sen-
tenced to life imprisonment but for counsel’s deficient performance.

   *The majority resolves Buckner’s Sixth Amendment ineffective assis-
tance of counsel claim by sidestepping the issue of whether counsel’s
conduct in preparing for the sentencing phase was unreasonable under
Strickland. This was a wise move, because counsel’s conduct was clearly
indefensible in view of the 1989 version of the American Bar Associa-
tion Guidelines for the Appointment and Performance of Defense Coun-
sel in Death Penalty Cases, which were in effect at the time Buckner was
tried. See Strickland, 466 U.S. at 688 (recognizing the guidelines promul-
gated by the American Bar Association as standards for "determining
what is reasonable"). Indeed, other circuits have recognized that a
defense attorney must rigorously pursue mental health expert advice
upon becoming aware of significant red flags in the defendant’s psycho-
logical history. See Hamblin v. Mitchell, 354 F.3d 482, 492 (6th Cir.
2003); Jennings v. Woodford, 290 F.3d 1006, 1013-14 (9th Cir. 2002);
Lambright v. Stewart, 241 F.3d 1201, 1207 (9th Cir. 2001); Carter v.
Bell, 218 F.3d 581, 596 (6th Cir. 2000); Caro v. Calderon, 165 F.3d
1223, 1228 (9th Cir. 1999).
                           BUCKNER v. POLK                           7
   Under the facts presented in this record, I would conclude that
Buckner has satisfied the "reasonable probability" standard articulated
in Strickland. Accordingly, I dissent from the Court’s denial of
rehearing en banc.
