                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 05a0406p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                     X
                             Petitioner-Appellant, -
 BRIAN KEITH MOORE,
                                                      -
                                                      -
                                                      -
                                                          No. 03-6105
           v.
                                                      ,
                                                       >
 PHILIP PARKER, Warden,                               -
                             Respondent-Appellee. -
                                                     N
                        Appeal from the United States District Court
                    for the Western District of Kentucky at Louisville.
                    No. 99-00745—Thomas B. Russell, District Judge.
                                    Argued: March 10, 2005
                              Decided and Filed: October 4, 2005
             Before: BOGGS, Chief Judge; MARTIN and COOK, Circuit Judges.
                                      _________________
                                          COUNSEL
ARGUED: Milton Coburn Toby, PERCH & TOBY, Lexington, Kentucky, William Yesowitch,
BARBER, BANASZYNSKI & ASSOCIATES, Louisville, Kentucky, for Appellant. David A.
Smith, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
ON BRIEF: Milton Coburn Toby, PERCH & TOBY, Lexington, Kentucky, William Yesowitch,
BARBER, BANASZYNSKI & ASSOCIATES, Louisville, Kentucky, for Appellant. David A.
Smith, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
        COOK, J., delivered the opinion of the court, in which BOGGS, C. J., joined. MARTIN, J.
(pp. 7-18), delivered a separate dissenting opinion.
                                      _________________
                                          OPINION
                                      _________________
       COOK, Circuit Judge. Brian Keith Moore, a Kentucky prisoner under sentence of death,
appeals the district court’s denial of his petition for a writ of habeas corpus. For the following
reasons, we affirm the district court and deny the writ.




                                                1
No. 03-6105           Moore v. Parker                                                          Page 2


                               I. Background and Procedural History
        In 1984, a Kentucky jury convicted Moore of the 1979 kidnaping, murder, and first-degree
robbery of seventy-seven-year-old Virgil Harris. In the trial’s penalty phase, the jury determined
Moore1 committed the murder during the commission of first-degree robbery, and sentenced him to
death. The Kentucky Supreme Court affirmed the conviction and sentence, and the United States
Supreme Court denied certiorari. Moore v. Commonwealth, 771 S.W.2d 34 (Ky. 1988) (“Moore I”),
cert. denied, 494 U.S. 1060 (1990).
        In 1990, Moore filed a motion to vacate his sentence under Ky. R. Crim. P. 11.42 in the state
trial court, alleging ineffective assistance of trial counsel. While that motion was pending, he filed
a motion under Ky. R. Civ. P. 60.02 for a new trial based upon newly discovered evidence. The trial
court allowed Moore to present evidence on this second motion during the Rule 11.42 hearing. It
denied both motions in January 1997. The Kentucky Supreme Court affirmed, and the United States
Supreme Court denied certiorari. Moore v. Commonwealth, 983 S.W.2d 479 (Ky. 1998) (“Moore
II”), cert. denied, 528 U.S. 842 (1999).
        Moore filed his petition for habeas corpus in the district court in November 1999, raising
claims of ineffective assistance of counsel, trial errors, prosecutorial misconduct, and a due-process
violation. He also claimed police obtained incriminating statements used against him at trial in
violation of Miranda v. Arizona, 384 U.S. 436 (1966).
       The magistrate judge recommended denying Moore’s petition. He concluded that each of
Moore’s ineffective-assistance claims was either procedurally defaulted or meritless; that each
alleged trial error was meritless; that the prosecutorial-misconduct claims were procedurally
defaulted; that the due-process claim was procedurally defaulted and meritless; and that the Miranda
claims were procedurally defaulted. The district court reviewed the portions of the magistrate
judge’s report and recommendation to which Moore had objected, adopted them, and denied
Moore’s petition.
         Moore then obtained a certificate of appealability as to the following claims: (1) ineffective
assistance of counsel based on counsel’s failure to impeach a commonwealth witness, Doris Riddle;
(2) ineffective assistance of counsel based on inadequate penalty-phase preparation; (3) error in
restricting Moore’s contact with his attorneys during a lunch break; (4) error in using the same jury
for both the guilt and sentencing phases of the trial; and (5) cumulative error.
                                       II. Standard of Review
        Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we review a district
court’s legal conclusions de novo and its factual findings for clear error. Hill v. Hofbauer, 337 F.3d
706, 710 (6th Cir. 2003). We may not grant a writ of habeas corpus unless we conclude that the
state court’s decision: (1) was contrary to, or involved an unreasonable application of, clearly
established federal law; or (2) was based on an unreasonable determination of the facts. Armstrong
v. Morgan, 372 F.3d 778, 781 (6th Cir. 2004).




       1
       The Kentucky Supreme Court had reversed an earlier conviction and death sentence.      Moore v.
Commonwealth, 634 S.W.2d 426 (Ky. 1982).
No. 03-6105              Moore v. Parker                                                                    Page 3


                                   III. Ineffective Assistance of Counsel
                                            A. Failure to Impeach
         Moore argues that his trial counsel performed ineffectively by failing to impeach a
commonwealth witness, Doris Riddle. Riddle, an employee at the driver’s license bureau, testified
concerning the alibi of a second suspect, Kenneth Blair, whom Moore tried to target at trial as the
real killer. Riddle’s testimony placed Blair at the license bureau in the same general time frame as
the crime (as described by witnesses) and thus hurt Moore’s attempt to blame Blair. But Riddle had
told police shortly after the murder that she did not know what time Blair came in to the license
bureau—and Moore’s counsel failed to impeach Riddle with this earlier inconsistent statement.
        To support a Sixth Amendment ineffective-assistance claim, a defendant (or petitioner) must
show (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, the defendant
must show a reasonable probability that, but for counsel’s deficient performance, the proceeding’s
result would have been different. Id. at 694.
        The Kentucky Supreme Court rejected Moore’s claim in state post-conviction proceedings,
finding that, although Moore’s counsel was deficient for failing to impeach Riddle, that deficiency
did not prejudice Moore, and therefore was not ineffective assistance under Strickland. See Moore
II, 983 S.W.2d at 482-84. The Kentucky court gave three reasons for its lack-of-prejudice finding:
(1) even considering Riddle’s testimony, Blair’s alibi was not air-tight—he could have committed
the murder and still been at the license bureau during Riddle’s time-frame; (2) other witnesses
confirmed Blair’s alibi; and (3) abundant evidence, including physical evidence and Moore’s
confession, demonstrated that Moore—not Blair—killed the victim. Id. at 483-84.
         Moore argues the Kentucky court unreasonably applied Strickland by creating a new
requirement that to show prejudice, a defendant must demonstrate actual innocence or show that the
jury had insufficient evidence to support its guilty verdict. But the Kentucky court did not create
any such requirement. That court identified the correct standard for prejudice (“reasonable
probability”), looked at the totality of the evidence (including the flaws in Blair’s alibi and the
overwhelming evidence against Moore), and found no reasonable probability of a different outcome
in the absence of the error. While Moore claims the state court considered the remaining evidence
against him in an effort to create a sufficiency-of-the-evidence standard, the court properly looked
at that evidence only to determine whether a reasonable probability of a different outcome existed.
See, e.g., Hicks v. Collins, 384 F.3d 204, 215 (6th Cir. 2004) (“overwhelming evidence” of
petitioner’s guilt precluded reasonable-probability determination).
        And even if the Kentucky court might have undervalued Riddle’s testimony2 (so we could
possibly disagree with its ultimate decision), that decision did not constitute an unreasonable
application of established Supreme Court precedent, sufficient to grant the writ. See Williams v.
Taylor, 529 U.S. 362, 411 (2000) (“[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.”). Thus Moore’s first ineffective-assistance claim fails.




        2
           Indeed, the prosecutor in closing argument described Riddle as “probably the most important witness in the
entire case.”
No. 03-6105               Moore v. Parker                                                                        Page 4


                                                  B. Penalty Phase
        Moore also claims his counsel insufficiently prepared for the penalty phase. Again he cites
Strickland as the Supreme Court precedent allegedly violated, and again he fails because he cannot
show prejudice.
          Moore argues that his attorneys erred by (1) allegedly spending only about three percent of
their preparation time on the penalty phase; (2) remaining unaware of ninety-five letters sent to the
first trial court supporting him, which could have led them to more mitigating evidence; and (3) not
having another psychologist examine him after the first one they selected proved to be a fraud.
        Moore cannot show prejudice here. He does not dispute that his attorneys researched his
background and presented four witnesses who testified regarding his childhood at his sentencing
hearing. Another psychologist did interview Moore for three to four hours, and testified that Moore
had various problems that began to emerge during childhood, including impulsiveness, poor
judgment, behavior control, anger, and harmful emotional attachment to others. The district court
noted that this testimony “cast Moore as an easily angered, impulsive, out-of-control emotional leech
with poor judgment.” So introducing more evidence of this background, as Moore desired, would
likely have made him look even worse to the jury. Thus counsel’s failure to seek or present more
background evidence was not even deficient performance, let alone prejudicial. See Strickland, 466
U.S. at 691 (no deficiency where defendant gives counsel reason to believe that “pursuing certain
investigations would be fruitless or even harmful”).3
       The cases Moore cites as comparable to his own are not. All three involve situations in
which counsel failed entirely to seek or present mitigating family-background evidence. See
Wiggins v. Smith, 539 U.S. 510 (2003) (due to minimal investigation, counsel presented no evidence
of defendant’s family history, which included severe childhood abuse); Hamblin v. Mitchell, 354
F.3d 482 (6th Cir. 2003) (counsel failed to seek mitigating evidence and thus did not learn of
defendant’s unpleasant childhood); Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003) (counsel
presented no mitigating evidence except defendant’s one-sentence statement). Here, in contrast,
counsel sought and presented the above-described mitigating evidence. Because counsel did so,
Moore cannot show prejudice.
                                              IV. Denial of Counsel
        Moore claims the trial court violated his Sixth Amendment right to counsel when it recessed
for lunch in the middle of his testimony. The court ordered Moore not to discuss his testimony with
anyone, including his attorneys, during the 45-minute break, but allowed him to consult counsel
regarding anything else. Moore claims this order violated his right to counsel.
       The Kentucky Supreme Court, considering Moore’s direct appeal, rejected this argument.
See Moore I, 771 S.W.2d at 39-41. At the time of the Kentucky court’s 1988 decision, Geders v.
United States was the clearly established federal law on this issue. 425 U.S. 80 (1976). But while
Moore’s petition for rehearing of that decision pended, the Supreme Court decided Perry v. Leeke,
which further developed the law on this issue. 488 U.S. 272 (1989). We therefore look to Perry to

         3
            In arguing prejudice, the dissenting opinion points to “powerful” mitigating evidence that should have been
presented to the sentencing jury. Much of the evidence the dissenting opinion describes, however, was in fact before
the jury at sentencing. Moore and his aunt each testified to the severe abuse and neglect that he endured, to his mother
stabbing his father, and to his having grown up in numerous foster homes and institutions. Further, Moore testified
regarding his mother’s alcoholism and his father’s abusiveness. He described watching his father hitting his mother so
hard that his father broke his hand in three places. Finally, he testified to his further experiences with abuse, neglect,
and alcoholism in foster homes. Reverend Wilson testified that he was familiar with Moore’s background, and he
testified to the effect that such a background can have on a person.
No. 03-6105           Moore v. Parker                                                         Page 5


determine whether the Kentucky courts denied Moore a clearly established right. See Myers v.
United States, 198 F.3d 615, 618 (6th Cir. 1999) (habeas petitioner could rely on a new
constitutional rule announced before his conviction became final); Hardy v. Washington, 922 F.2d
294, 296 (6th Cir. 1990) (conviction became final for habeas purposes when Kentucky Supreme
Court denied petition for rehearing).
        The Kentucky Supreme Court rejected Moore’s claim because it concluded that he failed to
show a constitutional violation, and, even assuming a constitutional violation, he failed to show any
actual prejudice. Moore I, 771 S.W.2d at 39-41.
        We agree with the Kentucky court that Moore has failed to show a Sixth Amendment
violation. Moore correctly points out that the Kentucky court erroneously required him to show
prejudice—a requirement Perry explicitly rejected. 488 U.S. at 278. But the Supreme Court also
held in Perry that a defendant has no right to discuss his testimony with counsel during a short
recess in the middle of that testimony. 488 U.S. at 280-84. Thus the Kentucky court’s conclusion
that the recess here did not violate Moore’s Sixth Amendment rights was not unreasonable, and
Moore’s claim fails.
                                         V. Impartial Jury
        Moore next contends that the trial court denied his right to an impartial jury at sentencing
by using the same jury that convicted him. Moore argues that the jury heard prejudicial evidence
during the guilt phase—in particular, testimony of a defense witness suggesting that a previous jury
had convicted Moore and sentenced him to death—and therefore he deserved a new jury for the
penalty phase.
        On direct appeal, the Kentucky Supreme Court rejected this argument, concluding that
Moore himself presented much of the harmful evidence during the guilt phase, and that the harmful
evidence “did not rise to [a] degree of pervasiveness” so as to establish prejudice and thus require
a new jury for sentencing. Moore I, 771 S.W.2d at 37. Moore argues that the Kentucky court’s
decision constituted an unreasonable application of the clearly established law of two Supreme Court
cases: Patterson v. Colorado, 205 U.S. 454 (1907), and Leonard v. United States, 378 U.S. 544
(1964). But because neither Patterson nor Leonard clearly establishes any law relevant to Moore’s
claim, this argument fails.
       Patterson, which concerned a court’s ability to issue a contempt order against an individual
for publishing articles and cartoons criticizing the state supreme court, presents no law bearing on
Moore’s claim.
         Leonard is likewise inapposite. It involved a situation in which prospective jury members
sat in a courtroom and saw a jury announce a guilty verdict against the defendant. The government
then tried the defendant for a second crime, impaneling some of those who were present during the
first verdict. The Court held—and the government conceded—that the second jury should have been
disqualified. Leonard, 378 U.S. at 544-45. Moore argues that Leonard is clearly established law
that a jury possessing knowledge of a defendant’s guilt must be disqualified from sentencing. But
the Leonard Court limited that decision to its facts. Id. at 545 (disqualifying the jurors only “under
the circumstances of this case”). Because Moore’s situation is factually distinguishable, Leonard
cannot serve as relevant clearly established law. The Supreme Court has certainly not clearly
established that bifurcated trials are generally required in the United States, even in capital cases.
And in the absence of any clearly established law, courts deny habeas relief. See, e.g., Bugh v.
Mitchell, 329 F.3d 496, 513 (6th Cir. 2003) (“[T]here is no Supreme Court precedent that the trial
court’s decision could be deemed ‘contrary to,’ under AEDPA.”).
No. 03-6105               Moore v. Parker                                                                       Page 6


                                              VI. Cumulative Errors
        Moore claims he is entitled to relief because of cumulative trial errors. But we have held
that, post-AEDPA, not even constitutional errors that would not individually support habeas relief
can be cumulated to support habeas relief. See Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002);
Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002) (death-penalty decision stating, “The Supreme
Court has not held that distinct constitutional claims can be cumulated to grant habeas relief.”).
        Moore cites Walker v. Engle for the proposition that cumulative evidentiary errors can
warrant habeas relief. 703 F.2d 959, 963 (6th Cir. 1983). But Walker is pre-AEDPA, and is not
Supreme Court precedent, as AEDPA requires. See Lorraine, 291 F.3d at 447 (noting Walker was
pre-AEDPA and refusing to consider errors cumulatively). Because Moore can cite no Supreme
Court precedent obligating the state court to consider the alleged trial errors cumulatively, we cannot
grant relief on this ground.4
        And even if we could consider the alleged errors cumulatively, Moore’s claim would fail.
We already denied a certificate of appealability for two of the alleged errors: restriction on cross-
examination of prosecution witnesses, and failure to instruct the jury on second-degree
manslaughter. And we have above addressed and rejected Moore’s arguments regarding the other
two alleged trial errors: restricted contact between Moore and counsel during a lunch recess and use
of the same jury for the trial’s guilt and penalty phases. Thus the alleged errors, considered
individually or cumulatively, cannot support relief.
                                                  VII. Conclusion
         For the foregoing reasons, we affirm the district court’s denial of the writ of habeas corpus.




         4
           Two of this court’s unpublished post-AEDPA decisions state, in dicta, that the court may consider cumulative
error in capital cases. See Davis v. Burt, 100 Fed. Appx. 340, 351 n.1 (6th Cir. 2004); Eskridge v. Konteh, 88 Fed. Appx.
831, 836 n.1 (6th Cir. 2004). But these cases directly contradict our binding Lorraine precedent, and we expressly
repudiate them today.
No. 03-6105           Moore v. Parker                                                         Page 7


                                        ________________
                                            DISSENT
                                        ________________
        BOYCE F. MARTIN, JR., Circuit Judge, dissenting. In this death penalty case, Brian Keith
Moore’s attorneys performed reasonably at trial. These same attorneys, however, failed their client
at sentencing. If the Majority is correct and this kind of lawyering is “not even deficient
performance, let alone prejudicial,” Maj. Op. at 4, the legal profession ought to take a good look in
the mirror. I believe Brian Keith Moore is entitled to a new sentencing hearing and I respectfully
dissent.
                                                  I.
        Moore asserts that several errors occurred during his trial and sentencing and asks this Court
to vacate his conviction and/or sentence. Only one of his claims has any merit — that he received
ineffective assistance of counsel by virtue of his attorneys’ inadequate preparation for the penalty
phase of his trial. Moore claims that his counsel “failed to devote an adequate amount of time
toward preparing for the penalty phase, failed to make an in-depth investigation for background and
mitigation evidence, and failed to employ testimony from a psychological expert.” More
specifically, Moore argues that his attorneys failed to discuss Moore’s use of drugs in detail, failed
to meet with his family members, failed to find approximately ninety-five letters submitted on his
behalf during the first trial, and failed to obtain copies of school and mental health records. The
most compelling aspect of Moore’s claim is that after the mitigation psychologist retained by
Moore’s lawyers proved to be a fraud, counsel simply proceeded with the sentencing hearing
without retaining another mitigation specialist to conduct the necessary mitigation investigation.
         During the state habeas Rule 11.42 hearing, Moore presented substantial mitigation
testimony that he asserted should have been presented at trial. In addition one of Moore’s trial
attorneys testified that only between 2-3% of his and co-counsel’s time was spent preparing for the
penalty phase of the trial. Both counsel testified that they were not aware that approximately ninety-
five letters had been submitted on Moore’s behalf in the first trial, and that they did not seek an
expert to replace the psychological expert after discovering he was a fraud. Moreover, and most
critically, Moore presented Lane Veltkamp, a licensed psychologist with a masters degree in clinical
social work, to testify about Moore’s background. Veltkamp conducted a clinical interview,
interviewed family members, and reviewed mental health records, including Cabinet of Human
Resource records regarding institutional placements, foster care placements and other information
from Moore’s childhood. Veltkamp opined that at the time of the crimes Moore had problems with
“impulsiveness, poor judgment, behavior control, anger, and emotionally attaching to others.”
Veltkamp testified that these problems likely developed as a result of the severe neglect and physical
abuse that occurred during Moore’s childhood coupled with Moore’s moving between
approximately forty different living situations — including both foster homes and institutions.
These problems were further exacerbated by Moore’s drug and alcohol dependency. Specifically,
Veltkamp testified:
               The neglect was so pervasive and so chronic partially because of his
               mother’s alcohol problems, partially because his father was gone a
               great deal of time. I shouldn’t refer to mother’s problems as alcohol
               problems. She was a very severe alcoholic. She abandoned the
               children for periods of time. Even as preschoolers they were left
               alone periods of time.
No. 03-6105          Moore v. Parker                                                         Page 8


               Relatives would see the children eating dog food. Relatives were
               concerned that there were times when they were eating asbestos
               because there wasn’t food in the house. There was deprivation of
               food, deprivation of nurturance [sic], deprivation of emotional
               support. We’re not talking about something that’s isolated or
               sporadic. This was a chronic, pervasive environment for the first
               seven years of Mr. Moore’s life. In that environment was very severe
               physical abuse . . . by his father. Physical abuse of a mother by a
               father is viewed as one of the most traumatic things that a child can
               experience. It causes severe trauma to a child because a child can’t
               control it, can’t stop it, can’t prevent it. His abuse was so severe that
               on one occasion his father was hitting his mother to the point that he
               broke his own hand in attempting to hurt his mother.
(Emphasis added). Moreover, Moore spent most of his life moving to numerous different foster
homes. Veltkamp testified that:
               One or two or three moves is considered a small number of moves
               and would not necessarily impair the child. But when you’re
               approaching 20, 30, 40 moves - we think there’s as many as 30 moves
               in Brian’s first 15 to 17 years. It just has a severe impact,
               psychological impact on the child . . . This abusiveness [directed
               toward Moore] not only occurred in his own family and was very
               severe and occurred the first seven years of his life, but then he’s
               placed in a foster home where there’s continued neglect and
               alcoholism. He has multiple placements after that and he’s subjected
               to additional incidences of neglect and abuse. So this problem
               continues and the longer the duration of these kinds of events, the
               more severe the events are. Mother cutting up father. Father
               battering mother to the point that he broke his own arm. These are
               so pervasive and so chronic and occurred so many times and over
               such a long period of time that the risk of a child exposed to those
               kinds of behaviors is very, very high.
(Emphasis added).
        The district court did not reach the question of whether counsel’s decision not to present a
mitigation expert was reasonable. Instead, the court disposed of the claim by finding no prejudice
— that is, the district court concluded that Veltkamp’s testimony was just as likely to underscore
Moore’s dangerousness as it was to engender sympathy for him, and therefore a reasonable
probability did not exist that Moore’s life would have been spared by the jury. The Majority here
agrees.
        Before turning to the legal analysis, and especially because the Majority finds this case so
different from the cases where we have found ineffective assistance at sentencing, I think it is
appropriate to review the actual sentencing transcript. The district court found that counsel
“provided jurors with a general description of Moore’s difficult childhood through testimony from
Florine Shoptaw, Melanie Shoptaw, and Moore. Through testimony from Florine Shoptaw, Melanie
Shoptaw, Father Patrick Delahanty, Reverend George Wilson, Helen Pratt, Joe Koenig, and Mr.
Moore himself, [counsel] presented evidence of Moore’s human side, his desire to improve himself,
and his potential for rehabilitation through long-term incarceration.” Dist. Ct. Op. at 35.
No. 03-6105           Moore v. Parker                                                         Page 9


        After my review of the record, I would characterize the proceedings differently. Counsel did
make an opening statement at the sentencing hearing that Moore “was abandoned by his mother and
father and raised in various foster homes; that Brian Keith Moore can be rehabilitated; that he is
loved by people such as his aunt and his cousin, even if he has not been treated well and given the
attention in the early years by his natural mother and father.”
         The first witness to testify on Moore’s behalf was his aunt, Florine Shoptaw. Florine
testified that during Moore’s “very early childhood, he was in a home, my sister’s home, and it was
— there was a lot of violence there.” She continued, “I can’t say that I saw any of the violence . .
.” But, she did testify that she saw signs of violence and knew that her sister had been jailed for
stabbing her husband, though she hadn’t seen her sister between 1965 and 1978. Florine also
testified that Moore had received “none or negligible” support from his father, that Moore had lived
with his grandparents for a period of time, and that visiting him during the past few years on death
row led her to believe that he had “matured” and there was a “marked improvement even in his
vocabulary.”
        Following Florine to the stand was her daughter and Moore’s cousin, Melanie Shoptaw. Her
testimony barely covers five transcript pages. She testified that she believed Moore was innocent
and that he was going to the prison library “just trying to better himself with that and know what was
going on.”
        The next to testify was the Reverend Patrick Delahanty, whose only relevance it appears was
that he was a reverend and had a college degree in philosophy. He had one conversation with Moore
and testified regarding the content. Counsel asked whether, “[b]ased on your conversation with
Brian Keith Moore, do you feel that he has the potential to be rehabilitated?” Reverend Delahanty
replied, “Yes, I do.” He also testified that it was his belief that Moore was trying to make the best
of a bad situation and that Moore had made the decision to turn his life around.
       Following Reverend Delahanty, the deposition of Reverend George M. Wilson was read to
the jury. Wilson also appears not to have had any personal relationship with Moore or any
knowledge about his background. Instead, Reverend Wilson testified generally about socio-
economics, ethics, and morality, and, both ironically and perceptibly, that poor people have a hard
time getting good lawyers in this country. He also testified that alcohol is a depressant and that if
Moore was drunk at the time of the crime, “it should be taken seriously.”
       Moore testified next. He rather cursorily reiterated the story that his mother had once been
incarcerated for stabbing his father. He also testified that he was aware that his parents had hit one
another and that he had been placed in foster homes and the Northern Kentucky Reception Center
for running away from a foster home. Moore’s testimony was not lengthy and was rather
perfunctory, though he was, without a doubt, the only witness who truly said anything of substance.
        After Moore’s testimony, the jury heard from Helen Marie Pratt, who served as Moore’s
“boss” in prison and testified that he was a janitor and she had not had any problems with his work.
Finally, Moore’s mitigation case concluded with the testimony of Prison Chaplain Joe Paul Koenig,
who testified that he had seen Moore become more positive during his incarceration and that he
believed Moore could adapt to the prison setting.
        When one reviews the actual sentencing transcript it becomes clear that Moore’s attorneys
were simply grasping at straws. They need not have. By merely following through on their initial
decision to have a mitigation expert or mental health professional interview Moore and conduct an
investigation, Moore’s attorneys would have had plenty of compelling testimony to present and
would not have had to rely on rather weak testimony from people with only a tenuous connection
to Moore’s life.
No. 03-6105               Moore v. Parker                                                                       Page 10


                                                           II.
         Strickland v. Washington, 466 U.S. 668 (1984), Wiggins v. Smith, 539 U.S. 510 (2003), and
common sense control this case. To prevail, Moore must satisfy both the performance and prejudice
prongs of Strickland, in that he must demonstrate that counsel’s performance fell below an objective
standard of reasonableness, and then, but for counsel’s deficiencies, there is a reasonable probability
that the outcome of his sentencing would have been different. Wiggins, 539 U.S. at 521; Strickland,
466 U.S. at 687; Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005).
         The district court disposed of Moore’s claim by first determining that Moore failed to
demonstrate prejudice. The court reasoned that “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.” Dist. Ct. Op. at 38 (quoting Strickland, 466 U.S. at 697). Consequently, the
district court assumed deficient performance and assumed that had trial counsel called a mitigation
or mental health expert, that testimony would have been similar to the testimony offered by Dr.
Veltkamp at the state habeas hearing. Conceding that the “evidence demonstrates that an in-depth
investigation and psychological expert would have revealed a more graphic description of Moore’s
atrocious childhood,” id. at 40 (emphasis added), the district court nonetheless concluded that
testimony that Moore “had problems with impulsiveness, poor judgment, behavior control, anger,
and emotionally attaching to others” also “underscores Moore’s dangerousness” and therefore a
reasonable probability that the jury would have spared his life did not exist, id. at 39.
                                                           A.
         This case, like both Wiggins and Strickland, involves counsel’s decision (or more
realistically, oversight and inattention) to limit the scope of the investigation into potential
mitigation evidence. Wiggins, 539 U.S. at 521. In Wiggins, the Supreme Court reaffirmed the
principles outlined in Strickland, reiterating that “strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional judgments support
the limitations on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations unnecessary.”
Id. Because these cases result from a failure to investigate mitigation evidence, the Supreme Court
phrased the question as “not whether counsel should have presented a mitigation case. Rather, we
focus on whether the investigation supporting counsel’s decision not to introduce mitigating
evidence [of the defendant’s] background was itself reasonable.” Id. at 523 (emphasis in original).
We ordinarily review claims of ineffective assistance of counsel with hefty deference to the fully-
informed strategic decisions made by counsel. When counsel is not fully-informed or makes no
effort to become so, the traditional deference has not been earned. The critical question here is,
therefore, whether the investigation supporting counsel’s decision not to retain or introduce a
mitigation specialist was itself reasonable. In this case, there was no investigation supporting
counsel’s decision not to retain a mitigation specialist. Moreover, a strategic decision this was not.
Counsel just failed to retain a necessary expert,1 making a fully-informed decision about what
evidence to present impossible.
       The Supreme Court has made clear that the “ABA standards for counsel in death penalty
cases provide the guiding rules and standards to be used in defining the ‘prevailing professional
norms’ in ineffective assistance cases.” Hamblin v. Mitchell, 354 F.3d 482, 486 (6th Cir. 2004)
(quoting Wiggins, 539 U.S. at 524). Those standards provide that investigations into mitigating
evidence “should comprise efforts to discover all reasonably available mitigation evidence,” which

         1
          While mitigation evidence need not always be presented at a sentencing hearing, once counsel chooses to
pursue a mitigation strategy, it is entirely unreasonable not to conduct a complete investigation or to retain a mitigation
expert who does so.
No. 03-6105               Moore v. Parker                                                                      Page 11


should include investigation into “medical history, educational history, employment and training
history, family and social history, prior adult and juvenile correctional experience, and religious
and cultural influences.” Wiggins, 539 U.S. at 524 (quoting ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases 11.8.6 (1989) (emphases added)). The Majority
here fails to explain adequately, let alone at all, how counsel’s “decisions,”2 were consistent with
prevailing professional norms. The reason, I suspect, is because counsel’s performance did not meet
that standard.
        Counsel was sufficiently competent to initially recognize the value of a mitigation
psychologist as an expert witness at sentencing. Prior to the penalty phase, however, the expert
retained, “Dr.” Bresler, was exposed as a fraud. Counsel appropriately declined to call Bresler. See
also Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000), cert. denied, 534 U.S. 943 (2001) (holding that
similarly situated defense counsel acted objectively unreasonably by using Bresler in mitigation).
Instead of then retaining another psychological expert, counsel inexplicably proceeded without any
mental health professional to evaluate Moore.3 There is zero evidence that counsel made a
conscious “decision” to proceed without another mitigation specialist — rather, the record indicates
that counsel proceeded without any intelligible or cohesive strategy. Like Wiggins, “counsel
uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would
have been counterproductive, or that further investigation would have been fruitless.” Wiggins, 539
U.S. at 524.
        The importance of a mitigation or mental health specialist at sentencing cannot be overstated.
A psychologist and other types of mitigation specialists “gather facts, through professional
examination, interviews, and elsewhere, that they will share with the judge or jury.” Ake v.
Oklahoma, 470 U.S. 68, 80 (1985). Mitigation specialists investigate a defendant’s social
background, including personal, familial, school, and other records that can bear upon moral
culpability. They interview persons who could possibly have information relevant to the mitigation
case. Mental health specialists can identify disorders and medical conditions and explain them in
lay terms to the jury. Mitigation specialists know the questions to ask and the avenues of
investigation to pursue relevant to presenting a case designed to spare the defendant’s life.
Mitigation specialists are qualitatively different from lay witnesses and can translate complex
information into testimony that will assist the jury in reaching its determination. Mitigation
specialists, when counsel decides to present a mitigation defense at sentencing, are nothing short of
essential.
        This Court has emphasized the critical importance of counsel’s use of a mental health expert
at the mitigation phase of a capital trial. In Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005), this Court

         2
           See, e.g., United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989) (“counsel can hardly be said to have made
a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such
a decision could be made.”). Counsel not only did not pursue this avenue of mitigation evidence but simply failed to
make any reasoned decision not to. See Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987) (“Counsel did not make
any attempt to investigate this known lead, nor did he even make a reasoned professional judgment that for some reason
investigation was not necessary.”).
         3
           The Majority opinion seems to imply that Moore was interviewed by a psychologist at the time of his
sentencing hearing. The Majority writes that “Moore cannot show prejudice here. He does not dispute that his attorneys
researched his background and presented seven witnesses [which, as discussed, I dispute] who testified regarding his
childhood at his sentencing hearing. Another psychologist did interview Moore for three to four hours, and testified that
Moore had various problems that began to emerge during childhood . . .” Maj. Op. at 4 (emphasis added). This seems
to imply that Moore was evaluated by a psychologist in preparation for his sentencing hearing and that a psychologist
testified at his sentencing hearing, which is not true. Rather, the only psychologist to interview Moore was Mr.
Veltkamp who interviewed Moore many years later in preparation for state post-conviction proceedings. After the
psychologist that Moore’s trial counsel retained was exposed as a fraud, they did not retain another psychologist to
interview him, and presented a hollow mitigation case.
No. 03-6105               Moore v. Parker                                                                      Page 12


rejected the defendant’s claim that he received ineffective assistance of counsel. There, a mitigation
psychologist was not retained until the day before the mitigation hearing. Id. at 311. This Court
rejected the defendant’s argument that the delay in retaining the expert constituted ineffective
assistance of counsel “because the mitigation theory that the psychologist did present . . . did not
differ in material ways from the one that would have been presented with more preparation” and also
“because nine psychological and background assessments of Hill had already been undertaken by
the time the mitigation psychologist was hired and all of them were submitted to the jury during the
sentencing hearing.” Id. In reaching its conclusion, this Court noted that “this is not a case in which
expert psychologists did not have an opportunity to examine Hill until the eleventh hour.” Id. at
315. Numerous psychologists examined Hill for competency prior to trial and again during trial.
Id. In fact, “during the penalty phase and mitigation hearing, Hill’s attorneys introduced into
evidence nine reports examining his mental health.” Id. (emphasis added). The Court further
emphasized the differences between Hill’s case and cases warranting habeas relief:
         In contrast to cases involving a complete failure to investigate or a complete failure
         to put on any mitigation specialist, the question here is whether the late hiring of a
         mitigation specialist had a reasonable likelihood of altering the jury’s verdict,
         particularly when all of the post-conviction-hearing affidavits already relate in one
         way or another to the mitigation evidence that Hill’s attorneys did present.
Id. at 318 (emphasis added). This Court therefore has already explicitly recognized that a complete
failure to put on any mitigation specialist is ordinarily deficient performance by counsel.4
         Likewise, this Court’s recent decision in Harries v. Bell, 417 F.3d 631 (6th Cir. 2005),
demonstrates the importance of retaining a mental health or mitigating expert. In Harries, the Court
found deficient performance on a failure to investigate claim at sentencing even though counsel had
interviewed the defendant’s mother and brother, had sent requests for information to various
institutions at which the defendant had previously been confined, and interviewed Harries co-
defendant and two state witnesses. Id. In addition counsel had requested two court-ordered
competency evaluations. Id. Nonetheless, this Court held that counsel’s performance was deficient
because “they declined to seek the assistance of a mental health expert or conduct a thorough
investigation of Harries’s mental health, even after Harries’s mother alerted them that Harries
suffered from mental illness. Nor did counsel adequately investigate Harries’s family background,
despite indications of Harries’s troubled childhood.” Id. at 638 (emphasis added). How Moore’s
case regarding evaluating the performance of counsel is any different is not clear to me.
        The Supreme Court generally has eschewed — though less vigorously as of late — bright
line rules for defense counsel. I would hope that we had reached a point where, having recognized
the necessity of mitigation specialists in capital cases, we could further agree that when counsel
chooses to go the mitigation route, “prevailing professional norms” require counsel to retain a
mitigation specialist. This is not to say that counsel is required to actually present the testimony of
a mitigation specialist in all cases. Possibly, after some — though likely few — investigations into
a capital defendant’s background, there will be reasonable strategic considerations that weigh
against presenting the specialist. In light of the American Bar Association Standards, the fact that
most capital defendants come from troubled backgrounds, and decades of experience, it is
unfathomable to me, however, that counsel in any capital case would fail in the first instance to even
retain a mitigation specialist to investigate. That this Court puts its imprimatur on this kind of
lawyering is even more troubling.


         4
           Likewise, other courts have recognized that “it is probably true that defense counsel in a capital case should
routinely have their client evaluated by a mental-health professional.” Jones v. Delo, 258 F.3d 893, 902 (8th Cir. 2001),
cert. denied, 535 U.S. 1066 (2002).
No. 03-6105           Moore v. Parker                                                          Page 13


         Notwithstanding the critical importance of a mitigation specialist, the Majority concludes
that counsel’s performance at the penalty stage was not as egregious as in some other cases where
counsel presented no mitigation evidence, see, e.g., Hamblin, 352 F.3d 482, and therefore rejects
Moore’s claim. The Majority fails, however, to explain why it draws this distinction and why this
distinction is sufficient to end the inquiry. We have never held that counsel is ineffective only when
wholly failing to investigate or present any mitigation evidence and our case law belies such a
conclusion. See Towns, 395 F.3d at 258 (“Courts have not hesitated to find ineffective assistance
. . . when counsel fails to conduct a reasonable investigation into one or more aspects of the case.”).
Some investigation does not equal a reasonable investigation. Some evidence does not equal
effective assistance. Counsel who presents mitigation evidence of one type — perhaps of a
defendant’s capacity for rehabilitation — but who unreasonably and for no strategic reason omits
powerful and compelling mitigation evidence of social history or mental illness is still
constitutionally ineffective. See e.g., Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) (noting that
in order to establish prejudice, a habeas petitioner must introduce evidence that differs in strength
and subject matter from evidence presented at trial). I fail to see why the Majority concludes its
inquiry merely because counsel presented some mitigation evidence (of dubious relevance).
Moreover, presenting some mitigating evidence is not the same as presenting meaningful mitigating
evidence.
        Furthermore, the Majority mischaracterizes the facts of Wiggins. Wiggins was not a case,
as the Majority claims, where counsel completely failed to make any investigation into mitigating
evidence. The Maryland Court of Appeals noted that counsel had obtained “detailed social service
records that recorded incidences of physical and sexual abuse, an alcoholic mother, placements in
foster care, and borderline retardation.” Wiggins v. State, 352 Md. 580, 608-609 (1999). Further,
the Court of Appeals emphasized that “counsel did investigate and were aware of appellant’s
background.” Id. at 610 (emphases in original). Further, the Fourth Circuit in Wiggins, as the
Majority does here, drew a distinction between cases where counsel wholly failed to investigate,
such as Williams v. Taylor, and cases, such as Wiggins’s where counsel “knew at least some details
of Wiggins’[s] childhood from the PSI and social services records.” Wiggins, 539 U.S. at 519
(citing Wiggins v. Corcoran, 288 F.3d 629, 639-40 (4th Cir. 2002)). The Supreme Court recognized
as much, but still found counsel’s investigation deficient. According to the Supreme Court, “the
scope of [counsel’s] investigation was also unreasonable in light of what counsel actually discovered
in the DSS records. The records revealed several facts: Petitioner’s mother was a chronic alcoholic;
Wiggins was shuttled from foster home to foster home and displayed some emotional difficulties
while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother
left him and his siblings alone for days without food.” Id. at 525. Thus, Wiggins’s counsel, like
Moore’s counsel here, had some highly relevant, though limited, knowledge of the atrocious
childhood their client endured. In both cases, however, counsel failed to investigate further when
a reasonable attorney would have pursued the leads identified. Id.
        Moreover, counsel was aware generally of Moore’s troubled childhood. This general
knowledge, as in Wiggins, heightened counsel’s responsibility to investigate further so as to
competently choose among evidence to present. Wiggins, 539 U.S. at 525. In light of counsel’s
brief knowledge of Moore’s background, which indicated a troubled childhood, “counsel chose to
abandon their investigation at an unreasonable juncture, making a fully informed decision with
respect to sentencing strategy impossible.” Id. at 527-28. While counsel did present some
mitigation evidence, “[c]ourts have not hesitated to find ineffective assistance in violation of the
Sixth Amendment when counsel fails to conduct a reasonable investigation into one or more aspects
of the case.” Towns, 395 F.3d at 258. When counsel chooses to present a mitigation defense
complete with the testimony of a mental health expert, but for reasons wholly unrelated to the need
for the expert or strength of the mitigation case, becomes unable to use that particular expert, it is
No. 03-6105               Moore v. Parker                                                                      Page 14


particularly deficient performance when for no strategic reason counsel simply fails to retrain
another expert to conduct the background investigation.5
        In this case, it is true that counsel presented seven witnesses, including Moore himself. It
is not true that Moore “presented four witnesses who testified regarding his childhood at his
sentencing hearing.” Maj. Op. at 4. Rather, as the previous section demonstrates, only Moore
himself and his aunt Florine even mentioned his childhood, and Florine’s testimony was largely
hearsay or speculation. The others who testified were his cousin who said nothing relevant, three
clergy members, and a prison worker. The fact that these witnesses were presented does not justify
an inadequate investigation and failure to present a mitigation specialist in light of what was
ultimately learned and presented by Veltkamp.
        Furthermore, in Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000), this Court found ineffective
assistance of counsel when trial counsel used an incompetent and fraudulent mitigation “expert” at
sentencing. There, Bresler, the same fraudulent “expert” at issue here, was used by the defense at
trial and testified comically and irrationally. Nonetheless, counsel chose to use Bresler again at
sentencing. Id. at 273-74. The Court found, therefore, that counsel’s “failure to investigate and
present meaningful mitigating evidence, and their decision to use an incompetent and fraudulent
‘psychologist’ as the central mitigation witness [] rendered counsel constitutionally ineffective.”
Id. at 267. I fail to see why counsel in Moore’s case was any less deficient by realizing it unwise
to go forward and use Brelser, but instead of retaining another expert, simply failing to retain any
mitigation specialist, for no strategic reason whatsoever. Our Court’s decision in Skaggs reflects
the conclusion that using a fraudulent mitigation expert is tantamount to using no mitigation expert
— which results in a finding of deficient performance. The Majority’s conclusion in this case,
therefore, is in conflict with our previous decision in Skaggs and Hill.
        Finally, the fact that counsel simply failed to retain another expert “underscores the
unreasonableness of counsel’s conduct by suggesting that their failure to investigate thoroughly
resulted from inattention, not reasoned strategic judgment.” Wiggins, 539 U.S. at 526. I would hold
that counsel performed a constitutionally deficient investigation into mitigating evidence by failing
to retain a mitigation specialist.
                                                           B.
         The inquiry, however, still requires a determination as to whether counsel’s deficient
performance prejudiced the defendant. The mitigation evidence in this case is powerful. The key
testimony at Moore’s Rule 11.42 hearing was from Lane Veltkamp, a licensed psychologist with a
masters degree in social work. Veltkamp conducted a standard psychological evaluation and
investigation into Moore’s background. Veltkamp testified to the severe neglect and physical abuse
that Moore endured, nearly forty moves to foster homes and institutions, an alcoholic mother and
abusive father, and more. Moore and his siblings were left home alone for extended periods of time,
and relatives observed the children eating dog food and asbestos because there was no food in the
house. Moore observed his father physically abusing his mother, one time so ruthlessly that Moore’s
father broke his hand from hitting his mother so many times. He also observed his mother attempt
to stab, slash and cut his father. Because of this abuse, Moore moved in between foster homes and
institutions up to forty times, where the abuse, neglect, and alcoholism continued. Even the district
court conceded that the mitigation “evidence demonstrates that an in-depth investigation and


         5
           In addition, counsel failed to meet with family members, failed to find approximately ninety-five letters
submitted on Moore’s behalf in his first trial, and more importantly, failed to obtain copies of school and mental health
records. These additional failures to investigate Moore’s background demonstrate the inadequacy of counsel’s mitigation
investigation.
No. 03-6105           Moore v. Parker                                                          Page 15


psychological expert would have revealed a more graphic description of Moore’s atrocious
childhood.” Dist. Ct. Op. at 40 (emphasis added).
         Moore’s story, in fact, is quite similar to Wiggins’s. As previously noted, Wiggins’s “mother
was a chronic alcoholic; Wiggins was shuttled from foster home to foster home and displayed some
emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least
one occasion, his mother left him and his siblings alone for days without food.” Wiggins, 539 U.S.
at 525. The mitigation investigation revealed that Moore was left alone on more than one occasion
for days without food. It revealed that he was abused and witnessed his parents abusing and nearly
killing one another. It revealed approximately twenty more moves between foster homes and
institutions than Wiggins. There are aspects of Wiggins’s background that surely are worse — he
was both molested and raped repeatedly. Id. at 535. Nonetheless, the absence of sexual abuse in
Moore’s background does not diminish the “excruciating life history” he experienced. Id. at 537.
        Furthermore, the aggravating factors in Moore’s history are not as severe as those at issue
in Williams v. Taylor, 529 U.S. 362 (2000), where the Supreme Court found deficient performance
and prejudice. As the Chief Justice wrote in his dissent, Williams had savagely beaten an elderly
woman, stolen two cars, set fire to a house, stabbed a man during another robbery, confessed to
choking two inmates and breaking a fellow prisoner’s jaw. Id. at 418. Here, as in Wiggins, “the
mitigating evidence in this case is stronger, and the State’s evidence in support of the death penalty
far weaker, than in Williams, where [the Supreme Court] found prejudice as the result of counsel’s
failure to investigate and present mitigating evidence.” Wiggins, 539 U.S. at 537-38.
         The district court ruled that Moore was not prejudiced by counsel’s failure to present a
psychological expert at trial. The court believed that any psychological testimony that would have
been presented at trial would have been similar to that given at the Rule 11.42 hearing. In addition
to testifying regarding Moore’s horrible childhood, Veltkamp testified that Moore was impulsive,
had poor judgment and behavior control, and problems with anger and emotionally attaching to
others. Based on these traits, the district court concluded that the testimony underscored Moore’s
dangerousness, and therefore he suffered no prejudice by the failure to present it at trial. I disagree.
These traits attributed to Moore were cast by Veltkamp as the result of Moore’s troubled
background. “Evidence about the defendant’s background and character is relevant because of the
belief, long held by this society, that defendants who commit criminal acts that are attributable to
a disadvantaged background . . . may be less culpable than defendants who have no such excuse.”
Wiggins, 539 U.S. at 535 (quoting Penry v. Lynaugh, 492 U.S. 302, 319 (1989)).
        Given the great weight of mitigation evidence in Moore’s background, I would hold that
there is a reasonable probability that a competent attorney would have introduced the evidence at
sentencing. See Wiggins, 539 U.S. at 535. Had the jury been confronted with the considerable
mitigating evidence, as well as the evidence cited by the district court regarding Moore’s behavioral
problems, there is a reasonable probability the jury would have returned a different sentence. I
would therefore hold that based on the totality of the evidence “both adduced at trial, and the
evidence adduced in the habeas proceeding[s],” Id. at 536 (quoting Williams, 529 U.S. at 397-98),
that there is a reasonable probability that the jury would have spared Moore’s life.
         The Majority here holds that Moore suffered no prejudice because Veltkamp’s testimony was
just as likely to impact Moore negatively as it was to engender sympathy for him. According to the
Majority opinion, introducing testimony about the information Veltkamp uncovered “would likely
have made him look even worse to the jury.” Maj. Op. at 4. This so-called negative testimony
consists, in its entirety, of Veltkamp’s statements that Moore had problems with “impulsiveness,
poor judgment, behavior control, anger, and emotionally attaching to others.” The Majority’s
decision that this testimony entirely counteracts the immense weight of the mitigation evidence
No. 03-6105                Moore v. Parker                                                                       Page 16


proves just how truly malleable the prejudice inquiry can be.6 In any event, this Court recently
stated in Harries that “[i]t is possible, of course, that a jury could have heard the evidence described
above, and still have decided on the death penalty, but, as the Supreme Court noted in Rompilla, that
is not the appropriate test. Instead, we must ask whether the available mitigating evidence, taken
as a whole, might well have influenced the jury’s appraisal of Harries culpability.” Harries, 417
F.3d at 640 (citations and quotation marks omitted and emphasis added). A reasonable probability
does not require a virtual certainty of a different result. See Rompilla v. Beard, 125 S.Ct. 2456, 2469
(2005) (“although we suppose it is possible that a jury could have heard [the mitigation evidence]
and still have decided on the death penalty, that is not the test...the likelihood of a different result
if the evidence had gone in is ‘sufficient to undermine confidence in the outcome’ actually reached
at sentencing”).
        In my opinion there is far more mitigating evidence here than is necessary to undermine
confidence in the outcome of the sentencing hearing. This type of childhood is all too common in
criminal defendants, but not common enough, I hope, for a jury not to be reasonably influenced by
it. For Moore to prevail, we need not conclude that the unheard mitigating testimony would have
beyond a reasonable doubt resulted in a different outcome. In fact, we need not even be convinced
that the jury would ultimately reach a different outcome. All that we must be convinced of is that
there is a reasonable probability that the jury would reach a different conclusion. I believe Moore
has satisfied this standard.
        By reaching the opposite conclusion, I think the Majority’s analysis lacks the proper
perspective and reads too much into the so-called negative testimony from Veltkamp. By the time
of the penalty phase, it is clear, I think, that the jury had already convicted Moore of murder. Not
only had the jurors already convicted Moore of murder, but, due to some prior testimony, they knew
that a previous jury had convicted Moore of the same crime. It would not be a stretch therefore, to
assume that the jury might have already begun to suspect that Moore had some anger management
issues. Hearing the term “poor judgment” to describe Moore would not likely have left the jury
flummoxed. Rather, hearing about a childhood such as Moore’s would, I hope, have more of an
effect on a jury than hearing that a convicted murderer has exercised some poor judgment.
        Once again, the information that the jury never heard testimony about consisted of a graphic
description of Moore’s atrocious childhood. Moore was repeatedly abused, abandoned,
malnourished, forced to eat dog food to survive, witness to his mother and father nearly killing each
other through domestic violence, and he continued to be abused while living in upwards of thirty
to forty foster homes by the age of eighteen. On the other hand, there is testimony that as a result
of these childhood traumas, Moore has problems with anger and poor judgment. Moore is entitled
to have a new sentencing jury hear all of this information before reaching a decision on whether the
State of Kentucky executes Moore.
        Finally, in making this determination, I would find that the Supreme Court of Kentucky
unreasonably applied Strickland and Wiggins to the facts of Moore’s case and the requirements for
habeas relief established by 28 U.S.C. § 2254(d) are therefore satisfied. Because I would grant the
writ of habeas corpus and order a new sentencing hearing, I respectfully dissent.


         6
           The Majority does not indicate, nor has the Supreme Court, exactly what we are to consider in undertaking
the prejudice inquiry. Do we consider that juries are imposing the death penalty less and less? Do we consider that
Moore’s crime, while violent and reprehensible, is really not the type of murder that a defendant often gets sentenced
to death for, either in Kentucky or across the United States. Do we consider the vast number of murders that occurred
in Kentucky before and since Moore’s crime where the defendant was not sentenced to death? Do we consider what
other juries tend to do when confronted with the type of mitigating information that Moore’s attorneys failed to present?
It seems to me that if the answer to any of these questions is yes, the great weight of evidence leans in favor of a finding
of prejudice.
No. 03-6105           Moore v. Parker                                                         Page 17


                                          *       *       *
       I have been a judge on this Court for more than twenty-five years. In that time I have seen
many death penalty cases and I have applied the law as instructed by the Supreme Court and I will
continue to do so for as long as I remain on this Court. This my oath requires. After all these years,
however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and
so fundamentally flawed at its very core that it is beyond repair.
        The flaws are numerous and the commentators have documented them well. There have
been numerous death row exonerations. In fact, in some states the pace of exonerations competes
with the pace of executions. See e.g., Death Penalty Information Center Searchable Database,
http://www.deathpenaltyinfo.org/executions.php, last accessed September 6, 2005 (indicating that
since 2000, Louisiana has executed two individuals while five individuals have been exonerated
from death row). Blatant racial prejudice continues to infest the system. See, e.g. Miller-El v.
Dretke, 125 S. Ct. 2317 (2005). Peremptory challenges tilt the balance from the outset in favor of
death. Id. at 2340 (Breyer, J., concurring). The election of state judges creates another subtle bias
toward death. Justice John Paul Stevens, Address to the American Bar Association Thurgood
Marshall Awards Dinner Honoring Abner Mikva (Aug. 6, 2005), available at
http://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html. Crime labs are unreliable,
see Ralph Blumenthal, Officials Ignore Houston Lab’s Troubles, Report Finds, N.Y.
TIMES, A10 (July 1, 2005); The Innocence Project, DNA News,
http://www.innocenceproject.org/dnanews/index.php (documenting suspension of DNA testing in
Houston, Texas as a result of lab incompetence); see also House v. Bell, 386 F.3d 668 (6th Cir.
2004), cert. granted 125 S. Ct. 2991 (2005), witness identifications continue to prove faulty, and
false testimony and false confessions plague the system, see e.g., The Innocence Project,
http://www.innocenceproject.org/case/display_profile.php?id=07 (case of Rolando Cruz). The death
penalty has proved to be an ineffective cure for society’s ills, public support continues to erode, and
we share the dubious distinction of being the only western democracy that continues to put its own
citizens to death. Of particular relevance to this case, the bad lawyering and incomprehensible
arbitrariness that permeate the system should disgust any person concerned with the fair
administration of criminal justice. Many of these flaws are rightfully brought to the attention of the
nation’s political leaders. Notwithstanding, many of these flaws are legally relevant to the Eighth
Amendment question — namely, under “evolving standards of decency,” Trop v. Dulles, 356 U.S.
86, 100-01 (1958) (plurality opinion), “whether people who were fully informed as to the purposes
of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.” Furman
v. Georgia, 408 U.S. 238, 360 (1972) (Marshall, J., concurring).
        An even better argument, in my opinion, is that the death penalty violates the Fourteenth
Amendment because it is so transparently arbitrary that the system in its entirety fails to satisfy due
process. More than ten years have passed since Justice Blackmun’s statements in Callins v. Collins,
510 U.S. 1141 (1994) (Blackmun, J., dissenting from denial of certiorari), regarding the failure of
the death penalty system due to the absence of consistency, rationality, and fairness in its
administration. It has only gotten worse. Justice Stevens’s recent address to the American Bar
Association thoughtfully makes the case that there are “special risks of unfairness” in the
administration of the death penalty. Justice John Paul Stevens, Address to the American Bar
Association Thurgood Marshall Awards Dinner Honoring Abner Mikva (Aug. 6, 2005) (“[W]ith the
benefit of DNA evidence, we have learned that a substantial number of death sentences have been
imposed erroneously. That evidence is profoundly significant - not only because of its relevance to
the debate about the wisdom of continuing to administer capital punishment, but also because it
indicates that there must be serious flaws in our administration of criminal justice . . . My review
of many trial records during recent years has, however, persuaded me that there are other features
of death penalty litigation [aside from ineffective assistance of counsel] that create special risks of
unfairness.”).
No. 03-6105          Moore v. Parker                                                       Page 18


        As noted above, while the system suffers from many flaws, much of the arbitrary imposition
of the death penalty stems from the exceedingly distressing fact that during all my years on the
bench, the quality of lawyering that capital defendants receive has not substantially improved. In
many cases it has deteriorated. In fact, one of the most clear examples of the arbitrariness of the
death penalty is the common knowledge that those defendants with decent lawyers rarely get
sentenced to death. Death has more to do with extra-judicial factors like race and socio-economic
status than with whether death is deserved. A system, whose basic justification is the interest in
retribution and general deterrence, is not served when guided by such irrelevant factors. Nor should
a system of life and death hinge on the proficiency of counsel.
        I have no delusions of grandeur and I know my place in the judiciary. My oath requires me
to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as
I am told until the Supreme Court concludes that the death penalty cannot be administered in a
constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea
that the death penalty is fairly and rationally imposed in this country is a farce.
