                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               November 7, 2017
                                       PUBLISH                Elisabeth A. Shumaker
                                                                  Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT



 EMMANUEL LITTLEJOHN,

          Petitioner - Appellant,

 v.                                                       No. 14-6177

 TERRY ROYAL, Warden, Oklahoma State
 Penitentiary, *

          Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Western District of Oklahoma
                            (D.C. No. 5:05-CV-00225-M)


Sarah M. Jernigan, Assistant Federal Public Defender (Randy A. Bauman,
Assistant Federal Public Defender, with her on the briefs), Oklahoma City,
Oklahoma, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney
General, with him on the brief), Office of the Attorney General for the State of
Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.


Before TYMKOVICH, Chief Judge, LUCERO and HOLMES, Circuit Judges.




      *
            Pursuant to Fed. R. App. P. 43(c)(2), Terry Royal, the current
Warden of the Oklahoma State Penitentiary, is automatically substituted for Anita
Trammell as Respondent in this case.
HOLMES, Circuit Judge.


      Following various Oklahoma state-court proceedings, an Oklahoma jury

convicted Emmanuel Littlejohn of first-degree murder and sentenced him to

death. This case—which comes before us for a second time—arises from the

district court’s denial of Mr. Littlejohn’s petition for a writ of habeas corpus

under 28 U.S.C. § 2254.

      The first time around the district court found Mr. Littlejohn’s ineffective-

assistance and cumulative-error claims—among twelve other bases for

relief—meritless or procedurally barred. Reviewing the district court’s

conclusions de novo, we addressed the declaration of Dr. Manual Saint Martin, a

psychiatrist who diagnosed Mr. Littlejohn—for the first time—with undefined,

synapse-level neurological deficits, or an organic brain disorder. Given that

evidence, we reasoned that the disposition of Mr. Littlejohn’s ineffective-

assistance claim—and, derivatively, his cumulative-error claim—hinged on

whether Dr. Saint Martin’s averments would prove worthy of belief, because

“[e]vidence that an organic brain disorder was a substantial factor in engendering

Mr. Littlejohn’s life of deviance probably would have been a significant favorable

input for Mr. Littlejohn in the jury’s decisionmaking calculus” during the penalty

phase. Littlejohn v. Trammell (Littlejohn I), 704 F.3d 817, 864 (10th Cir. 2013).

As a result, we remanded the case to the district court for an evidentiary hearing


                                          2
on whether Mr. Littlejohn’s trial counsel proved ineffective by failing to

adequately investigate and present to the jury a mitigation theory of organic brain

damage.

      On remand, the district court held an evidentiary hearing; the parties

presented the testimony of various individuals—including Dr. Saint Martin and

Mr. Littlejohn’s trial counsel, James Rowan. Following the hearing, the district

court largely restated its earlier findings and again denied Mr. Littlejohn habeas

relief on his ineffective-assistance and cumulative-error claims. Mr. Littlejohn

now appeals from the district court’s judgment on remand. With the benefit of a

more robust factual record relative to Mr. Littlejohn’s alleged organic brain

damage, for the reasons that follow, we affirm.

                                          I

      In Littlejohn I, we detailed the factual and procedural backdrop of Mr.

Littlejohn’s state-court conviction and sentencing. See 704 F.3d at 822–24. In

brief, in 1992, Mr. Littlejohn and his acquaintance Glenn Bethany robbed a

convenience store in Oklahoma City. As the robbery neared its conclusion, one

of the store’s employees—Kenneth Meers—took a fatal shot to the face.

Although Mr. Littlejohn maintained that he did not fire the fatal shot, a jury

convicted him of first-degree murder and sentenced him to death in 1994. In

1998, however, the Oklahoma Court of Criminal Appeals (“OCCA”) vacated and

remanded his initial death sentence, because the trial court improperly admitted

                                          3
uncorroborated testimony suggesting that Mr. Littlejohn had confessed to the

killing of Mr. Meers and also an unrelated murder. See Littlejohn v. State, 989

P.2d 901, 910–12 (Okla. Crim. App. 1998). At resentencing, a jury again

sentenced Mr. Littlejohn to death, based on two aggravating circumstances: (1)

his previous conviction for a violent felony, and (2) the fact that he posed a

continuing threat to society.

      Following Mr. Littlejohn’s unsuccessful efforts for state post-conviction

relief, he filed a habeas petition under 28 U.S.C. § 2254 in federal district court.

See Littlejohn v. Workman, No. CIV-05-225-M, 2010 WL 2218230 (W.D. Okla.

May 27, 2010) (unpublished). As relevant here, he argued that (1) the

prosecution violated his due process rights by failing to give adequate notice of

certain evidence it intended to present at resentencing in support of the

continuing-threat aggravator; (2) the introduction of the testimony of two

witnesses violated his rights under the Confrontation Clause, because the

prosecution failed to make the necessary showing of unavailability; (3) his trial

counsel had been constitutionally ineffective for failing to investigate and present

evidence of his organic brain damage; and (4) the cumulative weight of these

errors entitled him to relief.

      The district court denied Mr. Littlejohn’s petition, and he brought his first

appeal. In Littlejohn I, we affirmed the district court’s disposition of Mr.

Littlejohn’s due-process and Confrontation Clause claims, but reversed the

                                          4
district court’s judgment as to the ineffective-assistance claim and vacated its

judgment as to the cumulative-error claim, with instructions to the district court

to conduct an evidentiary hearing on remand. See 704 F.3d at 822. Following an

evidentiary hearing, the district court again denied Mr. Littlejohn’s petition, see

Littlejohn v. Trammell, No. CIV-05-225-M, 2014 WL 3743931 (W.D. Okla. July

30, 2014) (unpublished), and he filed this appeal.

                                          II

      We begin with Mr. Littlejohn’s ineffective-assistance claim. To make out

an ineffective-assistance claim, a petitioner “must show both that his counsel’s

performance ‘fell below an objective standard of reasonableness’ and that ‘the

deficient performance prejudiced the defense.’” Byrd v. Workman, 645 F.3d

1159, 1167 (10th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668,

687–88 (1984)). These two prongs may be addressed in any order; indeed, in

Strickland, the Supreme Court emphasized that “if it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course

should be followed.” 466 U.S. at 697; accord Byrd, 645 F.3d at 1167; Knighton

v. Mullin, 293 F.3d 1165, 1178 (10th Cir. 2002). Here, we take this approach and

conclude that, even assuming arguendo that Mr. Rowan’s performance was

constitutionally deficient, Mr. Littlejohn’s ineffective-assistance claim fails on

the basis of lack of prejudice.

      Under the prejudice prong, a petitioner must demonstrate “a reasonable

                                          5
probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “When a

petitioner alleges ineffective assistance of counsel stemming from a failure to

investigate mitigating evidence at a capital-sentencing proceeding, ‘we evaluate

the totality of the evidence—both that adduced at trial, and the evidence adduced

in habeas proceedings.’” Williams v. Trammell, 782 F.3d 1184, 1215 (10th Cir.

2015) (quoting Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004)), cert. denied,

--- U.S. ----, 136 S. Ct. 806 (2016).

      In doing so, we “reweigh the evidence in aggravation against the totality of

available mitigating evidence,” Hooks v. Workman, 689 F.3d 1148, 1202 (10th

Cir. 2012) (quoting Young v. Sirmons, 551 F.3d 942, 960 (10th Cir. 2008)),

considering “the strength of the State’s case and the number of aggravating

factors the jury found to exist, as well as the mitigating evidence the defense did

offer and any additional mitigating evidence it could have offered,” Knighton, 293

F.3d at 1178. “[W]e must consider not just the mitigation evidence that

Defendant claims was wrongfully omitted, but also what the prosecution’s

response to that evidence would have been.” [Michael] Wilson v. Trammell, 706

F.3d 1286, 1306 (10th Cir. 2013); accord Grant v. Trammell, 727 F.3d 1006,

1022 (10th Cir. 2013). At the end of the day, “[i]f ‘there is a reasonable

probability that at least one juror would have struck a different balance’—viz.,

that ‘at least one juror would have refused to impose the death

                                           6
penalty’—prejudice is shown.” Hooks, 689 F.3d at 1202 (citations omitted) (first

quoting Wiggins v. Smith, 539 U.S. 510, 537 (2003); then quoting Wilson v.

Sirmons, 536 F.3d 1064, 1124 (10th Cir. 2008) (Hartz, J., concurring)).

      Under the foregoing rubric, we begin by discussing the salient aspects of

the procedural history and factual background of Mr. Littlejohn’s ineffective-

assistance claim. We then turn to whether the more comprehensive factual record

now before us lends force to Mr. Littlejohn’s claim of prejudice under Strickland.

                                         A

      In his habeas petition, Mr. Littlejohn asserted that his trial counsel, Mr.

Rowan, rendered ineffective assistance in the resentencing proceeding by failing

to adequately investigate and present a mitigation theory of organic brain damage.

Rather, Mr. Rowan focused his mitigation case on the testimony of Dr. Wanda

Draper, a developmental epistemologist who presented a socio-psychological

account of the impact that Mr. Littlejohn’s troubled upbringing had on his

development. More specifically, Dr. Draper testified extensively about the

substance abuse of Mr. Littlejohn’s mother during her pregnancy and regarding

the lack of nurturing and attention that Mr. Littlejohn received as a child, and

then explained the stunted development that Mr. Littlejohn suffered as a result of

these factors. In particular, she testified that Mr. Littlejohn had long exhibited

emotional problems and disruptive behavior, and determined that, although he

understood the difference between right and wrong, he often did not act on that

                                          7
knowledge. More specifically, on cross-examination, Dr. Draper stated that she

did not think that Mr. Littlejohn had “a mental illness per se”; rather, “he had

emotional disturbance, [and] he was a troubled child.” State R., Vol. VI,

Resentencing Tr. at 133.

      In his habeas petition, Mr. Littlejohn advanced the view that Mr. Rowan

should have investigated and presented evidence of organic brain damage that he

suffered as a result of his mother’s drug use during her pregnancy with him. In

order to buttress that assertion, Mr. Littlejohn attached a declaration from Dr.

Saint Martin, a psychiatrist who examined him in 2005, five years after his

resentencing. In the declaration, Dr. Saint Martin stated that “Mr. Littlejohn’s

history and behavioral symptomatology presented indications of neuro-

developmental deficits.” R., Vol. I, at 176. In other words, Mr. Littlejohn’s brain

was “not ‘wired’ correctly” at the “level of the synapse[—i.e.,] the microscopic

connections between individual brain cells.” Id. at 177. Dr. Saint Martin

specifically explained that Mr. Littlejohn “suffer[ed] [from] a behavioral disorder

manifested by poor impulse control, psychological immaturity and judgment [and]

caused by neurodevelopmental deficits experienced in his peri-natal

development.” Id. Finally, Dr. Saint Martin described these deficits as

“irreparable, but . . . treatable” because “drug therapy” can “control the behavior

and diminish the impulsivity, which creates most of the problems in interacting

with society.” Id. at 178–79. Based on Dr. Saint Martin’s declaration, Mr.

                                          8
Littlejohn argued that Mr. Rowan acted ineffectively by failing to investigate and

present evidence of Mr. Littlejohn’s organic brain damage during his

resentencing.

      In its initial consideration of Mr. Littlejohn’s habeas petition, the district

court denied relief on the ineffective-assistance claim. See Littlejohn, 2010 WL

2218230, at *26–*30. The district court first found de novo review of Mr.

Littlejohn’s claim appropriate, because the state court had not adjudicated the

claim on its merits, and because the State did not argue that Mr. Littlejohn

procedurally defaulted his claim. See id. at *27. Reviewing the claim de novo,

the district court found that Mr. Littlejohn had failed to demonstrate any prejudice

flowing from Mr. Rowan’s allegedly deficient performance, because Dr. Draper

had provided the jury with a complete picture of Mr. Littlejohn’s troubled

personal development. See id. at *28–*30. The district court thus concluded that

the evidence that Dr. Saint Martin could have presented “would not have had a

pervasive effect on the jury’s decision”; as a result, it found “no reasonable

probability that the balancing of the aggravating and mitigating evidence would

have led the jury to return a sentence other than death.” Id. at *30.

      In Littlejohn I, we reversed the district court’s judgment on this claim. At

the outset, we detailed two unique procedural features of Mr. Littlejohn’s

ineffective-assistance claim. First, we emphasized that the absence of a state-

court “merits adjudication” or a “procedural default” on the ineffective-assistance

                                           9
claim triggered a merits-based de novo review. 704 F.3d at 855. Second, we

determined that Mr. Littlejohn’s essentially unchallenged diligence in developing

the factual basis for his ineffective-assistance claim relieved him of the obligation

of satisfying the “strict standards for an evidentiary hearing” under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Id. at 858.

      Undertaking our own de novo review, we concluded—based on the

averments in Dr. Saint Martin’s declaration—that Mr. Littlejohn’s ineffective-

assistance claim “may have merit.” Id. at 856 (emphasis added). We noted that

“[e]vidence that an organic brain disorder was a substantial factor in engendering

Mr. Littlejohn’s life of deviance probably would have been a significant favorable

input for Mr. Littlejohn in the jury’s decisionmaking calculus.” Id. at 864.

Evidence of organic brain damage, we explained, could have strengthened Mr.

Littlejohn’s mitigation case by offering “at least a partial explanation” for his

extensive criminal history—and importantly, one grounded in his physical,

neurological deficits. Id.

      In addition, the evidence of organic brain damage could have weakened the

prosecution’s case in support of the continuing-threat aggravator, by “offer[ing] a

less blameworthy explanation of Mr. Littlejohn’s extensive criminal history” and

by providing some suggestion that Mr. Littlejohn suffered from treatable deficits.

Id. at 865. Along these lines, we emphasized that evidence of organic mental

deficits “ranks among the most powerful types of mitigation evidence available”

                                          10
and stressed that such evidence is qualitatively different—in significant

ways—from the social-environment evidence that we typically are called on to

consider in capital habeas cases. Id. at 864.

      Based on the current record, we concluded as to the prejudice showing that

Dr. Saint Martin’s declaration created “a reasonable probability that [the

presentation of] such evidence would have led at least one juror to support a

sentence less than death.” Id. In other words, we determined—under the limited

circumstances developed at that time—that “[e]vidence that an organic brain

disorder was a substantial factor in engendering Mr. Littlejohn’s life of deviance

probably would have been a significant favorable input for Mr. Littlejohn in the

jury’s decisonmaking calculus,” and that Mr. Rowan’s failure to investigate and

present organic-brain-damage evidence (as sketched by Dr. Saint Martin) would

have caused Mr. Littlejohn prejudice. Id.; see id. at 865–67.

      However, we also underscored that further factual development would be

necessary before a definitive conclusion could be reached regarding the merits of

Mr. Littlejohn’s ineffective-assistance claim. Id. at 856. Indeed, we emphasized

the “highly fact-bound” nature of Mr. Littlejohn’s particular ineffective-

assistance claim, and thus explained that “[a] further exploration of the substance

of Dr. Saint Martin’s findings might well reveal significant theoretical or factual

holes that would make a finding of deficient performance or prejudice unsound.”

Id.

                                         11
      Consistent with our reticence to reach definitive determinations on the

undeveloped record, we said:

             [W]e conclude that Mr. Littlejohn has alleged a mitigation theory
             and supporting facts which, if true, would entitle him to relief
             under Strickland—viz., would justify us in concluding that his
             counsel was constitutionally deficient in failing to investigate
             and put on mitigating evidence concerning Mr. Littlejohn’s
             claimed physical brain injury and that, but for that failure, there
             is a reasonable probability that the jury would have selected a
             penalty less than death.

Id. at 867. In light of these conclusions, we remanded the matter to the district

court for further factual findings concerning Mr. Littlejohn’s mitigation theory.

      In particular, on remand, we tasked the district court with determining

whether Mr. Littlejohn could demonstrate sufficient factual support for his

mitigation theory. The district court held an evidentiary hearing at which both

parties presented evidence and testimony. As most relevant here, Dr. Saint

Martin offered—in terms far more specific than in his declaration, which we

considered in Littlejohn I—diagnoses of Mr. Littlejohn’s physiological mental

deficits. Dr. Saint Martin explained that he “diagnosed an impulse control

disorder[] and attention deficit disorder[,]” 1 R., Vol. III, at 123—both of which


      1
              For clarity’s sake, we note that conditions falling under the general
classification of “attention deficit disorder,” which is commonly abbreviated as
“ADD,” also may be referred to in the caselaw and secondary literature as
“attention-deficit/hyperactivity disorder,” which typically is abbreviated as
“ADHD.” The latter name is of more recent vintage and is “the preferred official
name” for the condition, though “many authors, speakers, and clinicians still use
‘ADD’ to describe the disorder.” Stephen P. Hinshaw & Katherine Ellison,

                                         12
constitute “dysfunctions in Mr. Littlejohn’s frontal lobes,” stemming from

“prenatal and perinatal insults.” Id. at 126. 2


ADHD: W HAT E VERYONE N EEDS T O K NOW 12 (2016); see also Mark Selikowitz,
T HE F ACTS : ADHD 14 (2d ed. 2009) (ebook) (describing the shift from ADD to
ADHD and noting “a number of name changes attest to the rapid evolution in our
understanding of this condition”). “The essential function of Attention-
Deficit/Hyperactivity Disorder is a persistent pattern of inattention and/or
hyperactivity-impulsivity that is more frequently displayed and more severe than
is typically observed in individuals at a comparable level of development . . . .”
Am. Psychiatric Association, D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL
D ISORDERS 85 (4th ed., text revision 2000) [hereinafter DSM]; see also Attention-
deficit/hyperactivity disorder (ADHD), E NCYCLOPEDIA B RITANNICA (database
updated Sept. 15, 2017) (describing “[a]ttention-deficit/hyperactivity disorder
(ADHD)” as “a behavioral syndrome characterized by inattention and
distractibility, restlessness, inability to sit still, and difficulty concentrating on
one thing for any period of time”). In some forms of ADHD, impulsivity is a
significant feature. See, e.g., Selikowitz, supra, at 5 (“While some children with
the hyperactive-impulsive form of ADHD will have hyperactivity and impulsivity,
some will have only hyperactivity, while others will have only impulsivity.”);
DSM, supra, at 87 (“Although many individuals present with symptoms of both
inattention and hyperactivity-impulsivity, there are individuals in whom one or
the other pattern is predominant.”). However, Dr. Saint Martin testified that he
intended for his impulse-control diagnosis to relate to a separate disorder—apart
from, and in addition to, attention deficit disorder—which the DSM seemingly
contemplates. See R., Vol. III, at 131 (testifying, “in the DSM . . . not every
impulse control disorder can be categorized with specificity, so you have these
non-specific types of impulse control disorders and that’s what I [i.e., Dr. Saint
Martin] diagnosed”). Specifically, for these “disorders of impulse control that are
not classified” elsewhere, the DSM provides the following: “The essential feature
of Impulse-Control Disorders is the failure to resist an impulse, drive, or
temptation to perform an act that is harmful to the person or to others.” DSM,
supra, at 663; see also United States v. McBroom, 124 F.3d 533, 549 n.16 (3d Cir.
1997) (discussing a diagnosis of this type of impulse control disorder).
      2
             Because Dr. Saint Martin relied on the DSM in formulating his
diagnoses regarding Mr. Littlejohn, a few words regarding that publication will
contextualize his conclusions. First, though a fifth edition of the DSM was issued
in 2013, Dr. Saint Martin did not rely on that edition in testifying in the
evidentiary hearing in 2014, nor was it available for him to use in evaluating Mr.

                                           13
      These two disorders, in Dr. Saint Martin’s opinion, led Mr. Littlejohn to

have “low frustration tolerance” and “a lot of problems with impulses” because

“the normal controls one would expect [to] override destructive impulses are not

present or present enough.” Id. at 126–27. When asked about possible treatment

options for these disorders, Dr. Saint Martin noted “an 80 percent response rate to

medication” for attention deficit disorder and a response “on the order of about 40

percent” for an impulse-control disorder, but admitted that Mr. Littlejohn had

never received medications for these disorders and that, consequently, there was

no guarantee that he would respond to them. Id. at 128–29, 186.

      In addition, Dr. Saint Martin acknowledged on cross-examination that, “on

a very, very, very large number of tests of intellectual functioning and

neuropsychological functioning, Mr. Littlejohn perform[ed] in the low-average to

average-range.” Id. at 146–47. Additionally, he diagnosed Mr. Littlejohn with




Littlejohn in 2005. Dr. Saint Martin had a “problem” with relying on the fifth
edition in his testimony because “it ha[d] been out in the world for less than a
year and we are really talking about conditions that were diagnosed prior to the
time that text came out.” R., Vol. III, at 163. Instead, Dr. Saint Martin appears
to have relied on the edition of the DSM immediately prior to the fifth in
examining Mr. Littlejohn—viz., the fourth edition, text revision (“DSM-IV-TR”),
which was published in July 2000. See id. at 178 (responding to a cross-
examination question regarding how “another expert” could check his findings,
Dr. Saint Martin said they could “look in . . . at the time it would have been
DSM-IV-TR”). This edition updated the DSM’s fourth edition, which was
published in 1994. Because Dr. Saint Martin relied on the fourth edition, text
revision, so do we. We note, moreover, that this edition would have been
available at the time of Mr. Littlejohn’s October–November 2000 resentencing.

                                         14
“mixed personality traits,” but declined to conclude that he suffers from anti-

social personality disorder. Id. at 123. Nevertheless, Dr. Saint Martin

acknowledged that Mr. Littlejohn exhibited a number of characteristics

“consistent with anti-social personality disorder” and admitted that “individuals

with attention deficit hyperactivity disorder are significantly more likely to

develop anti-social personality disorder.” Id. at 177.

      In Littlejohn I, we asked the district court to reevaluate in an evidentiary

hearing Mr. Littlejohn’s ineffective-assistance claim, notably on the issue of

prejudice. More specifically, this examination should have entailed the district

court making a critical determination in the first instance of whether Mr.

Littlejohn did in fact suffer from treatable mental deficits that could have

substantially explained his past criminal behavior, such that it was reasonably

probable that Mr. Rowan’s failure to investigate and present evidence of organic

brain damage caused Mr. Littlejohn prejudice. However, the district court’s

findings are not specific regarding these matters. Instead, the court generally

reasoned that Dr. Saint Martin’s declaration was “not all that it appeared to be,”

and found that “the introduction of this evidence would have been accompanied

by demonstrated limitations and pitfalls.” R., Vol. I, at 961. Essentially, under

this rationale, the district court concluded that Mr. Littlejohn had failed to

demonstrate prejudice, and this appeal followed.

                                         ***

                                          15
      Our analysis begins with a discussion of the relevant standard of review.

We then turn to whether the evidence elicited on remand demonstrates that

organic brain damage played a substantial role in engendering Mr. Littlejohn’s

life of criminal deviance—viz., the critical question we identified in Littlejohn I.

Although we cannot fully embrace the district court’s analysis, we ultimately

agree with the court’s determination that Mr. Littlejohn has not demonstrated

prejudice under Strickland.

                                          B

      On appeal, Mr. Littlejohn argues that the district court erred in finding that

he failed to demonstrate prejudice stemming from Mr. Rowan’s failure to

investigate and present evidence of organic brain damage. Based on the unique

procedural circumstances of this case explicated above, the district court

appropriately reviewed Mr. Littlejohn’s ineffective-assistance claim de novo. See

Littlejohn I, 704 F.3d at 855–56 (finding de novo review appropriate, because the

state courts never adjudicated the ineffective-assistance claim on the merits); id.

at 867 n.26 (“We pause to underscore the unique procedural posture of this case.

We are not obliged here to defer to a state-court adjudication of the

ineffective-assistance claim.”).

      In this procedural setting, “we review the district court’s legal conclusions

de novo and factual findings for clear error.” Allen v. Mullin, 368 F.3d 1220,

1234 (10th Cir. 2004); see also Romano v. Gibson, 239 F.3d 1156, 1164 (10th

                                          16
Cir. 2001) (“Where the state court did not address the merits of a habeas claim,

this court reviews the district court’s resolution of that ground for relief de novo,

reviewing for clear error any district court findings of fact.”). Because “[c]laims

of ineffective assistance of counsel raise mixed questions of law and fact,” in

reviewing the district court’s decision here, we apply “de novo [review], granting

due deference to the factual findings underlying the district court’s

determination.” Miller v. Champion, 262 F.3d 1066, 1071 (10th Cir. 2001);

accord Boltz v. Mullin, 415 F.3d 1215, 1221–22 (10th Cir. 2005). Moreover, “we

may affirm [the district court] on any basis supported by the record, even if it

requires ruling on arguments not reached by the district court or even presented to

us on appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir.

2011).

         As noted, the district court made no precise findings on the key question of

whether organic brain damage played a substantial role in engendering Mr.

Littlejohn’s life of criminal deviance. The district court did, however, impliedly

conclude that any evidence of brain damage that Mr. Rowan could have presented

to the jury would have done little to explain Mr. Littlejohn’s criminal history,

given the court’s explanation that Dr. Saint Martin’s declaration was “not” Mr.

Littlejohn’s “holy grail,” nor “all that it appeared to be.” R., Vol. I, at 961.

Indeed, the district court explained that “the introduction of this evidence would

have been accompanied by a number of “demonstrated limitations and pitfalls[,]”

                                           17
including evidence suggesting that Mr. Littlejohn suffered from antisocial

personality disorder. 3 Id.

      With the stage thus set, we first address the central issue of whether

evidence of Mr. Littlejohn’s alleged organic brain damage could have

substantially explained his criminal past, and ultimately conclude that the actual

evidence—in contrast to the general averments of Dr. Saint Martin’s

declaration—would have offered a sentencing jury little, if anything, meaningful

in this regard. Moreover, like the district court, we conclude that the weak

mitigating effect of the brain-damage evidence would have been significantly

diminished by the evidence the prosecution almost inevitably would have


      3
              Ultimately, the question of whether Mr. Littlejohn’s
organic-brain-damage evidence could have substantially explained his life of
criminal deviance is a mixed question of law and fact with a significant legal
component, which we ordinarily review de novo. See, e.g., Supre v. Ricketts, 792
F.2d 958, 961 (10th Cir. 1986) (“Where [a] mixed question [of law and fact]
involves primarily a factual inquiry, the clearly erroneous standard is appropriate.
If, however, the mixed question primarily involves the consideration of legal
principles, then a de novo review by the appellate court is appropriate.”); see also
Allison v. Bank One-Denver, 289 F.3d 1223, 1235 n.2 (10th Cir. 2002), as
amended on denial of reh’g (June 19, 2002) (“The district court concluded that
the parties intended to convert to participant direction . . . , but then relied on
case law to determine that the collection of documents, together with that intent,
constituted an amendment. The issue is more akin to a mixed question of law and
fact in which the legal issues predominate.”). We are fully able to resolve this
mixed question with the aid of the district court’s factual findings, though we
must imply them to some extent. Cf. United States v. Powell, 973 F.2d 885, 889
(10th Cir. 1992) (“[S]pecific findings of fact by the district court will always be
helpful. Their existence is not a necessity, however . . . . Since the appellate court
may imply essential findings, the district court does not have to provide them,
even in complicated cases.” (citations and footnote omitted)).

                                         18
introduced in rebuttal. As a result, we determine that Mr. Littlejohn has failed to

meet his burden of demonstrating prejudice under Strickland.

                                          1

      On the first question of whether the evidence demonstrates that organic

brain damage operated as a “substantial factor” engendering Mr. Littlejohn’s life

of criminal deviance, we conclude that it did not. Littlejohn I, 704 F.3d at 864.

In reaching this conclusion, we exercise our discretion to expand on the district

court’s limited discussion and reasoning.

      Focusing on the specific diagnoses that Dr. Saint Martin proffered at the

evidentiary hearing—that is, attention deficit disorder and an impulse-control

disorder—we conclude that under the circumstances of this case, these two

commonly diagnosed conditions are too weak to support an argument for

prejudice under Strickland. In other words, although Dr. Saint Martin’s

declaration in Littlejohn I presented the legally-cognizable possibility that

evidence of organic brain damage would go far in explaining Mr. Littlejohn’s

criminal background—thereby significantly contributing to a showing of

Strickland prejudice—his more detailed testimony on remand largely negates that

possibility. This is particularly true when his testimony is evaluated in the

context of other evidence that was—or could have been—offered to the

resentencing jury.

      To frame our analysis, we begin with the general proposition that we

                                         19
underscored in Littlejohn I: “Evidence of organic mental deficits ranks among the

most powerful types of mitigation evidence available.” 704 F.3d at 864. But this

proposition only has explanatory power with respect to our caselaw when

appropriately qualified in two salient respects. First, it does not mean that all

evidence of organic brain damage has the same potency in the Strickland

prejudice analysis and will ineluctably result in a determination of prejudice. Our

caselaw requires us to examine the precise nature of the alleged organic brain

damage. In this regard, in several instances, we have concluded that evidence

alleged to show organic brain damage, or related mental-health evidence, would

have had little, if any, impact on the jury’s decision-making process. See id. at

866 (“[W]e have previously found a lack of prejudice in some cases where

counsel failed to present additional mental-health evidence in a capital sentencing

proceeding.”). 4

      For example, in Smith v. Gibson, 197 F.3d 454 (10th Cir. 1999), the


      4
              In Littlejohn I, we determined that some of these cases were
“distinguishable” and that they could not undermine our conclusion that, if true,
the mitigation theory and facts that Dr. Saint Martin averred in his declaration
could establish prejudice under Strickland. 704 F.3d at 867. However, for
reasons explicated infra, we conclude that the truth that Dr. Saint Martin alluded
to in his declaration—when subjected to the crucible of adversarial
testing—proved to be illusory. And our distinguishing analysis in Littlejohn
I—which focused, inter alia, on the fact that “the aggravating evidence was more
serious” in those cases than here, id.—is not at odds with the larger legal message
that the lion’s share of these cases delivers: viz., Strickland prejudice does not
necessarily follow from the failure to investigate and present evidence of organic
brain damage.

                                          20
petitioner argued that his counsel provided constitutionally-deficient performance,

because he failed to request the assistance of a mental-health expert to elucidate

the notion that he “suffer[ed] from organic brain damage [that] impair[ed] his

judgment and cause[d] him to act impulsively.” Id. at 463. Nevertheless, “in

light of the strength of the evidence supporting the aggravating circumstances,”

and “the limited mitigating effect of [his] psychiatric evidence,” we concluded

that the failure to present additional evidence caused no prejudice. Id.; see also

[Lois] Smith v. Massey, 235 F.3d 1259, 1282 (10th Cir. 2000) (“Although the

evidence pertaining to Smith’s organic brain damage would have been proper

mitigating evidence and may have helped explain the crime to some degree, . . .

we are not persuaded it is reasonably probable that the introduction of the organic

brain damage evidence would have led the jury to choose a life sentence rather

than a death sentence.”), abrogated on other grounds by Neill v. Gibson, 278 F.3d

1044 (10th Cir. 2001); cf. Motley v. Collins, 18 F.3d 1223, 1228 (5th Cir. 1994)

(declining to find prejudice where “the evidence of organic brain damage was

relatively weak”).

      Second, we have concluded, in some instances, that organic-brain-damage

evidence would have been just as likely—if not more likely—to have had an

aggravating effect rather than a mitigating effect on a sentencing jury. See Davis

v. Exec. Dir. of Dep’t of Corr., 100 F.3d 750, 762 (10th Cir. 1996) (explaining

that courts must carefully review omitted mitigation evidence to determine if it

                                         21
truly mitigates or, instead, has the possibility of being a “two-edged sword”

(quoting Davis v. People, 871 P.2d 769, 774 (Colo. 1994))).

      In Gilson v. Sirmons, 520 F.3d 1196 (10th Cir. 2008), for example, the

petitioner “sustained a serious brain injury” during an automobile accident, and

“experienced negative physical and mental effects since the accident (e.g., a

constant ‘global’ headache; photophobia; [and] increased sensitivity to auditory

stimuli).” Id. at 1249. Nevertheless, we emphasized that the evidence that the

petitioner claimed should have been introduced—a neuropsychological consulting

report—“paint[ed] a bleak and ominous picture of [his] personality, behavior, and

likely future conduct” by suggesting, among other things, that he had a “tendency

to become agitated and belligerent easily when frustrated.” Id. “Given these

extremely negative descriptions of [the petitioner’s] likely behavior, we

conclude[d] that the presentation of [the organic-brain-damage evidence] to the

jury during the second-stage proceedings would not have resulted in a different

outcome.” Id. at 1249–50. To the contrary, we determined that the evidence

“would likely have weighed against [the petitioner] by erasing any lingering

doubts that may have existed as to his role in [the underlying] murder, and by

confirming the jury’s conclusion that he represented a continuing threat, even if

confined in prison for life.” Id. at 1250 (emphasis added).

      Analogously, in Cannon v. Gibson, 259 F.3d 1253 (10th Cir. 2001), the

petitioner asserted that his trial counsel should have introduced

                                         22
neuropsychological evidence and social-history background that could have

“explained to the jury how [the petitioner] came to participate in th[e] crime and

why they should [have] spare[d] his life.” Id. at 1277. Our review of the omitted

evidence, however, led us to deem the evidence “far less beneficial than asserted”

by the petitioner. Id. More specifically, we determined that the omitted

“mitigating” evidence tended to depict petitioner as “an unstable individual with

very little impulse control.” Id. at 1278. As a result, we concluded that the

“evidence would have negated much of the mitigation evidence actually adduced

by trial counsel and could have strengthened the prosecution’s argument that [the

petitioner] represented a continuing threat to society.” Id. Given those

circumstances, we concluded that the petitioner failed to demonstrate prejudice

under Strickland. Id.

                                          a

      Turning to the facts of this case, although Dr. Saint Martin couched his

initial declaration under the broad rubric of organic brain damage, his

findings—which the parties teased out in the hearing—ultimately centered on two

diagnoses: attention deficit disorder and an impulse-control disorder. Attention

deficit disorder is a commonly diagnosed condition. See, e.g., Stephen P.

Hinshaw & Katherine Ellison, ADHD: W HAT E VERYONE N EEDS T O K NOW 24

(2016) (“Today, approximately 11 percent of all US youth aged 4-17 have at some

point received an ADHD diagnosis . . . . The estimates are less authoritative after

                                         23
age 17, but researchers believe that there may be around 10 million adults with

the disorder in the United States.”); Mark Selikowitz, T HE F ACTS : ADHD 2 (2d

ed. 2009) (ebook) (noting that the condition is “one of the most common

conditions in childhood, affecting as many as 5% of school-aged children”);

Dorothy Nelkin & Laurence Tancredi, Classify and Control: Genetic Information

in the Schools, 17 A M . J.L. & M ED . 51, 56 (1991) (describing “attention deficit

disorder” as “the most common behavior problem of school-aged children”

(citation omitted)); Attention-deficit/hyperactivity disorder (ADHD),

E NCYCLOPEDIA BRITANNICA (database updated Sept. 15, 2017) (noting that ADHD

“is the most commonly diagnosed childhood psychiatric disorder” in the U.S.).

Moreover, Dr. Saint Martin notably testified at the evidentiary hearing that

attention deficit disorder has “a very, very low correlation with criminal activity,”

R., Vol. III, at 323—an admission that casts direct doubt on Mr. Littlejohn’s

claim that the evidence would have offered an explanation for Mr. Littlejohn’s

long history of criminal conduct.

      In this regard, a number of cases from our court and our sister circuits have

specifically concluded that evidence of attention deficit disorder does not favor a

finding of prejudice. For example, in Wackerly v. Workman, 580 F.3d 1171 (10th

Cir. 2009), the petitioner presented evidence that he may have suffered from an

attention deficit disorder; we held, however, that the evidence failed to create “a

reasonable probability that it would have moved any juror to change his or her

                                          24
sentencing calculus[,]” because the diagnosis did “not give context to the murder,

provide an explanation for Mr. Wackerly’s behavior, or suggest Mr. Wackerly

bears any less moral culpability for his actions.” Id. at 1182.

      And our sister circuits have reached similar conclusions. See, e.g., Brown

v. Ornoski, 503 F.3d 1006, 1016 (9th Cir. 2007) (noting that attention deficit

disorder is a “somewhat common disorder[]” and concluding that “although [an

attention deficit disorder diagnosis would] add quantity to the mitigation case, [it]

add[s] little in terms of quality”); Campbell v. Polk, 447 F.3d 270, 284 (4th Cir.

2006) (concluding that evidence that petitioner had attention deficit disorder

“would not have added in any meaningful way to . . . mitigation evidence [that

was introduced]”); see also Gallegos v. Schriro, 583 F. Supp. 2d 1041, 1076–77

(D. Ariz. 2008) (“Petitioner cannot establish that he was prejudiced by counsel’s

performance. . . . [E]vidence . . . that Petitioner suffered from ADHD . . . would

not have altered the basic sentencing profile provided to the judge.”), aff’d sub.

nom. Gallegos v. Ryan, 820 F.3d 1013 (9th Cir. 2016), amended on reh’g, 842

F.3d 1123 (9th Cir. 2016). In other words, these cases emphasize that a diagnosis

of attention deficit disorder at least frequently offers little, if any, quality

mitigating evidence, and Mr. Littlejohn’s diagnosis presents no basis for us to

depart from the reasoning of these cases.

      Regarding Mr. Littlejohn’s impulse-control diagnosis, this, too, would

appear to be a rather garden-variety condition—at least in the “non-specific” form

                                           25
(supra note 1) that Dr. Saint Martin diagnosed. R., Vol. III, at 131; see United

States v. Miller, 146 F.3d 1281, 1285 (11th Cir. 1998) (“Nor would poor impulse

control be unusual, regardless of whether it stemmed from an impulse control

disorder . . . . Many offenders commit crimes because they have poor impulse

control. An impulse control disorder is not so atypical or unusual that it separates

this defendant from other defendants.” (footnote omitted)); cf. DSM, supra, at 677

(noting the category of impulse-control disorders—“Not Otherwise

Specified”—which is for, inter alia, “disorders of impulse control (e.g., skin

picking) that do not meet the criteria for any specific Impulse-Control Disorder”).

      In any event, courts have expressed skepticism about placing significant

weight in the Strickland prejudice analysis on such a condition. This is

particularly so given that such evidence tends to depict the petitioner as unstable

and unable to control his actions; consequently, it could have an overall

aggravating, rather than mitigating, effect. In Gilson, for example, a doctor who

examined the petitioner after his sentencing found that he “would have difficulty

conforming his behavior to societal norms due to impulsivity, poor judgment, and

the failure to see or understand the consequences of his actions” and concluded,

as a result, that the petitioner “had an inability to regulate behavior or inhibit

impulses.” 520 F.3d at 1249–50. “Given these extremely negative descriptions

of [the petitioner’s] likely behavior,” we concluded that the presentation of the

impulse-control evidence “would not have resulted in a different outcome.” Id. at

                                          26
1250; see also Cannon, 259 F.3d at 1278 (declining to find prejudice where “the

omitted evidence tend[ed] to depict [the petitioner] as an unstable individual with

very little impulse control”).

      Our sister circuits have, in turn, reached similar conclusions. See, e.g.,

Fautenberry v. Mitchell, 515 F.3d 614, 627 (6th Cir. 2008) (finding it “highly

unlikely” that evidence of brain damage resulting in “serious problems in such

areas of day-to-day functioning as impulse control” would have changed

petitioner’s sentence); Brown, 503 F.3d at 1016 (holding that evidence of

“impulse control problems” did not warrant finding of prejudice); Mills v.

Singletary, 161 F.3d 1273, 1286 (11th Cir. 1998) (stating “Mills has also failed to

demonstrate prejudice,” in referencing the Florida Supreme Court’s finding that

the petitioner’s “mental problems boiled down to being impulsive”); see also

Rodriguez v. Quarterman, 204 F. App’x 489, 498 (5th Cir. 2006) (unpublished)

(discerning no reasonable probability that evidence concerning “the link between

the damage to [the petitioner’s] brain’s frontal lobes and his impulsive nature”

would have changed petitioner’s sentence).

      In other words, our authority and that of our sister circuits suggest that an

impulse-control diagnosis typically tends to offer little, if any, quality mitigating

evidence and, actually, may come with a sharp aggravating-evidence component.

And, again, the nature of Mr. Littlejohn’s diagnosis offers us no reason to part

from this premise.

                                          27
                                         b

      The cases that Mr. Littlejohn identifies do not compel a different

conclusion. In his briefing, Mr. Littlejohn points to Williams v. Taylor, 529 U.S.

362 (2002), in which the Supreme Court concluded that the petitioner had

demonstrated prejudice based, in part, on evidence that he “might have mental

impairments organic in origin.” Id. at 370. Nevertheless, Mr. Littlejohn relies on

that conclusion in a vacuum; a closer inspection of Williams reveals that the

Court’s prejudice determination rested on a wide gamut of meaningful mitigating

evidence, not just the evidence of organic mental impairments. Along these lines,

the Court explained that the omitted evidence included (1) documents that

“dramatically described mistreatment, abuse, and neglect during . . . childhood,”

(2) “testimony that [the petitioner] was ‘borderline mentally retarded,’” (3)

testimony that he had suffered “repeated head injuries[] and might have mental

impairments organic in origin,” and (4) testimony that, despite these issues, the

petitioner would pose no “future danger to society” if kept in a “structured

environment.” Id. at 370–71. In finding prejudice in counsel’s failure to conduct

a sufficient investigation into this evidence, the Court emphasized “the

comparatively voluminous” nature of the information and the fact that it spoke

directly in the petitioner’s favor. Id. at 398. In other words, the Court found

Strickland prejudice because the petitioner presented a weighty load of

meaningful—yet omitted—mitigating evidence. See id. Mr. Littlejohn has, by

                                         28
contrast, made no similarly forceful and multifaceted showing. 5

      Moreover, the Tenth Circuit cases that Mr. Littlejohn cites do not militate

in favor of a prejudice determination here. First, in finding prejudice in Smith v.

Mullin, we described counsel’s “halfhearted mitigation case,” 379 F.3d at 944

(quoting Wiggins, 539 U.S. at 526), as “pitifully incomplete, and in some

respects, border[ing] on the absurd.” Id. Indeed, the Smith jury “never received

an explanation for [the petitioner’s] behavior,” and counsel then “negated

whatever value [the actually presented] mental health evidence had,” by

essentially instructing “the jury not to consider it.” Id. at 943–44. Similarly, in

Anderson v. Sirmons, 476 F.3d 1131 (10th Cir. 2007), we concluded that “counsel

mounted an extraordinarily limited case in mitigation,” because he presented

evidence only that the petitioner “was a kind, hard-working, normal man.” Id. at

1146. The omitted mitigating evidence, however, included that the petitioner

“grew up in poverty, the twelfth child of a physically and emotionally abusive

mother” and that he suffered from serious mental deficiencies. Id. at 1147.

      The circumstances here fall far short of constituting the paradigmatic

halfhearted mitigation case, as well illustrated in Smith and Anderson. In this



      5
             For example, unlike the petitioner in Williams, who was “borderline
mentally retarded,” 529 U.S. at 370, Dr. Saint Martin acknowledged that “on a
very, very, very large number of tests of intellectual functioning and
neuropsychological functioning, Mr. Littlejohn perform[ed] in the low-average to
average-range.” R., Vol. III, at 146–47.

                                         29
regard, recall that Dr. Draper testified extensively on behalf of the defense about

the substance abuse of Mr. Littlejohn’s mother during her pregnancy and the lack

of nurturing and attention that Mr. Littlejohn received as a child, and then

explained the stunted development that Mr. Littlejohn suffered as a result. To be

sure, the Supreme Court’s “cases . . . emphasized the need for courts to consider

the prejudicial effect of counsel’s failure to investigate [and presumably present]

a viable mitigation theory even in the face of an otherwise reasonable mitigation

defense.” Littlejohn I, 704 F.3d at 867. However, as demonstrated supra, the

ostensibly “viable mitigation theory” omitted here was predicated on Dr. Saint

Martin’s declaration, and his testimony at the evidentiary hearing made clear that

this theory was on the verge of life support: specifically, his testimony

“reveal[ed] significant theoretical or factual holes that would make a finding of . .

. prejudice unsound.” Id. at 856.

      In sum, although Dr. Saint Martin’s initial declaration created a significant

impression that Mr. Littlejohn may have been prejudiced by Mr. Rowan’s alleged

failure to investigate and present evidence of organic brain damage in the

sentencing phase, the testimony he provided in the hearing on remand

demonstrated that Mr. Littlejohn’s organic-brain-damage diagnosis ultimately

consisted of only two commonly diagnosed conditions: attention deficit disorder

and an impulse-control disorder, neither of which was powerful enough on these

facts to support a claim of prejudice. Put another way, the evidence presented at

                                          30
the evidentiary hearing did not reveal that Mr. Littlejohn’s alleged organic brain

damage played a substantial role in engendering his life of criminal deviance; this

conclusion strongly militates against a determination of Strickland prejudice.

                                          c

      But there is more bad news for Mr. Littlejohn. Aside from its inherent

qualitative weaknesses, the introduction of Mr. Littlejohn’s organic-brain-damage

evidence at resentencing likely would have been the impetus for developments

harmful to his case. In this regard, in analyzing Strickland’s prejudice prong, as

previously noted, “we must consider not just the [omitted] mitigation evidence . .

. but also what the prosecution’s response to that evidence would have been.”

[Michael] Wilson, 706 F.3d at 1306. In this case, the presentation of Dr. Saint

Martin’s theory and related facts would have opened the door for the prosecution

to introduce (1) harmful evidence that Mr. Littlejohn suffered from an antisocial

personality disorder, (2) testimony concerning the limited treatment options

available for Mr. Littlejohn’s disorders, along with (3) damaging evidence

regarding Mr. Littlejohn’s post-offense misconduct.

      Turning first to the evidence of antisocial personality disorder, in similar

circumstances, we have characterized a petitioner’s potential for continued

dangerousness, even if incarcerated, as “perhaps [the] most important aggravating

circumstance” that juries consider in weighing the death penalty. Grant, 727 F.3d

at 1017. Mr. Littlejohn has, as the district court noted, been diagnosed with an

                                         31
antisocial personality disorder, and although Dr. Saint Martin challenged the

accuracy of this diagnosis, he acknowledged that Mr. Littlejohn displayed

characteristics “consistent with anti-social personality disorder,” and that

individuals with attention deficit disorder have, in any event, a greater likelihood

of developing an antisocial personality disorder. R., Vol. III, at 176.

      Importantly, courts have characterized antisocial personality disorder as the

prosecution’s “strongest possible evidence in rebuttal.” Evans v. Sec’y, Dep’t of

Corr., 703 F.3d 1316, 1327 (11th Cir. 2013) (quoting Wong v. Belmontes, 558

U.S. 15, 25 (2009)). In other words, evidence of antisocial personality disorder

tends to present an aggravating, rather than mitigating, circumstance in the

sentencing context. See, e.g., Stankewitz v. Wong, 698 F.3d 1163, 1173 (9th Cir.

2012) (“We accept the state’s argument that some of the evidence [the petitioner]

has proffered illustrates serious antisocial behavior, including several emotional

and violent outbursts throughout his life. We also accept the state’s argument

that such evidence may be aggravating, rather than mitigating.”); Cummings v.

Sec’y for Dep’t of Corr., 588 F.3d 1331, 1368 (11th Cir. 2009) (“[The petitioner]

is left mainly with a diagnosis of antisocial personality disorder, which is not

mitigating but damaging.”); see also Correll v. Ryan, 539 F.3d 938, 964 (9th Cir.

2008) (O’Scannlain, J., dissenting) (“In sum, the psychological evidence, if

presented, would have demonstrated only that Correll has an antisocial

personality with mild depression. Such evidence has tremendous potential to be

                                         32
more harmful than helpful.”). Perhaps evidence suggestive of antisocial

personality disorder would have otherwise been present in the case, as Mr.

Littlejohn suggests. See Aplt.’s Opening Br. at 50 (“That Mr. Littlejohn had

engaged in antisocial behavior was more than plain to all. That was not going to

be shielded from the jurors.”). But the introduction of evidence of organic brain

damage of the kind that Dr. St. Martin testified about would have given the State

ample ground to underscore and highlight this antisocial personality evidence

before the jury and, more importantly, to frame it in terms of his (untreatable)

physiological conditions and not just his bad behavior. And the foregoing cases

give us reason to believe that such evidence would likely have some aggravating

effect here.

      Furthermore, the mitigating effect of Mr. Littlejohn’s evidence of organic

brain damage would likely have been diminished by the lack of reliable treatment

options for Mr. Littlejohn’s attention deficit and impulse-control disorders. As

we explained in Littlejohn I, evidence of organic brain damage “could have been

used [for its] powerful mitigating effect,” if it demonstrated that Mr. Littlejohn’s

criminal past derived from a treatable physical condition, because his criminal

past would no longer be “an accurate predictor of his future.” 704 F.3d at 865

(emphasis added); see also id. at 865 n.24 (noting that “such testimony [as found

in Dr. Saint Martin’s declaration] would have offered a physiological explanation

for Mr. Littlejohn’s deviant conduct and some assurance that, through medical

                                          33
treatments, his criminal, violent past would not be prologue”). In other words,

the presence of a treatable condition “could have indicated to a jury that Mr.

Littlejohn [posed no] continuing threat.” Id. at 865 (emphasis added); see also

Hooks, 689 F.3d at 1205 (“Diagnoses of specific mental illnesses . . . , which are

associated with abnormalities of the brain and can be treated with appropriate

medication, are likely to [be] regarded by a jury as more mitigating than

generalized personality disorders . . . .” (alteration in original) (emphasis added)

(quoting Wilson, 536 F.3d at 1094)).

      However, Dr. Saint Martin’s testimony likely would have left doubt in the

minds of the jurors regarding whether Mr. Littlejohn had treatable organic-brain

conditions. While he did explain that attention deficit disorder has “an 80 percent

response rate to medication,” he also had to acknowledge that an impulse-control

disorder responds to medication only in “about 40 percent” of cases. R., Vol. III,

at 128–29. Therefore, it was not certain that Mr. Littlejohn’s two identified

conditions were treatable; this was especially so as to the impulse-control

disorder for which the rate of positive response was less than 50%. This

uncertainty is further compounded by Dr. Saint Martin’s admission that Mr.

Littlejohn had never received treatment for the two conditions; thus, Dr. Saint

Martin could not guarantee that Mr. Littlejohn would in fact respond favorably.

In view of the relative lack of reliable treatment options, the potency (such that it

is) of Dr. Saint Martin’s organic-brain-damage evidence would likely have been

                                          34
diminished. Finally, the introduction of Dr. Saint Martin’s theory would have

invited—as the district court noted—the introduction of damaging evidence

regarding Mr. Littlejohn’s post-offense misconduct that likely would not have put

him in a positive light with the jury. More specifically, the prosecution could

have (and likely would have) introduced evidence that Mr. Littlejohn lied to

mental-health examiners—on at least two prior occasions—presumably, to secure

a favorable evaluation. In other words, the prosecution could have cast doubt on

Dr. Saint Martin’s diagnosis, as well as painted Mr. Littlejohn as a liar, based on

Mr. Littlejohn’s documented efforts to manipulate mental-health experts.

                                          3

      In sum, we conclude that Dr. Saint Martin’s testimony offered far less than

suggested in his initial declaration. Indeed, although the initial declaration

created the impression that Mr. Rowan omitted powerful mitigating evidence, the

additional evidentiary development on remand demonstrated that Dr. Saint

Martin’s organic-brain-damage theory ultimately derived from two concrete

diagnoses: attention deficit disorder and an impulse-control disorder. As noted,

courts routinely decline to attribute significant mitigating value to these

commonly diagnosed conditions, and we believe that they would have been

qualitatively weak in their mitigating effects on jurors, at least under the

circumstances of this case. Furthermore, any mitigating value derived from the

introduction of this evidence here likely would have been significantly diminished

                                         35
by the prosecution’s expected response.

       Given the shortcomings of Dr. Saint Martin’s theory and

evidence—revealed by his hearing testimony—we conclude that there is no

reasonable probability that the omitted mitigating evidence of organic brain

damage would have altered the resentencing outcome. In reaching this

conclusion, we have considered both the totality of the evidence that was before

the resentencing jury and the evidence that the prosecution likely would have

presented in response to the omitted organic-brain-damage evidence. See, e.g.,

Hooks, 689 F.3d at 1202 (“To assess prejudice arising out of counsel’s errors at a

capital-sentencing proceeding, we must ‘reweigh the evidence in aggravation

against the totality of available mitigating evidence.’” (quoting Young, 551 F.3d

at 960)); cf. id. at 1200 (noting “[t]hat [Strickland prejudice] analysis is

inherently fact-dependent and must take in the totality of evidence adduced at

trial”).

       But Mr. Littlejohn urges us to keep in mind that “this was hardly a worst of

the worst homicide case” and that a “[r]ealistic potential for a non-death choice

existed.” Aplt.’s Opening Br. at 47, 52. In the latter regard, he asserts that the

“jurors’ request for further instruction on the life without parole sentence

indicates they may have been seriously considering the same.” Id. at 52.

However, we specifically rejected similar arguments in Littlejohn I. See 704 F.3d

at 845 n.13. There, we said that “the prosecution presented a substantial amount

                                          36
of aggravating evidence” and also refuted the misguided notion that the death

penalty is only constitutionally and properly imposed in egregious homicide

cases. Id.; cf. Banks v. Workman, 692 F.3d 1133, 1141 (10th Cir. 2012) (“[C]ase

law has made clear that capital punishment for felony murder charges is both

constitutional and not infrequently imposed when the defendant was present

during the murder and acted with reckless disregard for human life.”).

Furthermore, we noted “our doubts about Mr. Littlejohn’s conjectural inference

about the jury’s view of the purported closeness of the case” that he made based

on its request for further instruction about life without parole. Littlejohn I, 704

F.3d at 845 n.13. We find Mr. Littlejohn’s resurrected arguments no more

persuasive here.

         In sum, we conclude that Mr. Littlejohn was not prejudiced under

Strickland by any ineffectiveness of his counsel in investigating and presenting

organic-brain-damage evidence in his mitigation case. Consequently, we uphold

the district court’s denial of relief on Mr. Littlejohn’s ineffective-assistance

claim.

                                          III

         Finally, we address Mr. Littlejohn’s claim of cumulative error. On this

issue, Mr. Littlejohn argues that even if we decline to grant relief on his

ineffective-assistance claim, we should nonetheless reverse on the basis of

cumulative error.

                                          37
      The cumulative-error analysis addresses the possibility that “[t]he

cumulative effect of two or more individually harmless errors has the potential to

prejudice a defendant to the same extent as a single reversible error.” United

States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc); see Hanson v.

Sherrod, 797 F.3d 810, 852 (10th Cir. 2015) (“A cumulative-error analysis merely

aggregates all the errors that individually have [been] found to be harmless, and

therefore not reversible, and it analyzes whether their cumulative effect on the

outcome of the trial is such that collectively they can no longer be determined to

be harmless.” (quoting Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir.

2003))). 6 “In the federal habeas context,” we aggregate the “federal constitutional

errors, and [our precedent emphasizes that] such errors will suffice to permit

relief under [the] cumulative error doctrine only when the constitutional errors

committed in the state court trial so fatally infected the trial that they violated the

trial’s fundamental fairness.” Littlejohn I, 704 F.3d at 868 (quoting Matthews v.

Workman, 577 F.3d 1175, 1195 n.10 (10th Cir. 2009)); see Grant, 727 F.3d at

1025 (“Only if the errors ‘so fatally infected the trial that they violated the trial’s

fundamental fairness’ is reversal appropriate.” (quoting Matthews, 577 F.3d at



      6
             The State argues that “no authority from the United States Supreme
Court recognizes ‘cumulative error’ as a separate violation of the federal
constitution or as a separate ground for federal habeas relief.” Aplee.’s Br. at
48–49. In Hanson, however, we rejected that precise position. See 797 F.3d at
852 n.16.

                                          38
1195 n.10)). It is not lost on us, however, that “as easy as the standard may be to

state in principle, it admits of few easy answers in application.” Grant, 727 F.3d

at 1025. But “wherever the cumulative error line may fall, it is not crossed

often.” Id.

      Mr. Littlejohn argues that two errors in addition to Mr. Rowan’s alleged

ineffective assistance prejudicially impacted the jury’s death-penalty

determination at his resentencing: (1) “[t]he failure to provide adequate notice of

the testimony of Bill Meers concerning an alleged admission and an alleged threat

uttered by Mr. Littlejohn,” Aplt.’s Opening Br. at 57; and (2) “Confrontation

Clause violations concerning who fired the fatal shot,” id.

      As detailed in Littlejohn I, the first alleged error relates to testimony from

Bill Meers, the victim’s brother, that “Mr. Littlejohn told him that ‘the

motherfucker’s [i.e., his brother’s] dead and he ain’t coming back’” and “I killed

the motherfucker, I’ll kill you.” 704 F.3d at 832 (quoting State R., Vol. VI,

Resentencing Tr. at 21 (Test. of Bill Meers)). The prosecution failed to provide

Mr. Littlejohn with notice of its intention to introduce these statements until the

fifth day of the resentencing. Despite the delinquent disclosure, the state court

provided Mr. Littlejohn’s counsel with “three days to prepare a response to Mr.

Meers’s statement . . . [and] in fact, he did prepare a reasonably cogent

affirmative rebuttal case,” id. at 836.

      The second alleged error concerns the testimony of two witnesses from Mr.

                                          39
Littlejohn’s 1994 trial, both of whom testified that Mr. Littlejohn made a

statement implicitly admitting that he (as opposed to Mr. Bethany) shot the

victim. The state trial judge at the resentencing allowed the prosecution to read

the testimony over Mr. Littlejohn’s objection that the prosecution had not made a

sufficient showing concerning the witnesses’ unavailability.

      In reviewing Mr. Littlejohn’s case, the OCCA considered these claims of

error, but not the ineffective-assistance claim that Mr. Littlejohn mounts in these

federal proceedings. See Littlejohn, 85 P.3d at 296. Although we have held

supra that his ineffective-assistance claim fails to evince the level of prejudice

required under Strickland, we include the assumed error resulting from Mr.

Rowan’s alleged ineffective assistance in the cumulative-error analysis. See

Hooks, 689 F.3d at 1195 (noting that any prejudice resulting from assumed

deficient performance is properly considered in analyzing a petitioner’s

cumulative-error claim); Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003)

(same); cf. Littlejohn I, 704 F.3d at 868 (“[A]fter an evidentiary hearing and other

necessary proceedings upon remand, the district court may deem it appropriate to

include the allegedly constitutionally deficient performance of Mr. Littlejohn’s

counsel in the cumulative-error calculus.”). As a result, the cumulative-error

claim advanced here differs from the claim that the OCCA confronted.

      Accordingly, we evaluate the current cumulative-error claim “de novo

under the Brecht standard, asking whether the various errors we have identified

                                         40
collectively ‘had substantial and injurious effect or influence in determining the

jury’s’” sentence. Cargle v. Mullin, 317 F.3d 1196, 1224 (10th Cir. 2003)

(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see also Lockett v.

Trammell, 711 F.3d 1218, 1245 (10th Cir. 2013) (“AEDPA deference does not

apply because the OCCA failed to consider all of the constitutional errors present

in the case.”).

      An error may be deemed to have a substantial and injurious effect under

Brecht’s rubric when a “conscientious judge [is left] in grave doubt about the

likely effect of an error on the jury’s verdict.” O’Neal v. McAninch, 513 U.S.

432, 435 (1995); see Welch v. Workman, 639 F.3d 980, 992 (10th Cir. 2011) (“[A]

‘substantial and injurious effect’ exists when the court finds itself in ‘grave

doubt’ about the effect of the error on the jury’s verdict.” (quoting O’Neal, 513

U.S. at 435)). Under these principles, we conclude that Mr. Littlejohn’s

cumulative-error claim is unavailing.

      In Littlejohn I, we had occasion to separately consider whether the two

additional errors that Mr. Littlejohn identifies here were prejudicial under the

Brecht standard—the same one governing our cumulative-error analysis. See

Littlejohn I, 704 F.3d at 833, 844. As to the first contention regarding the failure

to allow adequate notice of the Meers testimony, we determined that, “[assuming]

without deciding that Mr. Littlejohn has properly established a constitutional

violation arising from the State’s failure to provide adequate notice of Mr.

                                         41
Meers’s testimony,” the error “was not [prejudicial].” Id. at 833. Specifically,

we concluded that “Mr. Littlejohn was allowed three days to prepare a response to

Mr. Meers’s statement; [and] that, in fact, he did prepare a reasonably cogent

affirmative rebuttal case.” Id. at 836. In addition, we emphasized that “Mr.

Littlejohn has not pointed to any additional favorable evidence that he would have

acquired if he had been given more notice; and that Mr. Littlejohn tested the

credibility of Mr. Meers and Ms. Bush [who bolstered Mr. Meers’s testimony] on

cross examination.” Id. In sum, in rejecting Mr. Littlejohn’s claim of prejudicial

error, we determined under the Brecht standard that “we do not have any grave

doubts concerning the harmlessness of the (assumed) error involving a lack of

notice.” Id. Mr. Littlejohn gives us no reason to depart here from our conclusion

in Littlejohn I that he did not suffer even modest prejudice (i.e, no prejudice at

all) from this first error—at least when viewed in isolation. 7

      Indeed, in his appellate briefing, Mr. Littlejohn provides no explanation for

why the limited notice caused him prejudice. Rather, he argues about the

damaging aspects of the Meers testimony itself and, more specifically, suggests


      7
             Indeed, we may be constrained by the law-of-the-case doctrine from
such a departure when separately analyzing the harmlessness of this first
error—as well as the second. See Kennedy v. Lubar, 273 F.3d 1293, 1298–99
(10th Cir. 2001); McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034–35
(10th Cir. 2000). However, we need not resolve that question because even if we
freely could depart from Littlejohn I’s separate prejudice assessments regarding
these two errors, we would discern no reason to do so based on Mr. Littlejohn’s
arguments.

                                          42
that the testimony must have had a prejudicial impact, otherwise the prosecution

would not have been “at great pains to get this evidence before the sentencing

jury.” Aplt.’s Opening Br. at 65. However, this line of argument is inapposite.

As we stated in Littlejohn I, “[a]t bottom, it must be emphasized that the alleged

error here relates to a lack of notice—not the prejudicial content of Mr. Meers’s

testimony.” 704 F.3d at 836. Accordingly, we conclude that the first error does

not add one iota to the prejudice scale in the cumulative-error context. Cf. Grant,

727 F.3d at 1026 (noting that, for purposes of cumulative-error analysis, “all a

defendant needs to show is a strong likelihood that the several errors in his case,

when considered additively, prejudiced him”).

      Turning to the Confrontation Clause violations, these specifically

concerned the admission in Mr. Littlejohn’s resentencing of transcripts of

testimony from two witnesses at the 1994 trial that related to Mr. Littlejohn’s

alleged admission of shooting the victim. In Littlejohn I, we deemed “the

admission of [that] testimony” harmless for at least three reasons. 704 F.3d at

845. First, we concluded that the “contested testimony . . . hardly [constituted]

central evidence in the prosecution’s case,” because the prosecution introduced

the testimony during resentencing, as part of its presentation of “aggravating

evidence supporting the jury’s imposition of the death penalty—quite apart from

evidence related to whether Mr. Littlejohn fired the fatal shot.” Id. Second, we

emphasized that “the State offered other competent evidence that Mr. Littlejohn

                                         43
[acted as] the triggerman.” Id. And, third, we noted that “Mr. Littlejohn’s

attorney thoroughly cross-examined the witnesses at the 1994 trial,” including the

two at issue, and that “[t]he entire transcripts of the testimony of [the two

witnesses] were read into evidence, providing context for the jury to consider the

deficiencies in the testimony.” Id. at 846.

       We then explained that

              the Supreme Court has recognized that counsel’s prior ability to
              cross-examine an unavailable declarant in a prior proceeding that
              was not “significantly limited in any way” counsels in favor of
              a finding of no underlying violation. [California v. ]Green, 399
              U.S. [149,] 166 [(1970)]. Here, we find the same considerations
              found in Green weigh in favor of a finding of harmless error
              because Mr. Littlejohn’s counsel was not at all precluded from
              thoroughly cross-examining [the two witnesses] at the 1994 trial.

Id. at 847. Unlike the first error, the Littlejohn I court did not explicitly conclude

that no prejudice flowed from this error. However, having studied our thorough

prejudice analysis in Littlejohn I, we are hard-pressed to conclude that Mr.

Littlejohn suffered anything more than modest prejudice from the error—if any

prejudice at all.

       Thus, standing alone, we are not convinced that more than one of the two

additional errors (aside from the assumed error associated with the ineffective-

assistance claim) that Mr. Littlejohn has identified was the source of prejudice to

him. However, for purposes of further cumulative-error analysis, we are willing

to assume arguendo that Mr. Littlejohn suffered modest prejudice from both


                                          44
errors. Consequently, the central question we must decide is whether this modest

prejudice, when cumulated with any prejudice stemming from the alleged

ineffective-assistance claim, would cause Mr. Littlejohn’s resentencing

proceeding to be fundamentally unfair and cause us to have grave doubts about

whether the errors affected the jurors’ verdict. We answer this question in the

negative.

      In light of the now-clear shortcomings of Dr. Saint Martin’s theory and

evidence, we do not believe the Strickland prejudice question is a close one—viz.,

Mr. Littlejohn did not come close to establishing the requisite quantum of

prejudice to satisfy the Strickland standard. We are prepared, however, to assume

arguendo that Mr. Littlejohn suffered some modest prejudice due to Mr. Rowan’s

assumed constitutionally ineffective assistance at the resentencing. In this regard,

we acknowledge the view stressed in Littlejohn I that “[e]vidence of organic

mental deficits ranks among the most powerful types of mitigation evidence

available.” 704 F.3d at 864. And, as we also suggested there, such evidence—as

a categorical matter—is likely at the apex of its potency when a psychiatrist (or

other qualified physician), like Dr. Saint Martin, provides it; such a person can

actually offer a medical opinion regarding whether a petitioner has suffered brain

damage. See id. at 865–66 (“[I]t is critical to note that Dr. Draper did not offer

any opinion regarding whether Mr. Littlejohn in fact suffered pre-natal brain

injuries and, indeed, she would not have been equipped to do so. Dr. Draper was

                                          45
not a psychiatrist—like Dr. Saint Martin—or any other type of physician, for that

matter.”).

      Therefore, it seems reasonable to assume that the failure to investigate and

present evidence of organic brain damage through the testimony of a physician

may have engendered some modest prejudice. But, as we emphasized at the start,

the prejudice analysis must always focus on the precise nature of the alleged

organic brain damage. And, when we do that here, for the reasons explicated

supra, we are unwilling to accord Mr. Littlejohn more than an assumption of

modest prejudice: in brief, Dr. Saint Martin’s qualitatively weak organic-brain-

damage evidence warrants nothing more under the circumstances of this case,

particularly given the likelihood of robust rebuttal evidence from the State.

      From a purely additive or sum-of-the parts perspective, the three dashes of

modest prejudice that we have assumed here—i.e., related to the Meers testimony,

the testimony of the two 1994 witnesses, and Mr. Rowan’s mitigation

presentation—hardly constitute, in the aggregate, a recipe for the kind of

prejudice that would render Mr. Littlejohn’s resentencing proceeding

fundamentally unfair or cause us to have grave doubts about whether the errors

affected the jurors’ verdict, especially when viewed in the context of the State’s

substantial case in aggravation. See Grant, 727 F.3d at 1026 (“[N]one of the

three errors was anything more than modest on its own terms. Adding them

together undoubtedly leads to a somewhat less modest sum. But even still they do

                                         46
not collectively call into question the compelling case the government put on . . .

.”); see also Littlejohn I, 704 F.3d at n.13 (noting that “the prosecution presented

a substantial amount of aggravating evidence”).

      Moreover, Mr. Littlejohn has not meaningfully demonstrated how any of

these three assumed errors possessed “an inherent synergistic effect” that would

have made them collectively more potent than the sum of their parts. Cargle, 317

F.3d at 1221. Mr. Littlejohn offers us little more than his bald, conclusory

statement that the “synergy of the errors . . . is obvious.” Aplt.’s Opening Br. at

69. We disagree. See Hanson, 797 F.3d at 853 (“In Cargle, counsel had failed to

challenge two vulnerable witnesses, the prosecution had improperly bolstered and

vouched for those two witnesses, and the government had a weak case totally

dependent on their credibility. In effect, all of the errors revolved around the

issue of the credibility of those two witnesses. Hanson’s case presents no such

‘synergistic’ effect.” (citations omitted) (quoting Cargle, 371 F.3d at 1221));

Black v. Workman, 682 F.3d 880, 914 (10th Cir. 2012) (distinguishing Cargle,

and saying that it was “not persuaded that the constitutional violations alleged in

Defendant’s application had an ‘inherent synergistic effect.’” (quoting Cargle,

371 F.3d at 1221)).

      To be sure, Mr. Littlejohn does attempt to show a “particularized synergy”

by suggesting that, if the jury had received Dr. Saint Martin’s organic-brain-

damage evidence, it would have “ameliorated” the alleged prejudicial effects of

                                          47
his “post-trial outburst” directed at Mr. Meers. Aplt.’s Opening Br. at 69. But

this argument is predicated on Mr. Littlejohn’s failure, once again, to

acknowledge that the Meers-related error that we are considering in the

cumulative-error analysis is not the admission of the evidence regarding the

outburst itself—or, more precisely, the contents of the outburst—but rather the

alleged inadequacy of the notice that Mr. Littlejohn’s counsel received as to the

prosecution’s intent to admit the Meers evidence. And Mr. Littlejohn does

nothing to suggest any “particularized synergy” between that notice error and any

of the other two errors at issue.

      Accordingly, considering the totality of the circumstances in Mr.

Littlejohn’s resentencing proceeding, we cannot conclude that the cumulative

effect of the three harmless errors before us prejudiced Mr. Littlejohn within the

meaning of Brecht. 8


      8
             Mr. Littlejohn suggests that the “realities” of the case favor a
determination of cumulative error: specifically, he says the case involved “a
single reactive gunshot” and “jurors were considering life without parole.”
Aplt.’s Reply Br. at 32. Mr. Littlejohn does not do much to develop this
argument in the cumulative-error context and, for that reason, we could deem it
waived. See, e.g., Grant, 727 F.3d at 1025 (“Even a capital defendant can waive
an argument by inadequately briefing an issue and we break no new ground by
holding the same here.” (citation omitted)); see also Reedy v. Werholtz, 660 F.3d
1270, 1275 (10th Cir. 2011) (“The argument section of Plaintiffs’ opening brief
does not challenge the court’s reasoning on this point. We therefore do not
address the matter.”). However, even if we were to consider this argument on the
merits, we would reject it for substantially the same reasons we rejected supra
Mr. Littlejohn’s similar argument that was aimed at establishing prejudice
stemming from Mr. Rowan’s assumed ineffective assistance.

                                         48
                                         IV

         For the reasons stated above, we AFFIRM the judgment of the district

court.




                                         49
14-6177, Littlejohn v. Royal
TYMKOVICH, CJ, concurring.

      I concur in the judgment denying Littlejohn’s habeas petition. I agree

Littlejohn suffered no prejudice from his counsel’s failure to develop and present

evidence on organic brain damage. And I agree the cumulative effect of the

alleged errors did not prejudice Littlejohn. But I write separately to once again

express my view from the first habeas appeal that scientific testimony about

organic brain damage is not categorically more powerful than other types of

mental-health evidence.

                                         I.

      The lynchpin of Littlejohn I was that “a more technical presentation of

organic brain injury evidence is inherently more persuasive than a more holistic

presentation of the kind offered by Dr. Draper.” Littlejohn v. Trammell

(Littlejohn I), 704 F.3d 817, 877 (10th Cir. 2013) (Tymkovich, J., concurring in

part and dissenting in part). The majority thus held Littlejohn’s counsel may have

been constitutionally deficient because he failed to investigate whether organic

brain damage caused Littlejohn’s behavioral issues—even though Dr. Draper, a

psychologist with a doctorate in child development, testified that Littlejohn

suffered from an emotional disturbance that reduced his ability to control himself

and empathize with others. Id. at 867.

      I dissented, arguing the “central flaw in the majority’s analysis is its

erection of a categorical invocation of ‘organic brain injury’ evidence as different
in kind for purposes of a Strickland analysis.” Id. at 878. After all, “some jurors

may be swayed by testimony that sounds more technical and scientific; others

may be confused or skeptical. It can be a mixed bag.” Id. I therefore believed

the majority erred by “giv[ing] a talismanic quality to one type of mental health

evidence without any showing that it [was] inherently more persuasive to juries

than other evidence . . . .” Id. And because “there are countless ways to provide

effective assistance[,]” I concluded counsel’s decision to have Dr. Draper testify

rather than a psychiatrist like Dr. Saint Martin fell well within the “wide latitude

counsel must have in making tactical decisions.” Strickland v. Washington, 466

U.S. 668, 689 (1984). This was especially so because evidence of organic brain

damage is a double-edged sword: it might have reduced the jury’s sense of

Littlejohn’s moral culpability, but it might also have increased the jury’s concerns

about Littlejohn’s future dangerousness. See Littlejohn I, 704 F.3d at 870

(Tymkovich, J., concurring in part and dissenting in part).

                                         II.

      The district court’s findings on Dr. Saint Martin’s declaration support this

view: Dr. Saint Martin’s scientific-based testimony was no more powerful or

persuasive than Dr. Draper’s psychology-based testimony.

      This is not surprising given what Dr. Saint Martin said all along. As he

stated in his initial declaration, Littlejohn suffered from “a behavioral disorder

manifested by poor impulse control, psychological immaturity and judgment that

                                         -2-
is caused by neuro-developmental deficits experiences in his peri-natal

development.” R., Vol. 1 at 171. At the evidentiary hearing, Dr. Saint Martin

confirmed the declaration by explaining how dysfunction in Littlejohn’s frontal

lobes caused his behavioral disorders—specifically, ADD and an impulse-control

disorder. All Dr. Saint Martin added at the evidentiary hearing, then, was a

formal ADD diagnosis. The fact the majority finds Dr. Saint Martin’s testimony

less persuasive than his largely identical declaration thus demonstrates that

Littlejohn I did not need to assume that evidence of organic brain damage is

intrinsically more powerful than other types of mental-health evidence.

      To its credit, the majority adds two caveats to its broad Littlejohn I claim

that evidence of organic mental deficits ranks among the “most powerful types”

of mitigation evidence. Littlejohn I, 704 F.3d at 864. First, not all evidence of

organic brain damage has the same potency. Maj. Op. at 21. Second, evidence of

organic brain damage can sometimes have an aggravating, not mitigating, effect

on the sentencing jury. Id. at 22–23. Yet the majority still asserts that evidence

of organic brain damage is “as a categorical matter . . . likely at the apex of its

potency when a psychiatrist (or other qualified physician), like Dr. Saint Martin,

provides it . . . .” Maj. Op. at 48.

      These proceedings demonstrate that evidence of organic brain damage is

not categorically more persuasive than other types of mental-health evidence.

And mental-health evidence is not necessarily at “the apex of its potency” when

                                          -3-
presented by a physician rather than a psychologist. Maj. Op. at 48. Jurors are

complex, unpredictable, and, above all, different. Some jurors may agree

evidence a defendant suffers from organic brain damage is most persuasive when

a physician presents it; others may be skeptical of science and persuaded by

holistic and less scientific testimony. See Littlejohn I, 704 F.3d at 878

(Tymkovich, J., concurring in part and dissenting in part). Just as “the decision

of which witnesses to call is quintessentially a matter of strategy for the trial

attorney,” Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008), so too is the

strategic decision about which type of mitigation evidence will best resonate with

a jury.

          Nothing has changed my view that at the penalty phase of a capital trial, a

lawyer’s choice to present holistic, psychology-based testimony instead of

scientific testimony on organic brain damage is a reasonable strategic choice. In

fact, the last chapter of this case proves the point.




                                            -4-
