                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-28-2006

Outten v. Kearney
Precedential or Non-Precedential: Precedential

Docket No. 04-9003




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"Outten v. Kearney" (2006). 2006 Decisions. Paper 384.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/384


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                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 04-9003


             JACK FOSTER OUTTEN, JR.

                            v.

 RICK KEARNEY, Warden, Sussex Correctional Institute;
ATTORNEY GENERAL OF THE STATE OF DELAWARE

                                 Jack F. Outten, Jr.,
                                        Appellant


       Appeal from the United States District Court
               for the District of Delaware
          (D.C. Civil Action No. 98-cv-00785)
       District Judge: Honorable Sue L. Robinson




                  Argued July 27, 2006

Before: RENDELL, AMBRO and FUENTES, Circuit Judges

           (Opinion filed: September 28, 2006)
Ricardo Palacio, Esquire
Andrew D. Cordo, Esquire
Ashby & Geddes
222 Delaware Avenue
17th Floor, P.O. Box 1150
Wilmington, DE 19899

John P. Deckers, Esquire (Argued)
800 North King Street, Suite 302
Wilmington, DE 19801

      Counsel for Appellant

Thomas E. Brown (Argued)
  Deputy Attorney General
Department of Justice
Delaware State Office Building
820 North French Street
Carvel Office Building
Wilmington, DE 19801

      Counsel for Appellee


                OPINION OF THE COURT


AMBRO, Circuit Judge:

      Jack Foster Outten, Jr., was convicted by a Delaware jury

                              2
of, inter alia, first-degree murder and sentenced to death. His
direct appeals and post-conviction claims in state court were
unsuccessful. Outten then filed in federal court a 28 U.S.C.
§ 2254 petition for a writ of habeas corpus, which the United
States District Court for the District of Delaware denied. We
conclude that trial counsel’s failure to conduct a reasonable
investigation of Outten’s background in anticipation of his
capital sentencing violated his Sixth Amendment right to
effective assistance of counsel. Thus, we reverse and remand
this case for resentencing.

I.     Factual and Procedural Background

       A.     The Murder of Willie Mannon

        We recite only briefly the pertinent facts of this case as
set forth by the District Court, Outten v. Snyder, Civ. No. 98-
785-SLR, 2004 U.S. Dist. LEXIS 5546 (D. Del. Mar. 31, 2004)
(Outten IV), and the Delaware Superior Court, State v. Outten,
No. C.R.A. IN-92-01-1144, 1997 WL 855718 (Del. Super. Ct.
Dec. 22, 1997) (Outten II). (All city or town references are in
Delaware.) Outten, his cousins Steven and Nelson Shelton, and
Nelson’s girlfriend, Christina Gibbons, spent the afternoon of
January 11, 1992, drinking beer at Nelson and Gibbons’s home
in Newark. After consuming approximately one and one-half
cases of beer, the four drove to Clemente’s Bus Stop, a local
tavern located on Route 13 south of Wilmington.



                                3
       After separating for a short time, Outten, the Sheltons,
and Gibbons eventually reconvened and went to Hamill’s Pub
in Elsmere, and then to Fat Boys Bar in New Castle. At Fat
Boys Bar, the three men began playing pool while Gibbons sat
at the bar counter alone. She began conversing and drinking
with sixty-two year old Wilson “Willie” Mannon, who had
arrived at the bar earlier that same day. Ultimately, Mannon left
with Gibbons and the three men.

        Mannon’s body was discovered along a road in a deserted
area of East Wilmington at approximately 11:00 a.m. on January
12, 1992. He was found lying on his back with his legs crossed
and the top of his head shattered. Mannon’s pockets were
turned inside-out, and loose change, his empty wallet, and his
identification cards were scattered nearby. A broken ballpeen
hammer handle rested a few feet away from his body and the
head of that hammer was located behind a nearby fence along
the road.

       Nelson Shelton and Gibbons were stopped by New Castle
County police later that morning. The officers sought to
question Nelson on an unrelated charge. He was taken to police
headquarters and found to be in possession of two gold rings
that were Mannon’s. His winter jacket also appeared to be
stained with blood.

       Gibbons accompanied Nelson to the police station.
While there, she provided statements to New Castle County and

                               4
Wilmington law enforcement officers implicating Outten and
Steven Shelton in the robbery and murder of Mannon. Gibbons
recounted that she had been at a bar the previous night with
Outten and the Shelton brothers, and that, at the end of the night,
the four of them left in Nelson’s car with an “older man” named
Willie. From the bar, they drove to a “boat yard,” where the
older man was beaten with a hammer and an object she thought
was a sink. According to Gibbons, Outten struck the man with
the sink and Steven kicked him. She was adamant that Nelson,
though present, was not involved. Gibbons also told police that
the sink was discarded along Interstate 95 after the murder.

        The next day, January 13, 1992, Gibbons spoke about
Mannon’s murder to her social worker, Sandra Nyce. The story
she recounted to Nyce differed significantly from her prior
statements to the police. Indeed, she implicated Outten and both
Shelton brothers in the beating and murder, telling Nyce that all
three men had taken turns hitting Mannon and that they had
killed a “nice old man.”

       B.     The Trial Court Proceedings

        Acting quickly, on January 21, 1992, a Delaware grand
jury indicted Outten and the Sheltons for Mannon’s death. They
were charged with, inter alia, first-degree murder, first-degree
conspiracy, first-degree robbery, and possession of a deadly
weapon during the commission of a felony. The defendants
were tried together in the Delaware Superior Court in New

                                5
Castle County in January–February 1993. Gibbons, who in
addition to providing multiple contradictory accounts of the
murder during the investigation gave conflicting testimony at
trial, was the State’s principal witness.1 After deliberating for
two days, the jury convicted the defendants of all offenses as
charged.

        A penalty hearing was held on March 3–5, 1993.
Counsel for both Outten and Steven Shelton made opening
statements. One of Outten’s counsel—there were two 2 —told
the jury its decision was simple: choose life or death. He also
stated that he and his co-counsel were there “to beg for the life
of [their] client.” Steven’s counsel, by contrast, stated, “My
client has instructed me to advise you that we will not be
begging for his life in this case.”


 1
   During her initial testimony, Gibbons implicated only Outten
and Nelson Shelton in the murder of Mannon. She retook the
stand, however, and conceded that her prior testimony had been
false, and testified that all three defendants had participated in
the beating and killing of Mannon. For a comprehensive
account of Gibbons’s various statements to investigators and the
jury, see Outten IV, 2004 U.S. Dist. LEXIS 5546, at *9–13.
  2
   Outten was represented by the same two attorneys at trial and
on direct appeal. Outten II, 1997 WL 855718, at *76 n.188. For
the remainder of this opinion, any reference to Outten’s trial
counsel means both attorneys unless the context requires
otherwise.

                                6
        The State then presented evidence of Outten’s past
criminal history. That evidence included: a house burglary
conviction; seven convictions for non-violent crimes including
forgery, issuance of a bad check, misdemeanor theft, felony
theft, and criminal impersonation; his family court record; and
his probation violations.

            Thereafter, Outten presented his mitigation case to the
        3
jury.       He called as witnesses his mother (Carol Outten), two


  3
  Nelson Shelton presented no evidence in mitigation. He was
sentenced to death, waived all appeals and/or post-conviction
remedies, and was executed on March 17, 1995. Steven
Shelton, after extensive colloquies with the trial court, presented
only limited evidence in mitigation. In allocution (here,
speaking directly to the jury), Steven stated:

            Ladies and gentlemen of the jury, I stand before
            you not to plead for my life. I feel that’s wrong
            and improper and basically disrespectful to the
            victim’s family and to mine. The State has
            painted a picture, and that picture is not very
            pretty, pertaining to me and my co-defendants.
            And I would just like to present to the jury a
            different side or a different meaning to Steven
            Shelton. The State has pictured me as being a
            monster, as being a rapist, as being a violent
            individual, but as you heard from my family,
            that’s not so. The State only presents one side of

                                    7
sisters (Robin Outten and Amanda Hart), brother (John Outten),
friend (Ruperto Sanchez), and a former girlfriend and the
mother of two of his children (Karen Julian).

       Outten’s mother testified first. She described Outten’s
relationship with his father, Foster Outten, as his father was
dying of cancer. Outten II, 1997 WL 855718, at *21.
According to Mrs. Outten, Outten had stayed in his parents’
home in order to care for his father for the last two years of his
life. Id. He continued to assist his father even when he was
completely bed-ridden. Id. Mrs. Outten depicted her husband
as a “very strict” man who “punished [the] children as he saw
fit.” Id. She indicated that Outten had “started off in school
okay but got into truancy trouble,” and only made it to the
eleventh grade. Id. Mrs. Outten also discussed her son’s
criminal history, including his prior convictions for assault. On
cross-examination, she confirmed that Outten had physically



       the picture. There’s two sides to every story.
       And the State just presents a negative side. The
       jury has found me guilty of these allegations, and
       now it’s the jury’s turn to render a verdict. And
       that verdict is either life in jail or death. Again,
       I’m not here to plead for my life, but just ask the
       jury to be fair in their decisions. That’s all I have
       to say.

Outten II, 1997 WL 855718, at *25–26.

                                8
attacked his sister Amanda. Id.

       Outten’s sister Robin testified next. She also explained
that Outten had cared for his father toward the end of his life.
Id. She stated that “Outten was very upset by his father’s death
and cried like she had never seen before.” Id. Robin told the
jury that Outten had a child with Karen Julian in 1991, but the
baby had died shortly after birth. Id. “[T]his too,” she said,
“was most upsetting to Outten.” Id. On cross-examination,
Robin admitted that she had accrued “theft and misdemeanor
convictions,” and that those crimes “also involv[ed] Outten.”
Id.

      Ruperto Sanchez, a family friend, testified that he
observed “Outten being upset when his baby died.” Id. He also
“mentioned the good relationship Outten had with his father.”
Id. On cross-examination, Sanchez stated that he had been
convicted in 1991 of a misdemeanor offense involving both
Robin and Outten. Id.

       Amanda Hart, another of Outten’s sisters, then testified.
“She described . . . [a physical altercation that occurred] in 1989
between Outten and [Karen] Julian.” Id. According to Hart,
Outten punched her in the eye when she attempted to intercede.
Id. An affidavit of probable cause signed by Hart and
introduced by the prosecution on cross-examination indicated
that Outten had caused damage to her residence as well. Id.
Hart stated that there were times that she and Outten had lived

                                9
together. During those times, Outten was “helpful to her and
others,” and treated her infant children well. Id. at *22. She
also discussed “how Outten took care of his father in the last
years of his illness.” Id.

        Karen Julian then took the stand. She and Outten had
lived together for about four-and-a-half years prior to his arrest
for the underlying offense. Id. According to Julian, Outten had
been working as a roofer, but had been laid off four to six weeks
before the murder. Id. She also “told the jury that Outten had
not completed an alcoholic rehabilitation program because he
would not give the names of others who had broken some
rules.” Id.

        Outten’s final witness was his older brother, John. He
testified that “[t]heir father became blind in one eye and suffered
a speech impediment as a result of [a] mugging” that occurred
in 1974. Id. John also told the jury that “Outten seemed to
suffer the worst from their father’s frustration” with his
impaired condition. Id. It was John’s opinion that his brother’s
relationship with their father “caused Outten to start stealing.”
Id.

       Outten also spoke directly to the jury in allocution. He
described his family as “close-knit,” but did state that he had
been “semi-abused.” Id. According to Outten, “his father
‘chastened’ him, making him run away.” Id. Outten also
reviewed his extensive criminal record, characterizing himself

                                10
as “mischievous.” Id. He “pointed out to the jury that his
convictions were for non-violent offenses, such as forgery, theft
and criminal mischief.” Id. Outten described himself as a
“kleptomaniac” and admitted that he drank alcohol and took
drugs. Id. He explained that he “had a regular roofing job and
started his own company,” but “[h]e stole . . . to buy tools
needed for [his] work.” Id. In closing, Outten told the jury that
he was caring, sharing, loving and honest—not cold, calculating,
ruthless or heartless. Id. at *23. It was his opinion that “his
good qualities outweighed the bad.” Id.

        Beyond the above recounted testimony, trial counsel did
not introduce at the sentencing hearing any additional mitigating
evidence or documents (i.e., child protective service records,
mental health records, school records). Nor is there any
indication that Outten’s extensive social or psychiatric history
was presented comprehensively by an expert, family member or
counsel.

       In his closing, the prosecutor remarked:

       Another thing that judges, for me, the importance
       of what you do and what this all means is the
       remorse that has been shown in this case in the
       words of Jack Outten in allocution and Steven
       Shelton in allocution. And they told you or paid
       lip service that they had concerns for the families
       of the victim, but what did you hear about their

                               11
       remorse for their acts? What did you hear about
       that concern for the families of the victim whose
       life was taken innocently, without any wrong that
       he caused any of these individuals?

Id. at *45. Outten’s counsel did not object to these comments.

       Consistent with the state death penalty statute in effect at
the time of the sentencing hearing, 11 Del. C. § 4209, the jury
unanimously found beyond a reasonable doubt the existence of
three aggravating factors: (1) the murder was committed during
a robbery, id. § 4209(e)(1)(j), (2) a motive for the murder was
pecuniary gain,4 id. § 4209(e)(1)(o), and (3) the victim was over
sixty-two years old, id. § 4209(e)(1)(r). Moreover, by a vote of
seven to five, the jury found by a preponderance of the evidence
that the aggravating circumstances outweighed the mitigating
circumstances presented by Outten. As a result, the jury
recommended a sentence of death.

        In sentencing Outten, the trial judge acknowledged that
he had proposed four factors in mitigation: Outten’s age, his
lack of violent felonies, his family status, and his amenability to
lesser sanctions than death. According to the judge, Outten’s
relative youth (he was thirty) was diminished by his extensive


  4
   Interestingly, Mannon had no money with him at the time of
the murder but he was wearing the rings found in Nelson
Shelton’s possession on the morning of January 12, 2003.

                                12
appearances in the criminal justice system. The judge also
concluded that Outten’s long-standing substance abuse problem
and the evidence of alcohol consumption on the evening of the
murder were diminished as mitigation by his failure to complete
substance abuse programs. The judge did recognize that the
father’s disability, alcohol abuse, and strictness had a negative
effect on Outten. Ultimately, however, the judge independently
concluded that the aggravating circumstances outweighed the
mitigating circumstances and, on April 30, 1993, sentenced
Outten to death for the murder of Mannon. (The jury also
found, by a vote of eight to four, that aggravating circumstances
outweighed the mitigating circumstances presented by Steven
Shelton. The judge independently agreed with the jury’s
recommendation, sentencing him to death as well.)

       C.     Outten’s Direct Automatic Appeal

       Pursuant to 11 Del. C. § 4209(g), an automatic appeal
was taken to the Delaware Supreme Court. On appeal, Outten
argued that (1) the Superior Court erred by refusing to grant a
severance of his trial from that of his co-defendants; (2) the
State’s use of a peremptory challenge to strike an African-
American juror from the jury violated Batson v. Kentucky, 476
U.S. 79 (1986); and (3) the Superior Court erred by not allowing
him to introduce extrinsic evidence in support of the credibility
of one of his witnesses at trial. Outten v. State, 650 A.2d 1291,
1293 (Del. 1994) (Outten I). The Delaware Supreme Court
rejected each of Outten’s claims and, accordingly, affirmed his

                               13
conviction and sentence. Id. at 1298–1300, 1301–02.

       D.     Outten’s State Post-Conviction Proceedings

        Outten next filed an amended motion for post-conviction
relief in the Delaware Superior Court, arguing that his counsel
was ineffective during both the guilt and penalty phases of his
trial proceedings. He specifically contended that counsel erred
by failing to (1) conduct an adequate pre-trial investigation, (2)
move for severance of his guilt phase from that of his co-
defendants, (3) provide proper advice concerning his right to
take the witness stand, (4) move for severance of his penalty
phase from that of his co-defendants, (5) adequately investigate
and prepare mitigating evidence, and (6) move for a new trial.
Outten II, 1997 WL 855718, at *76.

       Outten requested an evidentiary hearing on his post-
conviction claims. Id. at *26. The Superior Court ruled that an
expansion of the trial record was necessary for it to adequately
address the issues presented.5 Id. Thus, “Outten’s counsel was
asked to respond in affidavit form to a series of Court
questions.” Id. Those questions concerned the following
subjects:


  5
   According to the Superior Court, this was so because “[t]he
contentions raised against Outten’s trial counsel implicated
decisions they made and reasons for those decisions which were
not in the trial record.” Outten II, 1997 WL 855718, at *26.

                               14
(1) the list of witnesses for the penalty hearing
that petitioner alleges was given to counsel and
not investigated, discussions about such witnesses
with petitioner, and decisions made by counsel
about which witnesses to produce; (2) the efforts,
if any, to investigate petitioner’s court and school
records; (3) any decision made by counsel on how
to present petitioner at the penalty hearing; (4)
whether there was a conscious decision to sever
the penalty hearing [from that of the Sheltons];
(5) whether advice was given to petitioner not to
testify during the guilt phase; (6) the substance of
petitioner’s testimony had he elected to testify; (7)
whether counsel was aware of petitioner’s
telephone call from the bar to his girlfriend the
night of the murder; (8) whether counsel had
discussed petitioner’s relationship with his father
beyond the last year of his father’s life; (9)
whether there was a conscious decision not to
have a psychiatric examination of petitioner for
use during the penalty hearing; (10) what role
petitioner took in any of the above decisions; (11)
the reasons counsel did not join in Nelson
Shelton’s motion to sever the guilt phase [from
the penalty hearing]; and (12) whether counsel
was aware that petitioner cashed a check on the
night of the murder at a location other than the
one testified to by Gibbons.

                         15
Outten IV, 2004 U.S. Dist. LEXIS 5546, at *25–26. Outten’s
trial counsel jointly responded by affidavit as directed. Id. at
*26. Outten and the State, respectively, filed answers to that
affidavit. Id. After reviewing those newly submitted materials,
the Superior Court concluded that an evidentiary hearing was
unwarranted. Outten II, 1997 WL 855718, at *26. It also
denied Outten’s amended motion for post-conviction relief. Id.
at *92.

        Outten appealed to the Delaware Supreme Court the
ruling of the Superior Court, contending, inter alia, that it erred
by not holding an evidentiary hearing. Outten v. State, 720 A.2d
547, 551 (Del. 1998) (Outten III). He also argued that the
Superior Court abused its discretion in denying his post-
conviction claims of ineffective assistance of counsel. Id. at
551–58. The Supreme Court of Delaware disagreed, and
affirmed the denial of Outten’s request for post-conviction
relief. Id. at 558. The Superior Court reinstated his death
sentence and set the date of execution for March 18, 1999.

       E.     Outten’s District Court Habeas Proceedings

       On December 28, 1998, Outten filed in the United States
District Court for the District of Delaware a 28 U.S.C. § 2254
pro se petition for a writ of habeas corpus, a 28 U.S.C. § 2251
motion to stay the state court proceedings, and a motion to
proceed in forma pauperis. Outten IV, 2004 U.S. Dist. LEXIS
5546, at *2. The Court granted a stay of execution and the

                                16
motion to proceed in forma pauperis. Id. It also entered an
order appointing counsel and setting a schedule to file an
amended petition. Id.

        In October 1999, Outten filed his first amended habeas
petition to clarify his grounds for relief. Id. at *2–3. He also
filed a motion to supplement the record with the expert report of
a post-conviction mitigation specialist, Lori James-Monroe, and
a motion for an evidentiary hearing on his ineffective assistance
of counsel claims during both the guilt and penalty stages of the
trial proceedings. Id. at *3.

       In August 2000, Outten filed his second amended habeas
petition. He also motioned the Court for an evidentiary hearing
to expand the record as to “(1) claims relating to [Gibbons]; (2)
a claim relating to trial counsel’s failure to present a coherent
case of mitigation at sentencing; and (3) a claim relating to
[Outten’s] allocution at sentencing.” Id. at *3–4. The District
Court held a limited hearing on Outten’s guilt phase issues, but
refused to allow him to cross-examine trial counsel concerning
their efforts to prepare for, investigate, and present a case in
mitigation at sentencing. Id. at *4. It did, however, allow
Outten to supplement the record with documents retrieved by
James-Monroe and noted below.

       James-Monroe is a University of Maryland-trained social
worker who specializes in forensic matters, including mitigation
in capital cases, and other mental health and psycho-social

                               17
stresses. In preparing her expert report, she interviewed Outten,
his mother (Carol Outten), his wife (Kathryn Outten), his sisters
(Robin Outten and Amanda Hart), his brother (John Outten), his
friends (Debbie Coryell, Mary Owens, Kathy Belford, Karen
Julian), and a Delaware Division of Child Protective Services
employee (George Plerhopoles). She also examined the
following documents: Outten’s first amended petition for
habeas review, the psychiatric report of Dr. John O’Brien, III,
William Penn High School records, Child Protective Service
records, Governor Bacon Mental Health Center records,
Delaware Correctional Center records, Family Court records,
and the transcript of trial counsel’s mitigation presentation to the
jury on March 2, 1993.

        In connection with the last item, James-Monroe opined
that, “[i]n her professional opinion, no mitigation theme was
prepared and only ‘sketchy’ family dynamics were introduced in
the way of testimony. There was no extensive personal history
presented by an expert, family member or counsel.” James-
Monroe Report, App. at 170. She also uncovered “[t]he
following mitigation information [that] was not reported during
the original penalty phase, although readily available with
minimal investigation efforts.” Id. at 176.

       Family Issues

       •       Outten was reared by his parents, Carol and
               Foster Outten. Outten’s deceased father, Foster,

                                18
    was “abusive and scary.” According to Carol,
    Foster “physically abused her from the time they
    met in 1962, until approximately 1973.” “[H]is
    physical assaults on her transferred to the children
    and everyone in the home felt the emotional
    abuse.” He “would control everyone through his
    violent rages brought on by drinking.” Carol
    explained “that she wanted to leave him or at least
    call the police, but he threatened on many
    occasions to kill her and the children.”

•   According to Carol, she

           typically worked the 4 p.m. – 12 a.m. shift
           at the [P]ost [O]ffice. Therefore, the
           children were left in the care of their father
           until she arrived home. Many times [when
           she arrived] she found the children in
           corners of the home afraid to move . . . .
           [M]any times the children would have
           been there all day and gone without food
           or completing their homework.

    She recalled that on one occasion [Outten’s sister]
    Amanda had a “black and blue” bruise on her
    forehead from falling asleep in the corner. Carol
    stated that Foster implemented this practice
    because he did not want to “be bothered by the

                     19
    children while he drank and watched television.”

•   Carol would often

           gather the children and leave their home
           after one of her husband’s rages or abusive
           actions. Many times they did not have
           anywhere to go and would walk the streets
           or seek shelter in an abandoned home or
           apartment lobby. They would return home
           hours later, hoping that Foster had “passed
           out from drinking.”

•   “Each Outten child has stories concerning the
    rage of their [sic] father and their [sic] mother’s
    inability to protect them.” For instance, Outten
    “recalled an incident when the children and Mrs.
    Outten returned from an outing.              Foster
    immediately grabbed John [Outten’s brother] and
    began choking him. Foster exclaimed, ‘you left
    the dog tied up, I am going to show you how it
    feels to choke to death.’” When James-Monroe
    questioned John concerning this event, “he
    immediately began to sob.” After he stopped
    crying he stated:

           Dad said[,] “I want you to feel what the
           dog felt.” He was choking me so hard.

                     20
          Mom tried to stop him. He was drunk and
          had a bottle of rum sticking out of his
          pocket. I fell to the floor and I think I was
          unconscious for a little while. I’m not sure
          [who] called the police, but I remember we
          went to [F]amily [C]ourt because of this
          incident. They were going to lock my
          father up for maybe two years. After
          hearing that my mother dropped the
          charges. I left home after that.

•   In 1974, Foster was attacked and mugged and, as
    a result of those injuries, was diagnosed with
    aphasia—an acquired disorder caused by brain
    damage that affects an individual’s ability to
    communicate.

          Not being able to function as he did in the
          past caused Foster . . . to become more
          aggressive and abusive. In addition, he
          became depressed and his drinking
          increased. The depressed moods coupled
          with intensified drinking led to . . . suicidal
          ideation and suicide attempts. Many times
          the children would find him [o]n the floor
          passed out from taking an overdose of his
          medication or after slitting his wrist . . . .
          The family felt helpless, hopeless and

                    21
             guilty, while resenting and being angered
             by his abuse.

•     Outten has one brother, John, and two sisters,
      Amanda and Robin. Each has suffered from
      alcoholism and/or drug addiction. None of the
      children completed high school.

•     Outten has fathered three children, Crystal, Foster
      Jack, and Shane. “He maintains contact with his
      daughter through letter writing.” Foster Jack and
      Shane are from the union of Outten and Karen
      Julian. Shane resides in Pennsylvania and Foster
      Jack is deceased.

Neurologic Issues

•     During her investigation, James-Monroe
      discovered that, while pregnant with her children,
      Carol drank regularly. “This is through her own
      admission.” In addition to regular drinking,
      Foster physically and mentally abused her. The
      physical abuse included “body blows and punches
      [to] her body and face.” According to James-
      M onroe, “[a]lcohol consumption during
      pregnancy coupled with physical abuse . . . have
      detrimental and long lasting effects on unborn
      children.”

                       22
•    Outten suffered two head trauma injuries as a
     child. During the first incident, Outten’s mother
     pushed him into the side of a porcelain tub,
     causing him to strike his head and, as a result,
     lose consciousness. The second incident, which
     also resulted in a loss of consciousness and
     required medical attention, occurred when he was
     struck in the head with a wrench.

School Performance

•    Outten’s school records indicated that he was
     initially placed in a class for the learning disabled
     in 1976 at the age of ten. “It is documented that
     this referral was necessary due to his hyperactivity
     and intellectual ability. In the eighth grade, . . .
     Outten was reading on a third grade level.” A
     1980 evaluation stated:

            Jack is currently functioning at a low
            average level of intelligence.            The
            difference between his verbal I.Q. part of
            the test and the performance section was
            significantly favoring the latter. . . . [His]
            [p]oorest score (retarded level) was
            obtained in the area of concentration.

•    Dr. David Pearl, a school psychologist who

                      23
      evaluated Outten, noted the following in 1982:

             [Jack] was restless, moved his legs back
             and forth, had difficulty maintaining eye
             contact and gave the general impression
             that his problems were “none of my
             business.” He did mention that he had
             been on medication for hyperactivity but
             had stopped taking the pills about a year
             ago. He also noted that he had difficulty
             relating to his father, [and] was frequently
             physically abused by him . . . . Jack made
             only cursory attempts to complete the
             House-Tree-Person drawings and the
             [s]entence completion test. His drawings
             were very small and located at the very top
             of the page on the left hand side[,] which
             is indicative of a restricted personality,
             frustrated in his attempts to attain goals
             which seem unattainable.

•     After numerous foster care and treatment facility
      placements, Outten withdrew from school in the
      eleventh grade and never graduated from high
      school.

Psychological Issues



                       24
•   Outten was a victim of violence. Specifically, he

           was the victim of childhood abuse at the
           hands of his father. According to Outten,
           Mr. Plerhopoles [Divison of Family
           Services staff], and family friends,
           Outten’s father . . . was an alcoholic who
           constantly controlled his family with
           physical and emotional abuse . . . . Outten
           suffered and ran away from home at the
           age of sixteen. After running away, he
           was taken in by [a foster] family.

•   After Outten ran away from home, a series of
    events ensued. He continued to stay with the
    [foster] family.     James-Monroe notes that,
    “[w]hile being cared for by the [foster] family,
    [Outten’s foster mother] began to have
    inappropriate sexual contact with . . . [him].”
    According to Outten, she “initiated the contact by
    placing his hand on her breast. She coerced the
    sixteen-year-old to perform oral sex and fondle
    her.” [Outten’s foster father] discovered this and,
    in July 1982, asked that Outten be removed from
    his home.

•   Outten was then placed in the Franklin Street
    Shelter for run-away children, where he remained

                     25
    for five days before the staff asked that he be
    removed. He was then sent to Camelot Group
    Home, a facility for troubled children. By August
    1982, he was committed to the Governor Bacon
    Health Center. According to Mr. Plerhopoles,
    Governor Bacon had the public reputation of
    being the “dumping ground for [children] that no
    one wanted or knew what to do with.”

•   Outten was released from Governor Bacon and
    returned home to his family in August 1983.
    Representatives of Governor Bacon described him
    as “depressed and hopeless,” with “difficulty
    expressing his feelings.”

•   Outten suffered two major losses in his life—the
    death of his father and the death of his young son,
    Jack Foster. Outten’s father died of bone cancer
    in 1991. Despite all of the abuse he suffered at
    the hands of his father, Outten cared for Foster
    entirely during the last six months of his life.
    According to James-Monroe, “[i]t is not
    uncommon for abused children and adult
    survivors to develop attachments to those who
    abuse and neglect them, relationships they will
    strive to maintain even at the sacrifice of their
    own well-being.” In July 1991, Outten fathered a
    child with Karen Julian, Jack Foster. The baby

                     26
                 only lived fourteen days before dying of many
                 complications. According to the Outten family,
                 “Julian was using illicit drugs during her
                 pregnancy[,] which resulted in the non-
                 development of certain of the child’s organs.”

       Substance Abuse

       •         Outten was a substance abuser. He

                       admitted to the use of alcohol,
                       amphetamines, marijuana, crack cocaine,
                       LSD, and the intravenous use of powder
                       cocaine. His immediate family [and
                       friends] acknowledged this use. . . .
                       Outten’s drug use began at the age of 10
                       with ‘sneaking’ some of his father’s liquor.
                       In addition, he was able to drink with
                       neighbors. . . . By the age of 14, he was
                       smoking marijuana, which eventually led
                       to intravenous cocaine use and late stages
                       of alcoholism. . . . His substance abuse
                       continued until the date of the underlying
                       offense.

Id. at 176–81.

       James-Monroe’s report detailing the above-described

                                27
mitigation evidence not investigated or presented at sentencing
notwithstanding, the District Court denied relief on all of the
claims raised in Outten’s § 2254 petition. With respect to trial
counsel’s duty to investigate, the Court concluded that “trial
counsel’s overall defense strategy of portraying [Outten] as
loving, caring, and non-violent,” combined with the hope “that
the jury would have reservations about [Outten’s] involvement
in the murder[,] . . . was [a] strategy choice . . . within the range
of professionally reasonable judgment.” Outten IV, 2004 U.S.
Dist. LEXIS 5546, at *48–50.

       Despite its denial of habeas relief, the District Court did
grant a certificate of appealability as to three claims pertaining
to Outten’s sentencing: whether trial counsel were ineffective
(1) in their investigation and presentation of mitigating
evidence, (2) for failing to seek severance of Outten’s penalty
phase from that of the Shelton brothers, and (3) for failing to
object to the prosecutor’s comments concerning Outten’s
allocution to the jury.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction over Outten’s habeas
petition under 28 U.S.C. § 2254. We have jurisdiction over his
appeal pursuant to 28 U.S.C. §§ 1291, 2253. Because the
District Court did not hold an evidentiary hearing on Outten’s
sentencing claims, we review its legal conclusions de novo.
Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).

                                 28
       Outten’s petition for habeas relief from his state court
sentence is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241–2254.
AEDPA circumscribes our consideration of Outten’s claims;
federal habeas relief will only be granted if the state court
decision being challenged “was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362
(2000), the Supreme Court held that a state court decision is
“contrary to” clearly established federal law if it (1) “contradicts
the governing law set forth in [the Supreme] Court’s cases” or
(2) “confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives
at a [different] result.” Id. at 405–06. An “unreasonable
application” of Supreme Court precedent occurs: (1) “if the state
court identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case;” or (2) if it “either
unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply.” Id. at 407.

       Our review of Outten’s claims under AEDPA is a two-
step process that proceeds as follows. First, we “‘identify the
applicable Supreme Court precedent and determine whether it
resolves . . . [Outten’s] claim[s].’” Hackett v. Price, 381 F.3d

                                29
281, 287 (3d Cir. 2004) (quoting Werts v. Vaughn, 228 F.3d
178, 197 (3d Cir. 2000)); see also Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc). In
performing this inquiry, “it is not sufficient for [Outten] to show
merely that his interpretation of Supreme Court precedent is
more plausible than the state court’s; rather, [Outten] must
demonstrate that Supreme Court precedent requires the contrary
outcome.” Hackett, 381 F.3d at 287 (quoting Werts, 228 F.3d
at 197). “If we determine that the state court decision is not
‘contrary to’ the applicable Supreme Court precedent, then we
are required to advance to the second step in the
analysis—whether the state court decision was based on an
‘unreasonable application of’ Supreme Court precedent.” Werts,
228 F.3d at 197 (quoting Matteo, 171 F.3d at 888). In doing so,
“we are not authorized to grant habeas corpus relief simply
because we disagree with the state court’s decision or because
we would have reached a different result if left to our own
devices.” Id. Instead, “the state court’s application of Supreme
Court precedent must have been objectively unreasonable,” that
is, “[t]he federal habeas court should not grant the petition
unless the state court decision, evaluated objectively and on the
merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent.” Hackett,
381 F.3d at 287 (internal quotations omitted).

III.   Merits

       A.     Applicable Supreme Court Precedent: Strickland

                                30
               v. Washington

         As instructed by Williams, we begin our analysis by
identifying and discussing the applicable Supreme Court
precedent. It is well-settled that “the legal principles that govern
claims of ineffective assistance of counsel [were established by
the familiar two-pronged test of] Strickland v. Washington, 466
U.S. 668 (1984).” Wiggins v. Smith, 539 U.S. 510, 521 (2003).
It is also “past question that . . . Strickland qualifies as ‘clearly
established [f]ederal law, as determined by the Supreme Court
of the United States.’” Williams, 529 U.S. at 391.

       Under the first prong of Strickland, a petitioner must
show that trial counsel’s performance was deficient. Strickland,
466 U.S. at 687. The proper standard for attorney performance
is that of “reasonably effective assistance,” as defined by
“prevailing professional norms.” Id. at 687–88 (emphasis
added). In other words, Outten must establish that counsel’s
representation fell below an objective standard of
reasonableness. Id. Moreover, counsel’s reasonableness must
be assessed on the facts of the particular case, viewed as of the
time of counsel’s conduct. Id. at 689.

        Strickland’s second prong requires a petitioner to show
that “the deficient performance prejudiced the defense.” Id. at
687. The prejudice component requires Outten to demonstrate
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have

                                 31
been different.” Id. at 694.

       B.     Failure to Investigate

        The first category of Outten’s ineffective assistance of
counsel challenges relates to his trial attorneys’ investigation
and preparation for the sentencing hearing after his conviction.
Outten’s primary argument is that his attorneys failed adequately
to investigate potentially mitigating evidence, especially the
effect of his troubled personal and psychiatric background. He
also contends that his attorneys’ proffered strategy—to reargue
his innocence at sentencing—was legally impermissible, and
thus no strategy whatsoever. The Delaware Supreme Court
determined that Outten could not show that counsel’s
performance was deficient. Outten III, 720 A.2d at 553.

              1.      Was Counsel’s Limited Investigation
                      Reasonable?

        In accord with our two-pronged inquiry, we consider
whether counsel’s investigation was reasonable. According to
the trial counsel’s joint affidavit, submitted in response to the
written interrogatories posed by the Delaware Superior Court,
preparations for Outten’s penalty-phase hearing began
approximately one month prior to the guilt-phase proceedings.
See Trial Counsel Aff., App. at 158. Counsel conceded that
their investigation was cursory, as it consisted simply of a letter
to Outten asking him to provide “the names of potential penalty

                                32
phase witnesses.” Id. Nothing else was done by way of
investigation except for the conduct of limited discussions with
Outten and his mother. See id. at 159 (stating that “[a]fter
discussing with Mr. Outten his school history[,] . . . we
confirmed his assessment with his mother and it was determined
that nothing in his school background would be helpful to . . .
[Outten] in either the guilt or penalty phases of the [t]rial. As a
result of our discussions it was determined no[t] to investigate
the records.” (emphasis added)); see also id. at 160 (explaining
that, “as indicated previously[,] based upon the information
supplied by Mr. Outten and his mother[,] it was determined not
to pursue the area of psychiatric or psychological disorders”).

        Trial counsel’s affidavit also reveals that, much like their
counterparts in Strickland, Williams, and Wiggins, Outten’s
attorneys “attempt[ed] to justify their limited investigation as
reflecting a tactical judgment not to present mitigating evidence
at sentencing and to pursue an alternative strategy instead.”
Wiggins, 539 U.S. at 521 (rejecting the state’s defense of
counsel’s decision to retry guilt at the sentencing phase);
Williams, 529 U.S. at 373 (“reject[ing] the argument that
counsel’s failure to conduct an adequate investigation had been
a strategic decision to rely almost entirely on the fact that
Williams had voluntarily confessed”); see also Strickland, 466
U.S. at 673. Counsel here specifically viewed the defense
strategy as an effort to convince the jury that “Outten was loving
and generous, showing no signs of prior violent behavior,” and
thus incapable of murder.

                                33
              It was determined that we would present
       Jack to the [j]ury as a [y]oung man capable of a
       loving and caring existence. A man who had no
       history of violence. A man who was capable of
       holding a job and support[ing] a family. . . .

              It was determined that all negatives,
       abusive childhood, truancy and school problems
       would be counterproductive.            The theme
       throughout the guilt phase and the penalty phase
       was to remain consistent, that is, Jack Outten did
       not commit the murder. It was determined that
       this could best be carried out by presenting Outten
       as we did.

Trial Counsel Aff., App. at 158. Trial counsel further stated that
“[i]t is conceded that an expert could have been retained to
develop a mental crutch (conclusion is reached based on
experience)[;] however, it was determined that a consistent
defense of not offering excuses for Outten’s actions but a
continued denial was in his best interest.” Id. at 163 (emphasis
added).

       Simply stated, defense counsel’s penalty-phase strategy
was to argue to the jury—which had convicted Outten of murder
unanimously and beyond a reasonable doubt—that he was a
good guy and that his life should be spared because he was
actually innocent. See id. at 159 (stating that “[i]t was

                               34
determined that we should stick with our original theory, Jack
was innocent, as supported by his penalty phase witnesses”
(emphasis added)); id. at 160 (explaining that “[t]he
determination was to represent Jack as a party not involved in
the murder at the trial phase and to maintain that position
throughout the penalty phase so as to retain credibility with the
jury” (emphasis added)).

       But in closing comments at the penalty phase, trial
counsel did not carry through this tack. When trial counsel tried
to pursue Outten’s actual innocence argument explicitly, the
prosecution objected and the trial court disallowed it, stating
“[t]hat’s improper argument[,] . . . rearguing the issue of guilty
or not guilty.” See App. at 126. Counsel responded, “I’m not
arguing the issue of guilty or not . . . . [Outten] was guilty.” Id.
When counsel again attempted to discuss “the testimony or
evidence that [Outten] didn’t do it,” the trial judge
unequivocally instructed that there was to be no further
presentation of that issue. Id.

       Ultimately, the innocence strategy was abandoned in
closing. Counsel stated that it “wasn’t too difficult to decide”
that Outten and his co-defendants were responsible for the
victim’s death. Id. at 121. He mentioned Outten’s “horrendous
record,” and then stated, “We’re not here to decide what he did
in this particular case. He’s guilty.” Id. at 122. Counsel
described Outten’s family as “the other victims in this case.” Id.
at 125. He stated that “they’re here because Jack Outten put

                                35
them here. He didn’t have to go to that bar that evening. He
could have stayed home.” Id.

        Counsel also failed in closing to focus on the positive
aspects of Outten’s character. While he did mention that Outten
had no convictions for violent crimes, he did so by referring to
Outten’s “long criminal record,” and stated that “Jack Outten
was on the street for a long time committing crimes, but there’s
no history of violence.” Id. at 124. Indeed, any contention that
Outten was non-violent was substantially undermined by the
cross-examination testimony elicited by the prosecution from
various family members describing Outten’s assaults on his
sister Amanda, his ex-girlfriend Julian, and other individuals.
There was no mention of Outten being loving and generous or
that he was capable of holding down a job. The jury was not
reminded of Outten’s caring for his dying father or helping his
sister Amanda with child care. “When viewed in this light, the
‘strategic decision’ the state courts and [counsel] . . . invoke to
justify counsel’s limited pursuit of mitigating evidence
resembles more of a post hoc rationalization of counsel’s
conduct than an accurate description of their deliberations prior
to sentencing.” Wiggins, 539 U.S. at 526–27; see also id. at 526
(stating that “[t]he record of the actual sentencing proceedings
underscores the unreasonableness of counsel’s conduct by
suggesting that their failure to investigate thoroughly resulted
from inattention, not reasoned strategic judgment”).

       Counsel made clear they neither acquired nor reviewed

                                36
readily available school and medical health records. See Outten
II, 1997 WL 855718 at *86 (reiterating that “[i]t is undisputed
trial counsel did not examine these records”). They also
explained that their decision to refrain from such an
investigation stemmed entirely from conversations with Outten
and his mother. Thus, similar to the attorneys in Wiggins, 539
U.S. at 537–38 (holding that counsel’s decision not to expand
their investigation beyond the perusal of limited government
records and the arrangement of psychological testing for their
client was unreasonable), Outten’s trial counsel acquired
whatever “rudimentary knowledge” of Outten’s background
they did have from a “narrow set of sources,” id. at 524.

       We need to resolve whether this limited investigation
from a “narrow set of sources” was reasonable. The Supreme
Court has explained the deference owed to strategic decisions of
counsel by reference to the scope of the investigations
supporting those decisions:

       [S]trategic choices made after thorough
       investigation of law and facts relevant to plausible
       options are virtually unchallengeable; and
       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

                               37
       that makes particular investigations unnecessary.
       In any ineffectiveness case, a particular decision
       not to investigate must be directly assessed for
       reasonableness in all the circumstances, applying
       a heavy measure of deference to counsel’s
       judgments.

Strickland, 466 U.S. at 690–91. Put another way, the question
before us is not whether counsel should have introduced
mitigating evidence of Outten’s background. It is “whether the
investigation supporting counsel’s decision not to introduce
mitigating evidence of [Outten’s] background was itself
reasonable.” Wiggins, 539 U.S. at 511 (emphasis in original).
Reasonableness in this context is assessed by looking to
“[p]revailing norms of practice as reflected in [the] American
Bar Association standards.” Strickland, 466 U.S. at 688; see
also Rompilla v. Beard, 545 U.S. 374, 375 (2005) (explaining
that the Court has long “referred [to the ABA Standards for
Criminal Justice] as guides to determining what is reasonable”
(internal quotations omitted)); Wiggins, 539 U.S. at 522 (stating
that “[i]n highlighting counsel’s duty to investigate,” the Court
“refer[s] to the ABA Standards for Criminal Justice as guides”);
Marshall v. Cathel, 428 F.3d 452, 463 (3d Cir. 2005) (“An
attorney’s duty to investigate is itself judged under a
reasonableness standard based on ‘prevailing professional
norms[,]’ such as those found in the ABA Standards for
Criminal Justice.”).



                               38
       In 1989, four years prior to Outten’s penalty-phase
hearing, the ABA promulgated guidelines for defense attorneys
in capital cases. See American Bar Association Guidelines for
the Appointment and Performance of Counsel in Death Penalty
Cases (1989) (“ABA Guidelines”). “Those Guidelines applied
the clear requirements for investigation set forth in the earlier
Standards to death penalty cases and imposed . . . similarly
forceful directive[s].”   Rompilla, 545 U.S. at 376 n.7.
Concerning penalty-phase preparation and investigation, the
Guidelines provide:

              A.     Counsel        should     conduct
                     independent investigations relating
                     to the guilt/innocence phase and to
                     the penalty phase of a capital trial.
                     Both investigations should begin
                     immediately upon counsel’s entry
                     into the case and should be pursued
                     expeditiously.

              ...

              C.     The investigation for preparation of
                     the sentencing phase should be
                     conducted regardless of any initial
                     assertion by the client that
                     mitigation is not to be offered. This
                     investigation should comprise

                               39
                      efforts to discover all reasonably
                      available mitigating evidence and
                      evidence to rebut any aggravating
                      evidence that may be introduced by
                      the prosecutor.

ABA Guideline 11.4.1 (1989) (emphasis added). Counsel
should explore, inter alia, “medical history,” “family and social
history,” “educational history,” “special educational needs,”
“employment and training history,” “prior adult and juvenile
records,” and “prior correctional experience.” ABA Guideline
11.4.1(D)(2)(C). The ABA Guidelines go on to explain that

       [t]he need for a standard mandating investigation
       for the sentencing phase is underscored by cases
       in which counsel failed to recognize the
       importance of this aspect of death penalty
       litigation. Inexperienced counsel — and even
       counsel experienced in non-capital cases — “may
       underestimate the importance of developing
       meaningful sources of mitigating evidence . . .”
       See Guideline 11.8 and commentary.

              Counsel’s duty to investigate is not negated
       by the expressed desires of a client. Nor may
       counsel “sit idly by, thinking that the investigation
       would be futile.” The attorney must first evaluate
       the potential avenues of action and then advise the

                                40
       client on the merits of each.          Without
       investigation, counsel’s evaluation and advice
       amount to little more than a guess.

ABA Guideline 11.4.1, commentary (1989) (internal footnote
omitted) (emphasis added); see also 1 ABA Standards for
Criminal Justice 4–4.1, commentary (2d ed. 1982) (stating “[t]he
lawyer . . . has a substantial and important role to perform in
raising mitigating factors both to the prosecutor initially and to
the court at sentencing . . . . Investigation is essential to
fulfillment of these functions.”).

        “Despite these well-defined norms, however, counsel
[here] abandoned their investigation of [Outten’s] background
after having acquired only rudimentary knowledge of his history
from a narrow set of sources.” Wiggins, 539 U.S. at 524. It was
standard practice at the time of Outten’s trial for a death-eligible
defendant’s penalty-phase investigation to include his medical
history, educational history, family and social history,
employment history, and adult and juvenile correctional records.
Counsel’s investigation, however, was limited solely to
conversations with Outten and his mother—a woman who, as
demonstrated by the unreviewed-by-counsel records, had not
“shown great[] continued interest in [her son].” See Report of
James-Monroe, App. at 180. We conclude that this effort fell
well short of the national prevailing professional standards
articulated by the American Bar Association and was, therefore,
unreasonable. See Wiggins, 539 U.S. at 524 (holding that

                                41
counsel’s decision not to expand their investigation to
petitioner’s life history, beyond review of a presentence report
and social service records, failed to meet the prevailing
standards of attorney conduct).

        Counsel’s cursory investigation was also unreasonable in
light of what they presumably discovered from the conversations
with Outten and his mother prior to sentencing: Outten’s father
was an abusive alcoholic; Outten had struggled in school and
ultimately failed to graduate; he had run away from home; and
he had a history of substance abuse.6 Id. at 527 (explaining that
courts must consider whether the evidence known to counsel
“would lead a reasonable attorney to investigate further”).


     6
       The record does not reflect the content of counsel’s
conversations in this regard. We presume that counsel
discovered information concerning Outten’s abusive father,
struggles in school, and substance abuse during their
conversations with Outten and his mother because they testified
as to those facts on direct examination during the sentencing
proceedings. Moreover, in their affidavit, trial counsel noted
that, prior to sentencing, they “determined that all negatives,
abusive childhood, truancy and school problems would be
counterproductive.” Trial Counsel Aff., App. at 158. Because
counsel limited their sentencing investigation exclusively to
Outten and his mother, either Outten or his mother—or
both—must have been the source of counsel’s information on
those “negatives.” In any event, counsel acknowledge that they
were aware of the abuse and school problems.

                               42
“[A]ny reasonably competent attorney would have realized that
pursuing those leads was necessary to make an informed choice
among possible [sentencing strategies].” Id. at 525. “Indeed,
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 . . . .” Id. Moreover, as in Wiggins, “[h]ad counsel
investigated further [here], they might well have discovered the
sexual abuse [Outten suffered at the hands of his foster mother]
revealed during . . . postconviction proceedings.” Id.

        As noted above, the prevailing professional norms for
capital cases at the time of Outten’s trial instructed defense
counsel “to discover all reasonably available mitigating
evidence and evidence to rebut any aggravating evidence that
may be introduced by the prosecutor.” ABA Guideline 11.4.1
(emphasis added). Given the minimal investigation conducted
here, trial counsel’s evaluation of which defense strategy to
pursue “amounted to little more than a[n] [uninformed] guess.”
Id.; see also Wiggins, 539 U.S. at 527. Simply stated, failing to
present possibly mitigating evidence cannot be justified when
counsel have not “fulfill[ed] their obligation to conduct a
thorough investigation of the defendant’s background.”
Williams, 529 U.S. at 396 (citing 1 ABA Standards for Criminal
Justice 4–4.1, commentary).         Accordingly, we hold the
Delaware Supreme Court’s 1998 ruling in Outten III—that the
limited scope of trial counsel’s investigation was adequate under
the prevailing norms of professional conduct at the time of

                               43
Outten’s trial—was an objectively unreasonable application of
the first prong of the Strickland inquiry.

              2.     Was Counsel’s Unreasonable Investigation
                     Prejudicial?

        Because trial counsel’s failure to investigate Outten’s
background was unreasonable, we proceed to whether that error
was prejudicial—that is, whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. “In
assessing prejudice, we reweigh the evidence in aggravation
against the totality of available mitigating evidence.” Wiggins,
539 U.S. at 534.

       The James-Monroe report shows substantial evidence in
mitigation that counsel failed to investigate and present at
sentencing.     In particular, Outten experienced severe
mistreatment as a child from his “abusive and scary” alcoholic
father. James-Monroe Report, App. at 176. Outten’s father
physically assaulted and emotionally tormented his wife and
children routinely, even “threaten[ing] on many occasions to kill
[them].” Id. When Mrs. Outten returned home from work, she
often found the children huddled in a corner, afraid to move. Id.
at 177. “[M]any times the children would have been there all
day and gone without food or completing their homework.” Id.

                               44
Frequently, Mrs. Outten and her children were forced to “walk
the streets or seek shelter in an abandoned home or apartment
lobby” in order to avoid Mr. Outten’s “rages or abusive actions.”
Id.

        Outten’s brother John related an incident where, because
he had left the dog tied up, his father choked him to the point of
unconsciousness so that he would know “how it feels to choke
to death.” Id. As Mr. Outten physically deteriorated, he became
suicidal and often the children would find him passed out,
having overdosed on medication and/or slit his wrists. Id.
“Each of the Outten children has stories concerning the rage of
their father and their mother’s inability to protect them.” Id.
Neither Outten nor any of his siblings completed high school.
Id. at 178. Moreover, they all suffered from alcoholism and/or
drug addiction. Id. at 177–78.

       In addition to the considerable evidence of child abuse,
James-Monroe discovered “easily accessible” documented
evidence of neurological damage, poor school performance, low
IQ, learning disabilities, placement in foster homes, sexual
abuse, and substance abuse. Id. at 176–81. Even a superficial
investigation into Outten’s school records reveals that he
functioned during his developmental years at a below-average
level of intelligence and, specifically, at a retarded level in the
area of concentration. Id. at 180. Outten “thus has the kind of
troubled history we have declared relevant to assessing a
defendant’s moral culpability.” Wiggins, 539 U.S. at 535; see

                                45
also Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (stating that
“evidence about the defendant’s background and character is
relevant because of the belief, long held by 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”).

       The Delaware Supreme Court held that Outten’s
allegations concerning the limited scope of counsel’s
investigation of his background failed to satisfy the prejudice
prong of Strickland. Outten III, 720 A.2d at 553. We disagree.
The Court’s conclusion was premised on evidence that “counsel
made some effort to discover whether there was any useful
information in Outten’s school records,” and that “information
regarding [Outten’s] substance abuse problem, truancy trouble
in school, appearances in Family Court, criminal activity, and
abusive and alcoholic father came out in the testimony during
the penalty phase hearing.” Id.

       In another context, we have rejected expressly the
Pennsylvania Supreme Court’s conclusion that the failure to
present additional mitigating evidence was not prejudicial
simply because the jury had some awareness of a petitioner’s
childhood and mental illness:

       [T]he Commonwealth fails to appreciate the fact
       that the only evidence specifically pertaining to
       Jermyn’s childhood abuse came from Reverend

                              46
       Falk, whose testimony, to which we have already
       alluded, was limited, equivocal, and misleading.
       While the jury was clearly aware that Jermyn
       claimed that he suffered a mental illness, the lack
       of directed and specific testimony about Jermyn’s
       childhood and its impact on Jermyn’s mental
       illness left the jury’s awareness incomplete. We
       therefore do not agree with the Pennsylvania
       Supreme Court’s characterization that the
       evidence that could have been presented would
       simply “have provided the jury with more detailed
       incidents of his childhood trauma and mental
       illness.” Rather, the testimony would have
       provided the jury with an entirely different view
       of Jermyn’s life and childhood which would have
       both aided in understanding the seriousness and
       origin of his mental illness and provided an
       understanding of Jermyn’s relationship with the
       deceased.

Jermyn v. Horn, 266 F.3d 257, 310–11 (3d Cir. 2001) (internal
footnote and citations omitted).

       The same logic applies here. Simply because some
mitigating evidence regarding Outten’s abusive childhood was
introduced to the jury—despite defense counsel’s contrary
intentions, see Trial Counsel Aff., App. at 158 (stating that the
defense strategy was not to introduce any evidence of Outten’s

                               47
“abusive childhood” or “school problems”)—it does not follow
that the jury was provided a comprehensive understanding of
Outten’s abusive relationship with his father or other aspects of
his troubled childhood. For example, while Outten’s mother
portrayed her husband as a “very, very strict parent,” she did not
relate to the jury the disturbing abuse she later described to
James-Monroe in detail. In any event, the jury heard nothing
regarding Outten’s sexual abuse in foster care, possible
neurological damage, learning disabilities, or low IQ.

        Here, “counsel chose to abandon their investigation at an
unreasonable juncture, making a fully informed decision with
respect to sentencing strategy impossible.” Wiggins, 539 U.S.
at 527–28. As we have already explained, the state court’s
ruling that the scope of counsel’s investigation was adequate
was an unreasonable application of Strickland.         Thus, its
subsequent deference to counsel’s decision not to “pursue all
lines of investigation,” Outten III, 720 A.2d at 553 (internal
quotations omitted), “despite the fact that counsel based this
alleged choice on what we have made clear was an unreasonable
investigation, was also objectively unreasonable.” Wiggins, 539
U.S. at 528. This is because “strategic choices made after less
than complete investigations are [only] reasonable . . . to the
extent that reasonable professional judgments support the
limitations on investigations.” Strickland, 466 U.S. at 690–91.

      The State counters that trial counsel would have
proceeded with their “reasonable” strategy of presenting Outten

                               48
as kind, caring, and ultimately innocent, notwithstanding the
mitigating evidence they failed to discover. In Wiggins, the
State of Maryland offered a similar contention, “maintaining
that Wiggins’ counsel would not have altered their chosen
strategy of focusing exclusively on Wiggins’ direct
responsibility for the murder.” 539 U.S. at 536. The Supreme
Court flatly rejected this logic, explaining that

       counsel were not in a position to make a
       reasonable strategic choice as to whether to focus
       on Wiggins’ direct responsibility, the sordid
       details of his life history, or both, because the
       investigation supporting their choice was
       unreasonable.

Id. The same analysis applies here. Counsel for Outten were
not in a position to make a reasonable decision whether to focus
on his innocence or positive characteristics, the details of his
traumatic background, or both, as their investigation in
preparation for sentencing was itself unreasonably deficient.

       Moreover, as already discussed, counsel’s presentation at
sentencing hardly reflected their stated strategy. The innocence
argument was never presented to the jury because the trial judge
disallowed it. To make matters worse, counsel then did an
“about face” by proclaiming to the jury in closing that “it wasn’t
too difficult to decide” that Outten had murdered Mannon. To
hammer home the point, counsel explicitly stated, “He’s guilty.”

                               49
        Trial counsel’s sentencing presentation also failed to
focus on evidence indicating Outten’s good character traits. As
stated above, counsel did argue that Outten had no convictions
for violent crimes, but he did so by referring to Outten’s “long
criminal record” and stated that “Jack Outten was on the street
for a long time committing crimes, but there’s no history of
violence.” In closing, counsel neglected to remind the jury that
Outten was capable of holding down a job, had cared for his
dying father, or had assisted his sister with child care. Worse
yet, the contention that Outten was non-violent was considerably
undermined by the cross-examination testimony of various
family members describing Outten’s physical attacks on his
sister and ex-girlfriend—damaging testimony that could have
been factored into trial counsel’s strategic decision had counsel
interviewed those witnesses prior to sentencing.

       The State asserts, and we acknowledge, that not all of the
evidence in the records counsel failed to investigate is favorable
to Outten. This is nearly always the case. Indeed, the same was
true of the evidence not investigated by counsel in Williams.
There, the Supreme Court observed that “the failure to introduce
the comparatively voluminous amount of evidence that did
speak in Williams’ favor was not justified by . . . [the] decision
to focus on Williams’ voluntary confession.” Williams, 529
U.S. at 398. The same is true here; the failure to introduce
considerable evidence that could have been helpful to Outten
was not justified by counsel’s belief, without an adequate
investigation, that the net result of any investigation would be

                               50
negative. In fact, much of the aggravating evidence in the
records was either introduced or elicited on cross-examination
by the State at sentencing. The more important point here,
however, is while it is true that trial counsel may not have
introduced into evidence all of Outten’s records at sentencing if
they had procured them, the records most certainly would have
informed counsel’s preparation. Moreover, given the jury’s
close vote in favor of death for Outten—7 to 5—counsel would
have had the ability to argue a much broader range of mitigating
factors than the four that were presented to the jury.7

       In this context, we conclude that the Delaware Supreme
Court unreasonably applied the second prong of Strickland in
reaching the determination that Outten could not establish
prejudice because Outten’s records contained some harmful
information. See Outten III, 720 A.2d at 552 (approving the
Superior Court’s reasoning that Outten’s “ records contained
both mitigating and aggravating information which, at best,
cancel each other out . . . [; thus] trial counsel cannot be faulted
for not investigating them [because,] in all likelihood, the


   7
     For example, notwithstanding the emotional and physical
abuse Outten suffered at the hands of his father, the record
reflects that Outten forgave him and remained by his side during
his final months of life. In this context, it seems that revealing
the severity of Mr. Outten’s abuse of his children would have
bolstered and complemented—rather than detracted from—the
defense’s portrait of Outten as caring and compassionate.

                                51
records would not have been used”) (internal quotations
omitted)). In effect, despite the fact that there was a wealth of
readily accessible mitigating evidence here, the jury heard little
of it. In evaluating the totality of the evidence, both introduced
at trial and in the habeas proceedings, we conclude that “[h]ad
the jury been able to place [Outten’s] excruciating life history on
the mitigating side of the scale, there is a reasonable probability
that at least one juror [or more] would have struck a different
balance.” Wiggins, 539 U.S. at 537.              Because the jury
recommended death by the narrow margin of 7 to 5, persuading
even one juror to vote for life imprisonment could have made all
the difference. This without doubt satisfies Strickland’s
prejudice prong.

                         *   *   *    * *

       For the reasons provided above, we hold that the state
court’s ruling that the limited scope of trial counsel’s
investigation did not constitute ineffective assistance of counsel
was an objectively unreasonable application of Strickland.
Because counsel’s penalty-phase investigation was unreasonably
deficient and prejudicial, Outten is entitled to habeas relief. We
reverse and remand this case to the District Court with
instructions to grant a provisional writ of habeas corpus directed
to the penalty phase. Within 120 days of the judgment
accompanying this opinion, the State of Delaware may conduct
a new sentencing hearing in a manner consistent with this
opinion or sentence Outten to life imprisonment.

                                 52
