       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Johnson v. Bell                              No. 01-5451
    ELECTRONIC CITATION: 2003 FED App. 0323P (6th Cir.)
                File Name: 03a0323p.06                      NORRIS, J., delivered the opinion of the court, in which
                                                          BOGGS, J., joined. CLAY, J. (pp. 14-20), delivered a
                                                          separate dissenting opinion.
UNITED STATES COURT OF APPEALS
                                                                              _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                 OPINION
                                                                              _________________
 DONNIE E. JOHNSON,               X
                                                            ALAN E. NORRIS, Circuit Judge. Donnie E. Johnson, a
          Petitioner-Appellant, -                         prisoner on death row in Tennessee, appeals from the denial
                                   -
                                   -  No. 01-5451         of his petition for a writ of habeas corpus. 28 U.S.C. § 2254.
            v.                     -                      The sole issue on appeal concerns the performance of defense
                                    >                     counsel during the sentencing phase of the trial, which
                                   ,                      petitioner contends amounted to constitutionally ineffective
 RICKY BELL,                       -
          Respondent-Appellee. -                          assistance. The district court declined to issue the writ on this
                                                          ground because it concluded that counsel satisfied the Sixth
                                  N                       Amendment standards governing the right to effective
       Appeal from the United States District Court       representation as defined by Strickland v. Washington, 466
    for the Western District of Tennessee at Memphis.     U.S. 668 (1984). We now affirm that judgment.
    No. 97-03052—Bernice B. Donald, District Judge.
                                                                                         I.
                Argued: March 25, 2003
                                                            Because the scope of this appeal is limited, the underlying
        Decided and Filed: September 10, 2003             facts that gave rise to petitioner’s prosecution, while tragic,
                                                          are not germane to our discussion. They are set forth at some
 Before: BOGGS, NORRIS, and CLAY, Circuit Judges.         length in the opinion of the Supreme Court of Tennessee
                                                          affirming petitioner’s conviction and sentence on direct
                  _________________                       appeal. State v. Johnson, 743 S.W.2d 154 (Tenn. 1987), cert.
                                                          denied, 485 U.S. 994 (1988). Suffice it to say that petitioner
                       COUNSEL                            brutally murdered his wife, Connie Johnson, on December 8,
                                                          1984, at the camping equipment center where he worked.
ARGUED: C. Mark Pickrell, Nashville, Tennessee, for       With the help of a co-worker, he then disposed of her body
Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY        and rather ineffectively set about covering up his crime.
GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF: C. Mark Pickrell, Nashville, Tennessee, for       During his trial, petitioner was represented by retained
Appellant. Alice B. Lustre, Paul G. Summers, Michael E.   counsel Jeff Crow and Clark Washington. Washington’s
Moore, OFFICE OF THE ATTORNEY GENERAL,                    background was primarily in civil practice. Crow testified in
Nashville, Tennessee, for Appellee.                       state post-conviction proceedings that he had conducted five

                            1
No. 01-5451                                Johnson v. Bell       3    4     Johnson v. Bell                              No. 01-5451

or six criminal trials before this one but could not remember         only on the day of trial. According to Mrs. Johnson, she was
whether the one murder trial he had second-chaired had been           not asked about her son’s background or marriage even
a death-penalty case. The sentencing phase of the trial took          though he and his wife had lived next door to her since their
place over October 3 and 4, 1985. The jury found both the             marriage. She did not know of any problems between her son
aggravating circumstances presented to it: 1) Johnson had             and his wife. Rather, she believed him to be a hard worker
previously been convicted of one or more felonies that                who cared for his family and raised well-mannered children.
involved the use of threat or violence; 2) the murder was             Despite this information, she was not asked to testify.
especially heinous, atrocious, and cruel in that it involved
torture or depravity of the mind. Although he did not testify            James Johnson, petitioner’s father, contended that petitioner
during the guilt phase of his trial, petitioner elected to take the   “was one of the most devoted person[s] to his family that I
stand during his sentencing hearing. He denied that he killed         have ever seen,” and that he was a good son, a hard worker,
his wife and attempted to shift the blame to his co-worker,           and a good family man. Mr. Johnson went on to assert that
who was on work release from prison at the time of the                trial counsel asked him very little about his son’s boyhood
murder. Johnson, 743 S.W.2d at 156. He conceded,                      and schooling. Concerning the fact that he did not testify at
however, that he assisted in the disposal of his wife’s corpse.       trial, petitioner’s father indicated that he had been willing to
                                                                      do so but had been advised by counsel that it would be
  Defense counsel called only one other witness in                    unwise. Petitioner’s brother, James C. Johnson, Jr., continued
mitigation, Robert G. Lee, a minister who had counseled               with this theme, stating that trial counsel did not ask him
Johnson and his family while he was in jail. The minister             about his brother’s background other than an earlier arrest in
testified that Johnson had told him that “his faith in God was        Ohio. Had he testified, James Johnson would have asserted
what was sustaining him through this ordeal. He also                  that he had spent a significant amount of time with petitioner
expressed to me that he knew that ultimately one day he               and his family and that “there was never an altercation of any
would have to give an accounting of his life to God.”                 kind that I remember other than fun and laughter.” Like his
                                                                      father, James Johnson stated that he was available to testify
  As mentioned, the jury returned a sentence of death. After          on behalf of his brother, but trial counsel “said it would be
exhausting his direct appeals, petitioner initiated a post-           advisable not to.”
conviction action in the Criminal Court of Shelby County,
Tennessee, alleging for the first time that he received                 Petitioner’s sister, Shirley Ward, testified that trial counsel
ineffective assistance during the sentencing phase of his trial       never contacted her. She stated that petitioner was a good
because his attorneys failed adequately to investigate or             family man who did not have any problems at home. On
otherwise develop mitigating evidence. The court held an              cross examination, she admitted that she knew nothing of
evidentiary hearing, which included the testimony of                  petitioner’s alleged or admitted extramarital relationships.
petitioner, certain of his family members, trial counsel, and
experts on the topic of proper practices in preparing for                Mary Ward, petitioner’s other sister, testified that she told
sentencing proceedings in a capital case.                             trial counsel that she was available to testify at trial but was
                                                                      never contacted by counsel. She, too, indicated that she had
  Ruby Johnson, petitioner’s mother, testified that she spoke         been with the deceased “numerous times and they had a very
with attorney Washington once about her son’s case and that           happy marriage.” On cross examination she stated, “All I
“he talked very little about it to me.” She met attorney Crow         know is that Donnie loved Connie, and he would not have
No. 01-5451                             Johnson v. Bell      5    6      Johnson v. Bell                             No. 01-5451

killed her. And they had a happy marriage.” She did not           sentencing was to review the Tennessee code on
know anything about the alleged problems in petitioner’s          death-penalty procedure while the guilt portion of the trial
marriage.                                                         was under way.
  In addition to these five family members, three other              On August 2, 1989, the Tennessee trial court issued an
potential character witnesses testified at the hearing. A         order denying post-conviction relief. The court accepted trial
childhood friend, Barry Gray, stated that he had known            counsel’s testimony that family members “could not or would
petitioner to be a good friend, hard worker, and a caring         not get involved in testifying.” Any testimony from them
family man. James Ingram, petitioner’s jailer pending trial,      “that [petitioner] was a good worker and had a good
mentioned that petitioner had caused no trouble while             marriage” would have opened the door to rebuttal evidence of
incarcerated and had a clean disciplinary record. And, finally,   strains in his marriage, the court concluded. The court
David Force, petitioner’s employer, asserted that petitioner      indicated that family members’ testimony would not have
had been a good employee.                                         been enough to overcome the jury’s apparent rejection of
                                                                  petitioner’s direct testimony and the “devastating” cross
   The post-conviction hearing contained contradictory            examination that followed. Citing Strickland, supra, the court
testimony concerning the extent to which trial counsel            found “nothing in the evidentiary hearing to suggest that there
contacted family members, evaluated their potential               was any failure of counsel to meet the standards of
testimony, and considered asking them to testify during the       competence required in criminal cases or that any action or
sentencing phase of the proceedings. While the family             inaction on their part prejudiced the case of their client.”
members recall some fleeting contact, they uniformly contend
that they were discouraged from testifying. Their position,         Petitioner appealed to the Tennessee Court of Criminal
however, is somewhat at odds with the memory of trial             Appeals, which affirmed the trial court’s judgment. Johnson
counsel. Jeff Crow, lead trial counsel, testified that family     v. State, No. 61, 1991 WL 111130 (Tenn. Crim. App.
members indicated to him that they did not want to take the       June 26, 1991) (No. 61). The court reasoned as follows:
stand. According to him, “As I remember, we talked to the
family. We talked to the minister. We talked to Johnson.                At the post-conviction hearing, members of the
And we decided after doing all that to handle the sentencing          appellant’s family testified they wished to testify at the
hearing in the manner in which it was done.” Petitioner’s             convicting trial but were not called to do so.
co-counsel, Clark Washington, corroborated Crow’s
testimony that family members were reluctant to appear at               These witnesses testified they would have told the jury
trial. “All of them wanted to help Don Johnson,” Washington           the appellant was a hard worker who loved his family.
testified, “but they were concerned or afraid or not wanting to       The major flaw in this was the fact the appellant was
really come in under the spotlight in a courtroom and take a          convicted of murdering his wife.
witness chair.”
                                                                        We conclude this evidence would not have benefitted
  The record suggests that Crow and Washington were                   the appellant, and the failure of the trial lawyer to call
diligent in preparing for the guilt phase of the trial but gave       these witnesses during the penalty phase of the trial gives
scant attention to the sentencing phase until the verdict was         no right to a new trial.
returned. In fact, Crow testified that his main preparation for
No. 01-5451                              Johnson v. Bell      7    8     Johnson v. Bell                               No. 01-5451

1991 WL 111130 at *1-2. (citation omitted). The Supreme            28 U.S.C. § 2254(d). In addition, the findings of fact made
Court of Tennessee declined to review this decision.               by a state court are presumed to be correct and can be
Thereafter, petitioner initiated another, ultimately               contravened only if the habeas petitioner can show by clear
unsuccessful post-conviction challenge that is not relevant to     and convincing evidence that the state court’s factual findings
the sole issue before us.                                          were erroneous. 28 U.S.C. § 2254(e)(1).
  After exhausting his state-court avenues of redress,                In Williams v. Taylor, 529 U.S. 362 (2000), the Court
petitioner filed the instant habeas corpus petition on             interpreted 28 U.S.C. § 2254(d)(1) as requiring a distinction
November 14, 1997, raising twenty grounds for relief. The          between decisions that are “contrary to” and those that
district court denied the petition. Johnson v. Bell, No. 97-       involve an “unreasonable application of” clearly established
3052-DO (W.D. Tenn. Feb. 28, 2001). However, the district          Supreme Court precedent. Id. at 405. A state court decision
court issued a certificate of appealability pursuant to            is “contrary to” Supreme Court precedent “if the state court
28 U.S.C. § 2253(c) on the sole issue of whether petitioner        arrives at a conclusion opposite to that reached by [the
received ineffective assistance of counsel at the sentencing       Supreme] Court on a question of law,” or “if the state court
phase of his trial due to the failure to investigate and present   confronts facts that are materially indistinguishable from a
mitigating evidence.                                               relevant Supreme Court precedent and arrives at a result
                                                                   opposite to ours.” Id. A state court decision is also “contrary
                              II.                                  to” Supreme Court precedent if the state court “applies a rule
                                                                   that contradicts the governing law set forth” in that precedent.
  We review de novo the legal conclusions of a district court      Id.
in a habeas proceeding. Mitzel v. Tate, 267 F.3d 524, 530
(6th Cir. 2001). Because Johnson filed his habeas petition on         A state court decision involves an “unreasonable
November 14, 1997, after the Antiterrorism and Effective           application” of clearly established Supreme Court precedent
Death Penalty Act of 1996 (“AEDPA”) became effective, this         “if the state court identifies the correct governing legal rule
court’s review of state court conclusions is governed by           from [the Supreme] Court’s cases but unreasonably applies it
AEDPA. Id. Under AEDPA’s provisions, we may not grant              to the facts of the particular state prisoner’s case.” Id. at 407.
a writ of habeas corpus for any claim that was adjudicated on
the merits in state court unless the adjudication:                                               III.
  (1) resulted in a decision that was contrary to, or                 With these precepts in mind, we turn to the legal issue
  involved an unreasonable application of, clearly                 before us. At this point, the two-part test used to determine
  established Federal law, as determined by the Supreme            whether a criminal defendant was denied effective assistance
  Court of the United States; or                                   of counsel is extremely familiar, even if the precise manner of
                                                                   its application continues to occupy the Court. Compare
  (2) resulted in a decision that was based on an                  Wiggins v. Smith, 123 S. Ct. 2527 (2003), and Williams v.
  unreasonable determination of the facts in light of the          Taylor, supra, with Bell v. Cone, 535 U.S. 685 (2002). As
  evidence presented in a state court proceeding.                  the Court put it nearly twenty years ago:
No. 01-5451                                Johnson v. Bell         9   10   Johnson v. Bell                              No. 01-5451

  First, the defendant must show that counsel’s                        not even ask the jury to spare his client’s life. Cone, 243 F.3d
  performance was deficient. This requires showing that                at 978. The Supreme Court reversed and, in doing so,
  counsel made errors so serious that counsel was not                  reminded us that “a court must indulge a ‘strong presumption’
  functioning as the “counsel” guaranteed by the Sixth                 that counsel’s conduct falls within the wide range of
  Amendment. Second, the defendant must show that the                  reasonable professional assistance because it is all too easy to
  deficient performance prejudiced the defense. This                   conclude that a particular act or omission of counsel was
  requires showing that counsel’s errors were so serious as            unreasonable in the harsh light of hindsight.” Cone, 122 S.
  to deprive the defendant of a fair trial, a trial whose result       Ct. at 1854 (citing Strickland); see also Mason, 320 F.3d at
  is reliable. Unless a defendant makes both showings, it              643 (Boggs, J. dissenting) (characterizing Cone as making
  cannot be said that the conviction or death sentence                 “abundantly clear the extremely high standard that must be
  resulted from a breakdown in the adversary process that              met for counsel’s representation in the penalty phase to be
  renders the result unreliable.                                       considered constitutionally inadequate”); but see Wiggins v.
                                                                       Smith, 123 S. Ct. at 2536-37 (scope of investigation into
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also           client’s “misery as a youth” fell short of the professional
Mason v. Mitchell, 320 F.3d 604, 616 (6th Cir. 2003); Greer            standards then prevailing because counsel knew of
v. Mitchell, 264 F.3d 663, 673-74 (6th Cir. 2001).                     “unfortunate childhood” and there was nothing to suggest that
                                                                       further investigation would have been either
   In assessing counsel’s performance, we inquire whether              counterproductive or fruitless); Williams v. Taylor, 529 U.S.
“counsel’s representation fell below an objective standard of          at 398-99 (holding that failure to investigate petitioner’s
reasonableness,” as measured by prevailing professional                background, which was horrific, resulted in ineffective
norms. Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997)            assistance as defined by Strickland).
(quoting Strickland, 466 U.S. at 688). This objective
reasonableness standard encompasses strategic litigation                 We note that the present case contains elements similar to
choices that simply fail to bear fruit. See Strickland, 466 U.S.       those of previous cases in which this court has been
at 689. To establish prejudice, moreover, a defendant must             sufficiently troubled by allegations of ineffective assistance
demonstrate a reasonable probability that “but for counsel’s           that we either granted the writ or remanded for an evidentiary
unprofessional errors, the result of the proceeding would have         hearing. Among other factors, this court has found it telling
been different.” Id. at 694.                                           that “trial counsel did not begin preparing for the mitigation
                                                                       phase of the trial until after conviction.” Greer, 264 F.3d at
  In evaluating petitioner’s claim, we are mindful of the              676-77; see also Williams, 529 U.S. at 395 (finding it
Supreme Court’s opinion in Bell v. Cone, supra, which                  significant that counsel began preparation for mitigation only
reversed a grant of the writ by this court. See Cone v. Bell,          a week before trial). Despite Greer and other Sixth Circuit
243 F.3d 961 (6th Cir. 2001). In Cone, we observed that                cases that have reached a similar result, see, e.g., Mason, 320
counsel’s presentation during the sentencing phase was a               F.3d at 624-26 (remanding for evidentiary hearing concerning
complete abdication of the attorney’s role. During the guilt           failure to develop mitigating evidence of petitioner’s troubled
phase, counsel had presented evidence of his client’s social           childhood); Coleman v. Mitchell, 268 F.3d 417, 450-52 (6th
history and mental state in an attempt to raise a defense of           Cir. 2001) (ineffective assistance during mitigation for failure
insanity. In the sentencing phase, however, counsel presented          to investigate or present evidence of troubled background);
no mitigating evidence at all, made no final argument, and did         Skaggs v. Parker, 235 F.3d 261, 269-70 (6th Cir. 2001);
No. 01-5451                             Johnson v. Bell     11    12    Johnson v. Bell                               No. 01-5451

Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997); Glenn v.       this testimony would likely have led to a different result
Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995), we are hard-         because it is entirely possible, as the Tennessee Court of
pressed to reconcile Cone with a conclusion that counsel          Criminal Appeals pointed out, that the jury could have
rendered constitutionally ineffective assistance by not           concluded that petitioner was even more culpable because he
vigorously interviewing family members and pressing them          had enjoyed a loving family but had brutally murdered a wife
to testify during the sentencing phase of the trial. While        who loved him. Also, as the district court noted, testimony
counsel in Wiggins had sufficient information about their         from family members would have opened the door to rebuttal
client’s horrific childhood to render their failure to pursue     evidence about petitioner’s extramarital affairs, undercutting
further investigation professionally unreasonable, there is       the positive image presented by his family.
nothing to suggest that counsel in the instant case ignored
known leads that might have helped them to prepare their            The mitigating evidence proffered by petitioner falls short
case in mitigation. As the Court has reminded us, “Strickland     of the quantum required by Wiggins, Cone, and Williams. In
does not require counsel to investigate every conceivable line    Williams, for example, the Court found it unreasonable for the
of mitigating evidence no matter how unlikely the effort          Virginia Supreme Court to conclude that petitioner had not
would be to assist the defendant at sentencing.” Wiggins, 123     been prejudiced by counsel’s failure to investigate and present
S.Ct. at 2541.                                                    readily available evidence “graphically describing Williams’
                                                                  nightmarish childhood.” 529 U.S. at 395, 397-98. Likewise
   Even if we assume, however, that trial counsel performed       in Wiggins, the Court concluded, “Had the jury been able to
ineffectively during the mitigation phase of the trial, we find   place petitioner’s excruciating life history on the mitigating
that the deficiency did not prejudice petitioner’s case. As       side of the scale, there is a reasonable probability that at least
already explained, to show prejudice a defendant must             one juror would have struck a different balance.” 123 S. Ct.
demonstrate that “counsel’s errors were so serious as to          at 2543. This court’s cases do not particularly strengthen
deprive the defendant of a fair trial, a trial whose result is    petitioner’s position either. See, e.g., Coleman, 268 F.3d at
reliable.” Strickland, 466 U.S. at 687. Also, “[t]he defendant    451-53 (finding prejudice where counsel failed to present
must show that there is a reasonable probability that, but for    evidence of petitioner’s horrific childhood, his numerous
counsel’s unprofessional errors, the result of the proceeding     mental and emotional disorders, and his low IQ); Carter v.
would have been different. A reasonable probability is a          Bell, 218 F.3d 581, 600 (6th Cir. 2000) (finding prejudice
probability sufficient to undermine confidence in the             where counsel failed to present evidence “of a childhood in
outcome.” Id. at 694. Our inquiry is limited to asking            which abuse, neglect and hunger were normal”); Skaggs, 235
whether the testimony of the eight potential character            F.3d at 271-72 (finding prejudice for failure to present
witnesses described above, which include five family              evidence of defendant’s mild mental retardation and
members, would have created a reasonable probability that,        diminished capacity, “the one topic which may have
had the jury heard from them, its verdict would have been         convinced the jury that a death sentence was not justified”).
different.                                                        Given the precedents that inform our decision, we conclude
                                                                  that, even if we assume that trial counsel were professionally
  Undoubtedly, testimony from these family members would          deficient under the Sixth Amendment for failing to present
have helped to humanize petitioner by showing the jury that       mitigating testimony in the form of character witnesses,
they loved and valued him, that he had been a good son,           petitioner has not shown that, “but for counsel’s
brother, and parent. On the other hand, we cannot say that
No. 01-5451                             Johnson v. Bell    13    14   Johnson v. Bell                              No. 01-5451

unprofessional errors, the result of the proceeding would have                        _______________
been different.” Strickland, 466 U.S. at 694.
                                                                                         DISSENT
                             IV.                                                      _______________
  The judgment of the district court is AFFIRMED.                   CLAY, Circuit Judge, dissenting. In holding that
                                                                 Petitioner’s counsel’s performance did not fall below an
                                                                 objective standard of reasonableness as measured by
                                                                 prevailing professional norms, the majority engages in
                                                                 speculation and conjecture about what evidence defense
                                                                 counsel’s investigation would have turned up and the nature
                                                                 of various witnesses’ testimony had defense counsel
                                                                 performed in accordance with acceptable professional
                                                                 standards in death penalty litigation. In so doing, the majority
                                                                 resolves all doubts against Petitioner and holds that none of
                                                                 the evidence Petitioner’s counsel might have garnered would
                                                                 have sufficiently impacted the jury’s decision-making to alter
                                                                 the outcome of the penalty phase trial. Contrary to the
                                                                 majority, I believe that the record is too conflicted as to
                                                                 whether potential witnesses would have been willing to
                                                                 testify, and the nature of the testimony is too sparse to permit
                                                                 the formation of a reliable opinion as to whether counsel’s
                                                                 investigation into Petitioner’s family, social, or psychological
                                                                 history was adequate under an objective standard. Thus, I
                                                                 would remand for an evidentiary hearing so that the record
                                                                 could be developed as to counsel’s investigation in this
                                                                 regard, thereby allowing for an informed decision as to
                                                                 whether Petitioner was prejudiced and ultimately denied his
                                                                 Sixth Amendment right to effective assistance of counsel.
                                                                   Petitioner claims that his trial counsel provided ineffective
                                                                 assistance during the penalty phase of the trial by failing,
                                                                 among other things, to investigate into Petitioner’s family,
                                                                 social, or psychological background for mitigating evidence;
                                                                 failing to present Petitioner’s family members, friends, and
                                                                 employer as mitigating witnesses; and failing to prepare
                                                                 Petitioner to testify to mitigating evidence. Petitioner’s case
                                                                 thus primarily turns on whether counsel’s investigation of his
                                                                 family, social, and psychological history was adequate to
No. 01-5451                              Johnson v. Bell     15    16    Johnson v. Bell                                No. 01-5451

justify their strategy of presenting a single witness other than   petition, Petitioner testified that prior to trial he provided trial
Petitioner on Petitioner’s behalf at mitigation. As in the         counsel with the names of a number of witnesses who could
Supreme Court’s recent decision in Wiggins v. Smith, ___           testify on his behalf, including family members, his friend
U.S. ___, 123 S. Ct. 2527, 2538-539 (2003), if counsel’s           Barry Gray, and others who could rebut evidence that
investigation was itself inadequate, counsel’s strategic choice    Petitioner’s marriage was rocky. A number of Petitioner’s
of only presenting two witnesses on Petitioner’s behalf at         family members and acquaintances testified at the post-
mitigation must also be considered objectively unreasonable        conviction hearing. Some of them indicated that they would
under Strickland v. Washington, 466 U.S. 668, 687 (1984).          have offered testimony sympathetic to Petitioner but were not
See Wiggins, 123 S. Ct. at 2538-539 (recognizing that              called to testify or were never contacted by defense counsel.
“‘strategic choices made after less than complete investigation    The contention of Petitioner’s counsel that a number of the
are reasonable precisely to the extent that reasonable             potential witnesses were not inclined to testify is disputed by
professional judgments support the limitations on                  several of them.
investigation’”) (quoting Strickland, 466 U.S. at 690-91).
                                                                     Specifically, Petitioner’s mother, Ruby Johnson, testified
  The majority attempts to distinguish Wiggins by concluding       that trial counsel did not ask her about Petitioner’s
that there is there is nothing on the record that should have      background; however, she also testified that if asked, she
caused counsel to delve deeper into Petitioner’s family,           would have told counsel and the jury that she did not know of
social, or psychological history. However, the majority            any problems in Petitioner’s marriage, and that he was a hard
reaches this conclusion based on the limited nature of the         worker who cared for his family and raised well-mannered
testimony and evidence derived from Petitioner’s post-             children. Likewise, Petitioner’s father, James Johnson,
conviction hearing which, as indicated, is too sparse and          testified at the post-conviction hearing that, if called, he
conflicted to make such a determination at this point of the       would have testified that Petitioner was devoted to his family
proceedings. That is not to say that upon further review by        and that he was a good son, a hard worker, and a good family
way of an evidentiary hearing the result reached by the            man. Petitioner’s father also testified that trial counsel asked
majority would necessarily be different. But in a case where       him “very little” about Petitioner’s background and schooling,
a petitioner’s life rests upon the nature of the evidence          and that when he offered to testify at the mitigation hearing,
presented, it is imperative that the petitioner be allowed to      counsel stated that it would be better not to offer any
present all of the evidence necessary for the court to make an     testimony by family members. (J.A. at 188.)
informed decision. This is particularly so in a case such as
this where, aside from Petitioner, the sole witness called on        Petitioner’s brother, James Johnson, Jr., similarly testified
Petitioner’s behalf was a minister whose testimony that            that trial counsel did not ask about Petitioner’s background,
Petitioner had expressed that “he knew that ultimately one         “[n]othing other than his arrest in Ohio, things of that
day he would have to give an accounting of his life to God[,]”     nature[,]” despite the fact that Johnson had spent a significant
may have actually worked against him.                              amount of time with Petitioner and his family, and that he was
                                                                   willing to testify that he never knew of any problems in
  Moreover, even upon this sparse record, there is evidence        Petitioner’s marriage. (J.A. at 188.) Johnson also testified
to indicate that counsel should have delved deeper into            that he advised defense counsel that he was available to
Petitioner’s past family, social, and psychological history.       testify on behalf of Petitioner at the mitigation trial, but that
For example, at the hearing on the first post-conviction           counsel said “it would be advisable not to.” (Id.)
No. 01-5451                               Johnson v. Bell     17    18   Johnson v. Bell                             No. 01-5451

   Petitioner’s sister, Shirley Ward, testified that she was          may be helpful in mitigation, and at the same time,
never contacted by trial counsel; however, if called upon she         gathering names of other individuals who may be helpful
would have testified that Petitioner was a good family man            in testifying on behalf of the defendant.
who did not have any problems at home, and that the
relationship between her brother and his wife seemed                (J.A. at 191-92.)
harmonious and happy the weekend before the murder.
Petitioner’s other sister, Mary Ward, testified that she told         Thus, even in light of the record before us, there is clear
trial counsel she was available to testify at trial and that, if    indication that defense counsel should have investigated
called, she would have testified that Petitioner loved his wife     further into Petitioner’s family, social, and psychological
and would not have killed her.                                      history before making the strategic choice to present only one
                                                                    other witness aside from Petitioner at the mitigation hearing.
   Barry Gray, who had been a friend of Petitioner since            The statements made by Petitioner’s family, close friends, and
childhood, testified at the hearing that he would have              employer provided a basis upon which counsel should have
informed the jury that Petitioner was a good friend and a hard      known that further inquiry into Petitioner’s past was needed
worker who seemed to care and provide for his family.               for the purpose of allowing these witnesses to convince as
Officer James Ingram, a deputy jailer with the Shelby County        few as one juror that Petitioner was someone undeserving of
Sheriff’s Department, testified at the hearing that when            the death penalty. Further factual development by way of an
Petitioner was incarcerated, “[h]e never had a disciplinary         evidentiary hearing may serve to support this conclusion
write-up or anything to my knowledge[,]” and that he would          thereby establishing that counsel failed to conduct an
have been willing to testify to this effect at Petitioner’s         adequate investigation; this is particularly so where, in
mitigation trial but did not receive a subpoena. (J.A. at 189-      addition to the above testimony, the record indicates that
90.) David Force, an owner of Force Camping where                   counsel failed to obtain any medical, school, or social service
Petitioner worked, also testified at the hearing and stated that,   records concerning Petitioner.
if asked, he would have said that Petitioner was a good
employee.                                                             Indeed, Respondent does not contest that trial counsel’s
                                                                    performance during the penalty phase of the trial fell below
  Petitioner also presented expert testimony at the post-           an objective standard of reasonableness. Rather, Respondent
conviction hearing as to the manner in which background             only contests the second prong of Strickland–whether trial
investigations should be performed in capital cases in              counsel’s failure to investigate and present mitigating
Tennessee. That is, Jeff Blum, administrator of the Capital         evidence prejudiced Petitioner. See Strickland, 466 U.S. at
Case Resource Center, testified about the necessity of              687. Respondent argues that no prejudice occurred to
speaking extensively with persons who had contact with              Petitioner because the evidence merely consisted of family
Petitioner or his family members. Blum stated that:                 members’ statements that Petitioner was a good family man
                                                                    who had a happy marriage, and a good friend and employee.
  We do a fairly extensive search of all the various points
  of contact an individual would have had sometime in                 The fallacy in Respondent’s argument, however, is that it
  their past life. And through that process, gathering as           assumes that the only mitigating evidence trial counsel could
  much written material, papers, files, records that we can         have presented was the testimony of Petitioner’s family
  in that process toward discovering information we feel            members, friends, and employer, and it assumes that the
No. 01-5451                              Johnson v. Bell     19    20   Johnson v. Bell                             No. 01-5451

nature of these witnesses’ testimony was adequately                fails to establish whether the scope of counsel’s investigation
developed.       A proper investigation into Petitioner’s          was adequate under Strickland, it cannot be said at this
background and the nature of the witnesses’ testimony may          juncture whether Petitioner was prejudiced by counsel’s
have revealed other mitigating evidence to persuade the jury       performance. Compare Wiggins, 123 S. Ct. 2358-539. Thus,
to sentence Petitioner to life in prison as opposed to death.      I would remand for an evidentiary hearing. Only by so doing
Because there is no evidence on the record of what an              could we determine whether Petitioner received
investigation of Petitioner’s background would have revealed,      constitutionally adequate representation before requiring
this Court cannot conclude that Petitioner was not prejudiced      Petitioner to pay the ultimate penalty. See Mason, 320 F.3d
by trial counsel’s failure to investigate and present mitigating   at 620-21 (remanding the death penalty petitioner’s
evidence. Thus, this case should be remanded with                  ineffective assistance of counsel claim for an evidentiary
instructions that the district court conduct an evidentiary        hearing where the record was inadequate to allow for
hearing on Petitioner’s claim for further factfinding as to the    meaningful appellate review as to whether counsel
scope of counsel’s investigation and the nature of what            performed an adequate investigation and preparation as to
evidence, if any, further investigation would have revealed.       mitigating evidence); see also Griffin v. United States, 330
See Mason v. Mitchell, 320 F.3d 604, 620-21 (6th Cir. 2003)        F.3d 733, 739 (6th Cir. 2003) (remanding the petitioner’s
(“Because the record as it now stands reflects disputes about      § 2255 motion to the district court for an evidentiary hearing
defense counsel’s performance with respect to the sentencing       where the petitioner “presented a potentially meritorious
phase of [the petitioner’s trial], we remand the case to the       claim for ineffective assistance of counsel” while noting that
district court for an evidentiary hearing on this issue.”).        the petitioner “deserve[d] the right to develop a record” in
                                                                   order to demonstrate prejudice). I therefore respectfully
  Similarly, the majority’s contention that the error, if any,     dissent.
was harmless because testimony as to Petitioner’s character
as a loving husband or family man would have opened the
door to potentially unfavorable testimony, is also based on
speculation. That is to say, on the record before us, it is
impossible to conclude that any unfavorable testimony that
may have come into evidence by way of favorable character
evidence would have unanimously persuaded a jury that the
unfavorable testimony outweighed the favorable testimony.
See id.
  The record before the Court, although needing further
factual development, provides clear indication that
Petitioner’s trial counsel failed in their responsibility to
investigate and present mitigating evidence at Petitioner’s
penalty phase trial. Contrary to the majority’s conclusion, it
cannot be determined, based upon the present record, whether
proper representation of Petitioner at the penalty phase trial
would have resulted in a different outcome. Since the record
