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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 10, 2010

                                       No. 08-70048                         Lyle W. Cayce
                                                                                 Clerk

GARY CARL SIMMONS, JR.,

                                                   Petitioner–Appellant
v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,

                                                   Respondent–Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:04-CV-00496


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
        Gary Simmons was charged in Mississippi state court with the murder of
Jeffrey Wolfe.      The jury found Simmons guilty, and the state court judge
sentenced him to death. Simmons petitioned unsuccessfully for post-conviction
relief in state court. He filed a habeas petition in federal district court. Then,
he requested the issuance of a certificate of appealability (“COA”) on three
grounds: (1) whether the trial court erroneously allowed the prosecution to


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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submit to the jury an aggravating circumstance without sufficient evidentiary
support in violation of the Sixth, Eighth, and Fourteenth Amendments; (2)
whether Simmons was denied effective assistance of counsel during the penalty
phase of his trial, in violation of the Sixth and Fourteenth Amendments; and (3)
whether the trial court erred during the sentencing phase of his trial by
excluding relevant mitigating evidence in violation of the Sixth, Eighth, and
Fourteenth Amendments. The district court granted a COA on the first ground,
but not on the second or third ground. Simmons has now filed a motion to
expand the COA to include the second and third grounds.
      We deny Simmons’s motion as to his second ground. We grant Simmons’s
motion as to his third ground.
                                   I. FACTS
      The details of the murder giving rise to this case are memorialized in
opinions by the Supreme Court of Mississippi, Simmons v. State, 805 So. 2d 452
(2001) (Simmons I) and Simmons v. State, 869 So. 2d 995 (2004) (Simmons II),
and the federal district court, Simmons v. Epps, No. 1:04-CV-00496, 2008 U.S.
Dist. LEXIS 75398 (S.D. Miss. Sept. 26, 2008). Here, we briefly describe the
facts only as they apply directly to this opinion.
      Shortly after Wolfe’s murder but before Simmons’s arrest, Simmons
recorded a videotape in which he told his ex-wife Lori how to dispose of his
property. He also made comments which strongly implied that he committed a
crime and felt remorse:
      I guess it’s a real mess, isn’t it? It wasn’t supposed to go like
      that. . . . Things got pressing in. I was in a bind three or four
      different ways. To my way of thinking, I didn’t have much of a
      choice. I mean, I’d already taken his money. There’s no excuses.
      ....
      It’s hard sitting here doing this, knowing under what conditions
      you’ll probably be watching it. I’m so dreadfully sorry.
      ....


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      I didn’t think about it until after it was done. And then it couldn’t
      be undone. There was nothing in the world I could do to make it
      undone. And I would have. Oh, God, I would have. You never
      realize how close you are to the edge until you actually step over it.
      ....
      I don’t know how it happened, I really don’t. And after it had
      happened, I would have gave anything to take it back, even my life.
Simmons sent the videotape to Lori, who turned it over to Simmons’s attorneys.
      The day after the murder, Simmons’s friend Dennis Guess came home to
find Simmons asleep on his couch. Simmons apparently told Guess about the
murder, and Simmons and Guess discussed Simmons’s options, which included
running, turning himself in, and committing suicide. They decided that he
should turn himself in. Simmons called the police, and a deputy came and
picked him up.
                        II. PROCEDURAL HISTORY
      Simmons’s friend Timothy Milano was tried separately for Wolfe’s murder.
In both Simmons’s and Milano’s trials, prosecutors argued that they worked
together to kill Wolfe. Milano was found guilty and sentenced to life in prison.
      During Simmons’s trial, Guess testified that Simmons expressed remorse
for the crime and that Simmons said he had hurt enough people and did not
want to hurt anyone else. Simmons tried to introduce the videotape to show that
he felt remorse for the murder, but the state court excluded it as self-serving
hearsay. Simmons did not testify. In closing, the State said, “And at that point
and [sic] time the only remorse that [Simmons] displayed, the only remorse that
Mr. Guess testified to, was the fact that he, Mr. Simmons, had made a terrible
mistake and the girl had gotten away.” The State also argued that Simmons
became “divorced” from his conscience at the time he and Lori divorced, and that
“we are talking about the circumstances of this crime, him, this person who now
has no conscience.”



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         The jury convicted Simmons of rape, kidnapping, and capital murder with
the underlying felony of robbery. At sentencing, Simmons did not testify.
Simmons tried again to introduce the videotape, and again the court excluded
it.
         Also at sentencing, Simmons presented six witnesses to testify on his
behalf: Jewell Simmons, his grandmother; Milton DuPuis, his half-brother;
Dana Vanzante, a family friend; Lynette Holmes, his ex-wife’s friend; Belinda
Simmons West, his half-sister; and Lori.          These witnesses testified that
Simmons was a hard-working family man who held down two or three jobs,
always paid the bills, and attended church regularly. They noted that Simmons
doted on his and Lori’s two daughters, provided them with a stable home
environment, made sure they had plenty of food and toys, loved playing with
them and brushing their hair, and enjoyed barbecues and other social events.
The witnesses uniformly expressed shock that Simmons would commit a brutal
murder, and implored the court to spare Simmons’s life.
         The witnesses who knew Simmons as a child explained that he had a
difficult upbringing. Jewell Simmons testified that two of Simmons’s uncles had
been murdered, although she did not discuss the impact these deaths had on
Simmons or whether Simmons was close with his uncles. DuPuis stated that his
father (Simmons’s step-father) beat the children regularly, and that as the
oldest, Simmons endured the brunt of his rage. DuPuis recalled that his father
once shot at Simmons when Simmons tried to defend Simmons and DuPuis’s
mother. DuPuis also credited Simmons with helping him to find God, although
DuPuis noted that Simmons had become less religious since his divorce from
Lori. Lori said that she still loved Simmons, but she acknowledged that she
divorced Simmons after her daughter from a previous relationship accused him
of misconduct and a court ruled that Simmons and the girl could not live under
the same roof.

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      The judge sentenced Simmons to death. Simmons filed a motion for post-
conviction relief with the Supreme Court of Mississippi, based on numerous
claims including the three he brought in federal court. To support his claim for
ineffective assistance, Simmons presented two affidavits signed by Tomika
Harris, an investigator with the State of Mississippi who interviewed witnesses
in Simmons’s case after his conviction. In one affidavit, Harris stated that she
interviewed Jewell and Belinda in Jewell’s home. During the interview, Harris
noticed numerous pictures of Simmons on the wall, and she concluded (either
because Jewell told her or through her own deduction) that each picture meant
a lot to Jewell and that Jewell left them up so people would know she was
thinking of Simmons. Harris’s affidavit also reported that Jewell and Belinda
described Simmons as a family-oriented man who loved his daughters, and
stated that they loved Simmons, that the verdict upset them, that Milano was
the shooter, and that the verdict was at least partially due to lies that Milano
told the police.
      Gary Carl Simmons, Sr. (“Butch”), Simmons’s father, lived with Jewell.
Although Butch was present at the time of the interview and seemed disturbed
by the situation, he would not talk with Harris. Because she lived with Butch,
Jewell did not want to sign an affidavit.
      Harris gleaned that Mildred, Simmons’s mother, did not attend the trial
because she was embarrassed and worried what people would think of her.
Harris learned that Mildred and Butch divorced when Simmons was a child, and
Mildred moved to Florida with Simmons. Jewell and Belinda told Harris that
Mildred had a gambling problem and would often play bingo and gamble away
the money she was supposed to use to buy food and pay the bills, would leave the
children at home when she went to the bingo parlor, and once asked Jewell for
help paying her light bill after losing money at bingo. Harris also learned that



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Mildred remarried when Simmons was three and that Simmons’s step-father
was very mean to him.
      In the second affidavit, Harris stated that she called Lori to set up an in-
person interview. Lori refused, explaining that she was bitter because Simmons
left her to raise the children on her own. After their brief conversation, Harris
concluded that Lori had information which was valuable to Simmons’s defense,
and which only Lori could supply. Harris did not explain what led her to this
conclusion.
      The Supreme Court of Mississippi rejected all of Simmons’s claims. As for
his ineffective assistance claim, the court observed that most of the information
in Harris’s affidavits was presented at trial. Simmons II, 869 So. 2d at 1003.
Viewing the affidavits as a whole, the court concluded that “Simmons has not
submitted sufficient evidence of a [constitutionally deficient] breach of the duty
of counsel to investigate and present mitigation evidence.” Id.
      The court also rejected Simmons’s claim that the state trial court violated
his due process rights when it excluded the videotape during the sentencing
phase. The court explained, “A declaration made by a defendant in his own favor
. . . is not admissible for the defense . . . because there is nothing to guarantee
its trustworthiness.” Simmons I, 805 So. 2d at 489 (quotation and emphasis
omitted). The court reasoned that if such evidence were admissible, “the door
would be thrown open to obvious abuse: an accused could create evidence for
himself by making statements in his favor for subsequent use at his trial to show
his innocence.” Id. (quotation and emphasis omitted).
      Three justices dissented. While agreeing that the trial court correctly
excluded the videotape during the guilt phase, the dissenting justices believed
that the trial court erred by excluding the videotape during the sentencing
phase. Id. at 509 (Diaz, J., concurring in part and dissenting in part). The
dissenting justices stated that “[a]fter reviewing the tape, some of [Simmons’s]

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statements can be interpreted as remorseful and thus mitigating in the eyes of
the jury. Certainly, they appear to rebut the prosecution’s claim that [Simmons]
showed no remorse whatsoever.” Id. at 510. The dissenting justices concluded
that they “would find that it was reversible error for the trial court to exclude
this videotape as mitigating evidence during the sentencing phase of the trial
and would, therefore, vacate Simmons’ death sentence and remand the matter
to the trial court for a new sentencing hearing.” Id.
      Simmons filed a habeas petition in district court.         To support his
ineffective assistance claim, Simmons included several exhibits that he had not
presented to the state court. These exhibits included: (1) an affidavit from
Simmons’s trial counsel Michael Cunningham, who stated that he would testify
to the following: that neither he nor his co-counsel moved the state court for
funds to employ an investigator; that they did not seek any mitigation specialist,
psychologist, or other mental health professional to analyze Simmons and
investigate possible mitigation theories; that they did not review any of
Simmons’s school, military, medical/psychological, or pretrial incarceration
records in any effort to investigate personal history details that might support
a mitigation case; that they did not investigate any violent crimes committed
against Simmons’s family members, such as the murders of Simmons’s two
uncles; and that they did not investigate the details of Simmons’s personal
childhood violence, such as the violence Simmons suffered at the hands of his
step-father; (2) an affidavit from Andre de Guy, a death penalty expert who
outlined all of the areas an attorney “must” research when representing a
defendant in a capital case; (3) an itemized statement of the hours worked by
Simmons’s attorneys; (4) a newspaper article in which Simmons’s pastor stated
that Simmons desperately needed help before the murder, that Simmons had
reached out to the pastor, that the pastor felt badly that he had not been more
sensitive to Simmons’s needs, and that the pastor had never detected any

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animosity between Simmons and African American members of the congregation
despite an allegation that Simmons often tried to persuade teenagers to attack
and kill African Americans; (5) an excerpt from a textbook on capital
punishment, which emphasized that capital defense attorneys must research
mitigation subjects exhaustively; and (6) an affidavit from Gary Mooers, a
mitigation expert who opined that two of the areas which counsel failed to
investigate sufficiently—violent crimes against close relatives and personal
childhood violence—might lead to significant mitigation evidence if properly
investigated.
      The district court found that Simmons’s failure to present this new
evidence of ineffective assistance to the Mississippi Supreme Court likely barred
its introduction. In the alternative, the district court found that Simmons failed
to demonstrate either deficient representation or prejudice, thus failing both
prongs of the test for ineffective assistance of counsel described in Strickland v.
Washington, 466 U.S. 668 (1984).        Accordingly, the district court denied
Simmons’s request for a COA on his second ground.
      Regarding Simmons’s first ground that the trial court erroneously allowed
the prosecution to submit to the jury an aggravating circumstance without
sufficient evidentiary support, the district court granted a COA because it found
that reasonable jurists could debate the issue. Regarding Simmons’s third
ground that the trial court erred by excluding relevant mitigating evidence, the
district court denied Simmons’s COA request because it found that reasonable
jurists could not debate the issue.
      Simmons filed his motion to expand the COA.
                        III. STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
petitioner can appeal a district court’s dismissal of a habeas petition only if the
district or appellate court issues a COA. 28 U.S.C. § 2253(c); see also Miller-El

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v. Cockrell, 537 U.S. 322, 335–36 (2003). Because the district court denied
Simmons’s request for a COA as to two of his claims, Simmons must seek a COA
from this Court to obtain further review of those two claims. See 28 U.S.C.
§ 2253(c); see also Coleman v. Quarterman, 456 F.3d 537, 541 (5th Cir. 2006).
      We will issue a COA if Simmons can make “a substantial showing of the
denial of a constitutional right” by demonstrating that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). At this stage, our inquiry
“is a threshold inquiry only, and does not require full consideration of the factual
and legal bases of [Simmons’s] claim.” Neville v. Dretke, 423 F.3d 474, 482 (5th
Cir. 2005). Because Simmons was sentenced to death, “we must resolve any
doubts as to whether a COA should issue in his favor.” Martinez v. Dretke, 404
F.3d 878, 884 (5th Cir. 2005).
      In determining whether reasonable jurists would debate the district
court’s assessment of Simmons’s claims, we keep in mind that the district court’s
decision must be made pursuant to AEDPA’s deferential standards. Tennard
v. Dretke, 542 U.S. 274, 282 (2004); Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.
2005). AEDPA permits a federal district court to grant relief only on two bases.
First, the petitioner is entitled to relief if the state court decision 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);
Leal, 428 F.3d at 548.
      A decision is contrary to federal law if it is “opposite to that reached by
[the Supreme] Court on a question of law” or if it resolves a case differently from
the way the Supreme Court has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 412–13 (2000).           A decision unreasonably
applies federal law when it “identifies the correct governing legal rule from
[Supreme Court] cases but unreasonably applies it to the facts of the particular

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state prisoner’s case.” Id. at 407. A state court decision also unreasonably
applies federal law 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.
        Second, the petitioner is entitled to relief when the state court decision
was “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d); Leal, 428 F.3d at
548.     “The state court’s findings of fact are entitled to a presumption of
correctness and the petitioner may overcome that presumption only by clear and
convincing evidence.” Leal, 428 F.3d at 548 (citing 28 U.S.C. § 2254(e)(1)).
                                 IV. ANALYSIS
A.      Whether Simmons’s Counsel was Constitutionally Ineffective
        under Strickland
        In Strickland, the Supreme Court set forth a two-prong test for evaluating
claims of ineffective assistance of counsel. Under this test, a defendant must
show (1) that his counsel’s performance was deficient, and (2) that this deficient
performance prejudiced the defendant. 466 U.S. at 687. Here, reasonable jurists
could not debate whether the Supreme Court of Mississippi reasonably applied
the Strickland test when it determined that the state trial court did not violate
Simmons’s constitutional right to effective assistance of counsel. Accordingly,
we find that the district court correctly denied Simmons’s request for a COA on
his ineffective assistance claim.
        1.    Exhaustion
        The State argues that Simmons failed to exhaust his claim for ineffective
assistance of counsel because his new evidence renders this claim “substantially
different” than his state-court claim. We do not agree. Section 2254(b)(1)
requires federal habeas petitioners to exhaust state court remedies before


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proceeding in federal court. To satisfy this exhaustion requirement, “a habeas
petitioner must have fairly presented the substance of his claim to the state
courts.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997). The exhaustion
requirement is not satisfied if a petitioner “presents material additional
evidentiary support to the federal court that was not presented to the state
court.” Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (emphasis added).
For evidence to be material, it must “‘place[] the claims in a significantly
different legal posture.’” Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003)
(quoting Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997)). Dismissal is not
required if the evidence places the petitioner’s claims in a “comparatively
stronger evidentiary posture,” id. at 388, “but does not fundamentally alter[] the
claim presented to the state courts.” Id. (quoting Caballero v. Keane, 42 F.3d
738, 741 (2d Cir. 1994)).
      The new evidence primarily serves to reinforce topics that Simmons
presented to the state court—that he had a difficult and painful childhood, that
members of his family had been murdered, that he was generally a kind and
loving (if troubled) man, and that his attorneys failed to investigate these topics
adequately. Although some of the evidence gives additional details, it does not
fundamentally alter the claim presented to the state court.           Accordingly,
Simmons sufficiently exhausted his ineffective assistance claim in state court
and may present this new evidence in federal court.
      2.    Deficient Performance
      To satisfy Strickland’s first prong, Simmons must show that his counsel
committed “errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. Counsel’s performance is considered deficient if it “falls below an objective
standard of reasonableness” as measured by professional norms. Id. at 688. In
analyzing counsel’s performance, we make every effort to “eliminate the

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distorting effects of hindsight,” id. at 689, and we do not assume that counsel’s
performance is deficient “merely because we disagree with trial counsel’s
strategy.” Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). At the same
time, “in the context of a capital sentencing proceeding, defense counsel has the
obligation to conduct a ‘reasonably substantial, independent investigation’ into
potential mitigating circumstances.” Neal v. Puckett, 239 F.3d 683, 688 (5th Cir.
2001) (quoting Baldwin v. Maggio, 704 F.2d 1325, 1332–33 (5th Cir. 1983)).
      Simmons argues that Cunningham’s affidavit shows that Cunningham
and his co-counsel completely failed to investigate Simmons’s childhood, and
that their performance at sentencing was deficient. Although Cunningham’s
affidavit acknowledges certain shortcomings, it is not the wholesale mea culpa
that Simmons describes. Cunningham’s affidavit admits that counsel failed to
investigate certain records, the facts or circumstances of the murders of
Simmons’s uncles, and the details of the violence committed by Simmons’s step-
father. This is very different from a complete failure to investigate. In fact,
counsel presented six mitigation witnesses. At least three of them—Jewell,
Belinda, and Dupuis—had intimate knowledge of Simmons’s childhood and
spoke directly to the privations he suffered as a youth, specifically referencing
the deaths of Simmons’s uncles and the violence of his step-father, including the
fact that his step-father once shot at him for trying to defend his mother.
      The   relevant   inquiry   is   not   whether   counsel   performed     any
investigation—it is whether “the known evidence would lead a reasonable
attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527 (2003). In
Wiggins, Wiggins argued that his trial counsel had failed to investigate
sufficiently his dysfunctional upbringing. Id. at 516. To support his claim,
Wiggins presented evidence of his horrendous childhood:
      [Wiggins’s] mother, a chronic alcoholic, frequently left Wiggins and
      his siblings home alone for days, forcing them to beg for food and to


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      eat paint chips and garbage. Mrs. Wiggins’ abusive behavior
      included beating the children for breaking into the kitchen, which
      she often kept locked. She had sex with men while her children
      slept in the same bed and, on one occasion, forced [Wiggins’s] hand
      against a hot stove burner—an incident that led to [Wiggins’s]
      hospitalization. At the age of six, the State placed Wiggins in foster
      care. [Wiggins’s] first and second foster mothers abused him
      physically, and . . . the father in his second foster home repeatedly
      molested and raped him. At age 16, [Wiggins] ran away from his
      foster home and began living on the streets.             He returned
      intermittently to additional foster homes, including one in which the
      foster mother’s sons allegedly gang-raped him on more than one
      occasion. After leaving the foster care system, Wiggins entered a
      Job Corps program and was allegedly sexually abused by his
      supervisor.
Id. at 516–17 (citations omitted). Wiggins’s attorney knew at least some of these
facts, but did not investigate to uncover them fully and did not present them as
mitigating evidence at sentencing. Id. at 533–34. The Court found that the
decision not to investigate fully was objectively unreasonable; therefore, the
attorney’s performance was deficient. Id.
      Likewise, in Neal we found that Neal’s attorneys provided deficient
representation. Neal’s attorneys failed to investigate sufficiently and present
evidence about Neal’s truly horrendous experiences as a child and young adult
in a facility for mentally handicapped children and later in a maximum-security
mental institution, which included physical and sexual abuse and multiple
alleged gang-rapes, one of which included as many as thirty to forty attackers.
Neal, 239 F.3d at 689–90. We found that Neal’s attorneys failed to contact
Neal’s sister, who had actually contacted them and would have testified on
Neal’s behalf; probably did not sufficiently develop the testimony of Neal’s
mother; and failed to prepare their psychological expert adequately, not even
telling her what crimes Neal was charged with or any facts about his personal
history. Id. at 690–91. We found the failure of Neal’s attorneys even more


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troubling because “most of the mitigating evidence was readily available and
would have cost no more than several long distance telephone calls or postage
stamps.” Id. at 691.
      Simmons points to Jackson v. Calderon, a Ninth Circuit capital case that
also dealt with a claim for ineffective assistance of counsel at the sentencing
phase. In that case, the court found the representation provided by Jackson’s
attorney was deficient after the attorney stated that he “never expected
Jackson’s trial to reach the penalty phase, and his preparation reflected that
view,” and that “[t]he total investigation for purposes of the penalty phase took
less than two hours some weeks before the trial began.” 211 F.3d 1148, 1161–62
(9th Cir. 2000). The court found that Jackson’s attorney failed to investigate and
present evidence that Jackson was “addict[ed] to PCP and the meaning and
consequences of such addiction,” that Jackson “was grossly intoxicated” on PCP
at the time of the murder, and that Jackson was so intoxicated that he “could
remember little of the incident” and “was unable to think consciously at the time
of the crime.” Id. at 1162–63.
      If Jackson’s attorney had investigated and presented this evidence, “the
jury would have been presented with a different medical picture of Jackson’s
state of consciousness than the one they received, which was no picture at all.”
Id. at 1164. Further, Jackson’s attorney failed to present evidence of Jackson’s
tumultuous childhood, which included “repeated beatings,” chokings by his
mother when she was angry with him, neglect, instability, signs of mental
illness, and a diagnosis of schizophrenia. Id. at 1163.
      In Wiggins, Neal, and Jackson, the defendants’ attorneys were on notice
that further research would have unearthed additional material information, but
fundamentally failed to perform that research. Here, Simmons has not shown
that there was such additional material information. Further, it seems that
Cunningham and his co-counsel performed at least some investigation into the

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deaths of Simmons’s uncles and the violence Simmons suffered as a child. It is
not clear how thorough the investigation was. It is possible that a reasonable
attorney would have investigated these issues more extensively. Also, Simmons
asserts that counsel did not ask the court for funds to employ an investigator for
any purpose other than DNA analysis. It is possible that a reasonable attorney
would have at least tried to get an investigator to explore Simmons’s childhood.
Further, it is unclear how thoroughly counsel prepared the mitigation witnesses.
On the other hand, counsel performed enough research to present several
witnesses who provided coherent testimony. Viewed as a whole, this testimony
provided a detailed account of the privations Simmons suffered as a child.
Certainly, the performance of Simmons’s attorney far surpassed that of the
attorneys in Wiggins, Neal, and Jackson.
      Under § 2254, we afford great deference to the Mississippi Supreme Court.
We conclude that jurists could not reasonably debate whether the Mississippi
Supreme Court applied Strickland unreasonably when it found counsel’s
investigation was not deficient.
      Simmons also argues that under Williams v. Taylor, 529 U.S. 362 (2000),
counsel’s performance was per se deficient because counsel failed to secure
Simmons’s military, school, and other records. We do not agree that Williams
creates such a bright-line rule.     The Williams Court performed a holistic
analysis, under which counsel’s failure to secure records was only one of
numerous factors that led the Court to find deficient representation. 529 U.S.
at 395–96. Other factors included counsel’s failure to prepare for the sentencing
phase until a week before trial, uncover records “not because of any strategic
calculation but because [counsel] incorrectly thought that state law barred
access to such records,” introduce available evidence that Williams was
borderline mentally retarded, introduce available mitigating testimony of prison
guards, and return the phone call of a certified public accounted who visited

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Williams regularly and offered to testify that Williams seemed to thrive in the
regimented prison environment and was proud of the carpentry degree he
received while in prison. Id. While we acknowledge that counsel’s failure to
secure Simmons’s records is troubling, we do not agree with Simmons that
Williams renders this failure constitutionally deficient.
      In addition, Simmons argues that counsel’s failure to call a mitigation or
psychological expert constitutes deficient performance. We disagree. States
have a constitutional obligation to provide an indigent criminal defendant with
access to a psychiatrist in two circumstances: “(1) ‘when a defendant
demonstrates to the trial judge that his sanity at the time of the offense is to be
a significant factor at trial’ and (2) ‘in the context of a capital sentencing
proceeding, when the State presents psychiatric evidence of the defendant’s
future dangerousness.’” White v. Johnson, 153 F.3d 197, 200 (5th Cir. 1998)
(quoting Ake v. Oklahoma, 470 U.S. 68, 83 (1985)); see also Bishop v. State, 812
So. 2d 934, 939 (Miss. 2002) (finding that a defendant is not entitled to a
psychological expert to help present mitigation evidence “where he has not
raised insanity as a defense or where the State does not plan to submit
psychological evidence against the defendant.”). Simmons does not argue that
he demonstrated to the trial judge that his sanity would be a significant factor
at trial or that the State presented psychiatric evidence of his future
dangerousness. Simmons was not constitutionally entitled to a mitigation or
psychological expert.
      Further, Simmons argues that under Bouchillon v. Collins, 907 F.2d 589
(5th Cir. 1990), counsel’s representation was deficient because counsel failed to
investigate the possibility that Simmons suffered from mental defects or organic
brain damage at the time of the murder. Bouchillon does not articulate a per se
rule that an attorney who fails to investigate the possibility of mental defects or
organic brain damage fails the first Strickland prong. In that case, Bouchillon’s

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attorney was on notice that Bouchillon suffered from post-traumatic stress
disorder (“PTSD”), had been institutionalized, and was on medication.
Bouchillon, 907 F.2d at 596.        Despite these facts, the attorney allowed
Bouchillon to enter a guilty plea without investigating whether Bouchillon was
competent to do so.     Id. at 590–91.     In fact, the attorney even dissuaded
Bouchillon when Bouchillon suggested asserting an insanity defense. Id. at 596.
Based on these facts, we found that the attorney’s representation was deficient.
      Unlike in Bouchillon, here Simmons has presented no evidence that his
counsel was on notice that Simmons suffered from PTSD or any other mental
disorder, had been institutionalized, or was on medication.           Accordingly,
counsel’s failure to investigate any mental defects or organic brain damage did
not constitute deficient representation.
      Finally, Simmons argues that counsel’s performance was deficient because
counsel failed to give the State the names of Simmons’s mitigation witnesses
until the second day of trial. Simmons fails to explain why this fact, even if
accurate, constitutes deficient performance. To the contrary, such a delay could
be considered a strategic decision to frustrate the State’s efforts to prepare for
cross-examination of these witnesses.
       For all of these reasons, Simmons fails to satisfy the first prong of the
Strickland test.
      3.    Prejudice
      To satisfy Strickland’s second prong, counsel’s errors must be “so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. Under this prong, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id.

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      Simmons does not persuade us that reasonable jurists could debate
whether the Mississippi Supreme Court erred when it found there was no
reasonable probability that the outcome of the trial would have been different
absent counsel’s supposed errors. Simmons argues that counsel should have
presented additional mitigating evidence. However, much of the evidence that
Simmons points to—Cunningham’s affidavit, De Guy’s affidavit, the statement
of the hours worked by counsel, and the excerpt from the textbook—might
support Simmons’s argument that his counsel failed to investigate adequately,
but says nothing about prejudice.
      To the extent that Simmons’s new evidence does go to prejudice, it is
largely duplicative of evidence that was presented to the jury. In some cases,
courts have found prejudice where attorneys presented basic facts to the jury but
failed to develop those facts with important concrete details. For example, in
Neal we found prejudice even though trial counsel presented “skeletal”
mitigating evidence to the jury, which established that Neal “was moderately
retarded, had been severely neglected by his family, spent several years in state
institutions, and suffered from serious behavioral problems, including lack of
self-control and sexual identity problems.” Neal, 239 F.3d at 693. We reasoned
that “with a more detailed and graphic description and a fuller understanding
of Neal’s pathetic life, a reasonable juror may have become convinced of Neal’s
reduced moral culpability.”     Id. at 694.     The evidence in Neal provided
“additional details” about “the terrible living conditions with [Neals’s] alcoholic
and abusive father,” “the bleak, depressing, and hopeless life at the mental
institutions,” “Neal’s abuse and mistreatment in prison and his general
helplessness there,” and “the level of Neal’s retardation and his inability to
control much of his behavior.” It also helped to humanize Neal by providing the
perspectives of “people along the way who saw some worth in him and
befriended him.” Id.

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        Unlike in Neal, here the additional evidence that Simmons presents does
not provide a more robust understanding of Simmons’s life. The only additional
evidence of Simmons’s childhood shows that his mother was a gambling addict
who regularly left the children at home when she went to play bingo, that she
had trouble paying her bills and paying for food, and that at least once
Simmons’s grandmother lent her money to pay her light bill.           Especially
considering the heinous nature of this brutal crime, we are not persuaded that
this new evidence would have had any impact whatsoever.
        The only other new evidence that Simmons presents is the newspaper
article. This article shows that Simmons was troubled before the murder, but
this article is only marginally relevant, and certainly is not sufficient to show
prejudice. In fact, the article arguably shows that Simmons was anxious about
the drug debt he owed to Wolfe. If this is the case, then the article might
actually be harmful to Simmons, because it would support a finding of
premeditation. Further, the article includes the allegation that Simmons tried
to incite local teens to attack and kill African Americans, so counsel may have
decided not to present it to the jury out of fear that it would do more harm than
good.
        Finally, Harris’s statement that Lori possessed information valuable to
Simmons’s defense, seems to be nothing more than unfounded speculation. This
statement has no impact on our determination.
        Simmons fails to show that counsel’s allegedly deficient performance was
so serious that it deprived Simmons of a fair trial. Thus, Simmons fails to
satisfy the second prong of the Strickland test.
B.      Whether the Trial Court Erred by Precluding the Admission of
        Relevant Mitigating Evidence
        Simmons argues that the trial court erred by excluding the videotape at
sentencing. At certain times during the sentencing phase of a capital trial, the


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exclusion of evidence “constitute[s] a violation of the Due Process Clause of the
Fourteenth Amendment” even when the evidence would otherwise be excluded
under state evidentiary rules. Green v. Georgia, 442 U.S. 95, 97 (1979) (per
curiam); see also Eddings v. Oklahoma, 455 U.S. 104, 111 (1982) (quoting Lockett
v. Ohio, 438 U.S. 586, 604 (1978)) (“[T]he Eighth and Fourteenth Amendments
require that the sentencer . . . not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.”) (emphasis omitted); Chambers v. Mississippi, 410 U.S. 284,
302 (1973) (holding that state evidentiary rules “may not be applied
mechanistically to defeat the ends of justice”).
      Like the United States Supreme Court, the Mississippi Supreme Court has
“recognized the qualitative difference between a death sentence and a sentence
of life imprisonment.”    Mackbee v. State, 575 So. 2d 16, 39 (Miss. 1990).
“Because of that qualitative difference, there is a corresponding difference in the
need for reliability in the determination that death is the appropriate
punishment in a specific case.” Id. (quoting Woodson v. North Carolina, 428 U.S.
280, 305 (1976)). In a capital case, “the jury must have before it as much
information as possible when it makes its sentencing decision.” Id. Therefore,
“‘Mississippi allows evidence of mitigating circumstance of an unlimited nature.’”
Id. (quoting Davis v. State, 512 So. 2d 1291, 1293 (Miss. 1987)).
      Despite the expansive language of Green, Mackbee, and related cases, we
have repeatedly said that Green is “limited to its facts, and certainly did not
federalize the law of evidence.” E.g., Barefoot v. Estelle, 697 F.2d 593, 597 (5th
Cir. 1983). Instead, Green stands for the proposition that in rare cases “certain
egregious evidentiary errors may be redressed by the due process clause.” Id.
Accordingly, we must determine whether in this case the evidence is “highly



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relevant to a critical issue in the punishment phase of the trial, and substantial
reasons existed to assume its reliability.” Green, 442 U.S. at 97.
      It is clear that the videotape is highly relevant to a critical issue in the
punishment phase of trial. It speaks directly to the issue of whether Simmons
felt remorse for his crime—an issue that the prosecutor repeatedly brought up.
Accordingly, we proceed to the second prong of the Green analysis: whether
substantial reasons exist to assume the videotape’s reliability.
      In denying Simmons’s request for post-conviction relief, the Mississippi
Supreme Court expressed its concern that admitting the videotape might “throw
open the door to obvious abuse.” Simmons, 869 So. 2d at 1003. While we are
sympathetic to the court’s position, we conclude that in this case, reasonable
jurists could debate whether substantial reasons exist to assume the videotape’s
reliability.
      In Green, the Court considered: (1) whether the statement was made
spontaneously to a close friend, (2) whether ample evidence corroborated the
confession, (3) whether the statement was against interest, and (4) whether the
State considered the testimony reliable. Green, 442 U.S. at 97. Here, there are
indications that the videotape was made spontaneously. Although we do not
know exactly how Simmons made the videotape—for example, whose camera he
used, where he was when he recorded the videotape, or whether anyone helped
him—we do know that he turned himself in the day after the murder. Thus, it
seems that he recorded the videotape immediately after the murder. On the
other hand, Simmons had to make a conscious decision to record the videotape,
so the videotape was not as spontaneous as a statement made to a friend or a
cellmate. The first factor tips in favor of reliability, although not as clearly as
in Green.
      Unlike in Green, here the videotape was made by Simmons rather than by
another defendant.    Therefore, the second factor—whether ample evidence

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                                   No. 08-70048

corroborated the confession—does not apply. As for the third factor, it is possible
to argue that the videotape was a statement against interest, because Simmons
made inculpatory comments.        On the other hand, Simmons may have had
ulterior motives to create the tape: he believed the police were hot on his trail,
and he seemed to be trying to decide whether to turn himself in, run, or kill
himself. Given his situation, it is possible that he knew he would be caught and
wanted a jury to believe that he was remorseful. Of course, it is also possible
that Simmons was simply trying to say goodbye to has family, express genuine
remorse, and arrange for the proper disposal of his belongings. Accordingly, the
third factor tips neither for nor against reliability.
      As for the final factor, the State did not introduce the videotape at trial.
However, the State did fight to be able to introduce it, and it seems likely that
the State’s choice not to introduce it was a tactical decision rather than a sign
that the State questioned its authenticity. Thus, the State seemed to consider
the videotape reliable. Accordingly, this factor weighs in favor of reliability,
although not as clearly as in Green.
      The videotape is highly relevant to a critical issue in the punishment
phase of trial. In addition, the Green factors tip slightly in favor of reliability.
Therefore, we find that reasonable jurists could debate whether the district court
erred in finding that the Supreme Court of Mississippi reasonably applied
federal law in determining that Green and related cases did not require the
admission of the videotape at the mitigation stage.
                               V. CONCLUSION
      Reasonable jurists could not debate whether the district court erred in
finding that the Supreme Court of Mississippi reasonably applied federal law in
determining that Simmons’s constitutional right to the effective assistance of
counsel as defined in Strickland was not violated.         Accordingly, we DENY
Simmons’s request for a COA on his ineffective assistance ground.

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      However, reasonable jurists could debate whether the district court erred
in finding that the Supreme Court of Mississippi reasonably applied federal law
in determining that Green and related cases did not require the admission of the
videotape at sentencing. Thus, we GRANT Simmons’s request for a COA on this
ground. The Clerk’s office will provide the parties with a briefing schedule.




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