                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0086a.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                                                 -
 ROBERT J. VAN HOOK,
                                                 -
                            Petitioner-Appellant,
                                                 -
                                                 -
                                                      No. 03-4207
           v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 CARL S. ANDERSON, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Columbus.
                No. 94-00269—George C. Smith, District Judge.
                                Argued: December 6, 2005
                           Decided and Filed: March 6, 2009
              Before: MERRITT, MARTIN, and MOORE, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: James D. Owen, THE OWEN LAW FIRM, Columbus, Ohio, Keith A. Yeazel,
Columbus, Ohio, for Appellant. Stephen E. Maher, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: Keith A. Yeazel,
Columbus, Ohio, James D. Owen, THE OWEN LAW FIRM, Columbus, Ohio, for
Appellant. Stephen E. Maher, Charles L. Wille, OFFICE OF THE ATTORNEY GENERAL
OF OHIO, Columbus, Ohio, for Appellee.
                              _________________________

                                 AMENDED OPINION
                              _________________________

        MERRITT, Circuit Judge. At the request of the majority of the en banc court and
in order to avoid the need for an en banc rehearing, the original panel amends its opinion of
August 4, 2008, by deleting its discussion of counsel’s failure to seek an independent mental
health expert and the failure of counsel to object to the Presentence Report. Therefore, the




                                             1
No. 03-4207            Van Hook v. Anderson                                                       Page 2


sole basis for the issuance of the writ of habeas corpus is counsel’s failure to investigate
mitigating factors.

         This is an appeal in an Ohio death penalty case by the prisoner, Van Hook, seeking
habeas corpus relief under 28 U.S.C. § 2254. On the evening of February 18, 1985,
petitioner Robert Van Hook arrived at a bar frequented by male homosexuals in Cincinnati,
Ohio. He left the bar with David Self, and the two proceeded to Self’s apartment. Once
there, Van Hook strangled Self to the point of unconsciousness. He then brutally killed Self,
stabbing him several times in the head and abdomen. After stealing a few items from Self’s
apartment, Van Hook fled to Florida, where he was apprehended over a month later and
                                             1
subsequently confessed to the murder.

         Back in Ohio, Van Hook waived his rights to a trial by jury, and he pleaded not
guilty and not guilty by reason of insanity. The three-judge panel, elected under Ohio
law, rejected this defense and found him guilty of aggravated murder and aggravated
robbery, which made him eligible for the death penalty under Ohio Rev. Code Ann.
§ 2929.04(A) (West 2008). Finding that the mitigating evidence did not outweigh the
aggravators, the three-judge panel imposed the death penalty instead of life
imprisonment.

         Though he did not deny killing Self, Van Hook asserted unsuccessfully a variety
of errors both on direct appeal and in state post-conviction proceedings. See State v. Van
Hook, 530 N.E.2d 883 (Ohio 1988), cert. denied, 489 U.S. 1100 (1989). After
exhausting all of his state court remedies, Van Hook sought a writ of habeas corpus in
federal district court.

         The district court denied the petition on all asserted claims of error. Our panel
then reversed the judgment of the district court because under Edwards v. Arizona, 451
U.S. 477 (1981), Van Hook’s confession to the Cincinnati Police should have been
suppressed. We pretermitted all other remaining issues. Van Hook v. Anderson, 444


         1
           For a more detailed recitation of the facts surrounding the murder and Van Hook’s apprehension,
see State v. Van Hook, 1987 WL 11202 (Ohio Ct. App. May 13, 1987), and Van Hook v. Anderson, 444
F.3d 830 (6th Cir. 2006), vacated en banc, 488 F.3d 411 (2007).
No. 03-4207          Van Hook v. Anderson                                            Page 3


F.3d 830 (6th Cir. 2006), vacated en banc, 488 F.3d 411 (6th Cir. 2007) (by a vote of 8-
7), cert. denied, 128 S. Ct. 614 (2007). After the Sixth Circuit, en banc, vacated our
judgment and affirmed the district court’s denial of the petition on the confession issue,
the majority returned this case to our panel to analyze Van Hook’s remaining grounds
for habeas relief.

        After a careful review of the record, we conclude that Van Hook’s trial counsel
was ineffective during the mitigation phase of the trial, thereby violating his rights under
the Sixth Amendment, as interpreted by the Supreme Court in three cases, Strickland v.
Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003) (incorporating
the American Bar Association Guidelines For the Appointment and Performance of
Counsel in Death Penalty Cases as the professional standard of performance), and
Rompilla v. Beard, 545 U.S. 374, 387 (2005) (same). His counsel was deficient by
failing to fully investigate and present as evidence all available mitigating factors. We
reverse the decision of the district court with respect to ineffective assistance of counsel
at the mitigation phase of the trial. We remand the case to the district court with
instruction to issue a writ of habeas corpus vacating Van Hook’s death sentence unless
the State conducts a new penalty phase proceeding within 180 days of remand.

        The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2244, et seq., was signed into law and became effective on April 24, 1996.
Because Van Hook filed his habeas corpus petition on October 10, 1995, the Act does
not apply as a constraint on our interpretation and application of constitutional standards
in this death penalty case. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). We
review de novo the conclusions of the district court. See Powell v. Collins, 332 F.3d
376, 388 (6th Cir. 2003).

        Since 1984, the standard for whether counsel’s ineffectiveness fell below the
minimum requirements of the Sixth Amendment contains two components: (1) the
deficient performance of counsel and (2) the resulting prejudice to the defendant.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on an ineffective
assistance of counsel claim, Van Hook must satisfy both the deficient performance and
No. 03-4207        Van Hook v. Anderson                                             Page 4


prejudice prongs of Strickland. See Harries v. Bell, 417 F.3d 631, 636 (6th Cir. 2005).
For Van Hook to prove that his counsel’s performance was constitutionally deficient, the
performance must have fallen “below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. at 688, “under prevailing professional norms.”
While the Court in Strickland did not lay out a detailed, bright-line set of rules for
determining whether counsel’s performance is adequate, as it did later in Wiggins and
Rompilla, the Court did require that in normal cases such as this one counsel must
investigate fully all aspects of a case, id. at 691 (“[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.”). It explained that this duty is of utmost importance in
capital murder cases, especially at the mitigation phase where the lawyer’s work may be
the difference between life and death. See id. at 706 (Brennan, J., concurring in part and
dissenting in part); Harries v. Bell, 417 F.3d at 637 (“The prospect of being put to death
unless counsel obtains and presents something in mitigation magnifies counsel’s
responsibility to investigate”) (emphasis and internal quotations omitted). Thus, the
typical focus of analysis in an ineffective assistance of counsel during mitigation case
is “whether the investigation supporting counsel’s decision not to introduce mitigating
evidence . . . was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523 (2003)
(emphasis in original).

       After Strickland, this Court and the Supreme Court made clear in a number of
cases that counsel in death cases should follow closely the ABA standards referred to
above. See Wiggins v. Smith, 539 U.S. at 524, Rompilla v. Beard, 545 U.S. at 387 (2005)
(“[W]e long have referred [to ABA standards] as guides to determine what is
reasonable”) (internal quotations omitted); Haliym v. Mitchell, 492 F.3d 680, 717-18
(6th Cir. 2007) (explaining that “the fact that counsel’s performance fell short of several
of the American Bar Association’s guidelines” further reinforced the conclusion that
counsel’s performance was deficient). We have explained clearly that the ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
[hereinafter ABA Guidelines] provide the “guiding rules and standards to be used in
defining the ‘prevailing professional norms’ in ineffective assistance cases.” Hamblin
No. 03-4207         Van Hook v. Anderson                                            Page 5


v. Mitchell, 354 F.3d 482, 486 (6th Cir. 2003); see also Dickerson v. Bagley, 453 F.3d
690, 693 (6th Cir. 2006) (“Our Court has made clear that . . . counsel for defendants in
capital cases must fully comply with [the ABA Guidelines].”).

       Van Hook is correct that the performance of his trial counsel was deficient during
the mitigation phase because his attorneys failed to fully investigate and present
evidence of all the potential mitigating factors that could have reduced his sentence from
death to life imprisonment. Counsel has a duty to investigate fully, unless counsel
makes a reasonable strategic choice to limit the investigation. See Strickland, 466 U.S.
at 690-91 (“[S]trategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable judgments support the limitations on
investigation.”).

       Our Court’s precedents make clear that a partial but ultimately incomplete
mitigation investigation is inadequate. See Dickerson v. Bagley, 453 F.3d 690, 695-97
(6th Cir. 2006) (holding that trial counsel was ineffective, despite having presented eight
witnesses at mitigation, for failing to discover and introduce evidence that the defendant
had a low I.Q., had a borderline personality disorder, was taunted at school, and was
referred to as “the moron” by his mother); Harries v. Bell, 417 F.3d 631, 638 (6th Cir.
2005) (holding trial counsel deficient at mitigation for failing to fully investigate the
defendant’s family history and mental health, despite having conducted at least six
interviews). This is particularly true when counsel’s investigation failed to reveal any
of the significant, potentially mitigating details of the defendant’s personal and family
history. See Haliym v. Mitchell, 492 F.3d 680, 713 (6th Cir. 2007) (explaining that “the
Sixth Circuit has frequently considered [the defendant’s family history of abuse] an
important mitigation factor”). Because the “history, character, and background of the
offender” is expressly listed as a statutory mitigating factor, Ohio Rev. Code Ann.
§ 2929.04(B), it is of utmost importance for counsel to investigate fully and present any
aspects of the defendant’s upbringing that might bear on his culpability. The ABA
Guidelines explain that this investigation ought to include interviews with family
members and all other people who knew the client: “It is necessary to locate and
No. 03-4207        Van Hook v. Anderson                                             Page 6


interview the client’s family members (who may suffer from some of the same
impairments as the client), and virtually everyone else who knew the client and his
family, including neighbors, teachers, clergy, case workers, doctors, correctional,
probation or parole officers, and others.” ABA Guidelines ¶ 10.7, at 83. Such thorough
interviews are necessary to reveal all potential arguments to support a case for
mitigation.

       Both this Court and the Supreme Court have also held counsel’s performance
deficient when counsel’s last-minute investigation resulted in overlooking potentially
powerful mitigating evidence. See Williams v. Taylor, 529 U.S. 362, 396-99 (2000)
(explaining that counsel only began preparing for the mitigation proceeding “a week
before the trial,” thus not having enough time to uncover records of the defendant’s
“nightmarish childhood”); Powell v. Collins, 332 F.3d 376, 398 (6th Cir. 2003) (stating
that the trial counsel spent only “two full business days” preparing for mitigation); Glenn
v. Tate, 71 F.3d 1204, 1207 (holding that counsel’s failure to make any significant
preparations for the mitigation phase until after the conclusion of the guilt phase was
itself “objectively unreasonable”). The requirement for counsel to perform thorough,
not last-minute, investigations before a mitigation hearing is further reinforced by the
ABA Guidelines: “The mitigation investigation should begin as quickly as possible,
because it may affect the investigation of first phase offenses, decisions about the need
for expert evaluations, motions practice, and plea negotiations.” ABA Guidelines ¶ 10.7
at 82 (internal parentheticals omitted). The ABA Guidelines also explain that preparing
for the mitigation phase of trial “requires extensive and generally unparalleled
investigation into personal and family history,” Id. ¶ 10.7, at 81, as well as school,
medical and psychological records.

       Applying these clear rules to the performance of Van Hook’s trial counsel, it is
clear that counsel’s investigation into and presentation of mitigating evidence was
deficient. While Van Hook’s trial attorneys uncovered a little information about his
traumatic childhood experience in their last-minute investigation, many of the most
important details were not discovered and therefore were never presented to the
No. 03-4207         Van Hook v. Anderson                                             Page 7


sentencer. Significantly, trial counsel’s investigation failed to reveal that Van Hook’s
parents repeatedly beat him (J.A. at 1619), that he had witnessed his father attempt to kill
his mother several times (J.A. at 1619), and that his mother was committed to a
psychiatric hospital when he was between four and five years old (J.A. at 1570). These
details of his childhood are even more unsettling and potentially mitigating than the
omitted family background evidence in Dickerson, where the omitted evidence simply
included the fact that the defendant had been taunted at school and referred to as the
“moron.” The details about Van Hook’s childhood, which were uncovered later by the
more thorough investigation of Van Hook’s habeas counsel, demonstrate that trial
counsel’s investigation into Van Hook’s background was never finished because the
investigation was conducted at the last minute.

        Van Hook’s counsel’s mitigation investigation did not “begin quickly” before
trial. Rather, after the guilt phase, counsel started a last minute investigation for the
mitigation hearing. (J.A. at 4400-04.) His attorneys thus spent far less time preparing
than the counsel in Williams, where counsel was deemed ineffective for not having
begun preparing for mitigation until a week before the guilt phase of trial. This cursory
preparation for mitigation also parallels the preparations by counsel in Glenn, which this
Court held to be objectively unreasonable.

        By not performing the sort of extensive, thorough investigation that is a
minimum requirement of trial counsel in these cases, the performance of Van Hook’s
counsel turned up very little of the available mitigation evidence. Contrary to the
perception of the state appellate court, this omitted evidence was much more than
“merely cumulative.” State v. Van Hook, 1992 WL 308350, at *2 (Ohio Ct. App. Oct.
21, 1992). This omitted evidence goes far beyond the brief details of his parents’ alcohol
abuse and dysfunctional relationship that were presented at mitigation.

        Nor can counsel’s decision to terminate the mitigation investigation before
uncovering this information be considered a reasonable, strategic decision. Considering
the information that they had already learned about Van Hook’s abusive family
background, counsel certainly had reason to suspect that much worse details existed.
No. 03-4207            Van Hook v. Anderson                                                        Page 8


But his attorneys decided not to interview or even contact Van Hook’s step-sister, his
paternal uncle, two of his paternal aunts, his maternal uncle, and the psychiatrist who
treated his mother when she was committed. All of these individuals could have helped
his counsel narrate the true story of Van Hook’s childhood experiences in mitigation.
All of them would have been willing to testify on his behalf. (J.A. 1569-73, 1619-26.)2

         Failing to complete a mitigation investigation when additional family witnesses
are available is not sound trial strategy; neither is waiting until four days before the
mitigation hearing to begin the investigation. See Williams v. Taylor, 529 U.S. 362, 395
(2000); Haliym v. Mitchell, 492 F.3d 680, 712 (6th Cir. 2007); Dickerson v. Bagley, 453
F.3d 690, 695 (6th Cir. 2006); Harries v. Bell, 417 F.3d 631, 638 (6th Cir. 2005).
Because his trial lawyers failed to conduct a full mitigation investigation and present
available mitigating evidence to the sentencer, their performance fell short of “prevailing
professional norms,’” Strickland, 466 U.S. at 688.

         For an ineffective assistance of counsel claim to succeed, counsel must not only
have performed deficiently, but that performance must have prejudiced the defendant.
See Strickland v. Washington, 466 U.S. 668, 692 (1984). To prevail on the prejudice
prong of a Strickland claim, Van Hook must show “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the results of the proceeding would have
been different.” Id. at 694. A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” Id. Accordingly, because Van Hook challenges
his death sentence, “the question is whether there is a reasonable probability that, absent
the errors, the sentencer . . . would have concluded that the balance of aggravating and


         2
           Counsel’s decision not to introduce additional family background witnesses also cannot be
justified under the strategy of attempting to prevent the sentencer from learning about prior criminal
convictions. In several of our recent cases where few mitigation witnesses were introduced, we refused
to find counsel’s performance deficient in large part because these witnesses likely would have had to
reveal the defendant’s history of violence. See Durr v. Mitchell, 487 F.3d 423, 436 (6th Cir. 2007) (finding
counsel not to be deficient when introducing family and friend witnesses might have caused prior rape
convictions to come up in cross-examination); Tinsley v. Million, 399 F.3d 796, 809 (6th Cir. 2005)
(finding counsel’s decision not to introduce any mitigating character evidence reasonable because it might
have revealed his prior manslaughter conviction); cf. Hartman v. Bagley, 492 F.3d 347, 360 (6th Cir. 2007)
(finding counsel’s decision not to introduce expert’s report “strategic” because “it paint[ed] a decidedly
unsympathetic portrait” of the defendant). To the contrary, the sentencer in Van Hook’s case already knew
of his prior convictions, and any additional witnesses that might have been called would have only further
developed his case for mitigation.
No. 03-4207        Van Hook v. Anderson                                            Page 9


mitigating circumstances did not warrant death.” Id. at 695. Van Hook must therefore
show that his counsel’s errors “were serious enough to deprive [him] of a proceeding the
result of which was reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir. 1995).

       Counsel’s deficient performance prevented the three-judge panel from learning
fully about the two statutory mitigating factors that were the strongest in his case — his
traumatic family background and his mental illness.

       Had his attorneys performed a complete mitigation investigation, that panel
would have learned how Van Hook was often beaten by his parents, how he saw his
father try to kill his mother, and how his mother was committed to a psychiatric hospital
when he was a young child. (J.A. at 1570, 1619.) Further, had his attorneys sought out
the available family members willing to help tell his story, that panel would have heard
additional “first-hand accounts from those who knew [Van Hook] best.” Powell v.
Collins, 332 F.3d 376, 400 (6th Cir. 2003).

       Our conclusion is bolstered by the fact that Ohio is a so-called “weighing” state,
which means that the aggravating circumstances must outweigh the mitigating factors
in order to impose the death penalty. Ohio Rev. Code Ann. § 2929.04(B). Van Hook’s
conviction only qualified for one of Ohio’s statutory aggravating circumstances: his
offense “was committed while [he] was committing . . . aggravated robbery.” Id.
§ 2929.04(A)(7). Thus, the introduction of more available mitigating evidence could
certainly have tipped the scales in favor of his life. The threshold for finding prejudice
in this case is thus lower than in previous cases, where we found prejudice despite the
trial courts’ having found multiple aggravating circumstances. Cf. Dickerson v. Bagley,
453 F.3d 690, 691 (6th Cir. 2006) (finding prejudice on reweighing despite two
aggravating factors); Harries v. Bell, 417 F.3d 631, 634 (6th Cir. 2005) (same); Skaggs
v. Parker, 235 F.3d 261, 264 (6th Cir. 2000) (same).

       We believe that “there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S. at 695. This is especially
true because, as in Dickerson, “any one of the three judges alone could have prevented
No. 03-4207        Van Hook v. Anderson                                           Page 10


imposition of the death penalty.” 453 F.3d at 699 (citing Ohio Rev. Code Ann.
§ 2929.03(D)(3), which requires unanimity for a death sentence). While it is possible
that the panel “could have heard the evidence described above, and still have decided on
the death penalty . . . that is not the appropriate test. Instead, we must ask whether ‘the
available mitigating evidence, taken as a whole, might well have influenced the [panel’s]
appraisal of [Van Hook’s] culpability.’” Harries v. Bell, 417 F.3d 631, 640 (6th Cir.
2005) (citations omitted) (quoting Wiggins v. Smith, 539 U.S. 510, 538 (2003)).
Considering the evidence that was available and yet omitted, we conclude that, absent
Van Hook’s counsel’s deficiency, there is a reasonable probability that the result of his
sentencing proceeding would have been different. The errors were “serious enough to
deprive [him] of a proceeding the result of which was reliable.” Glenn v. Tate, 71 F.3d
1204, 1210 (6th Cir. 1995).

       Because we have decided that counsel failed to conduct a full mitigation
investigation and present available mitigating evidence to the sentencer and thereby
offered constitutionally ineffective assistance to Van Hook at the sentencing phase of the
trial, we will not decide, and we therefore pretermit, the remaining issues. For the
foregoing reasons, we reverse the decision of the district court and remand the case to
the district court with instructions to issue a writ of habeas corpus vacating Van Hook’s
death sentence unless the State conducts a new penalty phase proceeding within 180
days of remand.
