                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-19



DANNY DEAN FROGGE,

                Petitioner - Appellant,

           v.


GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,

                Respondent - Appellee.




Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:05-cv-00502-NCT-WWD)


Argued:   May 16, 2008                    Decided:    July 15, 2008


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.   Judge Gregory wrote
a dissenting opinion.


ARGUED: James Patrick Cooney, III, WOMBLE, CARLYLE, SANDRIDGE &
RICE, PLLC, Charlotte, North Carolina, for Appellant.    Valerie
Blanche Spalding, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Don Willey, Jefferson,
North Carolina, for Appellant. Roy Cooper, Attorney General of
North Carolina, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Danny Dean Frogge appeals the district court’s denial of

his federal habeas corpus petition, by which he seeks to have

his North Carolina death sentence vacated.           Frogge contends that

he is entitled to such relief on the ground that his trial

counsel was constitutionally ineffective by failing to develop

and present, for sentencing purposes, mitigating evidence of his

permanent    organic   brain   damage.     As   explained    below,   we   are

constrained to affirm.



                                      I.

                                      A.

     It is undisputed that, on the night of November 4, 1994,

Frogge stabbed and killed his father, Robert Edward Frogge, and

his invalid stepmother, Audrey Yvonne Frogge.               In 1995, Frogge

was tried and found guilty in the Superior Court of Forsyth

County, North Carolina, on two counts of first-degree murder.

The jury then considered whether Frogge should receive the death

penalty for each of the murders.           On the jury’s recommendation,

Frogge was sentenced to life imprisonment for the killing of his

father, and to death for the murder of his stepmother.                     The

Supreme Court of North Carolina thereafter granted him a new

trial   on    the   ground     that   inadmissible    hearsay     had      been

                                      3
introduced during the guilt phase of the 1995 trial.                See State

v. Frogge, 481 S.E.2d 278 (N.C. 1997).

      At Frogge’s second trial in 1998, he was found guilty on

two   counts    of   first-degree   murder,   as   well   as   an   additional

count of robbery with a dangerous weapon.            Frogge was sentenced

to life imprisonment for the killing of his father, a concurrent

prison term for the robbery, and, on the jury’s recommendation,

received a death sentence for the murder of his stepmother.                 At

this trial, the jury had considered the death penalty only with

respect to his stepmother’s murder.           Frogge appealed his death

sentence and the robbery conviction, and the state supreme court

affirmed.      See State v. Frogge, 528 S.E.2d 893 (N.C. 2000).            The

state supreme court summarized the facts of the case as follows:

           The State’s evidence at defendant’s second trial
      tended to show that defendant stabbed his father and
      bedridden stepmother to death.       At the time of the
      murders,   defendant   lived    with    his   father   and
      stepmother    at   their     home     in    Winston-Salem.
      Defendant’s father did not work, and his stepmother
      had been confined to her bed for over two years.
      Defendant worked part-time and helped around the
      house, but paid no rent.

           Between 4:00 and 4:30 a.m. on 5 November 1994,
      the Winston-Salem Police Department received a 911
      call from a person who identified himself as Danny
      Frogge.   Frogge reported that his parents were dead.
      When Winston-Salem police officers arrived at the
      scene, they found the bodies of Robert and Audrey
      Frogge in their bedroom.   Robert Frogge was found on
      the floor lying on his left side with bloodstains on


                                      4
his shirt and arms. He had sustained ten stab wounds.
A leather wallet, containing his driver’s license and
miscellaneous papers but no money, was found next to
his body.    The wallet, which was lying open, had a
drop and a smear of blood inside. Near the wallet, a
white, bloodstained sock was found. An iron bar from
a lawnmower was found under Robert Frogge’s body.
Audrey Frogge was found in her hospital-type bed with
bloodstains on her chest and arms. She had sustained
eleven stab wounds to her chest.     In addition, she
suffered defensive knife wounds to her hand.         A
hospital-type rolling table stood beside the bed. Dr.
Patrick Lantz, a forensic pathologist, opined that the
angle of the stab wounds indicated the person stabbing
Audrey Frogge either stood at the edge of the bed
beside the table or climbed on the bed itself to
deliver the blows.

     Outside the home near the back porch, the
officers found a bloodstained butcher knife.     Just
beyond the edge of the woods behind the house, the
officers found men’s clothing, including a pair of
blue work pants, a pink tee shirt with red stains, a
pair of men’s underwear, and a white sock which
contained bloodstains and blood spatter.    The white
sock appeared to match the sock found near Robert
Frogge’s body.    The officers also collected several
pairs of white underwear and blue work pants from
defendant’s bedroom which appeared similar to those
found in the woods.

     While talking further with the officers that
night, defendant appeared calm and showed no signs of
emotion.    In a statement to Winston-Salem Police
Detective Sergeant Dennis Scales, defendant claimed
that on the day of the murders he had been in and out
of the house on numerous occasions taking care of his
stepmother and preparing her supper. After a night of
drinking and crack cocaine use with friends, he
returned to the home at approximately 4:00 a.m. and
found his parents murdered.




                          5
     The State also offered into evidence defendant’s
testimony from the sentencing proceeding of his first
trial. This testimony included the following: On the
day of the murders, defendant worked around the house
and later met with Earl Autrey, Audrey Frogge’s son-
in-law, at approximately 2:00 p.m.        The two began
drinking. Defendant went back to his parents’ home to
prepare supper for his stepmother and later returned
to Autrey’s home to continue drinking.     Subsequently,
defendant returned to his parents’ home.       Defendant
had consumed almost an entire pint of liquor and
several beers.    Defendant’s father awoke from a nap
between 8:00 and 8:30 p.m. and began to argue with
defendant about his drinking.      Defendant could not
recall what he said to his father; however, his father
became so upset that he took an iron bar from a
lawnmower and jabbed and hit defendant four or five
times.   Defendant got up, went to the kitchen, and
retrieved a butcher knife.    He recalled stabbing his
father three or four times while his father held the
iron bar.    Defendant did not remember stabbing his
stepmother, but admitted that he must have done it.
He then took approximately twenty-five or twenty-six
dollars from his father’s wallet. Defendant attempted
to wash the blood from his hands.       He then changed
clothes and threw the soiled clothes in the woods
behind the house. When asked how blood got inside his
father’s wallet, defendant stated that he did not
know, but admitted it might have dropped from his
hand. Defendant left and went to Kim Dunlap’s house.
He and Dunlap then rode with Dunlap’s sister to
downtown Winston-Salem. They used the money defendant
had taken from his father’s wallet to purchase crack
cocaine.    After smoking the crack, defendant and
Dunlap returned to defendant’s parents’ home in a
taxicab around 4:00 or 4:30 a.m.      Defendant entered
the house, but returned to the taxicab and said that
his parents were dead. He then called the police.

     Defendant elected to testify on his own behalf at
his second trial.   His testimony was similar to that
given at his first sentencing proceeding.           He
testified he served over four years in prison for a
previous second-degree murder conviction and that he


                           6
     saved $ 8,000 to purchase a mobile home where he
     resided for six months after his release.   Thereafter
     he returned to live with his father and stepmother.
     Defendant again admitted killing his father and
     stepmother and stated that after the murders, he
     changed his clothes and washed his hands.          His
     testimony differed somewhat in that defendant claimed
     he did not take the money from his father’s wallet
     until after he had washed his hands and was preparing
     to leave the house approximately thirty minutes after
     the murders.     Defendant again admitted purchasing
     crack cocaine with the money he took from his father’s
     wallet.

Frogge,    528   S.E.2d   at    895-96.          Following     the   state   supreme

court’s affirmance of Frogge’s death sentence for the murder of

his stepmother, the Supreme Court of the United States denied

Frogge’s petition for writ of certiorari.                     See Frogge v. North

Carolina, 531 U.S. 994 (2000).

                                           B.

     In    2001,   Frogge      filed   a       Motion   for    Appropriate    Relief

(“MAR”)    in    the   Superior   Court         of   Forsyth    County   (the   “MAR

court”), alleging, inter alia, ineffective assistance of trial

counsel.    The MAR court conducted an evidentiary hearing on the

ineffective assistance issue in August 2002 (the “MAR hearing”).

By its Order of October 29, 2003, the MAR court granted relief

to Frogge, ruling in his favor on the ineffective assistance

claim, thus vacating the death sentence he had received for the

murder of his stepmother and ordering a new sentencing hearing.



                                           7
State v. Frogge, No. 94 CRS 44964 (N.C. Super. Ct. Oct. 29,

2003) (the “MAR Order”).1

        As    described         by   the     MAR     court,     Frogge’s       ineffective

assistance claim “ar[ose] out of the alleged failure of trial

counsel to investigate and offer evidence that at the time of

the murders the defendant suffered permanent residual effects of

a head injury sustained from a beating in 1990.”                            MAR Order 8-9.

Frogge maintained that his trial counsel should have arranged

for   neurological         testing      to     assess   whether        the    1990   injury

resulted      in     permanent       organic    brain    damage       and    whether    such

brain       damage    contributed       to     the    murders    of    his     father    and

stepmother — an inquiry that, according to Frogge, “would have

resulted in an opinion from an adequately qualified expert that

as a result of [a brain damage-related] mental disturbance and

consumption of alcohol, the defendant’s capacity to appreciate

the criminality of his conduct and to conform his conduct to the

requirements         of   the    law   was     impaired.”        Id.    at    9   (internal

quotation marks omitted).              Frogge further contended

        that the failure to investigate, and to offer the
        evidence that would (or should) have been developed,
        was    objectively   unreasonable,   satisfying   the
        “performance” prong of the Strickland test.   He then

        1
      The MAR Order is found at J.A. 2124-52. (Our citations to
“J.A.    “ refer to the contents of the Joint Appendix filed by
the parties in this appeal.)


                                               8
       argue[d] that if the jury at the sentencing stage had
       been presented with this evidence, a reasonable
       probability   exists  that   the   ultimate  result —
       recommendation of the death penalty — would have been
       different, satisfying the “prejudice” prong.

Id.    at    9-10    (citing       Strickland     v.    Washington,     466     U.S.   668

(1984)).2

       The trial records and the MAR hearing evidence reflected

that Frogge was represented by lead counsel Danny Ferguson and

associate         counsel    David    Freedman     at    both   the    1995     and    1998

trials.       During the sentencing phase of the 1995 trial, Frogge’s

sisters       testified       to     changes      they     observed      in     Frogge’s

personality         after    the     1990    beating,     and   a     defense    expert,

clinical psychologist Dr. Gary Hoover, opined that the resulting

brain damage contributed to Frogge’s murders of his father and

stepmother.            Dr.        Hoover’s    methodology       and     opinion        were

challenged by the State’s rebuttal expert, neuropsychiatrist Dr.

Stephen I. Kramer, who perceived no link between the head injury

and the murders of Frogge’s parents.                    At least one juror on the

1995       jury   found     two    statutory      mitigating    circumstances          with

respect to each of the murders:                        that Frogge was under the


       2
      In its seminal Strickland decision, the Supreme Court
recognized that an ineffective assistance claim requires showing
(1) “that counsel’s performance was deficient,” and (2) “that
the deficient performance prejudiced the defense.” 466 U.S. at
687.


                                              9
influence of a mental or emotional disturbance at the time of

the offense, see N.C. Gen. Stat. § 15A-2000(f)(2) (the “‘(f)(2)’

mitigator”), and that he suffered from an impaired capacity to

conform his conduct to the requirements of the law, see id.

§ 15A-2000(f)(6)      (the    “‘(f)(6)’         mitigator”).       Thereafter,         for

the   1998   trial,    Frogge’s      counsel        replaced      Dr.   Hoover       with

another   expert,     clinical      psychologist      Dr.    William      Tyson,       who

testified during the guilt phase — in an attempt to avoid first-

degree murder convictions — that Frogge possibly suffered from a

personality   disorder       and    that    he    likely    had    been       acting    on

impulse   with     limited    ability      to     reason    at   the    time    of     the

murders; Dr. Tyson did not mention Frogge’s 1990 head injury or

opine on its effects.          The State again presented Dr. Kramer as

its rebuttal expert, and Frogge’s sisters again gave nonexpert

testimony    (during    the    sentencing          phase)    regarding        the    head

injury.      The    1998     jury   did     not     find    either      the    “(f)(2)”

mitigator or the “(f)(6)” mitigator with respect to the murder

of Frogge’s stepmother.3


      3
      The jury at the 1995 trial had found four aggravating
circumstances with respect to each of the murders, including
that Frogge had previously been convicted of a violent felony
(i.e., second-degree murder in 1985), that the murders of his
father and stepmother occurred during the commission of a
robbery, that these murders were “especially heinous, atrocious,
or cruel,” and that each murder was part of a course of conduct
in which Frogge engaged in a separate violent crime against

                                           10
     In its MAR Order, the MAR court made the following findings

of fact, based on the evidence presented to it:

          1.   For the 1995 trial, the defendant’s trial
     counsel   engaged   and   offered testimony from  a
     psychologist, Dr. Hoover.




another person. J.A. 669-70, 679-80. The 1995 jury also found
— in addition to the statutory “(f)(2)” and “(f)(6)” mitigators
discussed above — ten other mitigating circumstances regarding
the murder of Frogge’s father:    Frogge had been physically and
emotionally abused as a child by his father; had been sold as a
child by his father to another man for purposes of child
molestation; had helped to cook for and look after his father
and stepmother; had committed the murders after being provoked
by his father; had consumed alcohol at the time of the murders;
had been under the influence of alcohol at that time; had a
lengthy history of drug and alcohol abuse; had admitted his
guilt; had made no attempt to flee or evade arrest after the
murders; and had made himself available to the investigating
officers.   The jury found six of these additional mitigating
circumstances with respect to the murder of Frogge’s stepmother.
For both murders, the jury concluded that the mitigating
circumstances were insufficient to outweigh the aggravating
ones. The jury recommended the death penalty, however, for only
the murder of Frogge’s stepmother.

     The jury at the 1998 trial — which considered the death
penalty with respect to only the stepmother’s murder — found the
same four aggravating circumstances that had been found by the
1995 jury.      The 1998 jury also found the following six
mitigating circumstances:   that Frogge had been physically and
emotionally abused as a child by his father; had, during his
childhood,    repeatedly   watched    his   father    physically,
emotionally, and sexually abuse his mother and sisters; had a
lengthy history of drug and alcohol abuse; had admitted his
guilt; had adjusted well to being in custody; and had made
himself available to the investigating officers. Of course, as
a prerequisite to its recommendation of the death penalty, the
jury   also  found   that  the   mitigating  circumstances   were
insufficient to outweigh the aggravating circumstances.


                               11
      2.   Dr. Hoover testified in the form of opinion
that at the time of the homicides in 1994, the
defendant suffered from “[d]elirium due to multiple
etiologies, substance intoxication delirium, alcohol
[sic]    and   mood  disorder  due  to   postconcussive
disorder.”

     3.    Dr. Hoover described the latter as “the
aftermath of a head injury that [Frogge] sustained in
1990 that left him with residual mood difficulties and
cognitive functions, intellectual skills . . . [that]
caused him to have episodic seizures, slurred speech
and increased irritability, more withdrawn type of
personality, episodes of paranoia over the years.”

     4. In Dr. Hoover’s opinion, the “postconcussive”
disorder combined with substance-induced delirium to
produce explosive rage provoked by the defendant’s
father.

     5.   Dr. Hoover based his diagnosis in part on
“known”   correlation   between  “residual    behavioral
difficulties” and head injuries, and the descriptions
provided   to  him   of   marked  differences   in   the
defendant’s behavior after the injury.

     6. During cross-examination, Dr. Hoover admitted
that he had done no neurological or neuropsychological
testing of the defendant, stating that medical records
and behavioral information provided were sufficient
for the “diagnosis.”

     7.   The State offered rebuttal expert testimony
from Dr. [K]ramer, a neuropsychiatrist, who disagreed
with Dr. Hoover’s opinion concerning “delirium.”

     8.     Dr.   [K]ramer  said   that  Dr.   Hoover’s
conclusions were “not supported,” and lacked “data.”

     9.    Dr. [K]ramer’s own review of the medical
records concerning the 1990 head injury did not
support a conclusion that it had any effect on the
defendant in 1994.




                          12
     10. Dr. [K]ramer testified that tests could have
been done on the defendant to determine whether the
head injury contributed to the homicides in 1994, but
that none were done.

     11.   At the 1995 sentencing phase, the “(f)(2)”
and “(f)(6)” mitigators were submitted to the jury,
and were found by at least one juror; however, with
respect to the murder of Audrey Frogge, the jury did
not find that the mitigating factors found outweighed
the aggravating factors, and recommended death.

     12.   For the 1998 trial, defense counsel elected
not to use Dr. Hoover again, and engaged another
psychologist, Dr. Tyson.

     13.   During the 1998 trial, Dr. Tyson testified
that at the time of the homicides, the defendant
suffered from a “personality disorder . . . defined as
a pervasive limitation to adult functioning that had
been aggravated by long term substance abuse and
dependence,” as a result of which “it was most likely
he would have been acting on impulse with limited
ability to reason.”

     14.   Dr. Tyson did not perform or request    any
neurological   or  neuropsychological   tests on   the
defendant, and none were done. His diagnosis was   not
supported by reliance on any such tests, review     of
medical records concerning the 1990 head injury     or
descriptions by family and friends of changes in   the
defendant’s behavior after that injury.

     15.   Lay witnesses who testified during the 1998
trial described changes in the defendant’s behavior
after the 1990 head injury.

     16.    During the 1998 sentencing phase, which
pertained only to the Audrey Frogge murder, the
“(f)(2)” and “(f)(6)” mitigators were submitted to the
jury, but neither was found, and the jury again
recommended death.




                          13
     17. Trial counsel decided not to use Dr. Hoover
in favor of Dr. Tyson because of dissatisfaction with
Dr. Hoover and respect for Dr. Tyson’s abilities.

     18.    Claudia R. Coleman, Ph.D., a psychologist
specializing     in   neuropsychology    and  forensic
psychology,    reviewed   various   written  materials
concerning the defendant and conducted physical and
other examinations of the defendant in preparation for
the MAR hearing.

     19.   Among the materials reviewed by Dr. Coleman
were portions of the record of the 1995 and [1998]
trials (including testimony of Drs. Hoover, [K]ramer
and Tyson), the defendant’s criminal record and
affidavits from family members and friends.   She also
reviewed a psychological report done by Dr. Tyson in
1998 and medical records that included information
about the 1990 head injury.

     20.   Dr. Coleman also personally met with the
defendant twice, and performed a neuropsychological
evaluation to determine if he suffered residual
deficits from the head injury.

     21.    Dr. Coleman testified that the defendant
suffered a closed head injury, that he spent several
days in the hospital, that he was “in and out” of
clear mental status during that time, that at
discharge he had speech and memory problems, that he
became   “more    explosive”  and   was  more   “easily
agitated,”   that   he   had a    lower tolerance   for
frustration, that he became more withdrawn, and that
he became “quite paranoid and fearful of others.”

     22.   Dr. Coleman administered several tests on
the   defendant,    including   the    Weschler   Adult
Intelligence Scale, the Weschler Memory Scale and the
Rhey Auditory Verbal Learning Test.     She also tested
motor, visual, spatial and language skills, and
performed brain injury-specific tests.        She also
administered tests to detect evidence of malingering.

       23.  Dr. Coleman observed that the defendant did
well    on some of the tests, and poorly on others,

                           14
particularly in verbal and visual memory processes.
She considered these results to be consistent with
brain injury in the temporoparietal area, which was
the area involved in the 1990 head injury.

     24.     Based on her review of the materials
provided to her, her examination of the defendant,
including   test   results,   and  her   education   and
training, Dr. Coleman diagnosed the defendant with
“cognitive disorder NOS [not otherwise specified],”
personality disorder, combined type, with paranoid and
aggressive    features,     and   with    “polysubstance
dependence.”   The cognitive and personality disorders
were causally linked to the head injury.

     25.    Dr. Coleman formed an opinion that the
residual effects of the defendant’s brain injury in
1990 significantly affected his behavior at the time
of the Audrey Frogge murder. She concluded that these
effects made it more difficult for the defendant to
control his emotions and impulses, and to consider the
consequences of his conduct.

     26. In Dr. Coleman’s opinion, at the time of the
Audrey Frogge murder, partially as a result of the
brain injury, the defendant suffered from diminished
capacity   fully   to    weigh   and   understand  the
consequences of his actions.    She further determined
that he committed the murder while under the influence
of such conditions and that his ability to appreciate
the criminality of his conduct and conform that
conduct to the requirements of law was impaired.

     27.   Thomas M. Hyde, M.D., Ph.D., a neurologist,
conducted a neurological evaluation of the defendant
in June 2002, and reviewed Dr. Coleman’s report,
affidavits, hospital records and a portion of trial
transcript.      He   observed   several   abnormalities,
including   attention    and   visual   deficits,   motor
weakness and clumsiness.        He concluded that the
defendant has organic brain damage, referable to the
frontal and parietal lobes, resulting from the 1990
head injury.     In his opinion, the defendant had a
significant closed head injury in 1990 that produced
permanent and irreversible brain damage, which under

                           15
     extreme distress would lead him to act impulsively,
     with impaired judgment, reasoning and impulse control.

          28.   If the defendant’s trial counsel had been
     aware of Dr. Hyde’s opinions in 1998, and if Dr. Hyde
     were available as a witness and counsel was otherwise
     satisfied that Dr. Hyde was a credible expert, he
     would have used Dr. Hyde’s opinion at trial.

MAR Order 10-16 (internal citations omitted) (some alterations

in original).

     Turning      to   the        performance    prong     of    the   Strickland

analysis,   the    MAR    court      focused     heavily    on   two   decisions:

Wiggins v. Smith, 539 U.S. 510 (2003) (concluding petitioner

entitled to habeas corpus relief based on counsel’s failure to

investigate     and    present      available     mitigating     evidence),   and

Byram v. Ozmint, 339 F.3d 203 (4th Cir. 2003) (distinguishing

Wiggins   and   finding      no    ineffective    assistance,     where   counsel

conducted thorough investigation and made strategic decision not

to present potentially damaging evidence).                 See MAR Order 19-22.

The MAR court concluded that

    [t]he circumstances here are more similar to Wiggins
    than to Byram. Counsel knew of Frogge’s head injury,
    but did not investigate with the assistance of expert
    consultation the potential mitigation evidence of
    “organic brain damage” and its effects on his ability
    to control violent impulses.    Counsel here had the
    “benefit” of Dr. [K]ramer’s criticism of Dr. Hooper’s
    testimony in the 1995 trial — the “roadmap” that post-
    conviction counsel now say was available.   While true
    that the effects of Frogge’s head injury include anti-
    social behavior that could be damaging to his case,
    trial   counsel’s  failure  to  investigate   was  not

                                         16
      influenced by that circumstance.   Like trial counsel
      in Wiggins, Frogge’s trial counsel turned their focus
      to other concerns, and were “inattentive” to the
      potential mitigating evidence arising out of the head
      injury.   Frogge had the benefit of good lawyers with
      experience in capital cases, but Wiggins compels the
      conclusion that their failure to pursue the evidence
      of organic brain injury as has now been done in post-
      conviction proceedings was objectively unreasonable.
      From the evidence, applying applicable case law, this
      Court concludes that the defendant has met the burden
      of proof on the performance prong of the Strickland
      test.

Id. at 22-23.         Next, with respect to the prejudice prong of the

Strickland       analysis,        the     MAR        court        determined     that,

“[c]onsidering all of the circumstances, . . . the evidence of

the   effects    of     organic   brain    injury      is    of    such    nature    and

potential    persuasive       effect      that       the    lack    of    it   due   to

ineffective assistance undermines confidence in the fairness of

the 1998 sentencing phase.”             Id. at 29.           Accordingly, the MAR

court ruled that “[t]he MAR for a new sentencing hearing should

be granted.”     Id.

                                          C.

      The State appealed the MAR Order to the Supreme Court of

North Carolina.         By its decision of February 4, 2005, the state

supreme court reversed the MAR court and reinstated Frogge’s

death sentence.         See State v. Frogge, 607 S.E.2d 627 (N.C. 2005)

(the “State Decision”).           In so doing, the state supreme court

recognized      that,    in   reviewing        the    MAR    Order,      the   relevant

                                          17
questions were “whether the findings of fact are supported by

evidence, whether the findings of fact support the conclusions

of law, and whether the conclusions of law support the order

entered by the [MAR] court.”          Id. at 634 (internal quotation

marks omitted).    The state supreme court ultimately reversed the

MAR court by finding fault with its analysis on the performance

prong of the Strickland test, without reaching the prejudice

prong.   Id. at 637.

     The   state   supreme   court    began    its   State   Decision   by

reviewing the relevant factual and procedural history — covering

the 1995 trial, the 1998 trial, and the MAR court proceeding.

See Frogge, 607 S.E.2d at 628-33.             In substantial part, the

state supreme court focused on matters beyond those discussed in

the MAR Order.     For instance, essential to its State Decision,

the state supreme court observed the following with respect to

the pretrial investigatory efforts made by Frogge’s lawyers:

     [W]hile   preparing    for  defendant’s   second   trial,
     defense counsel provided Dr. Tyson with their entire
     discovery file; advised him as to defendant’s head
     injury,   the   resulting   perceived   changes  in   his
     personality, and the significance that family members
     placed on the injury; and made available to him
     defendant’s medical records. The material supplied to
     Dr. Tyson also included the testimony given at [the
     1995 trial] by Drs. Hoover and Kramer, and attorney
     Freedman believed that Dr. Tyson testified in [the
     1998 trial] that he had reviewed this testimony. Even
     possessing    this   information,   Dr.   Tyson   advised


                                     18
attorney Ferguson     that   he   would   not   change     his
diagnosis.

     In deciding prior to [the 1998 trial] whether to
pursue   evidence   of   defendant’s   head   injury   as
potentially   mitigating   evidence,    defense   counsel
testified that they depended on Dr. Tyson’s expertise.
Although attorney Ferguson acknowledged during the MAR
hearing that he knew Dr. Tyson was not a neurologist
or neuropsychologist and could not render neurological
opinions, he added, “I think he had the ability to
tell me that if it was significant where we should go
next.    And he didn’t indicate that there was any
significance, that [the head injury] was significant.
So, I relied on what he said.”      When cross-examined,
attorney Ferguson reaffirmed that he depended on Dr.
Tyson’s informed opinion:

          Q. Now, I think you made it clear this
     morning, I just want to be sure, that you
     advised Doctor Tyson, or discussed with him
     more than once, the concerns of the family
     members about the personality changes they
     observed in the Defendant after the beating
     in 1990, is that correct?

          A.   Yes.

          Q.   And you asked him whether that was
     significant, in his opinion?

          A.   Yes.

          Q.   And he was firm on saying no, it
     would not change my diagnosis, was he not?

          A.   Yes.

          Q.   And you felt entitled to rely on
     the superior knowledge of an expert?

          A.   That’s correct.

Attorney Ferguson reemphasized the point          during    a
similar exchange later in the hearing:

                             19
                Q.   Doctor Tyson did not specifically
           focus on the head injury, did he?

                A.   No, and as I’ve said earlier, he
           was told about it, provided the information,
           and did not deem it significant.

                Q.   Yes, sir.   And yet he made that
           decision without [the] benefit of any type
           of    neurological  or    neuropsychological
           testing?

                A. Yes, sir, I assume that he had the
           — at least the qualifications to make that
           decision, whether neurological testing might
           be needed; and he was much more qualified to
           make that decision than I was, and [w]e
           relied on his opinion.

     All this testimony indicates that defense counsel
     relied both on Dr. Tyson’s diagnosis of defendant’s
     condition and on his informed opinion that additional
     testing or experts were not needed.

Id. at 632-33 (some alterations in original).

     Turning to its analysis of Frogge’s ineffective assistance

claim, and invoking the Supreme Court’s decisions in Strickland

and Wiggins, the state supreme court emphasized the proposition

that a court must “review counsel’s[] decisions in light of the

information    available   to   them    at   the   time   and    not    with   the

benefit   of   hindsight.”      Frogge,      607   S.E.2d   at    634    (citing

Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 689).                        The

state supreme court then observed

     that   counsel    had  numerous         pertinent   factors  to
     consider    as    they   decided         their    strategy  for

                                       20
     defendant’s second sentencing proceeding.        First,
     defendant had committed a murder prior to suffering
     the head injury.     Second, graphic lay evidence of
     defendant’s 1990 head injury and its sequelae had been
     presented through his sisters and others close to him
     at the [1995] trial and would be presented again.
     Third, at the [1995] sentencing proceeding, Dr. Hoover
     had presented an expert psychological opinion that
     took into account both defendant’s head injury and his
     background.   The sentencing jury, having heard that
     evidence, returned a capital verdict.      Fourth, Dr.
     Kramer criticized Dr. Hoover for failing to conduct
     additional psychological testing that might determine
     whether defendant’s head injury was a contributing
     factor to the murders. However, Dr. Kramer went on to
     state that, in his opinion, the 1990 injury was of
     mild to moderate severity and defendant’s prognosis on
     discharge was good, implying that the additional
     psychological testing was unlikely to bear fruit. Dr.
     Kramer did not indicate that in preparation for trial
     defendant should have been tested for organic brain
     damage or neurological harm resulting from the 1990
     head injury. Fifth, defense counsel were dissatisfied
     with Dr. Hoover’s performance in [the 1995 trial] and
     replaced him with Dr. Tyson, who had been an effective
     witness in the past for attorney Freedman.         When
     supplied with defendant’s medical and social histories
     and with transcripts of the proceedings in [the 1995
     trial], Dr. Tyson stood by his opinion that defendant
     suffered from a personality disorder and, at the time
     of the murders, was acting on impulse with limited
     ability to reason.

Id. at 634-35.    After outlining these factors, the state supreme

court   recognized     that     “we    must    now    decide     whether,    under

Wiggins,    the   trial     court     properly       concluded    that      defense

counsel’s   decision      not   to    pursue   evidence    of     organic    brain

damage through neurological testing was objectively unreasonable




                                        21
and undermined confidence in the verdict.”     Id. at 635.     The

state supreme court engaged in this assessment as follows:

          The test in Wiggins is whether a strategic
     decision was made after sufficient investigation, not
     whether that decision was later proven to be correct.
     Unlike counsel in Wiggins, who abandoned the idea of
     pursuing a defense based on mitigation after reviewing
     only   a   psychological  report,   [social   services]
     records, and a presentence investigation report,
     defense counsel here interviewed defendant and his
     siblings and obtained defendant’s school records,
     hospital records, correctional systems records, and
     psychological reports.      Thus, defendant’s counsel
     cannot be said to have “acquired only rudimentary
     knowledge of [defendant’s] history from a narrow set
     of sources.”   Wiggins, 539 U.S. at 524.    Defendant’s
     attorneys also had the benefit of watching the first
     trial unfold and seeing what worked and what did not.
     Specifically, a defense which took defendant’s head
     injury into account had been unsuccessful.      By the
     time defense counsel were preparing for defendant’s
     second trial, they had consulted two mental health
     experts, Drs. Hoover and Tyson, both of whom had full
     access to defendant, his family, and the pertinent
     medical records of defendant’s head injury, and
     neither of whom recommended neurological testing.

          In addition, defense counsel testified that they
     depended on Dr. Tyson to advise them whether or not
     additional testing of defendant was needed but that,
     after receiving all the information from the first
     trial, Dr. Tyson stuck by his original diagnosis of
     defendant.    This testimony indicates that defense
     counsel were prepared to seek such testing if they had
     adequate reason to believe it was necessary or would
     be useful.

Frogge, 607 S.E.2d at 635.    Finally, after surveying decisions

in what it deemed to be analogous cases, the state supreme court

concluded as follows:


                               22
        [W]here the record demonstrates (1) defense counsel
        fully investigated defendant’s social and medical
        history and provided that information to Drs. Hoover
        and Tyson, (2) neither expert indicated to counsel a
        necessity for neurological testing, and (3) counsel
        relied on their experts as they made the difficult but
        necessary choices as to which theory of defense to
        pursue, we are unwilling to find that the decisions of
        defendant’s    attorneys     constituted    ineffective
        assistance of counsel or represented inattention to
        other possible defenses.      Accordingly, we conclude
        that defense counsel did not prematurely abandon a
        defense based on organic brain damage and that their
        election to pursue a defense predicated on other
        grounds   constituted   a   “‘reasonable   professional
        judgment[].’”    Wiggins, 539 U.S. at 533 (quoting
        Strickland, 466 U.S. at 691).

Frogge,       607     S.E.2d    at   637   (second    alteration     in    original).

Thus, without reaching the prejudice prong of the Strickland

test,    the        state    supreme    court    reversed   the     MAR    court    and

reinstated Frogge’s death sentence.                Id. at 637-38.

                                            D.

        In     June    2005,    Frogge     filed   his    federal    habeas    corpus

petition in the Middle District of North Carolina, asserting,

inter        alia,    his    ineffective     assistance     claim,    by    which    he

challenges           his    death    sentence.       On   March     28,    2006,    the

magistrate judge recommended that Frogge’s petition be denied.

See Frogge v. Polk, No. 1:05-cv-00502 (M.D.N.C. Mar. 28, 2006)




                                            23
(the       “Recommendation”).4           With    respect   to        the   ineffective

assistance claim, the magistrate judge concluded that

       [a] review of the record supports the ruling of the
       North Carolina Supreme Court; trial counsel’s decision
       not to pursue evidence of organic brain damage through
       neurological testing was not contrary to or an
       unreasonable application of Strickland or its progeny.
       There is no requirement to ‘shop around’ for a more
       favorable expert opinion and the hindsight of a later
       obtained diagnosis does not render representation
       ineffective.   Even assuming arguendo that this court
       in its independent judgment believed that trial
       counsel   were   in  error  for   failing  to   pursue
       neurological testing, the deferential standard of
       review under the [1996 Antiterrorism and Effective
       Death Penalty Act] precludes relief.    As noted, the
       North Carolina Supreme Court’s decision is neither
       unreasonable nor substantially different from relevant
       United States Supreme Court precedent.       [Frogge’s
       ineffective assistance claim] should, therefore, be
       denied.

Recommendation 19-20 (internal citations omitted).                         On June 5,

2006, the district court summarily adopted the Recommendation in

a two-page Order, thus rejecting Frogge’s ineffective assistance

claim       and    denying   his   federal      habeas   corpus      petition.      See

Frogge v. Polk, No. 1:05-cv-00502 (M.D.N.C. June 5, 2006).5                         The

district court also denied Frogge a certificate of appealability

(“COA”).6         On February 22, 2008, however, we granted Frogge a COA


       4
      The         magistrate   judge’s    Recommendation        is    found   at   J.A.
2325-49.
       5
           The district court’s Order is found at J.A. 2359-60.
       6
           By its Order, the district court sua sponte denied Frogge a

                                           24
on his ineffective assistance claim.     We possess jurisdiction

over Frogge’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253.




COA.    Frogge thereafter filed a motion to alter or amend
judgment.   On July 19, 2006, the magistrate judge recommended
that the motion be denied with respect to Frogge’s request
therein to revisit the merits of his ineffective assistance
claim, but granted with respect to his request to delete the
denial of the COA and replace it with language recognizing
Frogge’s right to seek a COA within thirty days. On October 24,
2007, the district court adopted the magistrate judge’s
recommendations.    Frogge then filed an application in the
district court for a COA, which was rejected by the district
court on December 22, 2007.


                               25
                                        II.

      We   review   de    novo   a   district    court’s   denial     of   federal

habeas corpus relief on the basis of a state court record.                     See

Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003).                       Because

the Supreme Court of North Carolina adjudicated Frogge’s habeas

corpus claim on the merits, the State Decision is entitled to

deference pursuant to the 1996 Antiterrorism and Effective Death

Penalty Act (“AEDPA”).           See 28 U.S.C. § 2254(d).           Under AEDPA,

we may award relief only if (1) the state court adjudication of

the   issue    on   its   merits     “resulted    in   a   decision    that    was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the   United   States”;     or   (2)   the     adjudication   “resulted       in   a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”        Id.      State     court    factual    determinations      are

presumed to be correct and may be rebutted only by clear and

convincing evidence.       Id. § 2254(e)(1).



                                       III.

      Frogge contends that we should vacate his death sentence

under 28 U.S.C. § 2254(d), because the State Decision “involved

an unreasonable application of” Supreme Court precedent — in

                                        26
that the state supreme court “identifie[d] the correct governing

legal     principle    from    [the    Supreme]   Court’s     decisions     but

unreasonably applie[d] that principle to the facts of” his case,

Williams v. Taylor, 529 U.S. 362, 413 (2000) — and also because

the State Decision “was based on an unreasonable determination

of the facts in light of the evidence presented in the” MAR

court proceeding.       As discussed above, the state supreme court

reversed the MAR court by finding fault with its analysis on the

performance prong of the Strickland test, without reaching the

prejudice prong.       See Strickland v. Washington, 466 U.S. 668,

687   (1984)    (recognizing    that   an   ineffective    assistance     claim

requires showing (1) “that counsel’s performance was deficient,”

and     (2)    “that   the    deficient     performance     prejudiced      the

defense”).      In so doing, the state supreme court largely relied

on the Strickland analysis in Wiggins v. Smith, 539 U.S. 510

(2003).       See State v. Frogge, 607 S.E.2d 627, 635 (N.C. 2005)

(observing that “[t]he test in Wiggins is whether a strategic

decision was made after sufficient investigation, not whether

that decision was later proven to be correct”).

      The state supreme court concluded, in short, that trial

counsel’s decision to abandon further pursuit of evidence of

Frogge’s permanent organic brain damage was not the result of an

insufficient      investigation.        Rather,   the     court   ruled    that

                                       27
counsel      exercised       reasonable       professional     judgment          by    “fully

investigat[ing]            defendant’s        social     and   medical      history”        —

alerting counsel to the 1990 head injury — “and provid[ing] that

information” to defense experts Dr. Hoover (for the 1995 trial)

and Dr. Tyson (for the 1998 trial).                      Frogge, 607 S.E.2d at 637.

When    “neither          expert   indicated        to   counsel     a    necessity       for

neurological testing,” it was then reasonable for “counsel [to

rely] on their experts as they made the difficult but necessary

choices as to which theory of defense to pursue.”                          Id.        Indeed,

as the supreme court recognized, counsel did not know at the

time they were preparing for the 1998 trial whether — as Dr.

Hoover had testified at the 1995 trial without having performed

neurological         tests     —     Frogge    truly      suffered       from    permanent

organic brain damage which contributed to the murders of his

father       and    stepmother.          Dr.       Hoover’s    testimony         had     been

discredited by the State’s expert, Dr. Kramer, who himself had

opined that there was no link between the head injury and the

murders.          Thereafter, counsel provided information to Dr. Tyson

about       the    head     injury,     and    Tyson      convinced      them     that     no

additional testing or experts were needed.

       In    seeking       federal    habeas       corpus   relief,      Frogge       asserts

that    his       trial    counsel    provided       constitutionally           ineffective

assistance at the 1998 trial by:                    relying on Dr. Tyson, who was

                                              28
neither a medical doctor (much less a neurologist) nor qualified

to perform neurological or neuropsychological tests; allowing a

long delay between the grant of the retrial (on March 7, 1997)

and Dr. Tyson’s two examinations of Frogge (on February 16 and

March 9, 1998); receiving Dr. Tyson’s report on March 12, 1998,

just two days before the new trial began (on March 14, 1998) and

two weeks before Tyson testified (on March 26, 1998); advising

Dr. Tyson of the head injury only after February 16, 1998;7 and

failing to actually provide Dr. Tyson with — rather than merely

offering        to     make    available    to   him   —   pertinent     documents,

including        head    injury-related      medical   records     and   statements

from       Frogge’s     family    members.       According    to    Frogge,     “the

circumstances surrounding Dr. Tyson’s selection and evaluation

lead       to   only    one    reasonable    conclusion:      defense     counsel’s

failure to discover this evidence [of permanent organic brain

damage] was the result of inattention and neglect, not ‘sound,

evidence-based judgment.’”             Br. of Appellant 31 (quoting Meyer

v. Branker, 506 F.3d 358, 371 (4th Cir. 2007) (recognizing that

“the       touchstone     of    effective    representation      must    be   sound,

       7
      Lead counsel Ferguson testified at the MAR hearing that he
“remember[ed] calling Doctor Tyson, who had already conducted
some . . . testing and done an evaluation, or was in the process
of doing an evaluation, and telling Doctor Tyson that this [head
injury] might be significant, and asking him did I need to do
anything. How did that affect his evaluation?” J.A. 1875.


                                            29
evidence-based judgment, rather than a set of mandates counsel

must programmatically follow without deviation”)).

     Unfortunately for Frogge, although we might be inclined to

rule favorably on his ineffective assistance claim if we were

assessing it under a less deferential standard of review, we

cannot say that the State Decision “involved an unreasonable

application of” Supreme Court precedent, as required by AEDPA to

grant federal habeas corpus relief.               28 U.S.C. § 2254(d); see

also Williams, 529 U.S. at 409 (“Stated simply, a federal habeas

court making the ‘unreasonable application’ inquiry should ask

whether    the    state     court’s   application     of   clearly    established

federal    law     was     objectively     unreasonable.”).       The   relevant

precedent certainly includes Strickland and Wiggins, in which

the Supreme Court instructed:

     “[S]trategic choices made after thorough investigation
     of law and facts relevant to plausible options are
     virtually unchallengeable; and strategic choices made
     after less than complete investigation are reasonable
     precisely to the extent that reasonable professional
     judgments support the limitations on investigation.
     In other words, counsel has a duty to make reasonable
     investigations or to make a reasonable decision that
     makes particular investigations unnecessary.     In any
     ineffectiveness case, a particular decision not to
     investigate    must    be   directly    assessed    for
     reasonableness in all the circumstances, applying a
     heavy measure of deference to counsel’s judgments.”

Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at

690-91).         The     Wiggins   Court    further   explained      that,   “[i]n

                                           30
assessing the reasonableness of an attorney’s investigation, . .

. a court must consider not only the quantum of evidence already

known to counsel, but also whether the known evidence would lead

a reasonable attorney to investigate further.”                         Id. at 527.

       In the circumstances presented here, it was not objectively

unreasonable       for       the     state     supreme       court    to     determine,       in

reliance on Strickland and Wiggins, that Frogge’s trial counsel

made a valid strategic choice not to further pursue evidence of

permanent       organic       brain    damage       once    they     informed       Dr.    Tyson

about     the    1990        head    injury     and    he     declined        to    recommend

additional testing or experts.                      Cf. Wilson v. Greene, 155 F.3d

396,    403     (4th    Cir.    1998)    (observing          that,    where    counsel       had

received psychologist’s report opining that defendant was not

mentally ill at time of offense, “counsel was not required to

second-guess           the     contents        of     this     report,”        but        rather

“understandably decided not to spend valuable time pursuing what

appeared to be an unfruitful line of investigation” (internal

quotation marks omitted)).                We conclude that the State Decision

was    not    objectively           unreasonable      despite        the    known    lack     of

qualifications on the part of Dr. Tyson to perform neurological

or neuropsychological tests; that is, it was not objectively

unreasonable for the state supreme court to accept counsel’s MAR

hearing       testimony        that     they     believed       Dr.        Tyson    at     least

                                               31
possessed      the     ability     to      determine     whether       such     testing   was

necessary and justifiably relied on his view in this regard.                               We

also       conclude    that     the      State     Decision      was    not     objectively

unreasonable         regardless       of    the    circumstances         of    Dr.     Tyson’s

evaluation of Frogge and consultation with counsel — including

the timing thereof — which Frogge has not sufficiently shown to

have influenced Dr. Tyson’s expert opinion and advice.

       In addition to rejecting the proposition that the State

Decision “involved an unreasonable application of” Supreme Court

precedent, we also cannot say that the State Decision “was based

on an unreasonable determination of the facts in light of the

evidence      presented       in   the”     MAR    court   proceeding.            28   U.S.C.

§ 2254(d); see also Wiggins, 539 U.S. at 528 (recognizing that a

clear factual error “reflects ‘an unreasonable determination of

the    facts’”        under    § 2254(d),         and    that,     in    the     particular

circumstances before it, the state court’s “partial reliance on

an     erroneous        factual         finding      further       highlight[ed]          the

unreasonableness         of     the      state     court’s       decision”).           Frogge

attacks       several         aspects       of     the     state        supreme        court’s

characterization          of       the      facts,       including        the     following

observations:

       •       “[D]efense counsel provided Dr. Tyson with their
               entire discovery file . . . and made available to


                                              32
                him defendant’s           medical    records,”     Frogge,      607
                S.E.2d at 632;

       •        “The material supplied to Dr. Tyson also included
                the testimony given at [the 1995 trial] by Drs.
                Hoover and Kramer, and attorney Freedman believed
                that Dr. Tyson testified in [the 1998 trial] that
                he had reviewed this testimony,” id.; and

       •        “By the time defense counsel were preparing for
                defendant’s second trial, they had consulted two
                mental health experts, Drs. Hoover and Tyson,
                both of whom had full access to defendant, his
                family, and the pertinent medical records of
                defendant’s head injury, and neither of whom
                recommended neurological testing,” id. at 635
                (emphasis added).

According to Frogge, these observations reflect that the state

supreme         court    based      its    State     Decision     on    the    erroneous

propositions that counsel had actually provided Dr. Tyson with

pertinent         documents,        including       head   injury-related        medical

records and statements from Frogge’s family members, and that

Dr. Tyson had reviewed all of the 1995 trial testimony of Drs.

Hoover and Kramer.             Frogge asserts that, in fact, Dr. Tyson did

not    receive        copies   of   the    medical    records     and   family    member

statements, and his own testimony at the 1998 trial indicated

that       he   did     not    fully      review    the    1995   expert      testimony.

Although we can understand how one might interpret the somewhat

ambiguous State Decision as Frogge has, a close reading reflects

that the state supreme court merely observed (with support in

the record) that counsel provided Dr. Tyson with an undefined

                                             33
“discovery file” and the expert testimony from the 1995 trial;

told him about the 1990 head injury, thereby providing him with

the relevant information; and made available to him pertinent

medical records and family member statements.                          The state supreme

court further observed that counsel believed Dr. Tyson reviewed

the    1995     expert   testimony,       and    that     counsel       decided    not     to

pursue      the    permanent       organic       brain     damage       evidence        after

informing Dr. Tyson of the head injury and being advised by him

that   no      further   testing     or    experts       were    needed.        The     state

supreme court did not aver that counsel actually provided Dr.

Tyson with the medical records and family member statements, or

that     Dr.    Tyson    fully      reviewed      the     1995     expert       testimony.

Accordingly,       the   state      supreme      court     made    no     clear    factual

errors.

       Finally, Frogge takes issue with the state supreme court’s

suggestion        that   counsel’s        decision       to      forego       testing     for

permanent organic brain damage was informed, at least in part,

by the “failure” of the head injury defense in the 1995 trial.

See,    e.g.,     Frogge,     607      S.E.2d    at     635     (observing       that,    in

preparing       for   the   1998     trial,      counsel        “had    the    benefit     of

watching the first trial unfold and seeing what worked and what

did    not[,      including      the      unsuccessful]          defense       which     took

defendant’s head injury into account”).                       Although we agree with

                                            34
Frogge that the record does not support the proposition that

counsel’s 1998 trial strategy was based on the failure of the

1995 head injury defense, any contrary suggestion by the state

supreme court is not ultimately necessary to its bottom-line

conclusion that counsel reasonably relied on the advice of Dr.

Tyson.



                                  IV.

     Pursuant to the foregoing, we must affirm the Order of the

district   court   denying   Frogge’s   petition   for   federal   habeas

corpus relief.

                                                               AFFIRMED




                                  35
GREGORY, Circuit Judge, dissenting:

       Because    “[d]eath        is       different[,]”      Gregg        v.    Georgia,         428

U.S.     153,    188     (1976),           an   attorney’s         failure           to    present

mitigating       evidence       in     a    capital        case    takes        on    heightened

significance.           Strickland v. Washington, 466 U.S. 668 (1984).

While my colleagues provide a thorough recitation of the facts,

they     fall    short      in       applying        the     Sixth       Amendment,             which

guarantees every defendant effective assistance of counsel.                                     Id.

       Strickland and its progeny establish that trial counsel is

constitutionally obligated to provide effective assistance and

to comport with prevailing professional norms.                                  Id.         Counsel

must also investigate and introduce mitigating evidence unless

he or she could “reasonably surmise” that evidence “would be of

little help.”           Id. at 699; Wiggins v. Smith, 539 U.S. at 525

(holding       that     counsel’s          failure     to     investigate             mitigation

evidence was ineffective but noting that further investigation

is excusable where counsel has evidence suggesting it would be

fruitless).       In capital cases where a defendant does not claim

actual    innocence       and     the       jury     only    has     one    choice          –    life

imprisonment       or    death,        counsel’s       sole       role     is        to    advocate

effectively for a life sentence.

       Here,     defense         counsel        (“David       Freedman”              and    “Danny

Ferguson,”       collectively          “defense       counsel”)       knew       that       before

                                                36
murdering his father, Robert, and step-mother, Audrey, Frogge

suffered a subdural hematoma and a subarachnoid hemorrhage to

his brain, significantly altering his personality and ability to

function.         Specifically,       Frogge      had    speech     problems,       memory

problems, and exhibited personality changes.                         He became more

fearful, anxious, paranoid, easily agitated, and explosive.                               In

Frogge’s    first       trial      (“Frogge      I”),    defense     counsel       secured

Dr. Hoover,       a    neuropsychologist,          to    testify     that    the     brain

injury induced Frogge’s violent actions.                    But in Frogge’s second

trial (“Frogge II”) defense counsel did not introduce the brain

injury or seek neurological testing from an expert qualified to

evaluate the extent to which that injury affected Frogge.                                 The

Superior    Court       of   Forsyth      County’s       (“MAR    Court”)    held        that

defense counsel’s failure to conduct neurological testing and

introduce Frogge’s brain injury was ineffective assistance of

counsel.         The   North    Carolina       Supreme    Court    reversed        the    MAR

Court and found that defense counsel’s failure to do so was a

sound and strategic trial tactic.                     When “directly assessed for

reasonableness         in    all    the    circumstances,”         this     holding       is

untenable.        Wiggins, 539 U.S. at 533 (quoting Strickland, 466

U.S. at 690-91).

     In     my    view,      one    cannot,      on     this     record,    “reasonably

surmise”    that       the   evidence     of     Frogge’s      organic     brain    damage

                                            37
would have been of “little help.”                      Hence, my principal concern

is not whether counsel should have presented a mitigation case,

but   rather       whether     counsel’s            failure       to     seek    neurological

testing from an expert qualified to evaluate conditions known to

exist was itself reasonable.               Wiggins, 539 U.S. at 523.                     As the

majority, remarkably answers this question affirmatively, I must

dissent.



                                               I.

      The     Supreme        Court,       in        Wiggins,           held     that     it    is

constitutionally ineffective for counsel not to investigate and

introduce      mitigating          evidence           of      a        defendant’s       social

background.         539    U.S.    at    525.         Although         aware     of    Wiggins’s

unfortunate childhood, counsel in Wiggins did not investigate

his   family       and    social   history,          which        revealed       that    he   was

abused, and had limited intellectual capacities and a childlike

emotional      state.        Id.    at     516.            The    post-conviction          court

concluded that the decision not to investigate was strategic

and, thus, not ineffective.               Id. at 519; see also Strickland, at

690-91   (“Strategic         choices      made       after       thorough       investigations

are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the

extent      that    reasonable          professional             judgments       support      the

                                               38
limitations on investigation”).                  The Supreme Court resoundingly

rejected    the    post-conviction        court’s        holding,    concluding        that

the   investigation       was    inadequate        and    a     reasonable       competent

attorney       would    have    realized    that     pursing        those      leads    was

necessary to making an informed choice among possible defenses.

Id. at 526, 534.

       Similarly in Rompilla v. Beard, 545 U.S. 374 (2005), the

Supreme Court found Rompilla’s counsel ineffective for failing

to    review    Rompilla’s      court    file      and    to     present       significant

mitigating evidence about Rompilla’s childhood, mental capacity,

alcoholism,      and    prior   conviction.          Id.         Noting    that    counsel

unreasonably relied on family members and medical experts to

tell them what records might be useful in Rompilla’s mitigation

case,    the    Court    stated:        “[t]here     is    no     need    to    say    more,

however, for a further point is clear and dispositive:                                  the

lawyers were deficient in failing to examine the court file on

Rompilla’s prior conviction.”             Id. at 383.



                                           II.

        Here,    the    majority    upholds        the     State     Supreme      Court’s

objectively unreasonable application of Strickland’s principles.

The State Supreme Court reversed the MAR Court on the basis

that:    (1)    defense    counsel      conducted         more    than    a    sufficient

                                           39
investigation; and (2) it was a sound strategic defense to rely

on    expert    opinion     since         the    expert,    Dr.    Tyson,     had    Frogge’s

medical records and Frogge I transcripts.                          The record does not

support either holding.

       To      their     credit,          defense       counsel     in      Frogge      I     did

investigate and present a persuasive mitigation case.                                   But see

Wiggins, 539 U.S. at 524 (noting that counsel abandoned their

investigation of Wiggins’s background after having acquired only

rudimentary       knowledge          of    his    history    from       a   narrow      set    of

sources.).       However, for Frogge II, where the only salient issue

was    whether         Frogge        would       receive    a     death      sentence         for

Audrey Frogge’s murder, defense counsel clearly demonstrated a

lack     of    attention        to    investigating         and    presenting        critical

mitigation evidence in a capital case.

       In      Frogge     I,         State       expert,     Dr.        Kramer,       undercut

Dr. Hoover’s opinion primarily on the basis that Dr. Hoover did

not conduct neurological testing in support of his opinion that

Frogge’s       brain    injury       was       permanent    and    affected       his    mental

capabilities.           Because,          in    their   view,     Dr.    Hoover      testified

poorly, defense counsel sought out a new expert for the second

trial.        Remarkably, defense counsel hired Dr. Tyson, a clinical

psychologist,            not          specialized           in          neuroscience           or

neuropsychology, and who by his own admission could not perform

                                                 40
the relevant neurological tests.                   (J.A. 1109.)         Notwithstanding

knowledge of Frogge’s brain injury and the need for neurological

testing, defense counsel waited until the eve of Frogge’s second

trial     to     ask       Dr.    Tyson,     whether        Frogge’s      brain       injury

“affect[ed]      his       evaluations.”          (J.A.    1875.)       Even    though      at

least one juror found that Dr. Hoover’s testimony in the first

trial     supported        the     statutory      mitigating        factor      of    mental

illness, defense counsel accepted Dr. Tyson’s opinion that the

brain injury was irrelevant.                   Having not provided any family

statements      or     Frogge’s     medical       records    to   Dr.     Tyson,      it   was

unreasonable         for     defense    counsel       to     rely    on    or,       in    the

majority’s       words,      be    “convinced”       by     Dr.   Tyson’s       uninformed

opinion.        (Maj. Op. at 28.)             Moreover, given that Dr. Kramer

eviscerated Dr. Hoover’s opinion based on his failure to conduct

neurological testing, it is unfathomable that defense counsel

would not obtain such testing to shore up this glaring weakness.

      What is more, there is no evidence that defense counsel’s

failure    to    conduct         neurological      testing    and    present         Frogge’s

brain injury was a “strategic” decision.                          Defense counsel did

not   testify     or       even    suggest   that     they    thought      it    a    better

strategy to not present the brain injury evidence.                                   The ABA

Guidelines for Appointment and Performance of Defense Counsel in

Death Penalty Cases notes that mental health mitigation evidence

                                             41
is    extremely    important       to    capital    sentencing          juries.      See

Commentary to ABA Guideline 4.1 (stating that “mental health

experts    are    essential       to    defending       capital    cases.”).         The

“[Supreme Court] [has] long [] referred [to these ABA standards]

as ‘guides to determining what is reasonable.’” Wiggins, 539

U.S. at 524.

       In Frogge’s case, the most persuasive mitigating evidence

regarding his mental health was kept from the jury.                       The mandate

of Strickland and the Constitution is not simply to investigate,

but rather to provide “effective” assistance.                     Defense counsel’s

actions in light of the circumstances were “rudimentary” and

certainly illogical and unreasonable.                     While I do not suggest

that defense counsel must scour the earth “shopping” for the

most preeminent experts, I do believe that justice requires, at

a    minimum,    for    counsel   to     secure    an    expert    in    the   relevant

field.     This is particularly so, for a counsel who knows, as

here, the specific testing required to support its mental health

defense.

       Without     question,       defense        counsel’s       initial         inquiry

revealed that neurological testing was necessary.                       The anecdotal

evidence of Frogge’s post-brain injury behavior, Dr. Hoover’s

assessment,      and    the   testimony      of    Dr.    Kramer    taken      together

illustrate       that   defense        counsel    could    not    have     “reasonably

                                           42
surmised” that neurological testing, in spite of Dr. Tyson’s

opinion, would have been fruitless.                  Indeed, it is neurological

testing alone that revealed that Frogge suffers from permanent

organic brain damage.           Thus, defense counsel’s decision not to

conduct     neurological        testing     or      even      present      evidence      of

Frogge’s brain injury was unreasonable in light of Strickland

and prevailing professional norms.



                                             III.

     Additionally,        the    record      further       underscores        the    State

Supreme   Court’s      unreasonable         denial      of    relief.         The    State

Supreme   Court      held    that    it     was   objectively           reasonable     for

defense   counsel      to    rely    on     Dr.   Tyson’s       assessment       because

Dr. Tyson    had     Frogge’s       medical       and      social       histories,      and

transcripts from Frogge I.            (J.A. 2198.)            How the State Supreme

Court   reaches    this     conclusion      is    befuddling.           The   MAR    court

specifically found that:

     Dr. Tyson did not perform or request any neurological
     or neuropsychological tests on [Frogge], and none were
     done. His diagnosis was not supported by reliance on
     any such tests, review of medical records concerning
     the 1990 head injury or descriptions by family and
     friends of changes in the defendant’s behavior after
     that injury.

(J.A. 2135, emphasis added.)                In light of the Anti-Terrorism

Effective    Death    Penalty       Act’s    mandate         that   a    state      court’s

                                          43
findings of fact are entitled to a “presumption of correctness,”

the State Supreme Court’s factual error is a dispositive display

of an “erroneous application of facts to the law.” 28 U.S.C.

§ 2254(e)(1).        First,     Ferguson      testified     that      he   did   not

“recall”    or   “think”    that   he   provided      the   medical    records   or

social history reports to Dr. Tyson.                 (J.A. 1909).      Second, in

an affidavit provided to the MAR court, Dr. Tyson attested that

he was not provided with, nor did he review, any medical records

concerning Frogge’s brain injury.             (J.A. 1109.)        Third, Freedman

also submitted an affidavit attesting that he did not provide

Dr. Tyson with Frogge’s medical records, which detailed Frogge’s

brain injury.       (J.A. 2028).        Finally, the State Supreme Court

did   not    find   any    error   in   the    MAR     court’s     clear    factual

findings.

      According     to    the   majority,      the    State    Supreme      Court’s

factual     error   is    inconsequential      because      the    court    “merely

observed” that Dr. Tyson reviewed the medical records.                     However,

the majority, itself, recognizes that the State Supreme Court

thrice stated this factual error.1             Most tellingly, it was only


      1
      The State Supreme Court stated the following:  “[D]efense
counsel   provided  Dr.  Tyson   with  their  entire  discovery
file . . . and made available to him defendant’s medical
records;” “The material supplied to Dr. Tyson also included the
testimony given at [the 1995 trial] by Drs. Hoover and Kramer,
and attorney Freedman believed that Dr. Tyson testified in [the
1998 trial] that he had reviewed this testimony;” “By the time
                               44
in the context of this erroneous factual predicate - Dr. Tyson

being given Frogge’s medical and social histories - that the

Court     decided     whether       defense       counsel’s        failure      to    pursue

neurological testing was objectively reasonable and prejudicial

to Frogge.       (J.A. 2198.)          The State Supreme Court’s rationale

demonstrates        that    the     Court’s       holding     was     tethered         to   a

significant factual error.                The majority’s observations to the

contrary are incredulous.

     Put    simply,        the    State    Supreme      Court’s       assumption         that

Dr. Tyson    offered        an    opinion        informed     by     Frogge’s        medical

records    was    clearly        erroneous    and    reflects        “an       unreasonable

determination       of     the    facts     in    the   light        of       the    evidence

presented    in      the    State     court       proceeding.”            §     2254(d)(2).

Moreover, the State Supreme Court’s conclusion that the scope of

defense counsel’s investigation of Frogge’s mental health meets

the legal standards of Strickland is an objectively unreasonable

application of Supreme Court precedent.




defense counsel were preparing for defendant’s second trial,
they had consulted two mental health experts, Drs. Hoover and
Tyson, both of whom had full access to defendant, his family,
and the pertinent medical records of defendant’s head injury,
and neither of whom recommended neurological testing. State v.
Frogge, 607 S.E.2d 632, 635.
                               45
                                                    IV.

        Unlike      the    majority,       I    am        also     certain      that       defense

counsel’s “ineffective assistance” prejudiced Frogge within the

meaning of Strickland.               Under Strickland, Frogge must show that

“but for counsel’s unprofessional errors, the [sentence] would

have been different.”               Bowie v. Branker, 512 F.3d 112, 120 (4th

Cir.    2008).       In     determining        prejudice,          we   must    “reweigh      the

evidence      in     aggravation          against         the     totality      of     available

mitigating evidence.”             Wiggins, 123 S.Ct. at 2542.

        Because the State Supreme Court reversed the MAR Court on

the Strickland performance prong, it did not assess Frogge’s

ineffective assistance claim for prejudice.                             The State, however,

offered substantial evidence of aggravating circumstances.                                     For

example,      the    State       emphasized     that        Audrey      was    bedridden      and

Frogge stabbed her over eleven times.                           Due to her condition, she

was    also    forced       to   watch     Frogge         stab    his    father       to   death.

Frogge also testified that Audrey had done nothing to provoke

his rage.

        Mental health evidence was the crux of Frogge’s mitigation

case.         How    else    to     explain         why     the     same      young    man     who

thoughtfully        came     home    to    make      his    bed-ridden         step-mother      a

grilled cheese sandwich and tomato soup would, mere hours later,

beat her to death.               Thus, it was paramount for defense counsel

                                               46
to   offer     an    explanation          as     to    why    Frogge       went    into       an

uncontrollable rage and murdered Audrey.                        Dr. Tyson testified

that Frogge likely suffered from personality disorder and had

limited      functioning         skills        aggravated     by     substance       abuse.

Unlike Frogge I, no evidence of Frogge’s brain injury - let

alone organic brain damage - was presented to the jury, despite

defense    counsel’s       belief       that      the    injury       was    significant.

“Under North Carolina law, . . . the prejudice inquiry in this

case distills to whether [Frogge] had shown that there is a

reasonable        probability       that,        but    for     counsel’s         deficient

performance,        at   least    one     jury    member      would    have       found   the

mitigating circumstances outweigh the aggravating circumstances

and recommended life imprisonment.”                     Bowie v. Branker, 512 F.3d

at 120.2

     The answer to this inquiry is obvious.                         When presented with

evidence of Frogge’s brain injury at least one juror in Frogge I

found that the crime was committed under the influence of mental

or   emotional       disturbance,         thereby       depriving      Frogge       of    the

capacity     to     appreciate     the     criminality         of    his    conduct       -    a


     2
      Because the State Supreme Court did not reach Strickland’s
prejudice prong, we review the question of prejudice de novo.
See Dugas v. Coplan, 428 F.3d 317, 327 (1st Cir. 2005) (citing
Ellsworth v. Warden, 333 F.3d 1, 3-4 (1st Cir. 2003) (en banc)
(“Appellate review of the district court’s denial of habeas
relief is de novo, but we accord deference to the state court as
to issues it actually decided.”)).
                                47
statutory    mitigating     factor     under   North    Carolina       law.      The

absence of such evidence from the guilt and penalty phase of

Frogge’s    second     trial   undoubtedly     prejudiced       him.      But    for

defense    counsel’s    deficient      performance,     the    jury    would    have

known that Frogge suffers from permanent organic brain damage -

a diagnosis the State does not rebut – which “under periods of

extreme emotional distress would lead him to act impulsively and

not appreciate the full consequences of his actions, impairing

his judgment, reasoning and impulse control.”                 (J.A. 1706-07.)

     Given the powerful nature of this evidence, the outcome

reached by the majority truly is alarming.                     Frogge’s organic

brain damage coupled with the other mitigation evidences “might

well have influenced” at least one juror’s ‘appraisal’ of his

‘culpability,’” as it did the experienced MAR judge - a rarity.

Rompilla, 545 U.S. at 393 (citing Wiggins, 539 U.S. at 538).

Quite     clearly,   defense     counsel’s       failure      to   even    present

evidence    of   Frogge’s      brain    injury    and    obtain       neurological

testing is ineffective assistance of counsel under Strickland.




                                        48
