July 24, 2008 - POST CONVICTION APPEALS by Justice4Hank

POST CONVICTION APPEALS

5TH CIRCUIT COURT OF APPEALS PETITIONER-APPELLANT’S OPENING BRIEF  JULY 24, 2008

CERTIFICATE OF INTERESTED PERSONS Skinner v. Quarterman, No. 07-70017

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case, although with the exception of the Petitioner-Appellant, none of them has a financial interest. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal:

Henry Watkins Skinner, Petitioner-Appellant; Douglas G. Robinson and Robert C. Owen, counsel for Mr. Skinner in this appeal and in the court below; Steven C. Losch (deceased), counsel for Mr. Skinner on direct appeal, in state post-conviction proceedings, and in the court below; Harold Comer and Kenneth Fields, trial counsel for Mr. Skinner; Katherine D. Hayes, Assistant Attorney General of Texas, counsel for Respondent-Appellee in this appeal and in the court below; Margaret Schmucker and Georgette Oden, Assistant Attorneys General of Texas, co-counsel for Respondent-Appellee in the court below; and John Mann and Tracey Jennings, then District Attorney and Assistant District Attorney for the 31st Judicial District of Texas, trial counsel for the prosecution. Respectfully submitted,

STATEMENT REGARDING ORAL ARGUMENT Petitioner-Appellant Henry Watkins Skinner respectfully requests oral argument. This capital case is factually complex because the issue on which the Court has granted a Certificate of Appealability – a claim of ineffective assistance of counsel at the guilt phase of trial – implicates two different sets of facts: those related to counsel’s performance, and those related to the impact of counsel’s errors and omissions (i.e., how the factual picture presented at trial would have changed if counsel had performed reasonably). It also requires close examination of both the trial record and the record of the three-day evidentiary hearing in the district court. Under these circumstances, oral argument will significantly aid the Court in its decisional process.

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TABLE OF CONTENTS JURISDICTION.........................................................................................................1 ISSUES PRESENTED FOR REVIEW .....................................................................1 STANDARD OF REVIEW .......................................................................................2 STATEMENT OF THE CASE..................................................................................2 I.

Prior Proceedings.............................................................................................2

II.

Overview of Facts............................................................................................4

SUMMARY OF ARGUMENT ...............................................................................12 ARGUMENT ...........................................................................................................14 I.

The District Court Did Not Understand and Apply Properly the Standards for Claims of Ineffective Assistance of Counsel. .........................14

II.

The District Court’s Failure to Apply the Strickland Standards Properly Resulted in Reversible Error with Respect to at Least Two Elements of Skinner’s Ineffective Assistance of Counsel Claims. ...............18 A.

Skinner Was Denied Effective Assistance of Counsel When His Trial Counsel Failed to Take Advantage of Blood Spatter Analysis Conducted by the Police.......................................................18 1.

Counsel’s Were Deficient in Failing to Object to the District Attorney’s Explanation to the Jury of Skinner’s Bloody Handprint......................................................................20

Had Defense Counsel Provided Dr. Lowry with the Burroughs Blood Spatter Evidence and Effectively Argued Its Significance in Closing, There Is a Reasonable Probability the Outcome Would Have Been Different. ...................................................................................23

Counsel Were Ineffective in Failing to Conduct Additional Investigation of Robert Donnell..........................................................30

Counsel Were Deficient Under Wiggins for Failing to Pursue Their Investigation of Donnell to the Point of Finding and Presenting the Testimony of Debra Ellis..............31

There Is a Reasonable Probability that the Dramatic Testimony of Debra Ellis Would Have Affected the Outcome of the Trial. ................................................................46

The District Court Erred in Failing to Assess Prejudice Cumulatively.............................................................................54

PRAYER FOR RELIEF ..........................................................................................56

TABLE OF AUTHORITIES CASES Albrecht v. Horn, 485 F.3d 103 (3rd Cir. 2007) ......................................................55 Anderson v. Johnson, 338 F.3d 382 (5th Cir. 2003) ...................................33, 39, 40 Bell v. Lynaugh, 828 F.2d 1085 (5th Cir. 1987) .....................................................39 Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004) ..............................16-17, 42-43 Bower v. Quarterman, 497 F.3d 459 (5th Cir. 2007) ...............................................2 Boyde v. Brown, 404 F.3d 1159 (9th Cir. 2005)......................................................55 Boyde v. Brown, 421 F.3d 1154 (9th Cir. 2005)......................................................55 Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994) ...................................................34, 45 Canaan v. McBride, 395 F.3d 376 (7th Cir. 2005) .................................................15 Cook v. Lynaugh, 821 F.2d 1072 (5th Cir. 1987) ...................................................39 del Toro v. Quarterman, 498 F.3d 486 (5th Cir. 2007) ..........................................53 Diaz v. Quarterman, 228 Fed. Appx. 417 (5th Cir. 2007) .....................................32 Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2005) ................................................40 Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005).......................................................55 Ex parte Skinner, Writ No. 20,203-03 (Tex. Crim. App., Dec. 2, 1998) ..................2 Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993) .......................................................34 Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005) ................................................55 Goodman v. Bertrand, 467 F.3d 1022 (7th Cir. 2006) ............................................54

Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003) ................................................15 Harries v. Bell, 417 F.3d 631 (6th Cir. 2005) ...................................................15, 43 Henderson v. Sargent, 926 F.2d 706 (8th Cir. 1991) .............................................34 Henderson v. Sargent, 939 F.2d 586 (8th Cir. 1991) ..............................................34 Jermyn v. Horn, 266 F.3d 267 (3rd Cir. 2001) .......................................................17 Jordan v. State, 646 S.W.2d 946 (Tex. Crim. App. 1983) .....................................22 Kramer v. Butler, 845 F.2d 1291 (5th Cir. 1988) ...................................................39 Kyles v. Whitley, 514 U.S. 419 (1995) ....................................................................17 Lewis v. Dretke, 355 F.3d 364 (5th Cir. 2003) .......................................................42 Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992) .................................................39, 40 Martinez v. Quarterman, 481 F.3d 249 (5th Cir. 2007) .........................................32 Mattheson v. King, 751 F.2d 1432 (5th Cir. 1985) .................................................39 Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) .....................................17, 31, 34, 40 Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) .......................................14, 41, 55 Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) .............................................39, 41 Nooner v. Norris, 402 F.3d 801 (8th Cir. 2005) .....................................................14 Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) ..........................................34, 39 Rompilla v. Beard, 545 U.S. 374 (2005) ....................................................15, 16, 43 Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007)..................................................34 Sanders v. Ryder, 342 F.3d 991 (9th Cir. 2003) ......................................................55

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Schofield v. Holsey, 642 S.E.2d 56 (Ga. 2007)........................................................55 Selvage v. Lynaugh, 842 F.2d 89 (5th Cir. 1988) ...................................................39 Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008) ........................................4,12 Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997) .......................................2 Skinner v. State, 523 U.S. 1079 (1998)......................................................................2 Smith v. Dretke, 422 F.3d 269 (5th Cir. 2005) ........................................................15 Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004) ......................................................15 Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) .....................................37, 40, 42, 53 Strickland v. Washington, 466 U.S. 668 (1984) ............................................. passim Tenny v. Dretke, 416 F.3d 404 (5th Cir. 2005) .................................................33, 53 United States v. Arnold, 486 F.3d 177 (6th Cir. 2007) ...........................................52 United States v. Bercier, 506 F.3d 625 (8th Cir. 2007) ..........................................52 United States v. Dominquez Benitez, 542 U.S. 74 (2004) .......................................17 United States v. Hefferon, 314 F.3d 211 (5th Cir. 2002) ........................................51 United States v. Jennings, 496 F.3d 344 (4th Cir. 2007) ........................................52 Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) .........................................................2 Waits v. State, 644 S.E.2d 127 (Ga. 2007)...............................................................55 White v. Roper, 416 F.3d 728 (8th Cir. 2005) ........................................................42 Wiggins v. Smith, 539 U.S. 510 (2003) ........................................................... passim Williams v. Cain, 125 F.3d 269 (5th Cir. 1997) .....................................................17

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Williams v. Taylor, 529 U.S. 362 (2000) .................................................................54

STATUTES, RULES AND REGULATIONS 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. § 2241 (2008) ...........................................................................................1 28 U.S.C. § 2253 (1996) ............................................................................................1 FED. R. EVID. 803(2) ................................................................................................52 TEX. CODE CRIM. PROC. ANN. art. 11.071 (2007) .....................................................2

SECONDARY AUTHORITIES John H. Blume and Christopher Seeds¸ Reliability Matters: Reassociating Bagley Materiality, Strickland Prejudice, and Cumulative Harmless Error, 95 J. CRIM. L. & CRIMINOLOGY 1153 (2005) ...........................................................55 American Bar Association’s GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES, 11.4.1(c) (1989)........................................................................................................15

JURISDICTION The district court had jurisdiction under 28 U.S.C. § 2241.

It entered

judgment on February 22, 2007, and denied Skinner’s timely motion to alter or amend that judgment on April 10, 2007. RE at Tab E, p.1.1 Skinner timely noticed his appeal on May 9, 2007. RE at Tab F. This Court has jurisdiction under 28 U.S.C. §§ 1291 and 2253. ISSUES PRESENTED FOR REVIEW Whether Mr. Skinner was denied his Sixth Amendment right to effective assistance of counsel when his trial counsel: a. failed to utilize at trial a blood spatter analysis prepared by police officer Morse Burroughs showing that Elwin Caler was in the same room when his mother was being beaten to death with an ax handle, and b. failed to find and present the testimony of Debra Ellis, who would have testified that a few days after the murders, alternative suspect Robert Donnell thoroughly cleaned the carpets and inside of his truck, that he always carried a knife, that he showed no emotion when told

We cite the Record Excerpts as “RE,” with Tab and page number; the Record on Appeal as “ROA,” followed by [Vol. #]:[Page #]); and the trial transcript as “Tr.,” followed by [Vol. #]:[Page #]. We cite Respondent’s exhibits at the evidentiary hearing in the court below as “RX,” and the Petitioner’s exhibits as “PX,” in each case followed by the exhibit number.

his niece and her two sons were murdered, and that he threatened his own wife with severe bodily injury on more than one occasion. STANDARD OF REVIEW The claim presented here was not resolved on the merits in state court proceedings, and thus is reviewed de novo. See RE at Tab B, p.2-4, 7; see also, e.g., Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir. 2007). Facts actually found by the district court are reviewed for clear error. Virgil v. Dretke, 446 F.3d 598, 604-05 (5th Cir. 2006). STATEMENT OF THE CASE I.

Prior Proceedings Skinner was convicted of capital murder and sentenced to death on

March 23, 1995.

The judgment was affirmed on appeal. Skinner v. State, 956

S.W.2d 532 (Tex. Crim. App. 1997), cert. denied, 523 U.S. 1079 (1998). Skinnerâ&#x20AC;&#x2122;s initial application for state post-conviction relief under Tex. Code Crim. Proc. art. 11.071, filed March 26, 1998, was ultimately denied as untimely. See Ex parte Skinner, Writ No. 20,203-03 (Tex. Crim. App., Dec. 2, 1998). Skinner then filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Texas. ROA I:26-II:351. Shortly thereafter, the Texas legislature amended art. 11.071 to exempt certain death row inmates, including Skinner, from the procedural default rules that

had resulted in denial of their initial applications. Respondent then moved the district court to dismiss Skinner’s federal petition, arguing that he must first exhaust the newly available state remedy. ROA II:378-408. Skinner asked the court to abate, rather than dismiss, his petition because the federal statute of limitations had by then expired and would bar filing a new petition if the state courts denied relief. ROA II:409-29. The district court granted Skinner’s cross motion and abated the proceeding. ROA II:495-96. Skinner filed a new state habeas application. See RE at Tab B, p.2. The Court of Criminal Appeals (“CCA”) refused to entertain it because the same claims were pending before a federal court, even though the federal case had been abated to allow the parties to exhaust state court remedies. Id at 3. After and in light of the CCA’s action, Respondent moved the federal district court to reopen the abated case and dismiss it so that Skinner could exhaust his state court remedies. ROA II:497-523. The district court denied Respondent’s motion, reasoning that the Texas courts had had ample opportunity to rule on Skinner’s claims and that Skinner should not be forced to risk losing his right to federal review because the federal statute of limitations had run. ROA III:619-20. A magistrate judge eventually conducted an evidentiary hearing, and later issued “Findings, Conclusions and Recommendations” (the “FCR”) recommending denial of relief. RE at Tab B, p.1-79. The district judge overruled Skinner’s

objections to the FCR. ROA VIII:1864, RE at Tab C. After the district court denied relief and denied a Certificate of Appealability (COA), this Court granted a COA on two aspects of Mr. Skinner’s claim of ineffective assistance of counsel. Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008). II.

Overview of Facts Skinner was convicted of murdering his girlfriend, Twila Busby, and her

sons, 22-year-old Elwin Caler and 20-year-old Randy Busby, at the home they all shared with Skinner in Pampa, Texas.

The murders occurred shortly before

midnight on New Year’s Eve, December 31, 1993. The evidence at trial showed that at about 10:30 that evening, Howard Mitchell, an acquaintance of Skinner and Twila, went to their house to give them a ride to his home several blocks away, where he was throwing a New Year’s Eve party.

Mitchell found Skinner on the couch in the living room, apparently

unconscious, with a bottle of vodka near him on the floor. Tr. 26:507, 26:575-80, 26:605, 26:630-32; 27:770-71; 27:753-55.

Mitchell tried to wake Skinner by

jerking his arm hard four times and shouting at him as loudly as he could; Skinner remained completely unresponsive, appearing to Mitchell to be “kind of comatose.” Tr. 26:606-08, 26:610. Mitchell waited 15 minutes, but “never s[aw] him move at all.” Tr. 26:611. Mitchell testified that he did not believe Skinner

could have recovered from that condition in time to commit the murders less than an hour and a half later. Tr. 26:608, 26:622. Mitchell and Twila Busby left Skinner at home and went to the party. Tr. 26:577, 26:611, 26:620. Within thirty minutes of arriving, Twila asked Mitchell to take her home. Tr. 29:1277, 29:1279. Mitchell noticed that Twila was “fidgety and worried” when he dropped her off in front of her house at about 11:15 p.m. Tr. 26:579-80, 26:629-30. Twila got out of his car and walked to her front door unaided. Tr. 26:580, 26:629-30. At midnight, Pampa policeman Fred Courtney was dispatched to investigate a reported stabbing. Tr. 24:49-50, 24:63. Courtney found Elwin Caler, Twila’s grown son, sitting on the porch of a neighbor’s house wearing nothing but bloodstained undershorts. Tr. 24:65; 28:1211-12. Caler was still alive, but had a mortal stab wound in his chest under his left arm. Tr. 25:303, 28:1192-93. He died at a local hospital at 12:45 a.m. without identifying his killer. Tr. 28:1193, 28:1208. The police learned where Caler lived and, shortly after midnight, commenced a search of the house. Tr. 26:637. As they entered, they found a bloody knife on the front porch. Tr. 24:94-97, 24:104-05, 24:110-11. Twila Busby’s body was on the living room floor. Tr. 24:117, 24:142. Her pants were unzipped and her blouse raised. Tr. 25:309. A blood-stained ax handle leaned against the couch near her body. Tr. 24:163; 25:397, 25:415, 25:418. Another knife and a cup towel, both of

which appeared to have blood on them, were in a black plastic trash bag next to the couch. Tr. 25:414-16, 25:418; 27:798; 27:803. Dr. Peacock, the medical examiner, testified that Twila was manually strangled so forcefully that her larynx and the hyoid bone on the right side of her neck were broken, and after that was hit in the head 14 times with a blunt object, probably the ax handle found at the scene. Tr. 28:1186-87, 28:1189, 28:1209. The blows fractured Twila’s unusually thick skull. Tr. 28:1171, 28:1182, 28:1186. She also sustained defensive wounds on her arms. Tr. 28:1187. She had blood under her fingernails, human hairs in the palms of her hands and a human hair caught under the ring on her left hand. Tr. 25:434, 25:439; 28:1037, 28:1216. The skin around Twila’s vagina had been reddened from recent sexual intercourse. Tr. 28:1206. The police found the body of Twila’s other son, Randy Busby, laying face down on the upper bunk in a bedroom he shared with Caler. He was partially covered with a blood-spotted blanket and had three stab wounds in his back. Tr. 24:119-20; 28:1197-98. Skinner’s bloody hand print was found about 18 inches above the floor, on the frame of a door, in the boys’ bedroom and on two door knobs at the back of the house. Tr. 24:135, 24:183-84; 26:702; 27:791-92, 27:796, 27:911-16, 27:951-52.

While police searched the crime scene, Skinner was with Andrea Reed, a long-time acquaintance, in her trailer house four blocks away.

According to

Reed’s testimony at trial, Skinner knocked on her door shortly after midnight, as neighbors were firing shotguns to celebrate the new year. Tr. 26:488; 30:1483. Skinner told Reed “they’re out to get me, they’re shooting at me.” Reed testified that she warned Skinner she would call the police unless he left, but he came inside anyway. Tr. 26:490-91, 26:518. Skinner asked Reed to help him because he had been stabbed and shot. Tr. 26:491. Reed noticed that he was wearing socks but no shoes and saw blood on his shirt and pants. Tr. 26:492-93. Skinner asked Reed to examine his wounds. Tr. 26:519. Reed saw no injuries on his body, but noted a profusely bleeding cut in his right palm. Reed agreed to treat the wound. The medical examiner testified that the cut could have been either a defensive wound sustained while fending off a knife attack or an injury Skinner accidentally inflicted on himself while stabbing Randy Busby. Tr. 26:492-94, 26:520; 28:120203, 28:1214. Skinner was with Reed for almost three hours.

According to Reed’s

testimony, he was heavily intoxicated, making a series of inconsistent statements about the source of his injury and events in the past that Reed knew had never happened. Skinner repeatedly promised to tell Reed the truth, but kept changing his story. Tr. 26:488, 26:500, 26:522; 27:790. At times, it appeared to Reed that

Skinner did not know to whom he was talking or where he was. Tr. 26:513-516. Reed testified that she tried to call the police, but Skinner threatened to kill her if she did so. Tr. 26:496-98. Also according to Reed’s trial testimony, Skinner finally told Reed that he would explain what really happened to him if she swore not to reveal it. Tr. 26:501. After extracting this promise, Skinner told her that he thought he might have “kicked” Twila to death. Tr. 26:500-01. There was no evidence that Twila had been kicked at all. The police ultimately suspected that Skinner might be at Reed’s trailer house and arrested him there at about 3:00 a.m. Tr. 25:287-89, 26:503. He appeared still to be intoxicated. Tr. 24:204. At 5:48 that morning, a blood sample was drawn from Skinner. Tr. 27:809-11, 27:944-45. Large quantities of alcohol and codeine were found in his blood. Tr. 27:945, 28:1071. The prosecution introduced at trial an excerpted transcript of a statement Skinner gave to the sheriff and the district attorney’s investigator on January 4, 1994. State’s Ex. 59. In that statement, Skinner said he remembered little that happened after he fell asleep on the couch. Id. at 3-4. He recalled that he was drinking vodka and taking Xanax.2 Id. at 5. He thought that Twila may have gone to Mitchell’s house. Id. at 4. He recalled that his bottle of vodka was missing

Xanax was not found in Skinner’s bloodstream, but codeine was. Tr. 28:1071, 29:1358-59, 29:1400.

when he woke up. Id. Skinner was sure he saw someone standing over him holding a knife and then he ran out of the house. Id. at 2. He thought that Twila may have come home drunk and cut him with a knife, but he did not recall this clearly. Id. at 11. He said he loved Twila and her sons and could not imagine hurting them. Id. at 10. Finally, the prosecution presented expert witnesses who testified about the results of forensic testing. A DNA expert testified that she was asked to test only four items: (1) selected samples of blood stains on Skinner’s shirt and pants; (2) blood found on a blanket on Randy Busby’s bed; (3) hairs found on Randy Busby’s blanket; and (4) hairs found on Randy’s back and cheek. The shirt contained the blood of Twila Busby and Skinner, the pants had their blood as well as that of Elwin Caler, the hair on Randy’s blanket was Caler’s, and the blood on Randy’s blanket was his own, as was the hair found on his body. Tr. 28:1109, 1135, 1137. Skinner was represented at trial by Pampa attorneys Harold Comer and Kenneth Fields. Their defense theory was two-fold – to show that Skinner did not have the physical and mental ability to have performed the murders, and that there was an alternative suspect whose possible involvement had been ignored by the police.

On the first prong, they offered two witnesses. Occupational therapist Joe Tarpley testified that, as a result of an injury Skinner accidentally sustained to his right hand six months before the murders, he lacked the hand strength to have caused Twila Busby’s strangulation injuries as the medical examiner described them. Tr. 29:1316-19. The defense’s principal incapacitation witness, though, was toxicologist Dr. William Lowry.

He testified that it was highly improbable

Skinner was able to murder Twila Busby and her sons because he was too impaired by alcohol and codeine. Dr. Lowry determined that at the time of the murders, Skinner’s blood alcohol level was .21 percent, more than two and a half times the legal standard in Texas for intoxication, and that he had three and a half times the normal therapeutic dose of codeine in his system. Tr. 29:1357; 30:1464-65. Dr. Lowry testified that the synergistic effect of these two intoxicants drastically increased their potency.

Tr. 29:1354, 29:1356-58, 29:1361; 30:1463. In Dr.

Lowry’s opinion, Skinner could not have had the physical coordination required to inflict all of the wounds sustained by the three victims because, at the time of the murders, he was at best in a stuporous condition with impaired balance and a staggering gait.

Tr. 29:1369, 29:1371, 29:1375, 29:1384, 30:1514.

The

prosecution offered no expert to rebut these findings but instead suggested that Dr. Lowry’s opinion did not take into account Skinner’s long history of drug and alcohol abuse, which possibly created in him a tolerance of alcohol and codeine

that allowed him to perform feats a normal person who consumed similar quantities of those substances would have been unable to perform. See, e.g., Tr. 30:1453, 1462, 1553. The second prong of the defense was to point the finger of suspicion at Twila Busby’s uncle, Robert Donnell.

The defense presented evidence that

Donnell was a hot-tempered ex-con who had sexually molested a girl, grabbed a pregnant woman by the throat, and usually kept a knife in his car trunk. Tr. 26:615-18, 26:619; 29:1281, 29:1296, 29:1300-01.

Donnell was present at

Howard Mitchell’s New Year’s Eve party and was likely the source of Twila Busby’s agitation. Tr. 26:620; 29:1281. Donnell became drunk at the party. Tr. 26:619-20. Mitchell “sensed that [Donnell] would be a danger” because he had “a certain kind of hate” in his eyes. Tr. 26:618. Donnell stalked Twila around the party, making crude sexual remarks to her. Tr. 26:619-20, 29:1277, 29:1281. By the time Mitchell returned after taking Twila home, Donnell had left the party. Tr. 26:629; 29:1289. Mitchell later told law enforcement that he believed that Donnell could have murdered Twila. Tr. 26:623. Skinner’s two-pronged defense was not enough to dissuade the jury from convicting Skinner and imposing the death penalty.

SUMMARY OF ARGUMENT Skinner was denied effective assistance of counsel at trial, under Strickland v. Washington, 466 U.S. 668 (1984), in at least two respects:3 First, counsel failed to utilize blood spatter analysis performed by Pampa police officer Morse Burroughs showing that Elwin Caler was in the same room as his mother at the time she was being beaten with the ax handle. The district court assumed that counsel’s failure to recognize the significance of this evidence, and to use it at trial, was deficient under Strickland but ruled that this deficiency was not prejudicial.

Contrary to the district court’s determination, this blood spatter

evidence, properly presented, would have substantially bolstered the defense’s theory that Skinner was too incapacitated by alcohol and codeine to have committed the murders. In the first place, the fact that Caler was in the same room as his mother at the time she was murdered meant that the killer had to deal with both targets at the same time, greatly increasing the difficulty of the task. Furthermore, the Burroughs report, if used properly, would have refuted the State’s argument that Skinner’s bloody handprint near the floor on a door frame in that room was left there when Caler came out of his bunk bed and knocked Skinner to

In the district court, Skinner alleged that he was denied effective assistance of counsel in at least five respects. This Court granted a certificate of appealability with respect to two of those deficiencies. Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008). This brief addresses only those two deficiencies, but Skinner reserves his rights with respect to the other aspects of his Strickland claim.

the floor. Instead, the handprint would have provided powerful corroboration of Skinner’s incapacitation defense by showing that he had been literally fallingdown drunk.

The district court’s failure to recognize the significance of the

Burroughs blood spatter report and the probable effect it would have had on the outcome of the trial was reversible error. Second, Skinner’s trial counsel were deficient in failing to conduct further investigation of Robert Donnell, an investigation that would have uncovered striking evidence from Donnell’s neighbor, Debra Ellis, with which counsel could have created substantially greater doubt in the minds of the jurors regarding the identity of the real killer. For example, Ellis would have testified that two days after the murders Donnell had thoroughly scrubbed his aged pickup down to the floorboards – the only time he was ever known to have cleaned it. Ellis would also have testified that Donnell carried a knife, that he showed no emotion when told by the police that his niece and her two sons had been murdered, and that he had terrorized his own wife with threats of violence. Counsel had no reasonable explanation for stopping their investigation of Donnell before it had ceased to produce useful results. The district court’s failure to recognize the significance of this evidence was contrary to the Supreme Court’s guidance regarding trial counsel’s obligation to investigate and was reversible error.

ARGUMENT I.

The District Court Did Not Understand and Apply Properly the Standards for Claims of Ineffective Assistance of Counsel. To prevail under Strickland v. Washington, 466 U.S. at 687, a petitioner

must show (1) that his trial counsel’s performance fell below the prevailing standard of practice, and (2) that counsel’s deficient performance prejudiced the defense. With respect to the former, scrutiny of counsel’s performance must be deferential, and counsel’s conduct is presumed to fall within the “wide range” of reasonable professional assistance. Id. at 689. But a reviewing court is “not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when . . . counsel made no strategic decision at all.” Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). It is vital that “Strickland’s measure of deference . . . not be watered down into a disguised form of acquiescence.” Id. (citation and internal quotation marks omitted). Thus, in evaluating counsel’s performance, “it is necessary to first identify the relevant professional standard of care.” Nooner v. Norris, 402 F.3d 801, 812 (8th Cir. 2005) (Lay, C.J., concurring in part and dissenting in part). Respecting each instance of alleged deficient performance, Skinner presented expert testimony identifying the duties actually imposed on trial counsel by prevailing professional

norms in 1994-95, and assessing counsel’s performance against those standards.4 This analysis reflects the approach taken by the Supreme Court in its most recent cases. See Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). In those cases, the Supreme Court measured the performance of trial counsel by reference to the actual demands of the prevailing standard of practice at the time of trial, adding “clarity, detail and content to the more generalized . . . language of Strickland.” Hamblin, 354 F.3d at 486; see also id. at 487-88 (after Wiggins, reviewing court “must measure counsel’s performance . . . against the prevailing standards at the time of [the petitioner’s] trial”).

This Court has

followed the same path post-Wiggins. See, e.g., Smith v. Dretke, 422 F.3d 269, 280 (5th Cir. 2005) (key question in assessing IAC claim was not what investigation counsel actually conducted, considered in isolation, but “whether the investigation conducted could be considered adequate in light of professional norms”).

Skinner’s attorney experts applied the American Bar Association’s GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES, 11.4.1(c) (1989) (“ABA Guidelines”), the approach endorsed by the Supreme Court. See Wiggins, 539 U.S. 510, 524 (2003). Courts have widely acknowledged the Supreme Court’s reliance on the ABA Guidelines. See, e.g., Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003) (ABA standards are “not aspirational” but are “common-sense principles . . . understood by diligent, competent counsel in death penalty cases”); Canaan v. McBride, 395 F.3d 376, 384 (7th Cir. 2005) (in analyzing counsel’s performance, “We follow the [Supreme] Court’s lead . . . by looking first to the . . . ABA Guidelines,” which represent “well-defined norms on which the [Supreme] Court has routinely relied”) (citations omitted); Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004) (applying ABA Guidelines to assess reasonableness of trial counsel’s investigation and preparation); Harries v. Bell, 417 F.3d 631, 638 (6th Cir. 2005) (the “Supreme Court has recognized [the ABA Guidelines] as reflecting prevailing professional norms”) (citation omitted).

With respect to the “blood spatter” element of Skinner’s IAC claim, the deficient performance prong of Strickland is only partially at issue here. In only one narrow respect discussed below did the district court find that counsel’s performance was not deficient. For the most part, however, the court assumed for purposes of its analysis that counsel’s performance was deficient and addressed only the second, “prejudice” prong. On the other hand, with regard to the “alternative suspect” element of the IAC claim, the district court rejected Skinner’s claim that counsel’s performance was deficient. In so holding, the district court here veered from the course set by the Supreme Court. Nowhere did the court below identify the method by which it assessed trial counsel’s performance. Rather than apply an objective standard of critical evaluation to trial counsel’s actions, as required by Wiggins and Rompilla, the district court completely failed to attend explicitly to prevailing norms of representation. Instead, it reflexively deferred to claims of “strategy” anywhere counsel was shown to have made some efforts to develop and present Skinner’s defense. Cf. Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004). The district court’s analysis of both the “blood spatter” and “alternative suspect” elements of Skinner’s IAC claim also ran afoul of the prejudice prong of Strickland. Prejudice is shown if there is a “reasonable probability” that, but for counsel’s errors, the outcome of the trial would have been different. Strickland,

466 U.S. at 694. “The reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)).5 Nor is it necessary for the petitioner to prove to the district court’s satisfaction that he did not in fact commit the offense. Bigelow, 367 F.3d at 570 (petitioner need not “conclusively demonstrate his ‘actual innocence’” in order to be entitled to relief on IAC grounds). The key to the prejudice analysis is whether, as a result of counsel’s errors and omissions, the verdict is “worthy of confidence.” Kyles v. Whitley, 514 U.S. at 434 (1995). While the district court paid lip service to the Strickland prejudice standard, there is no indication that it actually applied that standard in rejecting Skinner’s claim. In fact, as discussed in detail below, the district court failed to assess objectively, at any point in its analysis, the probable effect of counsel’s errors on the jury’s verdict.

See also, e.g., Williams v. Cain, 125 F.3d 269, 279 (5th Cir. 1997) (same, citing Strickland); Miller v. Dretke, 420 F.3d 356, 365 n.36 (5th Cir. 2005) (same, citing Dominguez Benitez); Jermyn v. Horn, 266 F.3d 267, 282 (3d Cir. 2001) (Strickland’s “reasonable probability” standard “is not a stringent one”).

II.

The District Court's Failure to Apply the Strickland Standards Properly Resulted in Reversible Error with Respect to at Least Two Elements of Skinner’s Ineffective Assistance of Counsel Claims. A.

Skinner Was Denied Effective Assistance of Counsel When His Trial Counsel Failed to Take Advantage of Blood Spatter Analysis Conducted by the Police.

Skinner’s trial counsel unreasonably failed to take advantage of a blood spatter report prepared by Pampa policeman Morse Burroughs.

PX 79.

Burroughs’ report, used properly, would have provided powerful support for the defense theory of the case. Yet counsel remained oblivious to its significance throughout Skinner’s trial. In that report, Officer Burroughs analyzed photographs of blood spatter found on the body and undershorts of Elwin Caler. Burroughs concluded that Caler was in the same room as his mother while she was being struck several times with an ax handle. Id. at 1-3.6 This evidence was vital because it meant that the

Specifically, Burroughs stated in relevant part: Also noted was medium velocity impact spatter on the front of the victims [sic] underwear, stomach, left side, and left forearm. The spatters on the left forarm [sic] indicate that they originated somewhere in front of the victims [sic] hand. The spatters on the front of the victim’s undershorts appear to be nearly circular in shape, with some indicating that they were traveling right to left upon impact. There are two nearly circular shaped spatter on the left side of the victim which indicated that they originated somewhere to the victim’s left side and were nearly 90 degrees to the victim. These patterns would indicate that this victim was present in the immediate vicenity [sic] of victim, Twila Busby, at the time of her assault.

PX 75 at 2 (emphasis added).

killer (or killers) had to have been sufficiently agile to have dealt with both victims in the same room at the same time. Assuming, as the prosecution did, that there was only one perpetrator, that meant that after beating Twila Busby, the killer had to put down the ax handle, pick up a knife, and stab the physically imposing Caler several times in the torso, all before Caler could either overpower the perpetrator or flee the scene. Effective defense counsel would have used the blood spatter evidence from the Burroughs report as a powerful tool to convince the jury that the murders required far more physical and mental presence than Skinner was able to summon because of his intoxication.

Counsel’s Were Deficient in Failing to Object to the District Attorney’s Explanation to the Jury of Skinner’s Bloody Handprint.

As noted above, the district court did not attempt to justify counsel’s inexplicable failure to exploit the Burroughs report. In fact, in its analysis, the court assumed that counsel were deficient in not recognizing the significance of the report to their own defense theory.7 However, in one narrow respect only, the district court specifically refused to find fault with counsel’s failure to use the Burroughs report. Specifically, the district court found no fault in counsel’s failure to object when District Attorney John Mann, in his rebuttal argument to the jury, attempted to explain away Skinner’s bloody handprint found 18 to 24 inches above the floor on one of the door frames leading to the boys’ bedroom. As discussed above, one of Skinner’s principal defenses at trial was that he was too incapacitated by the massive amounts of alcohol and codeine he had consumed that day to have committed the murders.

An important piece of

evidence supporting that theory was the handprint.

As trial counsel Fields

explained in his closing argument to the jury: . . . a person in a stuporous state would, as Dr. Lowry told you, spend some time prone on the floor and need assistance getting to their feet; 7

It would have been difficult for the court to take any other position. Counsel offered no strategic reason for failing to take advantage of the Burroughs report. ROA XII:106, 214. As discussed more fully below, both lead counsel Comer and Dr. Lowry, the defense toxicologist, testified at the federal habeas hearing that this evidence would have bolstered the defense’s incapacitation theory. ROA XII:107 (Comer), XIII:309 (Lowry).

and therefore, you would also expect a hand print, if that hand was wounded or bloody, at a level 24 inches above the floor. I mean, we don’t go around making hand prints down here, but somebody who’s prone and trying to get up on their feet and having trouble navigating would, and that is entirely consistent with everything Dr. Lowry told you, and that’s entirely consistent with everything in this case. Tr. 30:1601-02. Thus, the bloody handprint provided important support for the defense theory that Skinner was too impaired to have committed the crimes. Obviously concerned about the extent to which the bloody handprint bolstered the defense’s case, District Attorney Mann, in his rebuttal argument to the jury, concocted an explanation for the handprint that turned it to the prosecution’s advantage: The evidence points to a man that went to this back bedroom back here and found those boys on that bunk bed asleep and was so drunk and so full of himself and his abuse history that this young man [Caler], I submit to you, a logical deduction of the evidence shows, became aware of what was going on up here and that's how Henry Skinner's palm print got 18 inches above the floor when Elwin Caler came out of that bottom bunk. Tr. at 30:1607-08 (emphasis added). This explanation obviously carried the day with the jury, but it was fabricated from whole cloth. There was no evidence whatsoever of a struggle between Caler and Skinner in the boys’ bedroom.

To the contrary, Mann’s

explanation was directly contradicted by the Burroughs report, which showed Caler to have been in the living room, and not in his bed, when confronted by his

assailant. But Mann was able to get away with the “coming-out-of-the-bottombunk” explanation, and turn the bloody handprint to his advantage, because Skinner’s trial counsel, oblivious as to the significance of the Burroughs report, failed to object. Reasonably effective counsel would have recognized that Mann’s explanation was contrary to the only evidence in the case concerning where Caler was in the house immediately prior to being stabbed and would have made sure the jury was not misled on this crucial point. Yet the district court excused counsel’s failure to object to Mann’s statement to the jury by pointing out that it was made in Mann’s rebuttal argument (to which the defense was not given the opportunity to respond) and contending, without citing authority, that Mann’s argument was not objectionable. RE at Tab B, p.39. The district court erred in so ruling; in Texas a statement made in closing argument that is contrary to the uncontroverted evidence is always objectionable. See, e.g., Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983) (“A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he may not use jury argument to get before the jury, either directly or indirectly, evidence which is outside the record.”). Here the only evidence in the record indicating where Caler was when he and his mother were attacked was the Burroughs report – and that report was all the stronger for being based on forensic analysis of the physical

evidence by the prosecution’s own witness. Therefore solid grounds existed for defense counsel to object to Mann’s efforts to place Caler asleep in the lower bunk of his bed. In fact, had the significance of the Burroughs blood spatter report been recognized early on by defense counsel, and then appropriately emphasized during trial and in closing argument, they would already have well fixed in the jurors’ minds that Caler was in the living room, not the bedroom, and Mann likely would not have even attempted his improvised “coming-out-of-the-bottom-bunk” explanation. Thus, the district court clearly erred in finding that Skinner’s trial counsel were not deficient in objecting to Mann’s explanation of the bloody handprint. 2.

Trial counsel’s deficient performance in not recognizing the significance of the Burroughs blood spatter report, failing to provide it to their expert Dr. Lowry, and failing to argue its conclusions to the jury was prejudicial to Skinner’s defense for two reasons. First, the evidence that Twila Busby and Elwin Caler were in the same room at the same time with the assailant would have given the jury another significant fact lending support to Dr. Lowry’s opinion that Skinner was too impaired by

alcohol and codeine to have committed the crime. That opinion, while strong from a scientific standpoint, would have been significantly strengthened on a practical level by evidence that the killer had to have possessed the strength and agility to deal with two of the victims in the same room at the same time. Dr. Lowry confirmed that the blood spatter report – had defense counsel provided it to him – would have solidified his opinion that Skinner could not have committed the murders given his stuporous state at the time the killings took place.

ROA

XIII:309 (evidence that the killer had to deal with two of the victims in the same room at the same time “would have bolstered” his opinion that Skinner, due to his “inebriated state,” could not have been the assailant); id. (“Now, where he’s allegedly beating someone in the same room with a young man that’s 6 - 2, 3, whatever, and weighs 230 pounds, I cannot imagine how anybody being sober can do that, unless they’re pretty agile, but in an inebriated state, it floors me, it’s beyond my comprehension.”) (emphasis added). Even trial counsel agreed at the evidentiary hearing that Officer Burroughs’ conclusions were favorable to the defense and could have bolstered Dr. Lowry’s opinion that Skinner was too incapacitated by alcohol and codeine to have committed the murders. Trial counsel Harold Comer concurred that “if Caler and Twila Busby were in the same room at the same time, the murderer would have [to have] dealt with them both at the same time.”

ROA XII:107.

He found it

“reasonable” to conclude that evidence that Skinner “would have had to have murdered both of them in the same room at approximately the same time” would have “bolstered the defense that Skinner was too intoxicated” to have been the assailant. Id.8 We have already alluded, supra, to a second respect in which the Burroughs blood spatter report would have aided the defense – it would have directly contradicted the theory by which the prosecution was able to explain away Skinner’s handprint near the floor. The handprint was arguably the strongest piece of physical evidence found at the scene supporting the defense theory, and defense attorney Fields rightly emphasized its significance in his closing argument. But, because counsel had failed to use the blood spatter report effectively, they left the door open for the District Attorney to concoct an alternative explanation that eviscerated the value of the bloody handprint to the defense. Thus, had counsel properly used the blood spatter report, the jury would have been left with physical evidence strongly supporting Dr. Lowry’s opinion that

Respondent inexplicably asserted, in cross-examining Comer, that Caler might have been present “in the room at the time Twila was killed,” but not “also attacked” in the same room. ROA XII:183. While “there’s no evidence . . . that the killer stopped beating Twila and started attacking Caler [when he came] into the living room when the attack was going on,” id., it defies common sense to suggest that the killer would have simply continued his assault on Twila and allowed Caler to walk to another part of the house (where, as far as the killer knew, Caler might have obtained a weapon to defend himself or fled the house to summon help). Indeed, Comer himself pointed out that “no evidence . . . would indicate that there was a hiatus between the time Twila was killed and the time that Caler was killed.” Id.

Skinner was at best falling-down drunk and an opinion from Dr. Lowry that it was inconceivable that Skinner could have inflicted fatal wounds on both Twila Busby and Caler while both were in the same room. Both would have bolstered the defense to such a degree that there is a reasonable probability at least one juror would have had reasonable doubt about Skinner’s guilt. In finding to the contrary, the district court began by observing that Dr. Lowry had opined at trial that Skinner was incapable of having committed the crimes regardless of Caler’s location in the house. RE at Tab B, p.40. Apparently the court’s point was that, since the jury did not accept Dr. Lowry’s opinion that Skinner was not capable of performing the relatively easier task of killing Twila and Caler in separate rooms, it did not matter that he did not opine that Skinner could not have performed the more difficult task of killing them in the same room. But the court had it backwards. Whether Skinner was capable of committing the murders that night turned on two factors: the extent of his incapacitation and the difficulty of the task. Certainly the jury would have been more likely to harbor a reasonable doubt about Skinner’s guilt, all other things being equal, if it had been made aware that the task was even more difficult than portrayed by the prosecution. The district court also based its finding of lack of prejudice on the existence of “too many unknown factors.” The first of these was that Officer Burroughs

might not have been correct in his conclusion that it was Twila Busby’s blood on Caler. Id. But there was no possibility that the blood spatter on Caler could have come from anyone else. As the report stated, the blood stains in question were “medium velocity impact spatter” that were “nearly circular” in shape. Tr. 24:21617; PX 75 at 2. Of the four persons known to have been bleeding in the house that night (the three victims and Skinner), only Twila was attacked in such a way as to cause the type of cast-off blood spatter observed by Officer Burroughs on Caler. Thus, even though the blood on Caler was not subjected to DNA testing, the only logical conclusions the jury could have drawn were the same ones Officer Burroughs drew – that the blood must have been Twila’s and that Caler must have been in her immediate vicinity when she was attacked with the ax handle. The district court also cited as an “unknown factor” the possibility, based on the medical examiner’s testimony that Twila was strangled before she was beaten, that she was not conscious and struggling at the same time Caler was in the room. RE at Tab B, p.40. But, even if Twila were unconscious by the time Caler entered the room, we know that the perpetrator was still beating her with the ax handle – otherwise her blood would not have been cast off on Caler. Thus, even Twila’s unconsciousness would not significantly diminish the difficulty the perpetrator would have had in beating Twila with the ax handle in Caler’s presence, then

putting the handle down, finding a knife, and using it to administer several wounds, one fatal, to Caler – all before Caler could defend himself or run to safety. The district court also said that emphasizing the Burroughs report would have “opened the door for the State to highlight the fact that Twila Busby was already unconscious when petitioner was beating her with the ax handle and continued to beat her up inflicting up to fourteen blows, and which beating would have been witnessed by her son.” Id. The only one of these facts that was not already highlighted by the State was that Caler witnessed the beating of his mother. And that fact, while adding to the gruesomeness of the crime, was a fact in Skinner’s favor, because it reduced the likelihood that he could have been the killer and increased the likelihood that his handprint was on the door frame because he was falling-down drunk, not because he had a struggle with Caler in the bedroom. Put somewhat differently, the fact that Caler may have witnessed his mother being beaten is only more damning to Skinner in the eyes of the jury if one assumes that Skinner was the assailant – and the whole point of presenting this evidence would have been to demonstrate that Skinner’s extraordinary physical impairment made it impossible for him to have been the person who both beat Twila as Caler watched, then managed to change weapons and attack Caler himself. The district court thus committed the fallacy of assuming that which the prosecution was obliged to prove, and then reasoning from that assumption to its conclusion of “no prejudice.”

The district court also pointed to evidence in the trial record that Caler, while physically imposing,9 was “‘slow’ and had diabetes and muscular dystrophy, such that he could not work.” Id., citing Tr. 27:770-71. Besides overstating the extent and credibility of this evidence,10 the court overlooked the trial testimony of the medical examiner, who found Caler not to be physically disabled, and who noted no impairment that would have compromised Caler’s ability to defend himself. Tr. 28:1212. And there was no evidence whatsoever to suggest that Caler lacked the instincts of any normal person – to protect his mother and himself and/or to flee to safety when faced with mortal danger. Thus, the fact that Caler may have had some physical or mental limitations does not mean he would have been an easy target, especially for someone in Skinner’s condition, and the district court was in error in blithely assuming otherwise. Finally, and more fundamentally, in all of its analysis of the blood spatter aspect of Skinner’s IAC claim, the district court failed to apply or even mention the Strickland prejudice standard. Instead, the court simply listed “unknowns” that it contended might have diminished the value of the Burroughs blood spatter report. Ultimately, the issue for the jury was whether Skinner was too impaired by alcohol

Caler was six feet, six-and-a-half inches tall and weighed 225 pounds. Tr. 28:1211-12.

Twila Busby’s mother, Beverly Clark, testified that Caler was mentally retarded and had muscular dystrophy, but she conceded on cross-examination that he exercised by running and was “a pretty good basketball player.” Tr. 26:710-11, 27:771, 27:777.

and codeine to have been able to kill three people using only his bare hands, a knife and an ax handle as weapons. The blood spatter evidence had the dual benefit to the defense of demonstrating that the task was more difficult than the prosecution claimed (i.e., that the killer had to deal with two victims in the same room) and the defendant less capable (i.e., that Skinner’s physical incapacitation was reflected in his leaving a handprint near the bottom of the door frame in the boys’ bedroom). That the prosecutor might have had a thing or two to say in response to this evidence does not end the Strickland prejudice analysis. Rather, what Strickland requires in this case is a determination of whether in the totality of the circumstances there is a reasonable probability that proper use of the Burroughs blood spatter report would have raised enough additional doubt about guilt to tip the balance for at least one juror in Skinner’s favor. Given that proper utilization of the Burroughs blood spatter analysis would have substantially bolstered the already substantial evidence that Skinner was too impaired by alcohol and codeine to commit the murders, such a reasonable probability exists here. B.

Counsel Were Ineffective in Failing to Conduct Additional Investigation of Robert Donnell.

Skinner’s trial counsel also performed deficiently in pursuing one of their chosen defense theories: that Robert Donnell, rather than Skinner, was the murderer. The district court denied this claim on two grounds: that counsel’s termination of their investigation of Donnell before discovering the evidence 30

Debra Ellis would have provided was not deficient performance and that Skinner in any event was not prejudiced by the failure to present this evidence. 1.

Counsel Were Deficient Under Wiggins for Failing to Pursue Their Investigation of Donnell to the Point of Finding and Presenting the Testimony of Debra Ellis.

First, the district court erred by proceeding from a premise applied far outside its proper context – the cautionary principle that “a reviewing court should be wary of claims that an attorney failed to present enough evidence of a certain type.” RE at Tab B, p.48. (emphasis in original; citation omitted). For two reasons, the district court’s reflexive resistance to assessing counsel’s performance is out of step with the requirements imposed by the Supreme Court and this Court. Most important, the district court’s premise, taken to its logical conclusion, would conflict with the analytical framework the Supreme Court has articulated, which emphasizes that it is necessary to determine what a reasonable attorney would do in a given situation, rather than focusing in isolation on what trial counsel in fact did. A reviewing court must proceed by first identifying what reasonable counsel would have done when faced with the same options, and then comparing counsel’s performance against that objective standard. See, e.g., Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005) (when assessing the reasonableness of counsel’s investigation, the key question is, in light of the “evidence already known to

counsel,” “whether the known evidence would lead a reasonable attorney to investigate further”) (citing Wiggins, 539 U.S. at 527). This Court’s cases contemplate that counsel may be found to have performed deficiently in failing to develop and present “enough evidence of a certain type,” if developing and presenting further evidence was what the standard of practice required in the circumstances of the case. In Martinez v. Quarterman, 481 F.3d 249, 254-55 (5th Cir. 2007), for example, trial counsel had conducted some initial investigation into evidence of defendant’s temporal lobe epilepsy as a potential mitigating factor; this Court considered whether prevailing professional standards would have required additional investigation into that condition. The Court ultimately excused counsel’s decision not to investigate into the defendant’s temporal lobe epilepsy further because the record showed that trial counsel reasonably feared that further investigation would uncover information that would have been detrimental to the defendant – not because of any overriding conceptual prohibition on assessing whether counsel should have “gone further” than they admittedly did. Id. at 255; see also, e.g., Diaz v. Quarterman, 228 Fed. Appx. 417, 421 (5th Cir. 2007) (unpublished) (granting COA on claim of ineffective assistance of counsel predicated on counsel’s failure “to adequately investigate and present readily available . . . evidence,” absent any suggestion counsel had completely failed to investigate).

Similarly, in Tenny v. Dretke, 416 F.3d 404 (5th Cir. 2005), this Court granted relief where counsel had failed adequately to investigate the defendant’s self-defense claim. Although this Court was not required to resolve the deficient performance prong (as the State waived that issue), it observed that the district court had found deficient performance based on trial counsel’s failure “to fully investigate and call” two witnesses, the fact that he “investigated but failed to call” two others, and “called but failed to elicit key testimony from” three more. Id. at 408 n.23; see also id. at 409 (same). This Court noted nothing improper about the district court’s having found deficient performance on such facts – but such a finding would be impossible to reconcile with the sweeping reasoning of the district court in Skinner’s case.

Simply put, this Court has long appreciated that

the fact that trial counsel conducted some investigation or presented some defense, standing alone, does not automatically defeat an allegation of deficient performance. See, e.g., Anderson v. Johnson, 338 F.3d 382, 393 (5th Cir. 2003) (describing as “feckless” the State’s argument that the petitioner’s ineffectiveness claim was meritless because “trial counsel did mount a defense” and called witnesses to support it) (emphasis in original). The district court’s second error was in not recognizing the key distinction between an attorney’s preparation for trial and his conduct of the defense at trial. While post-trial “complaints of uncalled witnesses are not favored,” that

prescription flows from the fact that “the presentation of testimonial evidence is a matter of trial strategy;” no such limitation applies to a claim that trial counsel failed fully or properly to investigate. Miller, 420 F.3d at 362; see also, e.g., Henderson v. Sargent, 926 F.2d 706, 711 (8th Cir.), amended, 939 F.2d 586 (1991) (distinguishing “decision[s] related to trial strategy” from those “related to adequate preparation for trial,” and noting that decisions about investigation fall into the latter category); Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993) (while counsel’s “informed strategic choices” generally deserve “great deference,” a reviewing court properly may “closely scrutinize” his “preparatory activities”); cf. Ruiz v. Quarterman, 504 F.3d 523, 528 (5th Cir. 2007) (describing a claim of “failure to investigate” as “according trial counsel far less deference than that given to tactical decisions of presentation,” and as “more easily sustained than a claim of poor choices in presenting . . . evidence”); Bryant v. Scott, 28 F.3d 1411, 1419 (5th Cir. 1994) (considerations that might support “a strategic decision not to call [a particular witness] at trial” do not necessarily excuse a failure to investigate that witness before trial); Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) (“[O]ur usual deference to tactical decisions is not relevant” when counsel’s decisions rest on “information that was faulty because of [ ] ineffective investigatory steps”).

Put another way, it is entirely appropriate to exercise caution about faulting counsel for choosing to call, e.g., two of four available witnesses that counsel has identified in the course of a thorough investigation. But here, Skinner’s counsel were completely unaware of Debra Ellis’ existence and made no reasoned choice not to call her. The district court also erred in concluding that trial counsel’s investigation of Donnell was professionally adequate. First, the court’s assertion that counsel had no duty to investigate further because there were no “indications from the known evidence that further investigation would be fruitful,” RE at Tab B, p.50, is clearly erroneous. Trial counsel’s own testimony at the hearing (and, indeed, their presentation of evidence pointing to Donnell at trial) demonstrates that counsel’s early investigation of Donnell produced helpful evidence and that counsel abandoned that line of inquiry despite having found no reason to believe that further investigation would not produce additional useful information, and did so without any strategic justification whatsoever. A brief review of the evidence makes this point clear. Strickland directs this Court to “reconstruct the circumstances of counsel’s challenged conduct,” in order to “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

Prior to trial in this case, Skinner’s

counsel – as they acknowledged in the hearing below – firmly decided to cast

suspicion on Donnell as the real killer.11

They possessed “information that

[Donnell] had a history . . . of being violent,” “particularly with Twila.” ROA XII at 200; see also id. at XII:152 (“[s]omeone” had “suggested that Robert Donnell had been aggressive towards Twila”). Accordingly, counsel decided to develop and present evidence casting suspicion on Donnell. See ROA XII:150 (Comer) (“it [was] part of the defense strategy to cast suspicion on Robert Donnell”); id. at I:200-01 (Comer) (“we thought it was good trial strategy to give the jury another reason to find the evidence [against Mr. Skinner] insufficient because the state did not investigate Mr. Donnell”). At trial, defense counsel called witnesses solely for the purpose of advancing the theory that Donnell might have committed the murders and then directed the jury’s attention to that testimony at closing. See Tr. at 29:1268-82 (testimony of Sara Mitchell), 29:1291-1302 (testimony of Sherry Baker), 30:1577 (closing argument of Comer, observing that the State had “just about as much evidence on Henry Skinner as the Defense had on Robert Donnell,” and reminding jurors that the Donnell evidence was offered to present “an alternative” to Skinner), 30:1589 (closing argument of Fields, pointing out that no alibi had been offered for

In other words, counsel’s failure to develop additional available evidence pointing to Donnell cannot be excused on the grounds that the defense only developed that theory by (e.g.) fortuitously seizing on information that first became known to them in the course of trial itself. Defense counsel knew well before trial that they would present evidence in an attempt to implicate Donnell. See text infra.

Donnell’s whereabouts at the time of the murders, and suggesting that Donnell might have pursued Twila home after the party and decided to try to have sex with her after he “saw Mr. Skinner comatose on the couch”). While directing suspicion toward Donnell was not the sole basis of Skinner’s defense at trial, it was plainly a substantial part of his defense, and counsel had identified it as such well in advance of trial. They were thus obliged to develop it fully. See Soffar v. Dretke, 368 F.3d 441, 473 (5th Cir. 2004) (“The scope of . . . defense counsel’s pretrial investigation necessarily follows from the decision as to what the theory of defense will be”). The hearing testimony in the court below revealed that trial counsel’s investigation into Donnell – notwithstanding their having consciously decided to put that theory before the jury as part of Skinner’s defense – was haphazard and superficial. Moreover, the record compels the conclusion that counsel abandoned that investigation prematurely and absent any strategic reason for doing so. Comer never offered any coherent explanation for why the defense stopped investigating Donnell when it did.

Asked whether he or anyone under his

direction had “conduct[ed] an investigation of Robert Donnell to try to come up with evidence that would cast suspicion on him as an alternate suspect,” Comer simply described what he recalled about the evidence the defense actually presented at trial concerning Donnell.

ROA XII:150-51.

Asked specifically

whether he had “made a conscious decision to stop investigating Robert Donnell,”

Comer admitted that he had not. See id. at I:151. Questioned by Respondent’s counsel, Comer stated confusingly that the defense “didn’t think it would be worth the endeavor to continue the [Donnell] investigation to a conclusion, much like a detective would or much like – we wouldn’t conduct the same type of investigation for that matter, because we wanted to try that case with an alternative to the jury.” ROA XII:202. In short, despite being given a full opportunity to account for their conduct of the investigation, Skinner’s trial counsel could offer no explanation for why they terminated their investigation into Donnell, nor even any recollection of having consciously brought that investigation to a close. The record is clear, however, that counsel did not determine that their investigation was no longer yielding useful or helpful information about Donnell as a possible alternative suspect. Nor did counsel conclude that it was necessary to direct their limited resources to some other aspect of the defense, or simply that they had gathered “enough” evidence to substantiate Donnell as a potential suspect. Nor is there any indication that counsel acted out of concern that they might, by continuing to investigate Donnell, develop evidence that would be affirmatively unhelpful to Skinner. Instead, at some point the defense just stopped looking for information about Donnell. That counsel made no “strategic” judgment to quit when they did is apparent from their concession that, had they possessed additional credible evidence raising suspicions about

Donnell, they would have had presented it. See, e.g., ROA XII:151-52 (Comer: the defense “probably would have” presented such evidence); id. XII:202 (Comer: “[H]ad we had knowledge of more [evidence about Donnell] we would have used more”). In Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992), this Court observed that when counsel is alleged not to have performed some important task related to preparing the defense, the “pivotal point” for Strickland purposes is “[w]hether counsel’s omission served a strategic purpose.” Id. at 158 (footnote omitted); see also Anderson v. Johnson, 338 F.3d 382, 393 n.51 (5th Cir. 2003) (same, citing Loyd). The Court emphasized that “[t]he crucial distinction between strategic judgment calls and plain omissions has echoed in the judgments of this court;” see also Nealy v. Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985) (in every pre-Nealy case in which the Fifth Circuit approved counsel’s limiting his pretrial investigation, it found that “counsel’s decision not to investigate was part of a clearly developed defensive strategy”).12

In Loyd itself, the Court found that

By way of illustration, Loyd cited, inter alia, Profitt, 831 F.2d at 1249 (refusing to accord the “usual deference to tactical decisions” where counsel’s omission presented “no advantage” to the defense); Cook v. Lynaugh, 821 F.2d 1072, 1078 (5th Cir. 1987) (failure to investigate is not a strategic choice); Selvage v. Lynaugh, 842 F.2d 89, 95 (5th Cir. 1988) (counsel made a reasonable strategic decision not to investigate defendant’s mental background because state rebuttal could turn that evidence against the defendant); Kramer v. Butler, 845 F.2d 1291 (5th Cir. 1988) (counsel’s decision not to pursue a second independent psychiatrist was reasonable where no facts indicated an insanity defense was tenable); Mattheson v. King, 751 F.2d 1432, 1440 (5th Cir. 1985) (limits on investigation fell “within the realm of sound trial strategy”); Bell

counsel performed deficiently where he made only “several half-hearted attempts” to secure expert assistance for the defense, and then “abandoned” those efforts “for no strategic purpose.” Id. at 152-56. Nor, in the years since Loyd, has this Court hesitated to find deficient performance in the rare cases in which counsel’s failure to investigate was not supported by some reasonable strategic or tactical justification. See Miller, 420 F.3d at 362 (finding counsel’s lack of investigation deficient where counsel’s posttrial affidavit “offer[ed] no tactical or strategic explanation for this lack of investigation”); Anderson, 338 F.3d at 393 (emphasizing, in finding trial counsel’s performance deficient, that “there is no evidence that counsel’s decision to forego investigation was reasoned at all,” as it “was not part of a calculated trial strategy”) (emphasis in original; internal quotation marks and footnote omitted); Draughon v. Dretke, 427 F.3d 286, 296 (5th Cir. 2005) (finding counsel performed deficiently in not seeking forensic evaluation of key trial evidence, where trial counsel in their “three [post-trial] affidavits . . . did not assert that they made a ‘strategic decision’ not to develop [evidence],” and instead simply recited the steps they actually took to prepare the defense); Soffar, 368 F.3d at 473-74 (finding counsel performed

v. Lynaugh, 828 F.2d 1085 (5th Cir. 1987) (emphasis on strategic motives underlying counsel’s decision).

deficiently where they “offered no acceptable justification for their failure” to interview a key witness). All these cases simply represent a straightforward application of the familiar rule that counsel may choose to forego particular lines of investigation where “reasonable professional judgments support th[ose] limitations.” Strickland, 466 U.S. at 691 (emphasis added). Where, as here, the record reveals no considered basis for counsel’s failure to conduct a full investigation into an area previously identified as important to the defense, counsel’s performance falls below prevailing standards. See Nealy, 764 F.2d at 1178 (where trial counsel did not “choose, strategically or otherwise” to limit his investigation, his performance in that regard “cannot withstand sixth amendment scrutiny”) (emphasis in original). Counsel’s inability to offer an explanation for abandoning their investigation into Donnell compels a finding of deficient performance, as this Court need not “fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all.” Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). In light of this Court’s consistent treatment of this issue, it cannot sustain the district court’s conclusion that Skinner’s trial counsel in this case made a reasonable, strategic judgment that their investigation into Donnell was at an end because they were no longer obtaining useful or helpful information about him.

There is no evidence that counsel even made a conscious decision to stop the investigation.

Instead, it just trailed off.

That is not a “strategic” judgment

according to any meaningful definition of the term. If trial counsel’s action in foregoing additional investigation into Donnell could even be called a “decision,” it was an unreasonable one. Strickland protects counsel to the extent that counsel’s claimed strategic justifications are supported by the results of an investigation that complies with professional norms. “[T]he Supreme Court define[s] the deference owed such strategic judgments [by trial counsel] in terms of the adequacy of the investigations supporting those judgments.” Soffar, 368 F.3d at 473 (citation omitted). Trial counsel’s strategic decisions are entitled to deference only if they are supported by an appropriately thorough investigation. Lewis v. Dretke, 355 F.3d 364, 368 (5th Cir. 2003) (it is “axiomatic” that a decision “cannot be credited [as] tactics or strategy unless it is grounded in sufficient facts, resulting . . . from an investigation that is . . . adequate for that purpose”); White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005) (“The strength of the presumption [that counsel’s strategic decisions were reasonable] turns on the adequacy of counsel’s investigation”); Bigelow, 367 F.3d at 574 (“[I]t does not invariably suffice that a lawyer make some efforts to investigate a case; the proper inquiry is whether the known evidence would [have led] a reasonable

attorney to investigate further.”) (citation and internal quotation marks omitted; emphasis in original). In short, reasonable counsel must “investigate further” as long as they “uncover[] no evidence in their investigation to suggest that ... further investigation would [be] fruitless.” Wiggins, 539 U.S. at 525, 527. By their own admission, trial counsel’s investigation of Donnell never reached that point. Therefore, under Wiggins and Rompilla v. Beard, supra, counsel acted unreasonably in ceasing to investigate. See ROA XIII:455-56.13 In their evidentiary hearing testimony, trial counsel did not identify any information uncovered by their investigation that undermined their theory that Donnell might have committed the murders. Counsel had a limited amount of information, to be sure, but all of the evidence counsel knew about, or had discovered through their other efforts, supported their theory that Donnell made a good alternative suspect. In these circumstances, counsel performed deficiently in failing to continue investigating to develop the favorable evidence as fully as possible.

Where a particular line of investigation is producing helpful results, reasonable counsel would continue to pursue it. See, e.g., Bigelow, 367 F.3d at 572 (counsel deficient for ending investigation before anything “suggest[ed] that further investigation would be futile or damaging,” and the known evidence “suggested just the opposite”); Harries v. Bell, 417 F.3d 631, 639 (6th Cir. 2005) (where initial investigation “produced viable leads,” counsel’s subsequent “failure to follow these promising leads leaves no room for debate that their truncated investigation was deficient”) (citation and internal quotation marks omitted).

The district court also erred in concluding that Skinner made no showing that reasonable counsel would have located Ellis. See RE at Tab G, p.4. That conclusion is insupportable in light of the hearing testimony from Ellis herself, trial counsel, and capital defense expert Taylor.

Taylor confirmed that under

controlling Supreme Court law, once trial counsel made the decision to point the finger at Donnell, they were obliged to continue investigating him until it became clear that further investigation would be fruitless. See ROA XIII:455-56. Ellis testified that she was a longtime next-door neighbor of the Donnells, was close friends with his wife, and was present when the police broke the news to Donnell about the murders – to which startling news Donnell had remarkably little reaction. ROA XII:46. In other words, Ellis was hardly some distant observer with only a remote connection to Donnell. Any reasonably thorough investigation into Donnell as a suspect would have included a canvass of Donnell’s neighborhood and an inquiry into how Donnell reacted to the news of the murders, and either of those lines of inquiry would have led directly to Ellis.14

Contrary to the district court’s

For example, any minimally adequate investigation attempting to corroborate Donnell’s potential involvement in the murders would have gathered examples of his violent nature and would have aimed to account in detail for Donnell’s whereabouts on the night of the murders. Canvassing neighbors would have been a routine part of such an investigation.

conclusion, a minimally adequate investigation was highly likely to disclose Ellis as a potential witness. This Court has recognized that how much investigation of a particular sort counsel must pursue “ultimately depend[s] on the overall context of the case.” Bryant v. Scott, 28 F.3d 1411, 1420 n.13 (5th Cir. 1994). In that regard, the Court has observed that “counsel does not have unlimited time,” and accordingly that “counsel’s judgment in the effective use of time is generally entitled to deference.” Id. Moreover, “the need to interview an eyewitness may in part depend on, among other things, the theory of defense,” and “results of interviewing certain witnesses or other investigation may indicate that further pursuit of additional asserted witnesses will likely be a waste of time.” Id. Skinner’s counsel, however, offered no such rationale whatsoever for terminating their investigation into Donnell, which was a key part of their chosen “theory of defense” and as to which nothing had arisen to indicate that “further pursuit” of evidence about Donnell would “likely be a waste of time.” On the contrary, everything counsel’s investigation about Donnell had uncovered had tended to strengthen their portrait of him as a viable alternative suspect in the murders. These unusual facts compel a finding of deficient performance, and the district court erred in concluding the contrary.

There Is a Reasonable Probability that the Dramatic Testimony of Debra Ellis Would Have Affected the Outcome of the Trial.

The district court was also wrong in concluding that Skinner was not prejudiced by counsel’s failure to present Debra Ellis’s testimony. See RE at Tab B, p.48 (asserting that “much of what these witnesses testified to at the evidentiary hearing was similar to evidence presented at trial, in that it was general testimony that Robert Donnell was dangerous and that he and Twila Busby had an argumentative relationship”). That description does not accurately portray Ellis’s testimony. Similarly, the testimony of Debra Ellis could have persuaded the jury that given Donnell’s acts of life-threatening physical violence against his own wife, of which no evidence was presented at trial, he could just as easily have exploded in alcohol-fueled violence against his niece Twila Busby. First, and importantly, Ellis was a credible witness. She was a 25-year resident of Pampa and was employed full-time in delivering home medical equipment for the National Home Health Care. ROA XII:21. Ellis has no criminal history, and nothing indicates that her recollections about Donnell were impaired by the passage of time, poor memory, etc. Second, Ellis was not a “distant” neighbor of the Donnell’s. Instead, she had a longtime, close relationship with Donnell’s wife – the two were so close, in fact, that Ellis called her “my grandmother.” Id. at XII:22. Ellis had contact with Mrs.

Donnell “every day,” often “two or three times a day,” and on “probably 80 percent” of those occasions, Robert Donnell was present as well. Id. at XII:22; XII:36; see also id. at XII:41 (Ellis was “over there [at the Donnell’s house] all the time”). By the time of the events surrounding Skinner’s arrest and trial, Ellis had been very familiar with Donnell for three years. Id. at XII:34. As a witness with unusually intimate access to the Donnells’ home and their private lives, Ellis would have provided both general testimony about Donnell’s drunkenness and violence and specific testimony about Donnell’s suspicious behavior shortly after the murders. With respect to the former, Ellis would have testified that Donnell was a “[v]ery big guy,” who owned a gun and carried a knife. Id. at XII:28. Moreover, on one occasion, she had seen Donnell use that knife to threaten his wife’s grandson. Id. at XII:28-29. Donnell “was not a nice person;” he drank heavily, and his temper worsened when he had been drinking. Id. at XII:30. Donnell also frightened his wife, Willie Mae Gardner, by pushing her and yelling at her; once he grabbed her by the throat and lifted her off her feet up against the wall. Id. at XII:49-50. Donnell owned and often wore a windbreaker jacket; a jacket of that type was found next to Twila Busby’s body. Id. at XII:3031 (confirming that Donnell wore such a jacket “on a regular basis”); PX 77 at 2 (item 5118) (a man’s windbreaker jacket, with blood spatter and human hairs on it, was found on the living room floor next to Twila Busby’s body).

When Donnell was informed that his niece and both her sons had been brutally slain, all he said was, “[O]kay.” ROA XII:39. Donnell “was not upset,” “had not been crying,” and “acted like it was . . . [j]ust an ordinary normal day for him.” Id. at XII:26. He showed “no emotion at all” in response to the shocking news of the triple murder.

Id. at XII:46. This was particularly unusual because

Donnell was not a totally unemotional person; he generally “empathized with other people’s hurts and injuries.” Id. Donnell’s impassivity in the face of this startling news was so unusual that it led Ellis to wonder at the time whether he might have had something to do with the murders. Id. at XII:44. Most remarkable of all was the fact that Donnell, within days of the murders, essentially dismantled his vehicle in order to give it an almost fanatically thorough cleaning. Donnell’s vehicle was “an old beat up truck,” a small pickup of Japanese make. See Id. at XII:24. There was “[n]othing special about it;” it “was just a plain Jane truck,” a “clunker.” Id. Nonetheless, shortly after the murders, Ellis saw Donnell, on a January day very shortly after the murders when it was “cold outside,” stripping the interior of his truck down to the metal floorboards and giving it a vigorous cleaning. Id. He “had taken all the carpet out of the truck,” and “was out there with one of these big old five gallon buckets,” containing a solution of astringent cleaner – “Pine Sol” or something that smelled like it. Id. at XII:23. Ellis could also have confirmed that it was not Donnell’s habit to keep his

“beat up” old truck sparkling. Ellis expressed her surprise to him when she saw him hard at work on the truck, asking, “What the heck are you doing?” Id. at XII:25. She had “[n]ever seen him clean the truck at all before,” much less in such a thorough, intense manner. Id. at XII:24. Donnell spent “a few hours” at the task, which involved taking “everything out of the truck,” “all the seats and everything.” Id. at XII:24. “Anything that would come out of the truck, he took out . . .” Id. at XII:23-24.

After Donnell had removed everything above the floorboards, he

scrubbed the entire interior of the truck cab with the Pine Sol solution and then hosed it out thoroughly. Id. Although he replaced the seats, he never put the carpet back in. Id. at XII:24. Within two weeks of giving his unremarkable pickup truck this “extensive cleaning,” Donnell went so far as to repaint it by hand, using “a paint brush and a spray can.” Id. at XII:26, XII:42. Donnell’s actions were entirely out of character; as Ellis described it, Donnell was “just not the kind of person” who would invest any significant effort in keeping his run-down old pickup squeaky clean. See ROA XII:41; see also id. at XII:40. Thus, through Debra Ellis, defense counsel could have presented the astonishing picture of Donnell – after showing no emotion when informed that his niece and her two sons had been slaughtered in their home – energetically dismantling his “plain Jane” pickup almost immediately after the murders and subjecting it to a manic scrubbing with astringent cleaner, down to the bare metal

floorboards. Faced with this testimony, jurors could not help but question why Donnell was going to such extraordinary lengths to conceal or eradicate, so close in time to the murders. None of these facts were before the trial jury. Contrary to the district court’s view, they collectively create a significantly stronger portrait of Donnell as the probable killer than the evidence trial counsel actually presented at trial. Even the district court acknowledged the favorable character of Ellis’ testimony. See RE at Tab B, p.50. Its stated reasons for discounting this evidence – that “Donnell exhibited no injuries, no blood or anything else of significance was seen in his pickup, and no bloody clothes of Donnell’s [were] ever found . . . ,” id. – are unpersuasive. Donnell’s purported lack of injuries is speculative, as he may well have had injuries where Ellis could not have seen them (i.e., under his clothing), and are irrelevant in any event, as there is no reason to think Donnell necessarily would have been injured in committing the murders. The absence of “blood or anything else of significance . . . in his pickup” is best explained by the fact that Donnell so thoroughly cleaned it out, as no testimony indicated that Ellis saw inside the truck between the time of the murders and when Donnell subjected it to his thorough cleaning. And the fact that no bloody clothes of Donnell’s were ever found is actually consistent with the inference that he was cleaning his truck to remove physical evidence of the murders – because Donnell would have taken

the same care to hide or destroy the bloody clothing that he took to eliminate any incriminating evidence from his truck. Moreover, in assessing the probable impact of Ellis’s testimony, this Court should take into account not only the compelling testimony Ellis gave at the evidentiary hearing but also her testimony the district court improperly refused to admit. Ellis was also prepared to testify that Donnell’s wife (who was deceased at the time of the evidentiary hearing) had made excited utterances to Ellis concerning numerous incidents of extreme violence by Donnell against his wife – namely, that Donnell had choked her, put a gun to her head and threatened to blow her head off. See ROA XII:49. Respondent’s hearsay objection to that testimony was sustained by the magistrate judge despite the fact that Ellis saw Donnell’s wife, the declarant, “in an upset, agitated, emotional state,” a condition which was “close in time to the event that [had] triggered it,” and despite the fact that the terrifying triggering event was “something in [the declarant’s] relationship with . . . Donnell.” ROA XII:31-32. Thus, as Skinner’s counsel argued to the magistrate judge, the proffered testimony from Ellis satisfied the “excited utterance” exception to the hearsay rule. See United States v. Hefferon, 314 F.3d 211, 222 (5th Cir. 2002) (“excited utterance” exception to hearsay rule applies when statements “relat[e] to a startling event or condition” and were “made while the declarant was under the stress of excitement caused by the event or condition”)

(citation omitted); see also, e.g., United States v. Arnold, 486 F.3d 177, 184 (6th Cir. 2007) (the “ultimate question” under Rule 803(2) is “[w]hether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event;” court finds statement made during a 911 phone call for help by a person who had been “threatened by a convicted murderer wielding [a] handgun,” made “soon after” the event, qualified as an “excited utterance”); United States v. Bercier, 506 F.3d 625, 630 (8th Cir. 2007) (“excited utterance” is one that is “spontaneous, excited or impulsive” and not “the product of reflection and deliberation”). Nor was there any indication that Donnell’s wife had a motive to fabricate her account. See United States v. Jennings, 496 F.3d 344 (4th Cir. 2007) (excited utterance exception rests on the “assumption that an excited declarant will not have had time to reflect on events to fabricate”) (citation omitted). In short, the record before the district court squarely established that the statements of Donnell’s wife to Ellis constituted an “excited utterance” under Rule 803(2). The court thus abused its discretion in excluding this portion of Ellis’ testimony, and this Court should consider the entirety of Ellis’ testimony about Donnell in assessing prejudice from trial counsel’s failure to develop and present Ellis as a witness at trial. Even without the evidence of Donnell’s violence toward his own wife, though, Debra Ellis’s testimony was more than enough to find prejudice. The

Court need not find that the evidence counsel failed to develop and present at trial conclusively exonerates Skinner in order to conclude that he has shown Strickland prejudice. In Tenny, this Court found prejudice despite acknowledging that a reasonable jury, after hearing the omitted evidence, could still have rejected Tenny’s self-defense claim and convicted him. Tenny, 416 F.3d at 411.

But

because the testimony never presented in that case was “powerful” and would have left the jury with a “markedly different landscape” such that “at least one juror would have refused to return a verdict of guilty,” Strickland prejudice was established. Id. (citing Soffar, 368 F.3d at 479) (emphasis added). See also, e.g., del Toro v. Quarterman, 498 F.3d 486, 490 (5th Cir. 2007) (to demonstrate Strickland prejudice, a petitioner “need not prove by a preponderance that the result of the proceedings in the trial court would have been different, but he must sufficiently undermine confidence in the outcome to illustrate that . . . the outcome of the proceeding [is] unreliable . . . .”) (citation omitted). The testimony of Debra Ellis readily meets this standard. Trial counsel’s strategy to point the finger at an alternative suspect would have received a dramatic boost from that testimony. In the language of Tenny, Ellis’s testimony would have been “powerful,” presenting a “dramatically different landscape” and creating a reasonable probability that at least one juror would have refused to return a

conviction. The district court’s failure to find ineffective assistance of counsel on this ground was therefore erroneous and should be reversed. 3.

The District Court Erred in Failing to Assess Prejudice Cumulatively.

Respecting the two aspects of Skinner’s claim of ineffective assistance of counsel upon which this Court has granted a COA (i.e., counsel’s deficient performance with respect to the blood spatter report, and counsel’s deficient performance respecting investigating Robert Donnell), the district court found insufficient prejudice under Strickland to warrant relief.

The district court,

however, assessed prejudice strictly element by element, without regard for the cumulative impact of counsel’s errors and omissions. That was error; the law required the district court to consider whether the cumulative effect of counsel’s errors was prejudicial. Wiggins, 539 U.S. at 534; Williams v. Taylor, 529 U.S. 362, 397-98 (2000). This proposition is so well-settled that at least one federal court has found that a state court, in failing to apply it, acted objectively unreasonably. See, e.g., Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006) (evaluating each of counsel’s deficiencies “in isolation,” rather than considering “the pattern [of] deficiencies . . . in their totality,” was objectively unreasonable under

Strickland).15 See also, e.g., John H. Blume and Christopher Seeds, Reliability Matters: Reassociating Bagley Materiality, Strickland Prejudice, and Cumulative Harmless Error, 95 J. CRIM. L. & CRIMINOLOGY 1153, 1155 (2005) (recent Supreme Court decisions confirm that “with respect to ineffective assistance of counsel claims defense counsel’s conduct ‘taken as a whole’ must be considered in assessing prejudice”) Even if this Court agrees with the district court that Skinner was not prejudiced by either counsel’s deficient performance with respect to the blood spatter report, or counsel’s deficient performance respecting investigating Robert Donnell, the Court should find that the cumulative effect of those two errors so undermines confidence in the outcome of Skinner’s trial that relief is warranted. Both these errors went to the heart of the case – whether Skinner, in his extraordinarily intoxicated state, could have committed the murders and whether

See also Moore, 194 F.3d at 619 (considering counsel’s “cumulative errors”); Albrecht v. Horn, 485 F.3d 103, 138-39 (3rd Cir. 2007) (same); Schofield v. Holsey, 642 S.E.2d 56, 60 n.1 (Ga. 2007) (court must consider “the combined effects of trial counsel’s errors,” citing Strickland). Waits v. State, 644 S.E.2d 127, 132 (Ga. 2007) (“[I]t is the cumulative prejudice of counsel’s errors which is constitutionally relevant”); Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005) (considering “the cumulative effect of counsel’s errors . . .”); Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005), (same) (citation omitted); Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005), modified on rehearing, 421 F.3d 1154 (9th Cir. 2005) (“[P]rejudice may result from the cumulative impact of multiple deficiencies”) (citation omitted); Sanders v. Ryder, 342 F.3d 991, 1001 (9th Cir. 2003) (“Separate errors by counsel . . . should be analyzed together to see whether their cumulative effect” was prejudicial) (citations omitted).