United States Court of Appeals

Fifth Circuit



## FILED

July 28, 2005

Charles R. Fulbruge III

Clerk REVISED AUGUST 18, 2005

In the United States Court of Appeals

For the Fifth Circuit

_________________________

No. 04-40419

_________________________

KATHY YOLANDE MILLER,

Petitioner - Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee.

_________________________

Appeal from the United States District Court

For the Southern District of Texas, Victoria Division

_________________________

Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Kathy Miller appeals the district court’s denial of her § 2254

petition seeking relief from her sentenc e for engaging in deadly

conduct by riddling the unoccupied home of her in-laws with rifle

fire. We conclude that the state court’s decision that Miller was

not pr ejudiced by her counsel’s failure to conduct a

constitutionally adequate investigation into her mental

disabilities is an objectively unreasonable application of settled

federal law and reverse.1 T EX

. P ENAL C ODE A NN

. § 2 2.05(b)(2) (Vernon 2003) (“A person commits an

offense if he knowingly discharges a firearm at or in the direction of . . . a

habitation, building, or vehicle and is reckless as to whether the habitation,

building, or vehicle is occupied.”).

2 I

Miller was charged and convicted by a jury for the offense of

deadly conduct in violation of Texas Penal Code § 22.05(b). 1 The

evidence showed that Miller had been married to Larry Miller, the

son of Maxine Prismeyer and brother of Laura Kainer. Larry died of

a drug overdose, and although members of the Prismeyer and Kainer

families blamed Miller for his death, she was never charged.

Approximately one year after Larry’s death, Maxine Prismeyer and

her husband Alfred left their nearly completed home in El Campo,

Texas, in the care of Laura Kainer and her husband, Charles Kainer,

for a weekend. The Kainers stayed in a mobile home located

directly behind the Prismeyer residence.

At approximately 2:00 a .m. on December 19, 1998, six rounds

from a .35 caliber rifle were fired into the Prismeyer residence.

Four of the bullets passed through the residence and struck the

mobile home in which the Kainers were sleeping. Charles Kainer

exited the mobile home and saw a truck driving away on the road

fronting the Prismeyer house. Shortly thereafter, local police

spotted Miller’s truck abandoned in a ditch. Miller, who had been

drinking earlier in the evening, was found riding a tractor a short

distance away. She admitted that she had driven her truck into the

ditch and had walked home carrying her .35 calibe r rifle. A DPS3

firearms examiner matched the casings recovered at the scene of the

crime to Miller’s rifle.

At the punishment phase of Miller’s trial, the State presented

evidence that at various times prior to the shooting, Miller had

swerved her vehicle into the path of the Kainers’ automobile, given

the Kainers “the finger,” and mouthed the words “I am going to get

you” to the Kainers while in the checkout line at an HEB grocery

store. The State also presented evidence that Miller had been

charged with resisting arrest while being apprehended on the deadly

conduct charge, and had been charged with public intoxication and

disorderly conduct one week before her sentencing.

Miller’s ex-husband testified on behalf of the defense that,

in 1994, Miller was hospitalized for several weeks after suffering

head injuries in a severe car accident. He stated that as a result

of her accident, she suffered from reverse forward amnesia, posttraumatic stress disorder, and severe clinical depression,

requiring extensive medication and the care of numerous physicians.

He pointed out that before her accident, Miller had been an

industrious and responsible worker. Miller’s aunt testified that

Miller was a good person, and that she hoped to move to Louisiana

to care for her elderly mother after the trial.

Miller testified that she had never been arrested prior to her

husband ’s death. She claimed that she was taking several

medications on account of her accident, and was seeing a number of

physicians, including a neurologist and some ps ychiatrists. She2 This is exemplified in the following exchange between Miller and the

prosecutor:

A. [Miller] I don’t recall ever going by and shooting their

house up. If I did, I apologize for it; but I do not recall

doing it.

Q. [Prosecutor] Oh, gee, you are sorry you a lmost killed the

Kainers. Is that what you are saying?

A. I never said I killed the Kainers , and I never said I tried

to. I said--I don’t remember.

Q. You have a very selective memory, don’t you?

A. Would you l ike to call my doctor? I cannot--I have memory

loss. I have--I had amnesia whenever I was in the car wreck.

I was unconscious f or a long time, and my memory comes and

goes.

Q. Well, let’s talk about your amnesia. You seem to have amnesia

that night, but you just got through giving us very specific

details abou t those incidents at Weiners and HEB and you

remember exactly what happened then when it’s self-serving.

*****

A. Ask me if I remember anything from yesterday. I couldn’t tell

4 stated that she was suffering from a variety of ailments, including

memory loss, severe migraine headaches and a “white matter disease”

that had to be monitored using “MRI’s every so often to see if it’s

still growing.” She asserted that, as a result of her condition,

she had no memory of the shooting incident and could no t recall

mouthing the words “I am going to get you” to the Kainers.

On cross-examination, the prosecutor pointed out that Miller

did not have a close relationship with her mother and had not

r eturned to care for her mother even though she lived only 15 0

miles away. He also assailed Miller’s claim that she was suffering

from memory loss, insinuating that her testimony on this score was

a fabrication. 2 In closing argument, the prosecutor opined:you if I did or I don’t because I don’t remember nothing from

yesterday.

Q. I bet you don’t.

5 And what a wonderfully selective memory she has. She can

remember so many specific detail s about her employment

a nd those types of things. She can remember specific

details about being on the tractor a nd not being

intoxicated. She can remember specific details that

happen at HEB, but she just doesn’t have a clue what

could have happened out there on Cou nty Road 355 on

December the 19th. What does that look like? You have

common sense, ladies and gentlemen. I think you

perfectly well know.

The jury imposed a sentence of eight years and a $5,000 fine, and

did not recommend that Miller’s sentence be suspended.

After sentencing, Miller’s trial counsel, Richard Manske,

aske d Miller if she knew of any evidence that might convince the

court to grant a new trial. Miller told him the names of several

doctors who were treating her for medical and psychiatric problems

resulting from injuries she sustained in her car accident. Manske

contacted internist Arthur Tashnek, neurologist Leonard

Hershkowitz, and clinical psychologist Robert Borda, and obtained

letters from each regarding Miller’s condition.

In his letter, Dr. Tashnek stated that Miller had been a

patient of his since 1991, and that she was suffering from “posttraumatic stress disorder [“PTSD”], gastro esophageal reflux

disorder, irritable bowel syndrome, degenerative disk disease,

memory loss, severe anxiety and depression, and retrograde3 See Miller v. State

, No. 13-00-082-CR (Tex. App.--Corpus Christi July 12,

2001, pet. ref’d) (unpublished).

6 amnesia.” He noted that she was required to maintain a regular

regimen of medica tions, and that her health would suffer

significantly if these medications were not administered.

Dr. Hershkowitz wrote in his letter that Miller was suffering

difficulties with cognitive function, and diagnosed organic brain

syndrome. He noted that Miller’s condition had been documented on

“several very sophisticated neuropsychological tests,” but admitted

that he was unaware of her prognosis or general condition.

Finally, Dr. Borda stated in his letter that he had tested

Miller at the request of Dr. Hershkowitz, and had found indications

of PTSD and post-concussion syndrome. He noted that patients with

severe PTSD exhibit marked feelings of vulnerability, suffer from

depression and high anxiety, and may appear paranoid. According to

Dr. Borda, testing had revealed that Miller suffered from

“cognitive rigidity and poor problem-solving skills which typically

are seen in injuries involving the frontal lobe.” Although he had

not seen Miller in over four ye ars, he stated that her condition

likely had not changed appreciably, and that imprisonment may

exacerbate her PTSD, requiring “intense psychiatric intervention.”

Armed with this evidence, Miller filed an unsuccessful motion

for new trial. Her conviction was then affirmed on direct appeal, 3

and she filed a state habeas application alleging, inter alia

, that

Manske was ineffective for failing to investigate and present4 Miller v. State , No. 55,281-01 (Tex. Crim. App. Mar. 26, 2003).

5 Miller v. Dretke , No. V-03-41 (S.D. Tex. Mar. 25, 2004) (unpublished).

7 evidence from Miller’s doctors about her mental and emotional

problems. Attached to her state habeas application was an

affidavit prepared by Manske in which he admitted that he “did not

prepare much for the punishment phase because I thought that Ms.

Miller would accept the plea bargain offer of deferred adjudication

probation.” He conceded that he could have obtained the doctors’

letters before the punishment phase of the trial, and stated that

in retrospect, he “should have interviewed her doctors before trial

and called them to testify in mitigation of punishment.” The Texas

Court o f Criminal Appeals denied Miller’s application without

written explanation. 4

Miller filed a petition under 28 U.S.C. § 2254 in the Federal

District Court for the Southern District of Texas. The court

denied Miller’s petition and granted the State’s motion for summary

judgment. 5 The court observed that admission of Miller’s medical

evidence was within the trial court’s discretion, and that Manske

could not be faulted for failing to offer it because it established

no connection between Miller’s mental condition and her illegal

actions. Further, the court held that Miller was not prejudiced by

Manske’s failure to present the medical evidence because Miller and

her ex-husband had testified regarding her condition, and the

evidence showed that “Miller was guilty of the crime, had previous6 Id. at 10.

7 Miller v. Dretke , No. 04-40419, at 2 (5th Cir. Aug. 16, 2004)

(unpublished order).

8 28 U.S.C. § 2254(d)(1); see Lindh v. Murphy

, 521 U.S. 320, 324-26 (1997)

(holding that AEDPA applies to all federal habeas applications filed on or after

April 24, 1996). Because Miller’s ineffective assistance claim involves mixed

questions of law and fact, it is reviewed un der § 2254(d)(1). S ee Martin v.

Cain

, 246 F.3d 471, 475-76 (5th Cir. 2001) (mixed ques tions of law and fact

reviewed under unreasonable application prong of § 2254(d)); Moawad v. Anderson

, 143 F.3d 942, 946 (5th Cir. 1998) (ineffective assistance of counsel claims

involve mixed questions of law and fact).

9 See Morrow v. Dretke

, 367 F.3d 309, 313 (5th Cir. 2004); Young v. Dretke

, 356 F.3d 616, 623 (5th Cir. 2004).

8 run-ins with the law, and had attempted to intimidate witnesses.” 6

Miller filed a notice of appeal, and the district court denied

her application for COA. A single judge of our court granted COA

on Miller’s claim that Manske was “ineffective during the

punishment phase of the trial because he failed to present expert

testimony regarding Miller’s medical and psychological problems.” 7

II

A

This appeal is governed by the Antite rrorism and Effective

Death Penalty Act, which provides that habeas relief may not be

granted unless the challenged state court proceeding resulted in

“a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court.” 8 A decision must be more than merely incorrect

in order to constitute an unreasonable application of federal law;

it must be objectively unreasonable. 9 Habeas relief is10 Morrow

, 367 F.3d at 313 (quoting Williams v. Taylor

, 529 U.S. 362, 410-

11 (2000)).

11 See Schaetzle v. Cockrell

, 3 43 F.3d 440, 443 (5th Cir. 2003) (citing

Santellan v. Cockrell

, 271 F.3d 190, 193 (5th Cir. 2001), cert. denied

, 535 U.S.

982 (2002); Neal v. Puckett , 286 F.3d 230, 246 (5th Cir. 2002) (en banc)).

12 Id. (quoting Catalan v. Cockrell

, 315 F.3d 491, 493 & n.3 (5th Cir.

2002) (quotation omitted)).

13 See Busby v. Dretke

, 359 F.3d 708, 713 (5th Cir. 2004) ; Martinez v.

Johnson , 255 F.3d 229, 237 (5th Cir. 2001).

9 “ inappropriate when a state court, at a minimum, reaches a

‘satisfactory conclusion.’” 10

Because we review only the reasonableness of a state court’s

ultimate decision, the AEDPA inquiry is not altered when, as in

this case, state ha beas relief is denied without a written

opinion. 11 In this situation, we assume “that the state court

applied the pro per ‘clearly established Federal law,’” and then

determine “whether its decision was ‘ contrary to’ or ‘an

objectively unreasonable application of’ that law.” 12

We review the federal district court’s factual findings for

clear error and its conclusions of law de novo

. 13

B

On appeal, Miller contends that the state court judgment is an

unreasonable application of “clearly es tablished Federal law, as

determined by the Supreme court,” citing Strickland v. Washington

,

because Manske’s failure to adequately invest i gate her mental

condition, contact her physic i ans, and present expert medical

testimony at the punishment phase of her trial constitutes14 466 U.S. 668, 687 (1984).

15 Wiggins v. Smith

, 539 U.S. 510, 521 (2003) (quoting Strickland

, 466 U.S.

at 688).

16 See Soffar v. Dretke , 368 F.3d 441, 471 (5th Cir. 2004).

17 United States v. Harris

, 408 F.3d 186, 189 (5th Cir. 2 005) (quoting

Strickland , 466 U.S. at 689).

10 ineffective assistance of counsel. Our analysis of this claim is

controlled by the two-prong test of deficient performance and

prejudice set forth in Strickland v. Washington

. 14 We will examine

the application of each prong in turn.

1

We first consider whether the state court unreasonably applied

Strickland in concluding that Manske did not perform in a

constitutiona lly deficient manner at the punishment phase of

Miller’s trial. In order to “establish deficient performance, a

petitioner must demonstrate that counsel’s representation ‘fell

below an objective standard of reasonableness.’” 15 Our scrutiny of

counsel’s performance must be highly deferential, and we must

presume that counsel’s conduct f alls within the wide range of

reasonable professional assistance. 16 Further, we must make every

effort “‘to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.’” 17

To this end, a “conscious and informed decision on trial tactics

and strategy cannot be the basis for constitutionally ineffective18 Johnson v. Dretke , 394 F.3d 332, 337 (5th Cir. 2004) (citations and

internal quotation marks omitted).

19 Wiggins

, 539 U .S. at 521 (internal quotation marks and alteration

omitted) (quoting Strickland , 668 U.S. at 690-91).

20 Id. at 527.

21 See United States v. Green , 882 F.2d 999, 1003 (5th Cir. 1989).

11 assistance of counsel unless it is so ill chosen that it permeates

the entire trial with obvious unfairness.” 18

However, “strategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on

investiga tion.” 1 9 When assessing the reasonableness of an

attorney’s investigation, we must “consider not only the quantum of

evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate further.” 20

To establish that an attorney was ineffective for failure to

investigate, a petitioner must allege with specificity what the

investigation would have revealed and how it would have changed the

outcome of the trial. 21

Turning to the facts of this case, we note th at Manske was

aware prior to the commencement of the punishment phase of Miller’s

trial that Miller had suffered mental and emotional injuries as a

result of her car accident. Manske was also cognizant of the fact

that these injuries comprised mitigating evidence, as indicated by

his decision to elicit testimony about them from both Miller and22 Wilkerson v. Cain

, 233 F.3d 886, 892-93 ( 5th Cir. 2000) (citation and

internal quotation marks omitted).

12 her ex-husband. Despite this knowledge, Manske failed to contact

Miller’s treating physicians, and made no effort to call them as

expert medical witnesses at trial.

We are mindful that “complaints of uncalled witnesses are not

favored” given that “the presentation of testimonial evidence is a

matter of trial strategy.” 22 In this case, however, Manske made his

decision not to call Miller’s physicians as witnesses without

speaking to them, and without even procuring their names. In his

affidavit, Manske offers no tactical or strategic explanation for

this lack of investigation. Rather, he points to his erroneous

belief that Miller would accept the State’s plea bargain offer, and

that Miller would be acquitted or given probation if she refused to

accept the offer, as grounds for his failure to adequately prepare

for the punishment phase of trial.

The State hastens to add that Mansk e could reasonably have

declined to pursue the testimony of Miller’s physicians because he

could reasonably have believed that such evidence would not have

b een admitted at trial. We find this rationale unconvincing.

Under Texas law, psychologi cal evidence is admissible in a noncapital trial at the punishment stage if it is relevant to23 T EX

. C ODE

. C RIM

. P ROC

. A NN

. art. 37.07, § 3(a)(1) (Vernon Sup.

1999)(“[E]vidence may be offered by the state and the defendant as to any matter

the court deems relevant to sentencing[.]”).

24 46 S.W.3d 493 (Tex. App.--El Paso 2001, no pet.).

25 This analysis tracks Texas’s test for evaluating the a dmissibility of

scientific evidence in criminal trials. First, the evidence must be “reliable

(and thus probative and relevant)[,]” and second, the evidence must not b e

“ un helpful to the trier of fact for other reasons.” K elly v. State

, 824 S.W.2d

568, 572 (Tex. Crim. App. 1992); see T EX

. R. E VID

. 702 (“If scientific, technical,

or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the

form of an opinion or otherwise.”).

26 Muhammad , 46 S.W.3d at 498.

13 sentencing. 23 In M uhammad v. State

, 24 the El Paso Court of Appeals

held that a trial court abused its discretion when it excluded

psychological evidence showing that a defendant’s calm demeanor

after shooting his girlfriend was attributable to his introspective

personality whi ch affected his ability to express his emotions

openly. The court found this evidence to be reliable and relevant

to the defendant’s he at of passion defense. 2 5 In reaching this

conclusion, the court observed that “[m]itigating circumstances

relevant to punishment are circumstances which will support a

belief that defendants who comm it criminal acts that are

attributable to such circumstances are le ss culpable than others

who have no such excuse.” 26

Applying these standards, the testimony of Dr. Borda and Dr.

Hershko witz likely would have been admissible at the punishment

phase of Miller’s trial. Dr. Borda is a licensed psychologist who

based his diagnosis on neuropsychological testing he conducted on27 Organi c brain syndrome is marked by “Psychiatric or neurological

symptoms, including problems with attention, concentration, and memory,

confusi on, anxiety, and depression, arising from damage to or disease in the

brain.” S ee Me dicineNet.com, MedTerms Dictionary, Organic Brain Syndrome, a t

http://www.medterms.com/script/main/art.asp?articlekey=11781 (last visited July

21, 2005).

14 Miller. He diagnosed Miller as suffering from PTSD and possible

mild traumatic brain injury resulting in feelings of vulnerability,

depression, high anxiety, appearances of paranoia, attentional

deficits, emotional “blunting,” cognitive rigidity and poor

problem-solving skills. He noted that incarceration in a typical

prison setting wo uld exacerbate Miller’s PTSD, requiring intense

psychiatric int ervention. Doctor Hershkowitz, in turn, is a

neurologist and Diplomat of the American Board of Neurology and

Psychiatry, and noted that Miller’s mental prob lems had been

“documented on several very sophisticated neuropsychological

tests.” Dr. Hershkowitz stated that Miller has “memory problems”

and “a problem with cognitive functi on,” and diagnosed her as

having organic brain syndrome. 27

This evidence would likely have been relevant at the

punishment stage of Miller’s trial in a variety of ways. First,

evidence that Miller had PTSD would have mitigated the effect of

Miller’s prior charges for resisting arrest and disorderly conduct

by providing an explanation for her erratic, paranoid, and hostile

behavior. This evidence would also have provided an explanation

for the shooting incident given that the Prismeyers and Kainers28 At Miller’s trial, Alfred Prismeyer testified that his wife, Maxine, had

told Miller that she wanted Miller dead. He qualified this testimony by noting

that “she didn’t mean it.” While likely not constituting a threat on Miller’s

life, it would have taken on new significance in light of evidence that Miller

suffered from PTSD.

29 We need not pause over the State’s argument that testimony from Miller’s

physicians would have b e en inadmissible because they could not irrefutably

establish a “nexus” between Miller’s criminal acts and her mental condition. The

test for admissibility is r elevance

, and a jury presented with such testimon y

could logically infer the necessary connection. C f. Muhammad

, 46 S.W.3d at 498-

99 (noting that Texas trial courts enjoy “wide latitude in admitting relevant

evidence so long as its admission is otherwi se permitted by the rules of

evidence”).

15 blamed Miller for the death of Larry Miller. 28 Further, evidence

that Miller had memory problems stemming from organic brain disease

would have provided support for her claim that she could not

remember the shooting incident or the altercation at HEB--a claim

that was effectively dismantled by the State’s vigorous crossexamination and closing argument. 2 9 Finally, the jury could have

inferred based on the fact that Miller had not sought treatment in

r oughly four years that her condition could be improved with

consistent therapy, thus building a better case for probation.

The State also contends t hat Manske made an informed and

reasonable tactical decision to forego investigation into Miller’s

mental condition in order to focus his limited resources on more

promising defenses. The State points out that Manske was aware of

Miller’s condition, and argues th at his prediction that Miller

would either accept a plea bargain or be acquitted was reasonable.

This argument misses the point. While Manske may have made

reasonable tactical decisions based on the information that he had

at the ti me, our review must focus on whether the information he30 See Wiggins

, 539 U.S. at 536 (finding that counsel is not in a position

to “make a reasonable strategic choice” when his “investigation supporting [that]

choice was unreasonable”); Bouchillon v. Collins , 907 F.2d 589, 597 (5th Cir.

1990) (“Tactical decisions must be made in the context of a reasonable amount of

investigation, not in a vacuum.”); Profitt v. Waldron

, 831 F.2d 1245, 1249 (5th

Cir. 1987) (finding that “our usual deferen c e to tactical decisions is not

relevant” when the decisions are based on “information that was faulty because

of [] ineffective investigatory steps”).

31 Wiggins , 539 U.S. at 523 (quoting Strickland , 466 U.S. at 688).

32 See Bouc hillon , 907 F.2d at 597 (observing that, in the context of

assessing a client’s competence to stand t rial, “[i]t must be a very rare

circumstance indeed where a decision not to investigate would be ‘reasonable’

after counsel has notice of a client’s history of mental problems”); Profitt

, 831

F.2d at 1249 (holding that counsel had a duty to investigate the mental health

history of a defendant who has been committed to a mental institution); Beavers

v. Balkcom , 636 F.2d 114, 116 (5th Cir. 1981) (holding that counsel had a duty

to obtain medical records and speak with treating physicians upon learning that

h is client had been confined twice to a state mental institution, and had a

“guarded” prognosis).

16 possessed would have led a reasonable attorney to investigate

further. 30 “In assessing counsel’s investigation, we must conduct

an objective review of their performance, measured for

‘reasonableness under prevailing professional n orms.’” 3 1 To this

effect, we have held on a number of occasions that a criminal

defense at torney has a duty to investigate a client’s medical

history when it becomes clear that the client is suffering from

mental difficulties rendering him ins ane or incompetent to stand

trial. 32

While not presenting a potential bar to prosecution, Miller’s

claim that she was suffering from m ental and emotional injuries,

including sel ective amnesia and PTSD, was significant in that it

constituted a basis for minimizing her culpability. Manske

recognized this fact as indicated by his decision to present33 Strickland , 466 U.S. at 694.

17

evidence of Miller’s condition via the testimony of Miller and her

ex-husband. He failed, however, to make any effort to contact

Miller’s treating physicians or otherwise obtain some medi c al

substantiation for her assertions. Rather, he relied solely on the

testimony of Miller and her ex-husband--testimony that was

ridiculed and dis credited by the prosecution. This decision was

supported by a complete lack of investigation; a failure that was

constitutionally inadequate under the circumstances of this case.

The state habeas court apparently concluded otherwise. Although it

is true that the state court could have considered that the jury

heard this same evidence from Miller’s former husband and from

Miller herself, and that the evidence would have been redundant, we

think such a holding was objectively unreasonable. The state

habeas court was objectively unreasonable in holding otherwise.

2

We now turn to Miller’s claimthat the state court

unreasonably applied Srickland when it concluded that she was not

prejudiced by Manske’s inadequate investigation. In order to

establish prejudice under Strickland , a “defendant must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” 33 A reasonable probability is “a probability sufficient34 Id.

35 Wiggins , 539 U.S. at 534.

36 T he Supreme Court has observed that “[t]he 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.” U nited States v. Dominguez Benitez

, 124 S. Ct. 2333,

2340 n.9 (2004).

37 Spriggs v. Collins

, 993 F.2d 85, 88 (5th Cir. 1993). Miller argues that

the “significantly less harsh” standard does not apply because the Texas Court

of Criminal Appeals does not employ such a standard. This argument is wide of

the mark. In Spriggs , we held that

[i]n order to avoid turning Strickland into an automatic rule of

reversal in the non-capital sentencing context, we believe that in

deciding [] an ineffectiveness claim, a court must determine whether

there is a r e asonable probability that but for trial counsel’s

errors the defendant’s non-capital sentence would have been

significantly

less harsh.

993 F.2d at 88. In United States v. Grammas , we held that the Supreme Court’s

decision in Glover v. United States abrogated the significantly less harsh

standard. United States v. Grammas , 376 F.3d 433, 438 (5th Cir. 2004) (citing

Glover v. United States

, 531 U.S. 198, 203 (2001)). We later clarified, however,

that Glover ’s impact was limited to cases involving the federal sentencing

guidelines. G rammas

, 376 F.3d at 438 n.4. Because Miller was sentenced in state

court, the signi ficantly less harsh standard applies to her ineffective

assistance claim.

18 to undermine confid ence in the outcome.” 3 4 When assessing the

prejudice caused by couns el’s failure to present potentially

mitigating evidence, “we reweigh the evidence in aggravation

against the totality of available mitigating evidence.” 35

B ecause Miller is challenging a sentence imposed in a state

court proceeding, she must establish a reasonable probability 36 that

but -for Manske’s errors, her sentence would have been

“ significantly less harsh.” 37 In deciding whether a sentence would

have been significantly less harsh but-for counsel’s error, we

consider a number of factors including:

the actual amount of the senten ce imposed on the

defendant by the s entencing judge or jury; the minimum38 Spriggs , 993 F.2d at 88-89.

19

and maximum sentences possible under the relevant statute

or sentencing guidelines, the relative placement of the

sentence ac tually imposed within that range, and the

various relevant mitigating and aggravating factors that

were properly considered by the sentencer. 38

In its charge to the jury, the state trial court explained

that the punishment authorized for a third degree felony is

imprisonment for any term of not more than ten years or less than

two years, and a fine not to exceed $10,000.00. The court also

instructed the jury that they were allowed to recommend a suspended

sentence and community supervision. The jury assessed a sentence

of eight years imprisonment and a $5,000.00 fine, and did not

recommend that the sentence be suspended. This sentence falls at

the higher end of the sentencing range.

Turning to the relevant mitigating and aggravating factors

cons idered by the jury, the evidence showed that Miller fired

multiple rounds from a .35 caliber rifle into a residence, and

struck a mobile home occ upied by a sleeping couple in the early

morning hours; that Miller had attempted to threaten and intimidate

at least one of the witnesses against her, and had previously been

arrested for public intoxication and disorderly con duct. Miller

proffered evidence that she had been involved in an automobile

accident and was suffering from memory loss and PT SD. She also

testified that she did not remember firing on the Prismeyer

residence or threatening the Kainers, but if she had done so, she20

was “sorry.”

On cross-examination, the State severely undermined Miller’s

claims by pointing out that her memory was “selective,” and that

the jury could decide for itself what to make of her alleged memory

l oss. Had Manske investigated Miller’s medical history and

interviewed her physicians, he coul d have countered the State’s

insinuations with actual medical evidence. Instead, he allowed the

trial to proceed to closing argument without conducting redirect

ex amination on Miller in an attempt to rehabilitate her

credibility.

In addition, had Manske investigated Miller’s medical history

and presented expert testimony regarding her PTSD, he could have

offered an explanati on for why the accusations leveled by the

Kainers and Prismeyers, as well as the threatening statement made

by Maxine Prismeyer, produced such an unusua lly severe reaction

from Miller. As things stood, the jury was left only with the

admittedly self-serving testimony of Mill er and her ex-husband

regarding her medical condition, and could easily have dismissed

such testimony as not credible. Had the jury been allowed to

consider expert testimony presented by even one of Miller’s

treating physicians, the entire case would have been cast in a new

light; namely, Miller would have been viewed as a sick woman, and

her actions those of a person debilitated in mind as well as body.

Accordingly, we find that a reasonable probability exists that the

jury would have assessed a substantially less harsh sentence but-21

for Manske’s failure to present such evidence. Further, given the

radical shift in terrain Miller’s defense would have experienced

had Manske called Drs. Borda and Hershkowitz, we find the state

habeas court’s rejection of Miller’s petition objectively

unreasonable. We recognize that the state court could have

concluded that the sentence would be equally as harsh or even more

harsh because the testimony of the doctors would have empha sized

the dangerousness of the defendant. We find, however, that such a

conclusion is an objectively unreasonable application of

Strickland

, because we assume that the jury would have sentenced to

some degree on the basis of Miller’s moral culpability and the

testimony of these doctors would have given the jury a firm basis

to conclude that Miller was much less morally culpable for her

crime than the jury could have concluded without such testimony.

III

To sum up, we hold that the state court judgment that counsel

was not ineffective is an objectively unreasonable application of

Strickland

. Manske provided ineffective assistance to Miller by

f ailing to conduct reasonable investigation into Miller’s menta l

injuries by not contacting her physicians. This failure to

investigate prejudiced Miller by permitting the State to neutralize

her most effective mitigation evidence, undermine her credibility,

and portray her as an opportunistic lia r to a jury charged with

determining her sentence.22

For these reasons, we reverse the district court’ s judgment

denying habeas relief, and remand this case to that court with

instructions to order the State of Texas to either give Kathy

Miller a new sentencing hearing or release her from custody within

90 days of the date of the district court’s order on remand.

REVERSED and REMANDED with instructions.