(Slip Opinion) OCTOBER TERM, 2004 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BELL, WARDEN v. THOMPSON 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT 

No. 04–514. Argued April 26, 2005—Decided June 27, 2005 

After respondent Thompson was convicted of murder and sentenced to 

death, Tennessee state courts denied postconviction relief on his 

claim that his trial counsel had been ineffective for failing to adequately investigate his mental health. His federal habeas attorneys 

subsequently retained psychologist Dr. Sultan, whose report and 

deposition contended that Thompson suffered from serious mental 

illness at the time of his offense. The District Court dismissed the 

petition, but apparently Thompson’s habeas counsel had failed to include Sultan’s deposition and report in the record. Upholding the 

dismissal, the Sixth Circuit, inter alia, found no ineffective assistance 

and did not discuss Sultan’s report and deposition in detail. That 

court later denied rehearing, but stayed issuance of its mandate 

pending disposition of Thompson’s certiorari petition. After this 

Court denied certiorari on December 1, 2003, the Sixth Circuit stayed 

its mandate again, pending disposition of a petition for rehearing, 

which this Court denied on January 20, 2004. A copy of that order 

was filed with the Sixth Circuit on January 23, but the court did not 

issue its mandate. The State set Thompson’s execution date, and 

state and federal proceedings began on his competency to be executed. Competency proceedings were pending in the Federal District 

Court on June 23, 2004, when the Sixth Circuit issued an amended 

opinion in the federal habeas case, vacating the District Court’s habeas judgment and remanding the case for an evidentiary hearing on 

the ineffective-assistance claim. The Sixth Circuit supplemented the 

record on appeal with Sultan’s deposition and explained that its authority to issue an amended opinion five months after this Court denied rehearing was based on its inherent power to reconsider an opinion before issuance of the mandate. 
2 BELL v. THOMPSON 

Syllabus 

Held: Assuming that Federal Rule of Appellate Procedure 41 authorizes 

a stay of a mandate following a denial of certiorari and that a court 

may stay the mandate without entering an order, the Sixth Circuit’s 

decision to do so here was an abuse of discretion. Pp. 6–19.

(a) This Court need not decide the scope of the court of appeals’ 

Rule 41 authority to withhold a mandate in order to resolve this case. 

Pp. 6–9.

(b) Prominent among the reasons warranting the result here is 

that the Sixth Circuit did not release its amended opinion for more 

than five months after this Court denied rehearing. The consequence 

of delay for the State’s criminal justice system was compounded by 

the Sixth Circuit’s failure to issue an order or otherwise give notice to 

the parties that it was reconsidering its earlier opinion. The express 

terms of the Sixth Circuit’s stay state that the mandate would be 

stayed until this Court acted on the rehearing petition. Thus, once 

rehearing was denied, the stay dissolved by operation of law. Tennessee, relying on the Sixth Circuit’s earlier orders and this Court’s 

certiorari and rehearing denials could assume that the mandate 

would issue, especially since Thompson sought no additional stay and 

the Sixth Circuit gave no indication that it might be revisting its earlier decision. The latter point is important, for it is an open question 

whether a court may exercise its Rule 41(b) authority to extend the 

time to issue a mandate through mere inaction. Without a formal 

docket entry neither the parties nor this Court had, or have, any way 

to know whether the Sixth Circuit had stayed the mandate or simply 

made a clerical mistake. That court could have spared the parties 

and state judicial system considerable time and resources had it notified them that it was reviewing its decision. The scheduling of 

Thompson’s execution and the resulting competency proceedings 

were steps taken in reliance on the assumption that the federal habeas case was final. That assumption was all the more reasonable 

because the delay in issuing the mandate took place after this Court 

had denied certiorari, which usually signals the end of litigation. See 

Fed. Rule App. Proc. 41(d)(2)(D). The fact that the Sixth Circuit had 

the opportunity at the rehearing stage to consider the same arguments it eventually adopted in its amended opinion is yet another 

factor supporting the determination here. A review of the Sultan 

deposition also reinforces this conclusion. While the evidence would 

have been relevant to the District Court’s analysis, it is not of such a 

character as to warrant the Sixth Circuit’s extraordinary departure 

from standard procedures. Finally, by withholding its mandate for 

months—based on evidence supporting only an arguable constitutional claim—while the State prepared to carry out Thompson’s sentence, the Sixth Circuit did not accord the appropriate level of respect 
Cite as: 545 U. S. ____ (2005) 3 

Syllabus 

to the State’s judgment that Thompson’s crimes merit the ultimate 

punishment. See Calderon v. Thompson, 523 U. S. 538, 554–557. 

Pp. 9–19. 

373 F. 3d 688, reversed. 

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, 

C. J., and O’CONNOR, SCALIA, and THOMAS, JJ., joined. BREYER, J., filed 

a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., 

joined. 
_________________ 

_________________ 

Cite as: 545 U. S. ____ (2005) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order 

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 04–514 

RICKY BELL, WARDEN, PETITIONER v. GREGORY 

THOMPSON 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 27, 2005] 

JUSTICE KENNEDY delivered the opinion of the Court. 

This case requires us to consider whether, after we had 

denied certiorari and a petition for rehearing, the Court of

Appeals had the power to withhold its mandate for more 

than five months without entering a formal order. We 

hold that, even assuming a court may withhold its mandate after the denial of certiorari in some cases, the Court 

of Appeals’ decision to do so here was an abuse of 

discretion. 

I 

In 1985, Gregory Thompson and Joanna McNamara 

abducted Brenda Blanton Lane from a store parking lot in 

Shelbyville, Tennessee. After forcing Lane to drive them

to a remote location, Thompson stabbed her to death. 

Thompson offered no evidence during the guilt phase of 

trial and was convicted by a jury of first-degree murder. 

Thompson’s defense attorneys concentrated their efforts 

on persuading the sentencing jury that Thompson’s positive qualities and capacity to adjust to prison life provided 

good reasons for not imposing the death penalty. Before 

trial, Thompson’s counsel had explored the issue of his 
2 BELL v. THOMPSON 

Opinion of the Court 

mental condition. The trial judge referred Thompson to a 

state-run mental health facility for a 30-day evaluation. 

The resulting report indicated that Thompson was competent at the time of the offense and at the time of the examination. The defense team retained their own expert,

Dr. George Copple, a clinical psychologist. At sentencing

Copple testified that Thompson was remorseful and still 

had the ability to work and contribute while in prison. 

Thompson presented the character testimony of a number 

of witnesses, including former high school teachers, his

grandparents, and two siblings. Arlene Cajulao, Thompson’s girlfriend while he was stationed with the Navy in 

Hawaii, also testified on his behalf. She claimed that 

Thompson’s behavior became erratic after he suffered 

head injuries during an attack by three of his fellow servicemen. In rebuttal the State called Dr. Glenn Watson, a 

clinical psychologist who led the pretrial evaluation of

Thompson’s competence. Watson testified that his examination of Thompson revealed no significant mental illness. 

The jury sentenced Thompson to death. His conviction 

and sentence were affirmed on direct review. State v. 

Thompson, 768 S. W. 2d 239 (Tenn. 1989), cert. denied, 

497 U. S. 1031 (1990).

In his state postconviction petition, Thompson claimed

his trial counsel had been ineffective for failing to conduct

an adequate investigation into his mental health. Thompson argued that his earlier head injuries had diminished

his mental capacity and that evidence of his condition 

should have been presented as mitigating evidence during 

the penalty phase of trial. Under Tennessee law, mental 

illness that impairs a defendant’s capacity to appreciate the 

wrongfulness of his conduct or to conform his conduct to the 

requirements of the law is a mitigating factor in capital 

sentencing. Tenn. Code Ann. §39–2–203(j)(8) (1982) (repealed); §39–13–204(j)(8) (Lexis 2003). The postconviction

court denied relief following an evidentiary hearing, and 
Cite as: 545 U. S. ____ (2005) 3 

Opinion of the Court 

the Tennessee Court of Criminal Appeals affirmed. 

Thompson v. State, 958 S. W. 2d 156 (1997). The Tennessee Supreme Court denied discretionary review.

Thompson renewed his ineffective-assistance-of-counsel 

claim on federal habeas. Thompson’s attorneys retained a

psychologist, Dr. Faye Sultan, to assist with the proceedings. At this point, 13 years had passed since Thompson’s 

conviction. Sultan examined and interviewed Thompson 

three times, questioned his family members, and conducted 

an extensive review of his legal, military, medical, and 

prison records, App. 12, before diagnosing him as suffering 

from schizoaffective disorder, bipolar type, id., at 20. She 

contended that Thompson’s symptoms indicated he was 

“suffering serious mental illness at the time of the 1985 

offense for which he has been convicted and sentenced. 

This mental illness would have substantially impaired Mr. 

Thompson’s ability to conform his conduct to the requirements of the law.” Ibid. Sultan prepared an expert report 

on Thompson’s behalf and was also deposed by the State. 

In February 2000, the United States District Court for 

the Eastern District of Tennessee granted the State’s 

motion for summary judgment and dismissed the habeas 

petition. The court held that Thompson failed to show 

that the state court’s resolution of his claim rested on an 

unreasonable application of Supreme Court precedent or 

on an unreasonable determination of the facts in light of

the evidence presented in state court. See 28 U. S. C. 

§2254(d). The District Court also stated that Thompson 

had not presented “any significant probative evidence that 

[he] was suffering from a significant mental disease that 

should have been presented to the jury during the punishment phase as mitigation.” No. 4:98–CV006 (ED Tenn., 

Feb. 17, 2000), App. to Pet. for Cert. 270. Sultan’s deposition and report, however, had apparently not been included in the District Court record. 

While Thompson’s appeal to the Court of Appeals for the 
4 BELL v. THOMPSON 

Opinion of the Court 

Sixth Circuit was pending, he filed a motion in the District 

Court under Federal Rule of Civil Procedure 60(b) requesting that the court supplement the record with Sultan’s 

expert report and deposition. Thompson’s habeas counsel

at the time explained that the failure to include the Sultan 

evidence in the summary judgment record was an oversight. Thompson also asked the Court of Appeals to hold 

his case in abeyance pending a ruling from the District 

Court and attached the Sultan evidence in support of his 

motion. 

The District Court denied the Rule 60(b) motion as 

untimely, and the Court of Appeals denied Thompson’s 

motion to hold his appeal in abeyance. On January 9,

2003, a divided panel of the Court of Appeals affirmed the 

District Court’s denial of habeas relief. 315 F. 3d 566. 

The lead opinion, authored by Judge Suhrheinrich, reasoned that there was no ineffective assistance of counsel 

because Thompson’s attorneys were aware of his head 

injuries and made appropriate inquiries into his mental 

fitness. Id., at 589–592. In particular, Thompson’s attorneys had requested that the trial court order a competency 

evaluation. A team of experts at the Middle Tennessee 

Mental Health Institute, a state-run facility, found “no 

mental illness, mental defect, or insanity.” Id., at 589. Dr. 

George Copple, the clinical psychologist retained by 

Thompson’s attorneys, also “found no evidence of mental 

illness.” Ibid. Judge Suhrheinrich emphasized that none 

of the experts retained by Thompson since trial had offered an opinion on his mental condition at the time of the 

crime. Id., at 589–592. The lead opinion contained a 

passing reference to Thompson’s unsuccessful Rule 60(b)

motion, but did not discuss the Sultan deposition or expert 

report in any detail. Id., at 583, n. 13. Judge Moore concurred in the result based on Thompson’s failure to present “evidence that his counsel knew or should have 

known either that Thompson was mentally ill or that his 
Cite as: 545 U. S. ____ (2005) 5 

Opinion of the Court 

mental condition was deteriorating at the time of his trial 

or at the time of his crime.” Id., at 595. 

Thompson filed a petition for rehearing. The petition

placed substantial emphasis on the Sultan evidence, quoting from both her deposition and expert report. The Court 

of Appeals denied the petition for rehearing and stayed 

the issuance of its mandate pending the disposition of

Thompson’s petition for certiorari.

This Court denied certiorari on December 1, 2003. 540 

U. S. 1051. The following day, Thompson filed a motion in 

the Court of Appeals seeking to extend the stay of mandate pending disposition of his petition for rehearing in 

this Court. The Court of Appeals granted the motion and 

“ordered that the mandate be stayed to allow appellant 

time to file a petition for rehearing from the denial of the 

writ of certiorari, and thereafter until the Supreme Court

disposes of the case.” App. to Pet. for Cert. 348. On January 20, 2004, this Court denied Thompson’s petition for 

rehearing. 540 U. S. 1158. A copy of the order was filed

with the Court of Appeals on January 23, 2004. The Court 

of Appeals, however, did not issue its mandate. 

The State, under the apparent assumption that the

federal habeas corpus proceedings had terminated, filed a 

motion before the Tennessee Supreme Court requesting

that an execution date be set. The court scheduled 

Thompson’s execution for August 19, 2004. 

From February to June 2004, there were proceedings in

both state and federal courts related to Thompson’s present competency to be executed under Ford v. Wainwright, 

477 U. S. 399 (1986). The state courts, after considering 

Sultan’s testimony (which was based in part on followup 

observations after her initial 1998 examination) as well as 

that of other experts, found Thompson competent to be 

executed. Thompson v. State, 134 S. W. 3d 168 (Tenn. 

2004). Thompson’s Ford claim was still pending before the 

Federal District Court when on June 23, 2004, some seven 
6 BELL v. THOMPSON 

Opinion of the Court 

months after this Court denied certiorari, the Court of 

Appeals for the Sixth Circuit issued an amended opinion

in Thompson’s initial federal habeas case. 373 F. 3d 688. 

The new decision vacated the District Court’s judgment 

denying habeas relief and remanded the case for an evidentiary hearing on Thompson’s ineffective-assistance-ofcounsel claim. Id., at 691–692. The Court of Appeals 

relied on its equitable powers to supplement the record on 

appeal with Dr. Sultan’s 1999 deposition after finding that 

it was “apparently negligently omitted” and “probative of 

Thompson’s mental state at the time of the crime.” Id., at 

691. The court also explained its authority to issue an 

amended opinion five months after this Court denied a 

petition for rehearing: “[W]e rely on our inherent power to 

reconsider our opinion prior to the issuance of the mandate, which has not yet issued in this case.” Id., at 691– 

692. Judge Suhrheinrich authored a lengthy separate

opinion concurring in part and dissenting in part, which 

explained that his chambers initiated the sua sponte 

reconsideration of the case. He agreed with the majority 

about the probative value of the Sultan deposition, referring to the evidence as “critical.” Id., at 733. Unlike the 

majority, however, Judge Suhrheinrich would have relied 

upon fraud on the court to justify the decision to expand 

the record and issue an amended opinion. Id., at 725–726, 

729–742. He found “implausible” the explanation offered 

by Thompson’s habeas counsel for his failure to include 

the Sultan deposition in the District Court record, id., at 

742, and speculated that counsel “planned to unveil Dr. 

Sultan’s opinion on the eve of Thompson’s execution,” id., 

at 738, n. 21. 

We granted certiorari. 543 U. S. ___ (2005). 

II 

At issue in this case is the scope of the Court of Appeals’ 

authority to withhold the mandate pursuant to Federal 
Cite as: 545 U. S. ____ (2005) 7 

Opinion of the Court 

Rule of Appellate Procedure 41. As relevant, the Rule 

provides: 

“(b) When Issued. The court’s mandate must issue 

7 calendar days after the time to file a petition for rehearing expires, or 7 calendar days after entry of an 

order denying a timely petition for panel rehearing, 

petition for rehearing en banc, or motion for stay of 

mandate, whichever is later. The court may shorten 

or extend the time. 

“(c) Effective Date. The mandate is effective when 

issued. 

“(d) Staying the Mandate. 

“(1) On Petition for Rehearing or Motion. The 

timely filing of a petition for panel rehearing, petition 

for rehearing en banc, or motion for stay of mandate, 

stays the mandate until disposition of the petition or 

motion, unless the court orders otherwise. 

“(2) Pending Petition for Certiorari. 

“(A) A party may move to stay the mandate pending 

the filing of a petition for a writ of certiorari in the 

Supreme Court. The motion must be served on all 

parties and must show that the certiorari petition 

would present a substantial question and that there is 

good cause for a stay.

“(B) The stay must not exceed 90 days, unless the 

period is extended for good cause or unless the party

who obtained the stay files a petition for the writ and 

so notifies the circuit clerk in writing within the period of the stay. In that case, the stay continues until 

the Supreme Court’s final disposition. 

. . . . . 

“(D) The court of appeals must issue the mandate 

immediately when a copy of a Supreme Court order 

denying the petition for writ of certiorari is filed.” 

Tennessee argues that the Court of Appeals was re-
8 BELL v. THOMPSON 

Opinion of the Court 

quired to issue the mandate following this Court’s denial 

of Thompson’s petition for certiorari. The State’s position 

rests on Rule 41(d)(2)(D), which states that “[t]he court of 

appeals must issue the mandate immediately when a copy 

of a Supreme Court order denying the petition for writ of

certiorari is filed.” This provision, the State points out, 

admits of no exceptions, so the mandate should have 

issued on the date that a copy of this Court’s order denying certiorari was filed with the Court of Appeals, i.e., 

December 8, 2003. 

The State further contends that because the mandate 

should have issued in December 2003, the Court of Appeals’ amended opinion was in essence a recall of the 

mandate. If this view is correct, the Court of Appeals’ 

decision to revisit its earlier opinion must satisfy the 

standard established by Calderon v. Thompson, 523 U. S. 

538 (1998). Calderon held that “where a federal court of 

appeals sua sponte recalls its mandate to revisit the merits 

of an earlier decision denying habeas corpus relief to a state 

prisoner, the court abuses its discretion unless it acts to 

avoid a miscarriage of justice as defined by our habeas 

corpus jurisprudence.” Id., at 558. See also Schlup v. Delo, 

513 U. S. 298 (1995); Sawyer v. Whitley, 505 U. S. 333 

(1992). 

Thompson counters by arguing that Rule 41(d)(2)(D) is 

determinative only when the court of appeals enters a stay 

of the mandate to allow the Supreme Court to dispose of a 

petition for certiorari. The provision, Thompson says, does 

not affect the court of appeals’ broad discretion to enter a 

stay for other reasons. He relies on Rule 41(b), which 

provides the court of appeals may “shorten or extend the

time” in which to issue the mandate. Because the authority vested by Rule 41(b) is not limited to the period before 

a petition for certiorari is denied, he argues that the Court

of Appeals had the authority to stay its mandate following 

this Court’s denial of certiorari and rehearing. Although 
Cite as: 545 U. S. ____ (2005) 9 

Opinion of the Court 

the Court of Appeals failed to issue an order staying the 

mandate after we denied rehearing, Thompson asserts 

that the court exercised its Rule 41(b) powers by simply 

failing to issue it. 

To resolve this case, we need not adopt either party’s 

interpretation of Rule 41. Instead, we hold that— 

assuming, arguendo, both that the Rule authorizes a stay 

of the mandate following the denial of certiorari and also 

that a court may stay the mandate without entering an

order—here the Court of Appeals abused its discretion in 

doing so. 

III 

We find an abuse of discretion for the following reasons. 

Prominent among our concerns is the length of time

between this Court’s denial of certiorari and the Court of 

Appeals’ issuance of its amended opinion. We denied 

Thompson’s petition for certiorari in December 2003 and 

his petition for rehearing one month later. From this last 

denial, however, the Court of Appeals delayed issuing its 

mandate for over five months, releasing its amended

opinion in June. 

The consequence of delay for the State’s criminal justice 

system was compounded by the Court of Appeals’ failure 

to issue an order or otherwise give notice to the parties 

that the court was reconsidering its earlier opinion. The 

Court of Appeals had issued two earlier orders staying its 

mandate. The first order stayed the mandate pending

disposition of Thompson’s petition for certiorari. The 

second order extended the stay to allow Thompson time to 

file a petition for rehearing with this Court and “thereafter until the Supreme Court disposes of the case.” So by

the express terms of the second order the mandate was not 

to be stayed after this Court acted; and when we denied 

rehearing on January 20, 2004, the Court of Appeals’

second stay dissolved by operation of law. Tennessee, 
10 BELL v. THOMPSON 

Opinion of the Court 

acting in reliance on the Court of Appeals’ earlier orders 

and our denial of certiorari and rehearing, could assume 

that the mandate would—indeed must—issue. While it 

might have been prudent for the State to verify that the 

mandate had issued, it is understandable that it proceeded to schedule an execution date. Thompson, after all, 

had not sought an additional stay of the mandate, and the 

Court of Appeals had given no indication that it might be 

revisiting its earlier decision.

This latter point is important. It is an open question

whether a court may exercise its Rule 41(b) authority to 

extend the time for the mandate to issue through mere 

inaction. Even assuming, however, that a court could 

effect a stay for a short period of time by withholding the 

mandate, a delay of five months is different in kind. 

“Basic to the operation of the judicial system is the principle that a court speaks through its judgments and orders.” 

Murdaugh Volkswagen, Inc. v. First National Bank of 

South Carolina, 741 F. 2d 41, 44 (CA4 1984). Without a 

formal docket entry neither the parties nor this Court had, 

or have, any way to know whether the court had stayed 

the mandate or simply made a clerical mistake. Cf. Ballard v. Commissioner, 544 U. S. ___, ___ (2005) (slip op., at 

17). The dissent claims “the failure to notify the parties 

was likely due to a simple clerical error” on the part of the 

Clerk’s office. Post, at 12–13 (opinion of BREYER, J.). The 

record lends no support to this speculation. The dissent 

also fails to explain why it is willing to apply a “presumption of regularity” to the panel’s actions but not to the 

Clerk’s. Ibid. 

The Court of Appeals could have spared the parties and

the state judicial system considerable time and resources

if it had notified them that it was reviewing its original 

panel decision. After we denied Thompson’s petition for 

rehearing, Tennessee scheduled his execution date. This, 

in turn, led to various proceedings in state and federal 
Cite as: 545 U. S. ____ (2005) 11 

Opinion of the Court 

court to determine Thompson’s present competency to be 

executed. See, e.g., Thompson v. State, 134 S. W. 3d 168 

(Tenn. 2004). All of these steps were taken in reliance on 

the mistaken impression that Thompson’s first federal 

habeas case was final. The State had begun to “invok[e]

its entire legal and moral authority in support of executing 

its judgment.” Calderon v. Thompson, 523 U. S., at 556– 

557. 

The parties’ assumption that Thompson’s habeas proceedings were complete was all the more reasonable because the Court of Appeals’ delay in issuing its mandate 

took place after we had denied certiorari. As a practical 

matter, a decision by this Court denying discretionary 

review usually signals the end of litigation. While Rule 

41(b) may authorize a court to stay the mandate after 

certiorari is denied, the circumstances where such a stay

would be warranted are rare. See, e.g., First Gibraltar 

Bank, FSB v. Morales, 42 F. 3d 895 (CA5 1995); Alphin v. 

Henson, 552 F. 2d 1033 (CA4 1977). In the typical case, 

where the stay of mandate is entered solely to allow this 

Court time to consider a petition for certiorari, Rule 

41(d)(2)(D) provides the default: “The court of appeals

must issue the mandate immediately when a copy of a 

Supreme Court order denying the petition for writ of

certiorari is filed.” 

By providing a mechanism for correcting errors in the 

courts of appeals before Supreme Court review is requested, the Federal Rules of Appellate Procedure ensure 

that litigation following the denial of certiorari will be 

infrequent. See Fed. Rule App. Proc. 40(a) (“Unless the 

time is shortened or extended by order or local rule, a 

petition for panel rehearing may be filed within 14 days 

after entry of judgment”). See also Fed. Rules App. Proc. 

35 (rehearing en banc), 40 (panel rehearing).

Indeed, in this case Thompson’s petition for rehearing 

and suggestion for rehearing en banc pressed the same 
12 BELL v. THOMPSON 

Opinion of the Court 

arguments that eventually were adopted by the Court of 

Appeals in its amended opinion. The Sultan evidence, 

first presented to the Court of Appeals as an attachment 

to Thompson’s motion to hold his appeal in abeyance, was 

quoted extensively in the petition for rehearing to the 

Court of Appeals. Pet. for Rehearing and Suggestion for 

Rehearing En Banc in No. 2:00–5516 (CA6), pp. 12–20, 

28–31. After the request for rehearing was denied, the 

State could have assumed with good reason that the Court 

of Appeals was not impressed by Thompson’s arguments 

based on the Sultan evidence. The court’s opportunity to 

consider these arguments at the rehearing stage is yet 

another factor supporting our determination that the

decision to withhold the mandate was in error. Cf. 

Calderon v. Thompson, supra, at 551–553 (questioning 

whether a “mishandled law clerk transition” and the “failure 

of another judge to notice the action proposed by the original 

panel” would justify recalling the mandate in a nonhabeas 

case). 

The dissent’s explanation of how the Sultan evidence 

was overlooked is inaccurate in several respects. For 

example, the statements that the “Sultan documents were

not in the initial record on appeal,” post, at 9, and that 

“the panel previously had not seen these documents” 

before the rehearing stage, id., at 9, convey the wrong 

impression. Although the Sultan evidence was not part of 

the District Court’s summary judgment record, the documents were included in the certified record on appeal as 

attachments to Thompson’s Rule 60(b) motion. Record 

133; Docket Entry 4/5/02 in No. 98–CV–6 (ED Tenn.);

Docket Entry 4/10/02 in No. 00–5516 (CA6). The dissent 

also argues the petition for rehearing did not adequately

bring the Sultan evidence to the attention of the Court of 

Appeals. Post, at 9–10, 13–14. This is simply untrue. The 

original panel opinion, which did not discuss the Sultan 

evidence in any detail, emphasized that Thompson had 
Cite as: 545 U. S. ____ (2005) 13 

Opinion of the Court 

failed to produce any evidence that he was mentally ill at 

the time of his offense. 315 F. 3d, at 590; id., at 595–596 

(Moore, J., concurring). The petition for rehearing attacked 

this conclusion in no uncertain terms and placed the Sultan 

evidence front and center. Here, for example, is an excerpt 

from the petition’s table of contents: 

“II. THE CONCLUSION THAT THERE IS NO 

EVIDENCE PRESENTED IN THE RECORD OF 

THOMPSON’S MENTAL ILLESS AT THE TIME OF 

THE CRIME IS WRONG 

“A. Thompson Has Set Forth Above The Record 

Facts Demonstrating His Mental Illness At The Time 

of The Crime 

“B. The Majority Overlooks The Facts And Expert 

Opinion Set Forth In Dr. Sultan’s Report and Deposition.” Pet. for Rehearing and Suggestion for Rehearing En Banc in No. 2:00–5516 (CA6), p. ii. 

See also id., at 1 (mentioning the Sultan evidence in the

second paragraph of the statement in support of panel

rehearing). The rehearing petition did not explain why 

Sultan’s deposition and expert report had been omitted 

from the summary judgment record but that is beside the 

point. The petition acknowledged that the Sultan evidence was first presented to the District Court as an attachment to the Rule 60(b) motion, id., at 29, and gave the 

Sultan evidence a prominent and explicit mention in the 

table of contents. It is difficult to see how Thompson’s 

counsel could have been clearer in telling the Court of 

Appeals that it was wrong. The dissent’s treatment of this 

issue assumes that judges forget even the basic details of a 

capital case only one month after issuing a 38-page opinion and that judges cannot be relied upon to read past the 

first page of a petition for rehearing. The problem is that 

the dissent cannot have it both ways: If the Sultan evidence is as crucial as the dissent claims, it would not 
14 BELL v. THOMPSON 

Opinion of the Court 

easily have been overlooked by the Court of Appeals at the 

rehearing stage.

Our review of the Sultan deposition reinforces our conclusion that the Court of Appeals abused its discretion by 

withholding the mandate. Had the Sultan deposition and 

report been fully considered in the federal habeas proceedings, it no doubt would have been relevant to the District

Court’s analysis. Based on the Sultan deposition Thompson could have argued he suffered from mental illness at 

the time of his crime that would have been a mitigating 

factor under Tennessee law and that his trial attorneys

were constitutionally ineffective for failing to conduct an 

adequate investigation into his mental health. 

Relevant though the Sultan evidence may be, however, 

it is not of such a character as to warrant the Court of 

Appeals’ extraordinary departure from standard appellate

procedures. There are ample grounds to conclude the

evidence was unlikely to have altered the District Court’s 

resolution of Thompson’s ineffective-assistance-of-counsel 

claim. Sultan examined Thompson for the first time on 

August 20, 1998, App. 37, some 13 years after Thompson’s 

crime and conviction. She relied on the deterioration in 

Thompson’s present mental health—something that obviously was not observable at the time of trial—as evidence

of his condition in 1985. (Indeed, there was a marked

decline in his condition during the 6-month period between Sultan’s first two visits. Id., at 51–58.) Sultan’s 

findings regarding Thompson’s condition in 1985 are

contradicted by the testimony of two experts who examined him at the time of trial, Dr. Watson and Dr. Copple. 

Watson performed a battery of tests at the Middle Tennessee Mental Health Institute, where Thompson was referred by the trial court for an examination, and concluded 

that Thompson “ ‘[did] not appear to be suffering from any 

complicated mental disorder which would impair his 

capacity to appreciate the wrongfulness of the alleged 
Cite as: 545 U. S. ____ (2005) 15 

Opinion of the Court 

offenses, or which would impair his capacity to conform 

his conduct to the requirements of the law.’ ” 19 Tr. 164. 

Indeed, Watson presented substantial evidence supporting 

his conclusion that Thompson was malingering for mental 

illness. Id., at 151–152; 20 id., at 153–160. For example,

Thompson claimed he could not read despite a B average 

in high school and one year’s college credit. 19 id., at 137; 

20 id., at 151. Thompson’s test scores also indicated that 

he was attempting to fake schizophrenia. 20 id., at 153– 

154. Copple, the psychologist retained by Thompson’s

defense team, agreed with Watson that Thompson was not 

suffering from mental illness. 19 id., at 58. Had the 

Sultan deposition been included in the District Court 

record, Thompson still would have faced an uphill battle to 

obtaining federal habeas relief. He would have had to 

argue that his trial attorneys should have continued to 

investigate his mental health even after both Watson and 

Copple had opined that there was nothing to uncover.

Sultan’s testimony does not negate Thompson’s responsibility for committing the underlying offense, but it does

bear upon an argument that Thompson’s attorneys could 

have presented at sentencing. Sultan’s ultimate conclusion—that Thompson’s mental illness substantially impaired his ability to conform his conduct to the requirements of the law—is couched in the language of a 

mitigating factor under Tennessee law. Tenn. Code Ann. 

§39–2–203(j)(8) (1982). See also §39–13–204(j)(8) (Lexis 

2003). Thompson’s trial attorneys, however, chose not to 

pursue a mitigation strategy based on mental illness, 

stressing instead character evidence from family and 

friends and expert testimony that he had the capacity to

adjust to prison. Thompson v. State, 958 S. W. 2d, at 164– 

165. This strategic calculation, while ultimately unsuccessful, was based on a reasonable investigation into

Thompson’s background. Sultan relied on three witnesses 

in preparing her report: Thompson’s grandmother, sister, 
16 BELL v. THOMPSON 

Opinion of the Court 

and ex-girlfriend. These witnesses not only were interviewed by the defense attorneys; they testified at sentencing. Consultation with these witnesses, when combined 

with the opinions of Watson and Copple, provided an 

adequate basis for Thompson’s attorneys to conclude that 

focusing on Thompson’s mental health was not the best 

strategy. As the Tennessee Court of Criminal Appeals 

noted, “Because two experts did not detect brain damage, 

counsel cannot be faulted for discarding a strategy that 

could not be supported by a medical opinion.” Id., at 165. 

Without a single citation to the record, the dissent suggests that Thompson’s attorneys failed to conduct adequate interviews of the defense witnesses on whom Sultan 

relied in her report. Post, at 14–15. Most of the information on Thompson’s childhood was provided to Sultan by

Nora Jean Wharton, Thompson’s older sister. App. 16–18. 

Setting aside the fact that Thompson did not argue in 

state court that his counsel’s interview of Wharton was 

inadequate, Thompson v. State, 958 S. W. 2d, at 160–169, 

Thompson’s attorneys cannot be faulted for failing to elicit 

from her any details on Thompson’s difficult home life. 

After all, Wharton testified at trial that Thompson’s childhood was “poor,” but “very happy.” 18 Tr. 3. The dissent 

also implies that the experts who examined Thompson 

lacked information necessary to reach an accurate assessment. The record refutes this assertion. In conducting his examination, Watson had access to Thompson’s 

social history and military records. 19 id., at 149; 20 id., 

at 186 (Exh. 102, pp. 11, 27–28). Watson was also aware 

of the prior head injuries as well as Thompson’s claim that

he heard voices. 19 id., at 152; 20 id., at 154–155. Nevertheless, Watson, whose evaluation was contemporaneous 

with the trial, found no evidence that Thompson was 

mentally ill at the time of the crime. Watson’s report was 

unequivocal on this point: 
Cite as: 545 U. S. ____ (2005) 17 

Opinion of the Court

 “ ‘Mr. Thompson’s speech and communication were

coherent, rational, organized, relevant, and devoid of

circumstantiality, tangentiality, looseness of associations, paranoid ideation, ideas of reference, delusions, 

and other indicators of a thought disorder. His affect 

was appropriate to his thought content, and he exhibited no flight of ideas, manic, depressed, or bizarre 

behaviors, and his speech was not pressured nor 

rapid. He exhibited none of the signs of an affective 

illness. His judgment and insight are rather poor. 

Psychological testing revealed him to be functioning 

in the average range intellectually, to exhibit no signs 

of organicity or brain damage on the Bender-Gestalt 

Test and the Bender Interference Procedure. Personality profiles revealed no evidence of a psychosis, but

indicated malingering in the mental illness direction. 

(For example, the schizophrenic score was at T 120, 

while clinical observations revealed no evidence of a 

thought disorder.) Mr. Thompson’s memory for recent 

and remote events appeared unimpaired.’ ” 20 id., at 

159–160. 

Sultan’s testimony provides some support for the argument that the strategy of emphasizing Thompson’s positive attributes was a mistake in light of Thompson’s deteriorated condition 13 years after the trial. This evidence, 

however, would not come close to satisfying the miscarriage of justice standard under Calderon had the Court of 

Appeals recalled the mandate. Neither, in our view, did 

this evidence justify the Court of Appeals’ decision to

withhold the mandate without notice to the parties, which 

in turn led the State to proceed for five months on the 

mistaken assumption that the federal habeas proceedings 

had terminated. The dissent suggests that failing to take 

account of the Sultan evidence would result in a “miscarriage of justice,” post, at 1–2, 16, but the dissent uses that 
18 BELL v. THOMPSON 

Opinion of the Court 

phrase in a way that is inconsistent with our precedents. 

In Sawyer v. Whitley, 505 U. S., at 545–547, this Court held 

that additional mitigating evidence could not meet the 

miscarriage of justice standard. Only evidence that affects 

a defendant’s eligibility for the death penalty—which the 

Sultan evidence is not—can support a miscarriage of

justice claim in the capital sentencing context. Id., at 547; 

Calderon, 523 U. S., at 559–560. 

One last consideration informs our review of the Court 

of Appeals’ actions. In Calderon, we held that federalism 

concerns, arising from the unique character of federal 

habeas review of state-court judgments, and the policies

embodied in the Antiterrorism and Effective Death Penalty Act of 1996 required an additional presumption 

against recalling the mandate. This case also arises from 

federal habeas corpus review of a state conviction. While 

the State’s reliance interest is not as strong in a case 

where, unlike Calderon, the mandate has not issued, the 

finality and comity concerns that animated Calderon are 

implicated here. Here a dedicated judge discovered what 

he believed to have been an error, and we are respectful of 

the Court of Appeals’ willingness to correct a decision that 

it perceived to have been mistaken. A court’s discretion 

under Rule 41 must be exercised, however, in a way that 

is consistent with the “ ‘State’s interest in the finality of 

convictions that have survived direct review within the 

state court system.’ ” Id., at 555 (quoting Brecht v. Abrahamson, 507 U. S. 619, 635 (1993)). Tennessee expended 

considerable time and resources in seeking to enforce a 

capital sentence rendered 20 years ago, a sentence that 

reflects the judgment of the citizens of Tennessee that 

Thompson’s crimes merit the ultimate punishment. By 

withholding the mandate for months—based on evidence 

that supports only an arguable constitutional claim—while 

the State prepared to carry out Thompson’s sentence, the 

Court of Appeals did not accord the appropriate level of 
Cite as: 545 U. S. ____ (2005) 19 

Opinion of the Court 

respect to that judgment. See Calderon v. Thompson, supra, at 554–557. 

The Court of Appeals may have been influenced by 

Sultan’s unsettling account of Thompson’s condition during one of her visits. She described Thompson as being in

“terrible psychological condition,” “physically filthy,” and 

“highly agitated.” App. 51. This testimony raised questions about Thompson’s deteriorating mental health and 

perhaps his competence to be executed, but these concerns 

were properly addressed in separate proceedings. Based 

on the most recent state-court decision, which rejected the 

argument that Thompson is not competent to be executed, 

it appears that his condition has improved. Thompson v. 

State, 134 S. W. 3d, at 184–185. Proceedings on this issue

were underway in the District Court when the Court of 

Appeals issued its second opinion. If those proceedings 

resume, the District Court will have an opportunity to 

address these matters again and in light of the current 

evidence. 

Taken together these considerations convince us that 

the Court of Appeals abused any discretion Rule 41 arguably granted it to stay its mandate, without entering a 

formal order, after this Court had denied certiorari. The 

judgment of the Court of Appeals for Sixth Circuit is reversed. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 545 U. S. ____ (2005) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 04–514 

RICKY BELL, WARDEN, PETITIONER v. GREGORY 

THOMPSON 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 27, 2005] 

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE 

SOUTER, and JUSTICE GINSBURG join, dissenting. 

This capital case arises out of unusual circumstances— 

circumstances of a kind that I have not previously experienced in the 25 years I have served on the federal bench. 

After an appellate court writes and releases an opinion, 

but before it issues its mandate, the writing judge,

through happenstance, comes across a document that (he 

reasonably believes) shows not only that the court’s initial 

decision is wrong but that the decision will lead to a serious miscarriage of justice. What is the judge to do? 

What the judge did here was to spend time—hundreds

of hours (while a petition for certiorari was pending before 

this Court and during the five months following our denial 

of the petition for rehearing)—reviewing the contents of 

the vast record with its many affidavits, reports, transcripts, and other documents accumulated in the course of 

numerous state and federal proceedings during the preceding 20 years. The judge ultimately concluded that his 

initial instinct about the document was correct. The 

document was critically important. It could affect the 

outcome of what is, and has always been, the major issue 

in the case. To consider the case without reference to it 

could mean a miscarriage of justice. 

The judge consequently wrote a lengthy opinion (almost 
2 BELL v. THOMPSON 

BREYER, J., dissenting 

30,000 words) explaining what had happened. The other 

members of the panel did not agree with everything in 

that opinion, but they did agree that their initial decision 

must be vacated. 

The Court commendably describes what occurred as 

follows: A “dedicated judge discovered what he believed to 

have been an error, and we are respectful of the Court of 

Appeals’ willingness to correct a decision that it perceived 

to have been mistaken.” Ante, at 18. The Court, however, 

does not decide this case in a manner consistent with that 

observation. A somewhat more comprehensive account of

the nature of the “error”—of the matter at stake, of the 

importance of the document, of the mystery of its late

appearance, of the potential for a miscarriage of justice— 

should help make apparent the difficult circumstance the 

panel believed it faced. It will also explain why there was 

no “abuse” of discretion in the panel’s effort to “correct a 

decision that it perceived to have been mistaken.” 

I 

Judge Suhrheinrich, the panel member who investigated the record, is an experienced federal judge, serving 

since 1984 as a federal trial court judge and since 1990 as 

a federal appellate judge. He wrote a lengthy account of 

the circumstances present here. To understand this case, 

one must read that full account and then compare it with 

the Court’s truncated version. I provide a rough summary 

of the matter based upon my own reading of his opinion. 

373 F. 3d 688, 692–742 (CA6 2004). 

A 

The panel’s initial decision, issued on January 9, 2003, 

focused upon an issue often raised when federal habeas 

courts review state proceedings in a capital case, namely, 

the effectiveness of counsel at the original trial. 315 F. 3d 

566, 587–594 (CA6 2003). See Strickland v. Washington, 
Cite as: 545 U. S. ____ (2005) 3 

BREYER, J., dissenting 

466 U. S. 668 (1984). In this instance, the federal ineffective-assistance claim was that state trial counsel had not 

sufficiently investigated the background of the defendant,

Gregory Thompson. Thompson claimed that an adequate

investigation would have shown, to the satisfaction of 

testifying experts, that he suffered from episodes of 

schizophrenia at the time of the crime. The schizophrenia—though episodic—would have proved a mitigating

circumstance at the penalty phase. 373 F. 3d, at 697–698, 

and n. 4. 

Thompson’s trial took place in a Tennessee state court, 

where he was found guilty of murder and sentenced to 

death. His state-appointed counsel put on no defense at 

trial. At sentencing, however, counsel sought to show that 

Thompson was schizophrenic. State forensic psychologists 

examined Thompson and concluded that Thompson,

probably “malingering,” did not show genuine and significant symptoms of schizophrenia at that time and was not 

mentally ill. A clinical psychologist hired by Thompson’s

counsel examined Thompson for eight hours and reached 

approximately the same conclusion: he said that Thompson was not then mentally ill. Id., at 692, 694–695. 

Thompson raised the issue of his mental condition in 

state postconviction proceedings, which he initiated in 

1990. His expert witness, Dr. Gillian Blair, testified (with 

much supportive material) that Thompson was by that 

time clearly displaying serious schizophrenic symptoms— 

voice illusions, attempts at physical self-mutilation, and 

the like. Indeed, the State conceded that he was under a 

regime of major antipsychotic medication. But Dr. Blair 

said that she could not determine whether Thompson had 

been similarly afflicted (i.e., suffering from episodes of 

schizophrenia) at the time of the crime without a thorough 

background investigation—funds for which the state court 

declined to make available. The state court then ruled in 

the State’s favor. Id., at 694–695. 
4 BELL v. THOMPSON 

BREYER, J., dissenting 

Thompson filed a habeas petition in Federal District

Court about eight months after the state court’s denial of 

postconviction relief became final. As I said above, see 

supra, at 3, he claimed ineffective assistance of counsel. 

The Federal District Court appointed counsel, an assistant 

federal public defender. Counsel then obtained the services of two experts, Dr. Barry Crown and Dr. Faye Sultan. Both examined Thompson, and the latter, Dr. Sultan,

conducted the more thorough background investigation 

that Dr. Blair had earlier sought. The State, after deposing Dr. Sultan, moved for summary judgment. 373 F. 3d, 

at 696, 700–704, 711. 

The District Court granted that motion on the ground 

that “Thompson has not provided this Court with anything 

other than factually unsupported allegations that he was 

incompetent at the time he committed the crime,” nor “has 

Thompson provided this Court with any significant probative evidence that [he] was suffering from a significant

mental disease that should have been presented to the 

jury during the punishment phase as mitigation evidence.” 

Id., at 712–713 (quoting District Court’s memorandum 

opinion (emphasis and internal quotation marks omitted)).

Thompson (now with a new public defender as counsel) 

appealed the District Court’s grant of summary judgment 

in the State’s favor. (A little over a year later, while the 

appeal was still pending, Thompson’s new counsel, apparently having discovered that Dr. Sultan’s deposition and 

report had not been included in the record before the 

District Court, filed a motion in that court for relief from 

judgment under Federal Rule of Civil Procedure 60(b), 

seeking to supplement the record with those documents. 

Counsel also filed a motion in the appellate court, with the 

Sultan deposition attached, requesting that the appeal be

held in abeyance while the District Court considered the 

Rule 60(b) motion. Both motions were denied, and 

Thompson’s counsel did not take an appeal from the Dis-
Cite as: 545 U. S. ____ (2005) 5 

BREYER, J., dissenting 

trict Court’s denial of the Rule 60(b) motion.) 373 F. 3d, at 

714–715, and n. 10, 724–725. 

The Court of Appeals reviewed the District Court’s

grant of summary judgment. In doing so, the appellate 

panel examined the record before that court. It noted that 

Thompson’s federal habeas counsel had hired two experts 

(Crown and Sultan), and had told the court (in an offer of 

proof) that they would provide evidence that Thompson 

suffered from mental illness at the time of the crime. But 

the appellate panel found that neither expert had done so. 

Indeed, said the panel, Thompson had “never submitted to 

any court any proof that he suffered from severe mental 

illness at the time of the crime.” 315 F. 3d, at 590 (emphasis altered). Though Thompson’s several attorneys 

had made the same allegation for many years in several 

different courts (said the panel), “at each opportunity, 

counsel fail[ed] to secure an answer to the critical issue of 

whether Thompson was mentally ill at the time of the 

crime.” Ibid. That fact, concluded the panel (over a dissent), was fatal to Thompson’s basic ineffective-assistanceof-counsel claim. Obviously “trial counsel cannot be

deemed ineffective for failing to discover something that 

does not appear to exist.” Ibid.; see also id., at 595 (Moore, 

J., concurring in result) (“Thompson has presented no

evidence that his [trial] counsel knew or should have

known either that Thompson was mentally ill or that his 

mental condition was deteriorating at the time of his trial 

or at the time of his crime”). The dissenting judge thought 

Thompson had made out an ineffective-assistance claim by 

showing that his trial counsel had relied on an inadequate 

expert, that is, an expert without the necessary qualifications to counter the State’s experts’ conclusions. Id., at 

599–605 (opinion of Clay, J.). 

The appeals court issued its opinion on January 9, 2003. 

Thompson’s appointed federal appeals counsel filed a 

rehearing petition, which the court denied on March 10, 
6 BELL v. THOMPSON 

BREYER, J., dissenting 

2003. See App. to Pet. for Cert. 346 (Order in No. 00–5516 

(CA6)). Thompson’s counsel then sought Supreme Court 

review. This Court denied review (and rehearing) about 

one year later. 540 U. S. 1051 (2003) (denying certiorari); 

540 U. S. 1158 (2004) (denying rehearing). 

B 

The Court of Appeals, following ordinary appellate-court

practice, withheld issuance of its mandate while the case 

was under review here, namely during calendar year 2003. 

During that time and in the months that followed, something unusual happened. Judge Suhrheinrich realized

that the panel, in reaching its decision, seemed to have 

overlooked documents provided by Dr. Sultan that likely 

were relevant. In September 2003, the appellate court 

called for the entire certified record. Upon reviewing that 

record, Judge Suhrheinrich found Dr. Sultan’s deposition 

and accompanying report. 373 F. 3d, at 692–693; App. to 

Pet. for Cert. 347–348; see also Appendix, infra. 

The Sultan documents filled the evidentiary gap that 

underlay the District Court’s and the appellate panel’s 

determinations. These documents made clear that Dr. 

Sultan had investigated Thompson’s background in depth 

and that in her (well-supported) opinion, Thompson had 

suffered from serious episodic bouts of schizophrenia at 

the time the crime was committed. Clearly the documents

contained evidence supporting Thompson’s claim regarding his mental state at the time of the offense. Why had 

the District Court denied the existence of any such evidence? Why had Judge Suhrheinrich, and the other members of the panel (and the State, which took Dr. Sultan’s 

deposition) done the same? 

Judge Suhrheinrich then drafted an opinion that sought 

to answer three questions: 

Question One: Do these documents actually provide 

strong evidence that Thompson was schizophrenic (and 
Cite as: 545 U. S. ____ (2005) 7 

BREYER, J., dissenting 

seriously so) at the time of the crime?

Question Two: If so, given the many previous opportunities that Thompson has had to raise the issue of his mental health, to what extent would these documents be likely 

to matter in respect to the legal question raised in Thompson’s federal proceedings, i.e., would they likely lead a

federal habeas court to hold that Thompson’s trial counsel 

was ineffective for failing to undertake a background 

investigation akin to that performed by Dr. Sultan? 

Question Three: How did these documents previously 

escape our attention? 

1 

The panel answered the first question—regarding the

importance of the documents—unanimously. Sultan’s 

report and deposition were critically important. As Judge

Suhrheinrich’s opinion explains, these documents detail 

Thompson’s horrendous childhood, his family history of 

mental illness, his self-destructive schizophrenic behavior 

(including auditory hallucinations) as a child, his mood 

swings and bizarre behavior as a young adult, and a worsening of that behavior after a serious beating to his head 

that he suffered while in the Navy. For example, Dr. 

Sultan’s examination of Thompson and her interviews

with Thompson’s family members and others revealed that 

as a child Thompson would repeatedly bang his head

against the wall to “knock the Devil out” after his grandmother yelled at him, “You have the Devil in you.” 373 

F. 3d, at 716 (internal quotation marks omitted). These 

documents explain how Thompson, as a young adult, 

would talk to himself and scream and cry for no apparent 

reason. They suggest that he had bouts of paranoia. 

The documents provide strong support for the conclusion that Thompson suffered from episodes of schizophrenia at the time of the offense. And they thereby offer 

significant support for the conclusion that, had earlier 
8 BELL v. THOMPSON 

BREYER, J., dissenting 

testifying experts had this information, they could have 

countered the State’s experts’ conclusion that Thompson 

was malingering at the time of trial. Thus, the Sultan 

materials seriously undermined the foundation of the

State’s position in respect to Thompson’s mental condition. 

The Sultan materials also revealed that trial counsel 

failed to discover other mitigating evidence of importance. 

Interviews with family members revealed repeated incidents of violence in the family, including an episode in

which, as a young boy, Thompson witnessed his father

brutally beat and rape his mother. His grandmother, with

whom Thompson and his siblings lived after their mother

died, subjected them to abuse and neglect. She would 

forget to feed the children, leaving them to steal money 

from under her bed to buy food. These and other circumstances are detailed in sections of the Sultan report and 

deposition reproduced in the Appendix, infra. 

2 

The panel also responded unanimously and affirmatively to the second question: Would federal-court access to 

the Sultan documents likely have made a significant 

difference in respect to the federal legal question at issue

in Thompson’s habeas petition, namely, the failure of 

Thompson’s trial counsel to investigate his background? 

Trial counsel had had important indications that something was wrong. Indeed, counsel himself had sought an 

evaluation of Thompson’s mental condition. He also was 

aware of Thompson’s violent behavior in the military, and 

knew that Thompson had said he had had auditory hallucinations all his life. He was aware, too, of the changes in 

Thompson’s behavior. Should counsel not then have 

investigated further?

The Sultan documents make clear that, had he done so, 

he would have had a strong answer to the State’s experts. 

Thus the documents were relevant to the outcome of the 
Cite as: 545 U. S. ____ (2005) 9 

BREYER, J., dissenting 

federal habeas proceedings. The Federal District Court 

based its grant of summary judgment on the premise that

there was no evidence supporting Thompson’s claim. The 

documents showed that precisely such evidence was then 

available. 

3 

The panel (while disagreeing about how to allocate 

blame) agreed in part about the answer to the third question: how these documents previously had escaped the

panel’s attention. The judges agreed that the Sultan 

documents were not in the initial record on appeal. The 

panel’s original opinion, while mentioning both Dr. Sultan 

and Dr. Crown, assumed that neither expert had addressed Thompson’s mental condition at the time of the

crime. 315 F. 3d, at 583, n. 13 (“Sultan’s affidavit does not 

discuss Thompson’s mental state at the time of the offense” 

(emphasis added)); ibid. (explaining that Thompson filed a

Rule 60(b) motion to supplement the record with Dr. 

Sultan’s report, but not mentioning that the report addressed Thompson’s mental condition at the time of the

offense); see also supra, at 5. 

How had the panel overlooked the copies of the Sultan 

deposition attached to (1) the rehearing petition and (2)

the (Rule 60(b)-related) motion to hold the appeal in abeyance? As for the rehearing petition, the reason could well 

lie in the petition’s (incorrect) suggestion that the panel

had already considered the appended document as part of

the original record. See Pet. for Rehearing and Suggestion 

for Rehearing En Banc in No. 2:00–5516 (CA6), p. 1 (“A 

majority of this panel overlooked other proof in the record, 

including but not limited to, the expert opinion of Dr. Faye 

E. Sultan”); see also id., at 28–32. While the petition 

explains the importance of the documents, it does not

explain the circumstances, namely, that the panel previously had not seen these documents. Instead, it gives the 
10 BELL v. THOMPSON 

BREYER, J., dissenting 

impression that counsel was simply reemphasizing a 

matter the panel had already considered. To that extent, 

the petition reduced the likelihood that the panel would 

make the connection it later made and fatally weakened 

its argument for re-hearing. 

As for the motion to hold the appeal in abeyance, the 

panel’s failure to recognize the significance of the appended Sultan materials is also understandable. The 

motion gives the impression that the appellate court 

would have been able to handle any problem arising from 

the exclusion of these materials in an appeal taken from 

the District Court’s Rule 60(b) decision. The appellate

court, however, never had any such opportunity because 

counsel did not appeal the District Court’s denial of the 

Rule 60(b) motion. 

C 

Once the panel understood the significance of the Sultan 

report, it had to decide what to do. An appellate court 

exists to correct legal errors made in the trial court. What 

legal error had the District Court committed? The appeal

concerned its grant of summary judgment in the State’s 

favor. The District Court made that decision on the basis 

of the record before it, and that record apparently lacked 

the relevant documents. How then could an appeals court 

say that the District Court was wrong to grant the summary judgment motion?

The panel answered this question by not holding that 

the District Court had erred. Finding that the Sultan 

documents had been “apparently negligently omitted” 

from the record, it exercised its equitable powers to supplement the record with the deposition. 373 F. 3d, at 691. 

It also found that, since the State itself had helped to 

create that document (because the State had taken Sultan’s deposition), the District Court’s reconsideration of 

the matter would not unfairly prejudice the State. And it 
Cite as: 545 U. S. ____ (2005) 11 

BREYER, J., dissenting 

noted that this case is a death case. Then, relying on its 

“inherent power to reconsider” an opinion “prior to the 

issuance of the mandate,” the court issued a new opinion, 

vacating the District Court’s grant of summary judgment 

to the State and remanding the case to the District Court 

for further proceedings on the matter. Ibid. 

II 

The question before us is not whether we, as judges, 

would have come to the same conclusions as did the panel

of the Court of Appeals. It is whether the three members 

of the appellate panel abused their discretion in reconsidering the matter and, after agreeing unanimously that 

they would have reached a different result had they considered the overlooked evidence, vacating the District 

Court’s judgment and remanding the case. 

The Court concludes that the panel’s reconsideration of 

the matter and decision to vacate the District Court’s 

judgment amounted to an “abuse of discretion.” Ante, at 1. 

It therefore reverses the panel’s unanimous interlocutory 

judgment remanding a capital case to the District Court 

for an evidentiary hearing. The Court lists five reasons 

why the Court of Appeals “abused its discretion.” None of 

these reasons, whether taken separately or considered 

together, stands up to examination. 

Reason One. During the 5-month period after this Court 

denied rehearing of Thompson’s certiorari petition, during 

which time the Court of Appeals was reconsidering the 

matter, it gave “no indication that it might be revisiting its 

earlier decision.” Had it “notified” the parties, the court 

“could have spared the parties and the state judicial system 

considerable time and resources.” Ante, at 10. 

If this consideration favors the Court’s conclusion, it 

does so to a very modest degree. For one thing, the Federal Rules themselves neither set an unchangeable deadline for issuance of a mandate nor require notice when the 
12 BELL v. THOMPSON 

BREYER, J., dissenting 

court enlarges the time for issuance. Compare Fed. Rule 

App. Proc. 41(b) (2005) (“The court may shorten or extend 

the time”), with Rule 41(b) (1968) (mandate “shall” issue 

“unless the time is shortened or extended by order” (emphasis added)). The Advisory Committee Notes to Rule 41

expressly contemplate that the parties will themselves 

check the docket to determine whether the mandate has 

issued. See Advisory Committee’s 1998 Note on subd. (c) 

of Rule 41 (“[T]he parties can easily calculate the anticipated date of issuance and verify issuance of the mandate[;] the entry of the order on the docket alerts the

parties to that fact”). And Sixth Circuit Rules require the 

Circuit Clerk to provide all parties with copies of the 

mandate. See Internal Operating Procedure 41(a) (CA6

2005) (“Copies of the mandate are distributed to all parties 

and the district court clerk’s office”). Thus, the State’s 

attorneys knew, or certainly should have known, that the 

mandate had not issued, and, as experienced practitioners,

they also knew, or certainly should have known, that a 

proceeding is not technically over until the court has 

issued its mandate. And if concerned by the delay (and 

some delay in such matters is not uncommon), they could 

have asked the Circuit Clerk why the mandate had not 

issued. If necessary, they could have filed a motion seeking that information or seeking the mandate’s immediate 

issuance. 

For another thing, since notification is a clerical duty, 

the panel may have thought the parties had been notified. 

One of the judges on the panel could well have instructed 

the Circuit Clerk not to issue the mandate, and then 

simply have assumed that the Clerk would notify the 

parties of that fact (though the Clerk, perhaps inadvertently, did not do so). Why would the court want to hide 

what it was doing from the parties? Once we apply a 

presumption of regularity to the panel’s actions, we must 

assume that the failure to notify the parties was likely due 
Cite as: 545 U. S. ____ (2005) 13 

BREYER, J., dissenting 

to a simple clerical error. 

Further, the prejudice to the State that troubles the

Court was likely small or nonexistent. The need to reset 

an execution date is not uncommon, and the state court’s 

execution order explicitly foresaw that possibility. See 373 

F. 3d, at 692 (Tennessee Supreme Court order set Thompson’s execution date for August 19, 2004, “unless otherwise ordered by this Court or other appropriate authority” 

(internal quotation marks omitted)). Moreover, the State 

has not even argued—despite ample opportunity to do 

so—that the further proceedings ordered by the panel

would actually have required it to set a new date. 

Finally, the State did not, by way of a petition for rehearing, make any of its “failure to notify” arguments to 

the Court of Appeals. Although the law does not require

the State to seek rehearing, such a petition would have 

permitted the panel to explain why the State was not 

notified and possibly to explore the matter of prejudice. 

There is no reason to reward the State for not filing a

petition by assuming prejudice where none appears to 

exist. 

Given the State’s likely knowledge that the mandate

had not issued, the existence of avenues for resolving any 

uncertainty, and the small likelihood of prejudice, the lack 

of notice does not significantly advance the Court’s “abuse 

of discretion” finding. Indeed, if the Court believes that 

the Court of Appeals could have issued a revised opinion

correcting its earlier judgment if only it had given notice to 

the parties, the sanction it now imposes—outright reversal—is far out of proportion to the crime. 

Reason Two. The court’s “opportunity to consider” the 

Sultan evidence “at the rehearing stage is yet another 

factor supporting” the abuse-of-discretion “determination.” 

Ante, at 12. I agree that it is unfortunate that, upon

review of the rehearing petition, the panel failed to make

the connection that would have allowed it, at that time, to 
14 BELL v. THOMPSON 

BREYER, J., dissenting 

reach the same conclusion it reached later. Still, the 

petition wrongly implied that the Sultan documents were 

part of the original appeal. Because it did not request 

rehearing on the ground that the documents were not in 

the record, it did not offer a genuine “opportunity to consider” the Sultan evidence. 

Under these circumstances, I cannot agree that the 

court’s opportunity to consider these documents at the 

rehearing stage should militate in favor of finding an 

abuse of discretion. To the contrary, I believe we should 

encourage, rather than discourage, an appellate panel, 

when it learns that it has made a serious mistake, to take 

advantage of an opportunity to correct it, rather than to 

ignore the problem. 

Reason Three. The “Sultan evidence . . . is not of such a 

character as to warrant [a] . . . departure from standard 

appellate procedures” because “the evidence was unlikely to 

have altered the District Court’s resolution of Thompson’s 

ineffective-assistance-of-counsel claim.” Ante, at 14. That 

is to say, given the expert testimony in the trial court, the 

Sultan evidence is unlikely meaningfully to have strengthened Thompson’s claim before the Federal District Court. 

Ante, at 14–15. 

This conclusion is wrong. The Court argues the following: (1) Dr. Sultan’s conclusion rests in significant part 

upon interviews with three witnesses, Thompson’s grandmother and sister (with whom Dr. Sultan spoke directly) 

and his girlfriend (whose interview with a defense investigator Dr. Sultan reviewed); (2) since all three of these 

witnesses testified at sentencing, Thompson’s counsel 

must have consulted them at the time; and (3)

“[c]onsultation with these witnesses, when combined with 

the opinions of [the State’s expert] and [Thompson’s expert], provided an adequate basis for Thompson’s attorneys to conclude that focusing on Thompson’s mental

health was not the best strategy.” Ante, at 16. The Court 
Cite as: 545 U. S. ____ (2005) 15 

BREYER, J., dissenting 

then says that trial counsel’s “strategy” may have been “a 

mistake,” ante, at 17, but apparently not enough of a

mistake to amount to inadequate assistance of counsel.

But how do the Court’s conclusions follow from the 

premises? Dr. Sultan’s interview of the three witnesses 

apparently turned up new information, indeed, crucial 

information. Why does that fact not tend show that trial 

counsel’s own “consultation” with those witnesses was 

inadequate? Or, if trial counsel was aware of the information, why does that not tend to show that trial counsel

hired an expert who was not qualified to assess Thompson’s mental condition, or that counsel failed adequately to 

convey the critical information to that expert? This Court 

in Wiggins v. Smith, 539 U. S. 510, 523–525 (2003), found 

trial counsel inadequate for failing to conduct a reasonable 

investigation, given notice that such an investigation 

would likely turn up important mitigating evidence. See 

also Rompilla v. Beard, ante, p. ___. Why is the same not

true here, where Thompson’s trial counsel was fully aware 

of the need for a background investigation, and then either

did not ask the right questions, or did not hire the right 

expert, or did not convey the right information to that 

expert? At the least, is there not a good argument to this 

effect—an argument that the Sultan documents significantly strengthened? All three judges on the panel 

thought so: They concluded that they would have reached 

a different result on Thompson’s ineffective-assistance-ofcounsel claim had they been aware of the Sultan documents. The Court does not satisfactorily explain its basis 

for second-guessing the panel on this point. 

Reason Four. The Sultan evidence does “not come close 

to satisfying the miscarriage of justice standard under 

Calderon.” Ante, at 17 (referring to Calderon v. Thompson, 523 U. S. 538 (1998)). As the Court apparently 

agrees, see ante, at 8–9, Calderon does not apply here.

And the panel’s basic conclusion—that consideration of 
16 BELL v. THOMPSON 

BREYER, J., dissenting 

Thompson’s ineffective-assistance-of-counsel claim without the benefit of the Sultan evidence would constitute a 

grave miscarriage of justice—survives any plausible standard of review. I can find nothing in the Court’s opinion 

that explains why the panel’s conclusion is wrong. 

Reason Five. The Court of Appeals “did not accord the 

appropriate level of respect” to the State’s “judgment.” 

Ante, at 19. If by “judgment” the Court means to refer to

the state court’s original judgment of conviction, this 

reason simply repeats Reason Four. The panel carefully 

examined the entire record and determined that there is a 

significant likelihood the Sultan evidence would demonstrate a violation of the Federal Constitution. 

If the Court means to refer to the state court’s judgment 

not to set aside the conviction in state postconviction 

proceedings, the Court is clearly wrong. The state court 

on collateral review refused to authorize funds for a background investigation, one for which Thompson’s expert

then showed a strong need, and which Thompson’s expert 

now shows could well have demonstrated a significantly

mitigating mental condition. How is it disrespectful of the 

State for a federal habeas court to identify a constitutional 

error that occurred in state-court proceedings in a capital 

case, by taking account of a key piece of evidence, mistakenly omitted from the record? 

If the Court means to refer to the State’s decision to 

proceed with the execution, I cannot possibly agree. The 

Court could not mean that any exercise by a federal court

to correct an inadvertent, and important, evidentiary error 

is “disrespectful” of a State’s effort to proceed to execution. 

But if it does not mean “any” exercise at all, then how can 

it say the present exercise is disrespectful? The present

exercise embodies as thorough an examination of the 

record and as significant a piece of evidence as one is 

likely to find. The process—the detail and care with which 

the Court of Appeals combed the record—does not show 
Cite as: 545 U. S. ____ (2005) 17 

BREYER, J., dissenting 

“disrespect.” It shows the contrary. 

The upshot is that the Court’s five reasons are unconvincing. The Court simply states those reasons as conclusions. It fails to show how, or why, the unanimous panel 

erred in reaching diametrically opposite conclusions, all 

supported with detailed evidence set forth in Judge Suhrheinrich’s opinion. It does not satisfactorily explain the 

evidentiary basis for its own conclusions. And, in the 

process, it loses sight of the question before us: again, not 

whether we, as judges, would have reached the same 

conclusion that the three judges on the panel reached, but

rather whether they, having unanimously agreed that 

their earlier decision was wrong, abused their discretion in 

setting it right. 

III 

Ultimately this case presents three kinds of question.

The first is a narrow legal question. Has the Court of 

Appeals abused its discretion? For the reasons I have set 

forth, the answer to that question, legally speaking, must

be “no.” 

The second is an epistemological question. How, in 

respect to matters involving the legal impact of the Sultan 

report and deposition, can the Court replace the panel’s 

judgment with its own? Judge Suhrheinrich’s opinion

demonstrates why any assessment of that legal impact 

must grow out of thorough knowledge of the record. He 

spent hundreds of hours with its numerous documents in 

order to make that assessment. Those of his conclusions 

that were shared by the other members of the panel are 

logical, rest upon record-based facts, and are nowhere

refuted (in respect to those facts) by anything before us or 

by anything in the Court’s opinion. How can the Court 

know that the panel is wrong? 

The third question is about basic jurisprudence. A legal

system is based on rules; it also seeks justice in the indi-
18 BELL v. THOMPSON 

BREYER, J., dissenting 

vidual case. Sometimes these ends conflict. To take account of such conflict, the system often grants judges a 

degree of discretion, thereby providing oil for the rulebased gears. When we tell the Court of Appeals that it 

cannot exercise its discretion to correct the serious error it 

discovered here, we tell courts they are not to act to cure 

serious injustice in similar cases. The consequence is to

divorce the rule-based result from the just result. The 

American judicial system has long sought to avoid that 

divorce. Today’s decision takes an unfortunate step in the 

wrong direction. 
Cite as: 545 U. S. ____ (2005) 19 

Appendix to opinion of BREYER, J. 

APPENDIX TO OPINION OF BREYER, J. 

Excerpts from the Gregory Thompson Psychological 

Report prepared by Dr. Faye E. Sultan at the Riverbend Maximum Security Institution (RMSI) (July 22, 

1999), App. 11–20. 

“REFERRAL QUESTIONS: 

“Mr. Gregory Thompson was referred for psychological 

evaluation in July, 1998 by attorney Mr. Stephen M. 

Kissinger of the Federal Defender Services of Eastern

Tennessee Incorporated. Mr. Thompson was convicted of 

murder in 1985. This evaluation was requested to address

the following questions: 

“1. Mr. Thompson’s current psychological status[.] 

“2. Mr. Thompson’s likely psychological status and 

mental state before and surrounding the time of the 

1985 offense. 

“3. Social, environmental, psychological, and economic

factors in the life of Mr. Thompson which might have 

be[en] considered to be mitigating in nature at the 

time of his trial. 

“PROCEDURE: 

“Psychological evaluation of Mr. Thompson was initiated 

on August 20, 1998. This first evaluation session extended 

over a period of approximately four hours and consisted of 

clinical interview and the administration of the Minnesota 

Multiphasic Personality Inventory–2 (MMPI–2). Some 

review of prior psychological evaluation records was conducted to establish what formal psychological and neuropsychological testing had been administered to Mr. 

Thompson. Levels of current intellectual and neuropsychological functioning had been recently assessed by neuropsychologist, Barry Crown, Ph.D., so no attempt was 
20 BELL v. THOMPSON 

Appendix to opinion of BREYER, J. 

made to replicate this type of assessment.

“Following the 8–20–98 initial evaluation session, a very 

extensive review of legal, military, medical, prison and 

psychiatric/psychological records was initiated. A list of 

the documents examined is attached to this report. 

. . . . . 

“. . . Two further interviews were conducted with Mr. 

Thompson for [the] limited purpose [of determining 

Thompson’s competence to participate in habeas proceedings], on 2–2–99 and 4–7–99, totaling approximately six 

hours of additional observation. Voluminous Tennessee 

Department of Corrections mental health, medical, and 

administrative records were reviewed at this time as well. 

. . . . . 

“[T]he extensive record review conducted, the ten hours of 

clinical observations made of Mr. Thompson during the 

preceding eleven months, the interviews conducted with 

collateral informants, and the recent and past psychological testing which had been administered provide enough 

data to make it possible to render professional opinions 

about Mr. Thompson’s mental state at and around the 

time of the 1985 offense. 

“CLINICAL OBSERVATIONS: 

“Mr. Gregory Thompson was cooperative with the assessment procedure. He answered all questions posed to him 

and appeared to be alert, watchful and interested in the

interview process. His speech was sometimes tangential 

and rambling. Although motor behavior appeared controlled there was a manic quality to his verbalizations. 

Mr. Thompson was oriented as to person, place and time,

but he repeatedly expressed his firm belief that he had 

written each and every song which played on the radio.

“Mr. Thompson displayed symptoms of psychosis during 

the two subsequent meetings. The details of these sessions will not be reviewed here. 
Cite as: 545 U. S. ____ (2005) 21 

Appendix to opinion of BREYER, J. 

“FORMAL PSYCHOLOGICAL TESTING: 

“The Minnesota Multiphasic Personality lnventory–2

(MMPI–2) was administered to Mr. Thompson on 8–20– 

98. It had been determined in other examination settings 

that Mr. Thompson’s level of reading competence exceeded 

the necessary level of 8th grade ability required for proper 

administration of this test. 

“The MMPI–2 profile produced by Mr. Thompson is considered valid and appropriate for interpretation. Individuals producing similar profiles are described as experiencing significant psychological difficulties and chronic

psychological maladjustment. Such individuals are considered to be highly suspicious of others, often displaying 

paranoid features. There is indication in this profile of the 

presence of a thought disorder and the inability to manage 

emotions. The world is perceived as a threatening and

dangerous place and fears are viewed as externally generated and reality-based rather than as a product of an 

internally generated state. The behavior of such individuals is often described as hostile, aggressive, and rebellious 

against authority. Poor impulse control, lack of trust in 

others, and low frustration tolerance may result in such 

individuals displaying rage in interpersonal relationships. 

“Individuals producing this testing profile are also described as experiencing depressed mood. There is the 

strong possibility that such individuals have contemplated 

suicide and report preoccupation with feeling guilty and 

unworthy. Testing items were endorsed which suggest 

memory and concentration problems, and an inability to 

make decisions. 

“RELEVANT PSYCHOLOGICAL/PSYCHIATRIC DATA 

CONTAINED IN RECORDS:

“The[re] is substantial documentation throughout the

Tennessee Department of Corrections records that Mr.

Greg Thompson has suffered from significant mental
22 BELL v. THOMPSON 

Appendix to opinion of BREYER, J. 

illness since at least the time of . . . his incarceration in 

1985. He has been treated almost continuously with some 

combination of major tranquilizer and/or anti-depressant 

and/or anti-anxiety medications. He has received a variety of diagnostic labels including Psychosis, Psychosis Not 

Otherwise Specified, Paranoid Schizophrenia, Mania, 

Mixed Substance Abuse, Schizophrenia, BiPolar Affective

Disorder, Schizoaffective Disorder, Malingering, and Adult 

Antisocial Behavior. This is clearly indicative of the Tennessee DOC mental health staff’s view that Mr. Thompson 

has experienced major mental illness throughout at least

most of his period of incarceration. Further, there is 

extensive documentation contained in these records of 

many episodes of bizarre aggressive and/or self-destructive 

behavior. 

“INTERVIEWS WITH COLLATERAL WITNESSES: 

“Five individuals were interviewed (either by telephone or 

face-to-face) who provided significant supplemental information about the life circumstances and past/present

psychological functioning of Mr. Gregory Thompson. 

“Ms. Maybelle Lamar 

“Ms. Lamar is Mr. Thompson’s maternal grandmother. 

She was interviewed by telephone on July 21, 1999. Ms. 

Lamar assumed total responsibility for the care and rearing of Mr. Thompson and his two older siblings after his

mother was killed when Mr. Thompson was approximately 

five years old. Mr. Thompson remained in her home until 

he entered the military as a young adult.

“Ms. Lamar recalls the period following her daughter’s 

fatal automobile accident as one of tremendous strain and 

disruption for her. She was unable to describe the reaction of the three young children to their mother’s death 

because she ‘took to my bed’ for approximately five or six 

weeks following the accident. Ms. Lamar was unable to 
Cite as: 545 U. S. ____ (2005) 23 

Appendix to opinion of BREYER, J. 

attend to these children in any way at that time. She did 

not recall how they obtained food or clothing, or whether

they were in any distress. Ms. Lamar reported that she 

was drinking alcohol quite heavily during this period and 

that she left her bed to resume household activities only 

because the children contracted a serious medical illness. 

“Ms. Lamar described Mr. Thompson as displaying significantly ‘different’ behavior when he returned to visit her 

following his discharge from the U. S. Navy. ‘Greg didn’t 

act the same’. Unlike the ‘eager to please’, passive, sometimes funny, gentle boy who she had reared, Mr. Thompson was ‘angry’, ‘sometimes sad’. ‘I don’t think he wanted 

me to know what was going on with him. He mostly just 

stayed away from me.’ Ms. Lamar reported that she noticed Mr. Thompson sometimes ‘staring off into space’ or 

‘talking to himself ’. She would ask him about these behaviors. ‘He’d deny it. He acted like he didn’t know what 

I was talking about.’ Ms. Lamar recalls being quite concerned about her grandson’s mental state during this time.

She did not recall ever being asked these questions at any 

time before or during Mr. Thompson’s trial. 

“Ms. Nora Jean Hall Wharton 

“Nora Jean Wharton is Mr. Thompson’s older sister. A 

lengthy telephone interview was conducted with her on 

July 21, 1999. She grew up in the same home as Mr. 

Thompson and had continuous contact with him throughout his childhood. Mr. Thompson lived briefly in the home 

of his sister following his discharge from the military. 

“Ms. Wharton described Mr. Greg Thompson as a highly

sensitive, passive, timid, emotionally vulnerable child.

She described a childhood of great hardship. According to 

her report, their grandmother, Ms. Maybelle Lamar[,] was 

verbally abusive, neglectful of the children’s basic daily 

needs, highly critical, and unable to care properly for the 

children. Ms. Wharton described many instances of such 
24 BELL v. THOMPSON 

Appendix to opinion of BREYER, J. 

abuse and neglect. She described the period following

their mother’s death as particularly chaotic and neglectful, 

recalling that often there was no food in the home and 

that the children would take money from under their 

grandmother’s mattress to go and buy food. In the period

following their mother’s death, Ms. Wharton reported that 

her grandmother was continuously drunk and unable to 

care for her grandchildren. According to Ms. Wharton, 

Greg Thompson frequently witnessed his sister Nora being 

beaten by their grandmother.

“Ms. Wharton further recalled that she and her younger

brother had witnessed the brutal beating and rape of their 

mother by their biological father. She recalls Greg standing in the scene screaming and sobbing uncontrollably.

“Ms. Wharton reported that Greg would frequently cry at 

school during the early school years, and, as a result, was 

often the victim of intense mockery from his classmates. 

Because Ms. Wharton was in the same classroom as her 

brother she observed these behaviors and often intervened 

on her brother’s behalf. She described Mr. Thompson’s 

response to this abuse as quite passive. 

“Of particular significance is Ms. Wharton’s recollections 

about Mr. Thompson repeatedly banging his head against 

the wall of their home on many occasions during their 

early childhood. This behavior frequently followed their 

grandmother yelling at Greg ‘You have the Devil in you.’ 

Mr. Thompson would tell his sister that he was attempting to ‘knock the Devil out’ of his head in this way. Ms. 

Wharton recalls believing that this behavior was quite 

odd. 

“Following his discharge from military service, Ms. Wharton described Mr. Thompson’s behavior as significantly 

different than his prior conduct and attitude. She reported several episodes of bizarre behavior which included 

a sudden intense emotional reaction without obvious 

external provocation. Mr. Thompson would become ex-
Cite as: 545 U. S. ____ (2005) 25 

Appendix to opinion of BREYER, J. 

tremely angry, would cry and scream for a len[g]thy period 

of time, would appear as if he might or actually become

quite physically violent or aggressive, and then would 

suddenly retreat. Ms. Thompson reported this behavior 

and her concerns about it to her grandmother. Ms. Lamar 

suggested that Ms. Wharton take her brother to the psychiatric unit of the local hospital for treatment. Ms. 

Wharton did not attempt to get any treatment for Mr. 

Thompson and reports feeling quite guilty about this. 

“Nora Jean Wharton described her own struggles with

mental illness throughout the past fifteen years. She has 

received counseling to assist her in coping with the effects 

of her abusive childhood and she has been treated with a 

combination of a major tranquilizer (Stellazine) and antidepressant medications. She reported that her younger

half-sister Kim has also suffered from significant mental 

illness. 

“CUSTODY OFFICERS AT RMSI 

“Following the second interview conducted with Mr. 

Thompson on 2–2–99, I informally interviewed two custody officers who escorted Mr. Thompson back to his cell.

These officers have not as yet been identified by name. 

Both reported that they were aware that Mr. Thompson 

was quite mentally ill and that they were concerned about 

him. They further reported that they believed it would be 

in his best interest to be housed in a prison facility better 

equipped to deal with individuals experiencing severe 

mental illness. 

“MICHAEL CHAVIS 

“Federal Defender Services of Eastern Tennessee investigator, Mr. Michael Chavis, was interviewed about his July 

29 through August 2, 1998 interview with Ms. Arlene 

Cajulao in Honolulu, Hawaii. Ms. Cajulao and Mr. 

Thompson had an intimate relationship and lived together 
26 BELL v. THOMPSON 

Appendix to opinion of BREYER, J. 

for approximately four years, from 1980 to 1984. 

“Mr. Chavis reported that Ms. Cajulao described Mr. 

Thompson as displaying increasingly bizarre behavior

during the latter part of their relationship. Similar to 

descriptions proved by Ms. Nora Wharton, Ms. Cajulao

reported several episodes of ‘paranoid’ and aggressive 

behavior which had no apparent external antecedent. She 

reported that Mr. Thompson sometimes thought that 

people were ‘after’ him. He would close all the curtains in 

the house because he did not want the person who was 

‘looking’ for him to see him through the curtains. She 

remembers being quite concerned about Mr. Thompson’s 

mental state. 

“SUMMARY AND CONCLUSIONS: 

“Mr. Gregory Thompson has experienced symptoms of 

major mental illness throughout his adult life. Indeed, 

there is information available which suggests that Mr. 

Thompson was displaying significant signs of mental

illness from the time he was a small child. Self-injurious 

behavior is reported as early as six years old. There is 

extensive documentation contained within the records 

reviewed for this evaluation that Mr. Thompson has experienced a thought disorder and/or an affective disorder 

of some type for many years.

“It is my opinion that Mr. Gregory Thompson is most 

appropriately diagnosed, according to the Diagnostic and 

Statistical Manual of Mental Disorders, Fourth Edition, as 

having Schizoaffective Disorder, Bipolar Type. As is 

typical of this illness, symptoms became apparent in early 

adulthood. Mr. Thompson was suffering serious mental 

illness at the time of the 1985 offense for which he has 

been convicted and sentenced. This mental illness would 

have substantially impaired Mr. Thompson’s ability to

conform his conduct to the requirements of the law. 

“Further, Mr. Thompson was the victim of severe child-
Cite as: 545 U. S. ____ (2005) 27 

Appendix to opinion of BREYER, J. 

hood emotional abuse and physical neglect. His family 

background is best described as highly neglectful and 

economically deprived. Mr. Thompson repeatedly witnessed episodes of violence during his childhood in which 

one family member assaulted or brutalized another. 

There are significant aspects of Mr. Thompson’s social

history that have been recognized as mitigating in other 

capital cases 

“It is important to note that all of the information related 

to Mr. Thompson’s early mental illness and social history 

was available at the time of his 1985 trial. 

“[signed]

“Faye E. Sultan, Ph.D.” 

* * * 

Excerpts from the Deposition of Dr. Faye E. Sultan 

(July 22, 1999), Id., at 71–73, 76–80. 

“Q. What indicates to you or what indicia are there for 

you that suggest Mr. Thompson was displaying significant 

signs of mental illness from the time he was a small child? 

How do you arrive at that conclusion? 

“A. . . . . . 

“By the time of the first grade, Mr. Thompson, when he 

was being yelled at by his grandmother, she was reportedly verbally abusive in the following fashion: She would 

yell at him you have the devil in you, boy. [His sister, Ms. 

Wharton] would then observe Mr. Thompson standing or 

sitting beside a wall repeatedly banging his head into the 

wall. She, in her role as protector of him, would ask him 

what was going on, and he would tell her he was trying to 

knock the devil out of his head. She recalls at the time, 

although she was quite young herself, being worried about 

his behavior and thinking of it as very odd. 
28 BELL v. THOMPSON 

Appendix to opinion of BREYER, J. 

. . . . . 

“Q. Sort of a self-punishment or a self-exorcism type 

thing?

“A. A self-injurious behavior is what we would call it I 

think. Mr. Thompson, when he was Greg, in the first and 

second and third grade had rather frequent hysterical 

crying episodes in classrooms that Ms. Wharton recalls 

also as very unusual in the context of his schoolroom 

situation. She describes him as being the subject of torment on the part of the students because he behaved in an 

odd fashion. Sometimes he would simply begin to cry and 

wail and scream and apparently made a sound like a fire 

engine when he was sobbing and developed the nickname

Fire Engine. That’s reported in the trial transcript. She 

told me much more detail about actually the extent of 

those kind[s] of emotional outbursts. 

“At home it was rather common for Mr. Thompson to 

begin to cry and scream during times when Ms. Wharton 

herself was being beaten by their grandmother. Ms. 

Wharton was the victim of physical abuse on the part of 

the grandmother. Mr. Thompson observed much of this

since they were together virtually all of the time, and Nora 

Wharton was not really permitted much interaction outside of their home. 

. . . . . 

“Q. Your diagnosis for Mr. Thompson is schizoaffective 

disorder, comma, bipolar type. What leads you to that

diagnosis from what you’ve reviewed and your testing 

results? 

“A. What leads me to the diagnosis is that there is a 

long history, perhaps at this point almost a 20-year history, of simultaneous thought disorder on the part of Mr. 

Thompson documented throughout all the records, and 

affective disorder, emotional disorder, being unable to 

regulate his emotions, sometimes falling into the pits of 

despair and becoming suicidal, sometimes becoming 
Cite as: 545 U. S. ____ (2005) 29 

Appendix to opinion of BREYER, J. 

highly agitated and manic and having too much energy, 

too much exuberance, and grandiose thinking. The 

thought disorder is manifested in persecutory ideas, delusions of grandeur—lots of different kinds of delusions 

actually—auditory hallucinations that he sometimes 

admits to, sometimes suspected by the doctors who are 

doing the examination.

“The psychological testing early on in Mr. Thompson’s 

incarceration confirm[s] the presence of a psychotic process. There was an MMPI administered to him by a prison 

psychologist in 1990 that is described as valid and indicative of psychotic process, and throughout the prison record 

he receives a variety of diagnoses that take into account 

both thought disorder and affective illness. 

“The very best diagnosis to describe all of the complex of 

symptoms that I just talked to you about is schizoaffective 

disorder, bipolar type.

“Q. You note in your report Mr. Thompson was observed having a significant change in behavior after he 

was discharged from the Navy. What significance do you

attach to that fact? 

“A. Well. . . [p]rior to his entry into the military Mr. 

Thompson is described almost uniformly . . . as passive, as 

compliant, as eager to please, as gentle, as timid, as eager 

to run from attacks. 

“At some point . . . he began to notice that people were 

trying to hurt him all the time, that officers and other 

people of his rank and slightly above his rank attempted 

to provoke him, that they sometimes physically assaulted 

him, that he thought he was being followed a lot, and that 

he sometimes struck out in what he thought was defense 

and then later found out from other people who he knew 

and trusted that there wasn’t anything to defend against 

or that there might not have been anything to defend 

against.

“Q. This is what he related to you during your interview 
30 BELL v. THOMPSON 

Appendix to opinion of BREYER, J. 

last August?

“A. Right. The people who saw him after the military 

each were struck by how very different he seemed. That 

was the word that kept being used, ‘different.’ Sometimes 

the people I was speaking to were not able to describe 

what different meant, but, for example, the grandmother 

said that he was different as in not right, that he wasn’t 

himself. Ms. Wharton tells me that the grandmother was 

very well aware that he was in deep psychological distress, 

and, in fact, the grandmother suggested that he be taken

to the psychiatric unit at Grady Hospital in Atlanta, I 

believe, for treatment. The grandmother observed him 

staring off into space for long periods of time. She observed him mumbling to himself. When she asked him 

what he was doing, he told her he had no idea what she 

was talking about. She said that was very different from 

the boy who left her to go into service.

“The sister has even a better glimpse of him than that, 

because he actually went to live with her for a while, and 

she said he was bizarre. She described him as paranoid.

She said that he would explode for no reason at all, that 

she was afraid of him for the very first time in her life, 

that they had always been terribly close, the sort of close 

where if there was only one piece of bread to eat they

would share it, that they always looked out for one another, and that suddenly he was behaving in ways that 

she simply could not identify. She described three very 

serious episodes of aggression and emotional upset that 

she said are what led her to approach her grandmother 

about what to do for treatment for him. 

. . . . . 

“Q. You state that the schizoaffective disorder, bipolar 

type, would substantially impair Mr. Thompson’s ability to

conform his conduct to the requirements of the law. How 

so? 

“A. There are points in time when Mr. Thompson is out 
Cite as: 545 U. S. ____ (2005) 31 

Appendix to opinion of BREYER, J. 

of contact with reality. He is responding to situations that 

simply don’t exist or that he perceives in extremely exaggerated or different form. A person is not able to conform 

one’s conduct to the law if you are frankly delusional or 

hallucinating in some way. Mr. Thompson over the years 

has had both of those symptoms. 

“Q. So it’s this delusional aspect of this disorder that is 

the main factor that would keep him from having the 

ability to conform his conduct to the requirements of law,

if I understand you correctly?

“A. Is it the main factor? Let me say that I think it’s at 

least as potent a factor if not more as the other aspect of 

his mental illness, which is that he has emotional disregulation. 

 “Q. Meaning? 

“A. Meaning Mr. Thompson often is not in control of his 

emotions. He has episodes of rage, of aggression, that he 

doesn’t understand or relate to very well. He’s told about 

them later. Sometimes he remembers them, sometimes he 

doesn’t. He is often embarrassed about his behavior afterwards, but there are points at which I believe he’s not 

in control of what he’s doing. 

“Q. When you say ‘he’s not in control of what he’s doing,’ are you saying that it’s impulsive behavior? 

“A. If I am emotionally disregulated, if I’m over-aroused 

and overreactive and I operate out of a faulty belief system, so that not only do I have the impulse to do things 

that I ordinarily wouldn’t, but I also think things are 

going on that aren’t, I have a combination in which yes, I 

suppose you could call it impulse, but you also have to 

take the notion into account that it might be an impulse to 

do something that doesn’t make any sense. 

“Q. Does this disorder prevent Mr. Thompson from 

planning his activities?

“A. Sometimes, yes, it does. 

“Q. And so the inability to plan, would that be a factor 
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Appendix to opinion of BREYER, J. 

that would prevent him from conforming his conduct to 

the requirements of the law?

“A. If that were in operation at some time. In the history of the Department of Corrections’ mental health 

records, when he’s properly medicated I don’t think that’s 

true about him. 

“Q. Is it your professional opinion, then, that when he is 

medicated he has the ability to plan, but when he is not 

medicated he does not always have the ability to plan? 

“A. Those two things are true. It’s also true that if he’s 

inadequately medicated or improperly medicated he 

doesn’t have the ability to plan anything. I don’t know 

whether he has impulses. I think he’s all impulse, so to 

have impulses implies that there’s a part of you that’s not 

impulsive. For example, when Mr. Chavis and I saw him

during my second interview with him, he could not have 

planned anything at all, not beyond the nanosecond in 

which he was experiencing the world. But he was receiving psychotropic medications at the time, so that’s why I 

have to put that qualifier in there.”