REVISED APRIL 24, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-60511

_____________________

HOWARD MONTEVILLE NEAL,

Petitioner-Appellant,

versus

STEVE W. PUCKETT, Commissioner,

Mississippi Department of

Corrections; JAMES ANDERSON,

Superintendent, Mississippi

State Penitentiary,

Respondents-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

_________________________________________________________________ March 15, 2002

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,

WIENER, BARKSDALE, EMILIO M. GARZA, DEMOSS, BENAVIDES, ST EWART,

PARKER, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

Howard Neal was sentenced to death by the state courts of

Mississippi for the brutal rape and murder of his thirteen-year-old

niece, Amanda Joy Neal. He also shot and killed his brother, Bobby

Neal, and he raped and murdered his niece’s fourteen-year-old

friend, all during the same episode. He now seeks federal habeas

corpus relief on the grounds of ineffective assistance of counsel.2

Neal argues that his counsel failed to thoroughly investigate

Neal’s background--including his horrid childhood of rejection,

abandonment, and mental institut ions, plus his torturous prison

experience--to uncover evidence of mitigating circumstances that he

could have presented to the jury during the sentencing phase of his

trial. Neal raised this ineffective counsel claim before the

Mississippi Supreme Court. That court denied relief, concluding

that the additional evidence would have been cumulative of what

actually was presented. Because we conclude that the Mississippi

Supreme Court’s conclusion, although incorrect, was not an

unreasonable application of Strickland v. Washington , we deny

Neal’s request for a writ of habeas corpus.

I

The facts of this case are discussed in detail in the

published opinion by the Mississippi Supreme Court on Neal’s direct

appeal. N eal v. State

, 451 So.2d 743, 747-51 (Miss. 1984). We

restate the facts briefly here.

Neal is a moderately r etarded man, with an IQ of between 54

and 60. The record indicates that he had a nightmarish childhood

and young adulthood. We will discuss these facts in more detail in

the body of this opinion. In short, as a youth he was discarded by

his family, spent eight years in Mississippi state mental

institutions, and then some time in an Oklahoma prison for assault3

and battery with a dangerous weapon, where, as a helpless

indi vidual, he apparently suffered sexual abuse by fellow

prisoners.

In January 1981, Neal drove to the home of his half-brother,

Bobby Neal, against whom he may have had a longstanding resentment.

Bobby, Bobby’s thirteen-year-old daughter, Amanda Joy , and her

friend, Melanie Sue Polk, were together in the house. The three

left with Neal in Neal’s car, perhaps by force (but this is

uncertain). During the drive, while they were on a logging road,

Neal, according to his confession, began fondling Amanda Joy.

Bobby told Neal to stop, and an argument ensued. Neal stopped the

car, and he a nd Bobby got out and walked some distance away. At

that point, Neal shot Bobby, killing him. Neal then returned to

the car and drove to another deserted area with the two girls. He

pulled a blanket from his car and proceeded to rape Amanda Joy. He

then raped Melanie Sue and shot both girls.

After the bodies were found, the pathologist’s examination of

Amanda Joy revealed bruises and lacerations about her face, head,

and left wrist, and evidence of manual strangulation, in addition

to the bullet hole in her abdomen. The pathologist concluded that

Amanda Joy could have survived between five and thirty minutes

given her wound.1 In a separate trial, Neal was tried and convicted for Bobby’s

murder but received only a life sentence. He was never tried for

Melanie Sue’s murder.

4 T he police began by canvassing the nearby communities. As

part of their investigation, they showed some people a photograph

of Neal and asked whether he looked familiar. The owner of a

nearby motel said that he remembered Neal renting a room about the

time of the murder. By this time, however, Neal was in California,

where he was later arrested for shoplifting. During a standard

background check, the California police discovered that Neal was

wanted for questioning in Mississippi. After several days of

interrogation in California, Neal admitted to t he California

authorities that he had committed the murders.

Neal was tried and convicted for Amanda Joy’s murder based on

the confession he gave police, 1 and the jury sentenced him to

death. Under Mississ ippi law, the jury is required to balance

statutorily-defined aggravating factors against any mitigating

factors in dete rmining whether the death penalty is warranted.

Billiot v. Puckett , 135 F.3d 311, 315 (5th Cir. 1998). In Neal’s

case, the jury found that two aggravating circumstances--that the

murder was committed in the course of a kidnaping and was

“especially heinous, atrocious, or cruel”--were sufficient to

impose the death penalty and were not outweighed by mitigating

circumstances. See Miss. Code Ann. § 99-19-101(5)(d) and (h).5

Neal appealed this conviction and sentence, both of which the

Mississippi Supreme Court ultimately affirmed. N eal , 451 So.2d

743. Neal then sought habeas corpus relief. The Mississippi

Supreme Court granted Neal an evidentiary hearing on whether he had

been denied the opportunity to testify on his own behalf, Neal v.

State , 525 So.2d 1279, 1283 (Miss. 1987), but after this hearing,

that court deni ed relief. N eal v. State

, 687 So.2d 1180 (Miss.

1996). Neal then filed a petition for a writ of habeas corpus in

the United States Distr ict Court for the Southern District of

Mississippi on July 7, 1997. In an unpublished order, the district

court denied Neal’s petition on January 7, 1999, and then denied

his request for a Certificate of Appealability (“COA”) on

October 7, 1999. Neal then filed a motion seeking a COA in this

court. We denied his motion on all claims but one. We did grant

a COA to determine whether Neal’s trial counsel was ineffective at

the sente ncing phase of the trial for failing to investigate

evidence of mitigating circumstances and to present that evidence

during th e sentencing hearing. We now address that issue on the

merits.

II

A

Neal contends that his trial counsel was ineffective for

failing to investigate and gather, and consequently faili ng to2 Ellisville was a school for retarded children and Whitfield

was the state mental hospital.

6 present, mitigating evidence during the sentencing phase of the

trial. The Sixth Amendment requires defense counsel to conduct a

reasonably thorough pretrial inquiry into the defenses that might

be offered in mitigation of punishment. B aldwin v. Maggio

, 704

F.2d 1325, 1332-33 (5th Cir. 1983). Neal argues that his lawyers

failed to do so and, as a result, called only two witnesses during

sentencing--Neal’s mother and a psychologist.

Neal argues that his lawyer should have interviewed members of

the staff at the two institutions where Neal spent time as a youth,

Ellisville and Whitfield. 2 He also contends that his lawyer should

have obtained the records from the prison in Oklahoma where Neal

was incarcerated as a young man or at least consulted officials or

medical personnel from that prison regard ing his mental

capabilities and character. Finally, he contends that he should

have been evaluated by a neurologist to explain further his mental

state. None of this occurred, so any possible mitigating evidence

from these source s was unavailable to the jurors deciding his

sentence. Neal further argues that he was prejudiced by his

counsel’s performance becau se there is a reasonable probability

that if this evidence had been before the jury, he would have

received a life sentence instead of death.7 B

Our first responsibility is to determine the standard of

review. Because Neal filed his petition for habeas corpus relief

on July 7, 1997, the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs this appeal. S ee Lindh v. Murphy

, 521 U.S. 320,

324-26, 117 S.Ct. 2059, 2062-63, 138 L.Ed.2d 481 (1997)(confirming

that the AEDPA applies to federal habeas corpus petitions filed on

or after April 24, 1996). The AEDPA standard for granting habeas

corpus relief with respect to an adjudication on the merits in

state court is stated in 28 U.S.C. § 2254(d):

“(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of

a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim--

“(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly

established Federal law, as determined by the S upreme

Court of the United States....”

In the context of federal habeas proceedings, adjudication “on

the merits” is a term of art that refers to whether a court’s

disposition of the case was substantive as opposed to procedural.

Green v. Johnson , 116 F.3d 1115, 1121 (5th Cir. 1997). In the

present case, the state supreme court denied habeas corpus relief

on the grounds that any additional evidence that Neal could have

uncovered and presented would have been “substantially redundant or

cumulative when compared with the evidence Neal offered at trial.”8

Neal v. State

, 525 So.2d 1279 , 1281 (Miss. 1987). Thus, that

court’s disposition of this issue was substantive an d therefore

qualifies as a decision “on the merits.”

In this case, the “clearly es tablished Federal law” is the

Supreme Court’s decision in Strickland v. Washington

, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny, which

govern ineffective assistance of counsel claims. As the Supreme

Court noted recently,

It is past question that the rule set forth in Strickland

qualifies as “clearly established Federal law, as

determined by t he Supreme Court of the United States.”

That the Strickland test “of necessity requires a caseby-case examination of the evidence” obviates neither the

clarity of the rule nor the extent to which the rule must

be seen as “established” by this Court.

Williams v. Taylor , 120 S.Ct. 1495, 1512, 146 L.Ed.2d 389 (2000).

The meaning of “unreasonable application, ” however, is less

clear. The Supreme Court has recently explained that a state court

decision involves an unreasonable application of this Court’s

precedent

if the state court identifies the correct governing legal

principle from this Court’s decisions but unreasonably

applies that principle to the facts of the pris oner’s

case.

Id. at 1523. Although “unreasonable” is difficult to define, the

Court offered some guidance. First, while acknowledg ing that

earl ier Supreme Court decisions may have caused confusion, the

Court specifically rejected the subjective standard that we set out9

in Drinkard v. Johnson

, 97 F.3d 751, 769 (5th Cir. 1996). Instead,

the Court held that the standard is objective: “Stated simply, a

federal habeas court making the ‘unreasonable application’ inquiry

should ask wh ether the state court’s application of clearly

established federal law was objectively unreasonable.” Williams

,

120 S.Ct. at 1521-22. Second, the Court e mphasized that the “most

important point” of the Williams decision is the critical

distinction between an unreasonable application of federal law and

a merely “incorrect” or “erroneous” ap plication of federal law.

Id. at 1522-23. Because section 2254(d) “places a new constraint”

on a federal habeas court and demands greater deference to state

courts, w e have no authority to grant habeas corpus relief simply

because we conclude, in our independent judgment, that a state

supreme court’s applic ation of S trickland is erroneous or

incorrect. Id. at 1523.

Given this deferential standa rd of review under Section

2254(d), the question before us is whether the Mississippi Supreme

Court’s decision to rej ect Neal’s ineffective assistance claim

“involved an unreasonable application” (and not merely an incorrect

application) of Strickland

.

C10

To establish an ineffective assistance of counsel claim, Neal

must show both that his counsel’s performance was de ficient and

that the deficient performance prejudiced his defense. S trickland

,

466 U.S. 668, 687.

(1)

(a)

Counsel’s performance is considered deficient if it “falls

below an objective standard of reasonableness” as measured by

professional norms. S trickland

, 466 U.S. at 688. We must

determine whether there is a gap between what counsel actually did

and what a reasonable attorney would have done under the

circums tances. In scrutinizing counsel’s performance, we make

every effort to “eliminate the distorting effects of hi ndsight,”

id. at 689, and do not assume that counsel’s performance is

deficient “merely because we disagree with trial counsel’s

strategy.” C rane v. Johnson

, 178 F.3d 309, 312 (5th Cir. 1999).

But with that said, we consider it indisputable that, in the

context of a capital sentencing proceeding, defense counsel has the

obligation to conduct a “reasonably substantial, independent

investigation” into potential mitigating circumstances. Baldwin

,

704 F.2d at 1332-33. In assessing counsel’s performance, we look

to such factors as what counsel did to prepare for sentencing, what

mitigating evidence he had accumulated, what additional “leads” he3 The Mississippi Supreme Court appears to have assumed that

counsel’s performance was defi cient, as the state court focused

solely on Strickland ’s second prong, p rejudice. But because the

state does no t concede the point, we address its arguments

regarding deficiency.

11 had, and what results he might reasonably have expected from these

l eads. Applying this standard to the facts of Neal’s case, we

conclude that a reasonable attorney would have investigated further

and put on a more compelling defense during sentencing. 3

(b)

Neal’s evidence of mitigating factors presented during

sentencing consisted of the testimony of only two witnesses: Neal’s

mother, who gave an overview of Neal’s troubled background; and a

psychologist, Dr. Dana Alexander, who testified about Neal’s mental

and emotional difficulties. Reviewing this testimony does not take

long.

The testimony by Neal’s mother covers nine pa ges in the

transcript. She began with a brief description of his difficulties

in school and his subsequent transfer to Ellisville and Whitfield:

He went to school till he was ten years old. He couldn’t

learn in school. The teachers tried, I tried. He had a

[ha rd] time remembering things. He couldn’t remember,

and at the time his daddy and I separated, and because of

his ability to learn, the welfare told me to send him to

a State School at Ellisville, and he would have a trade,

and he stayed there till he was sixteen, and then they

took him from Ellisville to Whitfield, and h e stayed

there till he was eighteen or nineteen, and then he came

home and stayed with me--lived with me for about a year

or maybe two, and then my husband got disabled to work12

and he started drawing his Social Secur ity, and he

wasn’t--he couldn’t stay there with us because they told

us that he couldn’t, and he got mad and left home, and I

didn’t know where he even went from there, and we had

five other kids, and I wasn’t able to take care of them

when we separated.

This te stimony also included several responses to counsel’s

questions about Neal’s education level (second grade, but unable to

read or write), his marital status (married twice, with one

daughter), and whether he owned a home (he did not). Neal’s mother

also testified that she tried to see him often when he was at

Ellisville, but often could not get there. Finally, Neal’s mother

explained that she had been unable to find anyone to adopt Neal, as

she had done with her other ten children, and consequently placed

Neal in the Ellisville institution.

Dr. Alexander’s testimony, excluding voir dire, includes

twenty-four pages in the transcript, about a third of which is

cross-examination. Dr. Alexander testified that she had tested

Ne al’s IQ, and that his score was 54, at the low end of mild

retardation. According to her, Neal suffered from “organic brain

syndrome,” a disability characterized by “slowness, perseveration,

concreteness of p erception, problems with memory, problems with

orientation and po or impulse control . . . impaired intellectual

functioning, impaired social and vocational functioning . . . and

inability to use controls like you or I.” She concluded that Neal

had the mental a bility of an eight year old. Dr. Alexander also13

testified about Neal’s behavioral problems. She described him as

“more irritable” and “more easily provoked” than nor mal people.

She also explained that Neal suffered from “psycho-se xual

confusion,” “a lack of a definite identity with either the male or

the female role.” This is the essence of her testimony on direct

and redirect examination.

The jury was therefore given the following picture of Neal: a

man with an IQ of 54, with the mental ability of an eight year old,

with conceptual deficiencies, with sexual identity problems, who,

because of his mental deficiencies was less able to control himself

and his impulses, including provoca tion, who had been denied any

semblance of a homelife and virtually rejected by his mother who

had placed him in state institutions for the retarded and mentally

ill, where he grew up and spent eight years of his youth. That is

the essence of the mitigating evidence that defense counsel

presented to the jury. Although it seems to touch many relevant

points, it was presented to the jury in an abbreviated form with no

elaboration.

(c)

Neal’s habeas counsel now presents us with forty-two pages of

affidavits and reports concerning Neal’s background as evidence of

mitigating factors. The affidavits come primarily from doctors and

employees at Ellisville, Whitfield, and the prison in Oklahoma.14

There is also one f rom Neal’s sister and another from a social

worker. Neal contends that trial counsel was ineffective for

f ailing to gather and present these materials that would h ave

weighed against the death sentence. It is important to understand

fully the additional evidence that could have been presented, and

we turn now to the relevant material contained in the habeas

record.

The additional evidence does, indeed, make disturbing reading.

Neal’s sister, Maryann McNeese, describes his childhood household--

eleven children living with their parents in a two-bedroom house.

Neal’s father was an abusive alcoholic who was particularly brutal

towards Neal. An affidavit by Neal’s mother confirms this, as does

an affidavit by a social worker who knew the family at the time,

Marguerite McAulay. Neal was ten when he was sent to Ellisville,

a school fo r retarded children. McNeese’s affidavit states that

when that happened, “he was like a throwed away child. It was like

he didn’t have parents.”

Lamar Collom, an Ellisville bus driver and cafeteria worker,

befriended Neal and has provided another affidavit. It describes

Neal as a “good worker” and “likeable kid.” Collom goes on to say

that he “thought a lot” of Neal, but felt sorry for him because of

his terrible family background. Collom’s affidavit also explains

how Collom “used to give [Neal] a little money some weekends,”15

which Neal “would spend at the little canteen.” An affidavit by

Lucille McIntosh, an Ellisville cafeteria employee, describes Neal

as “a good worker,” “cooperative,” and a boy who “got along with

the other kids.”

Two other items of evidence related to Neal’s time at

Ellisville concern Neal’s level of intelligence. James Woolington,

who founded Ellisville’s psychology program, tested Neal twice. In

his affidavit, Mr. Woolington concludes that Neal had an IQ between

54 and 60 at that time. James Johnson, Ellisville’s Coordinator of

Psychological Services at t h e time, also tested Neal’s

intelligence. A report attached to his affidavit sets his IQ at

55. The report also discusses Neal’s behavioral problems, such as

running away, picking on smaller children, and lack of remorse for

misdeeds. It describes his behavior as “spasmodic” and questions

Neal’s abil ity to control himself. Finally, the report mentions

that Neal was suspected of ha ving engaged in homosexual

relationships while at Ellisville.

At age sixteen, Neal w as transferred to Whitfield, a mental

institution. Dr. A. G. Anderson, a psychologist who knew Neal at

that facility, describes the conditions there in another affidavit:

The unit was not an enjoyable place for a young retardate

to live and was not a good therapeutic environment. It

was not a place that was beneficial to Howard ’s mental

prognosis. Neither Howard nor any of the other residents

got the care they should have gotten. In fact it was not16

a good environment for anyone including the staff. Not

many professionals wanted to work there.

The facility had little in the way of education, training, or

recreation. The affidavit goes on to explain that between ages

sixteen and eighteen, Neal lived in the maximum security unit with

approximately 150 “chronics,” people with men tal disorders that

rendered them unable to stand trial, or who had shown aggressive

tendencies.

After Neal was released from Whitfield, he returned home. He

lived there several months until his mother forced him to leave

because she feared losing her welfare benefits if he stayed. Neal

then headed to Oklahoma, where he was soon arrested for assault and

battery with a dangerous weapon.

The habeas record also contains several affidavits from people

who knew Neal in the Oklahoma prison. The prison psychologist,

Thomas Norwood, testifies that he knew Neal “about as well as [he

had] known anybody [he ha s] worked with in [his] professional

capacity.” Mr. Norwood’s affidavit goes on to explain that “the

treatment of [Neal] by other inmates was so horrible [that he has]

difficulty discussing it,” and that Neal was the “most tragic case

[he] had” because Neal was so defenseles s. As an example, Mr.

Norwood describes an incident where thirty-to-forty inmates forced

Neal under a table and forced him to commit sodomy on each of them

in succession. Finally, Mr. Norwood explains that he helped Neal17

get a place to live and social security benefits after Neal got out

of prison.

Jack Cowley, currently a warden at another Oklahoma prison,

was Neal’s case manager at the time. His affidavit asserts that he

“more or less adopted [Neal]” in prison. Mr. Cowley’s affidavit

also relates that he was concerned about what would happen to Neal

if Neal returned to Mississippi, where there was no one there to

care of him.

In addition, Neal has presented us wi th his prison records

from Oklahoma. There is no report concerning the event Mr. Norwood

described. The records do contain a report, however, about an

incident in which two inmates raped Neal. The report presents Neal

as defenseless, gullible, and at the mercy of the inmates

generally: “Inmate Neal also made reference to several instances

when his cell partner . . . has tried to get Neal to sell himself

so they could have some money.”

Several of the affidavits mention that Neal married Glenda

Snow, who was also mildly retarded, after his release from prison.

Though the two moved to Mississippi, her parents broke up the

marriage and took their daughter home. McNeese’s affidavit

describes her brother’s reaction: “Howard told me it hurt him when

Glenda had to go back to Oklahoma.” A few of the affidavits18

mention that Neal subsequently remarried and had a child with his

second wife.

(d)

In a later section of this opinion, we will address the

question whether presentation of this a dditional testimony would

have changed the outcome of the sentencing hearing. For now, we

emphasize only the volume and easy availability of this additional

mitigating evidence.

Perhaps the most troubling aspect of these affidavits is that

they indicate that counsel never contacted any of the other people

(with the exception of Neal’s mother) who have provided the

additional testimony we now have before us, and which would have

added to and developed the skeletal evidence before the jury. For

example, Neal’s sister, Maryann McNeese, states that she contacted

defense counsel to ask about the case, and would have been willing

to testify on her brother’s behalf, but that they never asked her

to do so. And having examined the mother’s testimony at

s entencing, it is not even clear how much information defense

counsel collected from her before putting her on the stand. Dr.

Alexander’s testimony, too, was surely limited by the fact that she

had met with Neal just one time, three days before testifying, and

that trial counsel failed to tell her about what specific crime

Neal had been charged with or any facts about his personal history.4 Of course, we do not assume that all of this evidence should

have gone before the jury. A psychologist’s report, for example,

was included in the Ellisville records that defense counsel

obtained before sentencing. Some portions of that report are

directly relevant to one of the statutory mitigating factors:

“[Neal’s] ability to control his own behavior is q uestionable.”

But other portions of the report present an unflattering picture of

Neal, describing him as a bully who felt no remorse for misdeeds.

Given these facts, counsel may have made a strategic decision to

withhold that report, which, in the context of the sentencing

hearing that occurred, we will not second-guess.

19 The only materials that defense counsel appears to have had,

other than the assistance of Neal’s mother, are the records from

Neal’s time at Ellisville and Whitfield. 4 And while they had some

indication of his difficult life in the institutions and in prison,

Neal’s attorneys chose not to pursue these sources of evidence. In

his affidavit, one of Neal’s attorneys at trial tried to explain

that they did not contact these potential witnesses due to lack of

funds and experience.

We did not have the time or money to properly investigate

[Neal’s] case. We had no money to interview witnesses or

travel.

. . . I did not get Howard’s records or

interview people who had dealt with him in Oklahoma. I

d id not interview any of his relatives other th an his

mother. . . . We did not have a complete psychological

e xamination of Howard which would have inclu ded a

thorough investigation of his past medical and

psychological history and a neurological examination.

Had we had the time and money we w ould have done the

above investigations for use at both trial and

sentencing.

This explanation does not fully ad dress, however, the fact that

most of the mi tigating evidence was readily available and would5 Several factually similar Fifth Circuit decisions have also

found defici ent performance where counsel have failed to

investigate a defendant’s back ground in mental institutions and

prisons. S ee Bouchillon v. Collins

, 907 F.2d 589 (5th Cir. 1990);

Profitt v. Waldron

, 831 F.2d 1245 (5th Cir. 1987); Beavers v.

Balkcom , 636 F.2d 114 (5th Cir. 1981).

20 have cost no more than several long distance telephone calls or

postage stamps.

Because of the extent to which these available materials could

reasonably have been expected to augment Neal’s case, we conclude

that his trial counsel was deficient in failing to inve stigate,

gather, and consider it for purposes of presentation at Neal’s

sentencing hearing. 5

(2)

(a)

Having concluded that counsel’s performance during sentencing

was deficient, we now turn to the s econd prong of S trickland and

determine whether the deficient performance prejudiced Neal’s

defense during sentencing. To establish prejudice, Neal must show

that there is at least “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.” S trickland

, 466 U.S. at 694; see also United

States v. Green , 882 F.2d 999, 1003 (5th Cir. 1989) (“A defendant

who alleges a failure to investigate on the par t of his counsel

must allege with specificity what the investigation would have6 In Mississippi, the jury must vote unanimously to impose the

death penalty. Miss. Code Ann. § 99-19-103.

21 revealed and how it would have altered the outcome of the trial.”)

By reasonable probability, the Court means a probability sufficient

to undermine confidence in the outcome. Id.

In determining prejudice, we are thus required to compare the

evidence actually presented at sentencing with all the mitigating

evidence contained in the postconviction record. Stat ed to the

point: Is this additional mitigating evidence so compelling that

there is a reasonable pr obability at least one juror 6 could

reasonably have determined that, because of Neal’s reduced moral

culpability, death was not an appropriate sentence?

(b)

The additiona l mitigating evidence has been described in

detail above. It seems indisputable that this new evidence,

standing alone, presents a hugely sympathetic case for mitigating

a death sentence. But the State argues that we must evaluate the

evidence in context of the actual proceedings at sentencing;

specifically, the State argues that no prejudice occurred because

much of the additional testimony would not have been admitted,

either for tactical or procedural reasons.

First, the State raises questions as to the admissibility of

the testimony by Mr. Collom, Mr. Norwood, and Mr. Cowley because7 See Walton v. Arizona

, 497 U.S. 639, 656-69, 110 S.Ct. 3047,

3059-66, 111 L.Ed.2d 511 (1990)(Scalia, J., dissenting)(explaining

the conflict between Furman and Lockett ).

22 their statem ents about their personal affection for Neal,

indicating a degree of personal worth, do not relate to the

statutory mitigatin g factors. This argument creates a potential

concern that such evidence would not be proper for the jury to

consider. It seems clear, however, that this evidence would have

been permissible for the jury to consider as mitigation. While he

asserted two statutory mitigating factors--the offense was

c ommitted under the influence of extreme mental or emotional

disturbance, and his capacity to conform his conduct to the

requirements of law was substantially impaired, see Miss. Code Ann.

§ 99-19-101(6)(b) and (f)--Neal was not limited to presenting

evidence that related to these statutory mitigating factors. In

seeming contradiction to Furman v. Georgia

, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972), 7 the Supreme Court has repeatedly

affirmed the portion of the plurality opinion in Lockett v. Ohio

,

438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978),

holding that the sentencer may not be “precluded from considering,

as a mitigating factor, any aspect of a defendant’s character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.” S ee

Buchana n v. Angelone , 522 U.S. 269, 276, 118 S.Ct. 757, 761, 13923

L.Ed.2d 702 (1998)(reaffirming Lockett ); Penry v. Lynaugh

, 492 U.S.

302, 318, 109 S.Ct. 2934, 2946, 106 L.Ed.2d 256 (1989)(same);

Eddings v. Oklahoma , 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77,

71 L.Ed.2d 1 (1982)(same). Such evidence appears clearly to be

admissible under Mississippi law. S ee Evans v. State

, 725 So.2d

613, 694 (Miss. 1998)(explaining that § 99-19-10 1(1) of the

Mississippi Code provides for the ad mission of nonstatutory

mitigating evidence). The testimony in question here is evidence

concerning Neal’s chara c ter. These potential witnesses found

something worthy about Neal as a human being. Their testimony,

therefore, would have been before the jury as n on-statutory

mitigating evidence and would have been weighed along with the

statutory mitigating circumstances. S ee Billiot

, 135 F.3d at 315.

Second, the state argues that Mr. Norwood’s testimony about

the incident with the thirty-to-forty inmates would have been

inadmissible hearsay, as Mr. Norwood was presumably not present at

the time. Given this circuit’s narrow reading of G reen v. Georgia

,

442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), we cannot assume

that Norwood’s testimony would have been admitted. S ee Edwards v.

Scroggy

, 849 F.2d 204, 212 (5 th Cir. 1988)(exclusion of priest’s

testimony about direct statements made by the defe ndant did not

render the trial “fundamentally unfair” and thus did not violate

Due Process); Barefoot v. Estelle

, 697 F.2d 593, 597 (5th Cir.24

1983) (“We think that Green is limited to its facts, and certainly

did not federalize the law of evidence . . . . [although] certain

egregious evidentia ry errors may be redressed by the due process

c lause.”). However, even if Norwood’s testimony would have been

deemed inadmissible, the written report about the rape is similar

in nature. That report discusses Neal’s defenselessness and that

his own cellmate was trying to manipulate Neal to sell himself for

the cellmate’s profit. Thus, we believe the flavor of the Norwood

testimony, if not its details, would have been available to the

jury in the form of that report.

Third, the State argues that defense counsel made a strategic

decisio n to withhold some of the testimony. As we pointed out

above, this argument could apply only to Mr. Johnson’s report,

which was included with the Ellisville records that defense counsel

had. As to the other evidence, Neal’s attorneys simply could not

have made a decision str ategically to withhold information that

they had not obtained.

Fourth, the State maintains that even if defense counsel had

obtained the new mitigating evidence, counsel would not have

present ed that evidence for strategic reasons. The State makes

this argument primarily with respect to evidence about Neal’s

imprisonment in Oklahoma. As the State points out, defense counsel

successfully suppressed evidence of this conviction and25

imprisonment during the guilt phase of the trial. But the State

also acknowledges that th e prosecutors themselves could have

presented evidence of Neal’s imprisonment and past offenses during

sentencing under Miss. Code Ann. § 99-19-101(5)(b). In one sense,

Neal would not have “opened the door” by putting this evidence on

during sentencing because the door was already open. But if Neal

had sought to introduce evidence from his Oklahoma imprisonment--if

Neal had, in effect, invited the State to walk through this

already-open do or--then the State would have tried to put Neal’s

Oklahoma past criminal experience in the worst possible light for

Neal. In sum, we cannot tell whether withholding the evidence may

have been strategically advantageous, and we find this argument

inconclusive.

(c)

The State’s most persuasive argument concerning prejudice is

that the additional miti gating evidence would have been, in the

Mississippi Supreme Court’s words, “substantially redundant and

cumulativ e.” Although the mitigating evidence the jury actually

heard was skeletal, they we re presented the basic evidence that

Neal was moderately retarded, had been severely neglected by his

family, spent several years in state institutions, and suffered

from serious behavioral problems, including lack of self-control8 The evidence presented to the jury is summarized in more

detail in section II.C.(1).(b) above.

26 and sexual identity problems. 8 In the State’s view, the additional

evidence presented in the affidavits does little more than

reinforce the testimony of Neal’s mother and Dr. Alexander and

p rovide details to an otherwise sketchy portrait of Neal’s li fe.

It must be conceded that the jury was presented a clear, if not

fully portrayed, picture of Neal’s pathetic life. It was on this

basis that the Mississippi Supreme Court concluded that Nea l was

not prejudiced by the omission of the evidence.

The State further argues that when we are considering the

mitigating effect of this supplementary evidence, we must weigh it

against the facts of the crime. The jury had heard how Neal had

brutally raped and murdered Amanda J o y, his thirteen-year-old

niece. The manner of death was unspeakably horrible. There were

bruises and lacerations about her face, head, and left wrist, and

there was also evidence of manual strangulation in addition to the

bullet hole in her abdomen. The pathologist’s report states that

Amanda Joy could have survived between five and thirty minutes

after Neal had left her to die. To overcome the aggravating

factors and avoid the death penalty, Neal’s mitigating evidence

would had to have been overwh elming and specifically relevant to

reducing his moral culpability for his heinous crimes. The state9 First, some of the additional mitigating evidence in Williams

was not just of a better quality of evidence than that presented at

sentenc ing but was, in fact, evidence of new mitigating factors.

Second, the fact that Williams had turned himself in to the police

was a significant piece of additional mitigating evidence that is

not present in the case before us. Third, the circumstances of the

murder in that case, which arose from a simple robbery, were less

atrocious and unforgivable than those in the case before us.

27 thus concludes that if the facts the jury had already heard were

not sufficient to outweigh the aggravating circumstances, then the

additional evidence would have been unlikely to sway a jury.

Although this question is extremely close, we are unable to

agree with the State’s argument because, as the Supreme Court has

recently explained, courts must give due consideration to the

quality and volume of the additional mitigating evidence. The

Court’s evaluation of ultimate prejud ice in that case is

instructive:

[T]he graphic description of [the defendant’s] childhood,

filled with abuse and privation, or the reality that he

was “borderline mentally retarded,” might well have

influenced the jury’s appraisal of his moral culpability.

. . . [T]he entire postconviction record, viewe d as a

whole and cumulative of mitigation evidence presented

originally, raised “a reasonable probability that the

result of the sentencin g proceeding would have been

different” if competent counsel had presented and

explained the significance of all the available evidence.

Williams

, 120 S.Ct. at 1515-16. To be sure, there are several

significant factual differences between Wi lliams and Neal

. 9 But

that does not allay our concern that the underlying principle of

the Williams prejudice determination requires that we must assign28

significant weight to the quality of additional mitigating

evidence. Specifically, Williams suggests to us that the correct

analysis of our case is that with a more detailed and graphic

description and a fuller understanding of Neal’s pathetic life, a

reasonable juror may have become convinced of Neal’s reduced moral

culpability.

Viewed together, these affidavits and other evidence augment

Neal’s mitigating circumstances argument in at least five ways.

First, they present additional details about Neal’s childhood,

including the terr ible living conditions with the alcoholic and

abusive father. Second, they provide a description of the bleak,

depressing, and hopeless life at the mental institutions. This is

especially true with respect to Whitfield. Third, the affidavits

describe Neal’s abuse and mistrea tment in prison and his general

helplessnes s there. Fourth, Mr. Woolington’s testimony supports

Dr. Alexander’s limited testimony as to the level of Neal’s

retardation and his inability to control much of his behavior.

Fifth, the affidavits humanize Neal by demonstr ating that there

were people along the way who saw some worth in him and befriended

him.

Our inquiry is obviously very difficult, but given the amount

and character of the mitigating evidence in this case, we believe

that there is a reasonable probability that a jury would not have29

been able to agree unanimously to impose the death penalty if this

additional evidence had been effectively presented and explained to

the sentenc ing jury. In our judgment, then, the Mississippi

Supreme Court’s conclusion that the additional mitigating evidence

was merely redundant and not prejudicial is erroneous

.

D

Our conclusion that the state court’s prejudice determination

is incorrect, however, is not enough to afford federal habeas

relief to Neal because, under AEDPA, we owe considerable deference

to the Mississippi Supreme Court. The statute plainly states that

we may not grant habeas relief unless the state court’s decision

unreasonably applies federal law. S ee 28 U.S.C. § 2254(d)(1); H.R.

Conf. Rep. 104-518, 104th Cong., 2d Sess. 111 (1996) (Section

2254(d) generally "requires defer ence to the determinations of

state courts”). Thus, Neal must go further yet and demonstrate

that the prejudice determination of the Mississippi Supreme Court

“involved an unreasonable application” of Strickland

. We now turn

to try to give meaning to the term “unreasonable application,”

especially as it applies to this case.

(1)

The Supreme Court in Williams explained that “a federal court

making the ‘unreasonable application’ inquiry sho uld ask whether

the state court’s application of law was objectively unreasonable.”1 0 The Mis sissippi Supreme Court’s prejudice determination is

fairly brief. After summarizing Neal’s argument, the court stated

that the additional evidence was

substantially redundant or cumulative when compared with

the evidence Neal offered at trial. Specifically, Neal

now wants to present evidence of his lack of mental

capacity, a fact said to go to the voluntariness of his

confession and to be in mitigation of sentence. But he

went into these same matters at trial. He called Dr.

Dana Alexander, a clinical psychologist. He showed that

he had been in Ellisville State School for retarded

youths and that he was later in the retardation unit at

Mississippi State Hospital at Whitfield. He further

proved that his IQ was 54. Because it is cummulative

[sic], what Neal alleges and purports to show no w that

counsel should have developed and proved simply does not

amount to a substantial showing of denial of a state or

federal right. Miss. Code Ann. § 99-39-27(5).

The same is true of Neal’s allegations that

competent counsel sho uld have done a better job at

sentencing phase of proving the detail s of Neal’s

30 Williams , 120 S.Ct. at 1521. But even after W illiams

, it is no t

immediately clear to us w hether a federal habeas court looks

exclusively to the objective reasonableness of the state court’s

ultimate conclusion or must also consider the method by which the

state court arrives at its conclusion. This question takes on some

significance in a case such as Neal’s, where the state court’s

holding (that Neal suffered no prejudice under Strickland ) may be

objectively reasonable, but in reaching that holding, the court did

not adequately evaluate and weigh the substantial evidence–the

implicit suggestion being that the state court may have reached a

different, but still “reasonable,” conclusion if a more thorough

method of reasoning had been applied. 10troubled life. In addition to the testimony described

above regarding his prior institutionalization, Neal

called his mother as a witness who told his life story.

Perhaps the details could have been fleshed out more

fully through additional witnesses. This may often be

said after an unsuccessful trial experience.

Neal , 525 So.2d at 1282-83. Cf. Williams , 120 S.Ct. at 1502.

1 1 In spite of the straightforward language of Lindh

, a Seventh

Circuit panel rejected the argument that the “unreasonable

application” test requires a federal habeas court to consider the

state court’s process of reasoning. S ee Hennon v. Cooper

, 109 F.3d

330 (7th Cir. 1997). Chief Judge Posner contended that Lindh stands

only for the proposition that “the better the job the state court

does in explaining the grounds for its rulings, the more likely

those rulings are to withstand further judicial review.” I d. at

335.

31 The Seventh Circuit, sitting en banc, appears to have

concluded that federal courts must scrutinize a state court’s

method of reasoning. “By posing the question whether the state

court's treatment was ‘unreasonable,’ § 2254(d)(1) requires federal

courts to take into account the care with which the sta te court

considered the su bject.” L indh v. Murphy

, 96 F.3d 856, 871 (7th

Cir. 1996) (en banc), rev’d on other grounds

, 521 U.S. 320 (1997).

The reasonableness of a court’s application of federal law must be

measured, at least in part, by determining whether a state court

provided “a respon sible, thoughtful answer reached after a full

opportunity to litigate.” Id. 11

Certain passages in the W illiams decision could be read to

s upport this view. Writing for the Court, Justice Stevens12 See, e.g.

, Long v. Humphrey

, 184 F.3d 758, 760-61 (8th Cir.

1999) (focusing on the reasonableness of the “outcome”); O’Brien v.

Dubois , 145 F.3d 16, 25 (1st Cir. 1998) (same).

1 3 In that situation, a habeas petitioner may not be the victim

of constitutional error but only of a mere lapse in “judicial

articulateness.” Hennon , 109 F.3d at 335.

32 explained that the Virginia Supreme Court’s “prejudice

determination was unreasonable insofar as it failed to evaluate the

totality of the available mitigation evidence-–both that adduced at

trial, and the evidence adduced in the habeas proceeding–-in

reweighing it against the evidence in aggravation.” W illiams

, 120

S.Ct. at 1515. There is, therefore, at least some basis for the

view that Section 2254(d)’s “unreasonable application” standard

refers to the quality of the state court’s analysis.

On the other hand, this proce ss-oriented view has been

rejected by other circuits 12 and challenged by Chief Judge Posner

of the Seventh Circuit. In his view, scrutinizing s tate courts’

methods of reasoning “would place the federal court in just the

kind of tutelary relation to the state courts that the [AEDPA was]

designed to end.” H ennon

, 109 F. 3d at 334-35. Similarly, we do

not interpret A EDPA in such a way that would require a federal

habeas court to order a new sentencing hearing solely because it

finds the state court’s written opinion unsatisfactory. 13 It seems

clear to us that a federal habeas court is authorized by Section1 4 A number of our sister circuits have attempted to supplement

the Williams Court’s “objectively unreasonable” standard. See,

e.g.

, Kibbe v. Dubois

, 269 F.3d 26, 36 (1st Cir. 2001)

(interpreting “objectively unreasonable” to mean “outside the

universe of plausi ble, credible outcomes”); V an Tran v. Lindsey

, 212 F.3d 1143, 1151 (9th Cir. 2000) (interpreting the “objectively

unreasonable” standard to establish a “clear error” test). After

due considera tion, we conclude that further elaboration on the

“objectively unreasonable” standard by this court is unnecessary

and inadvisable. S ee Williams

, 120 S.Ct. at 1522 (noting that the

term “unreasonable” is “a common term in the legal world and,

33 2254(d) to review only a state court’s “decision,” and not the

written opinion explaining that decision.

In the absence of clear guidance from the Supreme Court, we

conclude that our focus on the “unreasonable application” test

under Section 2254(d) should be on the ultimate legal conclusion

that the state court reached and no t on whether the state court

considered and discussed every angle of the evidence. The latter

approach appears unduly formalistic c onsidering that the federal

h abeas court has the full record before it and is competent t o

determine whether Strickland has been unreasonably applied to the

case before it. Even though a thorough and well-reasoned state

court opinion may be more likely to be co rrect and to withstand

judicial review, it simply does not follow that “the criterion of

a reasonable determination is whether it is well reasoned.” I d. at

334-35. Instead, the only question for a federal habeas court is

whether the state court’s determination is objectively

unreasonable. 14accordingly, federal judges are familiar with its meaning”); s ee

also Matteo v. Superintendent, SCI Albion

, 171 F.3d 877, 891 (3d

Cir. 1999) (“Notions of reasonableness abound in the law and are

not ordinarily considered problematic, despite their

imprecision.”). Imposing a surrogate “unreasonableness” standard

at this time would be a risky proposition, as our redefinition

might p rove unfaithful to the Supreme Court’s intended meaning.

Undoubtedly, the term “objectively unreasonable” will acquire some

definition (as distinguished from a definition) through the course

of its application by federal habeas courts in individual ca ses.

To the extent that a nu anced, contextual interpretation of

“objectively unreaso nable” emerges from this process over time,

this elaboration will be more u seful and meaningful than any

definition we might choose to impose ab initio.

34 (2)

Thus, in making our unreasonable application determination, we

l ook only to the substance of the Mississippi Supreme Cour t’s

decision. The state court concluded that presentation of the

additional mitigating evidence would probably not have changed the

outcome of the ca se. The precise question, then, is whether the

court’s ultimate conclusion--that there was no prejudic e and,

c onsequently, no ineffective assistance of counsel under the

Strickland test--is objectively unreasonable.

As we have iterated throughout this opinion, the facts of this

case are as horrible as o ne can imagine. The jury was reminded

repeatedly that Neal killed his own brother in an argument that

began when Neal fondled his young niece; that Neal, after killing

his brother, kidnaped his niece and her friend and then brutally

raped and killed both girls; that he shot his niece and left her to35

suffer for perhaps thirty minutes before she died. If any murder

qualifies as “heinous, atrocious, or cruel,” the murder of Amanda

Joy Neal does. We acknowledge that it was surely not unreasonable

for the Mississippi Supreme Court to suggest (implicitly) that the

evidence mitigating his moral culpability would have to be

overwhelming.

The jury in mitigation heard Neal’s pitiful life story from

his mother and a psychol ogist. The jury thus had before it

evidence that Neal had an IQ of 54 and the mental ability of an

eight year old; that he had been neglected by his family and spent

much of his youth in state institutions for the retarded and

menta lly ill; that he had sexual identity problems; and that

because of his mental deficiencies, he was less able to control his

impulses. The evidence actually presented at the sentencing hearing

did not persuade the jury to mitigate Neal’s sentence.

Neal’s supplemental mitigation evidence also relies almost

exclusively on testimony that he was mentally retarded and had been

badly mis treated by numerous people throughout his life. Much of

this evidence had already been presented, even if in an outline

form. The only new evidence was that some of the people whom he

had encountered felt sorry for Neal and that their sympathy for his36

plight caused them to reach out to him. Moreover, the testimony

about Neal’s life at Whitfield and the Oklahoma prison would have

proved to have been double-edged in the sense that it would have

reminded the jurors that Neal was a bully and had a criminal

conviction. Although the additional mitigating evidence was of a

significantly better quality than that actually presented, much of

it was similar in nature to the original evidence. With those

considerations in mind, the Mississippi Supreme Court conc luded

that the additional evidence was not substantial enough to outweigh

the overwhelming aggravating circumstances.

Under the deferential standard of Section 2254(d), and given

the circumstances of this case, we cannot conclude that the

Mississippi Supreme Court unreasonably applied Strickla nd to the

facts of Neal’s case. It was not unreasonable, in other words, to

conclude that the outcome would have been the same because the

additional evidence did not serve to reduce further his moral

culpability for such a heinous and unforgivable crime beyond the

evidence already presented. We thus hold that the state court’s

prejudice determination was not objectively unreasonable, viewed in

the context of the extreme cruelty of the murder as an aggravating37

circumstance and that much of the mitigating evidence had already

been presented to the jury, albeit in an abbreviated form.

III

Becau s e we conclude that the Mississippi Supreme Court’s

decision did not involve an unreasonable application of Strickland

,

Neal’s petition for a writ of habea s corpus must be DENIED and,

accordingly, the judgment of the district court is

A F F I R M E D.38

E. GRADY JOLLY, Circuit Judge, with whom JONES, SMITH, BARKSDALE,

DeMOSS, and CLEMENT, Circuit Judges, join, Specially Concurring:

I concur in the opinion of the court. We took this case en

banc to de c ide whether “objectively unreasonable” required an

expressly articulated definition. I agree that we need not attempt

to articulate a precise definition of “objectively unreasonable.”

Nevertheless, t here are considerations that habeas courts should

take into account when the term “unreasonable application” is

clearly at issue in a close case such as this one.

AEDPA i s a creation of Congress, not the Constitution, and

consequently subject to the familiar rule s of statutory

construction. S ee Williams v. Taylor

, 529 U.S. 362, 407

(2000)(using the canon of statutory construction that every clause

of statute be given meaning in deciding the appropriate scope of

the “contrary to” and “unreasonable application” clauses of §

2254(d)(1)). As Chief Justice Marshall observed in E x Parte

Bollman

, 8 U.S. (4 Cranch) 75 (1807), “[T]he power to award the

writ by any of the courts of the United States, must be given by

written law.” I d. at 94. The Great Writ, as referred to in the39

Suspension Clause of the Constitution, embodied only the principle

that the judiciary has the power to review the pretrial detention

of a defendant by the executive. See Swain v. Pressley , 430 U.S.

372, 384-85 (1977) (Burger, C.J., concurring in part and concurring

in judgment) ; Lindh v. Murphy

, 96 F.3d 856, 867-68 (7th Cir. 1996)

(en banc), rev’d on other grounds

, 521 U.S. 320 (1997); Henry J.

Friendly, Is Innocence Irrelevant? Collateral Attack on Cri minal

Judgments

, 38 U.C HI

. L.R EV

. 142, 170 (1970)(“It can scarcely be

doubted that the writ protected by the suspension clause is the

writ as known to the framers, not as Congress may have ch osen to

expand it, or, more pertinently, as the Suprem e Court has

interpreted what Congress did.”). In the 135 years since Congress

first enacted a habeas corpus statute

-- that is to say, a statute

that would grant federal jurisdiction allowing collateral attacks

on state court judgments of conviction

-- the award of habeas

relief has both expanded and contracted. Because federal courts

are bound by the terms on which Congress sees fit to permit relief,

we have no constitutional or other jurisprudential basis to be

reluctant to accord state c ourt decisions the full degree of

deference that Congress intended and that the plain language of the

statute requires.40

In Williams , the Supreme Court provided a starting point for

our understanding of the phrase “unreason able application.” The

Williams Court found that “a federal habeas court may not issue the

writ simply b ecause that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather the

application must also be unreasonab le.” 529 U.S. at 411. The

Williams Court also emphasized that the “unreasonable application”

inquiry under AEDPA is an objective, as opposed to a subjective,

inquiry. Id. at 410.

In determining the meaning of any statute, we start with the

statutory language. B lue Chip Stamps v. Manor Drug Stores

, 421

U.S. 723, 756 (1975) (Powell, J., concurring)(“The starting point

in every case involving construction of a statute is the language

itself.”). According to the leading legal dictionary,

“unrea sonable” means “not guided by reason; capricious or

irrational.” S ee B LACK ’ S L AW D ICTIONARY 1537 (7th ed. 1999); see also

M ERRIAM -W EBSTER ’ S C OLLEGIATE D ICTIONARY 1291 (10th ed. 1998) (defining

“unreasonable” as “not governed by or acting according to reason”).

The plain language of the statute thus suggests deference to a

state court decision unless it (1) involved a capricious or41

irrational application of clearly established federal law to the

facts or (2) involved an application by the state courts that was

not governed by reason.

To the extent that the plain meaning of the term

“unreasonable” is ambiguous and not conclusive, we look to the

legislative history to decipher Congress’s intent. G arcia v.

United States

, 469 U.S. 70, 76 n.3 (1984)(quoting S chwegmann

Brothers v. Calvert Distillers Corp.

, 341 U.S. 384, 395 (1951)

(Jackson, J., concurring opinion)). Here, the legislative history

further reinforces the fact that Congress intended for habeas

courts to give a very high degree of deference to state court

applications of federal law.

In settling on the phrase “unr easonable application,” the

Senate explicitly rejected an alt ernative wording offered in the

House. Under the House version of the statute, habeas relief would

have been available only if the state court decision was “contrary

to, or involved an a rbitrary or unreasonable application to the

facts, of clearly established federal law.” 141 C O NG

. R EC

. H1424

(daily ed. February 8, 1995)(emphasis added).

Significantly, the tw o words -- “unreasonable” (the word

eventually adopted by Congress) and “arbitrary” (the word rejected42

by Congress)

-- are not linguistically far apart. The word

“arbitrary” means “determined by individual discretion; specif.,

determined by a judge rather than fixed rules, procedures, or law.”

B LACK ’ S L AW D ICTIONARY at 100; see also M ERRIAM -W EBSTER ’ S C OLLEGIATE

D ICTIONARY at 59 (defining “arbitrary” as depending on the individual

discretion (as of judge) and not fixed by law). The Senate -- and

ultimately the Congress

-- apparently believed that every arbitrary

decision is unreasonable but that, in contrast, an unreaso nable

decision need not always be arbitrary.

In the light of these observations, perhaps the degree of

deference federal courts owe to state court decisions can best be

conceptualized if we imagine a spectrum that ranges from arbitrary

applications of federal law on one end, to de novo review of those

applications on the other. By virtue of the close relationship

between the words “arbitrary” and “unreasona ble,” it would seem

that Congress intended that “unreasonable” would fall near the

“arbitrary” end of the spectrum.

In applying the statute, it is also helpful to underscore that

the plain terms of the statute require the habeas court to conduct

an “unreasonableness” as opposed to a “reasonableness” inquiry into

the state court’s application of federal law to the facts. Thus,43

translated to the case today, the question is not whether the

Mississippi Supreme Court was reasonable when it applied the

Strickland standard; instead, the question is whether the

petitioner bore his burden of proving that the Mississippi Supreme

Court’s application of Strickland was, in fact, un reasonable.

In sum, we must always keep in mind that the sta tutory term

“unreasonable” requires a very high deference to state court

decisions.