RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0290p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

BILLY JOE SOWELL,

 Petitioner-Appellee/Cross-Appellant,

v.

CARL ANDERSON, Warden, Mansfield

Correctional Institution,

 Respondent-Appellant/Cross-Appellee.

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Nos. 08-3522/3575

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 94-00237—Edmund A. Sargus, Jr., District Judge.

Argued: October 13, 2010

Decided and Filed: November 15, 2011 

Before: BATCHELDER, Chief Judge; MOORE and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert E. Prather, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Mark A. Vander Laan, DINSMORE & SHOHL LLP,

Cincinnati, Ohio, for Appellee. ON BRIEF: Robert E. Prather, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Mark A. Vander

Laan, DINSMORE & SHOHL LLP, Cincinnati, Ohio, Randall L. Porter, OHIO PUBLIC

DEFENDER’S OFFICE, Columbus, Ohio, for Appellee. 

ROGERS, J., delivered the opinion of the court, in which MOORE, J., joined.

BATCHELDER, C. J. (pp. 26–32), delivered a separate opinion concurring in part and

dissenting in part.

1
Nos. 08-3522/3575 Sowell v. Anderson Page 2

_________________

OPINION

_________________

ROGERS, Circuit Judge. Billy Joe Sowell was convicted of aggravated murder

and sentenced to death by a three-judge panel in 1983. At sentencing, counsel’s

mitigation strategy was to portray Sowell as a good person who lost his temper under the

influence of drugs and alcohol. Counsel pursued this strategy despite having available

the reports of several court-appointed mental health experts, which hinted at Sowell’s

difficult upbringing but did not provide specific details about his severely impoverished

and abusive childhood. Despite these reports, counsel did not conduct an investigation

into Sowell’s background or interview any of his family members. Had they done so,

there is a reasonable probability that the additional mitigating evidence would have led

at least one of the panel judges to vote against the death penalty. The district court

therefore properly granted habeas relief on this basis.

I.

The facts underlying Sowell’s conviction are not in dispute. As we did in our

initial review of Sowell’s petition, we rely on the Ohio Court of Appeals’ version of the

facts:

The record discloses that [Sowell] and [Calvert] Graham resided

in adjacent apartments on the third floor of an apartment building in

downtown Cincinnati. [Sowell] was the resident manager of the building

and became acquainted with Graham, who performed occasional odd

jobs at the apartment building. After Graham became a resident in

[Sowell’s] apartment building, the two men developed a friendly

relationship and visited one another in their respective residences.

On May 1, 1983, three days prior to the instant offenses, [Sowell]

was a guest in Graham’s apartment. Also present were Donna Edwards

(Edwards), a woman with whom Graham shared the apartment, and

[Pam] Billups [a former prostitute who had been visiting Graham and

Edwards]. Graham offered two marijuana cigarettes to [Sowell], which

he accepted. Thereafter [Sowell] left the apartment in the company of

Billups and proceeded to a nearby restaurant where he purchased dinner
Nos. 08-3522/3575 Sowell v. Anderson Page 3

for her. En route to the restaurant, [Sowell] smoked the second

marijuana cigarette, having consumed the first at Graham’s residence.

Thereafter the pair made their way to a hotel where [Sowell] rented a

room. There was conflicting testimony concerning the events that

transpired thereafter. However, it is not disputed that [Sowell] eventually

lost consciousness, having consumed an unspecified quantity of wine

during the evening in addition to the marijuana. The next morning

[Sowell] made his way back to his residence, stopping along his route to

obtain breakfast for Billups.

[Sowell] next encountered Billups on the afternoon of May 4,

1983. Billups was in the company of Edwards and the trio passed in the

doorway of a store but did not acknowledge one another. As will be

seen, this seemingly inconsequential meeting gained significance later in

the day.

That evening [Sowell] returned to his apartment building after,

according to his testimony, visiting no less than five taverns and

consuming at least one double shot of vodka at each stop. Upon

returning to his apartment building [Sowell] realized that he was not in

the mood to retire for the evening, and instead presented himself at

Graham’s apartment. Graham greeted [Sowell] and invited him inside,

where Edwards and Billups were also present. Graham produced a

marijuana cigarette which was consumed by all four occupants.

[Sowell] testified before the trial court that following the

consumption of the marijuana, he fell asleep for a short time. When he

awoke the others were still present and [Sowell] discovered that

approximately $190 had been removed from his trouser pocket. At first

[Sowell] thought that the trio was playing a joke upon him; however, his

requests for the return of his money received no response. [Sowell]

further testified that Graham then picked up a knife and ordered [Sowell]

to leave the residence. [Sowell] complied and departed, but he was

extremely angry as a result of his loss.

Both Billups and Edwards told the trial court that [Sowell’s] visit

to the apartment on the day in question was at first friendly. However,

[Sowell] soon became agitated and accused Billups of being unsociable

in that she did not speak to him earlier that afternoon. [Sowell] also

accused Billups of stealing $24 from him during their encounter three

days earlier. When [Sowell] referred to Billups in terms meant to insult

her pedigree, Graham ordered [Sowell] to leave the premises. [Sowell]

left, stating that he was going to obtain his gun, return and shoot Billups.

[Sowell] went directly to his apartment where he directed his

common-law wife, Lenora Waugh (Waugh), to bring his gun to him.

Waugh complied with that request, as well as with [Sowell’s] instructions
Nos. 08-3522/3575 Sowell v. Anderson Page 4

to accompany him to Graham’s apartment. Upon returning to Graham’s

door, Waugh, at [Sowell’s] instruction, knocked and indicated to those

inside that she was a woman named Portia. Graham responded to the

door and opened it. Edwards and Billups testified, and the trial court

found, that [Sowell] forced his way into the apartment, firing a bullet

from his handgun into the ceiling as he entered. [Sowell] demanded to

know Billups’s whereabouts and threatened to shoot her. Graham was

able to calm [Sowell] and began to escort him from the apartment and to

close the door, whereupon [Sowell] suddenly turned and shot Graham in

the abdomen. As Graham fell, [Sowell] fired a second shot into

Graham's skull. Graham fell to the floor, mortally wounded.

[Sowell] next made his way to the closet in which Billups was

cowering, and fired three bullets into her body. [Sowell] next placed the

gun to Billups’s forehead and pulled the trigger. However, the gun did

not expel a bullet because it no longer contained ammunition. [Sowell]

left the apartment after warning Edwards not to leave the premises or he

would shoot her also. [Sowell] returned to his apartment, obtained

money and made his way to a nearby tavern where he was apprehended

by the police.

[Sowell] testified regarding the shootings and told the court that

he returned to Graham’s apartment to demand his money and that he was

confronted by Graham, who was armed with a knife. [Sowell] stated that

it was only after Graham made a furtive movement that [Sowell] began

shooting at Graham, and that one of the bullets struck the ceiling.

[Sowell] explained his conduct as follows: “It just, I just clocked out.

When I seen that person going this way I just pivoted, I pivoted on my

gun, I was shooting, I was angry, I started shooting, I just started

shooting everybody I seen.”

State v. Sowell, No. C-830835, 1986 WL 9082, at *1-2 (Ohio Ct. App. Aug. 20, 1986)

(footnotes omitted).

Sowell was indicted on one count of aggravated murder for the shooting of

Graham, and one count of attempted murder for the shooting of Billups. The aggravated

murder count contained a capital specification alleging that the shooting was part of a

course of conduct involving the purposeful killing of or attempt to kill two or more

persons. See O.R.C. § 2929.04(a)(5). Relying on the advice of trial counsel, Sowell

waived his right to a jury trial and opted for trial by a three-judge panel, see O.R.C.
Nos. 08-3522/3575 Sowell v. Anderson Page 5

§ 2945.06, which unanimously found Sowell guilty of both counts, including the capital

specification.

The defense’s mitigating evidence consisted of an unsworn statement by Sowell,

the testimony of five witnesses who knew Sowell as an adult, and the submission of

several psychological reports prepared by court-appointed mental health experts. Also

before the panel was the presentence investigation (PSI) report prepared by the probation

department. None of this material revealed any substantial details about Sowell’s

background or family history. The panel unanimously sentenced Sowell to death on the

aggravated murder count, and to a term of seven to twenty-five years of imprisonment

on the attempted murder count. Sowell’s conviction and sentence were upheld on direct

appeal and his petition for state post-conviction relief was unsuccessful at trial and on

appeal. 

Sowell’s federal habeas petition was initially dismissed without prejudice for

failure to exhaust the Ohio Supreme Court’s Murnahan procedure for raising claims of

ineffective assistance of appellate counsel. See State v. Murnahan, 584 N.E.2d 1204,

1209 (Ohio 1992). After the Ohio courts denied his Murnahan motions, Sowell renewed

his federal habeas petition on May 24, 1994, raising fifty-two claims. The district court

conducted an evidentiary hearing allowing Sowell to develop one of these claims—that

his waiver of a jury trial was not knowing and intelligent. Our initial review of Sowell’s

petition reversed the district court’s conditional grant of habeas relief on that claim.

Sowell v. Bradshaw, 372 F.3d 821, 838 (6th Cir. 2004).

The district court reopened Sowell’s petition on November 16, 2004, and

addressed his remaining claims. In a carefully reasoned opinion, the district court found

that Sowell received ineffective assistance of counsel during the penalty phase of his

trial. Sowell v. Collins, 557 F. Supp. 2d 843 (S.D. Ohio 2008). After reviewing the

mitigating evidence presented to the three-judge panel, the court compared this with the

additional mitigating evidence that was submitted in Sowell’s state post-conviction

petition. The court noted that “virtually all of the evidence presented [at sentencing]

concerned good deeds performed by petitioner during his adult life.” Id. at 852. In
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contrast, the court noted, the additional mitigating information concerned evidence that

“petitioner grew up in extreme poverty and suffered severe abuse and neglect as a child.”

Id. at 852-53.

The district court found that counsel’s failure to discover this entirely different

category of mitigating evidence was constitutionally deficient performance. Id. at 866-

71 (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). Counsel did not

perform an adequate sentencing-phase investigation, the court reasoned, because they

“fail[ed] to interview members of petitioner’s family” and “ignored known leads that

might have helped them to prepare their case in mitigation.” Id. at 870-71. The district

court found that Sowell was prejudiced by his attorneys’ performance because “a

reasonable probability exists that the outcome would have been different had more

detailed information been presented regarding petitioner’s tragic childhood and social

development.” Id. at 871. The court rejected the argument that this evidence was

“merely cumulative of information that was presented” in the written reports of the

court-appointed experts, because the new information was “significant,” “qualitatively

different,” and “would have painted an entirely different portrait” of Sowell. Id. at 872.

The court granted a conditional writ on Sowell’s ineffective-assistance claim and denied

relief on all of the remaining grounds.

The Government appeals the district court’s conditional grant of habeas relief on

the ineffective-assistance claim. Sowell cross-appeals, challenging the district court’s

dismissal of five of his claims: (1) ineffective assistance of counsel during the trial’s

guilt phase; (2) violation of Sowell’s due process rights based on an ex parte meeting

between the presiding judge and members of the probation department; (3) certain

alleged sentencing errors; (4) insufficient evidence to support his convictions; and

(5) suppression of exculpatory evidence by the prosecution. For substantially the

reasons set out by the district court, the grant of a conditional writ on the claim that

counsel were ineffective during the penalty-phase proceeding was proper, and Sowell’s

remaining grounds for habeas relief are without merit.
Nos. 08-3522/3575 Sowell v. Anderson Page 7

II.

This case is not governed by the strict limits on federal habeas review imposed

by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Because

Sowell filed his habeas petition in 1994, the pre-AEDPA standard of review applies.

Sowell, 372 F.3d at 828. Under this standard, a state court’s factual findings are entitled

to a presumption of correctness that is rebuttable by convincing evidence, McQueen v.

Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), while the state court’s determination of

questions of federal law or mixed questions of federal law and fact are reviewed de

novo, Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001). The pre-AEDPA

standard of review “entitle[s] [Sowell] to have the federal habeas court make its own

independent determination of his federal claim, without being bound by the

determination on the merits of that claim reached in the state proceedings.” Wainwright

v. Sykes, 433 U.S. 72, 87 (1977).

A. Ineffective Assistance of Counsel During the Penalty Phase

Application of this standard leads to the conclusion that Sowell received

ineffective assistance during the penalty phase of his capital trial. Trial counsel failed

to uncover and present evidence of Sowell’s deprived and abusive childhood, which left

the sentencing panel unaware of a substantial body of mitigating evidence that could

have led at least one of the judges to vote against the death penalty. Because we uphold

the district court’s determination that counsel’s failure to conduct an adequate

sentencing-phase investigation fell short of constitutional standards, it is not necessary

to address Sowell’s other arguments that his counsel’s performance during the penalty

phase was deficient.

1. Deficient performance

Sowell’s attorneys performed deficiently because they did not interview Sowell’s

family members or investigate references to his horrific childhood contained in the

reports of court-appointed mental health experts. Counsel’s failure to interview Sowell’s

family was inconsistent with their obligation to conduct a thorough sentencing-phase
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investigation, see Porter v. McCollum, 130 S. Ct. 447, 453 (2009) (per curiam), and was

unreasonable in light of the “leads” contained in the experts’ reports, which should have

prompted counsel to investigate further, see Wiggins v. Smith, 539 U.S. 510, 534 (2003).

Because they were not aware of this additional mitigating evidence, Sowell’s attorneys

were not in a position to make a conscious, strategic decision about the type of

mitigation case to present at sentencing.

Counsel’s mitigation strategy at sentencing was to present Sowell as a good

person who lost his temper because he felt betrayed by his friend Graham. The

mitigation evidence consisted of Sowell’s unsworn statement, the testimony of five

witnesses—Lenora Waugh, two probation officers, and two work colleagues—who

knew Sowell as an adult, and the submission of several competency and capacity

evaluations. As the district court noted, almost all of the testimony involved good deeds

Sowell had done as an adult. Sowell, 557 F. Supp. 2d at 852. The witnesses gave

specific examples of times when Sowell had helped them in need and had attempted to

prevent crimes in his community. They testified that Sowell was kind-hearted,

trustworthy, a hard worker, and a good father. The psychological reports likewise

described Sowell as “a most righteous man with a high moral sense” who was “proud

of his good works.” But their discussion of Sowell’s background was perfunctory, and

none of the witnesses shed any light on Sowell’s childhood or family history. Direct

examination of the six witnesses totaled only thirty-four pages of transcript. Counsel

failed to call any family members to testify, and the panel did not learn anything

substantial about Sowell’s formative years.

There is nothing wrong with a mitigation strategy that emphasizes a capital

defendant’s redeeming qualities. But Sowell’s attorneys did not make a conscious

choice among available alternative strategies because they overlooked an entire category

of compelling mitigating evidence—evidence that might have caused the sentencing

panel to rethink its assessment of Sowell’s moral culpability. Counsel’s failure to

present evidence of Sowell’s horrific childhood resulted from their ignorance of this

evidence, not from an informed choice between mutually exclusive mitigation theories.
Nos. 08-3522/3575 Sowell v. Anderson Page 9

Sowell’s attorneys failed to uncover this additional mitigating evidence—and therefore

performed deficiently—for two reasons.

First, counsel did not interview any of Sowell’s family members, including his

father, brothers, sisters, and other relatives. Affidavits of fourteen family members and

friends accompanied Sowell’s state post-conviction petition, recounting the violence and

privation of Sowell’s childhood. Many of these witnesses stated that they would have

been available and willing to testify at the penalty phase but had not been asked to do

so. Sowell’s attorneys did not contact a single member of his immediate family, and

only Sowell’s father spoke with the social worker who compiled information for the

psychological evaluations.

Counsel’s failure to interview Sowell’s family fell short of the “reasonable”

investigation required by the Sixth Amendment, as well as the then-prevailing standards

“articulated by the American Bar Association (ABA)—standards to which we long have

referred as ‘guides to determining what is reasonable.’” Wiggins, 539 U.S. at 524

(quoting Strickland, 466 U.S. at 688)). As in Porter, “[i]t is unquestioned that under the

prevailing professional norms at the time of [defendant’s] trial, counsel had an

‘obligation to conduct a thorough investigation of the defendant’s background.’” 130

S. Ct. at 452 (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)). These standards

required counsel to make efforts to “‘explore all avenues leading to facts relevant to . . .

the penalty in the event of conviction,’” including evidence of Sowell’s “‘background,

education, . . . family relationships, and the like.’” Bobby v. Van Hook, 130 S. Ct. 13,

17 (2009) (quoting 1 ABA Standards for Criminal Justice 4-4.1, at 4-53 (2d ed. 1980)).

In choosing not to interview Sowell’s family members, his attorneys failed in their

obligation to conduct a “thorough” investigation.

Of course, these professional standards did not require Sowell’s attorneys to

contact every person who ever knew Sowell during every period of his life, and “there

comes a point at which evidence from more distant relatives can reasonably be expected

to be only cumulative, and the search for it distractive from more important duties.” Van

Hook, 130 S. Ct. at 19 (2009). But Sowell’s attorneys stopped well short of that point.
Nos. 08-3522/3575 Sowell v. Anderson Page 10

While there is a “strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance,” Strickland, 466 U.S. at 689, “strategic choices

made after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation,” Wiggins,

539 U.S. at 528 (quoting Strickland, 466 U.S. at 690-91). An attorney does not make

a strategic decision by choosing to ignore a body of evidence, the contents of which are

unknown. That is not strategy.

Because counsel did not interview Sowell’s family members, the panel did not

learn that Sowell’s early life was abusive, impoverished, and totally chaotic. The

affidavits of Sowell’s father, brothers, sisters, and family friends describe in vivid detail

the physical and psychological abuse Sowell endured as a child. Sowell’s father was a

serious alcoholic who beat his wife and children on a regular basis. His father was

frequently absent for long periods of time, but when he was home, the family lived in

terror. To avoid setting off a drunken outburst, Sowell and his siblings would not speak

while their father was home. Sowell’s mother was only 15 years old when she got

married. She lacked basic parenting skills and vocally wished her children were dead

or had never been born. She was petrified of Sowell’s father and would not defend the

children from his drunken beatings. To escape the domestic violence, she often fled the

home, leaving the children without supervision for days at a time. Sowell’s parents

eventually divorced, but Sowell and his siblings remained with their father. The abuse

continued into Sowell’s adolescent years. On one occasion, Sowell’s father tied him and

his sister JoAnn to a chair and beat them until a neighbor intervened. Sowell’s father

also sexually molested Sowell’s sister Catherine and threatened to pour gasoline over her

and watch her burn if she reported it.

The affidavits also paint a picture of extreme poverty. The panel did not learn,

for example, that Sowell’s infant brother died of starvation and that Sowell and his

siblings had to beg for and steal food. The children were bitten by rats, infected with

worms, and lacked sufficient clothing and shoes. The entire family—all six

children—lived in a small trailer and later moved into an unfinished basement that
Nos. 08-3522/3575 Sowell v. Anderson Page 11

lacked electricity or running water. By the time Sowell was fourteen, he was living in

a junkyard, on his own, in a tent. None of Sowell’s siblings has fared any better in life.

JoAnn became a prostitute and killed her pimp. She died a week before the murder in

this case. Larry Sowell shot his brother Benny and served time for manslaughter. Benny

and Henderson Sowell, Jr. were both incarcerated for burglary. Four of the five children

who survived were alcohol or drug addicts. “[A] competent attorney, aware of this

history, would have introduced it at sentencing,” Wiggins, 539 U.S. at 535, and counsel’s

failure to do so here was deficient.

Second, counsel failed to uncover compelling evidence of Sowell’s background

because they did not follow up on the obvious leads contained in the written reports of

court-appointed experts. “In assessing the reasonableness of an attorney’s

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

to counsel, but also whether the known evidence would lead a reasonable attorney to

investigate further.” Wiggins, 539 U.S. at 527. The question is “whether counsel

adequately followed up on the ‘leads’ that were available to them,” Haliym v. Mitchell,

492 F.3d 680, 712 (6th Cir. 2007), or whether counsel instead “abandon[ed] their

investigation at an unreasonable juncture,” Wiggins, 539 U.S. at 527. Our decision in

Harries v. Bell, 417 F.3d 631 (6th Cir. 2005), illustrates the point. In that case, we held

that interviews conducted by counsel “produced viable leads regarding Harries’s poor

mental health and troubled family background,” and held that “[c]ounsel’s failure to

follow these promising leads . . . was deficient.” Id. at 639.

Here, the psychological reports would have prompted a reasonable attorney to

expand the investigation beyond the redeeming aspects of Sowell’s adult life. The

district court summarized the indications of Sowell’s troubled childhood in these reports

as follows:

Dr. [Nancy] Schmidtgoessling’s mitigation report noted that petitioner

had a “rough childhood” and “an unhappy home life.” She reported that

petitioner experienced a “lack of adequate food, clothing and material

goods as well as [a] lack of close parental nurturance.” According to her

report, petitioner felt “abandoned, angry, without significant stable

relationships, and conscious of the need to defend himself in a dangerous,
Nos. 08-3522/3575 Sowell v. Anderson Page 12

hostile environment.” She relayed that petitioner was “on his own” at a

young age, that he skipped school, and that he ran away for days at a

time. Dr. Schmidtgoessling noted petitioner’s history of depression and

alcohol abuse. Likewise, Dr. [James] Titchener reported that petitioner’s

mother was distant, that she frequently left her family, and that her

abandonment was responsible for much of the anger and hostility

petitioner experienced. Dr. [William] Walters noted that petitioner’s

father was a “strict disciplinarian” and that the Sowell family was very

poor. Walters, Schmidtgoessling, Titchener and [Dr. Emmett] Cooper all

noted that alcohol and marijuana use contributed to that events leading

up to the murder.

Sowell, 557 F. Supp. 2d at 869. These hints of a childhood filled with privation and

abuse should have moved Sowell’s attorneys to expand the scope of their investigation.

Instead, Sowell’s attorneys “ignored pertinent avenues for investigation of which [they]

should have been aware.” Porter, 130 S. Ct. at 453.

The Supreme Court’s decision in Wiggins strongly supports the district court’s

conclusion that counsel performed deficiently in failing to follow up on these leads. In

Wiggins, counsel abandoned their investigation of Wiggins’ background “after having

acquired only rudimentary knowledge of his history from a narrow set of sources.”

539 U.S. at 524. The PSI report and Department of Social Services (DSS) records that

counsel obtained revealed that Wiggins’ mother was a chronic alcoholic; that Wiggins

was “shuttled from foster home to foster home and displayed some emotional

difficulties” while there; that he had “frequent, lengthy absences” from school; and that,

“on at least one occasion, his mother left him and his siblings alone for days without

food.” Id. at 525. Despite these promising leads, counsel did not investigate further.

The Supreme Court held that “any reasonably competent attorney would have realized

that pursuing these leads was necessary to making an informed choice among possible

defenses.” Id. at 525. “Counsel’s decision not to expand their investigation beyond the

PSI and DSS records” was “unreasonable in light of what counsel actually discovered

in the DSS records.” Id. at 524.

More recently in Porter, 130 S. Ct. at 453, the Supreme Court held that counsel’s

failure to interview the defendant’s family members and obtain school, medical, or
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military service records was constitutionally deficient. Id. Like the counsel in Wiggins,

Porter’s attorney did not follow up on leads contained in court-ordered competency

evaluations, which “collectively reported Porter’s very few years of regular school, his

military service and wounds sustained in combat, and his father’s ‘over-discipline[e].’”

Id. This court has also recently found deficient performance where defense counsel did

not follow up on leads developed from a narrow set of sources. Goodwin v. Johnson,

632 F.3d 301 (6th Cir. 2011). In that case, defense counsel interviewed some of

Goodwin’s family members, but did not contact his mother, sister, neighbors and friends,

or the mother of Goodwin’s child. We held that “[t]he information Goodwin’s counsel

possessed, obviously incomplete, should have triggered a more thorough investigation

of Goodwin’s past.” Id. at 324.

As the district court recognized, “[t]his is not a case where counsel presented

absolutely no evidence in mitigation.” Sowell, 557 F. Supp. 2d at 871. The evidence

counsel did present was intended to draw out the redeeming qualities that made Sowell’s

life worth sparing. But counsel’s decision to emphasize Sowell’s worthwhile adult life

while leaving out his horrific childhood is not easily considered a reasonable mitigation

strategy, particularly where the additional evidence would not have been inconsistent

with—and might even have strengthened—the mitigation case counsel did present. “The

evidence concerning petitioner’s horrific upbringing that counsel failed to present would

have bolstered their mitigation case by demonstrating that petitioner was capable of

generosity and good acts in spite of the upbringing that he endured.” Id. at 872. This

case is therefore different from Sears v. Upton, 130 S. Ct. 3259, 3261-62 (2010) (per

curiam), where counsel’s mitigation strategy of emphasizing Sears’ “stable, loving,” and

“privileged” childhood backfired when the prosecutor used this evidence to argue that

Sears was even more culpable than he would have been had he grown up as a “deprived

child from the inner city . . . who[m] society ha[d] turned its back on at an early age.”

More importantly, even if a decision to “emphasize the good rather than the bad”

were a reasonable mitigation strategy in the abstract, Sowell, 557 F. Supp. 2d at 871, it

was not reasonable in this case because counsel were not fully aware of their options.
Nos. 08-3522/3575 Sowell v. Anderson Page 14

The Supreme Court has found deficient performance even in “cases in which counsel

presented what could be described as a superficially reasonable mitigation theory during

the penalty phase.” Sears, 130 S. Ct. at 3266. Thus, notwithstanding the mitigation case

counsel did present, our “principal concern in deciding whether counsel exercised

reasonable professional judgment is whether the investigation supporting counsel’s

decision not to introduce mitigation evidence of [defendant’s] background was itself

reasonable.” Wiggins, 539 U.S. at 523 (emphasis in original). In this case, as in

Wiggins, “counsel were not in a position to make a reasonable strategic

choice . . . because the investigation supporting their choice was unreasonable.” Id. at

536.

As the district court explained, this is also not a case where counsel could have

legitimately feared that digging deeper into Sowell’s past would turn up evidence that

was more damaging than favorable. Sowell, 557 F. Supp. 2d at 873. Sowell’s entire

criminal record and arrest history were included in the PSI report and the mental health

evaluations that were submitted to the panel at sentencing. The psychological reports

also thoroughly documented Sowell’s short temper and his propensity for responding

violently to perceived injustices, especially when drinking. Thus, the panel already

knew the worst. Further investigation could only have helped Sowell. This case

therefore differs from Wood v. Allen, 130 S. Ct. 841, 847-49 (2010), where counsel had

made a strategic decision not to investigate Wood’s mental deficiencies, despite having

available a favorable expert report on the matter, because the report also contained

details about Wood’s 19 earlier arrests and his attempt to murder a prior exgirlfriend—rebuttal evidence that counsel had been successful in excluding at trial. Id.

at 850 n.3. Sowell’s case is also different from Burger v. Kemp, 483 U.S. 776, 794

(1987), in which a limited investigation was reasonable because all potential witnesses

interviewed by counsel provided information that was more harmful than helpful.

Without knowledge of the mitigating side of Sowell’s background, his attorneys could

not have made a conscious, strategic judgment that this evidence would do more harm

than good.
Nos. 08-3522/3575 Sowell v. Anderson Page 15

2. Prejudice

Turning to the second prong of Strickland, Sowell was prejudiced by his

attorneys’ performance because, as the district court found, “there is a reasonable

likelihood that at least one member of the three-judge panel would have voted in favor

of a sentence less than death if the panel had been informed of Sowell’s dysfunctional

childhood.” Sowell, 557 F.3d at 866. The additional mitigating evidence differs in

strength and in subject matter from the evidence the panel heard, and the evidence is

therefore not cumulative. And far from being inconsistent with counsel’s mitigation

strategy, the information concerning Sowell’s background would have strengthened

counsel’s mitigation theory that Sowell was a good person because it was highly relevant

to any assessment of his moral worth.

To establish prejudice, Sowell must demonstrate that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been

different. See Strickland, 466 U.S. at 694. “In assessing prejudice, we reweigh the

evidence in aggravation against the totality of available mitigating evidence.” Wiggins,

539 U.S. at 534. Thus, in a capital case, “the question is whether there is a reasonable

probability that, absent the errors, the sentencer—including an appellate court, to the

extent it independently reweighs the evidence—would have concluded that the balance

of aggravating and mitigating circumstances did not warrant death.” Strickland, 466

U.S. at 695. Additional mitigating evidence that is “merely cumulative” of that already

presented does not undermine the results of sentencing. Broom v. Mitchell, 441 F.3d

392, 410 (6th Cir. 2006). Instead, “the new evidence . . . must differ in a substantial

way—in strength and subject matter—from the evidence actually presented at

sentencing.” Tibbetts v. Bradshaw, 633 F.3d 436, 444 (6th Cir. 2011) (internal

quotations omitted).

Here, the additional mitigating evidence is sufficient to “undermine confidence

in the outcome” of Sowell’s sentencing proceeding. See Strickland, 466 U.S. at 694.

As in Williams, 529 U.S. at 398, “the graphic description of [defendant’s] childhood,

filled with abuse and privation, . . . might well have influenced the [panel’s] appraisal
Nos. 08-3522/3575 Sowell v. Anderson Page 16

of his moral culpability.” Though the mitigating evidence regarding Sowell’s childhood

is extensive, the panel heard only about Sowell’s adult life. The testimony at sentencing

supports counsel’s theory that Sowell’s life had residual value. But what is key to the

prejudice inquiry is the evidence the panel did not hear—specific details about Sowell’s

“nightmarish” childhood. See id. at 395. 

This evidence is not merely cumulative. There is no question that the additional

mitigating evidence is stronger than anything the panel learned about Sowell’s

background from the written reports of Drs. Schmidtgoessling, Titchener, and Walters.

These reports spoke in generalities that lacked any details of the severe abuse and abject

poverty Sowell experienced as a child, or any “graphic descriptions” of the atmosphere

of violence that permeated his formative years. See id. at 398. In contrast, Sowell’s

family members offered first-hand, eyewitness accounts of specific examples of extreme

poverty and abuse. These specifics had far more evidentiary power than the abstractions

and oblique references contained in the experts’ written reports.

What is more, the experts themselves never heard any of these details when they

conducted their evaluations. Drs. Schmidtgoessling, Titchener, and Cooper interviewed

only Sowell and had no contact with his family members. Only the social worker who

compiled information for Dr. Walters’ pretrial examination had any contact with

Sowell’s family, and she spoke only with Sowell’s father—a source who had good

reason to withhold the most compelling examples of abuse Sowell and his siblings

endured as children. The reports of Drs. Titchener and Walters were not prepared for

mitigation purposes, and there is nothing in Dr. Cooper’s report about Sowell’s

background. These experts were appointed to evaluate Sowell’s competence to stand

trial and his mental capacity for purposes of exploring an insanity defense, and to the

extent their reports discuss Sowell’s background at all, they are drawn from an even

narrower set of sources than those available to defense counsel.

The subject matter of the additional mitigating evidence is different as well. The

good deeds Sowell had done as an adult provide an incomplete picture of his moral

worth. Sowell’s actions as an adult—good and bad—are merely a snapshot in time,
Nos. 08-3522/3575 Sowell v. Anderson Page 17

unilluminated by the longitudinal perspective that his developmental history provides.

“[E]vidence about the defendant’s background and character is relevant because of the

belief, long held by this society, that defendants who commit criminal acts that are

attributable to a disadvantaged background . . . may be less culpable.” Penry v.

Lynaugh, 492 U.S. 302, 319 (1989) (internal quotations omitted). Moreover, Sowell’s

good deeds might have been written off as isolated incidents or attributed to ulterior

motives by a sentencing judge disinclined to see Sowell as a basically good person. But

the additional mitigating evidence is of more than a few scattered incidents. It is

evidence of a lifetime of privation and abuse, beginning in early childhood and

continuing throughout the formative years of Sowell’s life.

The evidence the panel did not hear—specific details about Sowell’s horrific

childhood—is often the kind of evidence that undermines a court’s confidence in the

outcome of a capital sentencing proceeding. In Williams, 529 U.S. at 395, the Supreme

Court found prejudice where counsel failed to present evidence that Williams had a

“nightmarish” childhood, that his “parents were imprisoned for the criminal neglect” of

their children, and that Williams “had been severely and repeatedly beaten by his

father.” Similarly in Wiggins, 539 U.S. at 535, the Court found prejudice where counsel

failed to discover “powerful” evidence of “severe privation and abuse in the first six

years of [Wiggins’] life while in the custody of his alcoholic, absentee mother,” as well

as evidence of “physical torment, sexual molestation, and repeated rape during his

subsequent years in foster care.” Again in Rompilla v. Beard, 545 U.S. 374, 392-93

(2005), the Court found prejudice where counsel failed to present evidence that Rompilla

was reared in abject poverty and suffered extreme physical and psychological abuse,

which included being “locked . . . [with] his brother Richard in a small wire mesh dog

pen that was filthy and excrement filled.” And in Porter, 130 S. Ct. at 449, the Court

found prejudicial counsel’s failure to present evidence of Porter’s “abusive childhood”

and “horrible family life,” including an incident in which “Porter’s father shot at him for

coming home late, but missed and just beat Porter instead,” and another in which

Porter’s mother was beaten “so severely that she had to go to the hospital and lost a

child.” Most recently in Sears, 130 S. Ct. at 3262, the Court found prejudicial counsel’s
Nos. 08-3522/3575 Sowell v. Anderson Page 18

failure to present evidence that Sears’ home life was “physically abusive” and that he

“suffered sexual abuse at the hands of an adolescent male cousin.”

A finding that Sowell was prejudiced by his attorneys’ failure to develop and

present exactly this kind of mitigating evidence is therefore squarely in line with the

Supreme Court decisions addressing ineffective assistance during the penalty phase of

a capital trial. Our court has also repeatedly found that ignorance of specifics about a

defendant’s formative years undermines confidence in the outcome of a capital

sentencing proceeding. Most recently in Goodwin, 632 F.3d at 329, we deemed

prejudicial counsel’s failure to present evidence that Goodwin suffered “severe privation

and abuse in the early years of his life and while in the custody of his alcoholic and drug

using mother,” including evidence that he was “frequently beaten, sexually molested,

and abandoned by both of his parents.” Likewise in Mason v. Mitchell, 543 F.3d 766,

780 (6th Cir. 2008), this court held that the petitioner was prejudiced where counsel did

not present evidence of Mason’s “abusive and unhealthy” childhood, including evidence

that his parents were “daily drug users as well as traffickers,” that his mother “shot at his

father because of his involvement with prostitution,” and that Mason’s parents “regularly

abused Mason and isolated all of their children from anyone not associated with the

parents’ drug dealing activities.” And in Harries, 417 F.3d at 639, we upheld the district

court’s finding of prejudice where counsel failed to discover evidence that Harries

suffered “significant physical abuse” during his “traumatic” childhood, including an

incident in which he was “hit . . . on the head with a frying pan,” and another in which

he was “choked so severely that his eyes hemorrhaged.” 

In short, like the additional mitigating evidence presented in these cases,

evidence of Sowell’s severely impoverished and abusive childhood is not merely

cumulative of that presented at sentencing. This is also not a case in which the omitted

evidence “would have triggered admission of . . . powerful [aggravating] evidence in

rebuttal.” Wong v. Belmontes, 130 S. Ct. 383, 387-88 (2009) (per curiam). In

Belmontes, defense counsel “built his mitigation strategy around the overriding need to

exclude” evidence that Belmontes had committed a prior murder. Id. at 385. The
Nos. 08-3522/3575 Sowell v. Anderson Page 19

1

To the extent that this claim can be read as a challenge not only to Sowell’s sentence but also

to his conviction, we reject it for the reasons given by the district court. Sowell, 557 F.3d at 893-97.

Supreme Court held that counsel’s decision not to use expert testimony to “humanize”

Belmontes was not prejudicial, because the expert testimony would have opened the

door to evidence of the prior murder kept out only by counsel’s vigilance. Id. at 388; see

also Wood, 130 S. Ct. at 850 n.3. Here, the panel already knew the most damaging

information about Sowell’s background from the PSI and psychological reports, and

additional mitigating evidence could only have tipped the balance in favor of leniency.

We recognize that the prejudice question in this case is close, and that the Ohio

courts had a different view of the impact defense counsel’s performance had on Sowell’s

sentencing proceeding. However, under the pre-AEDPA standard that applies to this

case, the federal courts must make their “own independent determination of [Sowell’s]

federal claim,” and are not bound by the state courts’ view. Wainwright, 433 U.S. at 87.

For these reasons, the district court properly found that there is a reasonable probability

that a three-judge panel presented with evidence of Sowell’s extensive abuse and neglect

would have returned a different sentence. 

Accordingly, Sowell is entitled to relief on his claim that trial counsel provided

ineffective assistance during the penalty phase of his capital trial. Because counsel’s

failure to investigate compelling mitigating evidence constitutes ineffective assistance

warranting resentencing, it is not necessary to address the other sentencing issues raised

in the habeas petition concerning the imposition of the death penalty, including whether

counsel’s failure to obtain “reasonable and necessary” experts constitutes ineffective

assistance, whether the three-judge panel erred in applying the wrong weighing standard

during sentencing, and whether the presiding judge’s ex parte communication with the

probation department rendered the death sentence constitutionally infirm.1

 We now turn

to issues raised by Sowell concerning the guilt phase of his trial.
Nos. 08-3522/3575 Sowell v. Anderson Page 20

III.

A. Prosecution’s Suppression of Exculpatory Evidence

Sowell claims that the prosecution failed to disclose material exculpatory

evidence, as required by Brady v. Maryland, 373 U.S. 83 (1963). This claim is without

merit for the reasons given by the district court. Sowell, 557 F. Supp. 2d at 907-09.

Sowell argues that prosecutors suppressed the statement of Jerrell Perrin, an eyewitness

who lived on the same floor of the apartment building as Sowell and Graham. But

Perrin’s statement is not material and does not create sufficient doubt as to Sowell’s

guilt. 

In her affidavit filed in the post-conviction proceeding, Perrin testified that on

the night of the shooting, she saw Sowell standing outside Graham’s apartment and

heard him ask Pamela Billups to return his money, and that she heard Billups respond

by screaming profanities at Sowell. She testified that between twenty and thirty minutes

later, she heard what she thought was a car backfiring. When she opened her door, she

saw Sowell walking back to his apartment. Perrin testified that she knew Billups was

a prostitute and had a reputation for dishonesty, and that Billups was known for stealing

money from her customers. 

As the district court explained:

Perrin’s affidavit actually contradicts petitioner’s trial testimony, and the

defense theory of the case, in several key respects. Petitioner testified

that he did not argue with Billups about his money, yet Perrin’s statement

quite clearly states that she heard petitioner and Billups arguing. More

importantly, Perrin’s affidavit states that she heard the sounds of gunfire

twenty to thirty minutes after the argument. This statement directly

contradicts petitioner’s testimony that the shooting happened “far less

than five minutes” after he left the apartment, and calls into question the

defense theory that this offense was committed without sufficient time

to form the intent necessary for prior calculation and design.

Sowell, 557 F. Supp. 2d at 908-09. There is therefore not a “reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have
Nos. 08-3522/3575 Sowell v. Anderson Page 21

been different,” Strickler v. Greene, 527 U.S. 263, 280 (1999), and Sowell’s Brady claim

therefore fails.

B. Sufficiency of the Evidence of Aggravated Murder

Sowell next argues that there was insufficient evidence to support his conviction.

He is wrong. Sowell was convicted of aggravated murder, which requires a finding of

prior calculation and design. See O.R.C. § 2903.03(A)(1). We adopt the careful

reasoning of the district court to the effect that the evidence presented at trial was

sufficient to prove beyond a reasonable doubt that Sowell acted with prior calculation

and design. Most pointedly, the district court explained that:

[T]he shootings did not occur as a result of an instantaneous eruption or

one continuous course of events. There was an initial encounter and an

exchange of hostile words between petitioner and Billups that generated

a decision on petitioner’s part to shoot and kill Billups. After arguing

with Billups about whether she had taken his money, petitioner

announced his intention to get his gun and kill Billups, and he put into

action a plan to achieve that result. To that end, petitioner left Graham’s

apartment, went down the hall to his own apartment, and retrieved his

gun. Although the period of time that elapsed between the initial

encounter and the shootings was brief, there was a break in the

encounter, or an intervening period, during which there was a time for

reflection and planning. During that time, petitioner retrieved his

weapon from a different location and devised a plan to regain entry to

Graham’s apartment under false pretenses by using Lenora Waugh.

Accordingly, . . . there was sufficient time, under all of the

circumstances, for petitioner to plan the killing.

Sowell, 557 F. Supp. 2d at 917. 

C. Ineffective Assistance of Counsel During the Guilt Phase

Finally, Sowell asserts that he received ineffective assistance of counsel during

the guilt phase of his trial for four reasons. First, Sowell argues that counsel failed to

conduct a reasonable pretrial investigation by not interviewing the state’s witnesses.

Second, Sowell argues that counsel failed to call Sowell’s neighbor, Jarrell Perrin, as a

defense witness. Third, Sowell argues that counsel failed to cross-examine Donna

Edwards, a key prosecution witness and eyewitness to the shootings. And fourth, Sowell
Nos. 08-3522/3575 Sowell v. Anderson Page 22

claims that counsel failed to object to inadmissible evidence concerning Sowell’s

children, a false ceiling in his apartment, and his prior contacts with law enforcement.

With respect to each of these arguments, counsel’s performance was not deficient, or if

it was, Sowell has not shown that the deficiency affected the outcome of his trial.

1. Counsel’s failure to conduct a reasonable investigation

Sowell first argues that his attorneys did not conduct a sufficient pretrial

investigation because they failed to interview the state’s witnesses. Again, we adopt the

reasoning of the district court, which carefully disposed of this argument, relying in part

on the fact that:

[T]he record reflects that counsel filed for discovery and for a more

definite bill of particulars, met with petitioner to discuss his options with

respect to the trier of fact, and reviewed the grand jury testimony of at

least four witnesses. During a pre-trial hearing, petitioner’s counsel

stated on the record that they had met with the prosecutor and reviewed

the evidence and photographs. Counsel filed several pre-trial motions,

including a motion to suppress the gun found in petitioner’s apartment.

Moreover, as the trial court noted, petitioner failed to present any

evidence during his post-conviction proceedings suggesting that his

counsel did not have copies of the witness statements to police.

Sowell, 557 F. Supp. 2d at 883 (citations omitted). 

Sowell cites the Seventh Circuit’s holding in Stanley v. Bartley, 465 F.3d 810,

813 (7th Cir. 2006), for the proposition that these activities were not enough. But unlike

the defendant in Stanley, Sowell was not prejudiced by his attorneys’ failure to interview

the state’s witnesses because he has shown no real way in which their testimony would

indicate his innocence. In Stanley, the state’s key witness, James Dean, who might well

have been the murderer, testified that he was with Stanley on the night of the murder and

that he saw Stanley shoot the victim in the back. Id. at 811. But other witnesses—who

did not testify and whom defense counsel did not interview—told the police that Dean

and the victim had been involved in a violent quarrel hours before the shooting. Id. at

812. Here, Sowell admitted shooting Graham and Billups, and the only issue to be

decided by the panel was whether Sowell had committed the acts with prior calculation
Nos. 08-3522/3575 Sowell v. Anderson Page 23

and design. Sowell has presented no evidence that would undermine confidence in the

panel’s finding of prior calculation and design. Thus, no prejudice has been shown from

counsel’s performance in this regard.

2. Counsel’s failure to call Jerrell Perrin

Sowell next argues that counsel failed to call Sowell’s neighbor Perrin as a

defense witness. The district court rejected this argument for the same reason it found

that Perrin’s statement was not material exculpatory evidence—i.e., “the Perrin affidavit

supports, in many respects, the state’s theory of the case, and contradicts petitioner’s

account of the events.” Sowell, 557 F. Supp. 2d at 884. The court therefore properly

concluded that “the testimony of Perrin . . . would not have affected the outcome of

petitioner’s trial.” Id. at 885.

3. Counsel’s failure to cross-examine Donna Edwards

The district court’s opinion also properly disposes of Sowell’s argument that trial

counsel performed deficiently by failing to cross-examine Donna Edwards, a key

prosecution witness and eyewitness to the shooting. Sowell maintains that the testimony

of Edwards—the only individual present in the apartment who was not shot by

Sowell—was inconsistent in several respects with Billups’s testimony, and that counsel

should have brought out these inconsistencies on cross-examination. But once again,

Sowell has not established that he was prejudiced by counsel’s failure to do this.

With respect to counsel’s performance, the district court explained:

Although Edwards was a witness to the actual shooting, she had little to

offer regarding petitioner’s interaction with Billups in the days

immediately preceding the shooting. Billups, on the other hand, was

subject to lengthy cross-examination by counsel, as counsel attempted to

establish that the shootings “were prefaced by a heated, passionate, and

emotional exchange between Mr. Sowell and Ms. Billups.” Petitioner’s

case was not won or lost by whether counsel could exonerate him as the

shooter; rather, counsel’s theory of the case was that petitioner did not

act with prior calculation and design, and “[t]he disputed issue centered

on what precipitated the shooting.” To that end, counsel delivered an

opening statement setting forth a cohesive defense, cross-examined
Nos. 08-3522/3575 Sowell v. Anderson Page 24

Billups regarding the alleged theft that was at the center of the dispute,

and called petitioner to testify regarding the events in question, his

relationship with Billups in the days leading up to the shooting, and his

mental state at the time of the offense.

Sowell, 557 F. Supp. 2d at 886-87 (citations omitted). 

The district court also properly reasoned that there was no prejudice in this

regard:

Even if counsel would have highlighted the inconsistencies between

Edwards’ testimony and that of Billups, those inconsistencies concerned

somewhat collateral matters. What remains consistent with respect to the

testimony of the two women is that petitioner threatened to shoot Billups,

left the apartment to retrieve a gun from his own apartment down the

hall, enlisted the assistance of Lenora Waugh to regain entry into the

apartment, entered the apartment with force, shot Graham

twice—including a fatal close range shot to his head, then went to where

Billups was hiding in a closet and fired three shots into her body at close

range, stopping only when he ran out of ammunition. With respect to

these essential facts, the testimony of Edwards and Billups was

consistent, and petitioner cannot meet the prejudice prong of Strickland.

Id. at 887.

4. Counsel’s failure to object to inadmissible evidence

Finally, Sowell argues that trial counsel’s performance was deficient because

counsel failed to object to inadmissible evidence. Sowell claims that counsel failed to

object to questions by the prosecutor during Sowell’s cross-examination concerning

whether he conceived children out of wedlock, whether he had a false ceiling in his

apartment, and whether he had prior contacts with the Cincinnati Police Department.

The district court properly held that these claims were procedurally defaulted because

they were never presented to the state courts. Sowell, 557 F. Supp. 2d at 888. The state

maintains that position on appeal, and Sowell does not respond to the procedural default

argument.
Nos. 08-3522/3575 Sowell v. Anderson Page 25

IV.

For these reasons, the judgment of the district court is affirmed.
Nos. 08-3522/3575 Sowell v. Anderson Page 26

_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_______________________________________________________

ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in

part. I agree that the district court did not err in denying habeas relief on nearly all of

Sowell’s claims. However, I must respectfully dissent from the portion of the majority

opinion affirming the grant of habeas relief on the basis of ineffective assistance of

counsel at the penalty phase. On the record before us, we cannot say either that counsel

failed to investigate sufficiently, or that counsel pursued a constitutionally deficient

mitigation strategy. Sowell has presented fourteen affidavits of family and friends,

setting forth testimony about his childhood, his family dynamics, his work history, and

his adult life. However, only one of those affidavits—that of Sowell’s father—is of any

help to Sowell’s case, and even then, only marginally so.

Sowell’s argument is that counsel did not adequately investigate and therefore

could not have made a strategic decision to omit certain mitigating evidence at the

sentencing phase. In these types of cases, it is obviously not enough to merely present

an affidavit containing testimony that was not introduced during the penalty phase. The

testimony must also be useful. See Brooks v. Bagley, 513 F.3d 618, 630 (6th Cir. 2008)

(rejecting probative value of affidavit that did not specify what new information

witnesses would have provided); Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir. 2002)

(finding no prejudice where “affidavits of [petitioner’s] family members state their

willingness to testify at his sentencing but do not show what mitigating evidence would

have been presented had they testified”); see also Hill v. Mitchell, 400 F.3d 308, 319

(6th Cir. 2005) (“[T]he new evidence that a habeas petitioner presents must differ in a

substantial way—in strength and subject matter—from the evidence actually presented

at sentencing.”). The affidavit must state that the affiant would have been willing to

testify, because otherwise the trial court would never hear the relevant testimony. See

Turner v. Romanowski, No. 07-2352, 2011 WL 383014, at *6 (6th Cir. Feb. 8, 2011)

(“Turner has not produced an affidavit from Ms. Matthews herself indicating that she
Nos. 08-3522/3575 Sowell v. Anderson Page 27

would be willing to testify on Turner’s behalf . . . .”); Coe v. Bell, 161 F.3d 320, 342 (6th

Cir. 1998) (rejecting ineffective assistance claim where “most . . . witnesses were

unavailable or would not cooperate with counsel at the time of pre-trial preparation”).

And to show that counsel conducted an inadequate investigation, the affidavit must at

least state that counsel never spoke with the affiant. Cf. Goodwin v. Johnson, 632 F.3d

301, 324 (6th Cir. 2011) (“The rest of Goodwin’s family—including his mother, his

sister, his neighbor, his friend, and the mother of his child—testified that at no time

during the trial did attorneys or investigators try to contact them or ask them to testify

on Goodwin’s behalf.”); Morales v. Mitchell, 507 F.3d 916, 932 (6th Cir. 2007) (affiants

stated that they would have been willing to testify but counsel never contacted them).

Without the affiant’s stating that he had not been contacted by counsel, we have no way

of knowing if the absence of the testimony was the product of an informed strategic

decision by counsel or the result of deficient performance.

The majority opinion glosses over the characteristics of each individual affidavit,

describing them collectively with broad, summary language: “Affidavits of fourteen

family members and friends accompanied Sowell’s state post-conviction petition,

recounting the violence and privation of Sowell’s childhood. Many of these witnesses

stated that they would have been available and willing to testify at the penalty phase but

had not been asked to do so.” In fact, only eight of the affidavits have anything to say

about Sowell’s childhood. Of those, only one offers any helpful testimony and states

that counsel never contacted the affiant.

In order to avoid the majority’s error, I will examine the affidavits individually,

not as an indistinguishable mass of potential mitigation testimony. Sowell submitted

several affidavits from immediate family members: Henderson Sowell, Sr. (father);

Henderson Sowell, Jr. (brother); Larry Sowell (brother); and Catherine Jones (sister).

He submitted affidavits from his wife and other family members: Lenora Waugh

(common law wife); Bobby Lee Horton (great uncle); Helen Sanderful (aunt); Ann

Simpson (aunt). He submitted an affidavit from a childhood friend: Kenneth Starks.

Lastly, he submitted affidavits from friends and acquaintances from his adult life: Adam
Nos. 08-3522/3575 Sowell v. Anderson Page 28

1

Furthermore, Waugh actually did testify at the sentencing phase.

2

Even Larry Sowell, petitioner’s brother, states only that he was not asked to testify. He does not

say anything about whether or not counsel ever spoke with him.

Huntley (employer); Leroy Jones (friend); Jerrell Perrin (neighbor); Jimmy Wilcox

(co-worker); and Walter Gabennesh (employer). In all, Sowell submitted fourteen

affidavits’ worth of information that counsel was allegedly ineffective for failing to

discover. However, very little of it goes towards establishing ineffective assistance of

counsel, some of it is not helpful for mitigation, and some of it undercuts his mitigation

case.

The only argument Sowell advances, and the only one that has ever gained

traction in a federal court, is that counsel was ineffective for failing to investigate and

present evidence concerning Sowell’s difficult childhood. Therefore, any testimony

presented in the fourteen affidavits regarding Sowell’s adult life is not relevant to

Sowell’s claim. Sowell never argues to the contrary. Waugh, Huntley, Leroy Jones,

Perrin, Wilcox, and Gabennesh knew Sowell only in his adult life, and their testimony

does not shed light on anything new from his childhood, so those affidavits are not

valuable.1

Of the remaining eight affiants, the only ones to actually state that Sowell’s

attorneys never contacted them are his father, Henderson Sowell, Sr., and his aunt, Ann

Simpson. None of the others state that counsel never spoke with them.2 In light of this,

the majority opinion’s statement that, “[C]ounsel did not interview any of Sowell’s

family members, including his father, brothers, sisters, and other relatives,” is quite an

overstatement.

Because the affidavits of the six other relevant affiants are silent on the matter,

we cannot assume that trial counsel never spoke with them. This is simply a matter of

recognizing where the burden of proof lies—with Sowell, the petitioner. See Strickland

v. Washington, 466 U.S. 668, 687 (1984); Fautenberry v. Mitchell, 515 F.3d 614, 634

(6th Cir. 2008); Higgins v. Renico, 470 F.3d 624, 632 (6th Cir. 2006) (“In essence, a

defendant has the burden of proving, by a preponderance of the evidence, that counsel
Nos. 08-3522/3575 Sowell v. Anderson Page 29

3

It is also particularly notable that two of these affiants are willing and able to say that they were

never contacted by trial counsel and would have been willing to testify if asked, e.g., Henderson Sowell,

Sr. Aff., some stated only that they would have been willing to testify, e.g., Larry Sowell Aff., and others

say nothing at all on the matter, e.g., Catherine Jones Aff. The most logical interpretation of the affidavits

is that, astoundingly, they each mean what they say and not what they do not say.

made errors so serious that counsel was not functioning as the counsel guaranteed the

defendant by the Sixth Amendment.” (citation and internal quotation marks omitted)).

The silence of the relevant affidavits on whether or not counsel ever spoke to the affiants

cannot lead us to assume away Sowell’s burden of proof. Furthermore, counsel’s

performance is entitled to “a strong presumption that [it] falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689. Because of this

presumption, the burden of proof is heavy. See Short v. United States, 471 F.3d 686, 692

(6th Cir. 2006) (“[D]efendants alleging ineffective assistance of counsel bear ‘a heavy

burden of proof.’” (quoting Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005))). This

presumption means nothing if we automatically assume that counsel did not speak to

valuable witnesses, absent evidence to the contrary. Indeed, that would be a

presumption that counsel did not perform adequately.

That is especially the case here where we have no testimony, no affidavits, and

no records whatsoever from the witnesses best able to speak on the extent of counsel’s

investigation: trial counsel themselves.3

 See Carter v. Mitchell, 443 F.3d 517, 531 (6th

Cir. 2006) (“[C]uriously absent from the record is any statement from trial counsel

describing what he did or did not do in investigating [petitioner’s] background. By not

detailing trial counsel’s efforts to learn of [petitioner’s] background, [petitioner] has

provided no basis for a finding that trial counsel’s investigation was unreasonable.”).

True, that is not always required. See Woodard v. Mitchell, No. 06-4329, 2010 WL

4924449, at *6 (6th Cir. Dec. 2, 2010). But it is “obvious . . . that [trial counsel’s]

testimony, when available, is preferred.” Id. This Court has never held that a petitioner

can establish ineffective assistance by omitting all direct evidence of counsel’s

investigation and presenting affidavits from persons who may or may not have been

contacted by counsel, setting out their potential testimony that counsel may or may not
Nos. 08-3522/3575 Sowell v. Anderson Page 30

have known. To allow that is to do away with both the presumption that counsel

performed adequately and the petitioner’s burden of proof.

The Court’s holding today provides a roadmap to future habeas petitioners

seeking to show ineffective assistance of counsel due to inadequate mitigation

investigation. First, the petitioner should present no evidence regarding trial counsel’s

investigation. Next, he should submit affidavits from people setting forth any evidence

that counsel did not introduce at trial, regardless of whether or not counsel was aware

of it, regardless of whether or not counsel spoke with the affiants. Lastly, he must make

sure the affiants do not mention whether or not counsel ever spoke to them during the

mitigation investigation, or whether or not they were willing to testify at trial. It is that

easy. Even if counsel did speak with the affiants but chose not to call them as witnesses,

the affiants don’t even have to lie about it—they just have to remain silent on the matter.

I now return to the only two possibly relevant affidavits. Sowell’s aunt, Ann

Simpson, would not have provided useful testimony. She stated in her affidavit that,

“Billy Joe was a happy go lucky youth. He was always clean and liked to dress in nice

clothing.” Also undercutting the image of a chaotic and abusive relationship between

his parents, she stated, “Henderson and his wife, Mary Jane, appeared to get along

okay.”

This leaves Sowell’s father, Henderson Sowell, Sr., as the only relevant person

for whom we have any evidence to say that Sowell’s counsel never contacted him. The

testimony the father presents in his affidavit is relatively unremarkable. Most of it

concerns Henderson, Sr.’s own life and upbringing. It mentions Henderson’s alcohol

use, separation of the family, and the family’s impoverished housing conditions. It does

not contain any of the startling and vivid stories from Sowell’s childhood: an infant

sibling dying of starvation, rats biting the children, the father’s abandonment of the

children, the father’s beating Billy Joe until a neighbor intervened, the father’s sexual

molestation of Catherine, and the father’s threatening to burn Catherine to death. Those

statements are from either Sowell himself (in his post-sentence interview with Dr.

Hawgood) or his siblings. Even given Henderson, Sr.’s statement that, “In 1983, I was
Nos. 08-3522/3575 Sowell v. Anderson Page 31

not contacted by Billy Joe’s attorneys or their assistants,” the testimony he would have

offered to them was of minimal value.

Furthermore, assuming that trial counsel had all of the proffered evidence in front

of him, I cannot say that their decision not to put forth testimony about Sowell’s

childhood was not the product of a strategic decision. I agree with the majority that the

two strategies of emphasizing Sowell’s deprived childhood and emphasizing his good

character in his adult life are not necessarily incompatible. But as the affidavits

submitted by family members make clear, the testimony about his miserable childhood

would also include testimony that could harm Sowell’s mitigation case. Each affidavit

that included evidence about Sowell’s difficult childhood also mentioned his temper and

his violent tendencies. While his difficult childhood would probably paint a more

sympathetic picture of Sowell, it would also paint a picture of a man inclined towards

violence. The mitigation testimony of Sowell’s friends that counsel did present painted

a picture of a kind, generous man, with no mention whatsoever of Sowell’s violent

tendencies. True, the psychological reports mentioned Sowell’s violent tendencies. But

it could certainly have been a strategic decision by counsel to have friends give positive

testimony about Sowell’s character, while reserving any analysis of his violent

tendencies to the expert witnesses. This would emphasize that his violent outburst that

resulted in these crimes, while predictable to the experts in psychology and psychiatry,

was surprising and out of character to those who knew Sowell best. Pursuing an

additional strategy that focused on his difficult upbringing would not be inconsistent, but

in this case it would be at great cost because it would bring to light his violent tendencies

even more.

The majority dismisses this concern by employing a double standard. The

majority minimizes the damaging effect of the testimony about Sowell’s violent

tendencies by assuring itself that the psychological reports available to the court at

sentencing already “thoroughly documented Sowell’s short temper and his propensity

for responding violently to perceived injustices, especially when drinking.” Similarly,
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4

“He describes his father as having been a strict disciplinarian . . . . The family was very poor

. . . .” (Walters Report.) “Mother had been good in some ways but a distant person and one who could

not be satisfied with her marriage and family and frequently left it . . . .” (Titchner Report.) “[Sowell]

feels that there was a lack of close parental nurturance, thus he felt he had a ‘rough’ childhood . . . . [H]is

early experiences left him feeling abandoned, angry, without significant stable relationships . . . .”

(Schmidtgoessling Report.)

the psychological reports briefly documented Sowell’s difficult upbringing.4 Of course,

on these matters, the majority states that testimony from family members would be far

more vivid and effective at describing Sowell’s difficult childhood: “These specifics had

far more evidentiary power than the abstractions and oblique references contained in the

experts’ written reports.” Why would specifics about his violent tendencies not also

have “more evidentiary power”? Apparently, the advantage of specific first-hand

testimony over psychological reports only works in Sowell’s favor and never against it.

I dissent from the majority opinion’s affirmance of the district court’s grant of

relief because a careful examination of the evidence before us reveals that Sowell cannot

show either that his counsel undertook an inadequate investigation or that counsel’s

choice of mitigation strategy was unreasonable. The majority can only find grounds for

relief by failing to examine the affidavits individually, presuming them all to be

unequivocally relevant and helpful to Sowell, and presuming that trial counsel did not

perform an adequate investigation. As for Sowell’s other arguments for relief that the

district court rejected and the majority did not need to address—that counsel should have

objected to the presentence investigation report and should have obtained additional

experts, challenging an ex parte communication between a trial judge and the probation

department, and the trial court’s weighing standard at sentencing—I would deny relief

on those claims for substantially the same reasons that the district court did.