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File Name: 05a0405p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOSEPH LEWIS CLARK,

Petitioner-Appellant,

v.

BETTY MITCHELL,

Respondent-Appellee.

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No. 01-4210

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 99-02398—Dan A. Polster, District Judge.

Argued: June 8, 2005

Decided and Filed: October 4, 2005 

Before: MERRITT, GILMAN, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: George C. Pappas, Akron, Ohio, for Appellant. Stephen E. Maher, ATTORNEY

GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: George C. Pappas,

Akron, Ohio, Kerry O’Brien, Akron, Ohio, for Appellant. Stephen E. Maher, ATTORNEY

GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for Appellee.

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

J. (pp. 17-22), delivered a separate dissenting opinion.

_________________

OPINION _________________

ROGERS, Circuit Judge. The petitioner, Joseph Clark, appeals the district court’s denial of

his petition for a writ of habeas corpus. An Ohio state court had sentenced Clark to death for the

murder of a convenience store clerk, David Manning, during an armed robbery of the store. On

appeal, Clark alleges that he was denied the effective assistance of counsel by virtue of (1) his trial

counsel’s failure to obtain a neuropsychologist and pharmacologist to testify at Clark’s suppression

hearing and trial about Clark’s inability to waive his rights against self incrimination voluntarily and

knowingly; and (2) trial counsel’s failure to obtain and introduce evidence, at Clark’s mitigation

hearing, of Clark’s organic brain syndrome, drug addiction and withdrawal, and additional evidence

1
No. 01-4210 Clark v. Mitchell Page 2

1

Throughout his brief, Clark also appears to allege that his confession should have been suppressed because

Clark was questioned by the police without a lawyer present at a time when Clark had been appointed a lawyer for a

distinct robbery and assault charge. This issue was not certified for appeal, however, and thus is not properly before us.

Moreover, Clark’s argument is contrary to well-established law. See Texas v. Cobb, 532 U.S. 162 (2001).

of Clark’s troubled childhood.1 For the following reasons, we affirm the district court’s denial of

the writ. 

I. Background

The facts of this case, set forth below, are excerpted from State v. Clark, 527 N.E.2d 844,

846-47 (Ohio 1988):

On the night of January 13, 1984, David A. Manning, an employee of the

Clark service station at 3070 Airport Highway in Toledo, was shot and killed during

an armed robbery of the establishment. The record indicates that

defendant-appellant, Joseph L. Clark, entered the service station at approximately

9:00 p.m. armed with a drawn .32 caliber revolver. The victim was working alone

and appellant demanded money. According to a statement made by appellant to

Toledo police Detective Sergeant Larry Przeslawski, the victim told appellant that

there was no money, but appellant repeated his demand for money. The victim then

walked to the back room of the service station, returned to the counter, handed

appellant approximately $60 from the cash drawer and told him that was all of the

money on the premises. Appellant “told him it wasn’t all of it.” The victim

responded that there was no more money, but reached down and produced an

envelope containing more cash. According to appellant’s statement, the victim then

tried to “force his way on me [appellant]” whereupon appellant shot Manning once

in the right upper chest. Appellant then ran out the service station door to his car and

drove home.

Shortly thereafter, two Toledo police officers arrived on the scene in response

to a silent alarm. One of the officers walked through the service station without

seeing anyone. Upon looking further, he found the victim slouched behind the

service counter.

On January 16, 1984, appellant was arrested after allegedly committing an

assault and robbery at the Ohio Citizens Bank. The arresting officer found a .32

caliber revolver in appellant's coat pocket.

The next day, appellant, with the assistance of an appointed public defender,

was arraigned in the Toledo Municipal Court for the assault and robbery at the bank.

The public defender was aware that appellant was a suspect in the Manning murder,

and advised appellant not to discuss it with anyone but him. Later that day, the

record indicates that appellant tried to hang himself in his jail cell. Consequently,

appellant was taken to St. Vincent’s Medical Center for examination.

On January 23, 1984, appellant was released from the hospital and taken to

the Toledo Police Detective Bureau where he was questioned by Detective James

Lagger and Detective Sergeant Przeslawski. The detectives asked appellant if he

was under the influence of alcohol or drugs, and appellant responded that he was not.

The detectives then gave appellant a standard form containing his rights as

established in Miranda v. Arizona (1966), 384 U.S. 436 . . . . Appellant then read

each paragraph of the Miranda warnings out loud. After each paragraph was read,
No. 01-4210 Clark v. Mitchell Page 3

the detectives asked appellant if he understood what he had read. Appellant

responded each time that he understood what he had read and thereupon initialed

each paragraph. After reading his rights, appellant recited and signed the portion of

the form waiving his Miranda rights.

Subsequently, appellant was interrogated by the detectives for a period

covering one and three-fourths hours. Appellant was then moved to another room

where his statements were tape recorded. At that time, Sgt. Przeslawski again read

appellant his Miranda rights, and appellant made a statement about a robbery-murder

at a Lawson’s store in Toledo. After making this statement, the appellant was given

another chance to hear his Miranda rights recited when the tape was replayed for

him. Eventually, appellant made a tape-recorded statement confessing to the murder

of Manning after his Miranda rights were again recited to him. The detectives gave

appellant an opportunity to make any corrections in his statement upon replaying the

tape for him. Appellant offered no corrections, additions or changes to his

tape-recorded statements relating to the Manning murder.

Following Clark’s indictment for Manning’s murder, Clark challenged the voluntariness of

his statement to the police, and an evidentiary hearing was held on the issue. At the suppression

hearing, Dr. Emanuel Taney, a psychiatrist, testified on behalf of Clark. Although Dr. Taney had

not examined Clark, Dr. Taney had reviewed the medical records from the hospitalization following

Clark’s suicide attempt, as well as Clark’s juvenile records, various police documents, and the

court’s diagnostic and treatment reports. Based on a review of these records, Dr. Taney noted that

Clark’s mental function would be considered “borderline defective” based on his reported I.Q. of

75. Dr. Taney also concluded that Clark suffered from acute brain damage and chronic impairment

of his mental functioning at the time of his confession (apparently as a result of Clark’s recent

suicide attempt). Taney testified that Clark’s impaired mental condition would have interfered with

Clark’s ability to make choices in an informed and reasonable manner and would have rendered him

more susceptible to pressure or duress from others.

The prosecution offered in response the testimony of the officers who interrogated Clark and

the testimony of Clark’s attending physician, who concluded that, from a medical-neurological

standpoint, Clark was capable of making a decision on waiving his rights. Following the

suppression hearing, the state trial court determined that Clark voluntarily and knowingly waived

his right against self-incrimination. Clark’s confession was subsequently introduced at trial.

On November 6, 1984, Clark was found guilty of the aggravated murder of Manning while

committing aggravated robbery. As part of its verdict, the jury also found appellant guilty of the

aggravating circumstance, as charged in the specification of the indictment, that Clark was

committing, or fleeing immediately after committing, aggravated robbery and that Clark was the

principal offender.

At the sentencing phase of the proceedings, Clark’s counsel called several witnesses to

testify on Clark’s behalf. Dr. Hy Kisin, a clinical psychologist, had examined Clark on two

occasions for a total of approximately four hours. Dr. Kisin found it significant that Clark had been

abusing the drug Preludin and that he was addicted to the narcotic drug Dilaudid. Dr. Kisin

described the traumatic effect on Clark of his father’s unexpected death. Dr. Kisin testified that

Clark’s father had disappeared under mysterious circumstances and was found, nine days later, dead

in the rear seat of an automobile with another women. Dr. Kisin testified that Clark’s father’s death

had a negative impact on Clark and left Clark without significant control in his life. Dr. Kisin

testified that Clark “at best, operates on a dull normal level of intelligence and at worst in a

borderline retarded way.” Dr. Kisin testified that Clark also suffered from a “blunted” affect and

did not have a normal range for expressing emotions. Dr. Kisin stated that Clark’s need for drug
No. 01-4210 Clark v. Mitchell Page 4

money had a contributing effect to Clark’s crimes. Dr. Kisin further opined that Clark shot Manning

as a result of a perceived threat and that Clark did not intend to kill Manning. Dr. Kisin also

concluded that Clark would be able to conform and adjust his behavior to function adequately in a

prison environment.

Clark’s counsel also called other witnesses to testify on Clark’s behalf at sentencing.

Stephen McConnell, a professor of sociology, testified that the death penalty did not have a deterrent

effect on the crime rate in local communities and that the imposition of the death penalty in this case

would not have a deterrent effect on the commission of similar crimes. Clark’s mother, Erma Clark,

testified about Clark’s childhood. Ms. Clark testified that Clark was a quiet child with few friends,

that Clark’s father had died under unusual circumstances when Clark was a teenager, and that Clark

had three children. Two of Clark’s children, Clifford and Cheryl Stallworth, testified that they loved

their father and hoped that he would not get the death penalty. Father Douglas Siebenaller, a

Catholic priest, then testified that the imposition of the death penalty was against certain religious

doctrine and that, based upon his conversations with Clark, Clark was filled with remorse over

Manning’s death. Finally, Clark made an unsworn statement on his own behalf.

After the sentencing hearing, the jury recommended a death sentence for Clark. The trial

court accepted the jury’s recommendation and sentenced Clark to death. The Ohio Court of Appeals

affirmed Clark’s conviction and sentence on direct appeal, State v. Clark, No. L-84-443, 1986 WL

15254 (Ohio Ct. App. Dec. 24, 1986), as did the Supreme Court of Ohio, Clark, 527 N.E.2d at 857.

The Supreme Court of the United States denied certiorari. Clark v. Ohio, 489 U.S. 1071 (1989). 

In 1989, Clark filed a state petition for post-conviction relief, which the trial court denied.

In his state petition for post-conviction relief, Clark alleged that he was denied the effective

assistance of counsel based on his counsel’s failure to hire a neuropsychologist and pharmacologist

to challenge the voluntariness of Clark’s waiver of his rights against self-incrimination, and for

failure to employ such experts during mitigation. In support of his claims, Clark offered the

affidavits of Michael Gelbort, Ph.D., a licensed clinical psychologist, and Charles T. Kandiko,

Ph.D., a doctor of pharmacology. Dr. Gelbort conducted a neuropsychological evaluation of Clark

and concluded, in relevant part, that:

The patient exhibits an Organic Brain Syndrome (OBS) at the time of testing. . . .

[T]he condition was present at the time of the offense for which he has been

convicted and was made worse as a result of the effects of the suicide attempt. It is

likely that each of these problems contributed to the patient’s neuropsychological

dysfunction and that all were in effect and had an affect on his behavior at the time

of his trial. Furthermore, his impaired cognitive abilities (caused by the OBS) would

have caused him to be less able than a normal individual to comprehend the meaning

of Miranda rights and be unable to weigh and deliberate his options in a normal

fashion. This would have been the case at the time his confession was elicited in this

case. As noted, the patient’s deficits are especially prevalent when he [is] under

stress, when affected by drug abuse (or withdrawal,) and in complex situations. This

would have been the case at the time when the confession was elicited and would

have further caused his confession to be other than freely given in a knowing fashion.

Finally, the patient’s behavior has not only been affected by the Organic Brain

Syndrome/cognitive dysfunction from which he suffers, but also from the acute

effects of substance abuse and eventual withdrawal. In particular, it is noted from

the records that he was interrogated while withdrawing from psychoactive

substances. Withdrawal is an emotionally and cognitively draining and debilitating

experience during which cognitive abilities are further clouded or impaired from

their operant state. [Patients] who are in withdrawal will often say or do whatever
No. 01-4210 Clark v. Mitchell Page 5

they are asked to end a situation (questioning or interrogation) which is most often

found to be exhausting, confusing, and may be experienced as physically nauseating.

Information obtained from individuals in this state cannot be viewed as being as

valid and accurate as that obtained form someone who is not under such duress and

who may not acquiesce simply to end the interrogation. 

While the hypoxia occurred after the criminal act, the data show that there were

significant cognitive deficits which would have been caused by other etiologies and

which would have been present at the time of the criminal act. It should also be

noted that the patient’s presentation is one where the lay person, and even a

psychologist not trained in neuropsychology (or one who does not have the benefit

of test data) could and likely would overlook the deficits . . . . Despite the

neuropsychological deficits not having an overt, outwardly observable physical

manifestation, they are real, readily observable in the test data, and the patient’s

history is clearly indicative of their presence. Review of the patient’s history

obviously signal[s] (and did signal at the time of the original trial) the presence of

impaired functioning and should have [led] to neuropsychological testing and

investigation at that time.

Dr. Kandiko conducted a neuropharmacological evaluation of Clark that addressed two

specific areas: the opioid withdrawal syndrome that affected Clark at the time of his arrest and

Clark’s mental status during his interrogation by the police. Dr. Kandiko’s affidavit gave the

following analysis and conclusion:

8. [P]atients in opioid withdrawal have a tendency to be highly responsive to

suggestion, and placebo effects are formidable . . . .

9. Mr. Clark, given his past history of opioid abuse (hydromorphone), was in my

opinion suffering from opioid withdrawal at the time of his police interrogation. He

had been in the hospital 6 days, but as the literature states a person in opioid

withdrawal from a short-acting opioid will remain in severe withdrawal for as long

as 10 days . . . . In addition, opioid abusers also experience prolonged withdrawal

for as long as 6 months post detoxification . . . . Mr. Clark was interrogated without

having any detoxification treatment. He would have been subject to all of the above

physiological conditions with added anxiety and depression. A standard treatment

for opioid abusers is to initially administer 20 mg methadone and adjust dosage as

required . . . . Mr. Clark was never given the opportunity to undergo opioid

treatment and detoxification.

10. A person suffering form opioid withdrawal is known to experience severe

anxiety, restlessness, depression and discomfort . . . . [This is known as dysphoria.]

11. Since Mr. Clark was never treated medically for his opioid addiction, he was

most probably in a state of opioid withdrawal at the time of his interrogation by

police. This opioid withdrawal would include the mental dysphoria state, as well as

the other stated physiological symptoms that are known to occur, when medical

treatment is absent . . . . Therefore, it is my opinion, from a scientific viewpoint, that

Mr. Clark was suffering from opioid withdrawal with the concomitant dysphoria

during the police interrogation of him on January 23, 1984. This dysphoric state most

probably had an adverse effect on Mr. Clark's ability to reason, adapt to changing

topics, and in general tolerate a three hour interrogation.
No. 01-4210 Clark v. Mitchell Page 6

The post-conviction trial court found that Clark’s counsel was not deficient for failing to hire

a neuropsychologist to challenge the ability of Clark to waive his rights against self-incrimination

because “the uncontroverted facts firmly establish that a lawyer, untrained in neuropsychology,

could not reasonably have been expected to have obtained neurological testing of petitioner.” JA

330. In so finding, the trial court relied on the report of Dr. Gelbort, which stated that “It should .

. . be noted that the patient’s presentation is one where the lay person, and even a psychologist not

trained in neuropsychology . . . could and likely would overlook the deficits.” 

The state post-conviction trial court also found that Clark could not demonstrate that he was

prejudiced by his counsel’s failure to call a neuropsychologist to challenge Clark’s ability to waive

his rights knowingly and voluntarily, because the trial court’s decision not to suppress Clark’s

confession was “made independent of any psychological testimony, evidence, or rebuttal.” Instead,

the post-conviction court found the trial court’s decision had been based “on petitioner’s experience

with criminal proceedings and his being repeatedly informed of his Miranda rights,” as well as the

fact that there was “no evidence that petitioner’s will had been overborne by deprivation,

mistreatment, threats, or inducements.” See JA 330-331. 

The state post-conviction trial court also rejected Clark’s argument that trial counsel had

been ineffective for failing to call a neuropsychologist during mitigation. The court explained that,

“[a]t most, the additional expert testimony would have bolstered evidence that was already before

the trial court concerning defendant’s lack of mental acumen and drug addiction.”

The post-conviction trial court also rejected Clark’s claim that his counsel had been deficient

for failing to call a pharmacologist to testify that Clark’s opioid withdrawal adversely affected his

ability to understand his rights and to make a reliable statement. The court held that expert evidence

offered by Clark “simply does not allow reasonably for the conclusion that trial counsel, by failing

to present [evidence of Clark’s opioid withdrawal], so undermined the proper functioning of the

adversarial process that the trial court would not have reliably produced a just result.” 

Finally, the court determined that Clark’s counsel had not been ineffective for failing to

introduce additional mitigating evidence, including the additional testimony of friends and relatives.

As to Clark’s failure to call a neuropsychologist during mitigation, the trial court had already ruled,

as noted above, that Clark could not demonstrate that he was prejudiced by the failure to call a

neuropsychologist. The trial court also ruled, as to other mitigating evidence, including the need

for a pharmacologist, that Clark had not shown that the failure to introduce the additional mitigating

evidence so undermined the proper functioning of the adversarial process that the trial could not

have produced a just result. 

The Ohio Court of Appeals affirmed the denial of the petition. State v. Clark, No. L-97-

1151, 1998 WL 484119 (Ohio Ct. App. Aug 14, 1998). The appellate court held that the trial court

correctly determined that Clark’s counsel had not been deficient for failing to employ a

neuropsychologist or pharmacologist to challenge Clark’s ability knowingly and voluntarily to

waive his rights against self-incrimination. Id. at *7. The appellate court noted that Clark’s counsel

had in fact engaged a psychiatrist to testify about Clark’s impaired mental condition at the time of

his confession. Id. Moreover, the appellate court noted that the trial court correctly concluded that

Clark’s counsel could not be deficient for failing to call a neuropsychologist when Clark’s own

expert stated that Clark’s impairments “could and likely would” have been overlooked by a lay

person or a psychologist not trained in neuropsychology. Id. 

The appellate court also concluded that Clark had not been prejudiced as a result of his

counsel’s failure to call a neuropsychologist to challenge Clark’s ability to waive his rights against

self-incrimination knowingly and voluntarily. Id. The appellate court noted that police

overreaching is necessary for a finding of involuntariness and that no police overreaching was
No. 01-4210 Clark v. Mitchell Page 7

present in this case. Id. The court also noted that the defense had in fact presented testimony at the

suppression hearing from a psychiatrist, Dr. Taney, concerning Clark’s diminished mental

capabilities and that, notwithstanding Dr. Taney’s testimony, the trial court found that Clark had

voluntarily waived his rights against self-incrimination. Id. at *7-*8.

The appellate court also held that the trial court correctly determined that Clark’s counsel

had not been ineffective for failing to employ a pharmacologist to testify to the effects of Clark’s

drug addiction and withdrawal on his ability to waive his rights against self-incrimination knowingly

and voluntarily. Id. at *8. The appellate court stated that Clark “made no showing that defense

counsel was incompetent in failing to call a pharmacologist.” Id. The court then stated that, even

assuming that Clark’s counsel should have called a pharmacologist to discuss the effects of Clark’s

drug addiction and withdrawal on Clark’s ability to waive his rights knowingly and voluntarily,

Clark had failed to establish that he had been prejudiced by such a failure. Id. The appellate court

noted that, despite Dr. Kandiko’s testimony regarding the effects of drug withdrawal, there was

testimony introduced at the suppression hearing that Clark did not appear to be suffering any

negative effects as a result of drug withdrawal. Id. The appellate court noted that testimony

established that, at the time of his confession, Clark “was lucid, seemed relaxed, and stated that he

was not under the influence of drugs or alcohol.” Id. 

Finally, the appellate court held that Clark’s counsel had not been ineffective for failing to

introduce additional evidence at Clark’s mitigation hearing, including testimony from a

neuropsychologist about Clark’s organic brain disorder, from a pharmacologist about Clark’s drug

addiction, and from various friends and family about Clark’s traumatic childhood. Id. at *10. The

appellate court held that Clark’s counsel was not deficient for failing to present evidence of a

neuropsychologist or pharmacologist at mitigation. Id. at *8. The appellate court also held

independently that there was no showing of prejudice from the lack of such additional evidence

because “[a]ppellant offered in mitigation, testimony regarding his mental state, drug addiction, and

family history,” and Dr. Gelbort’s and Dr. Kandiko’s testimony “would have been cumulative at

best.” Id. Accordingly, Clark had “failed to demonstrate that defense counsel’s performance fell

below an objective standard of reasonable representation or that [Clark’s] defense was prejudiced

from counsel’s actions.” Id.

With particular reference to mitigation, the court reproduced extensively the findings of the

Supreme Court of Ohio on direct appeal regarding mitigation evidence. The Supreme Court of Ohio

had referred specifically to Dr. Kisin’s testimony regarding Clark’s mental condition as it related

to mitigation:

Appellant also called Dr. Kisin, a psychologist, to testify about his discussions with

appellant concerning the same period. Dr. Kisin also gave his opinion about

appellant’s state of mind during and after the murder and his prospects for

rehabilitation.

Id. at *9. The post-conviction appellate court concluded that, “none of the proposed witnesses

would add any information to that which had been provided to the jury” and that any additional

evidence would have been “merely cumulative.” Id. at *10. The appellate court accordingly denied

Clark’s petition for post-conviction relief, id. at *11, and the Supreme Court of Ohio declined further

review, State v. Clark, 704 N.E.2d 577 (Ohio 1999).

In February of 2000, Clark filed a § 2254 petition for federal post-conviction relief, which

the district court denied in its entirety. A certificate of appealability was then granted that

encompasses the two issues raised presently on appeal: (1) whether Clark’s counsel was ineffective

for failing to obtain a neuropsychologist and pharmacologist to testify at Clark’s suppression hearing

and trial about Clark’s ability to waive his rights against self-incrimination; and (2) whether Clark’s
No. 01-4210 Clark v. Mitchell Page 8

2

The certificate of appealability was granted on the following four grounds: (1) whether Clark’s counsel

rendered ineffective assistance by not employing a neuropsychologist to provide an opinion on Clark’s ability to waive

his rights against self-incrimination knowingly and intelligently, and by not presenting such evidence at trial and the

sentencing hearing; (2) whether Clark’s counsel rendered ineffective assistance by not hiring a pharmacological expert

to provide an opinion at the suppression hearing on the effect that Clark’s opioid withdrawal had at the time of his police

interrogation and an opinion on the effect of the same syndrome at the sentencing hearing; (3) whether Clark’s counsel

rendered ineffective assistance by not adequately investigating and presenting evidence in mitigation during the

sentencing hearing; and (4) whether Clark’s trial counsel rendered ineffective assistance of counsel during the guilt and

penalty phases of the trial. The district court in granting the COA recognized that these issues are interrelated. 

counsel was ineffective for failing to obtain and introduce evidence, at the mitigation hearing, of

Clark’s organic brain syndrome, drug addiction and withdrawal, and troubled childhood.2 The

district court found that the state court was reasonable when it determined that Clark had not

demonstrated that his counsel was ineffective or that Clark was prejudiced by any of his counsel’s

alleged deficiencies. We affirm.

II. Analysis 

 Because Clark filed his petition for habeas relief after the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996),

the provisions of that Act apply to this case. Pursuant to AEDPA, a federal court may not grant a

writ of habeas corpus for any claim that was adjudicated on the merits in state court, unless the state

court’s adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court

decision is “contrary to” Supreme Court precedent “if the state court arrives at a conclusion opposite

to that reached by [the Court] on a question of law,” or “if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite

to” the decision of the Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court’s decision

is an “unreasonable application” of clearly established Supreme Court precedent when the statecourt decision correctly identifies the governing legal standard but applies that standard to the facts

of the case before it in an objectively unreasonable manner. Id. at 409-10. An unreasonable

application of federal law is different than an incorrect application of federal law, and a federal court

may not issue a writ of habeas simply because the federal court concludes that the state court

erroneously applied clearly established federal law. Id. at 411.

In this case, Clark alleges that he was denied the effective assistance of counsel. The test

for evaluating claims of ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to succeed on a claim of ineffective assistance of counsel,

a petitioner must show (1) that his counsel’s performance was deficient, and (2) that the deficiency

prejudiced the defense. Id. at 687. 

A. The Suppression Hearing and Trial

Clark alleges that his counsel was ineffective for failing to employ a neuropsychologist and

a pharmacological expert to testify at his suppression hearing and trial about the effect of Clark’s

organic brain syndrome and drug addiction on his ability to waive his rights against selfincrimination voluntarily and knowingly. In essence, Clark argues that, had evidence of his organic

brain syndrome and drug addiction and withdrawal been presented during the motion to suppress,

the trial court would have found that Clark did not voluntarily and knowingly waive his rights

against self-incrimination. In support of this argument, Clark offers the previously described

affidavits of Michael M. Gelbort, Ph.D., a licensed clinical psychologist, and Charles T. Kandiko,

Ph.D., a doctor of pharmacology. In short, Dr. Gelbort’s and Dr. Kandiko’s affidavits conclude that
No. 01-4210 Clark v. Mitchell Page 9

Clark’s drug addiction and brain syndrome would have caused Clark not to understand fully his

rights and to be more susceptible to pressure from others. 

After considering the affidavits of both Dr. Gelbort and Dr. Kandiko, the state trial court

determined that Clark’s counsel was not deficient for failing to call either a neuropsychologist or

a pharmacologist. As to counsel’s failure to call a neuropsychologist, the court found that “the

uncontroverted facts firmly establish that a lawyer, untrained in neuropsychology, could not

reasonably have been expected to have obtained neurological testing” based on Dr. Gelbort’s

conclusion that Clark’s condition “is one where the lay person, and even a psychologist not trained

in psychology . . . could and likely would overlook the deficits.” The state trial court also found that

Clark was not prejudiced by the failure to call a neuropsychologist or a pharmacologist to challenge

Clark’s ability to waive his rights against self-incrimination. In so finding, the trial court noted that

“it is clear that the decision [to deny suppression of Clark’s confession] was made independent of

any psychological testimony, evidence, or rebuttal; rather, the trial court determined that petitioner’s

confession was voluntarily based on petitioner’s experience with criminal proceedings and his being

repeatedly informed of his Miranda rights in the instant case.” The trial court also noted that there

was “no evidence that petitioner’s will had been overborne by deprivation, mistreatment, threats,

or inducements.” Finally, the trial court stated that Dr. Kandiko’s affidavit “simply does not allow

reasonably for the conclusion that trial counsel, by failing to present such evidence, so undermined

the proper functioning of the adversarial process that the trial court would not have reliably

produced a just result.” 

On appeal, the Ohio Court of Appeals, the highest state court to consider Clark’s postconviction claims, determined that Clark’s counsel’s failure to introduce evidence from a

neuropsychologist and pharmacologist at the suppression hearing and trial did not fall below

objective standards of reasonableness. Clark, 1998 WL 484119, at *7-*8. In regard to counsel’s

failure to hire a neuropsychologist, the appellate court noted that “[c]ounsel did engage a

psychiatrist to testify in appellant’s behalf concerning his mental condition at the time of his

confession.” Id. at *7. The court also noted that “appellant’s own neuropsychologist, Dr. Gelbort,

stated that it would have been difficult for a lay person to recognize appellant’s deficits.” Id. at *7.

The appellate court also found that Clark had “made no showing that defense counsel was

incompetent in failing to call a pharmacologist.” Id. at *8. 

The appellate court also determined that Clark had not demonstrated that he was prejudiced

by his counsel’s failure to introduce testimony from a neuropsychologist or pharmacologist at

Clark’s suppression hearing and trial. Id. at *7-*8. In so finding, the state court noted that police

overreaching is necessary for a confession to be found involuntary, and that, since there was no

evidence of police overreaching in this case, Clark could not demonstrate that the lack of testimony

about his organic brain disorder or drug addiction would have changed the outcome of his

suppression hearing or trial. Id. at *7. Moreover, the state court noted, “the trial court heard

testimony from a psychiatrist concerning appellant’s diminished mental capabilities [but] . . .

[n]evertheless . . . concluded that appellant’s statements to the police were voluntarily made.” Id.

The district court properly found that the state court’s determination was neither contrary to

nor an unreasonable application of established Supreme Court precedent. Clark’s counsel hired a

psychiatrist, Dr. Taney, to testify at the suppression hearing about Clark’s mental status at the time

of his confession. Although Dr. Taney did not personally examine Clark, Dr. Taney did review

Clark’s medical records from the hospitalization following his suicide attempt, as well as Clark’s

juvenile records, various police documents, and the court’s diagnostic and treatment reports. From

a review of these records, Dr. Taney testified that, as a result of Clark’s suicide attempt, Clark

suffered from brain damage and chronic impairment of his mental functioning at the time of his

confession. Dr. Taney testified that this impairment would have interfered with Clark’s ability to

make informed choices and to withstand pressure or duress. Furthermore, with respect to the need
No. 01-4210 Clark v. Mitchell Page 10

for testimony from a neuropsychologist, Clark’s own expert indicated that Clark’s cognitive deficits

would not be apparent to a lay person or even to a trained psychologist, and thus counsel cannot be

found deficient for failing to hire such an expert. 

Our case law supports the reasonableness of the Ohio appellate court’s decision that counsel

was not ineffective in this regard. We held in Johnson v. Bell, 344 F.3d 567, 573-74 (6th Cir.

2003), that counsel was not ineffective for failing to conduct further investigation where there was

“nothing to suggest that counsel in the instant case ignored known leads that might have helped them

to prepare their case in mitigation.” In Campbell v. Coyle, 260 F.3d 531, 546-56 (6th Cir. 2001),

we held that counsel’s failure to investigate and discover petitioner’s PTSD (post-traumatic stress

disorder) was not ineffective assistance of counsel when a clinical psychologist failed to diagnose

the petitioner as suffering from PTSD and when counsel investigated the petitioner’s history. See

also Pruett v. Thompson, 996 F.2d 1560, 1574 (4th Cir. 1993) (holding that an attorney was not

ineffective for failing to discover that his client suffered from mental illness, organic brain damage,

developmental problems, and post-traumatic stress disorder when a mental health expert examined

the defendant and found that he did not suffer from such problems). 

The state court was also reasonable in determining that Clark had failed to demonstrate

prejudice as a result of his counsel’s failure to introduce evidence from a neuropsychologist or

pharmacologist at his suppression hearing or at trial. Clark’s defense team introduced evidence at

Clark’s suppression hearing from a psychiatrist who concluded that Clark was suffering from

depression, suicidal tendencies, and brain impairments that would have made Clark less able to

understand his choices and to resist pressure from other individuals. It thus was reasonable for the

state court to conclude that new information sought to be introduced by Clark about his drug

addiction and brain disorder did not differ in a substantial way from the evidence actually presented

at the suppression hearing and, accordingly, that Clark could not demonstrate that he was prejudiced

by his counsel’s failure to present such evidence.

Furthermore, the state court correctly noted that police overreaching is necessary for a

confession to be found invalid under the Due Process Clause of the Fourteenth Amendment. See

Colorado v. Connelly, 479 U.S. 157, 164 (1986). In Connelly, the defendant had approached a

police officer and insisted on confessing to a murder committed a year earlier. The defendant was

later diagnosed as suffering from a psychosis that interfered with his ability to make free and rational

choices. The Supreme Court held that the defendant’s impaired mental status was not a sufficient

basis for which to find that the defendant’s confession was involuntary. Rather, the court held,

“coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’

within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. at 167. As our

court has explained, “Evidence that a defendant suffered, at the relevant time, from a condition or

deficiency that impaired his cognitive or volitional capacity is never, by itself, sufficient to warrant

the conclusion that his confession was involuntary for purposes of due process; some element of

police coercion is always necessary.” United States v. Newman, 889 F.2d 88, 94 (6th Cir. 1989).

Clark has not demonstrated that there was police overreaching in this case. Accordingly, even if we

assume that testimony about his organic brain syndrome and drug addiction should have been

introduced at the suppression hearing, there is no merit to Clark’s argument that his confession was

involuntary or unconstitutionally admitted. Accordingly, the state court was reasonable in

concluding that Clark was not prejudiced by his counsel’s failure to introduce evidence from a

neuropsychologist and/or pharmacologist at Clark’s suppression hearing and trial.

In addition, Clark has not demonstrated that evidence of organic brain syndrome would have

established that Clark’s confession was unknowing and unintelligent. Unlike claims brought solely

under the Due Process Clause of the Fourteenth Amendment, claims regarding Miranda waivers

must demonstrate not only that the confession was voluntary but also that the confession was

knowing and intelligent. See Colorado v. Spring, 479 U.S. 564, 573 (1987). To determine whether
No. 01-4210 Clark v. Mitchell Page 11

the confession was knowing and intelligent, we apply a totality of the circumstances test to ascertain

whether Clark understood his right to remain silent and to await counsel. The inquiry is not whether

“a criminal suspect know[s] and understand[s] every possible consequence of a waiver of the Fifth

Amendment privilege.” Id. at 574. The totality of the circumstances in this case demonstrates that

Clark waived his rights knowingly and intelligently.

That Clark had borderline retardation (in the words of Dr. Kisin) or “low average intellect”

(in the words of Dr. Gelbort) is not dispositive. Our sister circuits have found several instances

where defendants, despite their mental retardation or low I.Q.’s, were found to have waived their

rights knowingly and intelligently. See, e.g., United States v. Turner, 157 F.3d 552, 555 (8th Cir.

1998) (holding that defendant’s borderline I.Q. did not prevent knowing and intelligent waiver);

Rice v. Cooper, 148 F.3d 747, 751 (7th Cir. 1998) (holding that mildly retarded defendant gave valid

waiver because police had no reason to suspect that he did not understand the warnings); Correll v.

Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (determining that, despite defendant’s I.Q. of only

78, he gave a valid waiver because he received warnings several times both while in custody and

for prior crimes). According to the Supreme Court of Ohio, Clark stated that he was not intoxicated

when he gave his confession, read his Miranda warnings aloud, affirmed his understanding after

reading each paragraph, signed the waiver form, and was offered the chance to make any corrections

to his tape-recorded statement. The Ohio Court of Appeals found that he was warned “in excess of

nine times” during the investigation. Clark does not challenge these findings of the state courts or

argue that these facts fail to evidence a knowing waiver. Under the totality of the circumstances,

the state courts’ finding that Clark’s waiver was knowing and intelligent was not unreasonable, even

assuming that he suffered from organic brain syndrome.

B. The Mitigation Hearing

Clark’s argument that his counsel was ineffective at the sentencing phase of his trial also

fails. Clark argues that his counsel was ineffective for failing to introduce expert evidence about

Clark’s organic brain syndrome, drug addiction and withdrawal, and troubled childhood. In support

of this argument, Clark offers the reports and affidavits from Dr. Gelbort and Dr. Kandiko, as well

as affidavits from various family members. The family-member affidavits describe Clark’s father

as an alcoholic womanizer, provide more unseemly details about Clark’s father’s death, note that

Clark had discipline problems after his father’s death, and state that Clark frequently got into trouble

and spent time in jail. The state court determined that Clark’s counsel was not ineffective for failing

to call these additional witnesses because it found that the newly offered evidence was “merely

cumulative” to that which had been presented at the mitigation hearing. The district court properly

concluded that the state court’s decision was not unreasonable or contrary to Supreme Court

precedent. 

A counsel’s failure to make a reasonable investigation of a defendant’s psychiatric history

and family background, and to present mitigating evidence to the jury at sentencing, can constitute

ineffective assistance. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003). In assessing whether a

defendant’s counsel was ineffective at the mitigation hearing for failing to introduce certain

evidence, the focus must be on whether the investigation supporting counsel’s decision not to

introduce mitigating evidence of the defendant’s background was itself reasonable. Id. at 523. In

assessing the reasonableness of an attorney’s investigation, the quantum of evidence known to

counsel must be considered, as well as whether that evidence should have led a reasonable attorney

to investigate further. Id. at 527.

The state trial court determined that Clark’s counsel was not deficient for failing to introduce

evidence at the mitigation hearing from a neuropsychologist, a pharmacologist, and from various

other witnesses. With regard to the lack of testimony from a neuropsychologist, the trial court found

that “[a]t most, the additional expert testimony would have bolstered evidence that was already
No. 01-4210 Clark v. Mitchell Page 12

3

Dr. Gelbort’s report goes on to state that Clark’s impaired functioning should have led to additional testing,

but the report fails to explain how the need for additional testing could have been apparent when Clark’s deficiencies

“could and likely would [have been] overlook[ed].”

4

Although Dr. Taney testified that Clark suffered from brain damage as a result of his suicide attempt, Dr.

Taney did not opine that Clark suffered from congenital, or organic, brain problems. Furthermore, Dr. Taney did not

indicate that any further neurological testing was needed. Under such circumstances, Dr. Taney’s testimony that Clark

suffered brain damage subsequent to the crime could not have served as a “red flag” to put Clark’s counsel on notice that

Clark may have suffered from congenital brain defects.

5

The fact that Clark’s counsel retained psychological and psychiatric experts to aid in Clark’s defense

demonstrates that Clark’s counsel complied with American Bar Association Guidelines requiring counsel to perform an

investigation into a defendant’s mental health status and not to rely merely on their own observations to detect any

possible mental heath conditions from which the defendant may be suffering. See ABA Guidelines for the Appointment

and Performance of Defense Counsel in Death Penalty Cases § 4.1 Commentary (rev. ed. 2003), reprinted in 31 Hofstra

L. Rev. 913, 956-57 (2003).

before the trial court concerning defendant’s lack of mental acumen and drug addiction.” With

regard to counsel’s failure to interview additional friends, relatives, and professional people in

regard to Clark’s history, the trial court found the evidence was “more of the same type of evidence”

that had already been considered.

On appeal, the Ohio appellate court agreed that Clark’s counsel was not ineffective at the

mitigation hearing for failing to call a neuropsychologist, a pharmacologist, and various family

members. Clark, 1998 WL 484119, at *8, *10-*11. The court first found that Clark “failed to

establish that counsel was deficient in not presenting . . . evidence [from a neuropsychologist and

pharmacologist].” Id. at *8. The appellate court then noted that Clark “offered in mitigation . . .

testimony regarding his mental state, drug addiction, and family history.” Id. at *8. The appellate

court therefore found “[u]pon a review of the affidavits [from Dr. Gelbort, Dr. Kandiko, and Clark’s

various family members,] . . . that none of the proposed witnesses would add any information to that

which had been presented to the jury.” Id. at *10. Thus, the court held that “even assuming that

counsel should have attempted to obtain this additional evidence, because it was merely cumulative,

appellant failed to demonstrate any resultant prejudice.” Id. at *10.

The state court’s holding that Clark’s counsel was not deficient for failing to call a

neuropsychologist, a pharmacologist, and more members of Clark’s family to testify about his

background was not unreasonable or contrary to Supreme Court precedent. It is clear that the

defense did investigate and present evidence regarding Clark’s mental health, drug abuse, and family

background at the mitigation hearing. Although Clark asserts that counsel should have employed

a pharmacological expert, the psychological expert that counsel did employ, Dr. Kisin, addressed

Clark’s drug addiction and its effect on his criminal conduct. As to the necessity of employing a

neuropsychologist, it was not unreasonable for the state court to determine that Clark’s counsel was

not deficient for failing to recognize the need for such an expert, since Dr. Gelbort’s own report

admitted that Clark’s deficits generally would not be recognizable to a lay person, or even to a

psychologist.3

 Moreover, it does not appear that either the psychologist or psychiatrist retained by

the defense to evaluate Clark suggested that Clark suffered from organic brain damage or that Clark

required any additional mental health testing.4

 It was not unreasonable for Clark’s counsel,

untrained in the field of mental health, to rely on the opinions of these professionals.5

 This

conclusion is supported by this court’s decision in Campbell, 260 F.3d at 555-56. In Campbell, a

defendant seeking habeas relief alleged that his counsel was ineffective for failing to suspect that

he may have “suffered from [post-traumatic stress disorder] based on the facts and circumstances

of his case.” Id. at 555. This court rejected the defendant’s argument, relying heavily on the fact

that counsel had the defendant examined by a trained psychologist who failed to detect evidence of

the defendant’s possible mental disorder. Id. at 555-56. The court noted that there was “no
No. 01-4210 Clark v. Mitchell Page 13

6

Moreover, the transcript from the mitigation hearing strongly suggests that counsel made a strategic decision

to limit testimony about Clark’s past in order to prevent “opening-the-door” to evidence of Clark’s criminal background.

Defense counsel vigorously objected to attempts by the prosecutor to delve into the facts concerning Clark’s criminal

history. As noted in Strickland, 466 U.S. at 690-91, a strategic decision to pursue or not to pursue a particular trial tactic

“after thorough investigation of law and facts,” is “virtually unchallengeable.” Cf. Truesdale v. Moore, 142 F.3d 749,

754-55 (4th Cir. 1998) (holding that counsel was not ineffective for failing to present evidence of defendant’s organic

brain disorder as part of a strategic decision not to present mitigating evidence that would fail to portray the defendant

as a normal individual capable of rehabilitation). The likelihood that Clark’s counsel made a strategic decision not to

limit evidence of Clark’s past so as to prevent “opening-the-door” to his past convictions supports the reasonableness

of the Ohio Court of Appeals’ determination regarding the performance of defense counsel.

evidence that [the trained psychologist] was incompetent, or that [counsel] had any reason to

question [the expert’s] professional qualifications.” Id. at 555. Thus, the court found that “it was

objectively reasonable for . . . counsel to rely upon [the trained psychologist’s] diagnosis and . . .

trial counsel’s failure to independently diagnose PTDS was not unreasonable.” Id. 

The Fourth Circuit reached a similar conclusion in Pruett, 996 F.2d 1560. In Pruett, a

petitioner alleged that he was entitled to post-conviction relief because his attorney was ineffective

for failing to investigate or present mitigating evidence of mental illness, developmental problems,

organic brain damage, and post-traumatic stress disorder. Id. at 1573. In rejecting the petitioner’s

argument, the Fourth Circuit noted that counsel had in fact consulted with a psychiatrist, who

concluded that Pruett did not suffer from any of the alleged mental illnesses or abnormalities. Id. at 1573-74. The court stated that, under such circumstances, counsel was not ineffective for failing

to discover the mental defect. Id. at 1574. The court went on to explain that “[a]n attorney is not

required to be so expert in psychiatry.” Id. See also Easley v. Dretke, No. 03-41495, 2005 WL

352673, at *3-*5 (5th Cir. Feb. 15, 2005) (holding that counsel was not ineffective for failing to

discover and present evidence that the defendant suffered from post-traumatic stress disorder

because counsel “had investigated the defendant’s history and had no reason to suspect the existence

of PTSD”). In this case, Clark was examined by a psychiatrist and a psychologist. Neither expert

concluded that Clark suffered from organic brain damage, nor did either suggest that Clark needed

further neurological testing. Under such circumstances, Clark’s counsel was not ineffective for

failing independently to discover the need for additional neurological testing.

Finally, as to the additional evidence concerning Clark’s family history, it is clear that

evidence of Clark’s background was introduced by Dr. Kisin and by Clark’s mother. Our cases

reject a requirement that any later-identified cumulative mitigating evidence must have been

introduced in order for counsel to be effective. As this court recently explained, “to establish

prejudice, the 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.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). This court also held in Smith v. Mitchell, 348 F.3d 177, 200-02

(6th Cir. 2003), that a petitioner was not prejudiced by his counsel’s failure to introduce additional

mitigating evidence at sentencing where new evidence sought to be introduced was merely

cumulative to that which had already been presented at mitigation.6

The state court’s determination that Clark did not suffer any prejudice as a result of his

counsel’s allegedly deficient performance was also a reasonable application of federal law and

provides an independent basis for affirmance. While the opinions of Dr. Gelbort and Dr. Kandiko,

as well as the affidavits from Clark’s family, provide further mitigating details about Clark, they do

not significantly expand upon the information that was available to the jury. Dr. Kisin and Clark’s

mother testified about the death of Clark’s father and the effect it had on Clark’s childhood. Dr.

Kisin also addressed Clark’s drug addiction and its effect on Clark’s criminal activity, although not

to the extent set forth in Dr. Kandiko’s affidavit. Also, while Dr. Kisin did not diagnose Clark as

suffering from an organic brain syndrome, Dr. Kisin did testify about Clark’s borderline intelligence

level and his dull affect. He also testified at length about Clark’s drug use and its effects. The fact
No. 01-4210 Clark v. Mitchell Page 14

that Dr. Kisin’s precise characterization of Clark’s mental health deficiencies was presented in one

sentence—that Clark “at best, operates on a dull normal level of intelligence and at worst in a

borderline retarded way”—does not diminish the overall impact of the psychologist’s mitigation

testimony, the direct portion of which covered approximately twenty pages of transcript. Dr. Kisin’s

testimony virtually coincides with Dr. Gelbort’s conclusion that Clark “has undergone

neuropsychological evaluation and demonstrates low average intellect.” While Dr. Gelbort’s

affidavit also states that Clark suffers from a cognitive dysfunction that causes him to have difficulty

with cognitively complex tasks, it is reasonable to conclude that an individual functioning at a “dull

normal” or “borderline retarded” level would also have difficulty comprehending complex tasks.

Thus, while Dr. Kisin did not specifically state the cause of Clark’s mental deficiencies, Dr. Kisin’s

testimony that Clark operated at a “dull normal” or “borderline retarded” level described the effects

of Clark’s mental deficiencies. Under such circumstances, we cannot say that the state court’s

decision that such evidence would have been “merely cumulative” is objectively unreasonable. See

Williams, 529 U.S. at 413. 

In cases such as Hill, 400 F.3d 308 (6th Cir. 2005), and Smith v. Mitchell, 348 F.3d 177 (6th

Cir. 2003), this court has reached similar conclusions. In Hill, this court held that a defendant was

not prejudiced by his counsel’s retention of a psychologist, Dr. Friedman, one day before the

mitigation hearing because “the mitigation theory that the psychologist did present . . . did not differ

in material ways” from the new evidence that the defendant sought to introduce. 400 F.3d at 311.

Dr. Friedman testified at Hill’s mitigation hearing that Hill was addicted to cocaine, that intoxication

affected Hill’s actions at the time of the murder, and that many crack addicts who consume large

amounts of cocaine may enter a mental state called cocaine psychosis in which they become

irrational, violent, and aggressive. Id. at 312. In his petition for post-conviction relief, Hill

presented the affidavits of Dr. Julia Hawgood, a psychiatrist, and Dr. Gary Sales, a psychologist, to

demonstrate how a properly prepared expert could have (and should have) testified. Id. at 316. This

court, however, determined that Hill could not establish prejudice because the affidavits of Dr. Sales

and Dr. Hawgood were not materially different from the testimony introduced by Dr. Friedman. Id. at 317-18. The court reached this conclusion despite the fact that Dr. Friedman’s testimony was

“more abbreviated” than Dr. Sales’ and that Dr. Hawgood’s affidavit provided “more information”

than what had been presented by Dr. Friedman. Id. at 317.

This case is similar in many ways to Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003), in

which we rejected a claim similar to Clark’s. In Smith a clinical psychologist, Dr. Schmidtgoessling,

had testified at mitigation regarding Smith’s developmental history, his extensive history of

substance abuse, and his “low average to borderline range of intellectual functioning.” Id. at 192.

In support of his application for post-conviction relief, Smith offered the affidavits of three mental

health experts as evidence of Smith’s disadvantaged childhood, of his borderline retarded range I.Q.,

and that he suffered from a diffuse organic brain impairment that was present at the time of the

crime. Id. at 196-98. Unsuccessful in state post-conviction proceedings and in the federal district

court on habeas, Smith appealed to this court. This court rejected a claim that Smith’s counsel had

been ineffective for failing to produce additional mitigating evidence. We rejected Smith’s claim

because not presenting the additional evidence was neither ineffective nor prejudicial under

Strickland—all of this evidence had been presented at mitigation. Id. at 200. We explained that

“the only allegedly new mitigating evidence that Smith presents is that he suffers from organic brain

damage.” Id. at 201. The post-trial evidence, however, boiled down to testimony that Smith had “mild diffuse cerebral dysfunction.” Id. at 202. Similarly, in the case at bar the evidence from Dr.

Gelbort was limited to a brief statement that Clark “exhibits an Organic Brain Syndrome (OBS) at

the time of testing” (emphasis added), accompanied by the opinion that the condition “likely was

congenital and exacerbated by” events occurring after the crime. While the Gelbort report focuses

primarily on Clark’s deteriorated mental health at the time of the confession and at the time of trial,

the report does state conclusorily at two points that “the patient’s behavior has . . . been affected by

the Organic Brain Syndrome/cognitive dysfunction” and “the data show that there were significant
No. 01-4210 Clark v. Mitchell Page 15

cognitive deficits which would have been caused by other etiologies [than hypoxia] and which

would have been present at the time of the criminal act.” As in Smith, “that evidence is not

compelling . . . because it is not conclusive.” 348 F.3d at 201-02. Also as in Smith, the evidence

is not sufficient to support the related argument that the evidence showed that Clark’s trial counsel

should have obtained a neurological examination. The Gelbort report, after all, stated specifically

that “even a psychologist not trained in neuropsychology . . . could and likely would overlook the

deficits.” The Smith case thus lends further support to our conclusion that the reasoning of the Ohio

Court of Appeals did not unreasonably apply Supreme Court precedent in rejecting Clark’s

ineffective assistance of counsel claim.

The Supreme Court’s recent decision in Rompilla v. Beard, 125 S.Ct. 2456 (2005), does not

require a different result. In Rompilla, the Supreme Court granted the petitioner’s motion for habeas

relief after finding the petitioner’s counsel ineffective for failing to find mitigating evidence. In

particular, the Supreme Court held that “even when a capital defendant’s family members and the

defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to

make reasonable efforts to obtain and review material that counsel knows the prosecution will

probably rely on as evidence of aggravation at the sentencing phase of trial.” Id. at 2460. The

holding of Rompilla, however, simply does not apply to the present case. In Rompilla, the Court

found Rompilla’s counsel ineffective for failing to review a file containing information about

Rompilla’s past convictions, which the defense knew the prosecutor intended to rely upon at trial.

The Supreme Court found one point to be “clear and dispositive: the lawyers were deficient in

failing to examine the court file on Rompilla’s prior conviction.” Id. at 2463. Numerous times

throughout the Rompilla opinion, the Court noted that its holding is based on the “notion that

defense counsel must obtain [available] information that the State has and will use against the

defendant.” Id. at 2465. In this case, there was nothing so obvious as the prosecutor’s intended use

of the file at issue in Rompilla to put Clark’s defense counsel on notice that there was additional

mitigating evidence to be reviewed or discovered. 

Furthermore, the presence of prejudice from the lawyer’s failure to review the file in

Rompilla was so overwhelming that the state did not even contest prejudice. Id. at 2468-69. The

evidence of Clark’s organic brain disorder is not even close in scope or nature to what new

mitigating evidence counsel in Rompilla would have discovered had they explored leads found in

the file containing information about Rompilla’s prior convictions. In Rompilla, defense counsel

failed to discover not only evidence that Rompilla suffered from an organic brain disorder, but also

evidence that Rompilla was the child of severe alcoholics, that Rompilla had frequently witnessed

his father beating his mother, that on one occasion Rompilla’s mother stabbed his father, that

Rompilla was beaten when he was young, that Rompilla’s father locked him in a small wire mesh

dog pen filled with excrement, that Rompilla was raised in a house with no heat or plumbing, and

that Rompilla attended school in rags. While Clark also suffered from a disadvantaged childhood,

evidence of Clark’s traumatic childhood was introduced at the mitigation stage of his hearing, unlike

in Rompilla. The failure of Rompilla’s counsel to discover an abundance of additional mitigating

evidence relating to Rompilla’s childhood, in addition to Rompilla’s organic brain disorder, makes

Rompilla clearly distinguishable from the present case.

Finally, our court’s recent decision in Harries v. Bell, Nos. 02-6286, 02-6334, 2005 WL

1796224 (6th Cir. July 28, 2005), is also distinguishable. In Harries we affirmed the grant of habeas

corpus on the basis of ineffective assistance of counsel at the mitigation stage, where 

Counsel limited their investigation to contacting by telephone Harries’s mother and

brother, sending requests for information to some of the institutions in which Harries

had been confined, and interviewing Harries, Harries’s co-defendant, and two state

witnesses. Although counsel requested two court-ordered competency evaluations,

they declined to seek the assistance of a mental health expert or conduct a thorough
No. 01-4210 Clark v. Mitchell Page 16

investigation of Harries’s mental health, even after Harries’s mother alerted them

that Harries suffered from mental illness. Nor did counsel adequately investigate

Harries’s family background, despite indications of Harries’s troubled childhood.

Id. at *5. This contrasts starkly with the efforts of Clark’s counsel, who elicited testimony of a

mental health expert, including extensive testimony regarding Clark’s troubled childhood. In

Harries the showing of prejudice was also far stronger than in Clark’s case. Evidence that Harries’s

counsel did not put before the jury included not only damage to the frontal lobe of Harries’s brain

resulting from childhood blows, but also extensive evidence of his traumatic childhood, including

the significant physical abuse Harries suffered at the hands of his mother, stepfather, and

grandmother, and exposure to remarkable family violence. Id. at *6. The scope and depth of the

never-presented mitigation evidence in Harries was extraordinary; in Clark’s case it was minimal.

III. Conclusion

The state court was reasonable in determining that counsel’s representation was not deficient

at Clark’s suppression hearing, trial, or mitigation hearing. The state court was also reasonable in

determining that Clark failed to demonstrate that he suffered prejudice as a result of his counsel’s

alleged deficiencies at any stage of the proceedings. We accordingly AFFIRM the district court’s

judgment denying Clark’s petition for a writ of habeas corpus.
No. 01-4210 Clark v. Mitchell Page 17

________________

DISSENT ________________

MERRITT, Circuit Judge, dissenting. Clark’s post-conviction counsel in this case has

developed extensive evidence of congenital organic brain damage and has shown that effective trial

counsel would have investigated and developed such evidence for submission to the jury at the

mitigation phase of the case. Such evidence would have given Clark’s counsel a good basis for

arguing in favor of reduced culpability. Despite having notice that Clark suffered from brain

damage, his trial counsel failed to have him examined by an expert with training in neuropsychology

and failed to present any evidence of this congenital brain defect to the sentencing jury. Exactly the

same basic pattern occurred in Rompilla v. Beard, 125 S.Ct. 2456 (Jun. 20, 2005), in which the

Supreme Court held that a failure to investigate and consequential failure to develop evidence of

organic brain damage constituted ineffective assistance of counsel under the Sixth Amendment. The

Ohio court’s decision and our Court’s decision are irreconcilable with Rompilla and other Supreme

Court precedent concerning the duty of counsel to investigate mitigating evidence in capital cases.

Clark’s primary contention concerning the sentencing phase of his trial is that trial counsel

was constitutionally ineffective in its failure to investigate and present evidence of Clark’s organic

brain damage. In support of this claim, Clark included in his habeas petition an affidavit and report

by a neuropsychologist. Dr. Michael Gelbort examined Clark in June of 1996. Dr. Gelbort found

that “[t]he patient exhibits an Organic Brain Syndrome (OBS).” Gelbort concluded that the

condition was likely congenital and exacerbated by drug abuse and the “asphyxia/hypoxic event or

brain injury” that occurred when Clark attempted suicide. Gelbort additionally found that the

condition was present at the time of the criminal act and that this congenital condition significantly

contributed to Clark’s neuropsychological dysfunction. 

The state courts found that the failure to investigate Clark’s neurological deficiencies and

present evidence similar to that contained in Dr. Gelbort’s report failed to satisfy either the

deficiency or the prejudice prong of Strickland. The District Court denied Clark’s habeas petition

on this ground finding the Ohio courts’ reasoning persuasive. This Court could affirm the District

Court’s decision only by giving short shrift to the record and ignoring the clear impact of important

recent Supreme Court opinions concerning the duty of an attorney in a capital case to fully

investigate evidence in mitigation. See Rompilla, 125 S.Ct. at 2462; Wiggins v. Smith, 539 U.S. 510

(2003). Even when applying the deferential standard mandated by 28 U.S.C. 2254(d)(1), the Ohio

state courts treatment of Clark’s Sixth Amendment claim involved an unreasonable application of

clearly established Federal law as determined by the Supreme Court. See Williams v. Taylor, 529

U.S. 362, 413 (2000). 

A. Deficiency 

Both the state post-conviction trial court and the Ohio Court of Appeals found that Clark’s

counsel was not deficient in its failure to further investigate Clark’s brain damage. State v. Clark, 1998 WL 484119 at *6-*8 (Ohio Ct. App. 1998). The only stated reason to support this conclusion,

a reason reported by our Court, was the fact that his medical condition was not apparent to those

untrained in neuropsychology. Id. Both courts point to a statement in Dr. Gelbort’s report that

seems to support their view: “It should . . . be noted that the patient’s presentation is one where the

lay person, and even a psychologist not trained in neuropsychology . . . could and likely would

overlook the deficits.” Id. at *6, *7. Drawing on that statement, the courts suggest that Clark’s

attorneys could not have been deficient in failing to investigate a condition that was undetectable

by a lay lawyer. 
No. 01-4210 Clark v. Mitchell Page 18

1

The guidelines for capital defense work promulgated by the American Bar Association (ABA) undermine the

Ohio courts’ suggestion that the difficulty of diagnosis would be a basis for failing to investigate neurological

deficiencies: “Counsel’s own observations of the client’s mental status, while necessary, can hardly be expected to be

sufficient to detect the array of conditions . . . that could be of critical importance.” ABA Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases § 4.1 Commentary (rev. ed. 2003), reprinted

in 31 Hofstra L. Rev. 913, 956-57 (2003).

2

Prior to the trial, Clark challenged the admissibility of his confession on the grounds that he was incapable

of voluntarily, intelligently, and knowingly confessing to the crime. During a pre-trial hearing, Clark’s counsel

introduced the testimony of Dr. Emanuel Tanay, a psychiatrist. While Dr. Tanay did not examine Clark personally, he

did review his medical records. Based on this investigation, Dr. Tanay testified that Clark had significant brain damage.

As the trial court summarized: “Essentially, Dr. Tanay concluded that there was a reasonable medical certainty that Clark

suffered both acute and chronic brain damage . . . .” J.A. 273. 

Yet, this finding on deficiency is patently unreasonable. First, the courts misread Dr.

Gelbort’s report concerning whether there should have been further investigation of Clark’s mental

deficiencies. While Dr. Gelbort’s report does indicate that Clark’s brain damage was not readily

apparent to the untrained eye, it goes on to highlight that Clark’s patient history and test data clearly

demonstrated deficiencies and indicated the need for neuropsychological testing.1 Below is Dr.

Gelbort’s statement in its proper context. The language ignored by the state courts and our court is

underlined:

It should also be noted that the patient’s presentation is one where the lay person, and

even a psychologist not trained in neuropsychology (or one who does not have the

benefit of the test data) could and likely would overlook the deficits. The analogous

situation in physical medicine would be the inability of a layperson, or even a

physician, to diagnose a cancer from simple external observation and without the

benefit of radiological test data. Despite the neuropsychological deficits not having

an overt, outwardly observable physical manifestation, they are real, readily

observable in the test data, and the patient’s history is clearly indicative of their

presence. Review of the patient’s history obviously signal (and did signal at the time

of the original trial) the presence of impaired functioning and should have lead to

neuropsychological testing and investigation at that time.

J.A. 269. 

More importantly, Clark’s counsel had notice that Clark had suffered brain damage and still

failed to conduct further investigation. An expert witness in a pre-trial hearing described Clark as

suffering from both chronic and acute brain damage.2

 The state court’s rationale that the

deficiencies were not overt is simply nonsensical in light of the fact that the counsel knew (or should

have known) of Clark’s condition. Yet, Clark’s counsel failed to either investigate this

neuropsychological condition or present evidence concerning it during the mitigation phase. 

One of the essential questions in this type of ineffective assistance of counsel case is: How

strong is the lead or the prompting evidence? Should the lead cause trial counsel to investigate

organic brain damage that may seriously affect a juror’s view of the defendant’s culpability? With

regard to counsel deficiency, the instant case is significantly stronger than the Rompilla case. 

In Rompilla, the Supreme Court held that a Pennsylvania petitioner’s trial counsel was

deficient in its failure to discover mitigating evidence, including evidence that Rompilla suffered

from organic brain damage. 125 S.Ct. at 2464-69. Rompilla’s counsel, while on notice that the

Commonwealth would attempt to prove the defendant’s history of violence by introducing his prior

conviction for rape and assault, failed to examine the record of that conviction. Id. at 2464. The

Court further highlighted that “[i]f the defense lawyers had looked in the file on Rompilla’s prior
No. 01-4210 Clark v. Mitchell Page 19

3

In Wiggins, the Court found that habeas should issue where the petitioner’s trial counsel did not adequately

investigate his client’s life history. Rather than conducting an investigation, the counsel in Wiggins merely relied on the

presentence investigation report and department of social services records. In addition to falling below the standard local

practice in defending Maryland capital cases, the Court wrote that the attorney’s “conduct similarly fell short of the

standards for capital defense work articulated by the American Bar Association–standards to which we long have

referred as ‘guides to determining what is reasonable.’” Id. (citing Strickland, 466 U.S. at 688; Williams v. Taylor, 529

U.S. at 396); see also Rompilla, 125 S.Ct. at 2465-66 & nn. 6-7; Florida v. Nixon, 125 S. Ct. 551, 562 (Dec. 13, 2004)

(referencing the ABA Guidelines in a habeas challenge based on ineffective assistance of counsel). 

conviction, it is uncontested they would have found a range of mitigation leads that no other source

had opened up.” Id. at 2468. Importantly, while the defense lawyers interviewed Rompilla and

members of his family and consulted with three different mental health workers, they did not

discover any evidence of mental deficiency for use during the sentencing phase. Id. at 2462-63. Yet

when the post-conviction attorneys examined Rompilla’s prison records, they “found plenty of ‘red

flags’ pointing up a need to test further.” Following these leads would have brought important

mitigating evidence to light: 

When they tested, they found that Rompilla “suffers from organic brain damage, an

extreme mental disturbance significantly impairing several of his cognitive

functions.” . . . “Rompilla’s capacity to appreciate the criminality of his conduct or

to conform his conduct to the law was substantially impaired at the time of the

offense.” 

125 S.Ct. at 2469 (emphasis added). 

Contrary to our Court’s conclusory opinion that “Rompilla simply does not apply to the

present case,” Clark’s case is much stronger than Rompilla, where it took many more steps to get

from the lead to the final medical diagnosis of brain damage. The Rompilla lawyers were deficient

for failing to examine the record of a prior criminal proceeding which had attached to the prior

conviction some later imprisonment records. These imprisonment records would have alerted them

to the need for further medical testing, which would have revealed organic brain damage. The

imprisonment examination did not itself show organic brain damage. In Rompilla, the lead would

have required the reading of a prior criminal proceeding and then some old prison records in the

same file and then make an inference of brain damage leading to further testing. The dissent in

Rompilla points out the multiple steps counsel would have had to take to get to the finding of brain

damage. Here, Clark’s counsel would not have been required to dig through an old transcript or look

for tell-tale signs that further testing was needed. Instead, trial counsel merely needed to investigate

further a known neurological defect, a defect about which Clark’s pre-trial hearing expert witness

had already testified. This failure to follow this important lead and failure to investigate this obvious

source of mitigating evidence falls far below the level of reasonable performance. 

Investigating a known mental defect “is not simply a matter of common sense.” Rompilla, 125 S.Ct. at 2465. In Wiggins v. Smith, 539 U.S. 510, 524 (2003), the Supreme Court embraced the

standards for capital defense work promulgated by the American Bar Association (ABA) as a

relevant standard by which to judge the reasonableness of counsel’s performance.3

 The 1989 ABA

guidelines direct counsel in capital cases to “collect information relevant to the sentencing phase of

trial including, but not limited to: medical history (mental and physical illness or injury, alcohol and

drug use, birth trauma and developmental delays); educational history (achievement, performance

and behavior) special educational needs (including cognitive limitations and learning disabilities)

. . . .” ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
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4

See also Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003) (“Although the instant case was tried before

the 1989 ABA edition of the standards was published, the standards merely represent a codification of longstanding,

common-sense principles of representation understood by diligent, competent counsel in death penalty cases.”). 

§ 11.4.1(C), p. 93 (1989).4 The current guidelines are even clearer that it is the duty of capital

defense counsel to investigate “neurological damage.” ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases § 10.7 Commentary (rev. ed. 2003),

reprinted in 31 Hofstra L. Rev. 913, 1022 (2003). This collection of professional norms highlights

the importance of mental health investigation in capital cases: 

In particular, mental health experts are essential to defending capital cases.

Neurological and psychiatric impairment . . . are common among persons convicted

of violent offenses on death row. Evidence concerning the defendant’s mental status

is relevant to numerous issues that arise at various junctures during the proceedings

. . . . [T]he defendant’s psychological and social history and his emotional and

mental health are often of vital importance to the jury’s decision at the punishment

phase.” 

Id. § 4.1 Commentary, reprinted in 31 Hofstra L. Rev. 913, 956. Clark’s counsel would be found

deficient in failing to investigate his mental health history even had counsel not been made aware

of Clark’s condition by his pre-trial expert. With notice of Clark’s brain damage, counsel’s failure

to conduct further investigation is all the more outrageous. Our Court’s opinion to the contrary

simply refuses to apply ABA Guidelines and the Rompilla case.

B. Prejudice

Surprisingly, the Ohio courts also held that the failure of Clark’s trial counsel to present

evidence of organic brain damage and its effects did not prejudice Clark. The Ohio post-conviction

trial court and the Ohio Court of Appeals found that Dr. Gelbort’s testimony concerning Clark’s

congenital brain defects “would have been cumulative at best.” State v. Clark , 1998 WL 484119

at *8. The state court asserts that Gelbort’s report echoes the testimony of Dr. Hy Kisin, a clinical

psychologist who testified on Clark’s behalf during the sentencing phase of the trial. But, finding

Dr. Gelbort’s report to be cumulative flies in the face of logic, the record itself, as well as Supreme

Court precedent. 

Seemingly, by using the term “cumulative,” the state court was suggesting that similar expert

testimony along the lines of Dr. Gelbort’s report would have been redundant or added little to no

new information to the record. When testimony or exhibits are found to constitute a “needless

presentation of cumulative evidence,” courts can generally refuse to admit the evidence. See Fed.

R. Evid. 403. As one of our sister circuits has written, “[e]vidence is ‘cumulative’ when it adds very

little to the probative force of the other evidence in the case, so that if it were admitted its

contribution to the determination of truth would be outweighed by its contribution to the length of

trial, with all the potential for confusion, as well as prejudice to other litigants, who must wait longer

for their trial, that a long trial creates.” United States v. Kizeart 102 F.3d 320, 325 (7th Cir. 1996);

see also, United States v. Ives, 609 F.2d 930 (9th Cir. 1979) (“Cumulative evidence replicates other

admitted evidence.”). But, there is next to nothing that was presented to the sentencing jury in

mitigation that even touches on Clark’s mental deficiencies. 

During the direct examination, Kisin testified concerning Clark’s drug abuse, Trial Tr. at 89-

90, 93-96; the death of Clark’s father, id. at 91-93; the day of the murder and Clark’s lack of intent

to kill, id. at 97-103; Clark’s remorse for the victim’s death and Clark’s suicide attempt, id. at 103-

05; Clark’s capacity for rehabilitation, id. at 105-06; and the fact that Clark’s mother and children

did not want him to be executed, id. at 107-08. There was absolutely no testimony concerning
No. 01-4210 Clark v. Mitchell Page 21

Clark’s organic brain syndrome or the deleterious effect of this mental defect on his functional

capacity. The entire extent of Kisin’s testimony concerning Clark’s mental abilities is as follows:

Q. Now, Doctor, as a result again, every question is prefaced as a result of your

interviews and discussions that you had with Joe and other individuals that

you indicated, did you make any observations with regard to his level of

intelligence?

A. Yes.

Q. And what was that observation?

A. That he, at best, operates on a dull normal level of intelligence and at worst

in a borderline retarded way.

Id. at 96. The notion that Dr. Gelbort’s testimony concerning congenital brain damage would add

nothing to this isolated statement concerning intelligence is simply absurd on its face. 

Clark’s trial counsel introduced absolutely no medical evidence concerning his mental

deficiencies. Counsel did not produce evidence of Clark’s patient history or intelligence test data.

Nor did counsel investigate and present evidence of the impact that drug abuse would have on

Clark’s congenital condition. There was absolutely no explanation of Clark’s cognitive limitations.

Dr. Gelbort’s report indicates that Clark “is generally below what is considered to be the functional

level on academic tests, as well as being functionally illiterate,” and that “those portions [of Clark’s

memory] which support higher cognitive abilities such as abstract reasoning and complex problem

solving are impaired.” J.A. 267-68. Gelbort further explains that his “grossly impaired” memory

functions could not support “higher cognitive functions such as being able to draw from his past

experience and upon previously learned lessons.” J.A. 268. Gelbort’s report also indicated that

Clark’s cognitive limitations were exacerbated in new, complex or confusing situations:

[W]ith more demanding cognitive tasks the patient was observed to have errors of

impulsivity or to act in a disinhibited fashion. This is to say that, when participating

in a complex ambiguous, confusing or rapidly evolving situation, Mr. Clark is likely

to produce an impulsive or disinhibited type of response. Problem solving in

new/novel situations or conditions was also moderately impaired with adequate

performance seen on easier tasks but the patient being cognitively overwhelmed on

the more complex measures.

Id.

Yet the state court maintains, and our Court appears to concur, that all of this is nothing new,

because the psychologist had already told the jury that Clark “at best, operates on a dull normal level

of intelligence and at worst in a borderline retarded way.” The court of appeals reads the incredibly

detailed observations of Clark by Dr. Gelbort to be a cumulative reiteration of this one sentence that

was presented in the mitigation phase of the case. The record makes clear that there was no serious

attempt by trial counsel to investigate Clark’s mental deficiencies or cognitive limitations. As in

Rompilla, “[t]his evidence adds up to a mitigation case that bears no relation” to that put before the

sentencing jury. Rompilla, 125 S.Ct. at 2469. Courts sometimes decide that they want to reach a

particular result, come what may, and simply forget about important facts and inconsistent legal

principles. This form of “cognitive dissonance” seems to be what has happened in this case.

Clark was plainly prejudiced by his counsel’s failure to follow up on red flags that appeared

during the pre-trial hearing and that should have been discovered by any capital counsel adhering

to the prevailing professional norms. The evidence of organic brain damage and cognitive

limitations is nearly identical to the evidence that Rompilla’s counsel would have discovered if they

had followed up on the leads presented to them in their client’s prison records, and the Supreme
No. 01-4210 Clark v. Mitchell Page 22

Court found that Rompilla was prejudiced by his counsel’s failure to investigate and discover this

evidence. Rompilla, 125 S.Ct. at 2468-69. The readily available but undiscovered or ignored

“mitigating evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of [Clark’s]

moral culpability.” Wiggins v. Smith, 539 U.S. at 538 (quoting Williams v. Taylor, 529 U.S. at 398).

This Court should therefore reverse the decision of the District Court. The State of Ohio should

either retry the case on penalty or stipulate to a life sentence.