Gregory Thompson v. RICKY BELL, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0195P (6th Cir.)
File Name: 04a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GREGORY THOMPSON,
Petitioner-Appellant,
v.
RICKY BELL, Warden,
Respondent-Appellee.
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No. 00-5516
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 98-00006—R. Allan Edgar, Chief District Judge.
Decided and Filed: June 23, 2004
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Dana C. Hansen Chavis, FEDERAL
DEFENDER SERVICES, Knoxville, Tennessee, for
Appellant. Jennifer L. Smith, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL
DEFENDER SERVICES, Knoxville, Tennessee, for
Appellant. Jennifer L. Smith, OFFICE OF THE
2 Thompson v. Bell No. 00-5516
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee.
MOORE, J., delivered the opinion of the court, in which
CLAY, J., joined. SUHRHEINRICH, J. (pp. 7-105),
delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Eighteen
months ago, this panel in a split decision producing three
different opinions affirmed the decision of the district court
granting summary judgment to respondent in this habeas
corpus action. Judge Suhrheinrich later conducted sua sponte
a second, thorough review of the record and came to the
conclusion that the facts as adduced in deposition testimony
not part of the district court record supported the granting of
the writ. See infra (Suhrheinrich, J., concurring). Upon
reviewing the deposition of Dr. Faye Sultan, and investigating
the procedural complications of this case, it is clear that this
extremely probative testimony requires that we vacate the
district court’s grant of summary judgment in favor of
respondent.
Judge Suhrheinrich summarizes most effectively the Sultan
deposition and its value in assessing Gregory Thompson’s
mental state at the time of the crime. Where his opinion goes
too far is in its accusations of fraud on the court; while his
explanation for the omission of the Sultan deposition from the
official record before the court is possible in the narrowest
sense, the power of this court should not be used to make
such accusations without more definite proof than the factual
record of this case reveals.

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No. 00-5516 Thompson v. Bell 3
Dr. Sultan’s deposition was taken by trial counsel for
respondent, but was not included with the evidence submitted
as part of Bell’s motion for summary judgment. Slightly
more than one year later, contemporaneous with the
preparation of this appeal, appellate habeas counsel made a
Rule 60(b) motion in the district court asking to include the
Sultan deposition as part of the record. At the same time,
Thompson’s counsel submitted that deposition to this court as
part of his motion to hold this appeal in abeyance during the
pendency of the Rule 60(b) motion. Applying the principle
of Occam’s razor, we conclude that more than likely, a
genuine mistake was made, one which was not realized until
a different attorney looked at the case. To conclude otherwise
is to disbelieve sworn testimony by an officer of the court,
and to assume that habeas counsel conspired to conceal
evidence beneficial to their client, for no discernible reason
— evidence loses power, rather than gains it, by being
revealed on the “eve of execution” in a second habeas
petition. Reading Judge Suhrheinrich’s opinion, one might
conclude that this court had only recently unearthed the
Sultan deposition, when in fact it was submitted to the panel
prior to oral argument as part of the abeyance motion.
We did not consider it, however, in rendering our decision,
believing ourselves to be bound by the record created in the
district court. Upon reflection, and after reviewing Judge
Suhrheinrich’s forceful assessment of the probity of the
Sultan deposition, we believe it is appropriate to use our
inherent equitable powers to expand the record on appeal to
consider the deposition. Ordinarily, a court of appeals should
only consider evidence made part of the district court record.
Where through error or accident material matters are omitted
or misstated, Federal Rule of Appellate Procedure 10(e)
allows correction of the appellate record to include the
corrected material. See Inland Bulk Transfer Co. v. Cummins
Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003). While
some circuit courts have held that Rule 10(e) allows the
inclusion of material the district court did not consider, see In
re Capital Cities/ABC, Inc.’s Appl. for Access to Sealed Trs.,
4 Thompson v. Bell No. 00-5516
913 F.2d 89, 97 (3d Cir. 1990) (citing inconsistent circuit
precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir.
1980), the rule in this circuit has consistently been that Rule
10(e) does not allow such inclusion. See, e.g., Inland Bulk,
332 F.3d at 1012; S & E Shipping Corp. v. Chesapeake &
Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir. 1982). We adhere
to our previous interpretation that Rule 10(e) does not allow
inclusion in the appellate record of material that the district
court did not consider.
Although Rule 10(e) is thus unavailable, we recognize that
a number of our sister circuits have held that the courts of
appeals have the inherent equitable power to supplement the
record on appeal, where the interests of justice require. See
United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir.
2000) (“[U]nder some circumstances, we have an inherent
equitable power to supplement the record on appeal.
However, we conclude the present case” does not present
those circumstances.); Ross v. Kemp, 785 F.2d 1467, 1474
(11th Cir. 1986) (relying on Dickerson, infra, and exploring
circumstances under which exercise of that power is
appropriate); Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th
Cir. 1984) (“Although a court of appeals will not ordinarily
enlarge the record to include material not before the district
court, it is clear that the authority to do so exists.”); Dickerson
v. Alabama, 667 F.2d 1364, 1368 (11th Cir. 1982) (relying on
court’s inherent equitable powers to supplement the record in
habeas case); Turk v. United States, 429 F.2d 1327, 1329 (8th
Cir. 1970) (“[I]n the interest of justice, this court may order
the record enlarged.”); Gatewood v. United States, 209 F.2d
789, 792-93 & n.5 (D.C. Cir. 1953) (sua sponte ordering
preparation of transcript for record “in the interest of both
parties, and of the due administration of justice”); see also
Charles Alan Wright et al., Federal Practice & Procedure
§ 3956.4, at 349-51 (3d ed. 1999 & Supp. 2003) (“In special
circumstances, however, a court of appeals may permit
supplementation of the record to add material not presented
to the district court.”); 20 Moore’s Federal Practice,
§ 310.10[5][f], at 310-19 (3d ed. 2000) (“In extraordinary

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No. 00-5516 Thompson v. Bell 5
situations, the circuit court may consider material not
presented to the district court when it believes the interests of
justice are at stake.”). Although recent Sixth Circuit cases
indicate that we have not yet “embraced the notion that the
record can be supplemented under an appellate court’s
equitable authority,” see Inland Bulk, 332 F.3d at 1012, in at
least one earlier state habeas case we have so supplemented
the record, citing to Dickerson, 667 F.2d at 1367. See
Prather v. Rees, 822 F.2d 1418, 1420 n.1 (6th Cir. 1987)
(“Although the parties did not provide the court with copies
of the state court briefs, this court may supplement the record
when necessary.”); see also Adams v. Holland, 330 F.3d 398,
405-06 (6th Cir. 2003) (recognizing exception to Rule 10(e)
in habeas cases: “where substantial portions of [the state trial
transcript] were omitted before the District Court, a habeas
case should be remanded to the District Court for
consideration in light of the full record.”). Because the
evidence here was apparently negligently omitted, because
the evidence is so probative of Thompson’s mental state at the
time of the crime, because there is no surprise to respondent
as it was his counsel who took the deposition, and because
this is a capital case, we believe that the circumstances of this
case merit consideration of the Sultan deposition pursuant to
our equitable power to supplement the record on appeal,
despite the omission of the deposition from the District Court
record. We therefore vacate the grant of summary judgment,
and remand the case to the District Court for a full evidentiary
hearing.
It remains to be explained the source of our power to so
reconsider our earlier opinion, as we do not join in Judge
Suhrheinrich’s allegation of fraud on the court. Instead, we
rely on our inherent power to reconsider our opinion prior to
the issuance of the mandate, which has not yet issued in this
case. Although a court of appeals should withdraw an
already-issued mandate only to prevent a miscarriage of
justice, see Calderon v. Thompson, 523 U.S. 538 (1998), at
least two of our sister circuits have reconsidered opinions
where the mandate has not yet issued. See Wilson v. Ozmint,
6 Thompson v. Bell No. 00-5516
357 F.3d 461, 464 (4th Cir. 2004) (“The mandate of the court
has not yet issued in this case, and, therefore, we may, at our
discretion, ‘amend what we previously decided . . . .’”
(quoting Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.
1980)); First Gib. Bank v. Morales, 42 F.3d 895, 898 (5th Cir.
1995) (relying on Alphin, 552 F.2d at 1035, to reconsider
decision where mandate had not yet issued). We therefore
rely on our inherent power over a case until our mandate
issues in reconsidering our opinion in this case.
The judgment of the district court is therefore VACATED,
and the case is REMANDED for further proceedings not
inconsistent with this opinion. Thompson’s execution is also
STAYED for 180 days to permit the district court to proceed.

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No. 00-5516 Thompson v. Bell 7
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
SUHRHEINRICH, Circuit Judge, concurring in part and
dissenting in part.
I. Introduction
Petitioner-Appellant Gregory Thompson (“Thompson” or
“Petitioner”) was convicted of first degree murder and
sentenced to death by the State of Tennessee. In a previous
decision, this Court affirmed the district court’s denial of his
request for a writ of habeas corpus. See Thompson v. Bell,
315 F.3d 566 (6th Cir. 2003), cert. denied, 124 S. Ct. 804
(2003). The Supreme Court denied Thompson’s petition for
writ of certiorari. On February 25, 2004, the State of
Tennessee granted the State’s motion to set an execution date
and has ordered that the Warden of the Riverbend Maximum
Security Institution or his designee execute the sentence of
death on August 19, 2004, “unless otherwise ordered by this
Court or other appropriate authority.” This matter is now
before this Court on its own motion.
Essential to our conclusion that Thompson was not denied
effective assistance of counsel due to counsel’s failure to
introduce evidence that he suffered from schizophrenia at the
time of the offense was our finding that Thompson “has never
submitted to any court any proof that he suffered from severe
mental illness at the time of the crime.” Thompson, 315 F.3d
at 590. Subsequent to the issuance of our decision on January
9, 2003, information has come to the attention of the Court
which requires us to determine whether our decision to affirm
the district court’s denial of Thompson’s petition for writ of
habeas corpus relief from his death sentence was improvident.
While reviewing various Sixth Circuit death penalty cases
in preparation of a law review article on the subject, an intern
8 Thompson v. Bell No. 00-5516
1The Tennessee Code Annotated, § 39-13-204(j) lists as a mitigating
factor:
(8) The capac ity of the defendant to app reciate the wrongfulness
of the defendant’s conduct or to conform the defendant’s
conduct to the requirements of the law was substantially
impaired as a result of a mental disease or defect or intoxication
which was insufficient to establish a defense to the crime but
which substantially affect the defendant’s judgment[.]
Tenn. Cod e Ann. § 39-13-304 (j)(8) (2003).
in my chambers, who also happens to be a board-certified
psychiatrist, expressed concern as to why Thompson’s post-
conviction expert, Gillian Blair, Ph.D., and Thompson’s
habeas experts, Barry Crown, Ph.D. and Faye Sultan, Ph.D.,
had not directly addressed the question as to whether
Thompson did or did not exhibit symptoms of a major mental
illness at the time of the crime or sentencing, and, if he did,
whether the symptoms were sufficient at that point to support
a diagnosis of mental illness which should have been
presented as mitigating evidence at the sentencing hearing.
I then conducted my own review of the entire certified record,
in addition to my prior review of the joint appendix. As a
result of my review of the entire certified record, I feel that it
is incumbent upon me, as a judicial officer sworn to uphold
the Constitution, and as authoring judge of the initial opinion,
to reverse that ruling and issue this opinion. Although I am
now merely a concurring/dissenting judge in this matter, I
wish it to be known that the initiative for this decision came
from my chambers. The majority’s ruling is based upon their
review of my draft opinion, prepared after my discovery, and
the hundreds of hours of work that followed, reviewing the
entire record, researching the law, and drafting this opinion.
The question thus is whether our prior ruling was mistaken,
because there is, and was, in fact available proof that
Thompson was suffering from a serious mental disease or
defect at the time of the 1985 offense which would have
substantially impaired his ability to conform his conduct to
the requirements of law.1 Also at issue, and integral to the

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No. 00-5516 Thompson v. Bell 9
primary question, is whether the federal habeas counsel in this
case committed fraud on the court by intentionally or
recklessly failing to present critical evidence on the question,
of which they had knowledge, to the district court. For the
reasons that follow, we vacate our prior ruling and
conditionally grant the writ.
II. Background
The facts are set forth in great detail in our prior opinion.
See id. However, because the present inquiry involves
voluminous facts and procedural history not presented to us
on appeal as part of the joint appendix, it is necessary to
revisit much of the case, and to review and present the new
materials. To the extent possible, I have attempted to present
the relevant facts in chronological and procedural order.
A. State Court Proceedings
1. Trial Court
Brenda Lane was murdered on January 1, 1985. Thompson
was apprehended the next day. On January 29, 1985, the trial
court appointed counsel. On February 26, 1985, less than two
months after the murder, counsel filed a notice of insanity
defense and also requested a mental or psychological
evaluation of Thompson to determine (1) whether Thompson
was competent to stand trial, and (2) his mental capacity at
the time of the crime. On March 25, 1985, less than three
months after the murder, trial counsel filed a supplementary
motion for a psychiatric examination and a neurological
examination to determine (1) whether Thompson was
competent to stand trial and assist counsel with his defense,
(2) whether Thompson was suffering from a mental illness on
the date of the offense, and (3) whether Thompson was in
need of hospitalization for further psychiatric treatment and
evaluation. The affidavit in support stated that Thompson had
previously suffered two concussions, one when he was
sixteen years old from a car accident, and the second while in
10 Thompson v. Bell No. 00-5516
the Navy, when he was beaten in the head with a hammer by
three fellow servicemen.
On March 28, 1985, less than three months from the date of
the offense, the trial court ordered that Thompson be referred
to the Multi-County Mental Health Center for a forensic
evaluation to determine (1) his competency to stand trial and
to assist in his own defense, and (2) his mental capacity at the
time of the crime. On April 4, 1985, the trial court entered
another order directing Thompson to undergo a forensic
evaluation at a state facility, Middle Tennessee Mental Health
Institute (“MTMHI”), for a maximum of thirty days. A team
of forensic psychologists at MTMHI evaluated Thompson
and found him to be competent.
Trial counsel questioned the state team’s impartiality and
requested funds to secure further psychiatric evaluations. On
July 29, 1985, the trial court granted counsel funds to hire an
independent psychiatrist. Instead, counsel used the funds to
hire Dr. Copple, a clinical psychologist. Trial counsel stated
that the effort to hire a psychiatrist “was not successful.” Id.
at 573. Also as part of their trial preparation, counsel traveled
to Thompson’s home town where they interviewed various
family members and acquaintances of Thompson.
Thompson did not present a defense at trial, and the jury
convicted him of the first degree murder of Brenda Lane. At
the sentencing phase, Thompson’s former girlfriend, Arlene
Cajulao, testified that she knew Thompson from 1980 until
June 1984. She described Thompson as caring and sensitive.
On cross-examination, she testified to incidents concerning
Thompson’s violent behavior while in the Navy.
Thompson’s sister, Nora Jean Walton, testified about his
activities in Georgia upon his return from Hawaii after his
discharge from the Navy. Dr. Copple also testified. He stated
that he spent roughly eight hours examining Thompson over
several sessions. Copple stated that during the first session,
he was basically looking at what things Thompson would be
capable of doing in a prison setting. Copple testified that, in

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No. 00-5516 Thompson v. Bell 11
his opinion, Thompson had an unusually strong need to
nurture other people that had impelled him to some unwise
actions. Copple felt that Thompson did not have an adult
anti-social personality disorder. On cross-examination
Copple stated that he did not think Thompson was suffering
from any mental illness.
The State presented in rebuttal the deposition testimony of
Dr. Robert Glenn Watson, who had participated in the staff
evaluation of Thompson at MTMHI. Watson found no
intellectual impairment. Watson also testified that they found
no real evidence of organicity or brain damage. Watson also
administered the Minnesota Multiphasic Inventory-II
(“MMPI”), but determined that the tests results reflected
malingering. Watson further stated that on May 24, 1985, at
a staff conference, based on all the data, the staff concluded
that:
[Thompson] exhibited none of the signs of an affective
illness. His judgment and insight are rather poor.
Psychological testing revealed him to be functioning in
the average range intellectually, to exhibit no signs of
organicity or brain damage on the Bender-Gestalt Test
and the Bender Interference Procedure. Personality
profiles revealed no evidence of a psychosis, but
indicated malingering in the mental illness direction.
(For example, the schizophrenic score was at T 120,
while clinical observations revealed no evidence of a
thought disorder.)
The staff at MTMHI diagnosed Thompson as Axis 1, Adult
Antisocial Behavior, 071.01. The forensic team therefore
concluded that Thompson was mentally competent to stand
trial and was not suffering from a mental disease or defect.
The jury imposed the death penalty at the conclusion of the
penalty phase, and the trial court entered judgment sentencing
Thompson to death by electrocution. Thompson thereafter
pursued his direct appeals to no avail.
12 Thompson v. Bell No. 00-5516
2. Post-Conviction
On October 16, 1990, Thompson filed a petition for post-
conviction relief, claiming in relevant part that trial counsel
failed to investigate adequately Thompson’s background and
personal and medical history for the existence of mitigating
evidence. See Thompson, 315 F.3d at 576. On February 1,
1991, post-conviction counsel filed an ex parte, sealed motion
seeking “funds to hire a licensed psychologist or psychiatrist
and an investigator to assist in the preparation of his case for
post-conviction relief.” Id. at 577. In support, counsel
attached the affidavit of Dr. Gillian Blair, a clinical
psychologist. Blair noted that Thompson’s post-incarceration
medical records indicated that Thompson had been variously
diagnosed as having bipolar affective disorder, schizo-
affective disorder, and schizophrenia, paranoid type, and was
taking Lithium, Haldol, and Cogentin. Id. Blair opined that
“[i]f Mr. Thompson is found to be suffering from
neurological or psychological impairment as described above,
it is likely that some degree of such impairment would have
existed at the time of the offense and would have been a
significant factor in determining whether or not Mr.
Thompson was able to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law
when he committed the homicide of which he stands
convicted.” Id. Blair indicated that Thompson needed a full
psychological evaluation. Id.
The state trial post-conviction court held an evidentiary
hearing on March 27 and March 29, 1995. At the hearing
Blair testified that she reviewed Thompson’s institutional
records, beginning with the 1985 MTMHI assessment. She
also interviewed Thompson in March and April 1992, and at
that time administered “a basic psychological battery of tests
with some additional . . . neuropsychological tests because of
the history of head injuries that Mr. Thompson had received
and that were well documented in his medical record.” Id. at
578-79. Blair then articulated the following opinion:

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No. 00-5516 Thompson v. Bell 13
The Riverbend medical record indicated that since 1985,
Mr. Thompson had shown a deteriorating mental status.
He had become psychotic. He had been treated with
anti-psychotic medication at that time. He was treated
with Haldol, Cogentin, and Lithium, and three different
treating physicians at that time: Dr. Dyner [sic], Dr.
Deal, and Dr. Humble had all over the years from 1985
to 1990 had diagnosed him as either having bipolar
disorder or a schizo affective disorder or schizophrenia.
They described his agitated behavior. They described his
hostility. They described his inappropriate affect, his
experience of auditory hallucinations, his delusions, his
paranoia, his thoughts of persecution. He had attempted
suicide of a couple of occasions. He had set fire to his
cell burning both his hands and his face. They had
certainly–two of those psychiatrists and maybe all three
of them had considered the possibility that he was
malingering, that he was faking mental illness and
throughout their Riverbend records, it was clear that
those psychiatrists had discounted the possibility of
malingering because they didn’t feel that it accounted for
all of the psychotic symptoms they saw in him.
Id. at 579.
Blair was also asked what other facts would be necessary
for her to develop an opinion as to Thompson’s condition at
the time of the offense. She stated that “the most important
thing that would be necessary would be a full history and full
medical records of Mr. Thompson prior to the commission of
the offense.” Id. She added that:
From the records I was able to review, it was clear that
the social history was very sketchy in terms of his remote
history, his childhood and his upbringing, and also
family history of mental illness. There seemed to be a
[sic] strong evidence to suggest that there was mental
illness in his family, probably in his father who
committed suicide and was known to be extremely
14 Thompson v. Bell No. 00-5516
2Blair stated that she ad ministered the following tests:
The tests that I administered in 1992 that directly addressed
whether there was psychosis or no t, I administered the PA I, I
administered the MM PI II which replaces the MM PI which was
administered in 1985. I administered the Rorschach, which was
not administered in 1985. The PAI wa s not ad ministere d in
1985. I administered the MC MI II and I adm inistered the
Rorschach, which is a projective test of personality which was
not–the others are all objective. They are all tests in which
individual answers true or false and the Rorschach is very
different.
Id. at 579-80.
violent and possibly in his mother but none of those
records were available.
Id. Blair therefore stated that she did not have an opinion
about Thompson’s diagnostic
status in 1985. Id.
On cross-examination, Blair stated that she had reviewed
all of the records included in the files from MTMHI. This
included daily progress notes, medication sheets, the report of
psychological testing, the discharge summary, the admission
summary, the staff conference report, and the social worker’s
history. Id. When asked whether she thought MTMHI’s
testing procedure was unreliable, she averred that it was not
unreliable, but simply “not extensive enough.” Id. Blair
further testified that from her own testing,2 she did not
believe that Thompson was faking or attempting to fake
mental illness.
On May 15, 1995, the post-conviction court denied
Thompson’s claims. The court found that defense counsel
had made an adequate investigation into their client’s
background and prior medical history. The court stated that
state post-conviction counsel had presented no proof of
mental problems that would have provided Thompson with a
defense or shielded him from the death penalty. Id. at 580.

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No. 00-5516 Thompson v. Bell 15
3District Court Record (“D CTR ”).
The Tennessee Criminal Court of Appeals held that
Thompson had failed to establish that any type of
psychological impairment in general may have existed which
would have been mitigating evidence.” Id. That court
specifically noted that “Dr. Blair declined to give an opinion
on these important issues, and the evidence does not
preponderate against the trial court’s finding that the defense
attorneys were not ineffective.” Id. (quoting Thompson v.
State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997)).
B. Federal Habeas Proceedings
1. District Court
On January 23, 1998, Thompson filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (DCTR 1).3 He
also filed a motion and application for appointment of counsel
to investigate, prepare and file the petition, pursuant to 21
U.S.C. § 848(q)(4)(B). (DCTR 2). On January 29, 1998, the
court granted Thompson’s motion for appointment of counsel
and designated the Federal Defender Services of Eastern
Tennessee, Inc., to provide Thompson with an attorney to
prepare and file a petition for a writ of habeas corpus and “to
prepare for and participate in all proceedings in connection
therewith.” (DCTR 3).
On March 9, 1998, the district court held a scheduling
conference. Attorney Stephen M. Kissinger was present
representing Thompson. Assistant Tennessee Attorney
General John H. Baker III was present on behalf of the State.
(DCTR 6). On March 11, 1998, the district court entered a
scheduling order. The court required, in relevant part, that
disclosure of anticipated use of any expert witness and
disclosure of information regarding the expert and the
expert’s expected testimony was to be completed by
Thompson by October 30, 1998. The court directed the
16 Thompson v. Bell No. 00-5516
4In fact, the allegation, as stated in his traverse, reads as follows:
The petition alleges in releva nt part that:
In violation of the F ifth, Sixth, Eighth, and Fourteenth
Amendments, petitioner was denied the effective assistance of
counsel at the guilt phase of trial, the sentencing phase o f trial,
on appeal, and in post-conviction proceedings. In particular,
counsel failed to perform reasonably, and there is a reasonable
probab ility, sufficient to undermine confidence in the outcome
of trial, sentencing, ap peal, and post-conviction proceedings, that
had counsel performed reasonably, petitioner would not have
been convicted or sentenced to death, and/or would have
received relief on appeal or in po st-conviction proc eedings.
Specifically, counsel was ineffective for the following non-
exclusive list of reasons:
a. Counsel at all critical stages failed to reasonably
investigate Mr. Tho mpson’s background and mental
health history. Had counsel done so, they would have
discovered that Petitioner had, in the years following
Warden to disclose his expert witnesses by December 31,
1998. The scheduling order also provided that the Warden’s
answer to the petition for writ of habeas corpus was to be
filed on or before July 17, 1998, and that the parties file a
joint schedule of needed discovery by July 24, 1998.
On May 26, 1998, Assistant Attorney General Glenn R.
Pruden became counsel of record for the Warden.
a. The Petition
As required by the scheduling order, Thompson filed his
petition for writ of habeas corpus on June 12, 1998.
Thompson alleged in relevant part that his trial counsel were
ineffective for failing to: (1) perform a reasonable
investigation of his background and mental health history;
(2) secure adequate expert assistance regarding his mental
health; (3) discover available evidence of mental illness
caused by two serious head injuries; and (4) investigate and
challenge Thompson’s competency to stand trial as well as
his competency at the time of the offense.4 He also

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No. 00-5516 Thompson v. Bell 17
his graduation fro m high school, interm ittently
demonstrated bizarre and delusional thought patterns,
particularly during ob jectively stressful situations.
They would have also discovered that members of
Petitioner’s family, e.g., his father, had a long and
pervasive history of severe mental illness. There is a
reaso nable probab ility that such evidence, when
coupled with evidence presented d uring trial, would
have convinced one or more jurors that Mr.
Thomp son’s confession was not the truth, but rather the
product of the interaction betwee n his mental illness,
his desire to protect his co-defendant, Joanne
McN amara, and illegal questioning by po lice, as well
as to provide relevant mitigating evidence at the
sentencing phase of trial. Trial counsel, however,
failed to perform a reasonable investigation, failed to
find such evidence, and consequently failed to present
the following evidence to the jury, both during the guilt
phase and during the sentencing p hase o f the trial.
b. Coun sel was ineffective for failing to fully investigate
and present relevant evidence of Mr. Thompson’s
mental health history, and to secure adequate expert
assistance to defend Mr. T hompson including
psychologists, neuropsychological, and/or neurological
experts to estab lish valid m itigating facto rs including,
but not limited to, three statutory mitigating factors
under Tennessee law, i.e, that Mr. Thompson suffered
from substantial mental disord ers and demonstrable
physical brain dam age which made him unable to
conform his behavior to the law; left him under the
influence of extreme mental or emotional disturbance,
substantially impaired his ability to appreciate the
wrongfulness of his conduct at the time of the offense,
and non-statutory mitigation under both Tennessee and
federal law. As importantly, had counsel secured such
mental health history, the result of any p rofessio nally
adeq uate pre-trial competency and insanity
examination (including, if indeed it was, o r had been,
professiona lly adequate, the pre-trial competency
examination actually perform ed in M r. Thompson’s
case) would have been different. Specifically, but not
exclusively:
18 Thompson v. Bell No. 00-5516
i. Counsel failed to discover and interview
pertine nt, available witnesses who could have
testified and or informed appropriate mental
health experts of M r. Thompson’s descent
into intermittent bizarre and delusional
behavior following high school;
ii. Counsel failed to discover available evidence
of mental illness caused by two serious head
injuries.
iii. Counsel failed to obtain medical and other
important records for the purpose of
prese nting evidence in mitigation.
c. Counsel failed to obtain adequate expert assistance,
i n c l u d i n g c o n f i d e n t i a l p s y c h o l o g i c a l ,
neuro psychological, and neuro logical experts.
d. Counsel failed to investigate and challenge Petitioner’s
competency to stand trial as well as his competency at
the time of the offense.
claimed that he was denied funding for mental health and
investigative experts during the state trial and post-conviction
proceedings. The petition was signed by Stephen M.
Kissinger.
On August 25, 1998, the district court entered an order
granting Respondent’s motion for extension of time for filing
a discovery schedule, moving the deadline to September 2,
1998.
On October 22, 1998, Thompson filed an amended petition
for writ of habeas corpus. Thompson contended, in pertinent
part, that the state courts denied him funding for mental
health and investigative experts at trial and during state post-
conviction proceedings, implicating his fundamental rights to
due process, equal protection, and effective assistance of
counsel. (DCTR 17). Thompson also complained that he was
denied expert funding, in violation of his Fifth, Sixth, Eighth

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No. 00-5516 Thompson v. Bell 19
and Fourteenth Amendment rights. He alleged in relevant
part:
a. Both trial and post-conviction counsel knew
Petitioner’s mental state was an important issue
but without assistance from a competent
investigator and mental health expert, counsel
was unable to explain and overcome the state
mental hospital’s initial findings.
b. Attorney Parsons was aware of Petitioner’s
history of head injuries and “the significant
[sic] of those head injuries and what that can do
to somebody.” P.C. Vol. I, p.38. Later, counsel
also witnessed “a period when he [Petitioner]
got sick mentally.” P.C. Vol. I, p.83. Trial
counsel requested funds for a mental health
expert but were denied. Instead, Petitioner was
sent to Middle Tennessee Mental Health
Institute (MTMHI) for a competency
evaluation. Although MTMHI found Petitioner
to be competent, Mr. Parsons continued to
believe further evaluation was needed. . . .
c. Records from Riverbend Maximum Security
Institution reflect that several different treating
psychiatrists have diagnosed Petitioner as
having either a bipolar affective disorder, cyclic
mood disorder, schizo-affective disorder or
schizophrenia. All of the psychiatrists
described Petitioner’s agitated behavior,
hostility, inappropriate affect, auditory and
visual hallucinations, delusions, paranoia, and
thoughts of persecution. Psychiatrists
considered the possibility of Petitioner’s
malingering and all discounted that possibility.
State examiners at Riverbend ruled out
malingering noting that it did not explain all
psychotic features. Test results indicating
20 Thompson v. Bell No. 00-5516
schizophrenia were found consistent with
Petitioner’s psychotic disorder even at his then
current “stable” level of functioning. Since his
incarceration, Petitioner has been heavily
medicated. For example, Petitioner has taken
Lithium and Klonopin, both indicated for
bipolar disorder; Depakene and Depakote
indicated for epileptic conditions and rapid
cycling bipolar disorder due to brain disease;
the anti-psychotic drugs Haldol, Haloperidol,
Mellaril, Navane, Thioridazine, and Trilafon;
Cogentin/Benztropine to minimize the effect of
such drugs; the sedative Vistaril; and,
Ativan/Lorazepam and Valium to reduce
agitation.
d. Post-conviction counsel repeatedly requested
funds for a mental health expert. The
prosecutor argued that post-conviction counsel
were not entitled to experts at state expense.
P.C. Vol. 1, p.16. In support of the motion for
funding, counsel submitted the affidavit of Dr.
Gillian Blair. Dr. Blair’s affidavit and post-
conviction testimony reflected her need for a
complete social history, additional testing and
interviews before she could render an opinion
on Petitioner’s mental status at the time of the
crime, at trial, and at the present time. See
generally P.C. Vol. I, pp. 199-219. Dr. Blair
opined that based on the Riverbend records, her
test results from 1992, and the brief social
history available, further investigation and
examination of Petitioner was required. Dr.
Blair testified that since 1985 Petitioner had
shown a deteriorating mental status. P.C. Vol.
II, p. 209. Petitioner had been diagnosed with
bipolar disorder, schizo affective disorder or
schizophrenia. Id. She further testified that
schizophrenia and bipolar disorder, indeed all

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No. 00-5516 Thompson v. Bell 21
forms of psychosis, generally begin in early
adulthood, Id. at 215, which coincides with the
timing of the instant offense. Dr. Blair stated
that Petitioner’s troubles in the Navy, just prior
to the crime, would suggest that he was
becoming mentally ill at that time. Id. at 216.
However, further information was needed to
render an opinion and diagnosis of Petitioner at
that time. Dr. Blair also stated that further
evaluation of Petitioner was necessary to
determine his present competency. Id. at 207.
e. The court denied funding for expert assistance
at the post-conviction hearing. The court
reasoned that funds were unnecessary because
Petitioner had not shown a “need,” further
funding would result in a delay of the
proceedings and the issue was a matter of
record. . . .
f. Although the court found no “need” for further
expert assistance, the court later used the fact
that Dr. Blair could not express an opinion as to
the issues of Petitioner’s mental health to limit
Dr. Blair’s testimony and, subsequently, to
deny Petitioner relief from his unconstitutional
conviction and sentence. For example,
throughout Dr. Blair’s testimony, the
prosecutor made repeated objections on the
basis that Dr. Blair did not have an ultimate
opinion. See e.g. P.C. Vol. II, pp. 208, 215,
216, 220, 259. Although the court allowed
most of Dr. Blair’s answers, it did so remarking
that the weight of the testimony was specious.
See id. The court, however, did not allow Dr.
Blair to testify about mitigating circumstances.
(Footnotes omitted.).
22 Thompson v. Bell No. 00-5516
Thompson further alleged ineffective assistance of counsel,
for the following non-exclusive reasons:
1. Counsel at all critical stages failed to
reasonably investigate Mr. Thompson’s
background and mental health history. Had
counsel done so, they would have discovered
that Petitioner had, in the years following his
graduation from high school, intermittently
demonstrated bizarre and delusional thought
patterns. They would have also discovered that
members of Petitioner’s family, e.g., his father,
had a long pervasive history of severe mental
illness. Trial counsel, however, failed to
perform a reasonable investigation, failed to
find such evidence, and consequently failed to
present the following evidence to the jury, both
during the guilt phase and during the sentencing
phase of the trial.
2. Counsel was ineffective for failing to fully
investigate and present relevant evidence of Mr.
Thompson’s mental health history, and to
secure adequate expert assistance to defend Mr.
Thompson inclu ding p sychologi sts,
neuropsychological, and/or neurological experts
to establish valid mitigating factors including,
but not limited to, three statutory mitigation
factors under Tennessee law, i.e., that Mr.
Thompson suffered from substantial disorders
and demonstrable physical brain damage which
made him unable to conform his behavior to the
law; left him under the influence of extreme
mental or emotional disturbance, substantially
impaired his ability to appreciate the
wrongfulness of his conduct at the time of the
offense, and non-statutory mitigation under
both Tennessee and federal law. As
importantly, had counsel secured such mental

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No. 00-5516 Thompson v. Bell 23
health history, the result of any professionally
adequate pre-trial competency and insanity
examination (including, if indeed it was, or had
been, professionally adequate, the pre-trial
competency examination actually performed in
Mr. Thompson’s case) would have been
different. Specifically, but not exclusively:
i. Counsel failed to discover and interview
pertinent, available witnesses who could
have testified and/or informed appropriate
mental health experts of Mr. Thompson’s
descent into intermittent and delusional
behavior following high school.
. . . .
. . . Had counsel been informed, they would
have recognized that witness accounts, of
Petitioner’s bizarre change in behavior signaled
the onset of mental illness. The lingering
question would have been answered. The
outcome of Petitioner’s capital conviction and
sentence probably would have been different.
(DCTR 17; footnotes omitted). The amended petition for writ
of habeas corpus was signed by Stephen M. Kissinger.
b. Discovery
On November 2, 1998, the magistrate judge held three
telephone conferences with Attorney Kissinger and Assistant
Attorney General Jennifer Smith regarding Thompson’s
request for discovery regarding those matters alleged in the
petition, to which Respondent objected. The court’s order
states that, during the hearing, Kissinger advised that he
needed to obtain the depositions of three mental health expert
personnel who had seen and treated Thompson during his
period of incarceration. Respondent maintained his objection
24 Thompson v. Bell No. 00-5516
5Although not fully articulated as such, the magistrate judge appears
to have b ased its conclusion o n the follo wing allegation in Thomp son’s
amended p etition, which the court quoted in its order:
41. CLAIM 41- BRA DY CLAIM
a. Throughout P etitioner ’s court proceedings the prosecutor
engaged in false and/or misleading questioning and use of
reports to argue that Petitioner was competent and not mentally
ill. The prosecutor misled Petitioner’s judge and jury despite
having evidence to the contrary, and without revealing such
evidence, thereby committing gross misconduct. For example,
during the Petitioner’s postconviction proceedings, the state
argued that Petitioner was not mentally ill, was competent at the
time of trial, was p resently competent, and was competent to be
executed, despite ten years of records to the contrary.
Institutional records clearly illustrate Petitioner’s ‘significant
history of psychosis requiring multiple medications.’
Petitioner’s mental health treatment plan contemporary to the
postconviction hearing reveals a diagnosis of schizophrenia with
presenting problems of auditory and visual hallucinations and
paranoid ideation. . . .
(DC TR 18).
that the allegations before the court did not establish good
cause for discovery as required under Rule 6(a) of the Rules
Governing Section 2254 Cases in the United States District
Court. That same day the court entered an order allowing
Thompson to take the depositions of Dr. Michael Rutter, Dr.
Robert Hoen, and Dr. John Pruett, mental health experts. The
order further allowed Respondent the right to take the
depositions of Thompson’s two experts, neuropsychologist
Barry Crown, Ph.D, and psychologist Faye Sultan. (DCTR
18). The magistrate judge noted that the execution of
Thompson would violate the Eighth Amendment due to
Thompson’s incompetence. The order also noted a Brady
claim.5
Also on November 2, 1998, Thompson filed his initial
witness list. His “[e]xpert witnesses and testimony” included
the following:

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No. 00-5516 Thompson v. Bell 25
a. Dr. Barry Crown, Penthouse Ste 310, Red Road,
South Miami, FL 33143, will provide foundation
testimony to establish himself as an expert in
neuropsychology. He will testify that he has been
provided with background information regarding
Petitioner’s medical and social history, that he has
interviewed, and administered a battery of indicated
neuropsycholgical tests to the Petitioner. He will testify
that the results of those tests indicate that Petitioner
suffers from organic brain damage. He will testify that
the brain damage observed, as well as Petitioner’s social
and medical history, is consistent with schizophrenia.
He will testify that Petitioner’s brain damage
substantially impaired the ability of the Petitioner to
distinguish between right and wrong and/or to conform
his conduct to the requirements of the law and/or
prevented Petitioner from doing the same. He will
testify that Petitioner’s brain damage prevented
Petitioner from meaningfully assisting in his own
defense at trial and during state post-conviction
proceedings and/or from fully comprehending the nature
of those proceedings. He will further testify that
arguments regarding Petitioner’s mental state made by
counsel for the State of Tennessee during state post-
conviction proceedings were both outside the scope of a
lay person’s knowledge and that the prosecutor’s
statements misrepresented Petitioner’s prison medical
records.
b. Dr. Faye Sultan, 8430 University Executive Park
Drive, Suite 690, Charlotte, NC 28262, will provide
foundation testimony to establish herself as an expert in
clinical and forensic psychology. She will testify that
she has been provided with background information
regarding Petitioner’s medical and social history, that she
has interviewed, and administered a battery of indicated
psychological tests to the Petitioner. She will testify that,
on the basis of her examination, it is her expert opinion
that Petitioner suffers from schizophrenia and did so at
26 Thompson v. Bell No. 00-5516
the time of the offense and at the time of trial. She will
testify that Petitioner’s mental illness was severe and
that it substantially impaired the ability of the Petitioner
to distinguish between right and wrong and/or to
conform his conduct to the requirements of the law
and/or prevented Petitioner from doing the same. She
will testify that Petitioner’s mental illness prevented
Petitioner from meaningfully assisting in his own
defense at trial and during state post-conviction
proceedings and/or from fully comprehending the nature
of those proceedings. She will further testify that
arguments regarding Petitioner’s mental state made by
counsel for the State of Tennessee during state post-
conviction proceedings were both outside the scope of a
lay person’s knowledge and that the prosecutor’s
statements misrepresented Petitioner’s prison medical
records.
(DCTR 19) (emphases added).
On November 30, 1998, Respondent appealed the
magistrate judge’s discovery order. The district court
affirmed the ruling. Significantly, the district court stated the
following:
Additionally, if the facts are developed to show that
petitioner’s mental health should have been introduced as
mitigating evidence, petitioner may be entitled to relief.
The magistrate judge heard argument of counsel and then
ruled that certain specific discovery would be
allowed. . . . Not only has Thompson raised the issue of
ineffective assistance of counsel for failure to fully
explore his mental health for mitigating purposes at his
sentencing, which trial counsel testified he should have
explored Thompson’s mental health further . . . ; the
record also includes factual allegations that there was
some mental health evidence that could have been
introduced as mitigating evidence. Furthermore,
Thompson alleges he did not receive a full and fair post-

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No. 00-5516 Thompson v. Bell 27
conviction hearing in state court because he was denied
funds to hire a mental health expert to prove his
incompetency/insanity at trial and at execution. If the
fact are fully developed, he may be able to demonstrate
he is entitled to relief.
After a cursory review of the numerous volumes of
state documents[] involved in this case, it appears that
Thompson has alleged a factual basis for some of his
claims and the magistrate judge so found. For example,
petitioner claims trial counsel failed to properly
investigate his mental health history and present
mitigating evidence at trial and sentencing. Petitioner
contends he had two serious head injuries and
intermittent bizarre and delusional thought patterns and
witnesses to testify to such, and this mitigating evidence
should have been introduced. Furthermore, petitioner
contends that his institutional records reveal a diagnosis
of schizophrenia with problems of auditory and visual
hallucinations and paranoid ideation. If petitioner proves
these factual allegations, he may be entitled to relief.
(Footnote omitted) (DCTR 22).
On December 24, 1998, Respondent filed his initial expert
witness list disclosure. It listed simply Dr. Theodore H.
Blau, who would “testify as an expert in the area of forensic
neuropsychology. Dr. Blau will be called, if necessary, to
rebut the testimony of petitioner’s expert witnesses, Dr. Barry
Crown and Dr. Faye Sultan, as disclosed in petitioner’s initial
witness list of October 30, 1998.” (DCTR 24).
On December 29, 1998, Attorney Kissinger moved to
appear pro hac vice. (DCTR 25).
On February 3, 1999, the district court granted Thompson’s
request for an extension of time to conduct discovery. The
court set the discovery date at June 11, 1999, and the
dispositive motion cutoff at July 2, 1999. (DCTR 32).
28 Thompson v. Bell No. 00-5516
On February 12, 1999, Thompson filed an ex parte motion
for a temporary mandatory restraining order, for preliminary
and permanent injunctive relief, and for an order finding
Thompson incompetent to proceed, continuance, and to toll.
(DCTR 34). In support, Thompson alleged in part as follows:
1. Petitioner suffers from schizophrenia. During
the vast majority of his incarceration
Respondent has medicated Petitioner in order to
treat his mental illness.
2. On or about September 1998, Respondent
stopped providing Petitioner with appropriate
psychiatric medication.
3. Petitioner’s mental health thereafter radically
declined. Petitioner is now unable to
meaningfully assist counsel or understand the
nature of the proceedings in which he is being
required to participate. Moreover, because of
the severe nature of Petitioner’s mental illness,
Respondent’s refusal to provide appropriate
psychiatric care is tantamount to subjecting
Petitioner to physical torture. See, Exhibit A,
Declaration of Faye Sultan PhD. attached.
. . . .
6. Petitioner has no remedy at law. . . . Given the
Petitioner’s incontrovertible right both to
receive proper psychiatric care and to seek
federal habeas corpus relief the likelihood that
he will prevail on the merits of his motion are
great. Should Respondent be allowed to
continue to deprive Petitioner of proper
psychiatric care Petitioner will suffer
irreparable injury. Not only is he being
rendered incompetent, he is, for all intents and
purposes, being tortured.

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No. 00-5516 Thompson v. Bell 29
(Footnotes omitted.). The motion was signed by Attorney
Kissinger (by permission). (DCTR 34).
Attached to the February 1999 motion is the declaration of
Faye Sultan, Ph.D, a clinical psychologist. Sultan stated in
relevant part that
At the request of attorneys at the Federal Defender
Services of Eastern Tennessee, I initiated a psychological
evaluation of Mr. Gregory Thompson in August, 1998.
Formal psychological testing and extensive clinical
interview were conducted with Mr. Thompson at the
Riverbend Maximum Security Prison in Nashville,
Tennessee on 8-20-98. This interview was conducted as
a “Contact Visit”, with no physical barrier between this
examiner and Mr. Thompson, and Mr. Thompson was
not physically restrained in any way.
In addition to the data gathered during this
examination, I was asked to review extensive
documentation about Mr. Thompson’s psychiatric,
military, and legal history. These data also serve as
bases for the opinions rendered here. These data include
psychiatric records and examinations regarding Mr.
Thompson for approximately the past fifteen years,
administrative and medical records from the Tennessee
Department of Corrections, and legal and police
documents relating to the original offenses for which Mr.
Thompson is currently incarcerated. In total, hundreds of
pages of records and documents have been reviewed for
the purpose of this evaluation.
(DCTR 34). Dr. Sultan also stated that in August 1998
Thompson met all of the diagnostic criteria for the major
mental illness schizophrenia, episodic, with interepisode
residual symptoms. She further indicated that Thompson’s
condition had rapidly deteriorated between August 1998 and
February 1999. In Dr. Sultan’s opinion, Thompson was
experiencing a severe psychiatric crisis, making him unaware
30 Thompson v. Bell No. 00-5516
6As will be explained shortly, counsel for Resp ondent deposed
Thomp son’s other named exp ert, Dr. Faye Sultan, PhD. on July 22, 1999.
of his surroundings, and requiring immediate emergency
attention. (Id).
On April 7, 1999, Thompson moved to withdraw his ex
parte motion for injunctive relief and for an order finding him
incompetent to proceed, principally because on April 6, 1999,
Dr. Sultan saw Thompson and concluded that his condition
had improved, due to an adjustment in his medication. Thus,
the factual basis for the motion no longer existed. (DCTR
64). On April 29, 1999, the court granted the motion to
withdraw the ex parte motion. (DCTR 67).
On June 28, 1999, the district court entered an order
extending the discovery deadline to July 30, 1999. The court
extended the deadline to allow Respondent to depose
Thompson’s expert witnesses, Drs. Crown and Sultan, and to
allow Petitioner to depose Respondent’s expert witness, Dr.
Theodore Blau. On July 9, 1999, Respondent filed a motion
for summary judgment as to all claims raised in the amended
petition for writ of habeas corpus. (DCTR 81-82). On July
15, 1999, Thompson deposed Respondent’s expert, Dr. Blau.
On July 20, 1999, Respondent deposed Petitioner’s expert.
Dr. Crown.6 On July 29, 1999, Thompson filed his response
to Respondent’s motion for summary judgment.
On August 2, 1999, Respondent filed a motion for
reimbursement of deposition expenses. (DCTR 87).
Respondent claimed that Dr. Crown’s deposition testimony
was considerably different than that represented in
Petitioner’s initial witness list. Specifically, Respondent
alleged that, based on Petitioner’s initial disclosure
concerning Dr. Crown’s testimony, particularly as to
Petitioner’s mental state at the time of the offense, “i.e., his
ability to distinguish between right and wrong and/or to
conform his conduct to the requirements of law, competency

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No. 00-5516 Thompson v. Bell 31
at the time of trial,” counsel for Respondent traveled to
Miami, Florida to depose Dr. Crown. Respondent further
claimed that, at the beginning of the deposition, he was
presented “for the first time” with an affidavit indicating Dr.
Crown’s proposed testimony, which was significantly
different from the October 30, 1998, initial witness list
disclosure. The affidavit indicated no opinion as to
Thompson’s mental state at the time of the offense or at trial,
no opinion indicating that brain damage substantially
impaired Thompson’s ability to conform his conduct to the
requirements of law and/or to distinguish between right and
wrong, and no opinion concerning Thompson’s ability to
assist counsel in his defense at trial or comprehend the nature
of that proceeding.
Respondent alleged that, “contrary to representations in
Petitioner’s initial expert disclosure, Dr. Crown testified in his
deposition that he had not rendered, nor had he been asked to
render, an opinion concerning Petitioner’s mental status at the
time of the offense in this case.” (DCTR 87). The motion
stated that Dr. Crown testified that he was also not asked to
render an opinion concerning Petitioner’s competence at the
time of trial. The motion further alleged that “Dr. Crown
testified that he had seen petitioner on one occasion, June 12,
1998, and was prepared to render an opinion concerning
petitioner’s competence and mental status on that day.”
Thus, in Respondent’s view, “Dr. Crown offered no
testimony pertinent to any claim presented in the amended
petition for writ of habeas corpus.” Respondent therefore
claimed that, had he been advised of the precise nature of Dr.
Crown’s testimony, as required under Fed. R. Civ. P.
26(a)(2)(B) and by the district court’s order of March 11,
1998, he likely would not have deposed Dr. Crown.
Respondent contended that, given the clear representations in
his October 1998 expert disclosure statement, Petitioner had
a duty to disclose the nature of Dr. Crown’s testimony.
Respondent sought an order requiring Petitioner to reimburse
Respondent in the amount of $2,768.71 for expenses incurred
32 Thompson v. Bell No. 00-5516
in connection with the July 20, 1999, deposition of Dr.
Crown.
On August 4, 1999, Petitioner filed a motion in limine,
seeking to exclude Dr. Blau’s testimony on the grounds that
Dr. Blau neither formed an opinion nor was asked to form an
opinion regarding any of the issues raised in the petition:
“Despite all issues being clearly framed by the allegations in
the petition, Respondent never sought, nor did Dr. Blau
render, any opinion contrary to such allegations.” (Footnote
omitted.). (DCTR 88). Also on August 4, Petitioner filed a
motion for costs incurred in deposing Dr. Blau. Petitioner
alleged in pertinent part:
2. On July 15, 1999, undersigned counsel conducted
the deposition of Dr. Blau in order to discover the
substance of his testimony at the evidentiary hearing. At
that time Dr. Blau testified that he had been asked to
render an opinion only in regard to Mr. Thompson’s
competency to proceed in the instant action . . . ; that he
had not reached any opinion other than that reflected in
his report on the competency to proceed . . . ; and that in
order to render additional opinions he would require
further interviewing and testing of Mr. Thompson. . . .
3. It is clear that although Respondent was on notice of
Petitioner’s mental health claims which are detailed in
his habeas petition and was on notice regarding
Petitioner’s anticipated expert’s testimony, Respondent
either instructed Dr. Blau not to render any opinion
during deposition regarding the issues in the petition or
Dr. Blau failed to formulate such opinions. It appears
that Respondent made the strategic decision to limit Dr.
Blau’s testimony to Mr. Thompson’s competency to
proceed given Dr. Blau’s sworn testimony that his
opinion was limited to Mr. Thompson’s competence to
proceed, the fact that Dr. Blau only evaluated Mr.
Thompson on one occasion for the specific purpose of
competency to proceed, and that Respondent did not

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No. 00-5516 Thompson v. Bell 33
76. Respo ndent po sed the following questions:
Have you been asked to render any determination about
whether he was competent to stand trial at his criminal
provide a copy of Petitioner’s habeas petition to Dr.
Blau.
4. Undersigned counsel relied upon Respondent’s
representation that Dr. Blau would rebut Petitioner’s
expert witnesses. Had undersigned known that Dr.
Blau’s opinion was limited to Mr. Thompson’s
competency to proceed, an issue which is no longer
before this court, he would not have taken Dr. Blau’s
deposition and incurred expenses totaling $4,097.01.
(DCTR 89) (emphasis added) (footnote omitted). Petitioner
requested a court order requiring Respondent to pay those
costs. The motion for costs is signed by Stephen M.
Kissinger.
On August 5, 1999, Thompson filed a response opposing
Respondent’s motion for reimbursement of deposition
expenses. In it he contended that the opinions Dr. Crown
expressed in his deposition were materially consistent with
Thompson’s initial witness list. In response to Respondent’s
contention that Dr. Crown failed to provide an opinion at
deposition regarding Thompson’s mental condition at the
time of the offense, Thompson stated that “[t]his allegation is
untrue or irrelevant for at least two reasons.” First,
5. Insofar as Respondent’s complaint relates to Dr.
Crown’s response to the Assistant Attorney General
Pruden’s very few questions which Respondent elected
to attach to his motion, Dr. Crown was not asked whether
he had an opinion regarding Petitioner’s mental condition
at the time of the offense or at trial. Instead Mr. Pruden
chose to focus on the communication between Dr. Crown
and Respondent’s counsel.[7]
34 Thompson v. Bell No. 00-5516
trial?
(Crown deposition at Page 7, lines 11-13)
So if I understand you co rrectly, you were only
asked [by Respondent’s counsel] to make a
competency determination at the time you met M r.
Thom pson?
(Id. at Page 7, lines 19-21)
Have you been asked to render any opinions concerning Mr.
Thomp son’s mental status at the time of the murder of Brenda
Lane?
(Id. at Page 8, lines 7-9)
Not specifically. Does that mean that you have not been asked that
specific question?
(Id. at Page 8, lines 11-12[)]
So you have not been asked to render an opinion to Mr.
Kissinger yet one way or the other regarding M r. Thomp son’s
ability to distinguish between right and wrong or conform his
conduct to the requirements of the law at the time of M s. Lane’s
murder?
(Id. at 17-20).
. . . .
7. Not one of these questions asked whether Dr. Crown
had an opinion on the issue of mental state at the time of
the offense, at trial, or at any other time for that matter.
They queried only regarding the communications
between Dr. Crown and undersigned counsel. As a
matter of fact, only once in the excerpts attached to
Respondent’s motion does Mr. Pruden ask any question
which could reasonably be interpreted as seeking Dr.
Crown’s opinions on these issues.

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No. 00-5516 Thompson v. Bell 35
8. On that occasion, Dr. Crown responded that he was
unable to render such an opinion because he could not be
certain whether he had been provided all relevant
information. Crown deposition at Page 9, lines 4-15.
Rather than show that he had no opinion on a material
issue, Dr. Crown’s answer demonstrated that he would
not carelessly issue an opinion until counsel for
Respondent defined the facts upon which counsel wished
Dr. Crown to base that opinion. Despite Dr. Crown’s
qualified response, counsel for Respondent never asked
Dr. Crown whether, assuming that Dr. Crown had all
relevant information, he had an opinion regarding Mr.
Thompson’s mental state at the time of the offense and/or
at trial, nor did counsel provide Dr. Crown with
supplemental fact which Respondent deemed relevant
and then ask him whether, based upon the combined
information, he held an opinion on those regards.
9. The reasons Respondent failed to discover Dr.
Crown’s opinions in these areas were not because Dr.
Crown held no such opinions. Respondent’s counsel
either made a strategic decision to focus on the conduct
of counsel (or perhaps to attempt to create the illusion
that Dr. Crown’s opinions regarding these areas will
come as a complete surprise to the Respondent when
they are stated at hearing), or he simply neglected to ask
the relevant questions.
(DCTR 90).
Thompson articulated a second reason, namely that Dr.
Crown’s deposition did substantially conform to the
information contained in his initial witness list because
Crown stated during his deposition “that Petitioner suffers
from bipolar disorder of a schizo-affective type and that the
onset of this affliction was prior to the alleged offense. Crown
deposition at Pages 32-34, in passim.” Thompson added that
“[u]nless Respondent can seriously maintain that it is material
in this case whether Dr. Crown found that Petitioner suffered
36 Thompson v. Bell No. 00-5516
from one severe schizotypal mental illness at the time of the
offense as well as his state court trial rather than another
severe schizotypal mental illness, Dr. Crown’s deposition
testimony is clearly consistent with the information contained
in Petitioner’s Initial Witness List.” Thompson also alleged
that Respondent was not in a position to complain that Dr.
Crown’s testimony did not make the connection between
Petitioner’s mental illness and competency at the time of the
offense, because Respondent “with full knowledge that Dr.
Crown was of the opinion that Petitioner was severely
mentally ill at the time of the offense, either chose not to
inquire regarding the afore-described connection or forgot to
do so.” (DCTR 90) (emphasis added). Thompson therefore
claimed that he had demonstrated that the information in his
initial witness list was consistent with Dr. Crown’s testimony.
He further claimed that even if it was materially inconsistent,
Respondent could not complain because he had previously
made this allegation to the magistrate judge, who granted
Respondent the right to depose both Drs. Crown and Sultan
before Respondent ever contacted Dr. Blau. Thus, Thompson
claimed that Respondent had been granted the opportunity to
determine the exact opinions of Dr. Crown before Dr. Blau
was ever contacted. (DCTR 90).
Next, Thompson asserted that Dr. Blau stated during his
deposition that he was contacted by Respondent’s counsel,
Pruden, on November 2, 1998, to retain him as a
psychological expert and that he was asked simply “to review
records in respect to competence to proceed regarding Mr.
Thompson, and possible questions were whether Mr.
Thompson is competent to act as a party participant in habeas
corpus proceedings,” and also whether he “could determine
psychologically his mental condition and status with respect
to his capacity to understand his legal position and his
options.” (DCTR 90 (quoting Deposition of Theodore H.
Blau, Ph.D., July 15, 1999, Page 5, lines 8-19). Thompson
further alleged that Dr. Blau was asked whether he had been
asked to examine Thompson regarding any area other than
competency and that “[h]is response clearly demonstrated that

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No. 00-5516 Thompson v. Bell 37
not only had he not examined and/or reached any opinions in
any area other than Petitioner’s present competency, the only
neuropsychological examination he had conducted was ‘at
best’ . . . a screening examination.” (DCTR 90 ¶ 6).
Thompson therefore moved for an order denying
Respondent’s motion for reimbursement of deposition
expenses. (DCTR 90).
In his reply, Respondent stated simply that the documents
attached to its motion for reimbursement plainly
demonstrated that Thompson’s October 1998 disclosure was
materially different from the testimony offered at Dr. Crown’s
deposition and in his affidavit. (DCTR 91). Attached as an
exhibit was a complete copy of Dr. Crown’s July 20, 1999,
deposition. Much of it bears repeating here:
Q: Specifically, what issues regarding Mr.
Thompson and his case have you been asked to
review and render expert opinions on, sir?
A: At this point, I have been asked to consider his
competency and also his mental status.
Q: Okay. Let’s take them one at a time, then.
Competency, are you talking strictly about his
present competency in the habeas corpus
proceedings?
A: I am talking about his competency at the time
that I saw him.
Q: Have you been asked to render any
determination about whether or not he was
competent to stand trial at his criminal trial?
A: No.
Q: Has anything been said to you that would lead
you to believe that you might be asked at a
38 Thompson v. Bell No. 00-5516
future date prior to the evidentiary hearing to
render such an opinion?
A: It hasn’t been suggested or asked of me.
Q: So if I understand you correctly then, you were
only asked to make a competency determination
at the time you met Mr. Thompson?
A: That is correct.
Q: And when was that, sir?
A: June 12th of 1998.
Q: All right. His mental status. Please elaborate
for me, what about his mental status have you
been asked to opine?
A: I have been asked to evaluate it.
Q: His mental status at present?
A: Well, it was his status as of the time that I saw
him. I haven’t seen him since June 12th of
1998.
Q: Have you been asked to render any opinions
concerning Mr. Thompson’s mental status at
the time of the murder of Brenda Lane?
A: Not specifically, no.
Q: Not specifically. Does that mean that you have
not been asked that specific question?
A: That is correct.
Q: Have you rendered an opinion, though, in that
regard?

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No. 00-5516 Thompson v. Bell 39
Q: No, not as of this time.
Q: So you have not rendered an opinion to Mr.
Kissinger yet one way or another regarding Mr.
Thompson’s ability to distinguish between right
and wrong or conform his conduct to the
requirements of the law at the time of Ms.
Lane’s murder?
A: That is correct.
Q: Has Mr. Kissinger, or anyone else representing
Mr. Thompson, represented to you that they
would like you to render such an opinion
during the course of your employment?
A: No.
Q: Just so I am clear then, your mental status
evaluation of Mr. Thompson is only to evaluate
his mental status at present?
A: I have only seen him on one occasion, June
12th of 1998. So what I have to say would be
related to that examination. I have looked at
other records, but I don’t know they are
necessarily complete, and I couldn’t render an
opinion based on the lack of completeness, or
what I assume is the lack of completeness.
Q: So you don’t feel that based on the materials
that you have reviewed to date that you could,
based on your professional experience, render
an opinion about Mr. Thompson’s mental state
say back in 1985 at the time of the murder?
A: As I sit here today, I could not.
Q: So you are not prepared to render any opinion
in that regard today?
40 Thompson v. Bell No. 00-5516
A: That is correct.
Q: What materials have you been provided to
review concerning Mr. Thompson?
A: I have seen what I believe to be his Department
of Corrections file from it’s [sic] inception.
Q: And when you say his Department of
Corrections file, do you mean his
medical/mental health file?
A: It’s his medical file, as well as his general file,
including disciplinary reports, including
adjustment reports.
Q: Have you reviewed any other records?
A: I have seen the depositions of three of the
employees of Prison Health Services. I have
seen the reports of the mental health facility that
Mr. Thompson spent thirty days in prior to his
original trial. I have seen the testimony of the
mental health professions at his trial, Dr.
Kogley.
Q: Cobley?
A: Cobley. I have seen the materials from Dr.
Blaire.
Q: How about Dr. Watson?
A: Watson. I have seen Dr. Watson.
Q: When you say materials from Dr. Blaire, does
that simply mean her testimony, or have you
seen other--

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No. 00-5516 Thompson v. Bell 41
8Dr. Cro wn stated that he administered the following tests:
The Shipley Institute of Living Scale; the G-F-W Auditory
Selective Attention Test; the Category Test; the Kaufman
Neuropsychological Assessment Procedure; the Luria Mem ory
Test; the Reitan-Indiana Aphasia Screening Test; the Rey-
Osterreith Complex Figure Test; the Trailmaking Test; W ord
Generation, F/A/S; Finger Oscillation T est; and the W isconsin
Card So rting T est.
A: I have seen the raw data, or parts of raw data.
Actually, the entire raw data are not in the
materials that were provided to me. And then I
have seen Dr. Blau’s report and Dr. Blau’s raw
data.
Q: And you just received Dr. Blau’s--
A: Correct.
(DCTR 91).
Dr. Crown also indicated that he had reviewed Thompson’s
medication portfolio from his records at Riverbend Maximum
Security Institution. When asked, Dr. Crown stated that he
had not read, and not been asked to read, the trial transcript,
but that he had asked Mr. Kissinger “to provide me with
whatever materials he wished.” (DCTR 91). Dr. Crown
acknowledged that he had not given Kissinger a specified list
of items he wished to review, but was “relying on whatever
it is Mr. Kissinger” gave him.
Dr. Crown also stated that he met with Thompson on
June 12, 1998, at Riverbend for about two and one half hours.
Dr. Crown indicated that, at that time, he took a brief history,
a standard basic demographic clinical interview, and
administered a group of tests.8 Dr. Crown testified that the
only written record of his evaluation was his July 20 affidavit;
that he would only prepare a written report if Kissinger asked.
42 Thompson v. Bell No. 00-5516
He also indicated that Kissinger had not at that time asked
him to do so.
Dr. Crown opined that Thompson suffers from an auditory
processing deficit. He further indicated that Thompson has
some sort of organic brain damage, but that he did not
pinpoint it to a specific portion of the brain. Dr. Crown stated
that he did not intend to make any further evaluation of
Thompson’s organic brain damage unless asked. Dr. Crown
indicated that he knew that Thompson had suffered traumatic
head injuries. He testified that he had not seen Thompson’s
military medical records. Dr. Crown testified that the
organicity was secondary to other mental impairments,
namely schizo-affective disorder, bipolar subtype, with
organic components. Dr. Crown stated that he reached this
conclusion
from looking at the reports of the treating physician, the
psychiatrists, and psychiatric nurses, and nurse
practitioners that have had the opportunity to monitor
him over the last fourteen years, that I have concluded
that he’s best treated with anti-psychotic medication, that
schizo-affective disorder is a disorder that affects
thoughts related to reality and results in distortions of
reality.
It also results in distortions of affect, meaning, the way
that behavior is expressed. And I believe that his affect
has been variable from rather depressed to highly
agitated and aggressive. And so, putting that together, I
believe he does have a schizo-affective disorder of the
bipolar type, meaning, there is a considerable spread in
his emotionalities, that there is a distortion in his
perception of reality, that he tends to fragment at times,
and tends to be directed by hallucinatory activity.
. . . [I]n Mr. Thompson’s case, there are notations
throughout his medical records that he has auditory
hallucinations. He also related to me that at the time I

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No. 00-5516 Thompson v. Bell 43
saw him he was auditory hallucination free, but that he
frequently got command hallucinations that there were
voices coming from within him that were telling him
what to do, which is what happens in an auditory
hallucination state.
(DCTR 91). The following colloquy between counsel for
Respondent and Dr. Crown, then took place:
Q: Based on your review of Mr. Thompson’s
records or the records that were provided to
you, what do you conclude, or when did you
conclude, was the onset of these auditory
hallucinations?
A: I have no real pinpoint. For that, most
typically, people with schizo-affective disorder
tends to develop in late adolescence to early
adulthood.
Q: From the materials you have reviewed, do you
see anything in those materials that show that
this is when it occurred in Mr. Thompson?
A: I believe he began to have a more difficult time
with life in his–in the last stages of his military
service. So I believe that the beginnings of it
would be tracked to that. I haven’t seen the
records, but I believe that that’s probably when
I would anticipate that it would have begun.
(Emphases added.)
Counsel for Respondent also asked Dr. Crown whether he
had talked with any of Thompson’s family members to gain
insight into his background while growing up. Dr. Crown
stated that he had not, nor had he spoken with school teachers,
counselors, or ministers. Dr. Crown also indicated that he
had not spoken with Joanne McNamara, or Arlene Cajulao.
44 Thompson v. Bell No. 00-5516
Next, counsel asked Dr. Crown:
Q: And if I understood your answers earlier
correctly, you do not have an opinion at this
time as to the exact nature of this brain damage
for which you have seen some indicia?
. . . .
A: I don’t specifically know the causation. I
believe it may be secondary to his thought
disorder since we know that in people who do
have chronic thought disorders that the thought
disorder itself may either be caused by or may
result in some damage to the brain. For
example, schizophrenics very often have
enlarged ventricles of the brain.
Q: I notice that you did not attempt to administer
an MMPI to Mr. Thompson. The reason for
that, sir?
A: In the regular course of my neuropsychological
evaluations, I tend not to administer a
personality questionnaire. I leave that for, or
the assessment of personality, specifically to a
clinical psychologist or a psychiatrist.
Q: In this case, this would be something that you
would defer basically to Dr. Sultan?
A: I would defer in terms of administering or
interpreting of the personality testing. Yes.
Q: Would an MMPI-2 be useful in terms of
assessing organic brain damage?
A: No, not necessarily. No.
. . . .

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No. 00-5516 Thompson v. Bell 45
A: No. If I thought it was necessary to form a
neuropsychological opinion, I would have given
it.
Q: And in this case you didn’t?
A: That is correct.
Q: And part of that is because you are not
interested in determining whether or not he can
distinguish between right and wrong?
A: I was asked to assess his neuropsychological
status, and that to [sic] extent, I wasn’t asked to
consider issues of determining right or wrong,
sanity, and I wasn’t asked specifically to
consider personality. But when I looked at him,
it was clear to me that Mr. Thompson also had
personality problems. He had a thought
disturbance.
I assumed that someone else would be looking
at him in terms of those thought disturbances,
the personality difficulties, and I just recently
learned that Dr. Sultan had looked at him.
(Emphasis added.) Dr. Crown stated that he had worked with
Dr. Sultan on several capital cases.
Counsel for Respondent recapped:
Q: My understanding then is you were solely asked
to talk about Mr. Thompson’s current
competency. That’s what you have been asked
to render an opinion about–or competency at
the time you saw him?
A: Competency and mental status.
46 Thompson v. Bell No. 00-5516
9Kissinger defended b oth depositions.
Q: In terms of competency, did you evaluate him
as being competent?
A: At the time that I saw him, it’s my opinion he
was competent.
(DCTR 91).
In response to Thompson’s motion for costs, Respondent
reiterated that in his October 30, 1998, initial witness list,
Thompson stated that he intended to call two expert
witnesses, Dr. Barry Crown and Dr. Faye Sultan. Respondent
stated that with regard to the substance of the expert
testimony, Petitioner indicated that each would testify in
pertinent part that Petitioner’s mental condition substantially
impaired his ability to distinguish between right and wrong
and/or to conform his conduct to the requirements of law.
Respondent contended that on December 24, 1998,
Respondent notified Petitioner that he intended to call Dr.
Theodore Blau as an expert in the area of forensic
neuropsychology to rebut the testimony of Drs. Crown and
Sultan. Respondent further claimed that, pursuant to the
November 2, 1998 order of the magistrate judge, Respondent
conducted the depositions of Dr. Crown and Dr. Sultan on
July 20, 1999, and July 22, 1999, respectively.9 Respondent
further contended that, prior to those depositions, Respondent
received no information from Petitioner other than that
contained in the initial witness list, nor had Respondent been
provided with any information concerning the data or other
information considered by the witnesses in forming their
opinions, as required by Fed. R. Civ. P. 26(a)(2)(B). Finally,
Respondent asserted that, although it was clear from
Respondent’s notice of expert witnesses that Dr. Blau would
be called to rebut the testimony of Petitioner’s experts,
Petitioner chose to schedule the deposition of Dr. Blau on

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No. 00-5516 Thompson v. Bell 47
July 15, 1999, before the previously-scheduled depositions of
Drs. Crown and Sultan.
c. The District Court’s Ruling on the Rule 56 Motion
On February 17, 2000, the district court issued a
Memorandum granting Respondent’s summary judgment
motion as to all claims and dismissing his § 2254 motion.
The district court stated in relevant part:
Petitioner claims experts recently obtained by him
have revealed that he was incompetent under Tennessee
law at the time of the crime and throughout his court
proceedings. Petitioner has failed to state the name of
the expert and failed to provide the proof of these
revelations. The Court has read the deposition of Dr.
Crown, (Court File No. 119, Exhibit 1) but was unable
to located [sic] his opinion that Thompson was
incompetent at the time of the crime and throughout his
court proceedings. As a matter of fact, Dr. Crown stated
he was not asked to render any determination about
whether or not Thompson was competent during his state
jury trial. (Court File No. 91, Exhibit 1, pp. 7-9). Dr.
Crown stated he was only asked to make a competency
determination at the time he met Mr. Thompson on June
12, 1998. After meeting with Thompson for two and a
half to three hours, which consisted of taking a brief
history for twenty-five to thirty minutes and the
remainder of the time was spent administering tests, it
was his opinion that Thompson was competent on June
12, 1998. (Court File No. 91, Exhibit 1, p. 7-47).
Dr. Crown did testify Thompson had a significant
auditory processing deficit which means he is easily
distracted by external auditory stimuli. (Court File No.
91, Exhibit 1, p. 20). He further testified that some of the
test results led him to conclude that there was some sort
of organic brain damage. However, he is not able to
make any assessment of the severity of the damage nor
48 Thompson v. Bell No. 00-5516
does he intend to make such an evaluation. (Court File
No. 91, Exhibit 1, pp. 24-28). Dr. Crown believes this
organicity is secondary to a thought disorder which he
refers to as a schizo-affective disorder-bipolar subtype
with organic components. Dr. Crown bases his
conclusion on the reports of the people who have treated
Thompson for the last fourteen years. (Court File 91,
Exhibit 1, p. 35).
Respondent hired Dr. Blau to rebut Dr. Crown’s
testimony. Portions of Dr. Blau’s testimony have been
filed with the Court. Dr. Blau testified he did not
observe or see any indications of organic brain damage
on the test he administered. Dr. Blau found Thompson’s
responses during testing were rational and appropriate.
(Court File No. 89, Attachment C, pp. 31, 47-48).
Thompson has failed to provide any significant
probative evidence which would make it necessary for
this Court to resolve a factual dispute. . . . Thompson
has not provided this Court with anything other than
factually unsupported allegations that he was
incompetent at the time he committed the crime and at
the time of his jury trial. Nor has Thompson provided
this Court with any significant probative evidence that
Thompson was suffering from a significant mental
disease that should have been presented to the jury
during the punishment phase as mitigation evidence.
Petitioner had two different psychological evaluations
and both resulted in findings of competency at the time
of the crime and at the time of trial. Additionally, the
record shows that trial counsel did reasonably
investigate Thompson’s background and mental health
history.
Memorandum dated February 17, 2000 at 53-55 (emphases
added) (DCTR 124).

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No. 00-5516 Thompson v. Bell 49
d. The Motion to Alter or Amend
On March 2, 2000, Petitioner filed a motion to alter or
amend the judgment pursuant to Fed. R. Civ. P. 59. By way
of introduction, the motion states:
As an initial point, undersigned counsel apologizes for
any lack of clarity which may exist in Petitioner’s
pleadings.1 Though counsel disagrees with the Court’s
criticism of those pleadings, the fact that the Court’s
Decision is contrary to controlling authority and sound
legal reasoning provides empirical evidence that
undersigned counsel has somehow failed to bring that
authority and reasoning to the Court’s attention. Mr.
Thompson should not suffer because of counsel’s
shortcomings. Furthermore, this Court should not face
almost certain reversal simply because counsel phrased
otherwise irrefutable arguments in such a way that the
Court remained unaware of the proper resolution of
Respondent’s Motion for Summary Judgment. In an
effort to fulfill his duty to both his client and the Court,
counsel now attempts to phrase those arguments in such
a way that the Court is fully aware of their nature and
asks this Court to alter or amend the judgment entered
herein to fully address such arguments and thereafter
deny Respondent’s Motion for Summary Judgement.2
____________________
1The Court’s Decision contains several negative
comments regarding perceived deficiencies in
undersigned counsel’s pleadings.
2Though Mr. Thompson does not waive or concede
any of the issues and/or arguments raised by the
pleadings which were not expressly or previously waived
or conceded, and the same are reasserted herein,
Petitioner’s Motion to Alter or Amend centers on two
primary issues: (1) whether the procedural bar which
50 Thompson v. Bell No. 00-5516
was, or would be, applied to claims arising from facts not
heretofore presented to the state courts of Tennessee is
independent of federal law; and (2) whether the State of
Tennessee’s interference with Mr. Thompson’s attempts
to present claims arising from his unquestionably severe
mental illness either deprived Mr. Thompson of a full
and fair opportunity to present the facts supporting those
claims to the state courts of Tennessee or provided
“cause” for not presenting the facts supporting those
claims to the state courts of Tennessee.
(DCTR 126, at 1-2). Thompson then presented argument on
two issues, namely, that “The Tennessee Courts Will Not
Apply the Tennessee State Post-Conviction Statute of
Limitations to Petitioner’s ‘Later-arising’ Claims in a Manner
that is Independent of Federal Law, “ and that “The
Tennessee Court’s Refusal To Afford Petitioner Mental
Health Services During State Post-conviction Proceedings
Constituted a State Obstacle to the Presentation of Facts
And/Or Claims Arising From Mr. Thompson’s Mental
Illness.” In conclusion, Thompson reiterated that although
the motion to alter or amend did not specifically address
every error in the district court’s decision, which he
specifically reasserted, “[t]he errors addressed herein,
however, go to the very integrity of the judicial process.”
(DCTR 126 at 10). The motion was signed by Stephen M.
Kissinger.
e. The District Court’s Ruling on the Motion to Amend
On March 31, 2000, the district court denied the motion,
holding that Thompson had failed to present any additional
information which justified reconsideration and an order
altering or amending judgment. (DCTR 128).
On April 21, 2000, Thompson filed his notice of appeal to
this Court.

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No. 00-5516 Thompson v. Bell 51
10On March 2, 2001, Hansen filed with this C ourt a m otion to hold
case in abeyance pending Thompson’s contemporaneous Rule 60(b)
motion in the district court. Dr. Sultan’s deposition is attached to that
motio n. W e den ied that reque st by ord er dated M arch 2 1, 20 01.
f. The Rule 60(b) Motion
On March 2, 2001, Thompson, through undersigned
appellate habeas counsel, Dana C. Hansen, also of the Federal
Defenders Office of Eastern Tennessee, filed a motion under
Fed. R. Civ. P. 60(b).10 In that motion, Thompson
“respectfully request[ed] the Court to relieve Mr. Thompson
from the final order entered on February 17, 2000, for the
purpose of entering an order to supplement the record with
Respondent’s deposition of Dr. Faye E. Sultan, Ph.D, and the
accompanying report of Dr. Sultan.” (DCTR 133, at 1).
Thompson claimed that the petition was timely. “The order
entered in Mr. Thompson’s case granting summary dismissal
of his amended petition for writ of habeas corpus was entered
on February 17, 2000. Therefore this motion, being filed
within one year of the order, is timely.” (Id.)
Thompson explained “Dr. Sultan’s Involvement in this
Case:”
Earlier in Mr. Thompson’s District Court proceedings,
Respondent took the deposition of Dr. Sultan. The
district court record presently contains a summary of her
conclusions in an expert disclosures pleading (R. 19) and
an affidavit detailing her opinion regarding Mr.
Thompson’s mental health status in February 1999 (R.
34). Having examined Mr. Thompson and viewed his
social and medical history, Dr. Sultan executed a report
in addition to her testimony at Respondent’s deposition.
(Attachments A & B).
Although this Court denied Mr. Thompson’s mental
health related claims partially on procedural grounds, Dr.
Sultan’s deposition and report are important to the merits
52 Thompson v. Bell No. 00-5516
of the claims. With regards to the merits of Mr.
Thompson’s mental health related claims, he maintains
that he made a sufficient showing of a genuine issue of
material fact to overcome Respondent’s summary
judgment motion notwithstanding Dr. Sultan’s opinions.
However, Dr. Sultan’s opinions certainly are directly
relevant to the mental health related claims and should be
considered by the Court. Counsel for Mr. Thompson
engaged in [sic] Dr. Sultan’s services for the sole
purpose of offering her opinions to support his
constitutional claims. The failure of counsel to ensure
that Dr. Sultan’s opinions were filed in the record is a
result of excusable neglect.
(Id. at 2) (emphasis added).
In support of his claim that Dr. Sultan’s deposition and
report were not included in the record because of mistake,
inadvertence, surprise, or excusable neglect, Thompson stated
the following:
District Court counsel for Mr. Thompson, Stephen M.
Kissinger, was under the mistaken belief that the
evidence was in the record.1 To the extent that counsel
should have nonetheless known that Respondent had not
placed Dr. Sultan’s deposition and report in the record,
counsel’s failure to ascertain that fact and file the same
himself was the result of excusable neglect. During the
time period in question, counsel’s office was in a state of
turmoil and his caseload was excessively burdensome.

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No. 00-5516 Thompson v. Bell 53
As described fully in the attached affidavit of counsel,
Stephen M. Kissinger, this state of disorder contributed
to counsel’s excusably negligent failure to realize that
Dr. Sultan’s deposition and report were not filed in the
record. (Attachment C).
__________________
1. Respondent’s deposition of Dr. Crown and the
accompanying report were placed in the record by
Respondent. (R. 91). Because Respondent had moved
for costs incurred in, inter alia, hiring its own mental
health expert, Dr. Blau, on the grounds that Dr. Blau’s
services were unnecessary because Petitioner had no
expert opinions to support the mental health related
allegations contained in the petition, counsel for Mr.
Thompson was under the mistaken belief that
Respondent had placed his deposition of Dr. Sultan
and the report which Dr. Sultan had supplied to
Respondent in the record.
(Id. at 3) (emphasis added). Thompson therefore asked the
Court to order the record supplemented with the deposition
and report of Dr. Faye E. Sultan, PhD, and that the district
court revisit its previous summary denial of Thompson’s
petition. (Id.)
(i). Dr. Sultan’s Report
Attached to the motion are three exhibits. The first is a
psychological report prepared by Dr. Sultan, dated July 22,
1999. Dr. Sultan states the referral questions as follows:
1. Mr. Thompson’s current psychological status[.]
2. Mr. Thompson’s likely psychological status and
mental state before and surrounding the time of
the 1985 offense.
54 Thompson v. Bell No. 00-5516
3. Social, environmental, psychological, and
economic factors in the life of Mr. Thompson
which might have [to] be considered to be
mitigating in nature at the time of his trial.
(DCTR 133, Attachment A; emphasis added).
Dr. Sultan’s report indicated that she began psychological
evaluation of Thompson on August 20, 1998. At the first
session, which lasted four hours, Dr. Sultan conducted a
clinical interview and administered the MMPI-2. Dr. Sultan
also noted that she did not assess Thompson’s levels of
current intellectual and neuropsychological functioning
because they had recently been assessed by Dr. Crown.
Thereafter, Dr. Sultan initiated “a very extensive review of
legal, military, medical, prison and psychiatric/psychological
records.” Regarding “Relevant Psychological/Psychiatric
Data Contained in Records,” Dr. Sultan stated:
The [sic] is substantial documentation throughout the
Tennessee Department of Corrections records that Mr.
Greg Thompson has suffered from significant mental
illness since at least the time of his incarceration in 1985.
He has been treated almost continuously with some
combination of major tranquilizer and/or anti-depressant
and/or anti-anxiety medications. He has received a
variety of diagnostic labels including Psychosis,
Psychosis Not Otherwise Specified, Paranoid
Schizophrenia, Mania, Mixed Substance Abuse,
Schizophrenia, BiPolar Affective Disorder,
Schizoaffective Disorder, Malingering, and Adult
Antisocial Behavior. This is clearly indicative of the
Tennessee DOC mental health staff’s view that Mr.
Thompson has experienced major mental illness
throughout at least most of his period of incarceration.
Further, there is extensive documentation contained in
these records of many episodes of bizarre aggressive
and/or self destructive behavior.

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No. 00-5516 Thompson v. Bell 55
(Id.)
Next, Dr. Sultan stated that she interviewed five individuals
“who provided significant supplemental information about the
life circumstances and past/present psychological functioning
of Mr. Gregory Thompson.” Dr. Sultan interviewed Ms.
Maybelle Lamar, Thompson’s maternal grandmother. Dr.
Sultan reported that Lamar assumed complete responsibility
for Thompson and his two older siblings after Thompson’s
mother was killed when Thompson was five years old. Dr.
Sultan reported Lamar’s description of Thompson as follows:
Ms. Lamar described Mr. Thompson as displaying
significantly “different” behavior when he returned to
visit her following his discharge from the U.S. Navy.
“Greg didn’t act the same”. Unlike the ‘eager to please’,
passive, sometimes funny gentle boy who she had
reared, Mr. Thompson was “angry”, “sometimes sad”. “I
don’t think he wanted me to know what was going on
with him. He mostly just stayed away from me.” Ms.
Lamar reported that she noticed Mr. Thompson
sometimes “staring off into space” or “talking to
himself”. She would ask him about these behavior. [sic]
“He’d deny it. He acted like he didn’t know what I was
talking about.” Ms. Lamar recalls being quite concerned
about her grandson’s mental state during this time. She
did not recall ever being asked questions at any time
before or during Mr. Thompson’s trial.
(DCTR 133 Attachment A).
Dr. Sultan also interviewed Ms. Nora Jean Hall Wharton,
Thompson’s older sister. Dr. Sultan reported:
Ms. Wharton described Mr. Greg Thompson as a
highly sensitive, passive, timid, emotionally vulnerable
child. She described a childhood of great hardship.
According to her report, their grandmother, Ms.
Maybelle Lamar was verbally abusive, neglectful of the
56 Thompson v. Bell No. 00-5516
children’s basic daily needs, highly critical, and unable
to care properly for the children. Ms. Wharton described
many instances of such abuse and neglect. She described
the period following their mother’s death as particularly
chaotic and neglectful, recalling that often there was no
food in the home and that the children would take money
from under their grandmother’s mattress to go and buy
food. In the period following their mother’s death, Ms.
Wharton reported that her grandmother was
continuously drunk and unable to care for her
grandchildren. According to Ms. Wharton, Greg
Thompson frequently witnessed his sister Nora being
beaten by their grandmother.
Ms. Wharton further recalled that she and her younger
brother had witnessed the brutal beating and rape of their
mother by their biological father. She recalls Greg
standing in the scene screaming and sobbing
uncontrollably.
Of particular relevance is Ms. Wharton’s recollections
about Mr. Thompson repeatedly banging his head against
the wall of their home on many occasions during their
early childhood. This behavior frequently followed their
grandmother yelling at Greg “You have the Devil in
you.” Mr. Thompson would tell his sister that he was
attempting to “knock the Devil out” of his head in this
way. Ms. Wharton recalls believing that this behavior
was quite odd.
Ms. Wharton reported that Greg would frequently cry
at school during the early school years, and as a result,
was often the victim of intense mockery from his
classmates. Because Ms. Wharton was in the same
classroom as her brother she observed these behaviors
and often intervened on her brother’s behalf. She
described Mr. Thompson’s response to this abuse as
quite passive.

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No. 00-5516 Thompson v. Bell 57
Following his discharge from military service, Ms.
Wharton described Mr. Thompson’s behavior as
significantly different than his prior conduct and attitude.
She reported several episodes of bizarre behavior which
included a sudden intense emotional reaction without
obvious external provocation. Mr. Thompson would
become extremely angry, would cry and scream for a
lengthy period of time, would appear as if he might or
actually become physically violent or aggressive, and
then would suddenly retreat. Ms. Thompson reported
this behavior and her concerns about it to her
grandmother. Ms. Lamar suggested that Ms. Wharton
take her brother to the psychiatric unit of the local
hospital for treatment. Ms. Wharton did not attempt to
get any treatment for Mr. Thompson and reports feeling
quite guilty about this.
Nora Jean Wharton described her own struggles with
mental illness throughout the past fifteen years. She has
received counseling to assist her in coping with the
effects of her abusive childhood and she has been treated
with a combination of a major tranquilizer (Stellazine)
and anti-depressant medications. She reported her
younger half-sister Kim has also suffered from
significant mental illness.
(DCTR 133 Attachment A).
Dr. Sultan also relayed the report of Michael Chavis, an
investigator for the Federal Defenders Office of Eastern
Tennessee, from his interview of Ms. Cajulao in summer of
1998.
Mr. Chavis reported that Ms. Cajulao described Mr.
Thompson as displaying increasingly bizarre behavior
during the latter part of their relationship. Similar to
descriptions proved [sic] by Ms. Nora Wharton, Ms
Cajulao reported several episodes of “paranoid” and
aggressive behavior which had no apparent external
58 Thompson v. Bell No. 00-5516
antecedent. She reported that Mr. Thompson sometimes
thought that people were “after” him. He would close all
the curtains in the house because he did not want the
person who was “looking” for him to see him through the
curtains. She remembers being quite concerned about
Mr. Thompson’s mental state.
Dr. Sultan next reported her “Summary and Conclusions,”
which we quote here in full:
Mr. Gregory Thompson has experienced symptoms of a
major mental illness throughout his adult life. Indeed,
there is information available which suggests that Mr.
Thompson was displaying significant signs of mental
illness from the time he was a small child. Self-injurious
behavior is reported as early as six years old. There is
extensive documentation contained within the records
reviewed for this evaluation that Mr. Thompson has
experienced a thought disorder and/or an affective
disorder of some type for many years.
It is my opinion that Mr. Gregory Thompson is most
appropriately diagnosed, according to the Diagnostic
and Statistical Manual of Mental Disorders, Fourth
Edition, as having Schizoaffective Disorder, Bipolar
Type. As is typical of this illness, symptoms became
apparent in early adulthood. Mr. Thompson was
suffering serious mental illness at the time of the 1985
offense for which he has been convicted and sentenced.
This mental illness would have substantially impaired
Mr. Thompson’s ability to conform his conduct to the
requirements of the law.
Further, Mr. Thompson was the victim of severe
childhood emotional abuse and physical neglect. His
family background is best described as highly neglectful
and economically deprived. Mr. Thompson repeatedly
witnessed episodes of violence during his childhood in
which one family member assaulted or brutalized

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No. 00-5516 Thompson v. Bell 59
11The documents to which Dr. Sultan refers are not actually attached
to the report. They are attached to her deposition testimony, Attachment
B, and marked as Exhibit 3 to that deposition.
another. There are significant aspects of Mr.
Thompson’s social history that have been recognized as
mitigating in other capital cases.
It is important to note that all of the information related
to Mr. Thompson’s early mental illness and social
history was available at the time of his 1985 trial.
Id. (emphases added). Again, this report is dated July 22,
1999.11
(ii.) Dr. Sultan’s Deposition Testimony
The second attachment is Dr. Sultan’s deposition. Pruden,
counsel for Respondent, took Dr. Sultan’s deposition on July
22, 1999. Appearing on behalf of Thompson was Stephen
Kissinger. Michael Chavis was also present.
Dr. Sultan told Respondent that she was first contacted by
Chavis on behalf of Kissinger in July or August of 1998. Dr.
Sultan testified that
A. Mr. Chavis asked me about my availability and
asked if I would be willing to perform a
psychological evaluation to assess what Mr.
Thompson’s psychological condition might
have been like at the time of the offense in 1985,
to assess whether it was possible to make such
an appraisal, to see whether there were factors
in his personal background that might have
been investigated at the time of trial that would
have had bearing on his psychological status at
the time of the offense, and Mr. Chavis also
suggested that they wanted to know something
about Mr. Thompson’s current psychological
60 Thompson v. Bell No. 00-5516
state, his level of functioning at the present
time.
Q: Were you also asked if you would be able to
determine his competency at the time of his
criminal trial in 1985?
A: That was not an initial question, no.
. . . .
Q: Did Mr. Chavis express to you any opinion as
to what he thought Mr. Thompson’s
psychological condition was, his mental status
was, at the time of the offense?
A: The only opinion that he expressed to me was
that he thought that he was not in good shape,
that he had deteriorated. He didn’t label it in
any particular way. Said he didn’t think that he
was doing as well.
(Emphasis added.) (DCTR 133 Attachment B).
Dr. Sultan also stated that she had consulted with Dr.
Crown. She stated that Chavis told her
Dr. Crown would be conducting the neuropsychological and
intellectual assessment. Dr. Sultan testified that she needed
to check Dr. Crown’s test results so that she could include
them in her opinion, but that she did not provide Dr. Crown
with any of her diagnostic information.
When asked whether she had prepared a social history on
Thompson, Dr. Sultan indicated that she had not yet but that
it had been provided as part of the prison records. Dr. Sultan
testified that she had spoken with Thompson’s grandmother
and sister, and had attempted to speak with his brother Curtis.
She further stated that, although she had not spoken with any
of Thompson’s school teachers, school administrators, or

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No. 00-5516 Thompson v. Bell 61
neighbors, she had reviewed testimony from them. Dr. Sultan
was not sure whether she had reviewed the actual transcript
from Thompson’s court martial, but stated that, at a
minimum, she had reviewed the testimony of at least some of
the witnesses. She had not contacted any of Thompson’s
supervisors in the military.
Although Dr. Sultan also had not spoken with Cajulao, she
interviewed Chavis, who spent several days with Cajulao in
1998. Dr. Sultan stated that she found Cajulao’s observations
“beneficial” in reaching her diagnosis. Specifically,
A: Ms. Cajulao described to Mr. Chavis that
during the course of the four-year relationship
she had with Mr. Thompson, Mr. Thompson
became increasingly bizarre in behavior that he
exhibited. There were a number of occasions in
which there were incidents that took place in
the military that he described to her as him
having been attacked. The facts of the situation
may in fact not be that, but that was his
description to her, that he was being picked on,
that he was being bullied, that he was being
attacked.
He became depressed, according to her, over
time and increasingly paranoid. At some point
she would come home from work, and he
would be in their home with the curtains drawn,
standing by himself in the dark telling her that
people were after him and that he didn’t want
people to be able to look at him through the
windows. She remembers being quite
concerned about his behavior.
There are a couple of situations that she
described to Mr. Chavis in which, with no
external provocation that she could identify,
Mr. Thompson became quite violent with her,
62 Thompson v. Bell No. 00-5516
and she saw those behaviors as very unusual for
him and reported to Mr. Chavis that Mr.
Thompson seemed unaware of what had
provoked it and didn’t even seem after the fact
to remember what had taken place, would
simply, after a period of time, calm himself
down and return to normal behavior. I found all
of that quite significant.
(Id. at 55-56).
Shortly thereafter, Pruden called for a break, and took that
opportunity to take a look at Dr. Sultan’s report. Upon return,
Pruden asked Dr. Sultan:
Q: What indicates to you or what indicia are there
for you that suggest Mr. Thompson was
displaying significant signs of mental illness
from the time he was a small child? How do
you arrive at that conclusion?
A: During my interview with Mr. Thompson’s
sister–and let me say all of her names–Ms. Nora
Jean Hall Wharton, Ms. Wharton spontaneously
began to talk to me about Mr. Thompson’s
behavior in the time period immediately
following their mother’s death.
By the time of the first grade, Mr. Thompson,
when he was being yelled at by his
grandmother, she was reportedly verbally
abusive in the following fashion: She would
yell at him-- you have the devil in you, boy.
She would then observe Mr. Thompson
standing or sitting beside a wall repeatedly
banging his head into the wall. She, in her role
as protector of him, would ask him what was
going on, and he would tell her he was trying to
knock the devil out of his head. She recalls at

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No. 00-5516 Thompson v. Bell 63
the time, although she was quite young herself,
being worried about his behavior and thinking
it as was very odd.
One of things that we know about people who
develop thought disorders is that frequently in
childhood you’ll see one or more peculiarities
in behavior. This would certainly fit in that
category. She recalls other instances.
Q: Sort of self-punishment or a self-exorcism type
thing?
A: A self-injurious behavior is what we would call
it I think. Mr. Thompson, when he was Greg,
in the first and second and third grade had
rather frequent crying episodes in classrooms
that Ms. Wharton recalls also as very unusual in
the context of his schoolroom situation. She
describes him as being the subject of torment on
the part of the students because he behaved in
an odd fashion. Sometimes he would simply
begin to cry and wail and scream and
apparently made a sound like a fire engine
when he was sobbing and developed the
nickname Fire Engine. That’s reported in the
trial transcript. She told me much more detail
about actually the extent of those kind of
emotional outbursts.
At home it was rather common for Mr.
Thompson to begin to cry and scream during
times when Ms. Wharton herself was being
beaten by their grandmother. Ms. Wharton was
the victim of physical abuse on the part of the
grandmother. Mr. Thompson observed much of
this since they were together virtually all of the
time, and Nora Wharton was not really
64 Thompson v. Bell No. 00-5516
permitted much interaction outside of their
home.
(Id. at 60).
Dr. Sultan further testified that:
She [Ms. Wharton] recalled another episode
during which her biological father was brutally
beating and raping their mother on the floor in
front of them when the children were quite
small, perhaps Mr. Thompson was himself three
or four. She was maybe four or five. Mr.
Thompson’s reaction to that was to stand and
scream and scream and scream and scream
during the entire episode.
Any of the–taking the self-injury aside, setting
that aside, any one of those behaviors in
isolation might not be particularly significant.
Putting them together, we begin to see a pattern
of intense emotional reactivity.
Q: So basically, if I understand it, it’s the self-
injurious behavior and the crying and the way
you see him reacting to these physical abuses of
others?
A: Yes.
Q: And that is indicative of a sign of mental illness
to you? I just want to make sure that I’m
understanding what you’re telling me. If I’m
not, please explain it to me.
A: I think I understand your question. It is an early
indicator of a problem that’s likely to develop.
With the benefit of hindsight, it takes on the
significance of a precursor, because then we see

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No. 00-5516 Thompson v. Bell 65
the escalating pattern of dysfunction and
abnormality.
Q: Sort of a causal relationship is what you’re
seeing developing?
A: I’m not sure what causes what. There are often
early indices of later mental illnesses that you
don’t know exactly what it’s going to look like
later, but you realize in looking at the child that
there’s a high likelihood that something is not
going to be right when that person achieves
maturity.
Q: Because of the environment, for example, in
which he’s growing up?
A: Perhaps. Perhaps because of the genetics
involved. Perhaps because of the situations
he’s exposed to, as you said, the environment.
Perhaps because of whatever factors there are.
Perhaps nutrition plays a role in this. These
children were without food for significant
periods of time as well. I don’t know all of the
reasons, but what I know is that if you look
back in the childhood of this man, the
beginnings of mental illness are apparent.
Q: Besides Ms. Wharton’s report of lack of food,
have you seen any evidence that the children
were taken away because of malnutrition?
A: No. Ms. Wharton did tell me, however, that
there was a neighbor who had planned to make
a report to Social Services, so perhaps I’ll have
the opportunity to interview that neighbor as
well.
66 Thompson v. Bell No. 00-5516
Q: . . . You don’t know to what degree the children
were malnourished then?
A: No. I don’t know. I do know that–and this is
confirmed by the grandmother–in the six weeks
approximately following their mother’s death,
the children were left alone virtually all of the
time because Ms. Lamar was drunk and in bed,
and so we have a five, a six, and a seven-year-
old child in a house with no food. They would
occasionally steal money from underneath her
mattress while she was sleeping, and one of
them would go to the store to try to find some
food. Occasionally a neighbor would provide
them with a meal or a can of food. I don’t
know whether they were malnourished over an
extended period of time. I do know that there
is, from Ms. Wharton’s perspective, rather
serious psychological damage from that time.
Q: You have no medical documentation showing
any malnourished condition or that it’s caused
some problem with his brain, do you?
A: I don’t. These children were never taken to the
doctor, so there wouldn’t be any medical
documentation. There’s probably
documentation in the school system. According
to Ms. Wharton, Ms. Lamar was so drunk at the
beginning of the school year following their
mother’s death that she forgot to sign the
children up for lunches at school. They didn’t
have anything to eat during the day, so they
forged her signature on a permission slip so that
they could eat. They were discovered and
punished by the school superintendent people,
and a form was sent home to Ms. Lamar. She
then signed it, and the children were able to eat

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No. 00-5516 Thompson v. Bell 67
lunch after that point. A couple weeks passed
for all of that to get straightened out.
Ms. Wharton has undergone a lot of therapy in
recent years and says that she’s now able to
describe situations that she wasn’t very
comfortable acknowledging to herself, these
being one of them.
Q: Your diagnosis of Mr. Thompson is
schizoaffective disorder, comma, bipolar type.
What leads you to that diagnosis from what
you’ve reviewed and your testing results?
A: What leads me to the diagnosis is that there is a
long history, perhaps at this point almost a 20-
year history, of simultaneous thought disorder
on the part of Mr. Thompson documented
throughout all the records, and affective
disorder, emotional disorder, being unable to
regulate his emotions, sometimes falling into
the pits of despair and becoming suicidal,
sometimes becoming highly agitated and manic
and having too much energy, too much
exuberance, and grandiose thinking. The
thought disorder is manifested in persecutory
ideas, delusions of grandeur–lots of different
kinds of delusions actually–auditory
hallucinations that he sometimes admits to,
sometimes suspected by the doctors who are
doing the examination.
The psychological testing early on in Mr.
Thompson’s incarceration confirm the presence
of a psychotic process. There was an MMPI
administered to him by a prison psychologist in
1990 that is described as valid and indicative of
psychotic process, and throughout the prison
record he receives a variety of diagnoses that
68 Thompson v. Bell No. 00-5516
take into account both thought disorder and
affective illness.
The very best diagnosis to describe all of the
complex of symptoms that I just talked to you
about is schizoaffective disorder, bipolar type.
Q: You note in your report Mr. Thompson was
observed having a significant change in
behavior after he was discharged from the
Navy. What significance do you attach to that
fact?
A: Well, it’s interesting, because the state Court of
Appeals actually notes this, that prior to his
entry into the military Mr. Thompson is
described almost uniformly–well, in fact,
uniformly according to their opinion–as
passive, as compliant, as eager to please, as
gentle, as timid, as eager to run from attacks.
At some point–and we don’t know, because I
haven’t seen any psychiatric records from the
military at this point; I don’t know if there are
any–we don’t know whether or not the change
in Mr. Thompson is perceived as other than
behavioral disruption, but, in fact, his
description of that time is that he began to
notice that people were trying to hurt him all
the time, that officers and other people of his
rank and slightly above his rank attempted to
provoke him, that they sometimes physically
assaulted him, that he thought he was being
followed a lot, and that he sometimes struck out
in what he thought was defense and then later
found out from other people who he knew and
trusted that there wasn’t anything to defend
against or that there might not have been
anything to defend against.

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No. 00-5516 Thompson v. Bell 69
Q: This is what he related to you during your
interview last August?
A: Right. The people who saw him after the
military each were struck by how very different
he seemed. That was the word that kept being
used, “different.” Sometimes the people I was
speaking to were not able to describe what
different meant, but, for example, the
grandmother said that he was different as in not
right, that he wasn’t himself. Ms. Wharton tells
me that the grandmother was very well aware
that he was in deep psychological distress, and,
in fact, the grandmother suggested that he be
taken to the psychiatric unit at Grady Hospital
in Atlanta, I believe, for treatment. The
grandmother observed him staring off into
space for long periods of time. She observed
him mumbling to himself. When she asked him
what he was doing, he told her he had no idea
what she was talking about. She said that was
very different from the boy who left her to go
into service.
The sister has even a better glimpse of him than
that, because he actually went to live with her
for a while, and she said he was bizarre. She
described him as paranoid. She said that he
would explode for no reason at all, that she was
afraid of him for the very first time in her life,
that they had always been terribly close, the sort
of close where if there was only one piece of
bread to eat they would share it, that they
always looked out for one another, and that
suddenly he was behaving in ways that she
simply could not identify. She described three
very serious episodes of aggression and
emotional upset that she said are what led her to
70 Thompson v. Bell No. 00-5516
approach her grandmother about what to do for
treatment for him.
(Id. at 62).
Pruden then asked:
Q: You state that the schizoaffective disorder,
bipolar type, would substantially impair Mr.
Thompson’s ability to conform his conduct to
the requirements of the law. How so?
A: There are points in time when Mr. Thompson is
out of contact with reality. He is responding to
situations that simply don’t exist or that he
perceives in extremely exaggerated or different
form. A person is not able to conform one’s
conduct to the law if you are frankly delusional
or hallucinating in some way. Mr. Thompson
over the years has had both of those symptoms.
Q: So it’s this delusional aspect of this disorder
that is the main factor that would keep him
from having the ability to conform his conduct
to the requirements of law, if I understand you
correctly?
A: Is it the main factor? Let me say that I think it’s
at least as potent a factor if not more as the
other aspect of his mental illness, which is that
he has emotional disregulation.
Q: Meaning?
A: Meaning Mr. Thompson often is not in control
of his emotions. He has episodes of rage, of
aggression, that he doesn’t understand or relate
to very well. He’s told about them later.
Sometimes he remembers them, sometimes he
doesn’t.

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No. 00-5516 Thompson v. Bell 71
(Id. at 69).
The deposition concluded shortly thereafter.
(iii.) Kissinger’s Affidavit
The third attachment is Kissinger’s affidavit. In it, he
explains in relevant part the following:
2. I was appointed to represent the Appellant, Gregory
Thompson, on January 29, 1998, by the district court.
3. In approximately November of 1999, Ms. Leah
Prewitt, the Federal Defender for the Eastern District of
Tennessee, was forced by illness to cease activities on
behalf of Federal Defender Services of Eastern
Tennessee, Inc. Ms. Prewitt’s duties were assumed by
Ms. Elizabeth Ford, an Assistant Federal Defender in the
office. Because Ms. Prewitt had not resigned, Federal
Defender Services of Eastern Tennessee, Inc., was not
able to hire a permanent replacement for Ms. Prewitt.
Because Ms. Ford could not do both Ms. Prewitt’s job
and her own, Federal Defender Services of Eastern
Tennessee, Inc. assigned a portion of Ms. Ford’s
caseload to affiant.
4. Affiant, however, already had an extremely heavy
capital habeas corpus caseload, including, but not limited
to, Mr. Thompson’s case. In fact, his capital caseload
was so heavy that Federal Defender Services of Eastern
Tennessee, Inc. was forced to hire a second attorney to
handle capital habeas corpus cases in July of 2000.
When a portion of Ms. Ford’s cases were assigned to
affiant, that caseload became so great that affiant made
errors which, however understandable, were nonetheless
errors.
5. Despite the affiant’s efforts, there were occasions
when he made assumptions, such as the assumption he
72 Thompson v. Bell No. 00-5516
made regarding Respondent’s filing of the report and
deposition of Dr. Sultan, which were, however
reasonable, incorrect. Counsel’s failure to verify this
assumption regarding these documents was neglect.
Given the extraordinary pressure under which counsel
was operating at that time, such neglect was excusable.
And further this affiant saith not.
(Id. Attachment C)(emphasis added). Kissinger’s affidavit is
dated March 1, 2001.
g. The District Court’s Ruling on the Rule 60(b) Motion
On April 17, 2001, the district court denied Thompson’s
motion to reconsider the order denying his motion to alter or
amend judgment pursuant to Fed. R. Civ. P. 60(b). First, the
district court held that it had previously determined the Rule
60(b) motion was filed outside the one year time period. The
district court noted that, according to its calculation the
motion was required to be filed no later than February 16,
2001, to be considered timely. DCTR 139 (citing Fed. R. Civ.
P. 6 and 60(b)). The district court then noted that:
Thompson now argues, without citing authority, that the
calculation of the Rule 60(b) one-year limitation period
should not begin until March 31, 2000, the date this
Court denied his Rule 59 motion to alter or amend the
judgment. Thompson’s interpretation is contrary to the
plain language of the rule. Thompson has not cited, nor
has the Court found, any authority to support his
position. The rule specifies that the motion should be
made within a reasonable time, and in this case “not
more than one year after the judgment, order, or
proceeding was entered or taken.” Rule 60(b) of the
Federal Rules of Civil Procedure. In the case before this
Court, the order dismissing the habeas petition was
entered on February 17, 2000. [Court File No. 125].

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No. 00-5516 Thompson v. Bell 73
(Id. at 3).
Next, the district court stated, and we quote in full, the
following:
Moreover, the Court specifically noted in its
memorandum opinion dismissing the habeas petition,
that Thompson procedurally defaulted his claim that he
was incompetent at the time of the crime and an the time
of trial. [Court File No. 124, at 35]. Furthermore, when
addressing Thompson’s claim of ineffective assistance
of counsel for failing to adequately investigate his
mental health, the Court placed Thompson on notice
that he failed to provide evidence of his allegations that
he was incompetent at the time of the crime and trial.
[Court File No. 124, at 53].
Petitioner claims experts recently obtained by him
have revealed that he was incompetent under
Tennessee law at the time of the crime and
throughout his court proceedings. Petitioner has
failed to state the name of the expert and failed to
provide proof of these revelations. The Court has
read the deposition of Dr. Crown, (Court File No.
119, Exhibit 1) but was unable to located [sic] his
opinion that Thompson was incompetent at the time
of the crime and throughout his court proceedings.
As a matter of fact, Dr. Crown stated he was not
asked to render any determination about whether or
not Thompson was competent during his state trial.
Id. Thus, the filing of this request more than one year
after Thompson was placed on notice that such
information was not in the record is unreasonable and not
excusable neglect.
(Id. at 3-4) (bold and underlining added).
74 Thompson v. Bell No. 00-5516
2. Appeal to this Court
Thompson did not appeal from the order of the district
court’s denying his motion to alter or amend judgment. On
appeal to this Court, Thompson articulated the issues for
review as follows:
I. Whether the district court erred when it
reviewed Mr. Thompson’s claims under the “all
reasonable jurists” standard denounced by the
Supreme Court in (Terry) Williams v. Taylor to
summarily deny Mr. Thompson’s petition.
II. Whether the district court erred in denying Mr.
Thompson’s habeas petition without a hearing
where Mr. Thompson did not fail to develop the
factual basis of his claims in state court and
whether the district court erred by making
factual findings without affording Mr.
Thompson the opportunity to present evidence
with regards to those findings.
III. Whether Mr. Thompson received ineffective
assistance of counsel in both the guilt and
sentencing phases of his capital trial where
counsel failed to investigate and present
evidence regarding Mr. Thompson’s mental
illness and social history and failed to present
evidence in support of a life sentence in
violation of due process and the Sixth
Amendment.
IV. Whether Mr. Thompson’s Fifth, Sixth, Eight,
and Fourteenth Amendment rights were
violated when the state withheld exculpatory
evidence which clearly supported Mr.
Thompson’s claim of serious mental illness and
its debilitating effects and presented false
evidence regarding Mr. Thompson’s mental

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No. 00-5516 Thompson v. Bell 75
12On July 26, 2002, Respondent-Appellee, Ricky Bell, filed a motion
for reconsideration o f our order filed July 26, 2002, granting Petitioner’s
ex parte motion for authoriz ation to expand the appointment of counsel
to include state court proceedings. That motion has not yet been ruled on.
Furthermore, our docket sheet reflects that, on March 1 4, 2003, D ana
C. Hansen filed a motion to stay the mandate, and that we granted it on
March 24, 200 3. On D ecem ber 2 , 200 3, Dana H ansen filed a motion to
further stay the mandate, which this Court granted on December 12, 2003.
health during trial and post-conviction
proceedings.
Curiously, appellate habeas counsel Dana Hansen did not
appeal the denial of the Rule 60(b) motion, despite her
apparent realization that Dr. Sultan’s deposition testimony
and report were never made part of the district court record.
III. Discussion
A. Procedural Posture
This case is governed by the Anterrorism and Effective
Death Penalty Act of 1996, and we have already ruled on the
initial habeas petition. See Thompson v. Bell, 315 F.3d 566
(6th Cir. 2003), cert. denied, 124 S. Ct. 804 (2003).
However, as alluded to above, this matter is before us in a
unique procedural posture, on our own motion, and prior to
the issuance of the mandate.12 Thus, we are not obliged to
satisfy the requirements for the filing of a second or
successive petition outlined in 28 U.S.C. § 2244. See
Workman v. Bell, 227 F.3d 331, 334 (6th Cir. 2000) (en banc;
equally divided court) (stating that “[a]s a general rule, when
a mandate is recalled with respect to a petition for writ of
habeas corpus, the petitioner first must satisfy the
requirements for the filing of a second or successive petition
as outlined in § 2244(b)).
76 Thompson v. Bell No. 00-5516
However, even if this matter were before us as a second
habeas petition, it would not matter, because the AEDPA
does not bar a second or successive petition premised upon
fraud upon the court. See Workman v. Bell, 245 F.3d 849,
852 (6th Cir. 2001) (“In our equally divided opinion denying
further relief for the petitioner . . ., all of the judges agreed
that the court can reconsider the petition if there was a fraud
upon the court.”) Cf. Calderon v. Thompson, 523 U.S. 538,
556-57 (1998) (holding that the principles of the AEDPA
apply in general to a recall of the mandate because a “State’s
interests in finality are compelling when a federal court of
appeals issues a mandate denying federal habeas relief;”
exempting claims of “fraud upon the court, calling into
question the very legitimacy of the judgment”); Workman,
227 F.3d at 334 (stating that “[o]ne of the reasons which
would justify recalling a mandate is the potential existence of
a fraud upon the court”). Indeed, in Calderon, the Supreme
Court stated that “a mandate may be recalled when it is
necessary to address new circumstances before the court
which are ‘grave’ and ‘unforeseen’ or which are, in other
words, unforeseeable circumstances which implicate the
justice of the judgment previously rendered.” Workman, 227
F.3d at 334 n.3 (citing Calderon, 523 U.S. at 549).
B. Ineffective Assistance of Trial Counsel at Mitigation
As the United States Supreme Court recognized in
Strickland, “the Sixth Amendment right to counsel exists, and
is needed, in order to protect the fundamental right to a fair
trial.” Srickland v. Washington, 466 U.S. 668, 684 (1984).
“‘[T]he right to counsel is the right to effective assistance of
counsel,’” id. (quoting McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970)), and a defendant can be deprived of that
right by counsel’s failure to render “‘adequate legal
assistance.’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335,
344 (1980)).
In Strickland, the Supreme Court held that

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No. 00-5516 Thompson v. Bell 77
[a] convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction or
death sentence has two components. First, the defendant
must show that counsel’s performance was deficient.
This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result
is reliable.
Id. at 687.
When the duty at issue is the duty to investigate, “counsel
has a duty to make reasonable investigations, or to make a
reasonable decision that makes particular investigations
unnecessary.” Id. at 690; see also id. at 688-89.
Reasonableness is determined by considering all of the
circumstances. Id. at 688. However “[p]revailing norms of
practice as reflected in American Bar Association standards
and the like,” are guides to determining reasonableness. Id.;
see also Hamblin v. Mitchell, 354 F.3d 482, 486-88 (6th Cir.
2003) (same).
Also relevant to the question of whether the scope of
counsel’s investigation was reasonable is what counsel
actually knew. “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 v. Smith, 539 U.S. 510, 123
S. Ct. 2527, 2538 (2003).
1. Deficient Performance
In our previous opinion we held that trial counsels’
investigation was sufficient, principally because Thompson
78 Thompson v. Bell No. 00-5516
13Schizophrenia is a chronic disorder of thought, characterized by
delusions, hallucina tions, diso rganized sp eech or gro ssly disorganized
orientation or catatonic beha viors. See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders pp. (rev. 4th ed.
2000) (“DSM -IV”). There is no definite laboratory or radiological test
that establishes the diagnosis of schizophrenia, rather, the d iagnosis is
based on longitudinal historical information. As individuals with
schizo phrenia may not disclose the full extent of their symptoms, an
evaluation for the presence or absence of schizophrenia or o ther psychotic
disorders is not complete without a thorough social history obtained from
family members or friends who have known the patient over time.
failed to present any evidence indicated that he suffered from
symptoms of mental illness at the time of the offense. See
Thompson, 315 F.3d at 589. In other words, we could not
have found ineffective assistance because there was no
showing that trial counsel missed available evidence, and we
were mislead by incomplete records.
According to Dr. Sultan’s July 1999 testimony, Thompson
was suffering from a serious mental illness at the time of the
offense.13 Moreover, “all of the information related to Mr.
Thompson’s early mental illness and social history [and] was
available at the time of his 1985 trial.” Had trial counsel
adequately interviewed family members, counsel would have
found that Thompson exhibited troubling behaviors from an
early age. Thompson engaged in self-injurious behaviors as
a young child. As a young adult, and prior to the murder,
Thompson had mood swings and episodes during which he
acted in a bizarre manner and appeared to lose contact with
reality. He talked to himself. At times he became agitated,
crying and screaming for no apparent reason. At other times,
he appeared paranoid, keeping the drapes closed, fearing that
he was being followed. As Dr. Sultan observed, although each
instance taken alone might not be sufficient, when combined
with Thompson’s abnormal responses, they are indicative of
an early psychopathology.
As Dr. Blair indicated at the state post-conviction hearing,
a complete social and family history is critical to the

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No. 00-5516 Thompson v. Bell 79
establishment of a diagnosis of mental illness. See
Thompson, 315 F.3d at 579. Yet, according to Dr. Blair,
MTMHI’s records only contained sketchy information related
to Thompson’s history before he committed the murder. Dr.
Copple’s testimony indicated that he did not take a thorough
history: “I did get a little bit of general information, such as
his age, his education.” Dr. Copple did not appear to be
aware of Thompson’s possible symptoms. When asked about
Thompson’s report of mood swings, Copple indicated that he
did not believe Thompson ever had mood swings or reported
them to Dr. Watson.
This readily available social and family history evidence,
had trial counsel obtained it, should have been reported to
experts for psychiatric evaluation. After all, it was counsel
who traveled to Thompson’s home town to interview family
members and friends and would have had access to the
information. Furthermore, the evidence was not subtle,
counsel did not need any expertise in psychiatry, as even
Thompson’s family members were aware of Thompson’s
need for a psychiatric evaluation.
Trial counsel were also ineffective for failing to obtain and
present a comprehensive social history. Thompson was the
victim of verbal abuse and neglect of sufficient severity that
by first grade Thompson was exhibiting odd behaviors. He
repeatedly banged his head in response to his grandmother
yelling at him. He wailed in the classroom and received the
nickname of “Fire Engine” due to the unusual sound of his
sobs. At age three or four, he observed his father brutally
beat and rape his mother. His mother died when he was five
years old and he was left with his maternal grandmother who
was continuously drunk for the first six weeks and did not
even provide food for the children. All of this information
was powerful mitigating evidence that should have been
presented to the trier of fact at sentencing. See Wiggins v.
Smith, 539 U.S. 510 (2003) (holding that the scope of trial
counsel’s investigation was unreasonable when counsel failed
to investigate the petitioner’s social history, including the fact
80 Thompson v. Bell No. 00-5516
that his mother was a chronic alcoholic and that he was sent
to various foster homes, factors which would have led any
reasonably competent attorney to pursue); Williams v. Taylor,
529 U.S. 362, 395-98 (2000) (finding ineffective assistance of
counsel because counsel failed to investigate and introduce
readily available evidence of the petitioner’s nightmarish
childhood, including severe and repeated beatings by his
father, and available evidence showing that the petitioner was
borderline mentally retarded; also finding prejudice in that the
evidence “might well have influenced the jury’s appraisal of
his moral culpability”); Hamblin, 354 F.3d at 489-91
(holding that defense counsel’s representation of the
petitioner fell short of prevailing standards because had
counsel investigated, they would have found a large body of
mitigating evidence of an unstable and deprived childhood,
characterized by extreme poverty, neglect, and family
violence, as well as signs of a mental disability or disorder);
Coleman v. Mitchell, 268 F.3d 417, 451-54 (6th Cir. 2001)
(finding ineffective assistance at mitigation where counsel
failed to present evidence of the petitioner’s horrific
childhood, his mental and emotional disorders, and low IQ);
Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000) (finding
ineffective assistance where counsel failed to present
evidence “of a childhood in which abuse, neglect and hunger
were normal”).
Like trial counsel in Wiggins, trial counsel here had more
than sufficient leads to investigate further. Cf. Wiggins, 123
S. Ct. at 2536-37 (holding that trial counsel’s decision not to
expand their investigation beyond a presentence investigation
report and department of social services records which
revealed facts concerning the petitioner’s alcoholic mother
and his problems in foster care, as well as his self-report of a
miserable childhood was unreasonable). Thompson’s trial
counsel were aware that Thompson had exhibited possible
symptoms of a mental illness. Trial counsel filed a notice of
insanity defense and requested that Thompson undergo a
mental evaluation. In a letter dated March 29, 1985 to Dr.
Taran of Multi-County Mental Health, counsel explained that

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No. 00-5516 Thompson v. Bell 81
Thompson was experiencing “extreme mood changes.”
Counsel also knew of Thompson’s violent behaviors in the
military, which were in stark contrast to Thompson’s previous
history. In addition, as described in the report, Thompson
described hearing auditory hallucinations “all of his life”
when admitted to MTMHI. As counsel testified at the post-
conviction evidentiary hearing, “[t]he thing that struck me so
strongly throughout this whole case was really to do with that,
and that was the difference in the man when he lived in
Georgia and grew up there and what kind of person he was as
opposed to someone who committed–allegedly committed
this act, this murder and that was a tip off that there may have
been some kind of brain injury.” Thompson, 315 F. 3d at 577.
In short, trial counsel’s investigation into Thompson’s
background did not reflect reasonable professional judgment
in light of what they knew and suspected. Cf. Wiggins, 123
S. Ct. at 2542 (holding that trial counsel’s decision to end
their investigation when they did was unreasonable in light of
the evidence counsel uncovered in the social service records).
2. Prejudice
The failure to present this mitigating evidence was
prejudicial. Cf. Wggins, 123 S. Ct. at 2542 (holding that the
petitioner’s evidence of severe privation and abuse in his
early life while in the custody of his alcoholic mother and
physical abuse in subsequent years in foster care prejudiced
his defense). As the Supreme Court stated in Wiggins,
“Petitioner thus had the kind of troubled history we have
declared relevant to assessing a defendant’s moral
culpability.” Id. at 2542 (and cases cited therein). Finally, as
was true in Wiggins, “[h]ad the jury been able to place the
petitioner’s excruciating life history on the mitigating side of
the scale, there is a reasonable probability that at least one
juror would have struck a different balance.” Id. at 2543.
In sum, trial counsels’ conduct failed to render effective
assistance of counsel guaranteed by the Sixth Amendment by
failing to conduct a reasonable investigation of Thompson’s
82 Thompson v. Bell No. 00-5516
14Although Demjanjuk involved misconduct by federal prosecutors,
I see no reason why defense attorneys should not be held to a similar
standard of integrity, especially when defense counsel are federal
defenders sp ecializing in hab eas and cap ital cases.
social history and present powerful, readily available
mitigating evidence, and by failing to pursue known leads that
might have helped them to prepare their case in mitigation.
In light of Dr. Blair’s post-conviction testimony that a full
history was needed to determine whether Thompson was
schizophrenic at the time of the offense, the state court
postconviction courts’ denial of funds amounted to an
objectively unreasonable application of Strickland under 28
U.S.C. § 2254(d)(1).
C. Misconduct of Habeas Counsel
The next issue is whether Kissinger may have intentionally,
or at a minimum recklessly, failed to timely and properly
present critical evidence to the district court and this
Court–evidence which, in the words of the district court,
might have entitled Thompson to relief. Simply put, the
question is this: how and why did habeas counsel fail to
timely and properly present Dr. Sultan’s expert opinion
testimony that “Mr. Thompson was suffering serious mental
illness [Schizoaffective Disorder, Bipolar Type] at the time of
the 1985 offense for which he has been convicted and
sentenced. This mental illness would have substantially
impaired Mr. Thompson’s ability to conform his conduct to
the requirements of law.” Psychological Report prepared by
Dr. Faye Sultan, dated July 22, 1999.
This matter is somewhat reminiscent of Demjanjuk v.
Petrovsky, 10 F.3d 338 (6th Cir. 1993).14 There, on its own
motion, this Court vacated the judgment of the district court
denying the petitioner’s writ of habeas corpus upon finding
that the judgments in the underlying extradition proceedings
were wrongly procured as a result of prosecutorial

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No. 00-5516 Thompson v. Bell 83
15Specifically, we found that attorneys for the Department of Justice
Attorneys “acted with reckless disregard for the truth and fo r the
government’s obliga tion to take no steps that preve nt an ad versary from
presenting his case fully and fairly” when they withheld exculpatory
materials from the petitioner. Demjanjuk v. Petrovsky, 10 F.3d 338, 354
(6th Cir. 1993).
misconduct that constituted fraud on the court.15 Id. at 356.
As in Demjanjuk, we must decide if “the conduct outlined
herein constitutes fraud on the court or attorney misconduct
sufficiently serious to require corrective action on our part.”
Id. at 352.
As we observed in Demjanjuk, fraud upon the court “is a
somewhat nebulous concept,” defined as embracing
only that species of fraud which does or attempts to,
subvert the integrity of the court itself, or is a fraud
perpetrated by officers of the court so that the judicial
machinery cannot perform in the usual manner its
impartial task of adjudging cases that are presented for
adjudication, and relief should be denied in the absence
of such conduct.
Id. (quoting 7 Moore’s Federal Practice and Procedure,
¶ 60.33)). See also Hazel-Atlas Glass Co. v. Hartford
Empire Co., 322 U.S. 238, 245 (1944) (holding that fraud
upon the court generally involves a deliberately planned
scheme to subvert the integrity of the judicial process). Cases
dealing with fraud on the court usually turn on whether the
improper actions involved the parties alone, or whether the
attorneys in the case were also involved. Demjanjuk, 10 Fd.
3d at 352. As we further observed in Demjanjuk, “[a]s an
officer of the court, every attorney has a duty to be
completely honest in conducting litigation,” and that
while an attorney should represent his client with
singular loyalty, that loyalty obviously does not demand
that he act dishonestly or fraudulently; on the contrary
84 Thompson v. Bell No. 00-5516
his loyalty to the court, as an officer thereof, demands
integrity and honest dealing with the court. And when he
departs from that standard in the conduct of a case he
perpetrates fraud upon a court.
Id. at 352 (quoting 7 James Wm. et al., Moore’s Federal
Practice ¶ 60.33). Finally, we remarked that “[a]lthough
there are cases holding that a ‘plan or scheme’ must exist in
order to find fraud on the court, we agree . . . that a scheme,
based on a subjective intent to commit fraud, is not required
in a case such as this. Reckless disregard for the truth is
sufficient.” Id. at 352-53 (holding that Department of Justice
Attorneys committed fraud on the court by failing to disclose
to the courts and to the detainee exculpatory information in
their possession).
Demjanjuk defined fraud on the court as consisting of
(1) conduct by an officer of the court, (2) directed towards the
judicial machinery itself, that is (3) intentionally false,
wilfully blind to the truth or is in reckless disregard for the
truth, is (4) a positive averment or concealment when one is
under a duty to disclose, and that (5) deceives the court. Id.
at 348.
The first and second fraud on the court factors appear to be
easily met. Thompson’s attorneys are clearly officers of the
court, see generally Hickman v. Taylor, 329 U.S. 495, 510
(1947) (noting that “[h]istorically, a lawyer is an officer of the
court and is bound to work for the advancement of justice
while faithfully protecting the rightful interests of his
clients”), and their representation of Thompson in these
habeas proceedings was and is clearly directed at the judicial
machinery of the court.
The fourth and fifth factors also appear to be present.
Habeas counsel for Thompson had an obligation, as part of
their duty to represent zealously their client, to present to the
court material, critical, available evidence, which in this case
would virtually have ensured the relief Thompson requested

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No. 00-5516 Thompson v. Bell 85
16This seems to be a pretty natural assumptio n, given counsel’s
obligation to zealously represent their client.
in his federal habeas corpus petition. This meant presenting,
by affidavits or otherwise, proof of Thompson’s mental
illness at the time of the offense in response to Respondent’s
motion for summary judgment. See Fed. R. Civ. P. 56(e)
(stating that “[w]hen a motion for summary judgment is made
and supported as provided in this rule, an adverse party may
not rest upon the mere allegations or denials of the adverse
party’s pleading, but the adverse party’s response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.
If the adverse party does not so respond, summary judgment,
if appropriate, shall be entered against the adverse party”).
See also Fed. R. Civ. P. 56(c) (stating that “[t]he judgment
sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law”). If counsel
knew that it had positive, mitigating proof in the form of an
expert opinion that Thompson suffered from a mental illness
at the time of the offense such that it would have substantially
impaired his ability to conform his conduct to the
requirements of the law–information that the district court
specifically indicated in its discovery order might entitle
Thompson to the relief he requested–then that information
should have been presented in response to Respondent’s
motion for summary judgment so as to prevent the grant of
summary judgment in Respondent’s favor and against
Thompson.
Here, both the district court and this Court were deceived.
That is, both courts assumed that probative evidence as to
Thompson’s mental illness at the time of the crime did not
exist because counsel failed to present it.16 Based on the
natural assumption that such evidence did not exist because
86 Thompson v. Bell No. 00-5516
it was not presented at the summary judgment stage, the
district court held that
Thompson has failed to provide any significant
probative evidence which would make it necessary for
this Court to resolve a factual dispute. . . . Thompson has
not provided this Court with anything other than
factually unsupported allegations that he was
incompetent at the time he committed the crime and at
the time of his jury trial. Nor has Thompson provided
this Court with any significant probative evidence that
Thompson was suffering from a significant mental
disease that should have been presented to the jury
during the punishment phase as mitigation evidence.
Petitioner had two different psychological evaluations
and both resulted in findings of competency at the time
of the crime and at the time of trial.
Memorandum Opinion dated February 17, 2000, at 54-55.
This Court labored under the same misimpression that there
was no evidence to establish that Thompson suffered from a
serious mental disease or defect at the time of the offense:
Moreover, not one of Thompson’s post-trial experts
have opined that Thompson suffered from organicity or
mental illness at the time of the crime or trial. Blair,
Thompson’s state post-conviction expert, also a clinical
psychologist with ties to Vanderbilt, declined to give an
opinion, stating simply that more information was
needed. Significantly, she did not fault the testing
procedures used by MTMHI or Copple, but merely stated
that they were not extensive enough. Indeed, she
performed many of the same tests. Similarly, neither
Crown nor Sultan ever expressed an opinion that
Thompson was mentally ill at the time of the crime. In
fact, Crown stated that he was not asked to render such
an opinion. . . . On the other hand, Crown found

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No. 00-5516 Thompson v. Bell 87
Thompson competent in June 1998, which is consistent
with Copple’s findings and the MTMHI evaluation in
1985.
Also, as the district court found, Thompson failed to
submit any medical records or proof to any court that he
actually sustained the alleged head injuries or that they
resulted in any permanent damage. Further, he has
never submitted to any court any proof that he suffered
from severe mental illness at the time of the crime.
Thompson, 315 F.3d at 589-90 (emphases added). That is not
all we said:
Counsel has now had numerous opportunities via
expert testimony to establish that Thompson suffered
from organic brain disease or mental illness at the time of
the crime. And yet, at each opportunity, counsel fails to
secure an answer to the critical issue of whether
Thompson was mentally ill at the time of the crime. In
essence, counsel is attempting to rely on, as proof, two
inferences: 1) because Thompson allegedly suffered
head injuries, he must have suffered brain damage, and
2) because he is currently suffering from schizo-affective
disorder, he must have been suffering from mental illness
at the time of the crime. But inferences are not proof, as
even Thompson’s experts seem to recognize, for each
and every one fails to automatically take the leap from
these inferences to the conclusion that he was mentally
incompetent at the time of the murder. However, absent
some evidence of organic brain damage or mental illness
at the time of the crime, trial counsel cannot be deemed
ineffective for failing to discover something that does not
appear to exist. As we held in Lorraine v. Coyle, 291
F.3d 416, 436 (6th Cir. 2002), “[i]t simply cannot be said
that trial counsel’s conduct fell below an objective
standard of reasonableness under Strickland simply
because the leads [of possible brain damage] led
nowhere.”
88 Thompson v. Bell No. 00-5516
17In his opposition to Respondent’s motion for summary judgm ent,
Thompson asked the court for an order allowin g him to file a brief in
regard to the issues of exhaustion of state remedies. The district court
granted Thomp son’s request via written order on September 8, 1999,
directing Thompson to file his brief no later that Tuesday, September 14,
199 9.
. . . .
Thompson has not presented any evidence of
incompetence at the time of the crime or trial in either the
state or federal proceedings. As previously noted, none
of Thompson’s experts have stepped up to the plate on
the key issue of Thompson’s competence at the time of
trial.
Id. at 590-92 (emphases added).
In short, both the district court and this Court were mislead
into believing that significant mitigating evidence of
Thompson’s mental illness at the time of offense did not
exist. It quite clearly did exist, and that evidence was in
habeas counsel’s possession, via Dr. Sultan’s July 22, 1999
report and July 22, 1999, deposition, prior to the filing of
Thompson’s response in opposition to Respondent’s motion
for summary judgment, which Thompson filed on July 29,
1999 (DCTR 86), and prior to Thompson’s filing of
Supplemental Brief in Support of Response in Opposition to
Respondent’s Motion for Summary Judgment, on September
14, 1999.17 (DCTR 104).
This leaves the third factor. Here the question is whether
habeas counsel’s conduct in failing to present available
evidence of Thompson’s mental illness at the time of the
crime was intentionally false, wilfully blind to truth, or in
reckless disregard for the truth. In his affidavit attached to
Thompson’s Rule 60(b) motion, Kissinger states that “an
extremely heavy capital habeas corpus caseload, including,
but not limited to, Mr. Thompson’s case” caused him to make

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No. 00-5516 Thompson v. Bell 89
“errors,” thereby suggesting that his conduct in this matter
was negligent and not intentional or in reckless disregard for
the truth.
Our incredulity over this explanation stems from a simple
premise: how could counsel possibly forget or overlook the
critical piece of evidence–i.e., an expert opinion that
Thompson suffered from a significant mental disease or
defect at the time of the offense–that both trial and habeas
counsel purportedly sought for over a decade in both the state
and federal courts, and which habeas counsel obtained at the
very latest (but obviously much sooner) seven days prior to
the filing of Thompson’s response to Respondent’s
dispositive motion?
Virtually every pleading in both the state and federal
proceedings is directed toward this end. Within two months
of the murder, trial counsel requested a mental evaluation of
Thompson to determine his mental capacity at the time of the
crime. Within three months of the murder, trial counsel filed
a supplementary motion for a psychiatric examination and a
neurological examination to determine if Thompson was
suffering from a mental illness on the date of the offense.
Less than three months after the offense, Thompson was
referred to the Multi-County Mental Health Center for a
forensic evaluation to make that determination, and a week
later the trial court entered another order directing Thompson
to undergo a forensic evaluation at MTMHI.
Trial counsel were not content with the state’s evaluation
and requested funds to hire an independent psychiatrist. They
ultimately hired Dr. Copple. Dr. Copple examined Thompson
principally to see what he would be capable of doing in a
prison setting and did not perform a thorough review of
Thompson’ social history. Amazingly, habeas counsel
faulted trial counsel’s choice of Copple because he did not
conduct a thorough review of Thompson’s family history and
medical background.
90 Thompson v. Bell No. 00-5516
In his petition for post-conviction relief in state court,
Thompson claimed that trial counsel failed to adequately
investigate his background for the existence of mitigating
evidence, and sought to hire a licensed psychologist or
psychiatrist and an investigator. Attached to that request was
the affidavit of Dr. Gillian Blair, a clinical psychologist, who
specifically stated that if Thompson were suffering from a
neurological or psychological impairment bipolar affective
disorder or schizoaffective disorder, it was likely that some
degree of that impairment would have existed at the time of
the offense and would have been a significant factor in
determining whether Thompson could have conformed his
conduct to the requirements of law. Dr. Blair stated that
Thompson needed a full psychological evaluation. She
testified to the same effect at the state post-conviction
hearing. The state post-conviction court denied Thompson
funds, however.
On appeal to this Court, habeas counsel asserted that the
state post-conviction courts placed Thompson in a Catch-22
situation by denying them the funds needed to obtain the
requisite expert opinion and then finding no ineffective
assistance because there was no proof in the record that
counsel failed to present any available evidence of a mental
disease or defect. And habeas counsel went out and hired a
neuropsychologist and a clinical psychologist. Dr. Sultan
conducted the very examination and evaluation that Dr. Blair
outlined was necessary but could not provide because of lack
of funds. Dr. Blair stated that “the most important thing that
would be necessary would be a full history and full medical
records of Mr. Thompson prior to the commission of the
offense.” She further indicated that from her limited review,
Thompson’s social history, his childhood and upbringing
were “sketchy.”
Dr. Sultan found the “other facts” Dr. Blair indicated would
be necessary to develop an opinion as to Thompson’s
condition at the time of the offense. In her report, Dr. Sultan
stated that she “initiated a very extensive review of legal,

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No. 00-5516 Thompson v. Bell 91
military, medical, prison, and psychiatric/psychological
records.” Dr. Sultan also interviewed several individuals who
provided significant information about Thompson’s
childhood and family background, including Thompson’s
grandmother, older sister, and a girlfriend. These witnesses
revealed an abusive, traumatic childhood and clear signs of
schizophrenia onset in early adulthood prior to the offense.
Based on that review, Dr. Sultan opined that Thompson
displayed significant signs of mental illness from the time he
was a small child and manifested symptoms of schizo-
affective disorder in early adulthood, prior to the 1985
offense.
The principal bases for Thompson’s petition and amended
petition for writ of habeas corpus were his allegations that
trial counsel were ineffective for: (1) failing to perform a
reasonable investigation of his background and mental health
history; (2) failing to secure adequate expert assistance
regarding his mental health; and (3) failing to reasonably
investigate and challenge Thompson’s competency at the time
of the offense. Thompson also claimed he was denied
funding for mental health and investigative experts during the
state trial and post-conviction proceedings.
Thompson’s initial witness list represented that Dr. Crown
would testify that Thompson’s brain damage, as well as his
medical and social history, are consistent with schizophrenia.
The initial witness list further indicated that Dr. Sultan would
testify that Thompson suffers from schizophrenia and did so
at the time of the offense. Moreover, from the outset habeas
counsel represented to the district court, through the
pleadings, that Thompson would establish that trial counsel
failed to present available mitigating evidence. Indeed, the
district court’s November 1998 ruling affirming the
magistrate judge’s November 2, 1998, discovery order
explicitly stated that if the facts were developed to show that
Thompson’s mental health should have been introduced as
mitigating evidence, Thompson might be entitled to relief.
92 Thompson v. Bell No. 00-5516
Despite the representations in his initial witness list, as
Respondent discerned on July 20, 1999, Dr. Crown had no
opinion as to Thompson’s mental state at the time of the
offense. In other words, at the time of Dr. Crown’s
deposition, eight months after the initial witness list was filed
and several days before Thompson’s response to the summary
judgment was due, Dr. Crown had not been asked to form an
opinion on the issue he was purportedly retained to evaluate
and the key issue in the case. Dr. Crown’s deposition
testimony verifies that habeas counsel never asked him to
render an opinion as to Thompson’s mental state at the time
of the murder. Furthermore, even though Dr. Crown
concluded that Thompson had a schizo-affective disorder,
which he acknowledged tends to develop in late adolescence
to early adulthood, and which he further acknowledged
appeared to have begun in the last stages of Thompson’s
military career, Dr. Crown stated that he was not asked, and
had not pinpointed, the onset date.
In contrast, in the initial witness list, Petitioner stated that
Dr. Crown would testify that he had “been provided with
background information regarding Petitioner’s medical and
social history,” and “administered a battery of indicated
neuropsychological tests,” which would “indicate that
Petitioner suffers from organic brain damage.” The witness
list further represents that Dr. Crown would testify “that the
brain damage observed, as well as Petitioner’s social and
medical history, is consistent with schizophrenia,” and that
“Petitioner’s brain damage substantially impaired the ability
of the Petitioner to distinguish between right and wrong
and/or to conform his conduct to the requirements of the law.”
The disparity between Dr. Crown’s actual deposition
testimony and the witness list is patent.
Less clear is why habeas counsel did not ask Dr. Crown for
an opinion on Thompson’s mental status at the time of the
offense. Habeas counsel’s attempt, in response to
Respondent’s motion for reimbursement of deposition costs,
to shift the burden of procuring such an opinion from Dr.

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No. 00-5516 Thompson v. Bell 93
18Also disturbing was habeas counsel’s parallel motion for
reimbursement costs for the deposition of Dr. Blau. Habeas counsel
scheduled that deposition prior to the depositions of D rs. Crown and
Sultan, knowing full well that all the information Respondent had was
what habe as counsel had stated in the initial witness list. Such
gamesmanship, on the eve of the due date o f Thompson’s response to
Resp ondent’s mo tion for summary judgment, is inexcusable.
Crown to Respondent, is absolutely audacious. Habeas
counsel actually argued that Respondent had the burden of
procuring that opinion from Dr. Crown. How ironic that
habeas counsel would suggest that procuring such expert
opinion testimony was somehow the Warden’s burden, given
that habeas counsel equally faulted defense trial counsel for
failing to procure and present same. We have a hard time
believing that, on the brink of summary judgment, habeas
counsel somehow got confused over who had the burden in
the habeas proceeding of proving ineffective assistance of
trial counsel.
More outrageous is Kissinger’s representation on behalf of
his client in that same response that Dr. Crown’s statement
substantially conformed to the information contained in the
initial witness list because Dr. Crown stated “in passing” in
his deposition that Thompson suffers from a bipolar disorder
of a self-afflicted type and that the onset of this affliction was
prior to the alleged offense. As review of Dr. Crown’s
deposition testimony makes clear, Dr. Crown stated
Thompson has a schizo-affective disorder, which typically
occurs in early adulthood, but Dr. Crown also made clear that
he was not asked to opine whether Thompson actually
manifested symptoms prior to the offense and further stated
that he had “no real pinpoint.”
Again we cannot escape the irony of Kissinger’s assertions
in that motion that Respondent either made “a strategic
decision” not to procure Dr. Crown’s opinion regarding
Thompson’s mental health at the time of the offense, or that
Respondent “forgot to do so.” 18
94 Thompson v. Bell No. 00-5516
Most troubling of all, of course, is the presence and
substance of Dr. Sultan’s testimony. Dr. Sultan conducted the
background investigation, interviewed Thompson’s family
members and provided the exact diagnosis that habeas
counsel claims trial counsel was under a constitutional
obligation to discover and present. And she provided the
service at Kissinger’s request. The record reflects that habeas
counsel were in communication with Dr. Sultan as early as
August 1998. In an affidavit signed on February 10, 1999,
attached to Thompson’s ex parte motion for a temporary
mandatory restraining order, Dr. Sultan alleged that she had
reviewed hundreds of pages of records and documents about
Thompson’s psychiatric, military, and legal history, and had
first met with Thompson on August 20, 1998. Kissinger,
through Chavis, asked Dr. Sultan for that opinion, received a
report with that exact conclusion on July 22, 1999 and heard
Dr. Sultan testify to that effect on July 22, 1999. After all,
Kissinger was counsel of record for Thompson at Dr. Sultan’s
deposition. How then could counsel fail to include any
mention of Dr. Sultan’s expert opinion in Petitioner’s
response brief to Respondent’s motion for summary
judgment? It is virtually inconceivable to think that counsel
could overlook this information as he was preparing the
response to the summary judgment motion. Dr. Sultan’s
deposition testimony and accompanying report were obtained
a mere seven days before the brief was filed. How could
counsel possibly forget about its best evidence, and in such a
short span of time?
Habeas counsel’s conduct following the district court’s
issuance of its opinion granting summary judgment to
Respondent seriously undercuts the possibility that habeas
counsel’s account is believable. On March 2, 2000, two
weeks after the district court granted summary judgment to
Respondent in an opinion which explicitly stated that
Thompson had failed “to provide this Court with any
significant probative evidence that Thompson was suffering
from a significant mental disease that should have been
presented to the jury during the punishment phase as

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No. 00-5516 Thompson v. Bell 95
19As reflected in its order denying Petitioner’s motion to alter or
amend judgment, the district court obviously sensed that something was
amiss, but its hands were tied by counsel’s strategic choice to file an
untimely Rule 6 0(b)(1) m otion.
mitigating evidence,” Thompson filed a motion to alter or
amend judgment. Habeas counsel claimed that it filed that
motion “[i]n an effort to fulfill his duty to both his client and
the Court.” Yet the motion does not attempt to present the
“forgotten” evidence, Dr. Sultan’s opinion. Instead, it merely
presented two clarifying arguments. Ironically, habeas
counsel stated that while not waiving or conceding any of the
other arguments previously raised, the motion centered on
these two issues because they went “to the very integrity of
the judicial process.” If counsel’s “failure to remember” Dr.
Sultan’s testimony, after a pointed reminder by the district
court that “Petitioner had two different psychological
evaluations and both resulted in findings of competency at
the time of the crime and at the time of trial,” is not reckless
disregard for the truth, what is?
And habeas counsel apparently continued to forget about
Dr. Sultan’s opinion. Habeas counsel waited still another
year to bring this information forward. And it waited for a
year from the district court’s denial of Thompson’s motion to
alter or amend judgment, not one year from the date of the
underlying judgment. As the district court pointed out, this
motion was untimely, because the plain language of Rule
60(b) sets an absolute time limit on the motion of one year in
addition to the requirement that the motion be filed within a
reasonable time. Fed. R. Civ. P. 60(b). The district court
therefore lacked the authority to grant relief. See Ackerman
v. United States, 340 U.S. 193, 197 (1950) (“A motion for
excusable neglect as provided in Rule 60(b)(1) must, by the
rule’s terms, be made not more than one year after the
judgment was entered.”). Again, we find it curious that
habeas counsel’s remembrance of depositions past came just
a hair too late to fit within the parameters of Rule 60(b).19
96 Thompson v. Bell No. 00-5516
Then, for the first time, counsel offered to supplement the
record with Dr. Sultan’s report and deposition testimony upon
its enlightened view that “Dr. Sultan’s opinions certainly are
directly relevant to the mental health related claims,” and
further acknowledgment that “[c]ounsel for Mr. Thompson
engaged in Dr. Sultan’s services for the sole purpose of
offering her opinion to support his constitutional claims.”
Habeas counsel argued excusable neglect based on a heavy
caseload and a disorderly office, and further stated that
Kissinger “was under the mistaken belief” that the evidence
was in the record. In a footnote, Kissinger further explained
his “mistaken belief” as follows: Because Respondent had
placed Dr. Crown’s deposition testimony and accompanying
report in the record, as part of its motion for reimbursement
costs, and because Respondent had moved for costs in hiring
its own mental health expert, Dr. Blau, on the grounds that
Blau’s services were unnecessary as Petitioner had no experts
to support the mental health related issues, Kissinger
apparently assumed that Respondent would also have
included the deposition testimony and report of Thompson’s
only other mental health expert to bolster its request for
deposition costs.
This explanation makes little sense. In the first place, Dr.
Sultan’s deposition testimony and accompanying report,
unlike Dr. Crown’s, do support the mental health related
allegations and is consistent with the witness list statement.
More importantly, Kissinger’s explanation seeks to obscure
the fundamental fact that Thompson’s habeas counsel had an
independent responsibility to both Thompson and the court to
present Dr. Sultan’s opinion in Thompson’s opposition to
Respondent’s motion for summary judgment, and ultimately,
to meet Thompson’s burden of establishing that he was
entitled to the requested relief, a grant of the writ of habeas
corpus based on constitutional error. Kissinger’s attempt to
shift the “blame” to Respondent is inexcusable.
Furthermore, habeas counsel’s filing of an obviously
untimely Rule 60(b) motion can be conceived of as “a fraud

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No. 00-5516 Thompson v. Bell 97
20Trial counsel cannot be faulted for relying on the evaluation of a
credentialed expert which was entirely consistent with the evaluation of
an inpatient psychiatric team specializing in forensics that also concluded
Thompson was not mentally ill. Nonetheless, as previously discussed,
trial counsel’s failure to investigate and present Thomp son’s social history
provides an independent basis for finding ineffective assistance of counsel
at mitigation under Wiggins.
21W e can only assume that habeas counsel planned to unve il Dr.
Sultan’s opinion on the eve of Thompson’s execution. Judge Moore
differs, conc luding that “more than likely, a genuine mistake was made,
one which was not realized until a different attorne y looked at the case.
perpetrated . . . so that judicial machinery cannot perform in
the usual manner.” That is precisely what happened in this
case. The district court was prevented from administering full
justice because it lacked all of the vital information necessary
to afford the proper relief.
As exhaustively detailed above, the essence of Thompson’s
claim throughout the entire course of the state and federal
proceedings was that he was suffering from a mental disease
or defect at the time of the offense. Habeas counsel criticized
trial counsel for failing to procure this evidence, and was
aware from the outset how it needed to establish ineffective
assistance of trial counsel at mitigation, as reflected by its
early decision to retain Drs. Crown and Sultan. Habeas
counsel then did exactly what it faulted trial counsel for
failing to do.20 That is, habeas counsel conducted the
investigation that it alleged trial counsel were constitutionally
ineffective for failing to perform. That investigation revealed
that Thompson was suffering from a serious mental illness at
the time of Brenda Lane’s murder. It also revealed significant
aspects of Thompson’s social history long recognized as
mitigating in other capital cases. This Court simply cannot, at
this juncture, accept counsel’s explanation that it forgot to
remember that critical evidence until slightly one year after
judgment. There appears to be no acceptable excuse for
habeas counsel’s behavior.21
98 Thompson v. Bell No. 00-5516
To conclude otherwise is to disbelieve sworn testimony by an officer of
the court, and to assume that habeas counsel conspired to conceal
evidence beneficial to their client, for no discernible reason.”
Once again, if one reminisce s, the cap ital case o f Byrd v. Collins, 209
F.3d 486 (6th Cir. 2000), cert. denied, 531 U.S. 1082 (2001) (first habeas
petition), and In re Byrd, 269 F.3d 54 4 (6th Cir. 2001) (successive
petition) comes quickly to mind. There, habeas counsel sat for twelve
years on an affidavit by a codefendant that allegedly would have
established petitioner Byrd ’s actual innocence, and did not file their
second habeas petition introducing the evidence and “actual innocence”
argument until one week b efore the petitioner’s scheduled execution date.
On this basis, a majority of the judges in regular active service invoked
the inherent equitable powers of the court to stay the p etitioner’s
execution and remand the matter for the development of a factual record.
See In re Byrd, 269 F.3d 585 (6th Cir. 2001). So there may be a rational,
strategic, calculated reason for hab eas co unsel’s purpo rted ne gligence.
IV. Response to Majority Opinion
The majority opinion agrees that Dr. Sultan’s opinion
requires us to vacate the district court’s grant of summary
judgment in favor of respondent. However, it posits that my
opinion “goes too far in its accusations of fraud on the court;”
on the grounds that “while his [my] explanation for the
omission of the Sultan deposition from the official record
before the court is possible in the narrowest sense, the power
of this court should not be used to make such accusations
without more definite proof than the factual record of this
case reveals.” Rather, the majority would find that the more
plausible explanation is that “a genuine mistake was made,
one which was not realized until a different attorney looked
at the case,” and that “[t]o conclude otherwise is to disbelieve
sworn testimony by an officer of the court.”
The majority opinion correctly recognizes that, at this
juncture, I am inclined to disbelieve Kissinger’s
representations of excusable neglect because I find it utterly
implausible that counsel could forget about his most
important piece of evidence, expert testimony assessing
Thompson’s mental state at the time of the crime, given that

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No. 00-5516 Thompson v. Bell 99
22I am also troubled by the fact that in Thomp son’s petition for writ
of certiorari, signed by Dana C. Hansen Chavis, as counsel of record for
Petitioner, Hansen refers to Dr. Sultan’s opinion regarding Thompson’s
as if it were properly presented to the district court and made part of the
record. In that brief, Hansen Chavis represents as follows:
Thomp son’s habeas corpus alleged ineffective assistance of
trial counsel via the failure to adeq uately inve stigate and o btain
adequate expert assistance regarding T hompson’s mental health
at the time of the offense and failure to direct an expert inquiry
into mental health mitigation and to obtain adequate expert
assistance regarding Thompson’s mental health at the time of the
offense and failure to direct an expert inquiry into mental health
mitigation and to obtain rebuttal evidence against the State’s
his principal strategy throughout the habeas proceedings was
to claim Sixth Amendment ineffective assistance of counsel
based on trial counsel’s failure to obtain that very evidence.
From day one, habeas counsel knew that in order to make a
successful constitutional challenge, he had to acquire an
expert opinion to the effect that Thompson was suffering from
schizophrenia at the time of the offense, as reflected by the
fact that counsel hired two experts who would purportedly say
that. Furthermore, even assuming short-term memory loss
due to a crushing workload, Kissinger sat through Dr.
Sultan’s deposition a mere seven days before he signed and
filed the response to the summary judgment motion. On the
eve of its filing, how could he, how did he, forget what Dr.
Sultan said, and utterly fail to make the slightest allusion to
her expert opinion–especially since she provided precisely
what he needed to support his ineffective assistance claim?
Even assuming that Kissinger innocently suffered from
virtual amnesia during this critical phase of the federal district
court proceedings, and appellate habeas counsel Dana Hansen
caught the error when she took over the appeal and tried to
correct it, why then did she fail to appeal the district court’s
denial of the Rule 60(b) motion or otherwise seek to
supplement the record on appeal under Fed. R. App. 10(e)
given the obvious importance of that testimony and the
gravity of the situation before us?22
100 Thompson v. Bell No. 00-5516
psychiatrist. Respondent moved for summ ary judgment,
asserting only that the claims were either procedurally barred or
the state court decision was no t contrary to or an unreasonable
application of federal law (A px. 442) beca use D r. Blair had not
offered a final opinion on Thompson’s mental health at the time
of the offense (which, of course, she was prevented from doing
by the post-conviction court’s denial of funding). Respondent
further asserted Thompson was not entitled to present further
evidence in support of his claims in a federal court evidentiary
hearing. Thomp son responded to the summary judgment motion
by asserting that he had not failed to develop the factual basis of
his claim; instead, the state court had, through the after-the fact
application of procedural rules governing the appointment of
experts in state post-conviction cases, p revented him from fully
developing his claim in state court and that he was therefore
entitled to an evidentiary hearing to present further evidence in
suppo rt of his claims.
W hen the district court issued its decision granting
Resp ondent’s motio n for sum mary judgment, however, it by-
passed Resp ondent’s argument as well as Thomp son’s response
and instead held that the claim would be denied because
Thompson had failed to present affidavits or other evidence
(Apx. 711). The district court never provided T hom pson with
notice of its intentio n to rely on this ground nor did it provide
him with an opportunity to present such evidence prior to
entering judgment against him. Thompson had such evidence in
his possession and, contrary to the findings of the district co urt,
most of it was in the record.
Habeas counsel had a neuropsychologist, Dr. Barry Crown,
examine Thomp son. T he result was a finding of organic brain
damage, secondary to schizo-affective disorder, bipolar subtype.
(Apx. 711).
. . . .
Additiona lly, forensic psychologist Dr. Faye Sultan
repo rted:
It is my opinion that Mr. G regory T homp son is most
app ropriately diagnosed , according to the D iagnostic
and Statistical M anual of Mental D isorders, Fo urth
Edition, as having Schizoaffective Disorder, Bipolar
Type. As is typica l of this illness, symptoms became
apparent in early adulthood. Thompson was suffering
serious mental illness at the time of the 1985 offense
for which he has been convicted and sentenced. This
mental illness would have sub stantially impaired

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No. 00-5516 Thompson v. Bell 101
Thomp son’s ability to conform his conduct to the
requirements of the law.
Further, Thom pson was the victim of severe
childhood emotional abuse and physical neglect. His
family background is best described as highly
neglectful and economically deprived. Thompson
repeatedly witnessed episode s of violence d uring his
childhood in which one family member assaulted or
brutalized another. There are significant aspects of
Thomp son’s social history that have been recognized as
mitigating in other capital cases (R. 133, Attachment A,
Sultan report, p. 6).
Despite this unrebutted expert testimony the district court noted
from the trial court record tha t “[t] he tea m at Central State
concluded there was no organicity (brain da mage) and Dr.
Copple [the industrial p sycholog ist] fo und no indication of brain
damage” (Apx . 701 ) and ruled, due to a lack of affidavits
“Thompson has failed to provide any significant probative
evidence which would make it necessary for this Cou rt to resolve
a factual dispute” (Apx. 711). The petition was dismissed.
Thomp son’s P etition for Certio rari, p.14-16 (emp hasis ad ded ).
Hansen also rep resented that:
The district co urt enga ged in fact finding to grant
Resp ondent’s motion by crediting the opinions of Respondent’s
experts over Thompson’s experts and by disregarding the
findings of Thomp son’s experts that he was psychotic when he
committed the offense (A px. 657). The district co urt also d id
not give Thompson an oppo rtunity to co rrect ce rtain
fundamental misconcep tions up on which the d istrict court’s
decision was based. The district court erred further by making
findings that were unsupported or contradicted by other
evidence, and drawing inferences adverse to Tho mpson, contrary
to well-settled summary jud gment standards.
Id. at 24.
Furthe r, Hansen asserted that:
The district court disregarded the rulings of Thompson’s
experts–in particular Dr. Blair’s opinion that Thompson likely
was schizophrenic when he co mmitted the o ffense, D r. Sultan’s
opinion that Thompson suffers from schizo-affective disorder
and that his mental problems began wh ile he was in the
military–i.e. long before the offense. Instead the court cursorily
concluded Thom pson had not provided “any significant
probative evidence that Thompson was suffering from a
significant mental disease that should have been presented to the
102 Thompson v. Bell No. 00-5516
jury during the punishment phase as mitigation evidence.” Id.
Id. at 28.
In short, the brief before the United States Supreme Court accuses the
district court of ignoring probative evidence that it did not even have
before it in any form when it granted summ ary judgment to Respo ndent.
23Federal Rule of Appellate Procedure 10(e) allow s the appellate
record to be sup plemented “if anything material to either party is omitted
from or misstated in the record by error or accident.” Fed. R. App. P.
10(e). It “ is clear from the rule’s wording [that] ‘[t]he purpose of the
rule is to allow the [ ] court to correct omissions from or misstateme nts in
the record for appe al, not to introduce new evidence in the court of
Kissinger’s and Hansen’s unusual performance is, and
should be criticized as, inadequate, and should not escape
close judicial scrutiny. Both of these attorneys are federal
defenders, specializing in death penalty cases. If their
conduct was negligent, then perhaps they should not perform
this kind of work in the future. If their conduct was
something more than that, then appropriate disciplinary action
should be taken. Furthermore, my and the majority opinion’s
disagreement over the proper characterization of this conduct
is precisely why there is a need for the district court or a duly-
appointed Special Master to conduct a full evidentiary hearing
on this issue to ascertain the truth.
The majority opinion correctly states that we could not
consider Dr. Sultan’s deposition testimony because it was not
made a part of the record before the district court, and beyond
the scope of our appellate review. See Lippi v. City Bank, 955
F.2d 599, 604 (9th Cir. 1992). See also United States v.
Barrow, 118 F.3d 482, 487 (6th Cir. 1997) (stating that, “[i]n
general, the appellate court should have before it the record
and facts considered by the District Court”); cf. Sovereign
News Co. v. United States, 690 F.2d 569, 571 (6th Cir. 1982)
(stating that “[a] party may not by-pass the fact-finding
process of the lower court and introduce new facts in brief on
appeal”). Furthermore, appellate habeas counsel did not file
a Fed. R. App. P. 10(e) motion to supplement the record 23

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No. 00-5516 Thompson v. Bell 103
app eals.’” Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d
1007, 1012 (6th Cir. 2003 ) (quoting S&E Shipping Corp. v. Chesapeake
& O. Ry. Co., 678 F.2d 636, 64 1 (6th Cir. 1982) (alteration in original).
Dr. Sultan’s July 29, 1999 testimony and accompan ying report do not
qualify as omissions from the record because Kissinger never referenced
her expert opinion on the issue of Thompson’s mental status at the time
of the offense; i.e., he did not rely on that evidence as part of meeting
Thomp son’s burden under Fed. R. C iv. P. 56.
24Tho mpson’s appellate brief, prepared by Dana C . Hansen,
provides merely that:
Mr. Thompson then filed a petition for writ of habeas corpus
under 28 U .S.C.A. § 2254 (W est 2000), claiming inter alia
ineffective assistance of trial counsel via the failure to o btain
adequate expert assistance regarding Mr. Thompson’s mental
health at the time of the offense. Respondent moved for
summary judgment while conceding that this po int was properly
cognizable on its merits (R. 82: M otion for Summary Jud gment,
p. 18-19; Apx. 442 ).
The defense then had another specialist, Dr. Crown,
examine M r. Thomp son. T he result was a finding of organic
brain damage, secondary to schizo-affective disorder, bipolar
subtype. (R.1 24: M emo randum, p. 54; A px. 711).
Final B rief of Appe llant, Gregory Thomp son, p. 14.
Later, Hansen asse rted on behalf of Thompson that
[t]he district court clearly weighed the partial testimony of
Drs. Crown and Blair versus that of the state experts and made
findings of fact in favor of Resp ondent. (Id. at 53-54; Apx.
710). This is improper at the summary judgment stage.
Anderson, supra. The district court did no t view the facts in the
light most favorable to Mr. Thom pson to determine whether any
“genuine issue of material fact” appeared on which a reasonable
fact-finder could return a verdict for Mr. Thomp son.
Id. at 42.
Hansen never men tions Dr. Sultan’s name or refers to her opinion
in the brief.
However, Hansen makes ample reference to Dr. Sultan’s testimony
and report in Thomp son’s petition for rehearing. See Gregory
Thomp son’s Petition for Rehearing and Suggestion for Rehearing En
banc In a Capital Case, pp. 12-22. In fact, in support of the assertion that
Thompson presented evidence that he was mentally ill at the time of the
nor make any reference to Dr. Sultan’s July 1999 testimony
in the appellate brief.24 Nor did appellate habeas counsel
104 Thompson v. Bell No. 00-5516
crime and trial, Hansen, presented, inter alia, ample quotations from and
references to Dr. Sultan’s testimony and rep ort, attached to T hom pson’s
Rule 60(b) motion. She failed to indicate, however, that said evidence
was not properly presented to the district court, and therefore never part
of the record for review to this Court. She did not indicate that she failed
to appeal the d istrict court’s Rule 6 0(b) ruling. She did not invoke the
inherent equitable powers of the C ourt.
appeal the district court’s 60(b) ruling. It is disingenuous for
the majority opinion to suggest that we “had” the deposition
before us at the time of the initial review and therefore had
not just recently “unearthed” it. Indeed, had the deposition
had been properly placed before this Court, we could have
exercised our equitable powers at that time. Our previous
decision was based on the absence of the evidence. The only
reason we have it now was because I conducted an
independent review of the record.
The majority opinion holds that we can exercise our
inherent equitable power to supplement the record on appeal.
Here I agree, because I feel that the “special circumstances”
of this case–a fortuitous discovery that, if left unaddressed,
will result in a grave miscarriage of justice–justifies our
invocation of this authority. Indeed, by reviewing Dr.
Sultan’s opinions on the merits and altering the opinion, that
is what I did in my capacity as a judicial officer. However,
our inherent equitable authority to review material that was
never reviewed by the district court to right a very grave
wrong in this case should not immunize Kissinger’s and
Hansen’s professional performance from further examination.
Thus, although it provides a separate basis for jurisdiction,
those inherent equitable powers should not be used to cover
up potentially fraudulent conduct by counsel on the court by
federal habeas counsel. Again, though, this matter needs a
thorough examination in the district court.
Finally, if further investigation into the attorneys’ conduct
here is not pursued, this could create dangerous precedent.
That is, it virtually invites habeas counsel to save their best

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No. 00-5516 Thompson v. Bell 105
25Meanwhile, Gregory Thompson has been facing the true specter of
the death penalty since at least January 9, 2003. For this fundamental
reason, I feel that habeas counsel’s performance was truly, ho rribly,
ineffective.
evidence for last, thereby undermining principles of finality
and the AEDPA. And, at the same time, it potentially
encourages counsel to engage in risky strategy, because there
is no guarantee that any given panel of the Sixth Circuit will
bypass the strict procedural and substantive requirements of
the AEDPA simply because the matter happens to involve the
death penalty. Here, but for the chance discovery of the
Sultan affidavit, this matter could have gone in a different
direction, and Thompson might well have been executed as
scheduled on August 19, 2004.25
V. Conclusion
In the face of this record, Kissinger’s explanation is
implausible, and if not intentionally false, most certainly
appears to be in reckless disregard for the truth. Meanwhile,
a man’s life hangs in the balance. As in Demjanjuk, we have
“acted pursuant to our inherent power to protect the integrity
of the judicial process within this Circuit.” Demjanjuk, 10
F.3d at 356. Cf. Hazel-Atlas Glass Co., 322 U.S. at 244
(recognizing a court’s inherent power to grant relief, for
“after-discovered fraud,” from an earlier judgment,
“regardless of the term of [its] entry”). As part of the order of
remand, I would instruct the district court to conduct full
evidentiary hearings on both the issue of ineffective
assistance of counsel at mitigation and fraud upon the court.

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