Christopher Scott Emmett v.  LORETTA K. KELLY, Warden, Sussex I State Prison

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CHRISTOPHER SCOTT EMMETT,
Petitioner-Appellant,
v. No. 06-14 
LORETTA K. KELLY, Warden, Sussex
I State Prison,
Respondent-Appellee. 
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Norman K. Moon, District Judge.
(7:05-cv-00329-nkm)
Argued: October 26, 2006
Decided: January 23, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the majority
opinion, in which Judge Shedd joined. Judge Gregory wrote an opin-
ion concurring in part and dissenting in part.
COUNSEL
ARGUED: Matthew Leland Engle, VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Charlottesville, Virginia, for
Appellant. Steven Andrew Witmer, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: William H. Lindsey, Salem, Virginia, for Appellant. Robert

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F. McDonnell, Attorney General of Virginia, Jerry P. Slonaker,
Senior Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
OPINION
TRAXLER, Circuit Judge:
Appellant Christopher Scott Emmett was convicted by a Virginia
jury of the capital murder and robbery of his coworker, John Langley,
and sentenced to death. The Supreme Court of Virginia affirmed, see
Emmett v. Commonwealth, 569 S.E.2d 39 (Va. 2002), and the United
States Supreme Court denied certiorari, see Emmett v. Virginia, 538
U.S. 929 (2003). After unsuccessfully challenging his conviction and
sentence in state habeas proceedings, Emmett filed a petition for writ
of habeas corpus in federal district court. See 28 U.S.C.A. § 2254
(West 1994 & Supp. 2006). The district court denied his application
for relief, and declined to issue a certificate of appealability. We
granted a certificate of appealability to review two claims. See 28
U.S.C.A. § 2253(c)(1) (West Supp. 2006). For the reasons set forth
below, we affirm.
I.
In the early morning hours of April 27, 2001, Emmett beat his
sleeping coworker John Langley to death with the base of a brass
motel room lamp in order to rob Langley and use his cash to buy
crack cocaine. The circumstances of the murder were described by the
Virginia Supreme Court as follows:
Weldon Roofing Company employed Emmett and Langley
as laborers for its roofing crews. During late April 2001,
both men were assigned to a project in the City of Danville
and shared a room at a local motel where the roofing crew
was staying. On the evening of April 26, 2001, Emmett,
Langley, Michael Darryl Pittman, and other members of the
roofing crew cooked dinner on a grill at the motel, played
cards, and drank beer. During the course of the evening,
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Langley loaned money to Emmett and Pittman, who used
the money to buy crack cocaine.
At approximately 11:00 p.m. that evening, Rainey Bell,
another member of the roofing crew, heard a noise he
described as "bang, bang" coming from the room Emmett
and Langley shared. Shortly after midnight, Emmett went to
the motel office and asked the clerk to call the police, saying
that he had returned to his room, "seen blood and stuff . . .
and didn’t know what had took place."
The police arrived at the motel at 12:46 a.m. on April 27,
2001 and accompanied Emmett back to his room. There
they discovered Langley’s dead body lying face down on
Langley’s bed beneath a comforter. Blood spatters were
found on the sheets and headboard of Langley’s bed, on the
wall behind it, and on the wall between the bathroom and
Emmett’s bed. A damaged brass lamp stained with Lang-
ley’s blood was discovered beneath Langley’s bed.
In his initial statement to police, Emmett denied killing
Langley. He stated that he had returned to the room and
gone to bed. Emmett claimed to have discovered the blood
and Langley’s body later that night when he got up to use
the bathroom. Observing what appeared to be bloodstains on
Emmett’s personal effects, the police took possession of
Emmett’s boots and clothing with his permission. Emmett
suggested that the blood might be his own because he had
injured himself earlier in the week. Subsequent testing, how-
ever, revealed that Emmett’s boots and clothing were
stained with Langley’s blood.
Later in the morning of April 27, Emmett voluntarily
accompanied the police to the Danville police station. There
he agreed to be fingerprinted and gave a sample of his
blood. Emmett admitted to the police that he had been
drinking and using cocaine on the previous evening. Over
the course of the next several hours, Emmett related differ-
ent versions of the events of the previous evening to the
police. He first implicated Pittman as Langley’s murderer,
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but ultimately Emmett told the police that he alone had
beaten Langley to death with the brass lamp.
Emmett was given Miranda warnings and he gave a full,
taped confession. Emmett stated that he and Pittman decided
to rob Langley after Langley refused to loan them more
money to buy additional cocaine. Emmett stated that he
struck Langley five or six times with the brass lamp, took
Langley’s wallet, and left the motel to buy cocaine.
Emmett, 569 S.E.2d at 42-43. "[B]ased upon the amount of blood and
bruising of [Langley’s] brain tissue at the point of impact," the medi-
cal examiner opined that "Langley was not killed immediately by the
first blow from the lamp[, but] might have been unconscious after the
first blow was struck and may have suffered ‘brain death’ prior to
actual death." Id. at 43.
At the conclusion of the guilt phase of Emmett’s bifurcated trial,
Emmett was convicted by a jury of the capital murder and robbery of
Langley. At the separate sentencing hearing, the Commonwealth
sought the death penalty based upon Virginia’s statutory aggravating
factors of future dangerousness and of vileness based upon aggra-
vated battery and depravity of mind. See Va. Code Ann. § 19.2-264.2
(2004) ("In assessing the penalty of any person convicted of an
offense for which the death penalty may be imposed, a sentence of
death shall not be imposed unless the court or jury shall (1) after con-
sideration of the past criminal record of convictions of the defendant,
find that there is a probability that the defendant would commit crimi-
nal acts of violence that would constitute a continuing serious threat
to society or that his conduct in committing the offense for which he
stands charged was outrageously or wantonly vile, horrible or inhu-
man in that it involved torture, depravity of mind or an aggravated
battery to the victim; and (2) recommend that the penalty of death be
imposed.").
In support of the future dangerousness factor, the prosecutor pre-
sented Emmett’s prior criminal history, to the extent it could be deter-
mined. The history presented consisted of juvenile convictions for
felonious larceny and for assault and battery arising from an incident
in which Emmett, while incarcerated in a maximum-security juvenile
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detention facility, rushed a guard and locked him in a closet in order
to escape.1 In addition, the prosecutor presented evidence of an adult
conviction for involuntary manslaughter arising from an incident in
which Emmett, while driving a van in the wrong direction and under
the influence of alcohol, struck and killed a motorcyclist. Testimony
was presented that the drunken Emmett was smiling after the driver
was killed and told an officer "‘that there was no need to worry about
the man on the motorcycle. He was already dead, and that [Emmett]
could do nothing to help him.’" Id. at 43 (alteration in original). As
noted by the state court,
[t]he evidence . . . showed that Emmett lacked remorse for
this earlier violent crime and for the instant killing of a co-
worker. Indeed, Emmett himself confessed that he killed
Langley simply because it "just seemed right at the time."
Such lack of regard for a human life speaks volumes on the
issue of future dangerousness and leaves little doubt of its
probability.
Id. at 45.
In support of the vileness factor, the prosecutor highlighted to the
jury the aggravated nature of the beating that Emmett inflicted upon
his victim. As noted by the state court, Emmett’s actions demon-
strated both aggravated battery and depravity of mind. Specifically,
"[t]he use of a blunt object to batter the skull of the victim repeatedly
and with such force that blood spatters several feet from the victim
is clearly both qualitatively and quantitatively more force than the
minimum necessary to kill the victim." Id.; see also Smith v. Com-
monwealth, 248 S.E.2d 135, 149 (Va. 1978) (defining an "aggravated
battery" as "a battery which, qualitatively and quantitatively, is more
culpable than the minimum necessary to accomplish an act of mur-
der"). Additionally, "[t]he evidence established that Emmett violently
1As related in the prosecutor’s affidavit filed in the habeas proceed-
ings, the prosecutor was unable to establish why Emmett was incarcer-
ated as a juvenile. Emmett’s juvenile criminal record had been destroyed
pursuant to North Carolina procedure, and, as set forth infra, defense
counsel intentionally avoided opening the door to Emmett’s extensive
juvenile criminal history.
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attacked a co-worker with whom he had apparently enjoyed an amica-
ble relationship. The brutality of the crime amply demonstrates the
depravity of mind involved in the murder of Langley." Id. at 45-46;
see also Smith, 248 S.E.2d at 149 (defining "depravity of mind" as a
"degree of moral turpitude and psychical debasement surpassing that
inherent in the definition of ordinary legal malice and premedita-
tion").
In mitigation, Emmett presented testimony from his mother, Bar-
bara McAdams, and a half-sister with whom he was raised, Lauri
McAdams. Mrs. McAdams testified that Emmett’s natural father was
an abusive alcoholic who failed to take care of his family. She testi-
fied that she ultimately left her husband and remarried the man who
raised Emmett. Mrs. McAdams testified that in the months leading up
to Langley’s murder, she began to notice troubling changes in
Emmett’s behavior. Although Emmett had been a good parent to his
young daughter, he stopped spending time with her, buying her the
things that she needed, and paying his child support as he had always
done in the past. Similarly, Mrs. McAdams testified that Emmett reg-
ularly visited her and her husband, spending time fishing with his
stepfather and helping with various house and yard chores, but had
stopped visiting them during these months as well.
Emmett’s half-sister, Lauri McAdams, testified that she was living
with her mother and father in the months leading up to the murder and
also noticed these changes in Emmett’s behavior. Lauri confirmed
that Emmett "used to come to my parents’ house just about every
weekend, and he would help my Dad whenever my Dad needed help,"
but that in the six months before the murder he became "real distant"
and "stopped coming over." J.A. 168. She also testified that Emmett
had disappeared for a weekend after receiving his tax refund, then
returned to her parents’ home claiming that he never received it.
A family friend, Linda Butler, was the owner of the van Emmett
was driving when he struck and killed the motorcyclist, and she also
testified on Emmett’s behalf. Mrs. Butler described Emmett as a car-
ing and respectful person who often helped her, her disabled husband,
and her son with home repairs and yard work. She testified that
Emmett also helped care for her son in 1995 after he was injured and
unable to walk. Emmett would often stop by their home when he fin-
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ished his work to help them with whatever they needed, including car-
rying her son to and from the bathtub and taking turns sleeping beside
her son’s bed to give the parents a break from their caregiving func-
tions.
In addition to these family members and friends, Emmett called
three witnesses to support a claim that he would not pose a future
danger if given a life sentence. Gary Bass, Chief of Operations for the
Virginia Department of Corrections, testified that any person con-
victed of murder and given a life sentence would be classified as a
level six inmate, the highest security level classification, and that
while he could work his way down to level two at best, he would not
be allowed outside the prison at any level. Michael Ellis with Green
Correctional Institution testified that from October 1998 to January
1999, while Emmett was serving his sentence for vehicular man-
slaughter, Emmett was a member of Ellis’s inmate crew working in
the community. Ellis did not recall having any problems with
Emmett. And, Captain Horne, Jail Administrator for the City Jail, tes-
tified that with the exception of one incident in which Emmett was
talking loudly in his cell block, Emmett had committed no disciplin-
ary infractions while awaiting trial at the jail on his murder charge.
Through this testimony, counsel was able to argue to the jury in
mitigation that Emmett was not a monster or career criminal, but a
good and decent person whose addictions to alcohol and cocaine
overwhelmed his judgment and ultimately resulted in his undoing. In
prison for life, counsel pointed out, Emmett would be removed from
his temptations and would pose no future danger to others there.
At the conclusion of the sentencing hearing, the jury returned a ver-
dict finding both statutory aggravating factors, weighed the aggravat-
ing and mitigating evidence, and recommended a sentence of death,
which was subsequently imposed by the trial court. On mandatory
post-conviction review, the Virginia Supreme Court affirmed the con-
viction and sentence, and the United States Supreme Court denied
certiorari.
In state post-conviction proceedings, Emmett alleged, inter alia,
that his counsel was constitutionally ineffective during the sentencing
phase of his trial because he (1) failed to perform an adequate investi-
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gation into Emmett’s family and social background, and (2) failed to
request the assistance of a toxicologist or substance abuse expert to
present evidence of Emmett’s level of intoxication at the time of the
murder. The state habeas court denied Emmett’s petition and denied
Emmett’s petition for rehearing. Pursuant to 28 U.S.C.A. § 2254,
Emmett then filed this petition for a writ of habeas corpus in the dis-
trict court. The district court denied the petition, and declined to issue
a certificate of appealability under 28 U.S.C.A. § 2253. We issued a
certificate of appealability to review the two claims set forth above.
II.
The Sixth Amendment requires that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence," U.S. Const. amend. VI, and that such assistance be
effective, see Strickland v. Washington, 466 U.S. 668, 686 (1984). In
order to establish a claim for ineffective assistance of counsel,
Emmett must demonstrate "that counsel’s performance was deficient"
and that "the deficient performance prejudiced the defense." Id. at
687. To demonstrate inadequate performance, Emmett "must show
that counsel’s representation fell below an objective standard of rea-
sonableness" measured by "prevailing professional norms." Id. at 688.
To demonstrate prejudice, Emmett "must show that there is a reason-
able probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different." Id. at 694. In
death sentence challenges such as this, "the question is whether there
is a reasonable probability that, absent the errors, the sentencer —
including an appellate court, to the extent it independently reweighs
the evidence — would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death." Id. at 695.
Pursuant to the limits on federal habeas review of a state convic-
tion, when a habeas petitioner’s constitutional claim has been "adjudi-
cated on the merits in State court proceedings," we may not grant
relief unless the state court’s adjudication "resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States" or "resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C.A. § 2254(d) (Supp. 2006).
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A state court’s decision is contrary to clearly established federal law
under § 2254(d) where it "applies a rule that contradicts the governing
law set forth" by the United States Supreme Court or "confronts a set
of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from
[that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
A state court’s decision involves an unreasonable application of
clearly established federal law "if the state court identifies the correct
governing legal rule from [the Supreme] Court’s cases but unreason-
ably applies it to the facts of the particular state prisoner’s case." Id.
at 407. Factual determinations made by the state court "shall be pre-
sumed to be correct," and "[t]he applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evi-
dence." 28 U.S.C.A. § 2254(e)(1) (Supp. 2006).
III.
We begin with Emmett’s claim that counsel’s investigation into his
childhood was constitutionally deficient because he failed to inter-
view each of Emmett’s siblings and half-siblings and failed to request
records from Emmett’s court-ordered mental health counseling as a
juvenile. Emmett argues that these sources of information would have
alerted counsel that Emmett was raised in an environment of poverty,
poor housing, hunger, neglect, and physical abuse, which led him to
an early, persistent, and lifelong criminal path. Emmett further con-
tends that had his jury been presented with such additional evidence,
"there is a reasonable probability that at least one juror would have
struck a different balance." Wiggins v. Smith, 539 U.S. 510, 537
(2003).
A.
It is well established under Strickland and its progeny that trial
counsel’s failure to conduct an "adequate investigation in preparing
for the sentencing phase of a capital trial" may amount to ineffective
assistance. Rompilla v. Beard, 545 U.S. 374, 380 (2005); see Wiggins,
539 U.S. at 521-22. In the course of representation, "counsel has a
duty to make reasonable investigations or to make a reasonable deci-
sion that makes particular investigations unnecessary." Strickland,
466 U.S. at 691.
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It is also well established, however, "that Strickland does not
require counsel to investigate every conceivable line of mitigating
evidence no matter how unlikely the effort would be to assist the
defendant at sentencing," Wiggins, 539 U.S. at 533, or "impose a con-
stitutional requirement that counsel uncover every scrap of evidence
that could conceivably help their client," Tucker v. Ozmint, 350 F.3d
433, 442 (4th Cir. 2003) (internal quotation marks omitted). "[T]he
Strickland test of necessity requires a case-by-case examination of the
evidence," Williams, 529 U.S. at 391 (internal quotation marks omit-
ted), and counsel’s decision not to investigate or to cease investiga-
tion in a particular area "must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to
counsel’s judgments," Strickland, 466 U.S. at 691. In all such cases,
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second
guess counsel’s assistance after conviction or adverse sen-
tence, and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. A
fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hind-
sight, to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.
Strickland, 466 U.S. at 689 (internal citations omitted); see also Rom-
pilla, 545 U.S. at 381 ("In judging the defense’s investigation, as in
applying Strickland generally, hindsight is discounted by pegging
adequacy to ‘counsel’s perspective at the time’ investigative decisions
are made, and by giving a ‘heavy measure of deference to counsel’s
judgments.’" (quoting Strickland, 466 U.S. at 689, 691) (internal cita-
tions omitted)).
B.
With these principles in mind, we now "reconstruct the circum-
stances of counsel’s challenged conduct," and consider the timeliness
and scope of the investigation performed by counsel, the fruits of that
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effort, and the decisions counsel made as a result of it. Strickland, 466
U.S. at 689.
Emmett’s counsel was an experienced public defender in Danville,
Virginia, who had tried at least 15 murder cases, including two capital
cases. He was assisted in his representation by an investigator
employed by the public defender’s office as well as a forensic psy-
chologist appointed by the trial court to assist with the preparation
and presentation of mitigation evidence. At the outset of the represen-
tation, counsel interviewed Emmett with the aid of a twenty-three
page, comprehensive questionnaire specifically designed to obtain
biographical information and explore all possible areas of mitigation
evidence. The questionnaire was divided into separate sections cover-
ing nine categories of potentially mitigating evidence: family history,
criminal history, employment history, environmental history, hobbies,
medical history, mental health history, school history, and substance
abuse history. Each section, in turn, contained specific and detailed
questions to be covered with the defendant.
During counsel’s interview, Emmett was cooperative and forth-
coming about his background, family and upbringing. Emmett told
counsel that he was unmarried and had a five-year-old daughter. He
told counsel that his now-deceased biological father was an abusive
alcoholic, that his mother and father separated and divorced when
Emmett was an infant, that his mother remarried his current step-
father shortly thereafter, and that his biological father had no role in
Emmett’s upbringing. Emmett was the youngest of five siblings from
the marriage of his mother and father, but only he, his next oldest sis-
ter, and three half-siblings were raised together by his mother and
stepfather. Emmett told counsel that he had a good relationship with
his mother, stepfather, and the siblings that were raised in the home
with him. He specifically denied any abuse, physical or emotional,
and any major childhood difficulties with his mother and stepfather,
told counsel that there "had never been any abuse to him or anyone
else in the home," and told counsel that "there had not been any social
service interventions involving anyone in his family." J.A. 431.
Emmett denied having received any mental health or substance
abuse treatment, and stated that no one in his immediate family had
a history of medical, mental, legal, or (outside of his biological father)
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chemical dependency problems. Although Emmett told counsel that
he had received some court-ordered mental health counseling as a
child, he explained that this was imposed as a result of a juvenile
criminal incident committed when Emmett was seven or eight years
old and that the counseling was discontinued by his mother because
she thought it was making him worse. Emmett denied having been
diagnosed or medicated for any mental health condition at that time
or thereafter.
In the course of counsel’s interview, Emmett provided names of
several family members and friends who could be contacted for infor-
mation or as possible witnesses. Counsel interviewed Emmett’s
mother and step-father, his half-sister Lauri, and several friends. At
no time did these witnesses alert counsel to the possibility that
Emmett, contrary to his assertions, was abused or neglected as a child
or otherwise contradict or call into question the information provided
by Emmett.
Dr. Evan S. Nelson, the forensic psychologist appointed to assist
defense counsel in the preparation and presentation of mitigation evi-
dence, evaluated Emmett and prepared a written report. In the course
of this evaluation, Emmett provided a family and social background
fully consistent with that provided to counsel and was otherwise
cooperative. Emmett told Dr. Nelson that he "got along well with his
stepfather," described his mother as a "‘loving mother’ who rear-
ranged her schedule to be there to take care of him when he was
growing up," and "denied having been physically or emotionally
abused." J.A. 462. He also denied being raised by his older siblings
and claimed "there was adequate money to meet his basic needs." Id.
Emmett also reported to Dr. Nelson an extensive and troubling
juvenile and adult criminal history. Emmett confessed to being chron-
ically truant beginning in elementary school and told Dr. Nelson that
he was twice arrested during his elementary school years for breaking
and entering a neighbor’s home and a business, both of which he
committed alone. Emmett also told Dr. Nelson that he was suspended
multiple times in middle and high school for various infractions. As
noted by Dr. Nelson, Emmett’s "account of his own criminal history
[was] more damning than the actual records." J.A. 463. In addition to
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the two breaking and enterings committed during elementary school,
Nelson’s report outlined Emmett’s other criminal activities:
At age 10, he had another breaking and entering and was
sent to a training school. At age 11, he burned a trailer down
"by accident." He explained that he was playing with
matches, by himself, when he accidentally set the trailer on
fire. This may have been a violation of probation for the
B&E and he was sent back to yet another training school.
At 14, he committed another B&E. He said that he was not
guilty of this charge but did know who had done it, but the
court convicted him. Then he added that he should have
been found guilty of receiving stolen goods but he did not
want to rat out his friend who had actually committed the
B&E, showing strong criminal social values as early as age
14. He was placed in a non-secure juvenile facility and ran
away four times. At that point he had never been gone for
more than just a day.
They then sent him to a more secure facility called the
Dylan Detention Center. He said he escaped from there
three times. (Seven escapes even from non-secure facilities
is evidence of planning and a persistent disregard for the
rules of authority figures; it also showed short-term plan-
ning, given that each brief episode of freedom was followed
by increased incarceration.) The last time he ran with two
boys and he stayed in Tennessee at one of the boy’s aunt’s
house for almost two weeks. He was charged with kidnap-
ing, assault, and common law robbery as part of that escape.
The kidnaping occurred when he stuffed a guard in the
closet. The assault occurred because he touched the guard to
put him in the closet. The common law robbery occurred
because he took the keys away from the guard, or so this is
how he reported it. While on the lam, he stole some clothes
off of a clothesline and incurred yet another B&E charge.
He was in detention until his 18th birthday.
J.A. 463-64. After his juvenile years, Emmett related having convic-
tions or charges for several DUI’s, driving without a license, assault-
ing his girlfriend, second degree trespassing, possessing stolen goods,
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and vehicular manslaughter. Contrary to the evidence presented at his
trial, Emmett denied that he was on the wrong side of the road when
he struck the motorcyclist and told Dr. Nelson that the police placed
the victim on the wrong side to fabricate evidence against him.
Emmett also told Dr. Nelson that within a month after his release
from prison for the vehicular manslaughter, he was arrested for hav-
ing an open container of alcohol, charged with possession of drug par-
aphernalia, and charged with a fishing violation. With the exception
of the court-ordered counseling when he was in elementary school,
Emmett advised Dr. Nelson that he had undergone no mental health
counseling or treatment.
Dr. Nelson also reported to counsel that Emmett was of average
intelligence for the general population, above-average intelligence for
an incarcerated male felon, and that his personality test revealed an
antisocial personality trait, i.e., "an attitude that the world is a place
of competition and one must take what you can get, and feel that you
deserve it." J.A. 466. Dr. Nelson concluded that, although Emmett did
not currently meet the criteria for "psychopath," he had traits of that
classification and amply met the criteria for "Antisocial Personality
Disorder," which "describes a pattern of criminal conduct." J.A. 467.
In short, Emmett exhibited "the chronically unstable, impulsive, and
opportunistic lifestyle of a career criminal." Id. Moreover, Dr. Nelson
viewed Emmett as a career criminal with a pattern, "beg[inning] in
childhood and continu[ing] into adulthood," of "commit[ting] prop-
erty offenses for his own personal gain" — the same thing that moti-
vated the capital murder offense. J.A. 468.
Ultimately, Dr. Nelson concluded, and advised counsel, that:
Except for Mr. Emmett’s addictions to alcohol and cocaine
and the role they may have played in his urgent desire for
money that night, there is little from this defendant’s back-
ground that can mitigate the offense, in this expert’s opin-
ion. Mr. Emmett had done little with his life except live
hand-to-mouth. There was no evidence whatsoever of an
acute mental illness explaining the instant offense or Mr.
Emmett’s background, just a personality disorder. There
were no credible reports of neuropsychological damage that
would explain his pattern of conduct, either. His social his-
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tory did not reveal mental retardation, severe abuse or
depravity.
There may be mitigation in the fact that Mr. Emmett had
behaved while in adult jails and prisons, suggesting that he
could be a good citizen within a highly structured and con-
trolled environment such as the one he would experience if
given life without parole.
Id. In view of his evaluation, Dr. Nelson recommended that counsel
not call him as a witness because of the high risk of the prosecution
using the lack of mitigation as aggravating evidence and advised that
Emmett would be better served by lay witnesses, rather than an expert
"who could be cross examined about Antisocial Personality Disorder,
psychopathy, and hypotheticals about future bad conduct Mr. Emmett
might commit." J.A, 469.
In addition to the interviews conducted of Emmett’s family mem-
bers and friends and his review of the evaluation by Dr. Nelson, coun-
sel obtained Emmett’s available school records and the records of his
prior incarceration as an adult. Counsel also attempted to obtain
Emmett’s juvenile commitment record, but was advised that those
records had been destroyed. Counsel did not pursue obtaining a copy
of the records from Emmett’s juvenile court-ordered counseling. Nei-
ther Emmett nor the family members indicated that there was any-
thing significant to find, testimony by people involved in his juvenile
criminal history would have risked opening the door to Emmett’s
early and continuous criminal behavior, and Dr. Nelson reported no
evidence of mental illness in his evaluation of Emmett.
From the interview with Emmett’s mother, counsel also located
and personally interviewed one of Emmett’s juvenile probation offi-
cers, Molly Bergwyn. Ms. Bergwyn advised counsel that she became
Emmett’s probation officer when Emmett was approximately 8 years
old. She "remembered Emmett as a sad little kid who ran away a lot,"
but told counsel that "she never noticed any violent behavior or
reports of abuse." J.A. 431. Although she did recall Emmett’s "living
conditions as nasty — dirty trailers, lots of kids and not much atten-
tion," she was not overly critical of Emmett’s mother. Id. Ms. Berg-
wyn told counsel that she believed that Emmett’s mother loved him,
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but that she possibly lacked parental skills, and advised counsel that,
in her opinion, there was "no abuse[,] just not a lot of attention." Id.
In statements consistent with those of Emmett and his family mem-
bers, Ms. Bergwyn also advised counsel that she remembered
Emmett’s stepfather taking Emmett hunting, trapping, and fishing,
which Emmett loved, so there was "obviously parental involvement."
Id.
Based upon Emmett’s statements, the follow-up investigation, and
Dr. Nelson’s evaluation and recommendations, counsel made a strate-
gic decision not to call Ms. Bergwyn or Dr. Nelson as witnesses. With
respect to Ms. Bergwyn, counsel felt that she "could damage more
than help" because her description of Emmett’s home life, while not
ideal, was at worse one of some neglect, but not of abuse or other
atrocities. Id. On the downside, counsel feared that her testimony
would serve to remind the jury that Emmett had been a "lawbreaker"
since the age of eight, "over 20 years [and] 2/3 of his life." Id. Coun-
sel likewise heeded Dr. Nelson’s advice not to call him as a witness,
as doing so would also have opened the door to Emmett’s extensive
criminal history beginning at age seven and his antisocial traits and
career criminal personality — a history which the prosecutors were
not privy to and which was unavailable to them via juvenile records.
Without this support, counsel knew, the prosecutor’s future danger-
ousness case was supported only by the single juvenile conviction, the
attempted escape from the juvenile facility and related offenses, and
the single adult conviction for vehicular homicide.2
2Counsel was aware, through the Commonwealth’s notice of prior con-
victions, that the Commonwealth either was not aware of or chose not to
detail Emmett’s extensive criminal behavior as a child. In state habeas
proceedings, the prosecutor confirmed that he "attempted to investigate
and discover the extent of Emmett’s juvenile criminal history for use in
evidence at sentencing," and that he "wanted information about
[Emmett’s] criminal history as a juvenile to stress to the jury that he had
a long history of criminal conduct and provide additional support for a
finding of future dangerousness." J.A. 477. However, he too "learned that
North Carolina law provides that juvenile records are destroyed 10 years
after the juvenile reaches age 18" and "that any juvenile records concern-
ing Emmett had been destroyed approximately a year earlier." Id. The
prosecutor’s attempts to locate witnesses who could testify about his
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Instead, counsel pursued a strategy to "humanize" Emmett and
"persuade the sentencer that he . . . is not a monster, but a person with
some worthwhile qualities," through testimony from Emmett’s family
members and a close friend to demonstrate that he was "a helpful and
responsible son, parent and friend until approximately 12 months"
before the murder when he became involved in cocaine and under-
went a noticeable change in behavior — a strategy that would have
been directly undermined by evidence of an extensive juvenile and
adult criminal history. J.A. 433. Building upon this testimony, counsel
also developed and presented positive testimony of Emmett’s good
behavior while serving his North Carolina sentence and while await-
ing trial in the Danville City jail, to stress Emmett’s demonstrated
lack of dangerousness in the prison setting, as well as the security and
structure of the prison environment he would be placed in if given a
life sentence.
C.
Counsel’s mitigation strategy, however reasonable and well-
conceived at the time, was ultimately unsuccessful; the jury was not
convinced that the mitigating circumstances of Emmett’s character or
his inability to control his weakness for intoxicating substances out-
weighed the aggravating circumstances of the brutal killing of his
coworker. Only now, in the wake of Emmett’s conviction and death
sentence, habeas counsel has successfully gathered a number of affi-
davits from Emmett’s siblings, half-siblings, and extended family
members, as well as information gleaned from the childhood counsel-
ing ordered by the juvenile court, which paint quite a different picture
of his childhood.
According to these affidavits, Emmett’s family was very poor, his
living conditions were dirty and unsafe, there was not always enough
food, his mother and stepfather often fought, and the children were
juvenile record were also unsuccessful, leaving him with the evidence
from the juvenile facility escape only. The prosecutor also confirmed that
"[i]f [Emmett] had presented evidence that suggested additional criminal
activities as a juvenile, [he] certainly would have made use of that evi-
dence." Id.
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neglected and, at times, slapped, spanked, or otherwise physically
abused. Records from the court-ordered counseling confirm that
Emmett was brought to therapy by his mother after Emmett was
arrested on charges of larceny at the age of seven, while Emmett was
in the second grade. The records further indicate, however, that
Emmett’s family and living conditions were poor, that his hygiene
was very inappropriate, that he might not have been receiving ade-
quate care in the home, and that the therapy was ultimately terminated
as a result of his mother’s non-compliance. Finally, the new records
contain information that one of Emmett’s juvenile probation officers
filed a neglect charge which was investigated by social services,
although it did not result in either Emmett or his younger brothers and
sisters being removed from the home.
In light of this new evidence, Emmett contends that his counsel’s
investigation was constitutionally deficient because, although counsel
did interview Emmett’s mother, step-father, and half-sister, he did not
interview all of the siblings known to counsel and did not request the
record from his court-ordered counseling. We disagree.
As an initial matter, we point out the obvious fact that this new evi-
dence in large part directly contradicts the information Emmett pro-
vided to his lawyer and the forensic psychologist appointed to work
on his behalf to develop and present a mitigation case, as well as the
corroborating information obtained during the investigation. As noted
above, Emmett reported that he had a good relationship with his
mother, his stepfather, and his siblings, and that he had maintained a
good relationship with his parents into his adult years. He specifically
denied any physical or emotional abuse to him or to his siblings,
denied any DSS interventions into his home, and described his mother
as a loving mother who rearranged her schedule to take care of him.
He denied being raised by his older siblings and indicated that there
was adequate money available to ensure that his basic needs were
met.
In habeas proceedings, Emmett has not factually disputed that he
provided this history to counsel, nor otherwise sought to contradict
his earlier statements to counsel. He has also made no effort to per-
sonally set forth an account of his family and social history which dif-
fers from that obtained by counsel during his representation. In short,
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Emmett has presented no testimony or affidavit on his own behalf in
the habeas proceedings. Rather, Emmett argues, without evidentiary
support, that he was "unable to recall and describe the tragic circum-
stances of his own upbringing," but that this inability did not "ab-
solve[ ] trial counsel of his obligation to conduct an adequate
investigation and follow viable leads regarding Emmett’s mental
health and troubled family background." Reply Brief at 3-4 (internal
quotation marks omitted). Emmett asserts that counsel should have
anticipated that Emmett’s family would not have told him the truth
about his counseling history or other negative conditions of his child-
hood.
Having considered counsel’s investigation along with the new evi-
dence presented, the state habeas court ruled that "[c]ounsel was enti-
tled to believe that the petitioner and his proffered witnesses,
including friends and family, had informed counsel and petitioner’s
mental health expert of all relevant social history," J.A. 542, and
made a reasonable decision to allocate their time and efforts towards
the development of other types of mitigating evidence. On federal
habeas, Emmett contends that the state court’s determination was
unreasonable, as it adopted what amounts to a per se rule that
"[c]ounsel cannot be held ineffective for relying upon information
supplied by his client." Id. We, however, do not read the state court’s
opinion so narrowly and, in any event, agree that counsel’s investiga-
tion into Emmett’s family background was not constitutionally defi-
cient.
As noted above, a determination of the reasonableness of counsel’s
actions must be determined on a "case-by-case" basis. Williams, 529
U.S. at 391. "A standard of reasonableness applied as if one stood in
counsel’s shoes spawns few hard-edged rules," and the merits of
counsel’s investigative choices may often be "subject to fair debate."
Rompilla, 545 U.S. at 381. However, "capital sentencing proceedings
do not set at naught the basic principle of attorney-client relations:
namely that counsel, for all their learning and experience, remain in
the end the agents of the one most intimately affected." Lovitt v. True,
403 F.3d 171, 179 (4th Cir. 2005). The importance of respecting the
attorney-client relationship and the propriety of counsel relying upon
the word of his client in the usual case were recognized by the Court
in the Strickland opinion, which plainly states that "[t]he reasonable-
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ness of counsel’s actions may be determined or substantially influ-
enced by the defendant’s own statements or actions," and advises that
"[c]ounsel’s actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied
by the defendant." Strickland, 466 U.S. at 691. This reliance, the
Court further noted, particularly extends to the investigation phase of
counsel’s representation:
In particular, what investigation decisions are reasonable
depends critically on such information [supplied by the
defendant]. For example, when the facts that support a cer-
tain potential line of defense are generally known to counsel
because of what the defendant has said, the need for further
investigation may be considerably diminished or eliminated
altogether. And when a defendant has given counsel reason
to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.
In short, inquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of coun-
sel’s investigation decisions, just as it may be critical to a
proper assessment of counsel’s other litigation decisions.
Id.; see also Barnes v. Thompson, 58 F.3d 971, 979-980 (4th Cir.
1995) (holding that defense counsel "may rely on the truthfulness of
his client and those whom he interviews in deciding how to pursue
his investigation").
The constitutional argument that counsel should, instead, presume
that his client, particularly one who is behaving in a cooperative and
forthcoming manner, is being deliberately misleading, or that counsel
should presume that the family members also possess a motivation to
deceive, runs directly counter to this most basic premise. It would
also place counsel in an impossible position — unable to trust the
word of the client and his family members and always subject to pro-
fessional challenge for a failure to interview every person identified
to him and every person known who might contradict those inter-
viewed.
Even if we could, under our limited federal review of the state
court’s adjudication, we would also not view this case as one that
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should be excepted from Strickland’s recognition of the general pro-
priety of counsel’s reliance upon the word of his client. Emmett has
provided no evidentiary support for the assertion that he was unable
to recall his troubled background nor any evidentiary basis upon
which to conclude that his counsel should have had reason to believe
that Emmett was unable to do so. Indeed, given the specificity of the
information he provided, it seems that Emmett was able to recall the
details of his childhood.
Nor does this case fit within the criticisms of the Supreme Court’s
in Williams, Wiggins, or Rompilla, or the bases upon which the Court
determined that counsel’s representation was deficient in those cases.
This is not a case in which counsel ignored his duty to investigate
background information, engaged in a belated investigation of miti-
gating evidence, or failed to commission a social history report by a
psychologist. There is no assertion that Emmett was intellectually
challenged or that he was not aware of or did not understand the capi-
tal process and the importance of presenting mitigation evidence in
the penalty phase. There is no claim that Emmett at any time sug-
gested that counsel should not pursue or offer mitigation evidence or
that he behaved in an unhelpful, hopeless, defeated, or despondent
manner during his encounters with counsel or Dr. Nelson. Nor is this
a case in which counsel neglected to obtain and review his client’s
prior criminal record or prison records of his client’s good behavior
in a structured environment. On the contrary, counsel uncovered a
wealth of information regarding his client’s extensive criminal back-
ground, confirmed that the prosecution had not uncovered that same
information and would be unable to rely upon it as aggravating evi-
dence, and made strategic decisions to ensure that the door to that evi-
dence remained closed.
This is also not a case in which counsel did rely solely upon the
word of his client in making investigative and mitigation decisions.
Counsel interviewed Emmett’s mother, the stepfather who raised him
from an infant, as well as the half-sister who grew up with Emmett,
still lived in the family home, and had frequent contact with Emmett
in his adult years. And, no evidence is present or exists that counsel
should have anticipated that Emmett’s family also would lie or cover
up the truth about his childhood, or otherwise hinder counsel’s efforts
to build the most effective mitigation case possible.
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Counsel also requested Emmett’s school records and prison records
and tracked down one of Emmett’s earliest juvenile probation officers
who, although indicating that his home was dirty and that his mother
lacked parenting skills, confirmed Emmett’s assertions that his mother
loved him and that he had a good relationship with his step-father.
Although counsel was made aware that Emmett received counseling
at a young age as a juvenile offender, counsel was also told that the
counseling was discontinued by the family because it was not helpful
and advised by Emmett and his family that Emmett had never been
diagnosed with or treated for a mental illness. The probation officer
gave no indication that there was a childhood mental illness, and Dr.
Nelson confirmed that Emmett displayed no signs of mental illness
during his evaluation.
In sum, we agree with the state court’s determination that counsel,
given the information obtained during his background investigation,
could reasonably have determined that neither further interviews with
family members nor the juvenile counseling records would be helpful
to his defense and that counsel’s time and efforts were best spent pur-
suing the mitigation strategy outlined above and presented at trial.
Accordingly, Emmett is not entitled to federal habeas relief.3
3In his affidavit presented in the state habeas proceeding, counsel indi-
cated that "Emmett gave me the names of family and friends to contact
for information or as possible witnesses" and that "[m]y investigator
and/or I contacted and interviewed Emmett’s mother, step-father and sis-
ter and other friends." J.A. 431. The state habeas court, in turn, stated in
its decision that "[c]ounsel interviewed all the witnesses provided by
petitioner and none of them reported the problems now claimed by peti-
tioner." J.A. 542. Pointing to handwritten notes which indicate that
Emmett gave counsel or Dr. Nelson the names of other siblings who
were not contacted, Emmett contends that the state court’s factual state-
ment was unreasonable and, therefore, that we are compelled to review
this case de novo. We disagree. Although it does appear that counsel did
not interview every family member who was brought to their attention,
we cannot say that the state court operated under the mistaken belief that
counsel had done so. The state court was not presented with a factual dis-
pute on this issue as counsel’s affidavit plainly stated that he interviewed
the "mother, step-father and sister". J.A. 431. Consequently, Emmett has
not demonstrated, by clear and convincing evidence, that the factual
basis for the state court’s reasonableness determination was incorrect.
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D.
Even if Emmett had established that his counsel’s performance was
unreasonable, Emmett would still not be entitled to relief because he
also failed to demonstrate "that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694. "A reason-
able probability is a probability sufficient to undermine confidence in
the outcome." Id. The state habeas court found no reasonable proba-
bility that, had the additional evidence of Emmett’s childhood been
presented, the jury’s verdict would have been different. We cannot
say that this determination was contrary to or an unreasonable appli-
cation of Strickland and its progeny.
In death penalty cases, to assess prejudice, the court "reweigh[s]
the evidence in aggravation against the totality of available mitigating
evidence." Wiggins, 539 U.S. at 534. Here, the aggravating evidence
surrounding the murder was compelling. Emmett and Langley were
coworkers and roommates at the motel. Emmett knew Langley’s fam-
ily and had been the recipient of Langley’s generosity, both monetar-
ily and in favors, in the past and on the night of the murder. Despite
this personal relationship and Langley’s generosity, Emmett walked
calmly into their motel room, sat on his bed contemplating the mur-
der, took the lamp from the table, quietly removed its lampshade and
light bulb (presumably so he would not cut himself), and beat the
sleeping, helpless victim to death for the sole purpose of robbing him
because Langley had denied his request for another loan. In doing so,
Emmett struck Langley in the skull at least five times and with such
ferocity that blood flew onto the walls, the foot of the bed and head-
board, and to the opposite side of the room. He then removed Lang-
ley’s wallet from his pocket and used the money to buy crack cocaine.
Even if we believed otherwise, however, we would not grant habeas
relief de novo as we agree with the state court’s determination. Counsel’s
decision not to proceed beyond the interviews of the three family mem-
bers did not render his investigation constitutionally deficient and we
find the investigation to have been reasonable under all the circum-
stances.
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After killing Langley, Emmett concocted his lie for the police,
calmly reported the murder to the motel desk attendant, and, when the
police arrived and the situation became tense, tried to pin the crime
on another coworker and supposed friend. Finally, when there was no
more lie to spin, Emmett confessed to having acted alone. When
questioned about the circumstances leading up to the murder, Emmett
told the police that Langley was "an asshole" who "wouldn’t loan me
no money," J.A. 81, and that it "just seemed right at the time," J.A.
80, demonstrating a lack of remorse and callous disregard for human
life similar to that demonstrated in the wake of his killing of the
motorcyclist a few years prior.
In contrast to this devastating evidence, the evidence that Emmett
has produced in habeas proceedings, and which he now contends
should have been unearthed and presented during the sentencing
phase, would have presented to the jury a picture of a difficult child-
hood environment. It was, however, comprised of at least as much
bad evidence in aggravation as good evidence in mitigation, and the
additional evidence in aggravation would have served to eliminate or
at least substantially undercut the evidence in mitigation that was
presented. According to the newly submitted evidence, Emmett had
a difficult and neglectful childhood environment, with at least some
physical abuse, but not one deemed severe enough for social services
to remove from the home either Emmett or his siblings when called
to investigate. On the other hand, the additional evidence contained
an extensive and extremely damaging juvenile criminal history which
supported the prosecutor’s future dangerousness and depravity argu-
ments. As noted by the prosecutor, he "attempted to investigate and
discover the extent of Emmett’s juvenile criminal history for use in
evidence at sentencing," and "wanted information about [Emmett’s]
criminal history as a juvenile to stress to the jury that he had a long
history of criminal conduct and provide additional support for a find-
ing of future dangerousness." J.A. 477. Thus, "[i]f [Emmett] had pre-
sented evidence that suggested additional criminal activities as a juve-
nile, [he] certainly would have made use of that evidence." Id.
Emmett acknowledges the aggravating nature of the additional evi-
dence, but asserts that, had counsel presented the evidence along with
the argument that it was because of these hardships that Emmett
finally resorted to the extensive illegal behavior as a means of getting
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the attention of his parents, the balance would have been struck differ-
ently. We are unpersuaded.
In addition to opening the door to Emmett’s extensive juvenile
record, the evidence would have stripped Emmett of the mitigation
strategy that was presented and invited the prosecution to argue the
very point the defense hoped to avoid — that, instead of the relatively
minor juvenile history known to the prosecutor and the single adult
conviction for vehicular homicide, Emmett had a criminal history
prior to this murder that spanned from the age of seven to the present,
including damaging evidence that Emmett, even as a child, targeted
friends, neighbors, counselors, and others with whom he had personal
relationships as his victims. In sum, such an extensive history of crim-
inal conduct from the age of seven would have substantially bolstered
the prosecutor’s argument that Emmett was a calculating, ruthless,
life-long criminal who stopped not even to spare those close to him
from his crimes and who would pose a danger to anyone who stood
between him and what he wanted. Accordingly, whatever weight the
additional social history might have added to Emmett’s mitigating
side of the scale, we agree with the state court’s determination that it
was more than offset by the aggravating nature of the evidence.
To conclude, Emmett’s arguments suffer from the classic hindsight
that we are cautioned not to apply to upset state court judgments. Had
Emmett’s counsel presented the evidence brought forth in state
habeas proceedings and opened that door, he would be as likely to
have encountered an ineffectiveness argument based on that decision
as the one we face today.
We refuse to place defense lawyers in this position. Trial
counsel is too frequently placed in a no-win situation with
respect to possible mitigating evidence at the sentencing
phase of a capital case. Therefore, the best course for a fed-
eral habeas court is to credit plausible strategic judgments.
To do otherwise would be a transparent misuse of the
habeas court’s power of hindsight.
Lovitt, 403 F.3d at 181 (internal quotation marks, alterations, and cita-
tions omitted). In light of the totality of the evidence presented at trial
and in the state habeas proceeding, we conclude that Emmett has
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failed to demonstrate a reasonable probability that, but for counsel’s
failure to present the additional evidence of Emmett’s background,
the sentence would have been different. Accordingly, we cannot say
that the state court’s determination was contrary to or an unreasonable
application of Strickland and, therefore, Emmett is not entitled to
relief.
IV.
We next turn to Emmett’s claim that his counsel unreasonably
failed to request the assistance of a toxicologist or other substance
abuse expert and to present expert testimony concerning Emmett’s
intoxication at the time of the offense as mitigating evidence during
the penalty phase. According to Emmett, such an expert might have
testified that the effects of cocaine and alcohol can cause impaired
coordination and balance, an impaired ability to react to events, dis-
turbed vision, euphoria, an increased sense of well-being, an
increased sense of power, a loss of insight into events, impaired judg-
ment, impaired or disturbed perceptions, difficulty concentrating, con-
fusion, paranoia, visual disturbances, or hallucinations.4
The state habeas court rejected Emmett’s intoxication claim, con-
cluding that it met neither the "performance" nor "prejudice" prong of
Strickland’s two-part test. Specifically, the court noted that:
While petitioner’s court-appointed mental health expert
informed counsel that he believed petitioner was intoxicated
at the time of the offense, the expert also cautioned that peti-
tioner made a choice to attack the victim and he "clearly
knew what he was doing." Additionally, petitioner’s own
statement to the police indicated that he thought about rob-
bing and hitting the victim in the head before actually com-
mitting the acts. Furthermore, because there was no
4In his state habeas proceedings, Emmett argued that counsel was con-
stitutionally ineffective for failing to present intoxication as a defense to
capital murder in the guilt phase, as well as to the imposition of the death
penalty in the sentencing phase. In this appeal, however, Emmett has
limited his challenge to counsel’s performance as it relates to the sen-
tencing phase.
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evidence as to the precise amount of alcohol and cocaine he
consumed on the night in question, any expert testimony
would have been based solely on speculation. Finally, coun-
sel argued at the sentencing hearing that petitioner had
addictions to both alcohol and cocaine and that these addic-
tions "overwhelm[ed] his judgment" at the time of the mur-
der.
J.A. 535-36. Having reviewed the record, we cannot say that the state
court’s rejection of Emmett’s intoxication claim was contrary to or an
unreasonable application of Supreme Court precedent.
Although evidence of intoxication can be mitigating in certain cir-
cumstances, see Va. Code Ann. § 19.2-264.4(B)(iv) (2004) (setting
forth, as mitigating, evidence that "at the time of the commission of
the capital felony, the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the require-
ments of law was significantly impaired"), we agree that counsel’s
determination that the evidence in this case could not support such a
claim was a reasonable one.
According to his confession, Emmett began drinking beer at
approximately 6:00 p.m. and, over the course of the next five or six
hours, consumed as much as a 12-pack of beer and smoked a six-
teenth of crack with several of the other roofers. However, the evi-
dence available to counsel indicated that Emmett was nonetheless
calm and in control of his actions at the time of the murder. Emmett’s
coworker Michael Pittman confirmed that the men were drinking and
that they smoked crack together on a couple of occasions, but he testi-
fied that the crack did not affect him very much because the quantity
was small and each man only got two or three drags. The hotel desk
clerk, whom Emmett approached within a hour of killing Langley,
stated that Emmett appeared normal and not nervous. He was
"standin[g] straight, and he walked straight," and "nothing [was]
wrong with his speech." J.A. 55. The police officers who responded
to the scene and dealt with Emmett immediately thereafter also uni-
formly testified that Emmett was very calm and had no difficulty
walking or talking to them. Emmett’s own confession also indicates
that he was calm and in control of his actions at the time of the mur-
der; he told the officers that he "went in [the motel room], sat on the
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bed for a few minutes, . . . thought about it, . . . took the shade off
the lamp and took the bulb out, . . . unplugged it and . . . hit John in
the head with it." J.A. 75-76.
Dr. Nelson also interviewed Emmett about the circumstances of the
evening, was aware of the substance use, and specifically addressed
the question of "[w]hether the capacity of [Emmett] to appreciate the
criminality of his conduct or conform his conduct for the requirement
of the law was significantly impaired" in his report to counsel. J.A.
467. Dr. Nelson opined that Emmett "was intoxicated on the synergis-
tic combination of cocaine and alcohol at the time of the alleged
offense," and that such intoxication can "reduce[ ] anxieties that nor-
mally inhibit one from acting on impulses to do illegal acts" and agi-
tate the perpetrator. J.A. 467-68. However, Dr. Nelson cautioned that,
in this case, "Mr. Emmett voluntarily consumed these substances,"
"was experienced with the effects of alcohol and cocaine," "made a
choice to attack his sleeping roommate and clearly knew what he was
doing." J.A. 468.
In light of this evidence, we cannot say that counsel’s representa-
tion was deficient because he did not seek out the assistance of
another substance abuse expert or a toxicologist or that, had he done
so, the result of the proceeding would have been different. Counsel
and Dr. Nelson investigated a possible mitigation strategy based upon
Emmett’s substance use that evening, and counsel did argue in miti-
gation to the jury, based on the evidence presented and the mitigation
witnesses, that Emmett had addictions to both alcohol and cocaine
which had changed his personality in the months prior to the murder
and overwhelmed his judgment at the time of the murder. Counsel,
however, uncovered no basis upon which to believe that Emmett suf-
fered from severe ill-effects of alcohol and cocaine and, on the con-
trary, Emmett’s counsel was presented with uniformly consistent
information that Emmett’s behavior and speech throughout the eve-
ning and immediately after the murder were unimpaired and that he
was in control of his actions at the time. Given this information, we
cannot say that the Virginia Supreme Court’s determination — that
Emmett failed to demonstrate that his counsel’s performance was
deficient because he failed to hire and present a separate toxicologist
substance abuse expert or that, had he done so, that the result of the
proceeding would have been different — was unreasonable. For the
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same reason, we reject Emmett’s challenge to the district court’s
denial of his motion to authorize funds for the appointment of a toxi-
cologist or other substance abuse expert on federal habeas.
V.
For the foregoing reasons, we affirm the district court’s denial of
Emmett’s petition for writ of habeas corpus.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I concur in Part IV of the majority opinion, which concludes that
Christopher Scott Emmett’s ("Emmett’s") counsel was not ineffective
in failing to develop evidence of Emmett’s intoxication for use during
the penalty phase. I respectfully dissent from the majority’s analysis
and conclusion in Part III of the opinion. Counsel failed to investigate
adequately Emmett’s childhood, and counsel’s inadequate investiga-
tion prejudiced the sentencing phase of Emmett’s trial. The Supreme
Court of Virginia unreasonably applied Strickland v. Washington, 466
U.S. 668 (1984), in ruling otherwise.
I.
The majority opinion provides a lengthy description of the facts
related to Emmett’s crime and a thorough exposition of counsel’s
effort to investigate Emmett’s background. The opinion does not
detail at length the facts related to Emmett’s childhood of abuse and
neglect. Because these facts are essential to analyzing Emmett’s
claim, I fully recount them here.
Emmett, born August 18, 1971, was the last of five children born
to Barbara "Karen" McAdams ("Karen") and Bobby Emmett
("Bobby"). His birth home was unsanitary. Emmett’s aunt, Joanne
Bazemore ("Joanne"), remembered that the home was filthy and
smelled of urine, a stench bad enough to make her eyes burn. She
remembered dirty diapers that fell out of closet doors and urine-
soaked mattresses that had to be taken outside for airing. In this home,
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the children were neglected. Joanne recalled that there were many
times the children did not have enough to eat. While unsupervised, an
older sister then two years old, Angela Emmett Wynn ("Angela"),
sustained severe injury from an electrical shock after she was allowed
to chew on a cord. Also while unsupervised, an infant sister died,
apparently from an asthma attack.
Approximately three months after Emmett’s birth, his mother
divorced his father, taking the children with her, she said, because
Bobby was an alcoholic who could not keep a job. Bobby’s second
wife Glenda Mills ("Glenda") remembered that at some point thereaf-
ter, Karen left the children, dirty and underdressed, with a friend but
did not return for them for over two days. When the children stayed
with Bobby and Glenda for approximately one year, the couple never
heard from Karen.
Karen and the children later moved to Roanoke Rapids, North Car-
olina, where Karen married Tommy McAdams ("Tommy") and had
three additional children. Visitors to the McAdams home described it
as dilapidated. The stairs had fallen off the front porch, so the children
climbed up a tree to enter the home from the front; the back of the
house was also difficult to access. Emmett’s brother Bobby Emmett
Jr. ("Bobby Jr.") remembered that bugs infested the house in the sum-
mer because none of the windows had screens, bats flew inside the
house, and the one oil heater in the parents’ bedroom could not keep
the family warm in the winter.
The children in the McAdams home had little supervision. An
older sister, Amy Walton ("Amy"), remembered that by age eight, she
roamed the streets, without consequence, to avoid being in the house.
Bobby Jr., who similarly roamed the streets, stated that "kids were
always supposed to be watching kids" at home. J.A. 299. Another sis-
ter, Mary Emmett Floyd ("Mary"), remembered that their step-father
Tommy was often working, but their mother was either idle at home
or "running the streets." J.A. 305. The lack of supervision led to inju-
ries. Mary fell off the front porch and suffered rib injuries that persist
today. When still a baby, Emmett fell down a flight of stairs and
required emergency room care. Even though Tommy was home that
night, he blamed and beat Amy for Emmett’s fall.
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The McAdams home was as unsanitary as Karen’s previous home
with Bobby. Glenda remembered piles of dirty clothes and dishes, the
smell of urine, and dirty diapers that were left wherever a baby was
changed. Emmett’s siblings remembered the same, including trash
cans that were full and sometimes overturned. Amy could not recall
Karen doing laundry. If the children wanted clean clothes, they had
to use the washboard and cold water (as there was no running hot
water) to clean the clothes themselves. Before eating, the children had
to find a dish and wash it.
The children were also malnourished, therefore Emmett was very
thin as a child. Karen only served dinner and sometimes a tomato
soup lunch. Emmett’s siblings remembered that there was never
enough food to eat, so the children regularly left the house to look for
food. They occasionally had to steal food. More often, neighbors or
the man working at a local ice cream shop fed them; other times, a
local doughnut shop owner fed them on the way to school. Angela
remembered that, strangely, her mother always had enough to eat and
would not share with the children the cakes she lay in bed eating.
Fights were common. Karen and Tommy physically fought over
Karen’s spending habits. The family did not have much money, and
Karen went to jail a few times for writing bad checks. Mary remem-
bered that the family lost their trailer home because, unbeknownst to
Tommy, Karen spent the money intended for its payment. Infidelity
also caused fights, even a knife fight. Karen in particular had a reputa-
tion for sleeping with married men, and she often fought with their
wives.
The children suffered physical abuse. Karen and Tommy beat Mary
and Emmett with "anything that was handy." J.A. 306. Emmett
received more beatings because he was rebellious; Mary went to
school with marks from the beatings. Angela remembered not feeling
safe in the home. She recalled that the children were so afraid of
Tommy, especially when he was drinking, that they would climb
down a tree from the second floor window to reach the bathroom
behind the house without seeing him, or simply urinate on their bed-
room floors. Emmett’s half-sister Lauri McAdams Johnston ("Lauri")
remembered that Tommy had a quick temper and slapped the children
with little provocation. Tommy beat Emmett badly after one of his
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sisters threw him through a wall in the trailer. Bobby Jr. remembered
that a caretaker beat Amy badly and locked Emmett and Bobby Jr. in
their rooms.
Around 1974, the children’s biological father, Bobby, picked up his
three eldest children at school, without permission, and took them to
live with him in Chesapeake, Virginia. Mary and Emmett, however,
were too young to be in school and were therefore left behind. Amy,
Bobby Jr., and Angela considered it a huge relief to go live with their
father. They recalled that back in North Carolina, Tommy sometimes
beat Emmett badly, dumped their plates of food in the trash just for
"looking at him wrong," and locked them in a closet. J.A. 378. When
Angela and Bobby Jr. returned to live with Karen and Tommy briefly,
the situation had not changed.
Back in North Carolina, Karen forced the children to take the
blame for her misdeeds. Mary remembered that when Karen’s mari-
juana was found in the home, Karen blamed Emmett even though he
was only ten or eleven years old. Lauri remembered that her mother
told the children to confirm the lies she had told Tommy. Sometimes
Karen left the home for weeks or months at a time.
Around this time, Emmett began to get in trouble, mostly for steal-
ing items like food, fishing equipment, toys, bicycles, and cigarette
lighters from neighbors and schoolchildren. Emmett was first arrested
for stealing at age seven. In April 1979, Karen brought him to the
Halifax County (North Carolina) Mental Health Center for treatment.
A psychiatric social worker there noted that, in addition to stealing,
Emmett "is prone to telling outrageous lies" and his "hygiene was
most inappropriate. There was a distinctive odor of urine about him."
J.A. 329, 335. The social worker recommended a battery of tests and
made a note to investigate the family. Emmett’s tests later revealed
neglect:
The obsession with food themes supplies support for feeling
by school personnel that Scottie may not be receiving ade-
quate care in the home. Some explicative stems include:
"What worries me . . . is food, when I’m going to it;" "I need
. . . food;" "It is hard to . . . cook" . . . . Projective testing
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indicated a tendency to be highly concerned with basic sur-
vival needs, especially food.
J.A. 333. The social worker recommended that the school consider
reporting the McAdams home to the Halifax County Department of
Social Services ("DSS") for investigation. She also diagnosed Emmett
with reactive disorder of later childhood, a developmental disorder
caused by persistent disregard of a child’s basic emotional needs (e.g.,
comfort, stimulation, affection) or basic physical needs.
Karen and Tommy did not follow through with counseling for
Emmett. Three months after his initial visit, records indicate that mul-
tiple canceled and no-show appointments interrupted his therapy and
that attempts to get Karen to come for sessions failed. After a year of
no contact with the center, Karen returned to report that Emmett’s
behavior had worsened. She acknowledged that "she realizes his
stealing is the result of lack of attention." J.A. 339.
Accordingly, in March 1980, the family re-initiated treatment. In
mother-son play therapy, the therapist noted that Karen remained
aloof from her son and that Karen and Emmett seemed unaware of
how to interact with each other. Despite some initial progress in
Emmett’s behavior, the family eventually interrupted therapy. In
August 1980, a juvenile court counselor noted that Tommy’s involve-
ment in treatment was essential to Emmett’s progress but not forth-
coming. A June 1981 report noted that Emmett’s chaotic and
disorganized family setting afforded him little opportunity for atten-
tion from his parents, that his parents did not comply with counseling,
and that DSS was considering eventual residential placement for
Emmett. The center terminated treatment "due to repeated unsuccess-
ful attempts to re-involve the family." J.A. 341. In October 1981, a
court order reinstated treatment one final time. Therapists saw
Emmett, by then age ten, ten times, but Karen continued to miss
appointments. For the second time, the center terminated Emmett’s
treatment "du[e] to lack of follow-through on the part of his family."
J.A. 343.
Juvenile court reports confirm these accounts of Emmett’s child-
hood. In 1980, a juvenile intake counselor preparing for Emmett’s
court appearance on charges of breaking and entering and larceny
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described the McAdams home as dilapidated and unkempt. When he
visited, he wrote, the children were extremely dirty and the only fur-
niture in good condition was a fully stocked gun cabinet.
The Chief Court Counselor filed a Child Abuse and Neglect Report
against Karen on March 3, 1981. He recommended that Emmett be
placed outside of the home if the present conditions could not be
fixed. The next month, a social worker reported that Karen resisted
DSS involvement. When the social worker did succeed in visiting the
home, she found that rotted food and dirty dishes filled the sink in a
roach-infested kitchen; the furniture was dilapidated; the steps had
fallen off the front porch and entry from the back of the house was
difficult; all the children were unkempt and dirty; there was a lack of
bonding between mother and children and among siblings; and the
mother did not nurture or show any affection toward the children. The
social worker concluded that the home was dysfunctional.
Two weeks after this visit, a juvenile court counselor filed another
Child Abuse and Neglect Report after finding the McAdams home in
total disarray during an unscheduled visit. He opined based on
Emmett’s age and the nature of his thefts that his stealing was the
result of neglect and his resistance to authority was the result of lack
of supervision.
The counselor filed another report in 1984, after Emmett was
arrested for breaking and entering a neighbor’s home and stealing a
ten-dollar piggy bank. Emmett spent the money at a grocery store on
soft drinks, potato chips, and ice cream. The counselor once again
suggested that these acts were Emmett’s way of seeking the attention
he did not receive at home. The report also noted that Emmett, who
had missed multiple days of school that year, had been required to
repeat the fourth grade. The counselor recommended that Emmett be
committed to the Division of Youth Services until his eighteenth
birthday or placed in a residential treatment program. According to an
update filed a month later, Emmett had not attended school for twelve
consecutive calendar days. After being charged with three additional
delinquent offenses on March 7, 1984, Emmett was finally removed
from the McAdams home.
In preparing Emmett’s mitigation case, trial counsel did not
uncover any of the above facts regarding Emmett’s childhood—facts
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habeas counsel uncovered by requesting North Carolina juvenile court
and social services records, interviewing several of Emmett’s siblings
and relatives, and interviewing a probation officer and social worker
from Emmett’s youth. Unaware of these facts, counsel did not present
them during the penalty phase of trial. Rather, counsel called just two
witnesses from Emmett’s family, Emmett’s mother Karen and his
half-sister Lauri, and asked them a total of three questions about
Emmett’s childhood. Counsel asked Karen to name and describe
Emmett’s birth father. Karen replied that Emmett’s birth father,
Bobby, was an abusive alcoholic who never took care of his family.
Counsel asked Lauri whether she grew up with Emmett, to which she
replied yes. These three answers were all that the jury heard regarding
Emmett’s childhood.
II.
Emmett argues that his counsel was ineffective because he failed
to retrieve Emmett’s juvenile mental health records, review Emmett’s
juvenile court file, or interview additional relatives and juvenile
authorities—sources that would have yielded the information
described above. Instead, counsel called only two witnesses from
Emmett’s family, asked them the most cursory questions about
Emmett’s childhood, and left the jury with the impression that
Emmett’s life after infancy was "perfectly normal." Appellant’s Br. at
8. Had counsel completed an adequate investigation and presented the
credible evidence about Emmett’s abuse and neglect as a child,
Emmett argues, there is a reasonable probability that at least one juror
would have recommended a life sentence. The majority, however, sid-
ing with the Warden, finds that the district court properly upheld the
state court’s determination that counsel acted reasonably, especially
given Emmett’s criminal history and Emmett’s statements to counsel,
discussed below. I agree with Emmett and would grant his application
for relief.
III.
To prevail on an ineffective assistance of counsel claim under
Strickland, Emmett must show that (1) his counsel’s performance was
deficient and (2) this deficient performance prejudiced the defense.
466 U.S. at 687.
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Under the first Strickland prong, counsel’s performance is deficient
where "counsel’s representation [falls] below an objective standard of
reasonableness" as measured by prevailing professional norms. Id. at
688. When, as here, counsel’s performance in developing a mitigation
case is at issue, the relevant inquiry "is not whether counsel should
have presented a mitigation case," but "whether the investigation sup-
porting counsel’s decision not to introduce mitigating evidence of [the
petitioner’s] background was itself reasonable." Wiggins v. Smith, 539
U.S. 510, 523 (2003). That inquiry includes "a context-dependent
consideration of the challenged conduct as seen from counsel’s per-
spective at the time," id. (internal quotation marks omitted), and
applies "a heavy measure of deference to counsel’s judgments,"
Strickland, 466 U.S. at 691. The Supreme Court has clarified further
that a strategic choice made by counsel after a thorough investigation
is "virtually unchallengeable," whereas a strategic choice made by
counsel after an incomplete investigation is reasonable only to the
extent that "reasonable professional judgments" support the limita-
tions counsel put on his or her investigation. Id. at 691.
Under the second Strickland prong, prejudice exists where "there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A rea-
sonable probability is a probability sufficient to undermine confidence
in the outcome." Id. at 694. "When a defendant asserts prejudice with
respect to his sentence, the Court must ‘reweigh the evidence in
aggravation against the totality of available mitigating evidence.’"
Hedrick v. True, 443 F.3d 342, 349 (4th Cir. 2006) (quoting Wiggins,
539 U.S. at 534).
Ultimately, this Court is tasked with determining whether the state
court’s adjudication of Emmett’s Strickland claim "was contrary to,
or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States,"
28 U.S.C. § 2254(d)(1) (2000), or "based on an unreasonable determi-
nation of the facts in light of the evidence presented in the State court
proceedings," id. § 2254(d)(2).
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IV.
In assessing counsel’s performance, the majority correctly states
that an attorney’s conversations with a defendant can be critical in
determining whether the attorney acted reasonably in limiting his or
her investigation. See Strickland, 466 U.S. at 691. Nonetheless, for a
host of reasons, it was not reasonable for counsel to rely on Emmett’s
bland depiction of his childhood and Dr. Evan Nelson’s ("Dr. Nel-
son’s") conclusion that "there is little in [Emmett’s] background that
can mitigate the offense" in limiting his investigation. J.A. 432. While
Emmett did omit (and, in some instances, misrepresent) details about
his childhood, he did not indicate to counsel that further investigation
would be useless or that he had identified "all relevant social history"
for counsel, as the state court held. J.A. 542.1 Cf. Rompilla v. Beard,
545 U.S. 374, 380-83 (2005) (holding that defendant’s statement,
among other things, that his childhood and schooling had been normal
did not extinguish counsel’s duty to investigate). More importantly,
however, counsel knew that Emmett had a history with the North Car-
olina mental health and juvenile justice authorities, but counsel did
not know what that history entailed before he concluded that any
details from that history did not fit within his mitigation strategy. I am
more than willing to "credit [counsel’s] plausible strategic judg-
ments," a rule the majority faithfully invokes, so long as those strate-
gic judgments are made after a reasonable investigation. Lovitt v.
True, 403 F.3d 171, 181 (4th Cir. 2005).
Counsel’s explanation as to why he did not pursue Emmett’s men-
tal health and social services records, even though Emmett and his
mother told counsel those records existed, is wanting. The majority
notes that counsel investigated Emmett’s school and prison records
and tried to obtain Emmett’s juvenile commitment records but was
told those records had been destroyed. The majority does not offer a
similar explanation as to why counsel did not seek Emmett’s juvenile
social services and mental health records. Instead, the majority credits
1In addition, I find merit in Emmett’s argument that because Dr. Nel-
son did not conduct an independent investigation and relied only on
information supplied by counsel, counsel was especially ineffective for
relying on Dr. Nelson’s conclusions in lieu of completing a thorough
investigation.
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counsel’s post-hoc explanation (because, as counsel admits, his "file
notes are silent" as to his inaction, J.A. 433) that he must not have
pursued those records because conversations with Emmett, his
mother, and his half-sister suggested there was nothing significant to
uncover, much less anything that would contradict the information
already provided by Emmett.
This explanation does not mollify me as it does the majority; coun-
sel’s interviews with Karen and Lauri were wholly insufficient. Dur-
ing counsel’s single interview with Lauri, he asked her only about
Emmett’s drug use and changes in his personality. Lauri explained:
"[H]e did not ask me any questions about Scott’s childhood or about
our family situation when we were growing up. [Counsel] also never
tried to talk to me outside the presence of my mother." J.A. 308.
When deposed for the habeas proceedings, Karen explained that
because counsel did not tell her what he would ask her on the witness
stand, she felt unprepared to testify. As for her interview with the
investigator from counsel’s office, Karen shared:
[I]t seemed to me like he was in a hurry to get it over with.
He never asked us to show him family photographs or sign
medical releases. He also never spoke to any of Scott’s
brothers or sisters. The investigator told me repeatedly that
there was no danger of Scott getting the death penalty. He
said that he really didn’t think the prosecutor would ask for
death in this case. For that reason, I was shocked when Scott
was sentenced to death.
J.A. 317. A closer look at the substance of counsel’s interviews, then,
calls into question the reasonableness of his decision to look no fur-
ther than those interviews for mitigating evidence.
Furthermore, counsel did not, as the state court held in error, inter-
view all of the witnesses whose names Emmett provided. I disagree
with the majority that the state court’s mistake is harmless. The
majority writes that it "cannot say that the state court operated under
the mistaken belief that counsel had [interviewed every family mem-
ber bought to his attention]." That proposition, however, works both
ways: as much as we cannot say that the state court operated under
its mistaken determination of the facts, we cannot say that the state
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court did not. All that is before us is the state court’s unambiguous,
factually inaccurate statement that counsel did interview all of the
witnesses Emmett named. In this regard alone, the state court’s adju-
dication of Emmett’s claim resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence.
See 28 U.S.C. § 2254(d)(2).2 Counsel never swore in his affidavit that
he interviewed all of the witnesses whose names Emmett provided (in
fact, counsel specifically stated that he "contacted and interviewed
Emmett’s mother, step-father and sister and other friends," J.A. 431),
the Warden never argued as much, and both counsel’s and Dr. Nel-
son’s notes clearly indicate that Emmett provided the names of sev-
eral siblings whom counsel did not interview. Four of Emmett’s
natural siblings, an aunt, Emmett’s step-mother, a social worker, and
a probation officer were available but not interviewed.
As the majority correctly observes, Strickland does not require
counsel to interview these witnesses, but counsel made a decision to
not use these witnesses’ testimony before he knew what that testi-
mony was.3 This limitation on counsel’s investigation was unreason-
able. Two cases that reached the outcome the majority reaches today,
Burger v. Kemp, 483 U.S. 776, 794 (1987), and Tucker v. Ozmint, 350
2Likewise, the Supreme Court of Virginia unreasonably applied Strick-
land in holding that counsel’s performance was also not deficient
because "evidence that petitioner’s father was an alcoholic and abusive
was admitted at trial and heard by the jury through petitioner’s mother."
J.A. 541. Emmett’s birth father, Bobby, about whom Karen testified, had
no role in Emmett’s upbringing beyond Emmett’s infancy. Emmett’s
step-father, Tommy, was the abusive and neglectful paternal figure who
colored Emmett’s path toward juvenile delinquency. The jury never
heard from Karen or anyone else about Emmett’s life under Tommy’s
roof.
3Counsel’s attempting to use one juvenile probation officer, Molly
Bergwyn ("Bergwyn"), as a mitigation witness, and then coming to the
conclusion that her testimony could hurt more than help, does not relieve
him of his duty to develop other, readily available sources of informa-
tion. Moreover, counsel’s abandonment of a portion of Emmett’s mitiga-
tion case just nine days before trial because one probation officer (again
Bergwyn) had potentially harmful testimony and another juvenile officer
was retired and could not be found demonstrates how unsatisfactory
counsel’s investigation was to begin with.
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F.3d 433, 441 (4th Cir. 2003), are helpful examples. In those cases,
counsel’s actions were decidedly different from those of Emmett’s
counsel. In Burger, the Supreme Court deemed counsel’s limited
investigation reasonable because he interviewed all witnesses brought
to his attention and discovered little that was helpful and much that
was harmful. 483 U.S. at 794. In Tucker, this Court held that counsel
was not ineffective because he presented "a substantial mitigation
case" based on the defendant’s childhood abuse. 350 F.3d at 441.
Emmett’s counsel neither interviewed all witnesses bought to his
attention nor presented a mitigation case of any substance based on
Emmett’s childhood abuse and neglect.
Notwithstanding counsel’s failure to obtain Emmett’s mental
health and social services records, the information counsel had con-
tained important clues. Emmett and his mother told counsel that
Emmett received court-ordered mental health counseling as a child;
counsel knew that Emmett, who reached only the ninth grade,
repeated the fourth grade because of excessive truancy due to, accord-
ing to Emmett, psycho-therapy sessions; counsel had school records
indicating that Emmett’s family phone was disconnected and his
mother did not communicate with teachers; and counsel knew that a
juvenile counselor described Emmett’s childhood home as nasty and
crowded. These red flags would have led a reasonably effective attor-
ney to investigate further. See Wiggins, 539 U.S. at 527 ("In assessing
the reasonableness of an attorney’s investigation . . . a court must con-
sider not only the quantum of evidence already known to counsel, but
also whether the known evidence would lead a reasonable attorney to
investigate further.").
For this reason, the majority’s complaint that Emmett has neither
testified nor produced evidentiary support to explain why he could not
recall the details of his childhood for trial counsel is irrelevant. It is
of no moment that Emmett either intentionally misled counsel or
unwittingly suppressed memories of the abuse he suffered as a child.
Counsel possessed independent sources of information indicating that
Emmett had a history with various state agencies and suggesting that
there may be more of Emmett’s story to uncover. The law does not
require Emmett to present "testimony or [an] affidavit on his behalf
in [these] habeas proceedings," as the majority writes. Rather, Strick-
land and Wiggins compel us to ask: What external evidence did
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Emmett’s counsel have that should have led him to investigate fur-
ther?
V.
The majority observes that Emmett did not grapple with the intel-
lectual challenges that the defendant did in Williams v. Taylor, 529
U.S. 362 (2000), stymie his attorney’s efforts to investigate as the
defendant did in Rompilla, or receive no investigation at all by coun-
sel, as in Wiggins. Nonetheless, having engaged in the requisite "case-
by-case examination" of the evidence, see Williams, 529 U.S. at 391,
I find that counsel’s limited investigation still falls short of the stan-
dards set in Wiggins, Rompilla, and Williams. Counsel "uncovered a
wealth of information" about Emmett’s criminal background, as the
majority emphasizes, but counsel certainly did not uncover why,
according to the bevy of professionals who met the young Emmett,
he had this criminal history. Indeed, a former social worker testified
that the situation in the Emmett’s home was one of the "worst [she’s]
seen," a "classic, text-book case of what you hear discussed as being
the environments in which adults who have serious problems were
raised." J.A. 315. At least one juror may have found this information
dispositive.
Counsel also fell short of the standards articulated in the American
Bar Association ("ABA") Guidelines that the Supreme Court regu-
larly consults to measure reasonable performance. See Wiggins, 539
U.S. at 524. Those guidelines "provide that investigations into miti-
gating evidence ‘should comprise efforts to discover all reasonably
available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.’" Id. (emphasis
added) (quoting ABA Guidelines for the Appointment and Perfor-
mance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989)).
The sources of mitigating evidence that Emmett’s habeas counsel
consulted, but his trial counsel did not, were "reasonably available."
Thus, neither Supreme Court precedent nor the ABA Guidelines com-
pels the majority’s conclusion that counsel’s performance was reason-
able.
I note two cases where I declined to find counsel’s performance
constitutionally ineffective. The facts in both cases, Hedrick v. True,
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443 F.3d 342 (4th Cir. 2006) (Gregory, J.), and Kandies v. Polk, 385
F.3d 457 (4th Cir. 2004) (Gregory, J.), vacated on other grounds by
125 S. Ct. 2974 (2005), are distinguishable from those in Emmett’s
case. In the first case, Hedrick, we concluded that counsel was not
ineffective in limiting his investigation once he learned that Hedrick’s
father abused alcohol, both parents used marijuana, and both parents
preferred Hedrick to use drugs and alcohol at home rather than on the
street. See Hedrick, 443 F.3d at 349-52. Additional investigation
would have yielded only the information that Hedrick’s parents
fought frequently and his mother committed welfare fraud. Further-
more, a significant body of evidence that Hedrick’s counsel did not
pursue—the juvenile court file of Hedrick’s brother, which indicated
that the family home was fragmented and dysfunctional—was not
"reasonably available." The file belonged to a minor, Hedrick’s
brother, who could not sign a release granting counsel access after
Hedrick’s family refused to allow counsel to involve the brother in
the case. These were the circumstances under which Hedrick’s coun-
sel reasonably decided to limit his investigation and to pursue only
the strategy of persuading the jury that Hedrick was "a good kid . . .
led astray." Id. at 352.4
Emmett’s case is distinguishable. Unlike Hedrick’s counsel,
Emmett’s counsel failed to pursue records that were (1) related to his
4In fact, Hedrick could show neither deficient performance, as
explained above, nor prejudice. The evidence of Hedrick’s "less than
idyllic upbringing" uncovered by habeas counsel would have been con-
tradicted at sentencing by the testimony of Hedrick’s family members
and other witnesses. Hedrick, 443 F.3d at 351. In interviews with habeas
counsel, an aunt and uncle decried Hedrick’s childhood home. But wit-
nesses at Hedrick’s sentencing testified that Hedrick grew up in a normal
family with wonderful parents and only recently became involved with
a bad crowd. Id. at 352. We concluded that "[g]iven the contradictory
evidence on this point, it is not at all clear that [the] additional [mitigat-
ing] information outweighs the aggravating evidence supporting the
jury’s findings." Id. By contrast, in the instant case, the undeveloped evi-
dence of Emmett’s poor upbringing would have been corroborated, not
only by the multiple family members counsel did not interview, but also
by those family members counsel did interview, had he asked the correct
questions. Emmett, therefore, can show prejudice where Hedrick could
not.
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own client and (2) reasonably available. Further, Emmett’s counsel
ignored clues from interviews and from documents he already pos-
sessed, thereby missing evidence that Emmett had some type of
agency intervention and an actual diagnosis. In short, counsel left
undiscovered clear "cause and effect" evidence—cogent explanations
by professionals as to why Emmett developed into a criminal. Coun-
sel did not, as did Hedrick’s counsel, neglect mere anecdotal evidence
that his client’s father drank and fought bitterly with a spouse—
anecdotal evidence that likely would not have outweighed the aggra-
vating evidence in the record.
In the second case, Kandies, the defendant was convicted for rap-
ing and murdering a four-year-old girl. Kandies argued that, in inves-
tigating his background, his counsel had a duty to ask Kandies
whether he was sexually abused as a child because studies have found
that men who commit child abuse are more likely than the general
population to have been sexually abused as children. See Kandies,
385 F.3d at 470-71. We held that counsel was not ineffective in fail-
ing to ask the question, especially when counsel otherwise "thor-
oughly investigated Kandies’s background." Id. at 471.
Again, Emmett’s case is distinguishable. Kandies’s counsel failed
to ask a single question when no other evidence in the record would
suggest the importance of asking that question. He otherwise thor-
oughly investigated Kandies’s background. By contrast, Emmett’s
counsel did not thoroughly investigate Emmett’s background: he
failed to pursue substantial leads (from information already in his pos-
session) that would have opened to him the true story of Emmett’s
childhood.
Emmett’s case also differs from that of Kandies’s because, in Kan-
dies, we refused to deem counsel’s actions unreasonable when coun-
sel failed to pursue a general, sociological observation that sexual
offenders tend to have been victims as children. Here, Emmett’s
counsel did not fail to pursue a statistical probability; he failed to pur-
sue Emmett’s documented history of receiving social and mental
health services. Counsel’s actions left undiscovered powerful mitigat-
ing evidence developed years before Emmett committed a crime as an
adult. The conclusion drawn by a social worker in 1981, for example,
that the young Emmett’s home was precisely the kind of home in
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which adults with "serious problems" have been raised, has an unde-
niable credibility. J.A. 315. Stated otherwise, that 1981 conclusion
very likely would have changed the vote of at least one juror deciding
a sentence of life or death for Emmett twenty years later.
VI.
The majority makes much of the fact that counsel was respecting
Emmett by not assuming that Emmett was being less than forthcom-
ing in describing his childhood. As support, the majority cites Lovitt
for the proposition that counsel is always an agent of the defendant.
Even the attorneys in Lovitt, however, obtained all of Lovitt’s jail
records, all of his juvenile records, and all of his medical records. See
403 F.3d at 179. The attorneys knew the extensive criminal history of
Lovitt’s family and the family’s reputation in the community. See id.
at 180. Armed with this information, they heeded Lovitt’s request not
to interview his family members, lest they "be accused of being inef-
fective for ignoring their client’s wishes." Id. at 181. Counsel in the
instant case was not similarly barred from speaking to Emmett’s fam-
ily, and counsel did not have the vast information about Emmett’s
past that the attorneys in Lovitt had before making a decision about
the type of mitigation case to present.5 The question is not, then, as
the majority phrases it, whether the Constitution requires counsel to
presume that a cooperative client or cooperative family member is
being misleading. The question is whether a reasonable attorney, pre-
sented with the red flags apparent here, would have investigated fur-
ther by looking to the readily available sources—e.g., Emmett’s other
siblings, Emmett’s social services records—he knew existed. See
5The type of mitigating evidence Lovitt claimed should have been pre-
sented to the jury also distinguishes Lovitt’s case from that of Emmett.
Lovitt’s mitigating evidence was described as "occasionally contradic-
tory." Lovitt, 403 F.3d at 182. Testimony described Lovitt’s step-father
as alcoholic and abusive, but Lovitt’s juvenile records describe his child-
hood home life as clean, nicely furnished, stable, and loving. See id.
There is no such contradiction or ambiguity in the mitigating evidence
that Emmett argues the jury should have heard. While Emmett’s descrip-
tion of his childhood to counsel and Dr. Nelson was misleading, all of
the testimony and records habeas counsel has uncovered indicate that
Emmett’s childhood was beset by abuse and neglect.
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Wiggins, 539 U.S. at 523 ("[W]e focus on whether the investigation
supporting counsel’s decision not to introduce mitigating evidence of
[the petitioner’s] background was itself reasonable.").
VII.
The majority concludes that, after indications from Emmett that his
childhood was unremarkable, counsel conducted a reasonable investi-
gation and put on a mitigation case that artfully avoided, as the major-
ity writes, "bolster[ing] the prosecutor’s argument that Emmett was
a calculating, ruthless, lifelong criminal." I note that the lengthy crim-
inal history counsel sought to minimize is largely one of stealing toys
and food that began when Emmett was seven. Emmett’s mental health
records and juvenile court files, which counsel knew existed but did
not seek and therefore did not know the content of, consistently attri-
bute Emmett’s theft to his parents’ neglect. Counsel did not have the
full picture of this neglect before concluding that this mitigating evi-
dence could not outweigh the state’s evidence that Emmett would be
a future danger because he had been a criminal since age seven.
Counsel’s conclusion, which today becomes the majority’s conclu-
sion, might have been reasonable had it been reached after a thorough
assessment of the voluminous mitigating evidence available for
Emmett. Cf. Strickland, 466 U.S. at 690 (holding that "strategic
choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable").6
The majority holds that counsel was understandably reluctant to
introduce mitigating evidence that would unwittingly become aggra-
vating evidence. Yet counsel swore in his affidavit that "[t]he prose-
cution was either unaware of or chose not to detail my client’s
extensive criminal behavior from as early as age 7 or 8." J.A. 423
(emphasis added). Since counsel was not certain that the prosecution
did not know the extent of Emmett’s criminal history, he had a duty
to investigate that history in the event that the prosecution did know
6Indeed, after assessing Emmett’s mental health and social services
files, and the testimony of additional juvenile officers and Emmett’s sev-
eral siblings, counsel may well have found evidence that fit within his
strategy to "humanize" Emmett and "persuade the sentencer that he . . .
is not a monster." J.A. 433.
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of that history and planned to use it in aggravation.7 See Wiggins, 539
U.S. at 524; see also Rompilla, 545 U.S. at 377 ("[E]ven when a capi-
tal defendant’s family members and the defendant himself have sug-
gested that no mitigating evidence is available, his lawyer is bound
to make reasonable efforts to obtain and review material that counsel
knows the prosecution will probably rely on as evidence of aggrava-
tion at the sentencing phase of trial."). Indeed, as the majority notes,
the prosecutor had attempted to investigate Emmett’s juvenile records
for use in aggravation.
The conclusion in Wiggins, then, is equally appropriate here:
Given both the nature and the extent of the abuse petitioner
suffered, we find there to be a reasonable probability that a
competent attorney, aware of this history, would have intro-
duced it at sentencing in an admissible form. . . . [C]ounsel
were not in a position to make a reasonable strategic choice
as to [what] to focus on . . . because the investigation sup-
porting their choice was unreasonable.
539 U.S. at 535-36. The Wiggins Court continued: "[H]ad the jury
been confronted with this considerable mitigating evidence, there is
a reasonable probability that it would have returned with a different
sentence." Id. at 536; cf. Rompilla, 545 U.S. at 393 ("It goes without
saying that the undiscovered mitigating evidence, taken as a whole,
might well have influenced the jury’s appraisal of [Rompilla’s] culpa-
bility, and the likelihood of a different result if the evidence had gone
in is sufficient to undermine confidence in the outcome actually
reached at sentencing." (alteration in original) (internal quotation
marks and citations omitted)). The majority is persuaded that the
social history Emmett has presented during these habeas proceedings
is "more than offset by" the "compelling" aggravating evidence pre-
sented at trial. I, in contrast, am persuaded that at least one juror, see
Wiggins, 539 U.S. at 536, might disagree.
7Counsel merely believed that the prosecution’s aggravation case
would rely only on Emmett’s escape from a juvenile facility at age
twelve, larceny conviction at age seventeen, and vehicular homicide con-
viction at age twenty-five—offenses that counsel had investigated.
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In sum, Emmett’s is "a case where counsel’s failure to thoroughly
investigate kept the jury completely in the dark as to" Emmett’s child-
hood. McWee v. Weldon, 283 F.3d 179, 189 (4th Cir. 2002). Because
counsel made a "strategic" decision not to develop additional mitigat-
ing evidence after an investigation that was unreasonable by the stan-
dards set forth in Supreme Court precedent, and because at least one
juror might have voted against death had the jury heard the extent of
the abuse and neglect Emmett suffered as a child, I would grant
Emmett relief.
VIII.
For these reasons, I find that the Supreme Court of Virginia’s
determination of at least one of Emmett’s claims was an unreasonable
application of Strickland. Accordingly, I dissent from Part III of the
majority’s opinion.
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