Terrick Terrell Nooner appeals from the district court's dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court found Nooner competent to withdraw his petition and, in the alternative, held that Nooner's substantive claims were without merit. Although we conclude that the district court erred in finding that Nooner's motion to dismiss his petition was knowing and voluntary, we affirm the rejection of the petition on the merits.¹

Scot Stobaugh, a college student, was washing clothes at a Little Rock laundromat at approximately 1:30 a.m. on March 16, 1993. Nooner approached Stobaugh in an apparent robbery attempt and shot him seven times at close range. A jury convicted Nooner of capital murder. During the penalty phase of his trial, the jury heard testimony from several witnesses, including Stobaugh's mother, who described the impact of Scot's death on his family. The jury also heard mitigation testimony from Nooner's stepfather. The jury found two aggravating circumstances (that Nooner had previously committed another felony, an element of which was the use or threat of violence, and that the murder was committed for pecuniary gain) and no mitigating circumstances. Nooner was sentenced to death by lethal injection.

Nooner appealed to the Arkansas Supreme Court, which affirmed his conviction and death sentence. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Nooner then sought post-conviction relief in the state courts. The Arkansas Supreme Court affirmed the trial court's denial of post-conviction relief. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Nooner's attorney filed a subsequently amended petition for writ of habeas corpus with the district court. While the petition was pending, Nooner, acting pro se, requested that the district court dismiss his petition. After the district court rejected this request, we directed the district court to reexamine its decision and determine whether Nooner was competent to withdraw his petition. After hearing testimony from three mental-health experts who had examined Nooner, the district court determined that Nooner was competent to withdraw his petition and granted his request. The district court also addressed the merits of Nooner's petition and concluded that his stated claims were without merit.

Nooner, through counsel, now appeals from the district court's competency determination. Nooner also raises three collateral challenges to his sentence: (1) that the admission of victim impact evidence pursuant to Arkansas' victim impact statute violated the ex post facto clause of the Federal Constitution; (2) that Arkansas' victim impact statute is constitutionally infirm; and (3) that Nooner's trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence at sentencing.

We first examine the district court's factual finding that Nooner was competent to withdraw his habeas petition, which we review for clear error. Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir.2003). We evaluate Nooner's competency to withdraw his habeas petition as we would evaluate competency to waive appeal of a state post-conviction proceeding because both actions bar further federal court review. Our inquiry is two-fold. First, we examine whether the defendant has the rational ability to understand the proceedings. O'Rourke v. Endell, 153 F.3d 560, 567-68 (8th Cir.1998) (quoting Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)).² Second, we consider whether the defendant's waiver was knowing and voluntary, i.e., whether the defendant actually understood the significance and consequences of his waiver and whether the waiver was uncoerced. Id.

Dr. Richart L. DeMier of the United States Medical Center in Springfield, Missouri, evaluated Nooner and found him not competent.³ Dr. DeMier based his conclusion on two subjective indicators: Nooner's disorganized speech (which presented only when Nooner discussed his legal situation) and Nooner's illogical belief that he would be exonerated by a "hidden or removed lawsuit" after he appeared before the clemency board. Dr. DeMier testified, however, that he did not hold his opinion with his usual degree of confidence because Nooner was malingering to some extent.

Dr. Charles Mallory and Dr. Oliver W. Hall III of the Arkansas State Hospital also evaluated Nooner, and both of these doctors found him competent.⁴ Dr. Mallory confirmed Dr. DeMier's impression of Nooner's strange speech patterns, and, like Dr. DeMier, he observed that they occurred only when Nooner discussed his legal situation.⁵ Dr. Mallory also noted that Nooner realized that his ideas were strange, an uncommon awareness in most delusional people. Both Dr. Mallory and Dr. Hall agreed that Nooner was malingering.

From the reports of the doctors, their testimony at the competency hearing, and its own observations, the district court concluded that Nooner was competent, finding that he was able to "make a rational choice among his options" and understood "his legal positions and options available to him."

We find no clear error in the district court's determination that Nooner had the ability to understand his request to withdraw his petition. All three experts concluded that Nooner was feigning some aspects of mental illness. All three agreed that Nooner's odd speech patterns manifested only when he spoke of his legal situation. Their only disagreement concerned whether these speech patterns were evidence of a mental condition that prevented Nooner from being aware of his legal position and making rational choices among his legal options: Dr. DeMier found evidence of a delusional thought process; conversely, Dr. Mallory and Dr. Hall thought that Nooner's speech patterns were further evidence of his malingering. We conclude that the district court reasonably assessed the strengths and weaknesses of the conflicting expert testimony. See Smith v. Armontrout, 812 F.2d 1050, 1058 (8th Cir.1987).

The question remains whether Nooner knowingly and voluntarily sought withdrawal of his petition. O'Rourke provides some indicia of when a waiver is not knowing and voluntary. 153 F.3d at 568. Specifically, we observed in O'Rourke that: (1) the petitioner's testimony failed to demonstrate that he fully understood the consequences of his waiver; (2) the court never explained to the petitioner the significance of his waiver; and (3) no one questioned the petitioner as to his understanding of the possible results of a successful appeal. Id. We noted that "the record as a whole demonstrates that it cannot be said with any satisfactory degree of confidence that O'Rourke's waiver of his Rule 37 appeal was knowing and voluntary." Id. at 569.

The circumstances that we identified in O'Rourke are present here. Moreover, in O'Rourke, the court specifically asked the defendant whether he desired to be executed and the defendant stated that he did. Id. at 568. See also Smith v. Armontrout, 812 F.2d 1050, 1053 (8th Cir.1987) (Smith testified that he wanted to be executed because "he hated confinement and preferred death to life imprisonment"). Here, the district court made no such inquiry, and two doctors testified that Nooner did not want to be executed.⁶ Nooner believed that withdrawing his habeas petition would trigger a series of events (the setting of an execution date and his appearance before a clemency board) that would result in a "hidden or removed lawsuit" that would exonerate him.⁷ In other words, Nooner believed, however illogically, that withdrawing his petition would lead to freedom, not death. Under these circumstances, we conclude that the record does not support the district court's finding that Nooner's withdrawal was knowing and voluntary.

Although Nooner's habeas petition should not have been dismissed, we agree with the district court that the petition fails on the merits. All three issues raised in the petition were adjudicated in state court. Accordingly, we must deny the petition unless the state court disposition "resulted in a decision 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 unreasonable determination of the facts in light of the evidence presented in the state court proceedings." 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). When a state court correctly identifies the controlling Supreme Court authority, we address the "unreasonable application" clause of section 2254(d). See Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir.2003). We observed in Colvin that "the Supreme Court has repeatedly stressed that an unreasonable application is different from an incorrect one." Id. We may not grant a writ of habeas corpus unless the relevant state court decision is both wrong and unreasonable. Id.

Nooner first argues that the Arkansas victim impact evidence statute, as applied in his case, is an impermissible ex post facto law. U.S. Const. art. I, § 10. The Arkansas legislature enacted Ark.Code. Ann. § 5-4-602(4) in response to the United States Supreme Court's decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), which allowed admission of victim impact evidence during the sentencing phase of a capital trial. The statute was enacted after Stobaugh's murder but prior to Nooner's trial.

It is well settled that the "ex post facto [clause] does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed." Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Rather, a change in the law that is "procedural... is not ex post facto." Id."Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage." Hopt v. Territory of Utah, 110 U.S. 574, 589-590, 4 S.Ct. 202, 28 L.Ed. 262 (1884).

The Tenth Circuit has held that victim impact evidence "does not violate the ex post facto prohibition ... because it neither changes the quantum of proof nor otherwise subverts the presumption of innocence." Neill v. Gibson, 278 F.3d 1044, 1053 (10th Cir.2001). Similarly, the Fourth Circuit has concluded that admission of victim impact evidence in a sentencing conducted prior to Payne was not prejudicial because the rule in Payne would properly apply at any resentencing. Washington v. Murray, 952 F.2d 1472, 1480 (4th Cir. 1991). We agree with our sister circuits and conclude that the Arkansas victim impact evidence statute is procedural in nature and does not offend the ex post facto clause.⁸ Arkansas's statute does not alter the potential penalty faced by any defendant, nor does it alter the state's burden of proof. Cf. Payne, 501 U.S. at 825, 111 S.Ct. 2597 ("Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities."). Accordingly, the state court's determination that the Arkansas statute does not violate the ex post facto clause was not contrary to Supreme Court precedent.

Nooner argues that without guidance to the jury on how to consider victim impact evidence, the Arkansas statute is void for vagueness, violates the Eighth Amendment, and otherwise offends due process. We evaluate vagueness challenges to statutes not involving First Amendment rights based on the particular facts of the case. U.S. v. Maull, 806 F.2d 1340, 1344 (8th Cir.1986).

The Constitution does not require that a state ascribe specific weight to aggravating or mitigating factors in a capital sentencing proceeding. Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). "There is nothing unfair about allowing the jury to bear in mind the harm [caused by the crime] at the same time as it considers the mitigating evidence introduced by the defendant." Payne, 501 U.S. at 826, 111 S.Ct. 2597. Here, the evidence admitted against Nooner is the same kind of evidence admitted in Payne: a family member of the victim explaining to the jury the impact the murder has had on the victim's family. Nooner has failed to show how this testimony differs from that in Payne or how it unduly prejudices him. He fares no better in his due process and Eighth Amendment arguments, and we thus conclude that the state court's rejection of these arguments comports with Supreme Court precedent.

Finally, Nooner argues that his two trial counsel were ineffective in failing to develop and present mitigation evidence at sentencing. Nooner contends that his counsel: (1) never sought to have a psychiatric expert appointed; (2) never obtained school or hospital records; and (3) never interviewed Nooner's family members, social workers, or foster parents. The district court, presented with the same three alleged deficiencies, held that Nooner had procedurally defaulted on all claims that counsel "failed to gather, develop, and present mitigation evidence" except for the claim related to "the psychiatric evidence."⁹ We agree with the district court, and thus we address only Nooner's allegation that counsel failed to pursue psychiatric testimony or a mental examination.

The Arkansas Supreme Court correctly identified Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling authority for ineffective assistance of counsel claims. Strickland requires that an ineffective assistance of counsel claim establish both deficient performance and prejudice to require reversal of a death sentence. Id. at 687, 104 S.Ct. 2052.

Our first inquiry is whether the Arkansas Supreme Court unreasonably applied Strickland in concluding that trial counsel were not ineffective. When strategic choices are made "after less than complete investigation [they] are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91, 104 S.Ct. 2052. A particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Id. at 691, 104 S.Ct. 2052. Accordingly, our review under 28 U.S.C. § 2254 of a state court's application of Strickland is twice deferential: we apply a highly deferential review to the state court decision; the state court, in turn, is highly deferential to the judgments of trial counsel.

The Arkansas trial court held a multi-day hearing on Nooner's ineffective assistance of counsel claims (the "Rule 37 hearing"), the transcript of which spans 269 pages. When asked whether she had presented mitigating circumstances to the jury, Lea Ellen Fowler, one of Nooner's trial counsel, responded:

[T]hat was something that we looked long and hard to find things and ... as the Court is aware, there are some statutory criteria and Mr. Nooner did not meet any of those criteria. He was not from a broken home. Even though the ... man that raised him was not his biological father, that was the man that had raised him from, I believe, the time that he was two (2) years old. And ... his parents had done all they could to provide for him. He didn't suffer from alcoholism¹⁰ or drug abuse, or you know, any of those standard mitigating circumstances. The fact that he spent time in Rivendell; I believe that we went into that. I believe that his parents testified about the troubles that he had had in school and ... any possible circumstance that could be raised.

Rule 37 Hearing Transcript at 13-14 (Testimony of Lea Ellen Fowler). Nooner cross-examined Ms. Fowler,¹¹ asking her whether the records from Rivendell were "disclosed in the closing arguments for mitigating circumstances." Id. at 25:19-21. She responded:

There was not anything in this to be mitigating towards you, Mr. Nooner. This was detrimental to you. The ... doctors at Rivendell concluded that you were the cause of all of your problems and it was your unwillingness to adapt your behavior to societal norms that was causing you these problems. I ... don't think that that was of any benefit to you and ... we discussed whether or not to bring somebody from Rivendell and it was the opinion of all of us that that would be detrimental to you.

Id. at 25:22-26:5 (emphasis added).

The conclusions of the doctors at Rivendell are summarized in a five-page document (the "Report") that was generated when Nooner was discharged from the facility in 1986. A copy of the Report was introduced during the Rule 37 hearing and was included as part of the record in Nooner's appeal to the Arkansas Supreme Court. The Report uses mostly non-clinical terms to describe relatively straightforward observations. It states that Nooner was "referred [to Rivendell] for increasing oppositional behavior, running away from home, and violent outbursts." According to the Report, Nooner's parents had informed the staff at Rivendell that Nooner had been in "numerous fights" and Nooner's parents "felt that he was rude, disruptive, disobedient, and disrespectful."

At the time of his admission to Rivendell, Nooner's mood "was one of mild depression, indignation, anger, and resentment." Emotionally, he appeared to be "very narcissistic, egocentric, and self-centered with very little feeling or regard for the welfare of others." Nooner told the staff at Rivendell that he "usually resort[ed] to aggression and anger to get his way when things [didn't] work out."

Although the Report suggested that Nooner had "considerable family dysfunction, as evidenced by multiple family conflicts" and that he was "somewhat depressed," there is no indication that he had any mental or psychological problems. The Report also made clear that Nooner "did not take any psychotropic medication."

The Rivendell Report, like the testimony at the Rule 37 hearing, supports trial counsels' judgment not to pursue psychiatric testing for purposes of mitigation. The Arkansas Supreme Court's conclusion that these judgments did not render counsel ineffective was not an unreasonable application of Strickland.

Even if we were to determine that the Arkansas Supreme Court unreasonably applied Strickland in concluding that Nooner's trial counsel were not ineffective, we could not grant the habeas petition unless we determined that Nooner's constitutional rights were violated. 28 U.S.C. § 2254(a). To reach this conclusion, we would have to determine that Nooner has satisfied the prejudice prong of Strickland. See Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("In order for counsel's inadequate performance to constitute a Sixth Amendment violation, petitioner must show that counsel's failures prejudiced his defense."). Because the Arkansas Supreme Court never reached the prejudice issue, we review that issue de novo. See id. at 534, 123 S.Ct. 2527 ("... our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis").

Nooner asserted to the Arkansas Supreme Court that his trial counsels' failure to secure psychiatric testing and testimony meant that his "difficult childhood and his psychiatric and mental problems" were not presented to the jury. He fails to establish prejudice with regard to either aspect of this contention.

As to Nooner's "difficult childhood," the record reflects that Nooner's mother was acquitted of a single charge that she had physically abused Nooner, that Nooner had been placed in several foster homes, that Nooner had behavioral problems, that Nooner had a tenth grade education, and that Nooner had developed a problem with alcohol abuse in his teenage years. Nooner's stepfather testified as to all of this information during the penalty phase. Nooner has offered no evidence about his childhood that was not presented to the jury but that would have been uncovered through psychological testing. Cf. Williams, 529 U.S. at 395-96, 120 S.Ct. 1495 (counsel failed to present evidence to jury that Williams's parents had been imprisoned for the criminal neglect of Williams and his siblings; that Williams had been severely and repeatedly beaten by his father; that Williams had been placed in an abusive foster home; and that Williams was "borderline mentally retarded"); Wiggins, 539 U.S. at 516-17, 123 S.Ct. 2527 (counsel failed to present evidence to the jury that Wiggins's alcoholic mother frequently left him and his siblings alone for days, forcing them to beg for food and to eat paint chips and garbage; that Wiggins's mother had sex with men while her children slept in the same bed and that she had once forced Wiggins's hand against a hot stove, causing him to be hospitalized; that Wiggins was physically abused by two foster mothers, raped by a foster father, and gang-raped by boys in another foster home; and that Wiggins was sexually abused by a supervisor in his Job Corps program).

It is similarly difficult to ascertain what "psychiatric and mental problems" were not presented to the jury. The jury heard testimony from Nooner's stepfather that Nooner spent several months at Rivendell. The Rivendell Report indicates that Nooner was not diagnosed with any psychiatric disorder and that he never received psychotropic medication during his stay. The Rule 37 transcript contains several oblique references to a stay in a second hospital, Bridgeway, but Nooner has offered no details about this second hospitalization and there is no indication that it was the result of psychiatric or mental problems. As to Nooner's behavioral and emotional problems, the Rivendell Report indicated that Nooner was narcissistic, egocentric, self-centered, and "somewhat depressed." During his stay at Rivendell, Nooner showed a "dramatic" response to treatment and a "marked" ability to overcome his behavioral problems. There is simply no evidence in the Rivendell Report or elsewhere to support Nooner's bare allegations that he suffered from psychiatric and mental problems.

We conclude that the state court's disposition of Nooner's ineffectiveness claim was not an unreasonable application of Strickland.

The judgment dismissing the petition for habeas corpus on its merits is affirmed.

*****

LAY, Circuit Judge concurring in part and dissenting in part.

I concur with Part II of Judge Wollman's opinion finding that Terrick Nooner's request to withdraw his habeas petition is not knowing and voluntary. I further concur that Arkansas's victim impact is constitutional. However, I respectfully dissent from Part III-C of the majority's opinion regarding Nooner's ineffective assistance of counsel claim.

As part of their preparation for the trial, Nooner's two appointed counsel learned that Nooner experienced a turbulent and troubled childhood which included child abuse, foster home placements, severe emotional and behavioral problems, school problems, substance abuse, and two hospitalizations at psychiatric institutions during Nooner's early teenage years. Based on their observations of Nooner's behavior, Nooner's attorneys determined that he was competent to stand trial and did not request a competency evaluation. Likewise, relying upon their own observations of Nooner's current behavior and their reading of a six-year old discharge report from one of the psychiatric institutions, Nooner's attorneys did not request assistance of a psychiatric expert to examine Nooner for the purpose of preparing mitigating evidence during the penalty phase of the trial.

In the state court, the victim's mother testified during the penalty phase of the trial and described the impact the murder had on her family. Nooner's stepfather also gave testimony about Nooner's troubled childhood, and to a lesser extent, about Nooner's emotional problems. Nooner's trial counsel attempted to persuade the jury that severe stress and his young age of twenty-two mitigated the crime. The jury heard no psychiatric evidence.

Nooner presented twelve independent claims of ineffective assistance of counsel at his post-conviction proceeding in state district court. Among other things, Nooner claimed ineffective assistance because his attorneys failed to request a psychiatric evaluation to assess his competency to stand trial (the so-called "Act III" evaluation). Nooner also included a similar but independent claim of ineffective assistance based on his attorneys' failure to request a psychological examination for the purpose of developing and presenting mitigating evidence during the penalty phase of his trial (the so-called "mitigation evaluation").

In Nooner's appeal to the Arkansas Supreme Court, Nooner abandoned his claim of ineffective assistance of counsel based on failure to request the Act III evaluation, but pursued his claim of ineffective assistance of counsel based on a failure to request a mitigation evaluation. Then in his federal habeas petition, Nooner asserted five independent claims of ineffective assistance of counsel including failure to secure a mitigation evaluation. The district court held that, except for the failure to secure a mitigation evaluation, Nooner had procedurally defaulted on all of his ineffective assistance of counsel claims. Nooner now appeals only that portion of his ineffective assistance claim related to the mitigation evaluation. I agree with the district court that Nooner procedurally defaulted on all of his ineffective assistance claims except for the one based on mitigation evaluation.¹²

"An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

Deficient Performance.

In evaluating whether counsels' performance fell below an objective standard of reasonableness, it is necessary to first identify the relevant professional standard of care. While Strickland counsels that no particular set of rules can satisfactorily govern the myriad of unique circumstances facing defense counsel, "[p]revailing norms of practice as reflected in the American Bar Association standards and the like ... are guides to determining what is reasonable...." Id. at 688, 104 S.Ct. 2052. The Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (February 1989) ("Guidelines") state that "[c]ounsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately ... and should be pursued expeditiously." Guideline 11.4.1 at A. The Guidelines further explain that when selecting witnesses or evidence to present at sentencing,

counsel should consider the following: 1) Witnesses familiar with and evidence relating to the client's life and development, from birth to the time of sentencing, who would be favorable to the client, explicative of the offense(s) for which the client is being sentenced, or would contravene evidence presented by the prosecutor; 2) Expert witnesses to provide medical, psychological, sociological or other explanations for the offense(s) for which the client is being sentenced ....

Guideline 11.8.3 at F. (emphasis added).

Attorneys representing clients who face the death penalty are specifically advised to consider all reasonably available evidence, including expert testimony.

Counsel should present to the sentencing entity or entities all reasonably available evidence in mitigation unless there are strong strategic reasons to forego some portion of such evidence. Among the topics counsel should consider presenting are: 1) Medical history (including mental and physical illness or injury, alcohol and drug use, birth trauma and developmental delays); 2) Educational history (including achievement, performance and behavior), special educational needs (including cognitive limitations and learning disabilities) and opportunity or lack thereof; ... 5) Family, and social history (including physical, sexual or emotional abuse, neighborhood surroundings and peer influence); and other cultural or religion [sic] influence, professional intervention (by medical personnel, social workers ...) or lack thereof; prior correctional experience (including conduct on supervision and in institutions, education or training, and clinical services); ... 8) Expert testimony concerning any of the above and the resulting impact on the client, relating to the offense and to the client's potential at the time of sentencing.

Guideline 11.8.6 at A. and B. (emphasis added). With the appropriate professional standards of care established, I turn to the performance of Nooner's two attorneys at trial.

In preparation for trial, defense counsel engaged an investigator who interviewed Nooner's mother about his history. These conversations revealed that, during Nooner's early teenage years, he was placed in foster care after his mother was charged with child abuse and placed in two separate psychiatric institutions for severe emotional and behavioral problems. This preliminary investigation also revealed that Nooner experienced substance abuse problems. Trial counsel obtained records from Rivendell which indicated that Nooner was under socialized, and experienced "considerable family dysfunction, as evidenced by multiple family conflicts." Abstract of Exhibits to Rule 37 Hearing at 248 (Nooner's brief to the Arkansas Supreme Court) (the "Rivendell Report"). The Rivendell Report further identified that his reading skills were four years behind placement, his math and written skills were five years behind placement, his knowledge was three years behind placement, and even though he was fourteen years old, his education level was that of a third grader. Id. at 249. This report concluded that Nooner's behavioral problems were not caused by psychosis. Trial counsel terminated their investigation without obtaining school records, medical records, or records from child protection services. Trial counsel did not contact Nooner's treating psychiatrists or request any type of sociological or psychiatric expert to assist them in developing or presenting a mitigation case.

Considering that Nooner faced the death penalty, developing this line of mitigating evidence was his best, and perhaps only, possibility of avoiding death. While the decision not to challenge Nooner's competency to stand trial appears sound, I take issue with his attorneys' decision not to secure a psychiatric expert to evaluate Nooner for purposes of developing mitigating evidence. The Guidelines advise defense counsel to "present to the sentencing entity or entities all reasonably available evidence in mitigation unless there are strong strategic reasons to forego some portion of such evidence." Guideline 11.8.6 at A. The Guidelines further advise trial counsel to consider "[e]xpert testimony concerning any [mitigating evidence] and the resulting impact on the client, relating to the offense and to the client's potential at the time of sentencing." Id.

One of Nooner's attorneys testified at the Rule 37 post-conviction hearing that the introduction of the Rivendell Report would not help Nooner's case and that its contents foreclosed the need for further psychiatric investigation. Testimony of Ms. Lea Ellen Fowler, Rule 37 Hearing Transcript at 25-26. Trial counsels' characterization at the Rule 37 hearing of their potential mitigation case suggests they discounted too quickly potential mitigating evidence. In contrast to Ms. Fowler's testimony at the Rule 37 hearing, the record shows that Nooner was indeed from a broken home: by the age of fourteen, he had been removed from his home by the state, had been transferred from foster home to foster home, and subsequently institutionalized for several months at Rivendell. Additionally, in contrast to Ms. Fowler's testimony, the record shows that Nooner did indeed suffer from substance abuse.

The information available to Nooner's trial counsel indicated significant childhood disturbances that merited further investigation. While the Rivendell Report may have reasonably foreclosed psychosis itself as a mitigating circumstance, it did not foreclose an investigation into reasons for Nooner's multiple foster home placements, investigation into his low educational achievements, or an investigation into his substance abuse. Most importantly, it did not foreclose the potential value of engaging a psychiatric expert to evaluate Nooner and to explain to the jury the resulting impact these experiences had on Nooner. See Guideline 11.8.6 at B(8).

"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. Nooner's trial counsels'"strategic" decision not to pursue expert psychiatric assistance for the penalty phase was simply premature based on the initial information available to counsel. Under the facts of this case, I conclude that this failure to request a psychiatric expert to examine Nooner for the purpose of developing and presenting mitigating evidence constituted ineffective assistance of counsel under the Sixth Amendment.¹³

Prejudice.

In addition to deficient performance, Nooner must also establish prejudice to obtain relief. "In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. Because Arkansas required juror unanimity to impose the death sentence, trial counsel only had to persuade one juror that there was a reasonable doubt whether the aggravating factors outweighed the mitigating factors, persuade a single juror that Nooner deserved mercy, or persuade a single juror to spare his life. See Ark. Code Ann. § 5-4-603 (1987).

Although Nooner's stepfather testified during the penalty phase about Nooner's troubled childhood and, to a limited extent, about his behavioral and emotional problems, without the testimony from a psychiatric expert, "the jurors were left with no guidance concerning how they might take such facts into consideration in mitigation of punishment." Stephens v. Kemp, 846 F.2d 642, 655 (11th Cir.1988). The fact that no one other than Nooner's obviously biased stepfather presented this mitigating evidence "diminished the impact on the jury of the facts [he] described."¹⁴ Id. at 654. A psychiatric expert could have provided invaluable corroborating evidence strengthening the stepfather's emotional testimony. I conclude that, given the scope and nature of Nooner's troubled childhood, a psychiatric expert could have developed and presented potentially powerful mitigating evidence.

As the record stands, we lack enough information to determine whether the psychiatric evidence would have changed the verdict of death. No lower court has conducted any meaningful assessment of this evidence. I would therefore remand this case to the district court for a plenary hearing to evaluate Nooner's expert psychiatric evidence to make this determination of prejudice in the first instance.

While Nooner may have been prejudiced by ineffective assistance of counsel during the penalty phase of his trial, prior to issuing relief it is also necessary to find that the adjudication of Nooner's claim by the Arkansas Supreme Court "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...." 28 U.S.C. § 2254(d)(1). "[A] state-court decision involves an unreasonable application of [Supreme Court] precedent if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The Arkansas Supreme Court resolved Nooner's claim as follows:

Nooner alleges ineffective assistance of counsel because defense counsel did not request a mental evaluation as allowed under Ark. Code Ann. § 5-2-309. Nooner contends the results could have produced evidence that may have gone toward establishing some mitigating circumstance in sentencing. He argues that his counsel's failure to request an evaluation prevented the judge and jury from having critical evidence showing a limited capacity. Competency to stand trial has not been raised as an issue. Nooner's counsel did not request a mental evaluation. At the hearing below, Nooner's trial counsel testified that they saw no reason for an evaluation at the time of trial. They reported that Nooner involved himself intimately in his defense. He did legal research, participated in strategy discussions, and was articulate and able to convey his concerns and wishes. They also reported that Nooner behaved significantly different in the Rule 37 hearing than he did during his trial. Nooner offered testimony from his mother¹⁵ that he had behavioral problems and emotional problems which they had shared with his trial counsel. However, she acknowledged that although he had been treated at Rivendale [sic], he had not been treated at a psychiatric facility nor prescribed anti-psychotic medication.

Our review of the record indicates that the trial court thoroughly evaluated Nooner's claim and reasonably believed the testimony of trial counsel that they carefully considered whether to request an evaluation but discerned no good-faith basis for doing so. Nooner's trial counsel also presented evidence that they had adduced evidence of Nooner's troubled past and treatment through his stepfather during the penalty phase of his trial. We hold Nooner has not established that trial counsel's decision not to request a psychiatric evaluation constituted ineffective assistance.

Nooner v. State, 339 Ark. 253, 4 S.W.3d 497, 500 (1999) (emphasis added). Although the Arkansas Supreme Court identified the correct Supreme Court precedent under Strickland, it performed an unreasonable application of the governing legal rules to the facts of the case.

First, the Arkansas Supreme Court incorrectly characterized Nooner's claim as one of competency to stand trial, when in fact Nooner's claim was about failure to investigate and present mitigating evidence. On appeal to that court, Nooner was not attempting to resurrect the competency issue, he was claiming "ineffective assistance of counsel as a result of the failure to seek psychiatric testimony for the penalty phase and to present the evidence thereon." Abstract and Brief for Appellant at 356 (Nooner's appellate brief before the Arkansas Supreme Court). However, when reviewing Nooner's ineffective assistance claim, the Arkansas Supreme Court interjected issues only relevant to the competency issue which was not appealed. For example, the Arkansas Supreme Court's opinion, supra, states that Nooner's claim is based on a failure to "request a mental evaluation as allowed under Ark.Code Ann. § 5-2-309." Nooner, 4 S.W.3d at 500. However, this cited statute is specific to "Determination of fitness to proceed." See Ark.Code Ann. § 5-2-309 (1987). Furthermore, the Arkansas Supreme Court's discussion of Nooner's behavior at his trial and at the post-conviction hearing in state court (as a valid reason for not requesting an evaluation) demonstrates that the issue of competency to stand trial was conflated with the issue of a mitigation evaluation.

Second, the Arkansas Supreme Court's conflation of the distinct claims of competency to stand trial with mitigation at sentencing caused that court to apply the wrong standard of care in evaluating defense counsels' professional conduct. The Arkansas Supreme Court identified the statutory authority which governs competency to stand trial, see ark. Code Ann. § 5-2-309 (1987), and then applied the corresponding "good faith" basis professional standard from the ABA Criminal Justice Mental Health Standards¹⁶ to evaluate trial counsels' performance. However, the good faith standard from the ABA Criminal Justice Mental Health Standards does not apply to conduct during the penalty phase of capital cases. The standard that should have been applied appears in The Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (February 1989). No United States Supreme Court case holds, or even suggests, that a good faith basis to question the defendant's competency to stand trial is required prior to investigating or presenting psychologically-based mitigating evidence.