ORDER GRANTING CONDITIONAL WRIT OF HABEAS CORPUS

ALAN B. JOHNSON, District Judge.

Dale W. Eaton, Petitioner, is an inmate incarcerated at the Wyoming Department of Corrections State Penitentiary. He has filed, through counsel, a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 64].

The Court, having carefully reviewed and considered each pleading, the exhibits, the evidentiary presentation, arguments, and written briefs of counsel for Petitioner and Respondent, having thoroughly reviewed the file herein, and being otherwise fully advised, finds and concludes the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 should be conditionally granted.

BACKGROUND

Factual Background

Lisa Marie Kimmell left Denver, Colorado, on March 25, 1988, intending to drive to Billings, Montana, with a stop in Cody, Wyoming. [Doc. 83-5, p. 20]. Ms. Kimmell did not arrive in Cody as planned, and a search for her began on March 26, 1988. [Doc. 83-5, p. 27]. Her body was found by a fisherman on April 2, 1988, in the North Platte River southwest of Casper, Wyoming, near what is called Government Bridge. [Doc. 83-6, p. 53]. An autopsy revealed she died from multiple stab wounds to her chest, inflicted after a severe blow to the head. [Doc. 83-12, p. 47]. The examination also revealed semen in her vagina. Samples of the semen were taken and preserved. Eaton v. State, 192 P.3d 36, 51 (Wyo. 2008). [Doc. 83-10, pp. 62, 63, 64]. DNA from the semen samples was matched, in 2001, to Petitioner, who had formerly resided in Moneta, Wyoming. Eaton v. State, 192 P.3d at 51. Law enforcement agents obtained a search warrant for Petitioner's property in Moneta, where they found Ms. Kimmell's buried car. [Doc. 84-9, p. 3; Doc. 84-10, pp. 11-20].

State Court Trial

The Natrona County District Attorney charged Petitioner with first-degree premeditated murder, first-degree felony murder, kidnaping, first-degree sexual assault, and aggravated robbery. Eaton v. State, 192 P.3d at 49, fn 1. A jury trial was conducted before the Honorable David Park of the Seventh Judicial District at the Natrona County Courthouse in Casper, Wyoming. Petitioner was represented by Wyatt Skaggs and Vaughn Neubauer from the Trial Division, Wyoming Public Defender Office. [Doc. 81-3, pp. 2, 3, 4]. The trial commenced in February, 2004, and continued for two weeks. The jury, at the close of the guilt/innocence stage of the proceedings, returned guilty verdicts on all counts. Eaton v. State, 192 P.3d at 49, fn 1. [Doc. 85-6, pp. 6, 7, 8, 9].

The State of Wyoming, during the penalty phase of the trial, called three witnesses. Shannon Breeden testified she was traveling in 1997 on Interstate 80 outside of Rock Springs, Sweetwater County, Wyoming, when Petitioner threatened her with a rifle. [Doc. 85-7, pp. 55, 56]. Sweetwater County Sheriff Deputy Rich Haskell testified he investigated the aggravated assault on Ms. Breeden. [Doc. 85-7, pp. 57, 58, 59]. Sweetwater County Prosecuting Attorney Tony Howard testified Petitioner was convicted of aggravated assault. [Doc. 85-8, pp. 1-5].

Petitioner's trial team, during the penalty phase, presented two expert witnesses, Dr. Kenneth Ash, a psychiatrist, and Dr. Lisa Gummow, a neuropsychologist. Dr. Ash testified he met with Petitioner on four separate occasions for a total of approximately twelve and one-half hours, during which time he observed Petitioner and discussed his life history and present circumstances. [Doc. 85-8, pp. 19, 20, 21]. Dr. Ash also examined Petitioner's available medical records, including those from the Colorado Psychiatric Hospital (University of Colorado Medical Center) where Petitioner was a patient at age sixteen, and from the Torrington Hospital from 1986. [Doc. 85-8, p. 22]. Dr. Ash, from those hospital records, noted a consistent finding of depression. He also determined Petitioner had a global assessment of functioning (GAF) of 31, which indicated a major impairment. [Doc. 85-8, pp. 34, 35]. Dr. Ash expressed his professional opinion Petitioner committed the Kimmell homicide while under the influence of extreme emotional disturbance and extreme distress. [Doc. 85-8, p. 51].

Dr. Gummow testified she spent two days with Petitioner. Test administration accounted for seventy-five percent (75%) of the two days, with interviews accounting for the remaining twenty-five percent (25%). [Doc. 85-11, p. 11]. Dr. Gummow also indicated she reviewed relevant life documents such as medical, educational, psychiatric, and police records, including statements from Petitioner's sisters and father, and developed a chronology of Petitioner's life which she presented to the jury. Dr. Gummow stated in her professional opinion Petitioner suffered from a depressive disorder NOS, which was present in a severe phase in 1988. His depression was probably genetic, and his major depressive disorder was considered a brain disease. She further indicated Petitioner had significant brain damage along with a long-standing learning disorder. His IQ ranged between 76 (borderline) to high 80s to 90s. [Doc. 85-11, pp. 6-60; Doc. 85-12, pp. 1-16].

Four family members also testified on behalf of Petitioner. Loren Ferrins1, his uncle, testified Petitioner's father, Merle, picked on Petitioner. [Doc. 85-9, pp. 37-50]. Betty Ferrins, Petitioner's aunt, testified she did not want Petitioner to die, and stated "I don't think he was in his right mind when he did this." [Doc. 85-9, pp. 55, 56]. Marilu O'Malley, Petitioner's maternal aunt, testified Merle abused his children, and Petitioner got the brunt of the abuse. [Doc. 85-9, pp. 58, 59]. Natrona County Deputy Sheriff Lynn Cohee presented testimony from her interview with Sharon Slagowski, Petitioner's sister. Deputy Cohee stated Ms. Slagowski recalled physical and emotional abuse by her father. Merle hit Petitioner with a belt, his fists, and hit him over the head with a beer bottle. [Doc. 85-12, pp. 52-56].

Petitioner's counsel also presented testimony from four friends. Shirley and Floyd Widmer testified they had always "gotten along real good" with Petitioner, and he had never exhibited a bad temper around them. Virginia Schifferns testified Petitioner had previously stayed with them, and she could not believe he would do anything violent. Lodine Schifferns testified he liked Petitioner, and he couldn't believe this could happen. [Doc. 85-10, pp. 8-27].

The jury returned a unanimous penalty verdict fixing Petitioner's sentence at death. The jury found beyond a reasonable doubt the existence of three statutory aggravating circumstances. Petitioner was previously convicted of a felony involving the use or threat of violence to the person. The murder of Ms. Kimmell was especially atrocious or cruel, being unnecessarily torturous to the victim. Petitioner had killed another human being purposely and with premeditated malice while engaged in robbery, sexual assault and kidnaping. No mitigating factors were found to exist. [Doc. 85-14, pp. 18, 19, 20].

State Court Appeal

Petitioner, represented by Donna Domonkos, Ryan Roden, Diane Lozano, Marion Yoder, and Tina Kerin Olson from the Appellate Division, Wyoming Public Defender Office, appealed his convictions and sentence to the Wyoming Supreme Court. Eaton v. State, 192 P.3d at 36. Appellate counsel, on January 10, 2005, filed a motion to withdraw from representation of Petitioner asserting a conflict of interest based on the fact both the trial team and appellate counsel were supervised by the same individual, Kenneth Koski, the Wyoming Public Defender.2 [Doc. 67-5, Exhibit 26, Exhibit 56, Exhibit 59]. An additional basis for the request to withdraw was the fact Andy Fraser, the investigator assigned to Petitioner's appeal, had withdrawn from participation asserting he "heard that Mr. Skaggs [was] not happy with the fact that [he was] working on the Eaton appeal." [Doc. 70-10, pp. 3,4]. The motion to withdraw by Petitioner's appellate counsel was denied by the Wyoming Supreme Court on January 19, 2005. [Exhibit 28, Exhibit 60].

Petitioner raised the following claims on appeal:

Eaton v. State, 192 P.3d at 49-51.

The Wyoming Supreme Court granted a remand pursuant to Calene v. State, 846 P.2d 679 (Wyo. 1993), for the limited purpose of conducting an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel. The Supreme Court ordered the trial court rule on those claims within ninety days. [Doc. 272, Exhibit 350], Eaton v. State, 192 P.3d at 61. Petitioner objected to the "speedy schedule," and moved for a continuance in order to investigate his claims for relief. [Doc. 272, Exhibit 351]. The trial court, and the Wyoming Supreme Court, denied the motions to continue the Calene hearing, which was then held by the trial court on June 6-10, 2005. [Doc. 272, Exhibit 352; Doc. 272, Exhibit 353], Eaton v. State, 192 P.3d at 61. Trial counsel for Petitioner, Wyatt Skaggs and Vaughn Neubauer, testified at the hearing. [Doc. 86-3, pp 18-44; Doc. 86-4, pp. 1-44; Doc. 86-5, pp. 1-44; Doc. 86-6, pp. 1-44; Doc. 86-7, pp. 1-44; Doc. 86-8, pp. 1-44; Doc. 86-9, pp. 1-4; Doc. 86-10, pp. 6-55; Doc. 86-11, pp. 1-55; Doc. 86-12, pp. 1-40; Doc. 87-8, pp. 11-48; Doc. 87-9, pp. 1-48; Doc. 87-10, pp. 1-24]. The deposition of defense mitigation expert, Priscilla Moree, was presented. [Doc. 86-5, p.145; Doc. 144-1].

Judge Park issued a decision letter on July 1, 2005, finding trial counsel were not ineffective. [Doc. 272, Exhibit 354]. He found the "additional mitigation evidence [did] not present new mitigating factors, it only reinforce[d] evidence of a known mitigator (i.e., that Eaton had a terrible childhood)." [Doc. 272, Exhibit 354, p. 30]. Judge Park, after weighing the aggravating and mitigating factors, determined Petitioner was not prejudiced by any failure to investigate or present mitigating evidence. [Doc. 272, Exhibit 354, p. 30].

A hearing was conducted on July 13, 2006, to address Petitioner's motion for new trial based on competence issues. Counsel also attempted to introduce new mitigation-based evidence, including an affidavit from Brian Conrado, Petitioner's childhood friend, and school records not previously presented. The motion was denied. [Doc. 145-4].

The Wyoming Supreme Court, on August 18, 2008, in a lengthy decision, unanimously affirmed Petitioner's convictions and sentence. Eaton v. State, 192 P.3d at 49, 124.

State Court Post-Conviction Relief

Petitioner, represented by Michael Reese, filed a petition for post-conviction relief with the trial court on June 3, 2009. The petition raised six issues:

[Doc. 272, Exhibit 355].

The State moved for dismissal on the basis none of Petitioner's claims were cognizable in post-conviction relief proceedings. [Doc. 272, Exhibit 356]. It specifically argued Wyo. Stat. Ann. § 7-14-101 limits postconviction relief to constitutional violations which occurred in the proceedings resulting in conviction. Alleged constitutional violations related to the sentencing phase are not cognizable on postconviction review. [Doc. 272, Exhibit 356]. The trial court, following a hearing on the State's motion, issued an Order Granting Respondent's Motion to Dismiss Petition for Post-Conviction Relief on November 4, 2009. [Doc. 272, Exhibit 357]. Petitioner sought a writ of review [Doc. 272, Exhibit 358] from the Wyoming Supreme Court, which was denied. [Doc. 272, Exhibit 359].

Federal Habeas Corpus

Petitioner filed his Petition for Writ of Habeas Corpus herein on August 13, 2010. [Doc. 64]. He raised eleven claims for relief.

[Doc. 64, pp. 36, 56, 126, 140, 158, 186, 201, 219, 238, 257, 281].

Respondent moved for summary judgment on all claims, asserting Petitioner had failed to meet his burden of proof under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). [Doc. 132, Doc. 150]. Petitioner opposed the motion, and requested an evidentiary hearing on all claims. [Doc. 144, Doc. 155, Doc. 157]. A hearing on Respondent's Motion for Summary Judgment was held December 19 and December 20, 2011. [Doc. 147, Doc. 148, Doc. 153, Doc. 154]. An Order was entered May 3, 2012, granting Respondent's motion for summary judgment on Petitioner's Claims 3, 5, 6, 7, 8, 9, and 11(d). [Doc. 158, p. 91]. The Court, however, agreed with the assertion by Petitioner "Wyoming courts have no jurisdiction to entertain claims of ineffective assistance of appellate counsel for failing to present a claim of ineffective assistance of trial counsel where the underlying claim involves punishment rather than guilt/innocence," thus there is no available state court remedy, and Claim 4 was technically exhausted. [Doc. 158, p. 19]. The Court further agreed because the state courts did not have jurisdiction, the claim was not procedurally defaulted, and could be review by the Court de novo. [Doc. 158, p. 19] The Court further concluded a return to state court would be futile, Williams v. Taylor, 529 U.S. 420, 444 (2000), and presentation of new evidence in the federal court proceeding was appropriate. [Doc. 158, pp. 22, 23]. Respondent's motion for summary judgment on Claim 4 was denied.

The Court also denied Respondent's motion for summary judgment on Claim 1 and Claim 2, which are unquestionably linked. [Doc. 158, p. 33]. The Court concluded Petitioner had overcome the deferential standard of § 2254, and had thus shown the state courts' decisions with regard to Claim 1 and Claim 2 were based on an unreasonable determination of the facts in light of the evidence presented to those courts. [Doc. 158, pp. 32, 35, 36].

Petitioner's Claim 10 and Claims 11(a-c) were denied as moot. His request for an evidentiary hearing on Claims 1, 2, and 4 was granted, [Doc. 158, pp. 90, 91]. An evidentiary hearing was held July 30, 2103, July 31, 2013, August 1, 2013, August 2, 2013, August 5, 2013, August 6, 2013, August 7, 2013, August 8, 2013, August 9, 2013, and August 10, 2013. [Doc. 242; Doc. 245; Doc. 246; Doc. 248; Doc. 251; Doc. 253; Doc. 254; Doc. 255; Doc. 257; Doc. 258; and Docs. 261-271].

APPLICABLE LEGAL PRINCIPLES

28 U.S.C. § 2254

The petition at issue is subject to review pursuant to the AEDPA which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Relitigation of any claim adjudicated on the merits in state court is barred by the AEDPA unless a petitioner can show the state court adjudication of his claim:

28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 783-784 (2011).

The Court has previously concluded Petitioner has overcome the deferential standard set forth in 28 U.S.C. §2254 as applicable to Claim One and Claim Two, and Claim Four is technically exhausted. [Doc. 158, pp. 19, 32, 35, 36]. A de novo review of Petitioner's claims is, therefore, appropriate to determine whether Petitioner is in custody in violation of the Constitution or law or treaties of the United States. The Court, in making such a determination, may not grant habeas relief if Respondent can show the constitutional error was harmless, i.e., the error did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrehamson, 507 U.S. 619, 637 (1993). A habeas petition governed by AEDPA which alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), is considered in light of the Strickland prejudice standard. A separate analysis applying the Brecht standard is not required. Byrd v. Workman, 645 F.3d 1159, 1167 fn.9 (10th Cir. 2011).

Ineffective assistance of counsel

A petitioner, in order to establish an ineffective assistance of counsel claim, "must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 1419 (2009).

"To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. at 787-792. Counsel's performance is deficient if the representation "falls below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 690. Prejudice entails "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. See also, United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)(quoting Strickland v. Washington, 466 U.S. at 688, 694). A petitioner, to prove his counsel's performance was deficient, must show the attorney's performance was not within the wide range of competence demanded of attorneys in criminal cases. Laycock v. State of New Mexico, 880 F.2d 1184 (10th Cir. 1989).

The United States Supreme Court, in 2011, in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770 (2011), reiterated its philosophy on deficient performance and prejudice first set out in Strickland v. Washington. The Supreme Court, with regard to deficient performance, stated:

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787, 788, 789, 790, 791. See also, United States v. Rushin, 642 F.3d 1299, 1306, 1307, 1308 (10th Cir. 2011).

The United States Supreme Court in Harrington v. Richter, as concerns prejudice, also stated:

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787-788, 791-792. See also, United States v. Rushin, 642 F.3d at 1309-1310.

The United States Supreme Court has also offered this explanation of the "deficient performance" and "prejudice" standard, and its relationship to the AEDPA:

Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739-740 (2011)(quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. at 788).

Logic would seem to dictate a defendant must show deficient performance before showing how such performance prejudiced him. A reviewing court, however, may consider the two inquiries, performance and prejudice, in any order, and there is no reason "to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which [the Supreme Court] expect[s] will often be so, that course should be followed." Strickland v. Washington, 466 U.S. at 697.

The proper standard for measuring attorney performance is not one of perfection. United States v. Haddock, 12 F.3d 950, 955, 956 (10th Cir. 1993). It is rather one of reasonably effective assistance. Gillette v. Tansy, 17 F.3d 308, 310, 311 (10th Cir. 1994).

A petitioner, to establish prejudice, has a difficult burden. More than a theoretical effect must be shown on the outcome of petitioner's case as a result of attorney errors. A petitioner must show that, but for those errors, there is a reasonable probability the results would have been different, i.e., petitioner would have been acquitted, or would not have pleaded guilty, or would have received a more favorable sentence. Strickland v. Washington, 466 U.S. at 694. See also, Hill v. Lockhart, 474 U.S. 52, 59 (1985), and Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996).

Hatch v. State of Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) (overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.l (10th Cir. 2001)) (citations and quotations omitted). If a petitioner is unable to meet this burden with regard to either prong of the test, his motion must be denied. Hatch v. State of Oklahoma, 58 F.3d at1457.

A court's review, in measuring an attorney's performance, must be highly deferential:

Strickland v. Washington, 466 U.S. at 689 (citations and quotation omitted). See also, United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. at 689).

The parameters for consideration of a claim of deficient performance are thus, in summary:

1. Measuring standard is reasonably effective assistance, not perfection.

2. Performance is deficient if it falls below an objective standard of reasonableness.

3. Strong presumption performance falls within wide range of reasonable assistance.

4. Standard is prevailing professional norms, not best practices or common custom.

5. Decision not to pursue a particular investigation may be a reasonable decision.

6. Reasonable strategy to balance limited resources with effective trial tactics and strategies.

The parameters for consideration of a claim of prejudice can be summarized as:

1. Prejudice must be more than theoretical.

2. "But for" deficient performance reasonable probability results would have been different, i.e. more favorable sentence.

3. The fact the errors [deficient performance] had some conceivable effect on outcome is not sufficient.

4. Likelihood of a different result must be substantial, not just conceivable. The Tenth Circuit in Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012), addressed, in some depth, deficient performance and prejudice with regard to mitigation in a capital case.

b. Counsel's failures

Hooks v. Workman, 689 F.3d at 1203, 1204 (internal citations and footnotes omitted, emphasis in original).

American Bar Association Guidelines

The United States Supreme Court has concluded, when considering deficient performance in death penalty cases, the American Bar Association guidelines in effect at the time of the representation may well indicate the appropriate "prevailing norms" which reasonably diligent attorneys would follow.

Padilla v. Kentucky, 559 U.S. 356, 366, 367 (2010). See also, Anthony v. Alabama, ___ U. S. ___, ____, 134 S.Ct. 1081, 1088 (2014)(quoting Padilla v. Kentucky, 559 U.S. at 366); Heard v. Addison, 728 F.3d 1170, 1180 (10th Cir. 2013).

Wiggins v. Smith, 539 U.S. 510, 524 (2003). See also, Young v. Sirmons, 551 F.3d 942, 957 (10th Cir. 2008)(quoting Wiggins v. Smith, 539 U.S. at 524).

Littlejohn v. Trammell, 704 F.3d 817, 859, 860 (10th Cir. 2013).

Bobby v. Van Hook, 558 U.S. 4, 6, (2009)(citing Strickland v. Washington, 466 U.S. at 688). See also, Welch v. Workman, 639 F.3d 980, 1015 (10th Cir. 2011); Detrich v. Ryan, 677 F.3d 958, 973-974 (9th Cir. 2012).

Petitioner's state court trial resulted in a sentence of death imposed on June 3, 2004. Eaton v. State, 192 P.3d at 49. The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Revised Edition, February, 2003, thus represent the "guides to determining what is reasonable" in considering the deficient performance aspect of the ineffective assistance of counsel allegations. Bobby v. Van Hook, 558 U.S. at 6.

There are a number of American Bar Association Guidelines possibly relevant to the assertions by Petitioner.3

Guideline 1.1 Objective and Scope of Guidelines

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, February 2003, [ABA Guidelines] pp. 1, 5, 6, 7, 8, 10, 11, 12, 13, 14, 17(footnotes omitted, selected case citations from footnotes included in text).

Guideline 4.1 The Defense Team and Supporting Services

[ABA Guidelines, pp. 28, 29, 30, 31, 32, 33, (footnotes omitted, selected case citations from footnotes included in text)].

[ABA Guidelines, p. 35].

[ABA Guidelines, pp. 46, 48, (footnotes omitted)].

[ABA Guidelines, pp. 63, 65, 66 (footnotes omitted)].

[ABA Guidelines, pp. 68, 70, 71, 72 (footnotes omitted)].

...

[ABA Guidelines, pp. 76, 80, 81, 82, 83, 84, (footnotes omitted, selected case citations from footnotes included in text)].

[ABA Guidelines, pp. 104, 107, 108, 109, (footnotes omitted, selected case citations from footnotes included in text)].

Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 3266-3267 (2010). See also, Littlejohn v. Trammell, 704 F.3d at 864 (quoting Sears v. Upton, 561 U.S. 945, 130 S.Ct. at 3266).

DISCUSSION

CLAIM ONE

CLAIM TWO

Littlejohn v. Trammell, 704 F.3d at 817.

[Doc. 261, p. 50, lines 21-25, p. 51, lines 1-5].

[ABA Guidelines, p. 28].

[ABA Guidelines, p. 63].

[Doc. 261, p. 54, lines 2-19].

[Doc. 261, p. 70, lines 4-7; p. 71, lines 1-16].

[Doc. 261, p. 72, lines 16-25; p. 73, lines 1-25; p. 74, lines 1-22].10 Mr. Skaggs, in fact, further believed Ms. Moree had the same ability, maybe even better than his, to screen for mental health issues, even though she had no formal training in the mental health field, and her exposure to the screening concept was the result of attendance at only three death penalty seminars. [Doc. 261, p. 75; Doc. 262, pp. 216, 218]. Ms. Moree, however, definitively stated she was not responsible for the screening function as a member of Petitioner's trial team. [Doc. 262, p. 218].11

[Doc. 267, p. 30 lines 17-22].

Mr. Skaggs expressed his fiscal philosophy with specific reference to the defense of Petitioner in a letter to State Public Defender Ken Koski justifying a request for trial expenditures for a Dr. Spitz.

[Doc. 261, p. 86 lines 7-16; Doc. 65-2, p. 2].

[Doc. 261, p. 87 lines 9-13].

[Doc. 261, p. 89 lines 11-22; Doc. 65-2, p. 2].

Frugality, in and of itself, may well be a philosophy appropriate when expending public funds. Such philosophy, however, as manifested in certain decisions by Mr. Skaggs as lead counsel, clearly adversely impacted not only the composition of the trial team, but the ability of those team members as well to perform their duties to the prevailing professional standards.

Mr. Skaggs chose to hire one person rather than separate individuals to handle the mitigation and investigation responsibilities of the team as mandated by the ABA Guidelines. [ABA Guideline 4.1(A)(1); 10.4(C)(2)(a)]. His stated philosophy was "why hire four when you can get by with three." [Doc. 261 pp. 54, 55]. He made this decision notwithstanding the fact he believed Kenneth Koski, the Wyoming Public Defender, would have granted his request to hire both an investigator and a mitigation specialist, [Doc. 261 pp. 54], as had occurred in prior death penalty cases defended by the Wyoming Public Defender Office. [Doc. 261, pp. 78, 88; Doc. 262, pp. 215, 223, 232]. Ms. Moree seems to have the same impression. The concern she felt with regard to funding came from Mr. Skaggs. [Doc. 263, pp. 97, 98].

The team member perhaps most adversely impacted by Mr. Skaggs' frugality was Ms. Moree, who had the combined responsibilities of investigator and mitigation specialist. [Doc. 262, p. 213]. It was apparent to Ms. Moree from her initial conversation with Mr. Skaggs cost containment was a priority with him.

[Doc. 262, p. 220 lines 13-17; p. 221 lines 1-9].

Ms. Moree, as a result of Mr. Skaggs' cost concerns, agreed to an hourly rate of $40 rather than the $65 per hour previously paid by the Wyoming Public Defender Office for someone acting solely as a mitigation specialist. [Doc. 262, pp. 218, 219]. She also acknowledged her understanding of the funding concerns in her engagement letter to Mr. Skaggs.

[Doc. 262, p. 221 lines 16-24; Doc. 65-4].

Ms. Moree also felt her work was constrained by the funds allotted to her for both investigation and mitigation.

[Doc. 262, p. 233 lines 19-25; p. 234 lines 1-13, 19-23].

Mr. Skaggs' frugality, and desire to economize on an indigent defense, also manifested itself in his approach to contacting and interviewing potential mitigation witnesses. He had a strong preference for telephone rather than in-person interviews.

Q. In fact, in order to get permission to go see a witness in person, did you have to tell Mr. Skaggs that you had contacted that person by phone and that they were going to be home and you had an appointment and they had agreed to visit with you?

Mr. Skaggs' preference for telephone screening and telephone interviews rather than in person interviews of potential mitigation witnesses was, as discussed infra, in conflict with the prevailing standards of performance for mitigation investigation during his representation of Petitioner.

Mr. Skaggs' frugality and desire to economize also affected who would be called as a witness at trial. One particular example was Kerry Rose, a potential mitigation witness whom Ms. Moree, based upon a couple of telephone conversations, concluded would have been a "very good witness" for Petitioner. [Doc. 263, p. 56]. Mr. Skaggs declined to call her at trial as a mitigation witness based, in part, on the fact she did not live in Wyoming. The other reasons he expressed for not calling her were apparently not significant as he would have "rethought" his decision if she had lived in Wyoming.

[Doc. 261, p. 197 lines 9-15].12

The apparently successful effort by Mr. Skaggs to "economize" on the expense in defense of Petitioner is troubling. The ABA Guidelines mandate lead counsel "demand on behalf of the client all resources necessary to provide high quality representation." [ABA Guideline 10.49(D), p. 63 (emphasis added)]. Mr. Richard Burr, as an attorney, has spent almost all of his legal career defending death penalty cases. [Doc. 265, p. 106]. The Court allowed him to testify as an expert on the performance of capital defense teams. [Doc. 265, p. 122]. He offered these thoughts with regard to counsel who self-censor and self-constrain when it comes to acquiring adequate defense funding.

[Doc. 265, p. 159 lines 9-25 (emphasis added)].

The failure by Mr. Skaggs to seek from Kenneth Koski, the State Public Defender, adequate funding, which he apparently knew would be approved, for Petitioner's defense clearly adversely impacted the trial defense, particularly, as discussed infra, the mitigation phase.

Petitioner's trial team clearly failed to meet the mandates of ABA Guideline 10.4.

ABA Guideline 10.5

The ABA Guidelines also mandate defense counsel "make every appropriate effort to establish a relationship of trust" with a defendant, including "a continuing interactive dialogue" concerning all materials which might well impact the defendant's case. [ABA Guideline 10.5, p. 68]. The Commentary suggests while communication with the defendant by non-attorney members of the defense team is important, such communication "does not discharge the obligation of counsel" to keep the defendant apprised of case development and progress. The establishment of a trust relation with the defendant is essential, thus contact must be ongoing. So-called "difficult" defendants may well be the consequence of bad lawyering, either current or previous, and establishing communication and rapport with the defendant is "critical to effective representation." [ABA Guideline, 10.5, pp. 70, 71].

Mr. Skaggs failed to establish even a minimally effective trust relationship with Petitioner, primarily because he completely failed to engage in a "continuing interactive dialogue" with him which was essential to establishing the communication and rapport "critical to effective representation." He apparently basically concluded because Petitioner was competent to stand trial, his inability, or failure, to provide, when requested, a life history, a work history, in fact, any information which might assist in his defense, or in the mitigation of a death penalty, was willful and intentional.

[Doc. 261, p. 104 lines 15-18].

[Doc. 261, p. 123 lines 24-25; p. 124 lines 1-4].

[Doc. 261, p. 142 lines 1-8].

[Doc. 261, p. 143 lines 4-9].

Mr. Skaggs reaffirmed a number of times in his testimony before this Court his "position" with regard to Petitioner's failure to provide requested information.

[Doc. 261, p. 112 lines 12-19].

[Doc. 261, p. 115 lines 12-18].

[Doc. 261, p. 119 lines 8-25].

[Doc. 261, p. 149 line 25; p. 150 lines 1-11].

[Doc. 261, p. 151 lines 5-11].

[Doc. 261, p. 121 lines 22-25; p. 122 lines 1-21].

[Doc. 261, p. 103 lines 11-25].

Mr. Skaggs maintained this position even though he eventually acknowledged Petitioner "had mental illnesses," [Doc. 261, p. 142 line 18], and had, as well, major mental impairments.

[Doc. 261, p. 152 lines 20-25; p. 153 lines 1-11].

Mr. Skaggs, however, did not discuss, at least with Ms. Moree who he had hired as the mitigation specialist, conditions or symptoms of possible disorders which might cause Petitioner to act against his best interest. Mr. Skaggs left the impression with Ms. Moree he did not put "much stock" in mental health issues.

[Doc. 263, p. 73 lines 23-25; p. 74 lines 1-21].

Mr. Skaggs relationship with Petitioner was also characterized by a philosophy he, Mr. Skaggs, was the one making decisions concerning Petitioner's defense, and if those decisions did not "meet with Mr. Eaton's approval, it's tough."

[Doc. 261, p.197 lines 19-25, p. 198 lines 1-23].

Mr. Skaggs relationship with Petitioner deteriorated to the point Petitioner indicated a number of times he would like to have a different lawyer, [Doc. 262, p. 24 lines 8-12], and Mr. Skaggs, in fact, considered withdrawing as counsel. He ultimately did not withdraw, in part because who would he "dump this on."

[Doc. 262, p. 28 lines 6-25; p. 29 line 1].

[Doc. 86-7, p. 4 lines18-25; p. 5 line 1].

Mr. Skaggs' apparent solution to his failure to establish a continuing dialogue and a trust relationship with Petitioner was to have Ms. Moree and Mr. Neubauer attempt to fulfill such responsibility.

Ms. Moree, according to Mr. Skaggs, put in "considerable effort" in her attempt to establish a dialogue and rapport with Petitioner, and thus have him share information helpful to his defense, and, in particular, mitigation of any death penalty. [Doc. 261, p. 124 lines 13-17].

[Doc. 261, p. 104 lines 21-25, p. 105 line 1; p. 105 lines 14-16].

Ms. Moree's "considerable effort" involved only two visits with Petitioner in the Natrona County Jail, which lasted a total of 50 minutes. Mr. Skaggs believes such an effort was "considerable."

[Doc. 261, p. 105 lines 14-23].

[Doc. 261, p. 107 lines 24-25; p. 108 lines 1-25; p. 109 lines 1-8(emphasis added)].

Ms. Moree did not agree with the characterization by Mr. Skaggs of her efforts to establish a dialogue with Petitioner as "considerable," and, in fact, did not recall any request by Mr. Skaggs she make such effort.

[Doc. 263, p. 71 lines 23-25; p. 72 lines 1-24].13

The visits by Ms. Moree with Petitioner were obviously not sufficient to establish either a "continuing interactive dialogue" nor a trust relationship with him. And even if Ms. Moree had been able to establish a productive dialogue and trust relationship with Petitioner, her success as a non-attorney member of the defense team "does not discharge the obligation of counsel" to keep the defendant apprised of the case development and progress as mandated by the ABA Guidelines.

Mr. Skaggs felt Mr. Neubauer had better rapport with Petitioner then he did. [Doc. 262, p. 72 lines 2-7]. He thus apparently assigned Mr. Neubauer the responsibility of communicating with Petitioner concerning the progress of his defense, including "signing off" on the way the defense would proceed. [Doc. 262, p. 72 lines 11-14]. Mr. Neubauer testified, however, Petitioner would not "talk to me about the case." [Doc. 262, p. 163 line 13]. Petitioner would discuss with him such things as the "oil field," as well as hunting antelope and fishing, and seemed comfortable doing so. [Doc. 262, p. 162 lines 10-25]. Mr. Neubauer agreed there may well have been reasons other than simply being stubborn or recalcitrant, such as malfunctioning brain and mental illness, which would explain Petitioner's failure or inability to provide information his defense team was requesting.

[Doc. 262, p. 189 lines 4-14].

[Doc. 262, p. 195 lines 9-25; p. 196 lines 1-4].

[Doc. 262, p. 196 lines 19-24].

Mr. Skaggs' theory the inability or failure of Petitioner to provide needed information for his defense and mitigation of a death penalty was "willful and intentional" is significantly undercut by the fact other counsel representing Petitioner, both before and after Mr. Skaggs and his trial team, had the ability to work with Petitioner despite his mental illnesses and impairments, and thus acquire his cooperation in their representation of him.

Ms. Tina Olson14 WAS LEAD COUNSEL ON THE wYOMING pUBLIC dEFENDER oFFICE APPELLATE team which represented Petitioner in the appeal of his conviction and sentence docketed in the Wyoming Supreme Court on August 27, 2004, [Doc. 263, pp. 145-150], as well as the Calene hearing in June, 2005. [Doc. 86-2, p. 2]. Ms. Olson's first attempt to meet with Petitioner at the Wyoming State Penitentiary was not successful as Petitioner "would not come out and talk to us." His case manager explained "we had come too late in the day. We had come in the afternoon after lunchtime." [Doc. 263, p. 185 lines 5-16; Exhibit 219-3]. She was eventually able to meet with Petitioner in April, 2005, after at least two prior attempts to meet with him failed because of road closures. [Doc. 263, p. 226 lines 10-22; Doc. 264, p. 175 line 10; Exhibit 249-5]. Petitioner explained at this first meeting with his appellate counsel why he had not met with her on October 7th.

[Doc. 264, p. 178 lines 4-12].

Petitioner also during his first meeting with Ms. Olson was very suspicious of her, expressing his belief she would be "just like that other one, just like that other one," referring to Mr. Skaggs. [Doc. 264, p. 175 lines 20-25; p. 176 lines 1-3]. Petitioner also at various times expressed to Ms. Olson his frustration with Mr. Skaggs.

[Doc. 264, p. 178 lines 13-25; p. 179 lines1-10].

Ms. Olson, in her meetings with Petitioner, noticed signs of the same types of impairments which were also apparent to his trial team, but which were not recognized as a possible cause for his inability or failure to comply with their information requests. Ms. Olson indicted his speech was pressured and he has difficulty expressing himself. [Doc. 264, p. 176 lines 18-23]. He did not "stay on topic," and was prone to go off on a tangent. You had to be very gentle in keeping him on topic or it would be frustrating to him. [Doc. 264, p. 176 lines 23-25; p. 177 lines 1-17]. Ms. Olson stated Petitioner showed signs of mental impairments, including, in particular, intellectual disabilities. She questioned, based on her visits with him, whether Petitioner had any kind of organic brain damage. [Doc. 264, p. 179 lines 11-25; p. 180 lines 1-4].

Ms. Olson and her appellate team, notwithstanding Petitioner's apparent impairments, were able to meet with Petitioner and have him participate in attorney-client meetings.

[Doc. 264, p. 180 lines 5-25; p. 181 lines 1-9].

[Doc. 264, p. 186 lines 3-8].

Ms. Olson and her team were, over time, able to gain Petitioner's trust, and she offered the reasons why.

[Doc. 264, p. 186 lines 13-21].

Robert Pepin is an Assistant Federal Public Defender for the District of Colorado working in Denver. He has significant state and federal court criminal experience including death penalty cases. [Doc. 263, pp. 101-104]. He met Petitioner in 2002 when he was assigned to represent him on a charge of manslaughter arising out of the death of an inmate in the federal prison in Florence, Colorado. [Doc. 263, p. 105]. Petitioner was acquitted of all charges after a jury trial. [Doc. 263, p. 126; Exhibit 303-48].

Mr. Pepin, in his representation of Petitioner, found him to be a warm but challenging client. He found him to have significant limitations with his ability and comfort level in communicating. He would get easily frustrated and had limited basic communication skills. His thinking, his thought processes, were not at all organized. [Doc. 263, pp. 107, 108, 110]. These limitations clearly affected Petitioner's ability to assist his attorney. Mr. Pepin was, however, able to obtain Petitioner's assistance basically through patience.

[Doc. 263, pp. 109 lines 7-25; p. 110 lines 1-5].

Mr. Pepin was able to establish a rapport with Petitioner who was eventually able to help with defense of the charges against him, in part by providing the names of persons Mr. Pepin could contact and talk with. [Doc. 263, p. 118]. Mr. Pepin ultimately felt he had a good relationship with Petitioner. [Doc. 263, p. 114]. He also offered his philosophy he would never tell any client, including a difficult client, that he was the "decider" and if the client disagrees with a decision "that's tough." [Doc. 263, p. 112].

Mr. Pepin, during his representation of Petitioner, became aware his possible connection to the death of Miss Kimmell. [Doc. 263, p. 130]. After Petitioner was acquitted of the charges against him, Mr. Pepin attempted to contact whomever might be representing Petitioner on the charges in the death of Miss Kimmell in Wyoming. He eventually was contacted by Ms. Moree who indicated they were having problems communicating with Petitioner. Mr. Pepin offered to help. [Doc. 263, p. 135].

[Doc. 263, p. 134 lines 3-25; p. 135 lines 1-3].

Mr. Pepin never spoke to Mr. Skaggs, [Doc. 263, p. 132], and was more than a little surprised no one from Petitioner's capital defense team, other than Ms. Moree, had contacted him as an attorney who had successfully represented Petitioner.

[Doc. 263, p. 135 lines 21-25; p. 136 lines 1-13].

Mr. Skaggs, as the acknowledged leader of Petitioner's trial team, quite clearly failed to develop, and arguably never attempted to develop,15 the continuing dialogue and trust relationship with Petitioner which was a key part of providing him a competent defense. This failure is compounded by the fact he failed to take advantage of the offer of assistance by Mr. Pepin, an experienced criminal defense attorney, including death penalty cases, who had developed a good working relationship with Petitioner, and had successfully defended him on manslaughter charges. The mandates of ABA Guideline 10.5, as applicable to the trial defense of Petitioner, were clearly not fulfilled.

ABA Guideline 10.7

The ABA Guidelines, in effect during Petitioner's trial, further mandate defense counsel conduct a thorough and independent investigation with particular emphasis on the penalty issues. The investigation should be undertaken notwithstanding the fact a defendant may not want evidence bearing on the penalty phase to be collected or presented. [ABA Guideline, 10.7, p. 76]. The Commentary points out the duty to investigate regardless of the desires of the defendant is well established by case law, citing Williams v. Taylor, 529 U.S. 362, 365-396 (2000); Caro v. Woodford, 280 F.3d 1247, 1255 (9th Cir. 2002) cert. denied, 122 S.Ct. 2645 (2002); Coleman v. Mitchell, 268 F.3d 417, 449-451 (6th Cir. 2001) cert. denied, 122 S.Ct. 1639 (2002); Jermyn v. Horn, 266 F.3d 257, 307-308 (3d Cir. 2001); Blanco v. Singletary, 943 F.2d 1477, 1501-1503 (11th Cir. 1991) cert. denied, 525 U.S. 837 (1989); and Voyles v. Watkins, 489 F.Supp. 901, 910 (N.D. Miss. 1980); accord Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997) cert. denied, 523 U.S. 1079 (1998). [ABA Guideline, 10.7, p. 80].

Preparation for the penalty phase of a death case requires "extensive and generally unparalleled investigation into personal and family history," including medical records, family and social history, educational history, military service, employment and training history, as well as prior juvenile and adult correctional experiences. [ABA Guideline, 10.7, p. 80, 81, 82]. This preparation and investigation should include interviews with family members, as well as anyone who might know or have known the defendant or his family such as neighbors, teachers, clergy, case workers, doctors, correctional, probation and parole officers. It should also include a review of the records for the defendant and his or her siblings, parents, and other family members from schools, social service agencies, juvenile courts, along with medical, military, criminal and correctional, birth, marriage, and death and alcohol and drug abuse treatment records. [ABA Guideline, 10.7, p. 84].

Mr. Skaggs "totally" agreed with these mandates of the ABA Guidelines, and acknowledged the United States Supreme Court had stated the Guidelines were a "well-defined norm."

[Doc. 261, p. 34 lines 17-25; p. 35 lines 1-6

[Doc. 261, p. 163 lines 6-19].

The preparation for the penalty phase of Petitioner's trial by his trial team, notwithstanding this clear acknowledgment by Mr. Skaggs of the appropriate standards, was significantly inadequate, and as a result completely failed to fulfill the mandates of ABA Guideline 10.7.

The foundations for the modern standards of death penalty defense are be found in Furman v. Georgia, 408 U.S. 238 (1972), which struck down all death penalty statutes in the United States in light of the risk of arbitrary and capricious infliction of such penalty. Justice Stewart put it most succinctly: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and un-usual."Furman v. Georgia, 408 U.S. at 309 (Stewart, J., concurring). Each of the nine Supreme Court justices filed separate opinions, however, the common thread running through the five justices in the majority indicated the Eighth Amendment's Cruel and Unusual Punishment Clause is violated by a system of capital punishment in which a capital sentencer has unbridled discretion in choosing whether to impose the death penalty.

The Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976), authorized the resumption of capital punishment, however, the personal value and dignity of the common man and the scientific advancement in the understanding of human behavior concepts identified by Justice Brennan in Furman v. Georgia, 408 U.S. at 296 are now two pillars of capital defense representation. The humanity of the accused, in the wake of Furman v. Georgia, is now a focal point of capital litigation. The United States Supreme Court has concluded, because "[t]he need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases," a capital sentencer must be allowed to consider "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978). Chief Justice Berger, writing for the full Court, concluded "that an individualized decision is essential in capital cases." Lockett v. Ohio, 438 U.S. at 605.

The Supreme Court has spoken "in the most expansive terms" when defining the scope of mitigating evidence necessary to individualized sentencing. Tennard v. Dretke, 542 U.S. 274, 284 (2004) (citing McKoy v. North Carolina, 494 U.S. 433, 440-41 (1990)). The Court has emphasized the concept of mitigation extends far beyond factors related to a defendant's culpability in the underlying offense, striking down any requirement to establish a causal nexus between a mitigating factor and the crime. Tennard v. Dretke, 542 U.S. at 284. A casual nexus requirement "will screen out any positive aspect of a defendant's character, because good character traits are neither `handicap[s]' nor typically traits to which criminal activity is `attributable.'" Tennard v. Dretke, 542 U.S. at 285. The Supreme Court further noted "that impaired intellectual functioning is inherently mitigating," Tennard v. Dretke, 542 U.S. at 287, regardless of whether it contributed to the commission of the crime. The Supreme Court deems the unrestricted scope of mitigating evidence necessary to "be sure that the sentencer has treated the defendant as a `uniquely individual human bein[g]' and has made a reliable determination that death is the appropriate sentence." Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 305 (1976)) (alteration in original).

The referenced principles are important when analyzing the performance of Petitioner's trial counsel in light of the Eighth Amendment constitutional right to offer mitigating evidence.

Louis D. Bilionis & Richard A. Rosen, Lawyers, Arbitrariness and the Eighth Amendment, 75 TEX L. REV. 1301, 1316-1317 (1997)(footnotes omitted), and Woodson v. North Carolina, 428 U.S. at 304. The Supreme Court, after observing "[t]he lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing," has concluded "[i]nvestigation is essential to fulfillment of these functions." Wiggins v. Smith, 539 U.S. at 524-525, citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1982).

Consideration of the fact Petitioner was facing the death penalty is thus essential to proper application of the familiar Strickland v. Washington ineffective assistance of counsel standard to the conduct of Petitioner's trial counsel. "First, the defendant must show that counsel's performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. at 687. In assessing counsel's performance, "prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable."Wiggins v. Smith, 539 U.S. at 522, citing Strickland v. Washington, 466 U.S. at 688-89.

The Supreme Court in Wiggins v. Smith recognized counsel's duty in a death penalty case to conduct a thorough investigation of the client's background.

Wiggins v. Smith, 539 U.S. at 524-525 (emphasis in original). Courts reviewing capital cases must therefore determine whether trial counsel satisfied his "duty to conduct the `requisite, diligent' investigation into his client's background." Wiggins v. Smith, 539 U.S. at 523 citing Williams v. Taylor, 529 U.S. 362 (2000). This assessment "includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. at 522, quoting Strickland v. Washington, 466 U.S. at 689. The Supreme Court explained:

Wiggins v. Smith, 539 U.S. at 527. Where an attorney is alleged to have failed to present substantial mitigation evidence, "we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [the defendant's] background was itself reasonable." Wiggins v. Smith, 539 U.S. at 523. Where facts known to counsel suggest further investigation would be fruitful, the failure to investigate results from "inattention, not reasoned strategic judgment." Wiggins v. Smith, 539 U.S. at 526.

The Tenth Circuit Court of Appeals also recognizes the constitutional design of the adversarial process in criminal cases depends on a thorough, independent investigation by defense counsel.

Fisher v. Gibson, 282 F.3d 1283, 1291 (10th Cir. 2002). In other words, as Mr. Stetler, the national mitigation coordinator for the Federal Death Penalty Projects, testified, the investigation comes before the strategic judgment, not the other way around, "so that you can make fully informed decisions about what you are going to present."[Doc. 264, p. 101 lines 7, 8].

The duty to investigate in a specific case may well include consideration of the aggravating factors on which the prosecution may rely.

Rompilla v. Beard, 545 U.S. 374, 383-384 (2005). The prosecution, prior to Petitioner's trial, gave notice, as discussed infra, it would use his Sweetwater County kidnaping and assault convictions in aggravation and gave the trial team the entire court file of the case, which clearly included mitigation, mental health and investigative leads. There would appear to be no reasonable strategic reason for failing to investigate a file which includes information the prosecution has indicated it will present at trial. As the United States Supreme Court has observed, "looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell defense counsel something about what the prosecution can produce." Rompilla v. Beard, 545 U.S. at 389. The notice and disclosure by the prosecution prior to Petitioner's trial concerning his Sweetwater County convictions resulted in an unconditional duty on the part of his trial team to investigate the information they knew the jury was going to hear. Such an investigation arguably would have resulted in possible mitigating evidence as well as investigative leads which could result in further research.

Rompilla v. Beard, 545 U.S. at 391 n. 8.

Mr. Burr, an attorney who has spent almost all of his legal career defending death penalty cases, and was permitted to testify as an expert on the performance of capital defense teams, in discussing the clear line of decisions beginning with Williams v. Taylor and including Wiggins v. Smith, Rompilla v. Beard, Sears v. Upton, and Porter v. McCollum, 558 U.S. 30 (2009), offered these observations.

[Doc. 265, p. 128 lines 19-25; p. 129 lines 1-12].

The concept of mitigation, as applicable within the confines of the Eighth Amendment Cruel and Unusual Punishment Clause, is quite broad, and there is, as noted by Mr. Burr, a direct relationship between a thorough psychosocial history and reliable psychiatric findings.

[Doc. 265, p. 136 lines 11-22].

A complete psychosocial history is important. "[T]he less complete your history is going in, the less accurate, reliable, and persuasive and meaningful the opinion is coming out. It's very, a very direct relationship." [Doc. 265, p. 139 lines 18-21]. The capital defense lawyer bears the responsibility for an accurate and complete psychosocial history. Ineffective assistance of expert is not a recognized legal concept.

[Doc. 265, p. 139 lines 8-14].

The results in Rompilla v. Beard are an example of the consequences of an incomplete psychosocial history. Three experts, without the benefit of a good life history for Mr. Rompilla, found him to be antisocial, yet after a thorough life history investigation, there was little doubt he suffered from fetal alcohol syndrome, borderline mental retardation, brain damage, and a serious mental illness, complicated by a extreme abuse and neglect in childhood. Rompilla v. Beard, 545 U.S. at 391-393. Such issues are at the core of capital mitigation work, and Mr. Skaggs agreed a psychosocial report, generally prepared by a qualified mitigation specialist, is an important tool in the defense of a capital case. "It's part and parcel of the mitigation, sure." [Doc. 261, p. 83 line 2]. Mr. Skaggs acknowledged the commentary to ABA Guideline 4.1 states the mitigation specialist should compile a comprehensive and well documented psychosocial history, based upon an exhaustive investigation which pursues investigative leads to mitigation evidence. [Doc. 261, p. 95 lines 20-22]. He stated, "I sure would like to have one," [Doc. 261, p. 94 line 11], and "Generally it's something I would aspire to, yes." [Doc. 261, p. 95 line 19].16 The trial lawyers in Wiggins v. Smith, Rompilla v. Beard, Sears v. Upton, and Porter v. McCollum all consulted mental health experts, however, they neglected to give those experts important background information about the client.[Doc. 265, p. 129 lines 6-20].

Mr. Skaggs conceded other "very helpful" tools in the investigation, organization and presentation of mitigating evidence and themes are the genogram of the client's family, and a detailed chronology of the client's life. [Doc. 261, pp. 84-85; Doc. 262, pp. 44, 45]. These tools can provide a useful template for guiding a life history investigation and identifying mitigating themes. [Doc. 264, pp. 96, 97, 98 (psychosocial histories); pp. 102-105 (chronologies); pp. 105-109 (genograms)]. Neither Mr. Skaggs nor anyone on the trial team used these tools in Petitioner's case. [Doc. 264, pp. 98, 105, 109].

Mr. Skaggs also acknowledged the purpose of gathering documents was to develop leads for further investigation. He stated "[d]ocuments are very valuable" in a capital case investigation. They not only describe conditions and events, but also name people who might have relevant information was well. [Doc. 261, p. 200]. Ms. Moree used the term "dot-to-dot" to describe a similar investigative approach.

[Doc. 262, p. 227 lines 10-16]. Mr. Stetler testified the standard for capital defense calls for a cyclical approach to investigation, in which documents are gathered, leads are followed, and more documents are gathered and more witness interviews or re-interviews are conducted based on what is learned. [Doc. 264, pp. 115, 116].

Mr. Skaggs acknowledged the value of each of the referenced tools and approaches to the defense of a capital case, yet none of them were used in preparing Petitioner's trial defense. The trial team's files apparently contained numerous investigative leads in documents obtained from several sources. A more thorough investigation based on these leads would very well have provided, as discussed infra, significant mitigation evidence which the trial team did not discover, and thus could not present to the jury. Many of these documents, similar to what occurred in Rompilla v. Beard, were provided by the prosecution, with notice of their intent to use Petitioner's criminal history against him. "But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell defense counsel something about what the prosecution can produce." Rompilla v. Beard, 545 U.S. at 389. Other documents, such as an incomplete copy of Mr. Eaton's middle school file from Meeker, Colorado, and Marian Eaton's admission and discharge summary at the Colorado State Hospital, were obtained by Ms. Moree. Most, if not all, of the mitigation evidence presented by Petitioner to this Court, and all of the witnesses who testified at the hearing before this Court, or whose testimony was filed by declaration, can be traced back to a lead which was contained in the trial team's files. A few examples of significant leads which were not pursued merit discussion.

Meeker, Colorado

Petitioner's trial team was "on notice" from multiple sources there were valuable mitigation witnesses to be found in the Meeker, Colorado area, including John, Syble, and Lyn Barney, Phyllis Barney Lake, and Brian Conrado. The trial team had a report by Dr. Donald Langsley to Weld County Judge Donald Carpenter regarding a psychiatric assessment of Petitioner. [Exhibit 223-14]. Mr. Skaggs conceded life history documents such as the report by Dr. Donald Langsley should be reviewed for leads to potential mitigation witnesses. [Doc. 261, p. 216 lines 11-24]. Dr. Langsley, in his report, advised Judge Carpenter Petitioner "...states that the only time in his life that he has ever been happy has been in working on the ranch of a Mr. and Mrs. Barney of Meeker, Colorado, over this past summer and after school during last spring." [Doc. 261, p. 220 lines 7-14; Exhibit 223-14, p. 2 ¶ 1]. Mr. Skaggs agreed the information related by Dr. Langsley "sure would" indicate Petitioner had a positive relationship with the Barneys. He conceded a thorough investigation would include going to Meeker to interview them, and if they had mitigating evidence, it would be reasonably discoverable. [Doc. 261, p. 220 lines 15-24]. Mr. Skaggs, however, had no idea what Mr. and Mrs. Barney could have added to the mitigation case. [Doc. 261, p. 220 line 25; p. 221 lines 1-2]. This report would, however, suggest to a qualified mitigation specialist Mr. and Mrs. Barney could well be potential mitigation witnesses, as well as provide insight into Petitioner's life history. As National Mitigation Coordinator Russell Stetler explained, he would want to interview them

[Doc. 264, p. 123 lines 25-25; p. 124 lines 1-13]. Richard Burr relates the same thought, testifying competent capital counsel would have pursued contacting the Barneys.

[Doc. 266, p. 45 lines 20-25; p. 46 lines 1-5].

Independent of Dr. Langsley's report, the mental health experts utilized by the trial team also uncovered information suggesting the Barney ranch as a possible source of mitigation evidence. Dr. Ash wrote to Mr. Skaggs on May 17, 2003.

[Doc. 261, p. 221 lines12-19; Exhibit 16, p. 1 ¶ 5]. In light of Petitioner's age and circumstances, "the lady" was unquestionably Mrs. Barney. The episode was, in fact, verified by Mrs. Barney's daughter, Phyllis Lake, who testified, "Dale had taken a gun and had put it up to his head, and my mother saw him and made him stop. But he was tired of the torment that he had." [Doc. 268, p. 25 lines 5-7].

Dr. Gummow, in rather cryptic notes of her interviews with Petitioner, also refers to this or a similar incident, and mentions Petitioner had a history of suicide attempts. Though "never able to follow through," he had put a "gun to head multiple times." [Exhibit 169-64, p. 1863]. This incident was grouped with other attempts which included tying a rope around his neck and kicking a horse out from under him, and attempting to overdose on pills in Evanston. [Exhibit 169-64, p. 1863]. Dr. Gummow, in her notes, drew a line connecting "suicide" group of notes to the phrase, "Mrs. Barney, Meeker, caught him and fired him from ranch job." [Exhibit 169-64, p. 1863].

Another indication the Barney ranch in Meeker, Colorado, was a possible source of mitigation evidence was supplied through information from the trial prosecutor. Natrona County Deputy Lynn Cohee tape-recorded a telephone interview with Petitioner's sister, Sharon Slagowski, which was transcribed and provided to Petitioner's trial team in discovery. Deputy Cohee asked Ms. Slagowsky, "Do you know if [Dale] had any childhood friends?"Petitioner's sister replied, "Oh boy. I know in Meeker, the only ones that I can think of, is their names was Barney's, but that's..." [Exhibit H, p. 11]

There were thus four distinct leads, three by mental health experts and the fourth by Petitioner's sister, which suggested to the trial team the Barney ranch in Meeker, Colorado, was a potential source of mitigation evidence. John and Phyllis Barney, though living and able to testify at the time of Petitioner's trial, have, unfortunately, since died. Their son, Lyn Barney, died in a car accident after Petitioner's trial. Phyllis Barney Lake was, however, available to testify at the hearing before this Court to some of what her parents and brother could have said about Petitioner. [Doc. 268, pp. 6-32]. An experienced mitigation specialist would also realize a visit to the Meeker area, and conversations with the Barney family prior to Petitioner's trial, would likely have lead to other possible mitigation witnesses, a possibility recognized by Ms. Moree even though she was not asked by Mr. Skaggs to travel to the Meeker area. [Doc. 263, p. 43 lines 1-17]. Mr. Burr also recognized the same possibility.

[Doc 265, p. 133 lines 4-18].

Mr. Burr agreed the Declaration by Phyllis Lake provided compelling mitigation information with respect to Petitioner. He also noted, as stated in her Declaration, Mrs. Lake's parents, Mr. and Mrs. Barney, "were available and, both mentally and physically, back at the time of" Petitioner's trial, and they along with Phyllis' brother Lyn "would have been an important person for the team to talk to as well because he was more of a peer age person for Dale Eaton, and they had lots of interaction, and you would have wanted to talk with him." [Doc. 266, p. 46, 47, 48; Exhibit 33].

A reasonable investigation in the Meeker, Colorado area, based on the information regarding Petitioner's time living in the area, of which the trial team had actual notice, would have very likely produced additional mitigating witnesses, including Brian Conrado, a friend of Mrs. Lake. [Doc. 268, pp. 50, 54].

Mr. Conrado, when he testified at Petitioner's evidentiary hearing before this Court, was 66 years old and had lived in Meeker, Colorado for 61 years. [Doc. 268, p. 33 lines 13, 14]. He was 12 years old and in the sixth grade when he first met Petitioner. [Doc. 268, p. 40]. He offered the following observations of Petitioner during the time he was living in Meeker, observations which would have been appropriate mitigation evidence if Mr. Conrado had testified at Petitioner's trial.

[Doc. 268, p. 40 lines 16-21].

[Doc. 268, p. 41 lines 15-19, 24, 25; p. 42 lines 1-3, 9-16].

[Doc. 268, p. 43 lines 2-8].

[Doc. 268, p. 43 lines 16-19; p. 44 lines 9-19].

[Doc. 268, p. 45 lines 19-25; p. 46 lines 1-13].

[Doc. 268, p. 46 lines 20-25; p. 47 lines 1-3].

[Doc. 268, p. 47 lines 13-24].

Mr. Skaggs stated, apparently in reference to Brian Conrado: "I would have used that witness that, that called me from Meeker, Colorado. Had I known about him, had he been reasonably available, I would have used him." [Doc. 262, p. 142 lines 1-13]. Mr. Skaggs and Petitioner's trial team would likely have found Mr. Conrado had they simply pursued the leads with regard to potential mitigation witnesses contained in their files.

The report by Dr. Donald Langsley to Weld County Judge Donald Carpenter regarding a psychiatric assessment of Petitioner, Exhibit 223-14, contains an additional reference to records which were not researched by the Petitioner's trial team. The very first sentence indicates "Dale Eaton was hospitalized at the Colorado Psychopathic Hospital from October 16, 1961, through October 26, 1961, for psychiatric examination and diagnosis." [Exhibit 223-14, p. 1; Doc. 261, p. 217 lines 9-14]. When asked if the referenced sentence suggested the possible existence of hospital records, Mr. Skaggs replied, "No, it doesn't tell me that at all. It tells me there probably was a record at one time." He then stated, after agreeing if the records existed in 2013, he could have obtained them in 2003, "[t]his particular situation I didn't want to develop." [Doc. 261, p. 217 lines 15-25; p. 218 lines 1-2]. He made his decision without even knowing what the records might reveal.

The records of Petitioner's ten-day evaluation at the Colorado Psychopathic Hospital (now the University of Colorado State Hospital, Exhibit 169, pp. 498, 504) do indeed exist, were obtained using a HIPAA-compliant release, and are in evidence as Exhibit 169-4 and 169-59. Exhibit 169-4 contains additional information with regard to Mr. and Mrs. Barney. The contents of those records are discussed infra.

Marion Eaton Hospital Files

Mr. Skaggs, being aware family mental health history was important, directed Ms. Moree to obtain the records concerning the involuntary commitment to the Colorado State Hospital of Petitioner's mother, Marian Eaton. Ms. Moree, as a result, received Exhibit L, a letter advising her Mrs. Eaton's records had been destroyed. The letter enclosed an admission/discharge summary of Mrs. Eaton's intermittent psychiatric hospitalization between March, 1962, and 1965, which indicated a diagnosis of chronic undifferentiated schizophrenia. [Doc. 261, pp. 200-202; Exhibit L, p. 1]. Mr. Skaggs, when asked if this document reflected significant family history, stated, "Well, it could have been a lot better. . . Schizophrenic reaction doesn't say very much." [Doc. 261, p. 202 lines 2-9]. "In fact, my belief was it wasn't particularly greatly significant without a whole lot of other records to back it up." [Doc. 261, p. 202 lines 16-18]. He made it clear, "...we wanted all those records." [Doc. 261, p. 203 lines 4-8]. The fact is the trial team could have obtained them.

Mr. Skaggs, through his investigator, Ms. Moree, was aware Mrs. Eaton had been involuntarily committed, and the summary Ms. Moree received in fact so indicates. [Exhibit L, p. 6 "Admission Type: RE-Commitment (412)"; p. 10 "Type of Admission — Commitment"]. Mr. Skaggs acknowledged a judicial process would necessarily have preceded Mrs. Eaton's involuntary commitment, and the notation "Weld D.C. 84M" was a court file, however, he did not ask Ms. Moree to attempt to obtain that file. [Doc. 261, p. 203 lines 22-24; p. 204 lines 1-25; p. 206 lines 1-9]. He stated, "We stopped with that that piece of paper you got right there." [Doc. 261, p. 206 lines 11, 12]. He was thus unaware of what the file might contain, although he did agree the file could have referred to a physician and a local hospital from which records might be recovered. [Doc. 261, p. 205 lines 1-25]. He also admitted, however, a reasonable, thorough investigation would have included researching the district court file, and any hospitalization records from 1965 (which he opined "are not ordinarily available") discovered by such an investigation would be helpful. [Doc. 261, p. 206 lines 13-25; p. 207 lines 1-18]. Petitioner's habeas counsel pursued this investigative lead, and obtained contains 214 pages of Mrs. Eaton's psychiatric hospitalization records. [Exhibit 176].

The letter advising Ms. Moree the records of Mrs. Eaton's involuntary hospitalization had been destroyed, Exhibit L, also identifies Mrs. Claude Thomison, complete with contact information in Greeley, Colorado, as a sister of Mrs. Eaton. [Exhibit L, p. 8]. Mr. Skaggs, when asked if the listing of Mrs. Thomison on a hospital record might suggest she had a close relationship with Mrs. Eaton, replied, "I'm not aware. We didn't pursue that lead." [Doc. 261, p. 207 lines 19-25; p. 208 lines 1-2]. Mr. Skaggs did not know Mrs. Thomison was Mrs. Eaton's sister, notwithstanding the fact she is listed as such on the hospital records. [Exhibit L, p. 8; Doc. 261, p. 208 lines 3-6]. Neither Mr. Skaggs nor anyone else on the trial team ever attempted to speak with Mrs. Thomison, and thus had no idea what she might have said on behalf of Petitioner. [Doc. 261, p. 208 lines 7-17].

Alan Eaton

Alan Eaton, the younger brother of Petitioner, was born with cerebral palsy. [Doc. 263, p. 47 lines 13-25]. Ms. Moree did not interview him. She was advised by their sister, Judy Mason, Alan never got along with Petitioner, and Mr. Skaggs thus never directed her to interview Alan. [Doc. 263, p. 39 lines 2-21; Exhibit 220-94].

[Doc. 263, p. 46 lines 22-25; p. 47 lines 1-7].

A reasonably thorough mitigation investigation would have established Alan was a potentially significant mitigation witness. The trial team, if it had obtained the records of Petitioner's ten-day hospitalization at University of Colorado State Hospital, Exhibit 169-59, would have learned Dr. R. T. Dean, reviewing Petitioner's siblings in order of birth, wrote in his report, "Next is a nine-year-old boy, in the fourth grade, who was born after a six months' pregnancy and has suffered from cerebral palsy since birth. . . . This child was born during Dale's first year in school. Dale reports that he has always tried to help and take care of this brother. The parents confirm this." [Doc. 263, p. Hrg. Tr. Vol. 3, p. 524, quoting Exhibit 169-4, p. 516].17 Ms. Moree, when asked if this was sufficient reason to go talk to Mr. Eaton's brother, answered in the affirmative.

[Doc. 263, p. 48 lines 2-23].

The trial team, in addition, if they had thoroughly researched the possibility of mitigation evidence in the Meeker, Colorado area, would have interviewed Brian Conrado and Margie Jackson, both of whom stated Petitioner pulled Alan to school and around town in a wagon. [Doc. 268, p. 47 lines 13-24; Exhibit 35, p. 2; Exhibit 195].

Mr. Burr recalls Mr. Skaggs' proffered reason for not interviewing Alan Eaton was "one of Mr. Eaton's other siblings, a sister, Judy I think, told the defense team that Alan and Dale didn't get along with each other." [Doc. 266, p. 48 lines 19-21]. He points out, however, competent capital counsel does not rely on a sister's assertion to forgo any sort of investigation. "Not at all. You take that information for — at face value, and, you know, you — when you're making contact with Alan, you know, you may exercise some caution or particular care in approaching him if that happens to be true. If it is true, you want to know why they're estranged from each other. If it's not true, then obviously you're going to talk with Alan about everything he can tell you about his brother." [Doc. 266, p. 48 line 25; p. 49 lines 1-6].

The trial team had a clear responsibility to interview Alan Eaton. He was a sibling of Petitioner, and information from at least two sources indicated interviewing Alan could produce helpful mitigating evidence.18

Family History

Mr. Skaggs, even though he did not know how many generations back a competent psychosocial history should cover, acknowledged family history is important because it "can bear upon how he was raised, how an individual is raised as a child. It can bear upon how they react as an adult. It can also furnish mitigation because it sometimes furnishes a reason for them acting out in the way that they did. So family history is critical. And I can't under — I can't underemphasize how critical that is." [Doc. 261, p. 121 lines 4-9, 10-15]. He was also aware the mental health history of other members of the family is relevant to his client's predisposition to inherit a mental disease.[Doc. 261, p. 121 lines 14-21]. Mr. Skaggs and trial team, nevertheless, did very little to unearth the extensive history of mental disease in Petitioner's family, apparently because, according to Mr. Skaggs, Petitioner didn't understand the importance of family history, or "didn't want to understand it." [Doc. 261, p. 121 lines 22-25; p. 122 lines 1-21].

Petitioner's reluctance to discuss his family history is not unusual. As Russell Stetler testified, family mental health history is often a closely guarded family secret. [Doc. 264, p. 116 lines 8-19]. "Sometimes the family members that one member will tell you not to talk to are going to be the ones who are ultimately most informative or most willing to reveal the family secrets." [Doc. 264, p. 127 lines 2-5]. Some family secrets are, in fact, so successfully kept the client or his siblings may not even be aware of significant information, just as Richard Eaton "had never heard anything about" the involuntary hospitalization of his Aunt, Zelma Eaton Smith. [Doc. 266, p. 225 lines 14-19].

It is fairly clear the trial team failed to use some of the most basic tools for uncovering mitigation evidence. i.e. a thorough psychosocial history, a chronology, and a genogram. Each of these tools has multiple uses, and one important purpose is to guide the life history/mental health investigation. Mr. Skaggs agreed all capital defense trainings have a heavy focus on the psychosocial history, [Doc. 261, p. 36 lines 9-23], and the mitigation specialist should be providing mental health experts with such a history of the client. [Doc. 261, p. 78 lines 19-23]. No such report, however, was prepared or attempted on behalf of Petitioner. [Doc. 261, p. 84 lines 16-23; p. 85 lines 1-3].

Mr. Skaggs likewise acknowledged a genogram to be an important, "very helpful" tool in preparing the defense of a capital case, yet again no such tool was brought to bear on behalf of Petitioner. [Doc. 261, p. 84 lines 3-25; p. 85 lines 1-3]. These two tools used together provide a template which guides the family history investigation by indicating relatives who are easily identified and located. A reasonable psychosocial history investigation, with or without specific notice of family members, will identify, locate and interview aunts, uncles, parents, cousins and living grandparents, as well as spouses and offspring of each generation. Mr. Stetler explained the genogram is a standard capital defense tool.

[Doc. 264, p. 106 lines 1-10].

Petitioner's family members advised the trial team there were hereditary issues contributing to Petitioner's impairments. Loren Ferrins told Ms. Moree "Merle's father had at one time hit the gas man on his head, knocking him out, and Loren said, `it was just handed down in the family.'" [Exhibit171-25]. The trial team was on notice there could be mental health issues on the Ferrins' side of the family as well. Marilu O'Malley, the sister of Petitioner's mother, advised Ms. Moree she and Marian (Petitioner's mother) had grown up on a homestead "about seven miles southeast of Moneta, and `our house was dysfunctional.'" Exhibit 171-28. Equally significant was the suicide of Petitioner's brother, Daryl, on October 10, 1988, of which trial team was directly on notice since their mental health experts testified to it's the importance. [Doc. 262, p. 48 lines 17-25; p. 49 lines 1-22].

There was, however, no attempt to follow up on any of this information, apparently and primarily based on the fact Petitioner's trial team lacked a full-time mitigation specialist with the skills, acquired through training and experience, as outlined by Mr. Stetler and Mr. Burr, necessary to obtain an accurate and complete psychosocial history. A capital defense team must include someone, as explained by Mr. Stetler, who

[Doc. 265, p. 62 lines 4-14].

[Doc. 265, p. 139 lines 22-25; p. 140 lines 1-25; p. 141 lines 1-7]. The trial team did not include such a person, and even though Mr. Skaggs was actually aware of potential multi-generational mental impairments, no attempt was made to investigate them.

The trial team, with respect to pursuit of relevant family history evidence, even though Petitioner lived a good portion of his early years and young adulthood in Riverton, chose not to interview Petitioner's cousins who lived on nearby farms. "I just don't know if it would be helpful to talk to cousins." [Doc. 261, p. 213 lines 7-8]. Mr. Skaggs deliberately narrow scope of investigation thus automatically excluded three of Petitioner's cousins, Darlene Pursel, the daughter of Merle Eaton's sister Zelma, [Doc. 261, p. 215 lines 3-8], as well as Sandra Andrae and Lorena Altman, the twin daughters of Loren Ferrins. [Doc. 261, p. 213 lines 17-25].

Mr. Burr explained how mitigation investigation is much like "a series of concentric circles," beginning with the nuclear family but by no means ending there.

[Doc. 261, p. 141 lines 10-25; p. 142 lines 1-13].

Mr. Burr also pointed out the decision by Mr. Skaggs not to locate and interview the three cousins of Petitioner, Darlene Pursel, Sandra Andrae, Lorena Altman, and his proffered excuse therefore he "just didn't know if it would be helpful to talk to cousins," is not a characteristic of reasonably competent capital counsel performance.

[Doc. 265, p. 204 lines 11-20]. Those same cousins might well have also witnessed severe abuse by a parent. [Doc. 265, p. 204 lines 21-23].

Mr. Skaggs and the trial team also ignored the possible relevance of the suicide of Daryl Eaton to a reliable assessment of Petitioner's mental condition. They did nothing to investigate Daryl's background or the circumstances leading up to and surrounding his death. They thus overlooked the opportunity to shed light on Petitioner's mental condition by investigating the suicide of his brother. No one from the trial team spoke to Daryl's ex-wife, Elizabeth Pryor, nor did they attempt to interview Daryl's widow, Terry Lerseth. [Doc. 263, p. 70 lines 15-25; p. 71 lines 1-19].

The trial team was also on notice, based on a phone call by Ms. Moree with Petitioner's son, Ed Eaton, in June, 2003, that he, Ed, had been a patient at the Wyoming State Hospital and had been diagnosed with Post Traumatic Stress Disorder and bipolar disorder. [Exhibit 169-103, pp. 1, 2; Exhibit 237, p. 4]. Ed indicated while he was a patient at the Wyoming State Hospital, he "was given Mellaril, Thioridazine, Desipramine and a host of others "he could not remember. [Exhibit 237, p. 2]. Dr. Ash testified Mellaril is "used as a mood stabilizer often in the manic state of bipolar disorder," and Desipramine "is a tricyclic antidepressant." [Doc. 267, p. 85 lines 16-22]. Both medications are consistent with a diagnosis of bipolar disorder. [Doc. 267, p. 85 lines 23-25; p. 86 lines 1-3]. Dr. Ash testified if this information regarding to bipolar disorder in Petitioner's relatives had been available to him prior to trial, it would have altered his view of Petitioner's vulnerability to such disorder.

[Doc. 267, p. 86 lines 2-20].

Sweetwater County

The trial team had in their possession the Sweetwater County case file, including a presentence report, from Petitioner's conviction arising from his 1997 encounter with Scott and Shannon Breeden. This document as well offered mitigation investigative leads. [Doc. 262, p. 12 lines 16-25; p. 13 lines 1-12]. The report quoted Petitioner:

[Doc. 262, p. 13 lines 13-24, quoting Exhibit 171-7, p. 5]. Mr. Burr testified the trial team should have made an attempt to find "Mark with West Hills," "[a]nd to see if there are any employment records associated with it." [Doc. 265, p. 197 lines 19-25; p. 198 lines 1-16]. Mr. Skaggs agreed there are sufficient investigative leads in the paragraph from the Sweetwater County Presentence Report to find and interview Mark Dotson, an employer who was "just too nice" to his client. Those leads, however, were not followed, and no attempt was made to contact Mark Dotson. [Doc. 262, p. 13 lines 10-25; p. 14 lines 1-23]. Mr. Burr cited another opportunity for possible mitigation evidence in the quoted statement from the Sweetwater County presentence report, Exhibit 171-7, one which suggests a mental impairment which competent capital defense attorney would need to investigate further.

That, that is yet another symptom that hasn't been recounted in the materials we've talked about, that it's — when people sort of lose periods of their life in the sense that they recount it this way, "I'd go through spells and take off and not know what I was doing," this, you know — something is happening. As far as we know, he's not an alcoholic, he doesn't go through blackout periods, but he is going through some sort of what mental health experts call a dissociative state which is you were unconnected from your experience, your realizing what you are doing, your laying down memories about what you are doing, your ability to recall later what you did. That in general is thought of as a dissociative experience, and that is . . . to me, it's a red flag to look into that as well.

[Doc. 265, p. 197 lines 24-25; p. 198 lines 1-12].

The Sweetwater County Presentence Report contained other possible mitigation evidence leads, for example, Kerry Rose.

[Exhibit 171-7, p. 5].

Ms. Moree did in fact talk to Ms. Rose by telephone, and after a brief conversation came away with the impression "Kerry sounds like a very nice person and she is willing to help Dale in any way she can." [Exhibit 171-36]. Ms. Moree wanted Mr. Skaggs to bring Ms. Rose to trial because "she would be very, a very good witness for Dale Wayne." [Doc. 263, p. 56 lines 2-13]. Even Ms. Rose parents, Ron and Sally Rose, approved of her relationship with Petitioner, and would have provided positive information about him at his trial.

[Exhibit 200 — Declaration of Ron Rose].

[Exhibit 201, p. 1 — Declaration of Sally Rose].

Kerry Rose was also an important direct lead to mitigation witness Mark Dotson. Ron Rose "met Dale in Milford because he was working for Mark Dotson and also seeing Kerry Lynn." [Exhibit 200]. Ron recalled Petitioner lived in his camper on Mark Dotson's property, and got pretty upset with co-workers who were stealing from Mark. [Exhibit 200]. The trial team thus had a second lead to Mark Dotson and the mitigation evidence he might be able to provide, yet he was not contacted. [Doc. 262, p. 13 lines 10-25; p. 14 lines 1-23].

Mr. Stetler stated, in addition to the above-referenced leads for Mr. Dotson, he would also show up on the Social Security Administration retained earnings report, which is one of the documents a life history investigator will go after "on Day One." [Doc. 264, p. 151 lines 8-19]. He further stated if the trial team, as reasonably competent counsel, had used the standard mitigation tool of creating an adequate life history chronology, Mark Dotson, through Kerry Rose, would "absolutely" have shown up on the chronology as well, so there were at least three different reasonable paths of investigation which led to Mark Dotson. [Doc. 264, p. 151 lines 19-24; p. 152 lines 1-8].

Mr. Stetler also noted Mr. Skaggs, in the Calene remand hearing, asserted he did not want to investigate Petitioner's work history because "[h]e seemed to think that he — that Mr. Eaton lost all of this jobs because of assaultive behavior," a conclusion Mr. Stetler indicated, based upon his review of the material gathered for the Petition to this Court, was not correct. [Doc. 264, p. 152 lines 9-23]. The failure of the trial team to interview any of Petitioner's employers was neither reasonable or appropriate nor was it an informed conclusion in light of the fact there was no investigation at all of Petitioner's work history. A reasonable capital defense team would investigate before reaching such conclusions, and, in this matter, a reasonable investigation, before reaching any conclusions concerning Petitioner's work history, would have interviewed former employers and co-employees Jim Hoopes, Sandy Hoopes, Steve DuBry, Mark Dotson, and Daniel Dotson. Those interviews would have revealed the conclusion Petitioner had lost each of his jobs as the result of assaultive behavior was simply invalid speculation. [Doc. 264, p. 152 lines 21-25; p. 153 lines 1-25; p. 154 line 1]. Mr. Burr stated:

[Doc. 265, p. 131 lines 21-25; p. 132 lines 1-10]. The trial team did not know what evidence they were sacrificing by failing to do a search for Mark Dotson, nor did they even know what evidence might result from an interview with him. The decision to not attempt to contact Mark Dotson can not be considered a strategic one as "[i]t was not informed." [Doc. 264, p. 153 lines 2-4].

Another valuable mitigation evidence lead apparent in the Sweetwater County Presentence Report, Exhibit 171-7, is Probation & Parole Officer Kimberly Bramwell's interview of Petitioner's brother, Richard Eaton, in which he displayed remarkable insight into his brother's life history and impaired mental condition.

[Exhibit 171-7, p. 4].

Mr. Stetler testified Richard should definitely have been interviewed in person."Q. The trial team dropped their pursuit of him as a witness because of one negative phone call. First of all, would you have started your investigation with a telephone call? A. No, I would have gone to see him." [Doc. 264, p. 155 lines 5-8]. "He's a full sibling, has a lot of information." [Doc. 264, p. 150 lines 15-20]. Richard Eaton described in a declaration the first contact he had with the trial team.

[Exhibit 40, p. 1].

Mr. Stetler described this investigative technique as "a textbook for how not to do it."

[Doc. 264, p. 156 lines 12-17].

The Sweetwater County Presentence Report contains a further mitigation evidence lead, as discussed infra, when it references Petitioner's decades of employment through the Operating Engineers Union.

[Exhibit 171-7, p. 5].

Sandy and Jim Hoopes

Investigative leads for mitigation witnesses were also contained in the investigative reports of the Natrona County Sheriff's Office. One example is the interviews of Jim and Sandy Hoopes conducted in October, 2002, by Natrona County Deputies Lynn Cohee and Dan Tholson.

Ms. Moree, in a memo to Mr. Skaggs, related the fact Mrs. Hoopes told the deputies on October 10, 2002, she had known Petitioner for about 27 years, and her husband had known him even longer. Petitioner did welding work for them and had lived on their property. [Exhibit 220-97, p. 1]. Mrs. Hoopes had positive things to say about Petitioner, and perhaps had some mental health perspective as well. She described Petitioner as "`highly intelligent with his hands and with welding . . . I don't think he was coordinated to think a lot of things through . . . if he was working with something, he'd work with it until he got it done.' [She] . . . `thought Dale was a little slow' in his thinking." "Dale never lost his temper when he was around Sandy, and she says Dale was always nice and polite around her. Dale stayed with them for 3 or 4 months, but he wouldn't eat with them `because he didn't want to put us out.'"[Exhibit 220-97, p. 1]. The statements by Mrs. Hoopes were clearly sufficient to put Mr. Skaggs on notice she was potentially a valuable mitigation witness who should be interviewed.

Ms. Moree also wrote a memo to Mr. Skaggs addressing the interview by Deputies Cohee and Tholson of James Hoopes on October 10, 2002, which also identified him as a possible valuable mitigation witness. Mr. Hoopes had worked with Petitioner for many years, and had positive things to say about him. [Exhibit 220-98, p. 1]. "Hell, he seemed real good to us . . . it was always the same old Dale around me all the time." [Exhibit 220-98, p. 2]. Mr. Hoopes also made several comments about Petitioner's hygiene, a possible characteristic of his mental impairments. "[O]nly thing I see was he didn't bathe often enough . . . a lot of times when he'd ride with me, you'd have to have the window down."[Exhibit 220-98, p. 2]. Mr. and Mrs. Hoopes lived in Lyman, Wyoming. [Exhibit 220-97, p. 1].

Mr. Hoopes was not interviewed by trial team. Mr. Skaggs, in fact, did not "know who Jim Hoopes is," did not know he had been friends with Petitioner for 30 years, and apparently did not know Mr. Hoopes had been interviewed by the Natrona County Sheriff's Department. Mr. Skaggs, even when made aware of this information, still did not think it would be productive to interview him because he "didn't know what the door would open."

[Doc. 261, p. 225 lines 20-25; p. 226 lines 1-25; p. 227 lines 1-12].

Mr. Burr pointed out for Mr. Skaggs to have sealed himself off from the information Jim Hoopes could have provided, and to make judgments with regard thereto without having done an investigation, is the very kind of mistake the United States Supreme Court said in Strickland v. Washington doesn't get deference. [Doc. 265, p. 203 lines 6-10]. Mr. Burr explained:

[Doc. 265, p. 203 lines 11-25; p. 204 line 1]. Mr. Burr even described the reasons proffered by Mr. Skaggs for not having located and interviewed Jim Hoopes as nonsensical. "That makes no sense to me. Somebody who's known somebody 30 years who might be a parental-like figure who loved the person is one of the first people I'd want to go see or have my mitigation specialist go see." [Doc. 265, p. 205 lines 18-21].

Mr. Burr stated his opinion the decision by Mr. Skaggs to not investigate Petitioner's work history was neither based upon a reasonable investigation, nor consistent with a reasonable performance of capital counsel.

[Doc. 265, p. 201 lines 12-20].

Mr. Burr pointed out:

[Doc. 265, p. 129 lines 23-25; p. 130 lines 1-16, 25; p. 131 lines 1-5].

Mr. Burr suggested, with regard to the testimony by Mr. Skaggs he felt it would be too hard to find some of Petitioner's former co-employees and employers, "sounds like a lame excuse."

[Doc. 265, p. 201 lines 21-25; p. 202 lines 1-6].

The concern by Mr. Skaggs about "opening the door" to employment history, if it had any validity at all, would not preclude interviewing Sandy Hoopes, who did not know Petitioner in an employment context. The decision by Mr. Skaggs to not investigate or interview investigate Jim and Sandy Hoopes was not an informed decision.

Operating Engineers Local 800

A number of documents which could have been useful to reconstruct Petitioner's life history were provided to the trial team by the Natrona County Sheriff's Department. [Doc. 262, p. 15 lines 8-22]. The documents included a letter from the business manager of the Operating Engineers Union Local 800 Chapter, Steve DuBry. [Doc. 262, p. 16 lines 2-24; Exhibit 318, p. 55.19 Ms. Moree also had developed an investigative lead for "Steve DuBay," whom she could not locate, but who was described as a friend and fellow worker of Petitioner. [Doc. 262, p. 17 lines 3-25; p. 18 lines 1-4; Exhibit 220-49, p. 1]. Mr. Skaggs noted DuBay and DuBry were located in Mills, Wyoming, "so it might be the same." [Doc. 262, p. 18 lines 6, 7]. Steve DuBry was thus apparently identified twice as a good friend of Petitioner having very possibly valuable mitigation evidence and was easily located through the address and phone number on the Operating Engineers Union letterhead. [Exhibit 318, p. 55]. No one from the trial team ever interviewed Mr. DuBry, thus the team had no idea what he could add to Petitioner's mitigation case. [Doc. 262, p. 18 lines 8-19].

Mr. Burr again points out, with reference to Mr. Skaggs' proffered concerns about "opening the door" to employment history, a reasonably competent investigation "absolutely" would include attempts to locate and interview employers, particularly since Petitioner, in fact, had such a history.

[Doc. 265, p. 205 lines 22-25; p. 206 lines 1-9].

The Operating Engineers Union, Jim Hoopes, and Steve DuBry were resources for identifying other possible witnesses such as Johnny Miller [Exhibit 45], who knew Petitioner through his employment which was an important part of his life, yet no effort was made by the trial team to develop those resources. [Doc. 262, pp. 21, 22].

Doris Buchta's Journal

Doris Buchta was acquainted with Petitioner when they were neighbors in Moneta, Wyoming. She kept a rather detailed journal containing numerous entries regarding the interaction between herself and her husband, and Petitioner. [Doc. 266, p. 33 lines 19-17; Exhibit 233]. She was listed by Ms. Moree as a potential mitigation witness based on her journal entries. [Doc. 220-91, p. 1]. Mr. Skaggs acknowledged Mrs. Buchta's journal contained entries regarding Petitioner helping her husband fix the brakes on his truck, and also install a new starter which Petitioner supplied. [Doc. 261, p. 186 lines 21-25; p. 187 lines 1-15; Exhibit 233, p. 2 — April 22; p. 3 — July 29]. Petitioner, on many occasions, also brought Mrs. Buchta gifts, including boxes of her favorite candy, jellybeans, ice cream, baskets of fruits and vegetables, as well as fish he caught. [Exhibit 235, p. 1 — May 14th, May 23rd, June 9th; p. 2 — April 20th and April 23rd; p. 3 — July 4th and December 25th]. It also appears he ate meals with them on a number of occasions, and simply "visited" on others [Exhibit 233, 1989 — September 24th, October 7th, December 15th; 1988 March 8th, 16th, 22nd, April 1st, 25th, May 14th, 23rd, June 23rd, August 16th, September 17th, 16th, October 3rd, 21st, 31st, November 15th, 29th, December 2; 1989-April 20th, 21st, 22nd, 25th, May 9th, 11th, 17th, 18th, 20th, June 13th, July 19th, August 5th, and December 8th].

The prosecution took Doris Buchta's deposition to preserve her testimony against Petitioner at trial. She was, however, never interviewed as a mitigation witness, thus no attempt whatsoever was made to learn and develop what helpful mitigation testimony she might have been able to provide even though the trial team knew she was in very poor health. [Doc. 263, p. 53 lines 3-20].

Riverton Witnesses

Petitioner spent a significant portion of his life in the Riverton area, both as a young child and young adult. He and his wife, Melody, moved in with his family after their marriage. [Doc. 266, p. 112 lines 11-23]. Ms. Moree interviewed Marilu O'Malley, and Loren and Betty Ferrins, at their homes in Riverton. There were other potential mitigation witnesses in the Riverton area, including "Keith and Irba (Jeannie) Lange," identified as "friends of Dale's." [Exhibit 220-91]. The Langes, who Ms. Moree interviewed by telephone, had a positive impression of Petitioner. [Exhibit 253-48]. They stated Petitioner was always helpful and polite, and one time stopped to help them round up livestock (hogs) after they got loose. [Exhibit 253-48, p. 1; Doc. 261, p. 184 lines 14-20; p. 185 lines 11-17]. Mr. Skaggs discounted them as potential mitigation witnesses based on the fact "they wouldn't talk about Merle," Petitioner's father. [Doc. 261, p. 184 lines 13-17]. Keith Lange, however, did state "if they went over to Merle's house while he and Marion and the kids were having dinner, that Merle would make Dale get up from the table and stand eating in the corner so whoever was visiting could have Dale's chair at the table, and `that didn't sit well with me.'" [Exhibit 253-48, p. 1; Doc. 261, p. 184 lines 23-25; p. 185 lines 1-3]. Mr. Skaggs admitted the statements by the Langes were not hurtful, yet then gratuitously added, "but I can imagine the cross." [Doc. 261, p. 188 lines 5-13]. He also admitted he could think of nothing which would render the Langes a bad avenue of investigation. [Doc. 261, p. 188 lines 5-13]. Mr. Skaggs further acknowledged "it's reasonable to ask a witness who knows your client if he or she knows other witnesses who might also know your client.: . . . . "Sure . . . just an investigation technique." [Doc. 261, p. 187 lines 16-23]. He, nevertheless, did not utilize this "investigation technique." He did not ask Ms. Moree to conduct an in-person interview with the Langes. [Doc. 261, p. 188 lines 14-19].

Mr. Skaggs also suggested they, the Langes, "don't know him (Petitioner) well enough, for number one, and number two, they simply don't know him." [Doc. 261, p. 186 lines 1-3]. Mr. Burr expressed his opinion such a suggestion was not a reasonable conclusion.

[Doc. 265, p. 202 lines 17-25; p. 203 lines 1-10].

Mr. Skaggs believed the lead to Keith and Irva Lange probably came from "Farrens, but that's just a guess." [Doc. 261, p. 188 lines 14-25]. Information leading to neighbors and friends of Petitioner in the Riverton area would not, however, have been hard to develop through Petitioner himself, Keith and Irva Lange, Marilu O'Malley, and Loren and Betty Ferrins, all of whom lived in Riverton at the time. A reasonable investigation would have identified Irva Lange, who lived more than 90 years on the farm next to the Eaton family farm; Terry and Donna Schmuck, who still work a farm nearby; and other good friends such as Tanis Manning and David Brewbaker. None of these witnesses were ever interviewed by Ms. Moree or anyone else on the trial team. [Doc. 261, p. 189 lines 23-25; p. 190 lines 1-25; p. 191 lines 1-21. See also Exhibits 37, 192, 197, 203, 239].

Jim and Sandy Hoopes, Steve DuBry, Tanis Manning, David Brewbaker, and possibly many others would have been interviewed by competent capital defense counsel.

[Doc. 265, p. 142 lines 16-25; p. 143 lines 1-8].

The mitigation evidence investigation by Mr. Skaggs and the trial team lacks both scope and depth. The witnesses and evidence previously discussed, with the possible exception of Richard Eaton, involve evidence which trial team did not even attempt to pursue. The trial team performance shares similarities with the mitigation investigation found to be ineffective in Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011), although the lawyers who defended Mr. Ferrell interviewed 40-45 witnesses, Ferrell v. Hall, 640 F.3d at 1229, twice as many witnesses as interviewed by Petitioner's trial team.

The other similarity involves the mental health of the defendant. Mr. Ferrell's attorneys were found ineffective in part because, "despite Ferrell's obvious mental disabilities," defense counsel never asked "any of Ferrell's family — the ones who were called to testify anyway — about any topics related to Ferrell's mental health." Ferrell v. Hall, 640 F.3d at 1228. The performance of counsel for Mr. Ferrell, even under the deferential standard of review of the AEDPA, was found to be deficient.

Ferrell v. Hall, 640 F.3d at 1228.

The trial team, in addition, failed to perform competent interviews of the persons they did interview. Those interviews, for the most part, ignored family mental health history, and apparently operated on the flawed assumption expressed by Mr. Skaggs that family members should be willing to talk about mental illness and domestic violence. The more commonly accepted and understood wisdom, based on research in capital defense cases, is such issues are typically closely guarded family secrets. Mr. Skaggs, however, testified, "My experience has been that they're not. I know that I've heard that before, but my experience has been not." [Doc. 261, p. 212 lines 11-14]. His "experience," however, is not consistent with the experience of persons dealing with mental health issues in capital cases.

John H. Blume & Pamela Blume Leonard, Principles of Developing and Presenting Mental Health Evidence in Criminal Cases, Mental Health & Experts Manual, 8th Edition, Chapter 6, pp. 6-2, 6-3 (Kentucky Department of Public Advocacy, 2005).

Mr. Stetler offered a similar insight.

[Doc. 264, p. 44 lines 13-25; p. 45 lines 1-21].

Mr. Skaggs' failure to recognize the fact he and the trial team were probing very sensitive, emotionally charged subjects significantly impeded the mitigation investigation, preparation and presentation. Mr. Skaggs and the trial team failed to appreciate the fact natural barriers to discussing family issues might explain Petitioner's reticence in discussing his family life. Ms. Moree testified how Petitioner, during her first meeting with him, stopped cooperating with her, which she readily admitted was her fault.

[Doc. 262, p. 244 lines 10-25; p. 245 lines 1-23]. Mr. Neubauer attempted to engage Petitioner in discussion of his family, however, his efforts were as well not successful. "He just . . . never wanted to talk to about it. It just, it seemed like something unpleasant to him that he just didn't want to talk about." [Doc. 262, p. 164 lines 9-12].

Mr. Skaggs and the trial team also ignored the fact they were actually encountering those barriers with specific potential mitigation witnesses. Ms. Moree advised Mr. Skaggs in a memo Petitioner's sister, Sharon, "is a police dispatcher and although she told me she would like to be helpful, she is concerned that her neighbors and friends not know about her relationship to Dale because of her standing in the community." [Exhibit 253-59, p. 1 ¶ 2]. Ms. Moree, in another memo describing her interview with Petitioner's Aunt Marilu O'Malley, cautioned Mr. Skaggs "Marilu would like to testify before the other witnesses are allowed in the courtroom, because of the family dynamics. She would feel better about her testimony if it were not in front of the other family members." [Exhibit 213-47, p. 2].

The mitigation presentation by Mr. Skaggs and the trial team, as related by both Mr. Neubauer and Mr. Skaggs, did not turn out as expected. Mr. Neubauer testified to say the case "tanked" was "an understatement." It "completely tanked." [Doc. 262, p. 168 lines 24-25; p. 169 lines 1-4]. Mr. Skaggs stated "the abuse thing was a complete dud." The testimony of two family mitigation witnesses "was different from what they had told you before." [Doc, 262, p. 100 lines 16-20]. And as confirmed by Mr. Neubauer "we didn't plan on that, and no, I don't think there was a backup plan." [Doc. 262, p. 169 lines 5-8]. The shallow mitigation investigation was clearly a factor contributing to the implosion of the mitigation presentation which left Mr. Skaggs and the trial team without an alternative and reliable means to establish a pattern of childhood maltreatment as a mitigation theme.

The telephone contact by Ms. Moree of Richard Eaton, followed by a letter from Mr. Skaggs is a further example of the substandard approach used by the trial team to contact mitigation witnesses, and its resultant effect.

Do you know who Priscilla Moree is?

[Doc. 266, p. 208 lines12-25;p. 209 lines 1-25; p. 210 lines 1-25;p. 211 lines 1-3; See also, Doc. 68-10, p. 1].

Any attempt to interview a family member over the telephone about the subjects which must be broached in the investigation of a capital case invites failure.

The experience of Petitioner's former wife, Melody Cline, in her five-minute interview in Mr. Skaggs' office is also revealing.

[Doc. 266, p. 134 lines 23-25; p. 135 lines 1-16]. Mrs. Cline, when interviewed more thoroughly, and in a less hurried manner, was able to provide helpful and insightful information on many different mitigation subjects. She helped establish Petitioner's emotional state and stressors near the time of the homicide, and provided important information and investigative leads regarding Petitioner's family mental health history covering several generations, including their children. [Doc. 266, pp. 112-122].

Ed Eaton, Petitioner's son, was also contacted by the trial team, and had an experience similar to Richard Eaton's.

[Exhibit 237, p. 4].

The performance of Mr. Skaggs and the trial team was, as observed by Mr. Stetler, based on the number of witnesses who were in fact interview either by phone or in person [Exhibit 322], narrow and limited.

[Doc. 264, p. 75 lines 13-25; p. 76 lines 1-3].

The mitigation investigation by Mr. Skaggs and the trial team resulted in only a "rudimentary knowledge . . . from a narrow set of sources," and as a result was "fell short of the standards for capital defense work," and was therefore deficient as measured against the ABA Guidelines.

Wiggins v. Smith, 539 U.S. at 524.

The trial team clearly did not adequately perform a thorough mitigation investigation.

Littlejohn v. Trammell, 704 F.3d at 859, 860(emphasis added).

Mr. Stetler and Mr. Burr offered similar opinions.

[Doc. 264, p. 154 lines 2-16 (Russell Stetler)].

[Doc. 266, p. 77 lines 14-23 (Richard Burr)].

ABA Guideline 10.11

An additional ABA Guideline to consider when analyzing the performance of Petitioner's trial team mandates discussions by counsel with the defendant concerning the substance and purpose of the mitigation evidence to be presented during the trial penalty phase, and how to strengthen such presentation. The Guideline indicates counsel should consider witnesses familiar with defendant's entire life, from conception to sentencing, and use expert witnesses and supporting documentation to present medical, psychological, sociological, cultural, and other insights with regard to a defendant's mental and emotional state and life history which would help to explain or lessen defendant's culpability for the underlying offense. [ABA Guideline, 10.11, p. 104].

The Commentary to Guideline 10.11 indicates "areas of mitigation are extremely broad and encompass any evidence that tends to lessen the defendant's moral culpability for the offense or otherwise supports a sentence less than death." [ABA Guideline, 10.11, p. 107]. Counsel should thus construct a persuasive narrative outlining a defendant's extended, multigenerational history by presentation of evidence of defendant's complete social history from before conception to the present. [ABA Guideline, 10.11, pp. 107, 108].

Petitioner's trial team failed to fulfill their responsibility under this Guideline, primarily based on a chronology approved by Mr. Skaggs and presented by Dr. Gummow which was deficient and incorrect; their failure to provide Dr. Ash with an adequate and reliable life history; and their failure to offer evidence of Petitioner's remorse.

Incorrect and Deficient Chronology

Dr. Linda Gummow is a neuropsychologist who administered a number of neuropsychological tests on Petitioner. [Doc. 85-11, pp. 6, 11]. Her testimony at Petitioner's state court trial enumerated a number of stressors in his life at the time of the homicide, which included the suicide of his brother, Daryl. She utilized a chronology of stressors on a PowerPoint slide, which erroneously placed Daryl Eaton's suicide prior to the homicide of Ms. Kimmell. Mr. Skaggs had reviewed and approved the PowerPoint slide, and acknowledged it was incorrect.

[Doc. 85, p. 9 lines 14-25].

[Doc. 262, p. 50 lines 9-16].

This was no small mistake by Mr. Skaggs, particularly in light of the fact he represented to the trial court jury the chronology had been well-researched.

[Doc. 85-11, p. 13 lines 19-25; p. 14 lines 1-15]. Mr. Skaggs then asked Dr. Gummow to tell the jury "what this chronology entails," and she described it as "marker events in Mr. Eaton's life." [Doc. 85-11, p. 16 lines 5, 6]. Dr. Gummow reviewed in summary form various dates and events, until she got to 1987, the year prior to the homicide.

[Doc. 85-11, p. 25 lines 4-16].

The prosecuting attorney took advantage of the inaccurate chronology.

[Doc. 85-12, p. 32 lines 2-25; p. 33 lines 1-14].

[Doc. 85-12, p. 46 lines 3-25; p. 47 lines 1-8]. The prosecuting attorney addressed this issue and the credibility of Dr. Gummow in his closing argument.

[Doc. 85-13, p. 26 lines 9-15].

Mr. Skaggs has previously admitted "Dr. Gummow prepared that chronology and gave it to me, . . . But I just flat didn't catch that. I knew — I knew that he died after the homicide, and I just didn't catch it, frankly." [Doc. 86-5, p. 9 lines 18-25]. He then, however, speculated maybe his client was the source of the error. "I think that came from Mr. Eaton himself, from what he had told Dr. Gummow." [Doc. 86-5, p. 9 line 25; p. line 1]. His speculation is clearly inaccurate. Dr. Gummow testified she did not get the date from Petitioner. [Doc. 85-12, p. 32 lines 24-25; p. 33, lines 1-7].

Mr. Stetler explained a chronology is an important mitigation tool, however, the one compiled by the trial team was deficient, in part because it was incomplete, but also because events were not connected with a source. He examined the pretrial chronology, Exhibit 259, and observed "there are no sources. It's missing that crucial third column," which can create problems. [Doc. 264, p. 103 lines 17-25; p. 104 lines 1-5]. The chronology developed by the trial team was "short and incomplete and totally unsourced." [Doc. 264, p. 105 lines 14-18]. Mr. Stetler stated, in his experience, the mistake with regard to the date of the suicide of Petitioner's brother "makes the expert look incompetent. Very damaging. It looks sloppy. It makes you look like the facts that you're relying on are just not accurate." [Doc. 264, p. 105 lines 8-14].

The lack of a detailed and thorough investigation in Petitioner's mental health also made Dr. Gummow's diagnoses of depression and brain damage easily susceptible to cross-examination challenging both diagnoses.

[Doc. 85-12, p. 37 lines 21-25; p. 38 lines 1-6].

A competent, thorough investigation and preparation of a psychosocial history would arguably have negated the challenges to the testimony by Dr. Gummow. Mr. Burr offered his insight into the problem.

[Doc. 266, p. 76 lines 11-25; p. 77 lines 1-7].

Failure to Provide Dr. Ash With an Adequate and Reliable History

The inadequate investigation of Petitioner's background and life history also impacted the testimony of Dr. Ash, a defense mitigation witness at Petitioner's trial. [Doc. 85-8, p. 8 et seq.]20 He testified Petitioner had a life-long history of depression [Doc. 85-8, p. 25 lines 6-11]. He related the conditions in which Petitioner was living in March and April, 1988, which aggravated his depression.[Doc. 85-8, p. 26 lines 19-25; p. 27 lines 1-4].

[Doc. 85-8, p. 25 lines 17-25; p. 26 lines 1-5].

Dr. Ash described an additional "stressor" which he believed, at the time of trial, occurred on the night Petitioner encountered Ms. Kimmell. Petitioner's ex-wife, Melody Cline, told him, in a phone call, he could not have their children over the Easter holiday, and she laughed when she told him he was not their biological father. [Doc. 85-8, p. 29 lines 18-25; p. 30 lines 1-17].

Dr. Ash, on cross-examination, admitted, however, he had not talked with Melody Cline to confirm Petitioner's statement or history regarding the phone call which Dr. Ash viewed as "triggering" event for Petitioner's emotional crisis. [Doc. 85-8, p. 55 lines 1-6; Doc. 85-9, p. 21 lines 5-10]. The inadequate chronology was also an issue on cross-examination.

[Doc. 85-9, p. 25 lines 13-25; p. 26 lines 1-3].

The failure by the trial team to perform an in-depth mitigation investigation allowed the prosecuting attorney to challenge Dr. Ash's credibility in a manner similar to his challenge of Dr. Gummow. He argued to the jury, "[t]here is no way that that call could have been made around the time that Lisa was first taken. He was very insistent on that, though. That was the critical fact, is that phone call." [Doc. 85-13, p. 32 lines 15-18]. He stated "Dr. Ash is quite candid with you he didn't have all of the information. He has one source of information, Dale Eaton, who has given multiple stories now, who is a convicted felon, who has been through the mental health system innumerable times; and he's supposed to be our source of information." [Doc. 85-13, p. 31 lines 3-8].

The inadequate mitigation investigation by the trial team also exposed Dr. Ash to a challenge on cross-examination concerning his observation Petitioner was socially isolated and withdrawn at the time of the homicide. It is fairly clear the trial team did not provide Petitioner's experts with a number of significant mitigation documents, in particular the journal of Mrs. Buchta. This failure left Dr. Ash at a distinct disadvantage during cross-examination.

[Doc. 85-9, p. 13 lines 5-25; p. 14 lines 1-25; p. 15 lines 1-24].

Dr. Ash expected Mr. Skaggs knew he would talk about Petitioner's isolation from other people around the time of the homicide. [Doc. 267, p. 70 lines 24-25; p. 71 line 1]. He has since reviewed Mrs. Buchta's journal, and notes there were eight contacts between Petitioner and the Buchtas in the seven or eight months from September, 1987, when Petitioner moved the bus onto the Moneta property, and the time of the homicide at the end of March, 1988. [Doc. 267, p. 71 lines 6-12]. He indicated this limited minimal contact did not affect his opinion with regard to Petitioner's isolation. [Doc. 267, p. 71 lines 13-15].

Dr. Ash also found Petitioner's extreme poverty relevant to his mental and emotional condition at the time of the homicide. The lack of an adequate life history investigation by the trial team again left Dr. Ash vulnerable to a cross-examination.

[Doc. 85-9, p. 15 line 25; p. 16 lines 1-25; p. 17 lines 1-24].

Dr. Ash, because of the inadequate life history investigation, was also forced to admit Petitioner was capable of making choices about what he was doing with respect to the crimes involving Ms. Kimmell.

[Doc. 85-9, p. 5 lines 17-25; p. 6 lines 1-6].

Mr. Burr points out Dr. Ash was vulnerable based on the fact the trial team did not conduct a thorough psychosocial history. Such a history would have enabled Dr. Ash to respond effectively to the cross-examination. He could have, with adequate preparation, explained how Petitioner's choices were significantly undermined by his impairments.

[Doc. 85-9, p. 6 lines 7-25; p. 7 lines 1-8].

So any, any time an expert relies on that person as the primary source of information, the question of malingering naturally arises because malingering is exaggerating symptoms in order to gain something, and here in criminal proceedings we know what you're trying to gain. So there's no way for an expert to refute malingering or even know whether there is malingering unless he or she has a much larger history. * * * That's what was happening here with Dr. Ash.

[Doc. 266, p. 72 lines 10-25; p. 73 lines 1-3].

Dr. Ash, prior to his testimony before this Court, was provided Petitioner's life-long Social Security Administration record of earnings. [Exhibit 267].

Exhibit 328, Slide 24, compares Petitioner's SSA earnings and the U.S.D.A. poverty level year-by-year. Dr. Ash explained the significance of this data to his findings.

[Doc. 267, p. 107 lines 21-25]. The income low points correspond with both the homicide of Ms. Kimmell, and the rather strange assaultive encounter with Scott and Shannon Breeden. This information "would have been of great help" in explaining to the jury the depth of Petitioner's depression. [Doc. 267, p. 108 lines 1-24].

Evidence of Petitioner's Remorse

Dr. Ash, at the request of Mr. Skaggs, interviewed Petitioner concerning the circumstances of the homicide of Ms. Kimmell. Dr. Ash, in his May 17, 2003, report to Mr. Skaggs, included this description of Petitioner as he described the homicide of Ms. Kimmell, and the death of the man he killed in prison.

Deficient Performance — Conclusion

The United States Supreme Court, in 2011, in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770 (2011), reiterated its philosophy on deficient performance . . . first set out in Strickland v. Washington.

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 787, 788, 789, 790, 791. See also, United States v. Rushin, 642 F.3d 1299, 1306, 1307, 1308 (10th Cir. 2011).

The Court has also offered this explanation of the "deficient performance" . . . and its relationship to the AEDPA:

Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739-740 (2011)(quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. at 788).

The Supreme Court has further concluded, the American Bar Association guidelines in effect at the time of the representation identify the appropriate "prevailing norms" which reasonably diligent attorneys would follow. The first prong—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community: "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., at 688, 104 S.Ct. 2052. We long have recognized that "[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable. . . ." Ibid.;

Petitioner's state court trial resulted in a sentence of death imposed on June 3, 2004. Eaton v. State, 192 P.3d at 49. The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Revised Edition, February, 2003, thus represent the "guides to determining what is reasonable" in considering the deficient performance aspect of the ineffective assistance of counsel allegations. Bobby v. Van Hook, 558 U.S. at 6.

The representation of Petitioner by his trial team, and in particular Mr. Skaggs, fell well below the applicable "prevailing professional norms" as outlined by the American Bar Association Guidelines. Mr. Skaggs, as lead counsel, failed to assemble an acceptable trial team. The team, of which he was the leader, did not include two qualified attorneys, nor did it include a qualified mitigation specialist. It also lacked at least one member qualified to detect the presence of mental or psychological disorders. [ABA Guideline 4.1].

Mr. Skaggs also failed to fulfill his responsibility of demanding and acquiring "on behalf of the client all resources necessary to provide high quality legal representation," and make an adequate record for post-conviction review if such resources are not provided. [ABA Guideline, 10.4].

Mr. Skaggs and the trial team further failed to "make every appropriate effort to establish a relationship of trust" with a defendant, including "a continuing interactive dialogue" concerning all materials which might well impact the defendant's case. [ABA Guideline 10.5].

Mr. Skaggs, and the trial team, probably most significantly, failed to pursue, in preparation for the penalty phase of his trial, an "extensive and generally unparalleled investigation into personal and family history," including medical records, family and social history, educational history, military service, employment and training history, as well as prior juvenile and adult correctional experiences. [ABA Guideline, 10.7]. This failure was particularly significant concerning Petitioner's mental health, with regard to which the team "acquired only rudimentary knowledge of his history from a narrow set of sources." Wiggins v. Smith, 539 U.S. at 524.

Finally, Petitioner's trial team was expected to construct a persuasive narrative outlining Petitioner's extended, multigenerational history by presentation of evidence of defendant's's complete social history from before conception to the present. [ABA Guideline, 10.11]. It failed to fulfill their responsibility under this Guideline, primarily based on a chronology approved by Mr. Skaggs and presented by Dr. Gummow which was deficient and incorrect; their failure to provide Dr. Ash with an adequate and reliable life history; and the failure to offer evidence of Petitioner's remorse.

It is further apparent Petitioner's trial team did not actually function as a "team," which is the accepted standard of performance in capital cases. [Doc. 264, p. 77 lines 1-4]. The time records kept by Ms. Moree for her billings reflect she, Mr. Skaggs and Mr. Neubauer met together as a group for one hour (.183%) of the 544.6 hours she billed for her work as part of Petitioner's trial team. [Exhibit 328, p. 11]. Mr. Stetler testified "this picture tells me it was not really a team. It met once with all three people for an hour, but otherwise it was three people working relatively independently . . . with one another, all reporting back to Mr. Skaggs, but not really functioning collectively." [Doc. 264, p. 79 lines 24, 25; p. 80 lines 1-3]. The trial team was so disconnected Mr. Neubauer discovered for first the time only the night before his testimony to this Court Ms. Moree had visited Petitioner only twice in the Natrona County jail. [Doc. 262, p. 198 lines 18-25; p. 199 lines 1,2].

One can surmise, from the testimony presented to this Court, two possible underlying reasons for the failure by Mr. Skaggs and the trial team to adhere to the then prevailing professional standards. The first is a concern with regard to reducing expenses. Mr. Skaggs professed to be a "frugal person" when "it comes to public money," even if it meant economizing on an indigent defense. [Doc. 261, pp. 64, 65]. He felt keeping costs down was always a consideration, [Doc. 261, p. 80], and economizing was important, [Doc. 261, p. 81], a philosophy which impacted, in particular, the development of mitigation evidence. [Doc. 65-2, p. 2; Doc. 261, 65 lines 12-25, p. 66 lines 1-12; p. 80; p. 89 lines 11-22; p. 197 lines 9-15; Doc. 262, p. 233 lines 19-25, p. 234 lines 1-13, 19-23; pp. 240, 241; Doc. 267, p. 13 lines 17-22]. The second reason was a desire to proceed to trial as quickly as possible.

[Doc. 261, p. 124 lines 22-25; p. 125 lines 1-12][emphasis added].

[Doc. 86-4, p. 12 lines 11-21][emphasis added].

PREJUDICE

The performance of Petitioner's trial counsel was constitutionally deficient as it fell below "an objective standard of reasonableness," even recognizing the fact such performance is entitled to the strong presumption it was within the wide range of reasonable professional assistance. Counsels' representation amounted to "incompetence under prevailing professional norms.'" Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 787-791. See also, United States v. Rushin, 642 F.3d at 1306-1308.

The question now for consideration is whether the deficient performance by Petitioner's trial counsel was prejudicial. Is there "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." Strickland v. Washington, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 787-788. See also, United States v. Rushin, 642 F.3d at 1309-1310.

There are, as previously noted, no ABA Guidelines for determining whether a deficient performance by either trial counsel or appellate counsel resulted in actual prejudice. The United States Supreme Court has, however, outlined the proper prejudice inquiry for evaluating a claim of ineffective assistance of counsel in the context of a penalty phase mitigation investigation.

A court, when considering the question of prejudice in the context of a capital sentence, must "reweigh the evidence of aggravation against the totality of available mitigating evidence." Wiggins v. Smith, 539 U.S. at 534. See also, Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 3266-3267 (2010); Porter v. McCollum, 558 U.S. 30, 41 (2009; Rompilla v. Beard, 545 U.S. 374, 393; Littlejohn v. Trammell, 704 F.3d at 864 (quoting Sears v. Upton, 561 U.S. 945, 130 S.Ct. at 3266). The critical question is thus whether "there is a reasonable probability that at least one juror would have struck a different balance" in considering the evidence presented for and against a death sentence. Wiggins v. Smith, 539 U.S. at 537.

The penalty phase of Petitioner's trial commenced immediately after return of a jury verdict of guilty of all charges. [Doc. 85-6, pp. 11, 12]. The jury was then advised all evidence admitted during the prior guilt phase of trial was also admitted for purposes of sentencing. [Doc. 85-7, pp. 53, 54].

The prosecution, in the penalty phase, relied upon three statutory aggravating factors:

The prosecution, to support the third aggravating circumstance of prior violent convictions, introduced evidence of Petitioner's aggravated assault conviction based on his September 12, 1997, encounter with Scott and Shannon Breeden. It presented, in addition to the conviction record, the testimony of Shannon Breeden, the testimony of the investigating deputy sheriff, and the testimony of the prosecuting attorney to confirm the basic facts set forth in the Information, Judgment and Sentence. [Doc. 85-7, pp. 54-60; Doc. 85-8, pp. 1-5]. The prosecution was precluded from presenting more detail of the crime. [Doc. 85-5, pp. 40-45].

Petitioner's trial counsel attempted to establish four mitigating circumstances:

Mr. Skaggs, in his opening statement of the penalty phase of Petitioner's trial, set out the mitigation themes the defense hoped to establish. He told the jury one major theme would be the abuse which Petitioner suffered as a child. "The evidence will show that Dale Eaton was abused virtually from the time he was born." [Doc. 85-7, p. 43 lines 6, 7].The next theme was mental health. "We're going to be talking about a diagnosis, basically, of depression." [Doc. 85-7, p. 47 lines 19, 20]. The final theme would include evidence from lay witnesses who "have known him for a long time, like the Schifferns, like the Widmers. And they have known him. They like Dale." [Doc. 85-7, p. 52 lines 11-5]. Mr. Skaggs, in his penalty phase closing argument, added a fourth theme, i.e., Petitioner was remorseful for his crime. [Doc. 85-13, pp. 46, 47].

Dr. Ash testified during the penalty phase of Petitioner's trial, and described Petitioner's social and financial condition in March and April, 1988. He concluded Petitioner suffered from chronic, life-long depression and a related brain dysfunction. [Doc. 85-8, pp. 22, 23, 24]. He further opined Petitioner's depression was compounded by situational stressors in his life around the time of the murder, including the break-up of his family and his poverty. Dr. Ash spoke of Petitioner's recent confrontation with his ex-wife concerning visitation with his children over Easter, and her statement to him "these aren't even your kids. And she laughed. And then she let him know that she was with another man. So it was a particularly stressful area." [Doc. 85-8, pp. 25-29]. Petitioner told Dr. Ash this conversation with his ex-wife was the night he met Ms. Kimmell. [Doc. 85-8, pp. 29, 30].

Dr. Ash, based on Petitioner's depression, brain dysfunction and life stressors, offered his opinion Petitioner had acted under "extreme duress" at time of crime. [Doc. 85-8, p. 52].

The cross-examination by the prosecution was aggressive. [Doc. 85-8, pp. 54-60; Doc. 85-9, pp. 1-33]. The final cross-examination question challenged Dr. Ash's opinions based on a deficiency of the background information provided to him.

[Doc. 85-9, p. 33 lines 15-17].

The presentation of lay witness testimony by Petitioner's trial team was, as noted by Judge Park, sparse. [Exhibit 32, p. 10 ¶ 12]. Petitioner's maternal Uncle, Loren Ferrins, testified Petitioner's father, Merle Eaton, abused Petitioner's mother Marian, and Petitioner's relationship with his father, Merle, was not good. Mr. Ferrins and his first wife wanted to adopt Petitioner, however, they never pursued the idea. He also testified Petitioner's father "picked on" Petitioner, although he admitted he didn't know what that really entailed. [Doc. 85-9, pp. 42-50]. Betty Ferrins testified she has known Petitioner since she had married Loren. She likes Petitioner, and does not want him to die "[b]ecause I don't think he was in his right mind when he did this." [Doc. 85-9, p. 55 line 25; p. 56 line 1].

Marilu O'Malley, Petitioner's maternal aunt, testified Merle was abusive, and Petitioner was singled out for the worst of it. She admitted, however, she did not observe abuse on a lot of occasions, and although she felt sorry for Petitioner, she never looked into adopting him. [Doc. 85-9, pp. 57-60. Petitioner's mother, Marian, "didn't seem to dare show too much affection or stand up for the kids at all; but she loved them, because she expressed her concern for them all the time to my parents. And . . . I knew she expressed a lot of concern about the kids and about [Dale] Eaton specifically sometimes." [Doc. 85-10, p. 2 lines 17-25].

Virginia and Lodine Schifferns lived in Glenrock, Wyoming. Mr. Schifferns testified, "We was very good friends. Well, we are very good friends."[Doc. 85-10, p. 15 lines 16-19]. He also testified, "I still like him and everything. I just — like my wife, I just can't believe, like, anything like that could happen to him." [Doc. 85-10, p. 16 lines 2-8].

The trial team also called Shirley and Floyd Widmer who lived in Waltman, Wyoming. Shirley had known Petitioner for "quite a few years." The Widmers came to know Petitioner because "he used to come in and eat there, eat at our place." [Doc. 85-18, p. 18 lines 10-22]. She always gotten along "real good" with Petitioner, and at one point he lived behind their place in a motor home. She "really got to know him when Menters were paving the highway over there." [Doc. 85-10, p. 19 lines 9-25; p. 20 lines 1-5].

The mitigation presentation of Petitioner's family and friends, including cross-examination by the prosecution, took less than one hour. [Doc. 85-9, p. 34; Doc. 85-10, p. 28].21

Linda Gummow, Ph.D. testified on behalf of Petitioner during the penalty phase of his trial. She had met with Petitioner and had administered neuropsychological test to him. [Doc. 85-11, pp. 11, 29-33, 44, 59]. She testified concerning Petitioner's history of altercations at work,[Doc. 85-11, p. 22], and his exposure to heavy metals through his work as a welder. [Doc. 85-11, p. 48]. She noted the Wyoming State Hospital in 1997 "found elevated zinc, and they found elevated arsenic." [Doc. 85-12, p. 35]. She diagnosed Petitioner as suffering from Depressive Disorder NOS (Not Otherwise Specified). [Doc. 85-11, p. 39 lines 11-14]. Dr. Gummow, in addition to depression, diagnosed Petitioner as having "[m]oderate brain damage,"[Doc. 85-12, pp. 8, 9], which "substantially impairs his ability to conform his conduct to the requirements of the law." [Doc. 85-12, p.13 lines 17-19]. Dr. Gummow also testified Petitioner was under extreme duress at the time of the crime. [Doc. 85-12, pp. 14, 15]. Dr. Gummow was aggressively cross-examined by the prosecution with regard to the chronology approved by Mr. Skaggs, which erroneously placed the suicide of Daryl Eaton before the homicide of Ms. Kimmell. [Doc. 85-12, pp. 46, 47].

The final mitigation witness called to testify for Petitioner during the penalty phase of his trial was Natrona County Sheriff Deputy Lynn Cohee. She testified Petitioner's sister, Sharon Slagowski, had told her their father had broken a beer bottle over Petitioner's head. [Doc. 85-12, p. 55 lines 2-6; Exhibit 225-2, p. 5]. Mr. Skaggs, although this conversation had been tape-recorded, used a partial transcript of the conversation in an attempt to prevent disclosure of some negative things Ms. Slagowski said about Petitioner. [Doc. 262, p. 95 line 6-25; p. 96 lines 1-7]. The negative information on the tape was nevertheless elicited by the prosecution cross-examination. Ms. Slagowski had also said Petitioner once became upset and physically attacked her.[Doc. 85-12, p. 56 lines 13-24; Exhibit 225-2, p. 6].

The jury, after deliberating approximately four hours, unanimously found the aggravating circumstances presented by the prosecution, unanimously rejected each and every mitigating circumstance submitted by the defense, and assessed the death penalty. [Doc. 85-14, pp. 11, 15, 19, 20; Exhibit 1].22

The trial court judge reported on August 19, 2004, "There was strong evidence of aggravating circumstances and sparse evidence of mitigating factors." [Exhibit 32, p. 10 ¶ 12]. Mr. Skaggs agreed it was fair to say his case "blew up" on him. [Doc. 261, p. 167. Mr. Neubauer agreed. To say the case "essentially tanked" is "an understatement," and there was no "backup plan or strategy for that occurrence." [Doc. 262, p. 168 lines 24, 25; p. 169 lines 1-8]. Hrg. Tr. Vol. 2, p. 398].

The depth and scope of the mitigation presentation on behalf of Petitioner would most assuredly have been much different had Mr. Skaggs and the trial team performed up to prevailing professional standards.

The mitigation evidence which the trial team should have developed and presented during the penalty phase of Petitioner's trial is best considered within the same thematic outline which Mr. Skaggs attempted to develop at trial, i.e., abuse, mental impairment, remorse, and likeability. [Doc. 85-7, p. 43 lines 6, 7; Doc. 85-7, p. 47 lines 19, 20; Doc. 85-7, p. 52 lines 11-5; Doc. 85-13, pp. 46, 47]. This somewhat compartmentalized approach to examining the mitigation evidence available to the trial team does not negate the fact those themes are intricately interrelated. The violence and abuse Petitioner experienced during his childhood very likely had a profound and permanent effect on his intellectual and emotional development. His psychiatric disabilities permeate every other part of his life.

Abuse

Mr. Skaggs, when asked if the physical maltreatment and abuse of Petitioner by his father was a significant element of the penalty phase defense, went one step further, stating, "It was, in my belief, the key to the mitigation case." [Doc. 261, p. 166 lines 23-25; p. 167 line 1]. He explained, "that was one issue that I was focused on. It was a safe issue, and I would have liked to have developed it, yes." [Doc. 261, p. 214 lines 3-5]. He "tried to introduce some evidence of child abuse in the mitigation phase," but "[w]e didn't have much of it." [Doc. 86-5, p. 3 lines 12-18]. What little he had "didn't come out nearly as well in the actual testimony." [Doc. 86-5, p. 8 lines 8-11]. Mr. Skaggs, because he had relied on a narrow set of witnesses, had no additional evidence to present. "So consequently, I decided just to live with — with their testimony. But it — it wasn't nearly as good as what I had been led to believe it would be by my personal conversations with them." [Doc. 86-8, p. 42 lines 8-12].

The trial team, notwithstanding the fact its mitigation investigation was basically narrow and shallow, did identify witnesses who knew Petitioner had suffered physical maltreatment and abuse by his father. Mr. Skaggs unfortunately, however, deemed the interviews with Loren Ferrins and Marilu O'Malley sufficient to establish the abuse theme during the trial penalty phase. Mr. Ferrins and Ms. O'Malley were not emotionally able to provide in a public courtroom their mitigation evidence with an intensity equal to their prior discussions with the trial team. Mr. Skaggs blamed their lack of intensity in the courtroom on the fact Petitioners sister, Judy Mason, who had been, according to Mr. Skaggs, disrupting the mitigation investigation, was present in the courtroom when both Mr. Ferrins and Ms. O'Malley testified.

[Doc. 261, p. 168 lines 11-25; p. 169 lines 1-9].

Ms. Mason herself, however, described her father's violence against her brother, Petitioner, which Ms. Moree related in a memo to Mr. Skaggs.

[Exhibit 253-59, p. 1]. Ms. Mason's comments corroborate Petitioner's statement in the Sweetwater County presentence investigation.

[Doc. 267, p. 75 lines 11-17; Exhibit 171-52, p. 4]. Dr. Ash found it "very poignant that, as vulnerable and fragile as she was with her mental illness, that she tried to step in and protect him. It also says a lot about Dale, too, because he has always held himself responsible for his mother developing psychosis." [Doc. 267, p. 76 lines 6-10].

The memo by Ms. Moree, or even her testimony relating Ms. Mason's disclosures, would arguably have been admissible under Wyoming law,23 and Dr. Ash could have testified about having the same information from Petitioner and documented by other sources. Mr. Skaggs nonetheless chose not to use the statements by Ms. Mason as independent proof Petitioner had suffered abuse by his father.

Ms. O'Malley and Mr. Ferrins have died since testifying at Petitioner's trial.24 Ms. O'Malley, however, provided a declaration behalf of Petitioner, her nephew, before her death in January, 2013.

[Exhibit 39, pp. 1-3]. Ms. O'Malley's testimony would have been strong mitigation evidence to confirm the abuse suffered by Petitioner.

Mr. Skaggs admitted eyewitnesses to the abuse Petitioner suffered as a child would be very significant to him, yet no one from the trial team apparently ever interviewed Loren Ferrins' daughters, Sandra Andrae or Lorena Altman, who played with their cousin, Petitioner, when they were children. [Doc. 261, p. 214]. Lorena indicated, "We were like shadows, . . . there was the one following the other somewhere."

[Doc. 268, p. 70 lines 27-, 11-24].

Lorena's twin sister, Sandra Andrae, also recalls:

[Doc. 286, p. 107 lines 8-17].

Ms. Andrae could have given vivid mitigation testimony of two instances of the extreme violence by Merle, his father, toward Petitioner. The first involved an incident with a child's bow and arrow set their grandfather, Elmer Ferrins, bought Petitioner as a young child. Ms. Andrae was hit in the back by an arrow shot by Petitioner, which prompted a severe beating by Merle.

[Doc. 268, p. 106 lines 15-25; p. 107 lines 1-6].

[Doc. 268, p. 108 lines 7-12]. She recalled another violent episode at a family picnic when Richard (Petitioner's brother) was just a baby, so Petitioner would have been a little over ten years old. Merle told Petitioner to get him another beer, and Petitioner was slow to comply.

[Doc. 268, p. 109 lines 4-25; p. 110 lines 1-11].

This most likely is not the same incident described by Petitioner's sister, Sharon Slagowski, to Deputy Cohee, in her tape-recorded phone call. She told the police, "I remember when [Merle] used to hit [Dale] with a belt and hit him with his fist and I remember one time when I don't remember how old I was he broke a beer bottle over his head." [Exhibit 225-2, p. 4]. Ms. Slagowski stated "we had to be real young" when this happened, "I'm thinking early grade school." [[Exhibit 225-2, p. 4]. Whether there were one or two assaults with a beer bottle is not the relevant issue, as explained by Dr. George Woods, a psychiatrist.

[Doc. 269, p. 89 lines 1-13].

The documentary record which the trial team had, or could have easily obtained, contains numerous other indications of the violence Petitioner suffered as a child. The nightmares which troubled him, according to Mr. Stetler, are consistent with a trauma history, and could be corroborative of maltreatment. [Doc. 264, p. 138 lines 3-19; p. 143 lines 7-12]. The record of Petitioner's hospitalization for psychiatric examination in 1961 contained additional indications of his maltreatment in the home. A physician wrote, "He expressed considerable unhappiness with his home situation and said `I hope I get sentenced to a reform school so I won't have to go home.'" [Doc. 264, p. 143 line 22-25; p. 144 lines 1-4; Exhibit 169-4, p. 11]. Mr. Stetler pointed out hoping to go the reform school rather than home — "that's a pretty extreme statement." [Doc. 264, p. 134 lines 1-6].

Dr. Woods also found passages in Mrs. Eaton's psychiatric hospital records, which the trial team could easily have obtained, which contain corroborative evidence of the violence in the Eaton home. Dr. Woods testified these documentary clues are "very relevant" to the issue of trauma in Petitioner's life and family. They indicate "this is a family that lived with significant trauma . . . Merle Eaton was described as a heavy alcoholic, a man that was prone to physical abuse, and it seems as though Dale Eaton was one of his prime targets." [Doc. 269, p. 66 lines 6-10].

The issues of abuse and mental health are not separate and distinct. They are intricately related. Violence against a child, as Dr. Woods explained, "can have a direct impact" on the child's growth and development, including neurologically.

[Doc. 269, p. 91 lines 5-25; p. 92 lines 1-9].

Dr. Ash also found the evidence of abuse presented to this Court, but not at Petitioner's trial, to be probative of many issues, including Petitioner's strained relationship with Mr. Skaggs.

[Doc. 267, p. 60 lines 16-25; p. 61 lines 1-13].

Another significant chapter in Petitioner's life, and another dimension to his childhood trauma, is the treatment he received from the bullies in Meeker, Colorado, in his early teens. Brian Conrado, who could have been identified as a potential mitigation witness if the trial team had contacted his friend, Phyllis Lake, explained why Petitioner was singled out for abuse and ridicule by his peers. Meeker was a very homogenous community, whose long-time inhabitants could trace their roots to the English settlers, so that "if you weren't of the right pedigree, so to speak, it was rough." [Doc. 268, p. 39 lines 13, 14]. It was even worse for Petitioner, who stood out because he was overweight, poor and not very smart. The other children nicknamed him "Always Eating" because he was overweight and was often seen eating candy bars. [Doc. 268, p. 42 lines 19-25; p. 43 line 1]. The other children belittled Dale because he wasn't very smart. [Doc. 268, p. 43 lines 8-15]. Mr. Conrado remembers Petitioner working very hard mowing lawns and helping the janitor after school to earn money. [Doc. 268, p. 44, 45]. Sometimes the older kids would wait for Petitioner and take his money.

[Doc. 268, p. 45 lines 22-25; p. 46 lines 1-8]. Mr. Conrado remembered Petitioner did not fight back as "he was outnumbered. These guys were high school kids." [Doc. 268, p. 46 lines 11-13]. Petitioner simply withdrew in the face of constant bullying. "[H]e didn't socialize . . . I can only imagine what went through his mind, but he didn't retaliate. I think about what could he do?" There were no adults who stood up for him, either. [Doc. 268, p. 46 lines 21-25; p. 47 lines 1-3].

Mr. Conrado remembers the only extracurricular activity in which Petitioner participated in Meeker was the 4-H Club electrical program. The children would car pool to the meetings at a ranch outside of town, and while they were waiting for their rides Petitioner would be "harassed and belittled" by the other children. The other kids, on one occasion, forcibly removed Petitioner's pants, and rubbed Canadian thistles over his genitals. [Doc. 268, p. 41 lines 15-25; p. 42 line 1].

Dr. Ash found the declaration by Mr. Conrado [Exhibit 68-5] provided some very significant history. The constant, severe bullying, and the one episode of "taking his clothes off and rubbing thistles on his genitals must have been really humiliating and frightening." [Doc. 267, p. 136 lines 5-9]. Dr. Ash testified this information "would have been helpful for mitigation. It would have been helpful in terms of, again, the overall understanding. There's so much posttraumatic stress disorder kind of symptoms in Dale's presentation, along with everything else." [Doc. 267, p. 136 lines 12-15]. Dr. Ash also found very probative and significant the testimony given by Sandra Andrae "that Merle was punching him to the head and body. This was when he was just a boy. That Dale fell to the ground, and his father drug him into the house and continued to beat him, and Dale cried for help, but nobody came." [Doc. 267, p. 137 lines 18-21]. Mr. Skaggs, prior to Petitioner's trial, had not provided Dr. Ash with any evidence of physical maltreatment which came anywhere close to the nature and quality of the abuse of which he had been subsequently informed. [Doc. 267, p. 137 lines 22-25]. This new evidence of the trauma endured by Petitioner is significant to Dr. Ash's psychiatric evaluation.

[Doc. 267, p. 138 lines 1-22].

Dr. Ash also found another symptom of PTSD, "hypervigilance," which is apparent throughout Petitioner's life history.

[Doc. 267, p. 138 line 25; p. 139 lines 1-14].

Dr. Ash recognized, prior to trial, he needed more data for his assessment of Petitioner, yet when he asked Mr. Skaggs, none was provided. Mr. Skaggs actually discouraged him from talking to other family members. [Doc. 267, p. 62 lines 12-25; p. 63 lines 1-14].

A social history, in Dr. Ash's field of expertise, is investigated and prepared by forensic social workers, or in the case of capital defendants, mitigation specialists. Psychiatrists spend most of their time talking with the patient and reviewing reports, while the forensic social worker or mitigation specialist "would be gathering . . . the collateral information from the family, from friends, from legal circumstances and so on." Dr. Ash, in Petitioner's case, had nothing available to him which was equivalent to the psychosocial history he was used to getting from a forensic social worker. [Doc. 267, p. 64 lines 20-25; p. 65 lines 1-15].

The impact of the deficient mitigation investigation into Petitioner's social history on the reliability of the findings by Dr. Ash was addressed by Mr. Burr, a capitol defense expert.

[Doc. 265, p. 138 line 25; p. 139 lines 1-14].

Mental impairment

There is a "critical interrelation between expert psychiatric assistance and minimally effective assistance of counsel." Blake v. Kemp, 758 F.2d 523, 531 (11th Cir. 1985) (quoting United States v. Edwards, 488 F.2d 1154, 1163 (5th Cir. 1974)). Dr. Ash, as previously discussed, explained psychiatrists are not investigators. They routinely depend on forensic social workers or mitigation specialists working for capital defense attorneys to provide a thorough and reliable bio-psychosocial history, which is critical to an accurate assessment. Dr. Ash did not received such an assessment from Petitioner's trial team prior to trial. [Doc. 267, p. 64 lines 20-25; p. 65 lines 1-15].

Richard Burr explained the danger of failing to provide a complete psychosocial history to a forensic mental health expert. It's "pretty simple — you know, the less complete your history is going in, the less accurate, reliable, and persuasive and meaningful the opinion is coming out. It's very, a very direct relationship." [Doc. 265, p. 139 lines 18-21]. He explained the reasons a thorough investigation conducted by a capital defense team with mental health knowledge and related interview skills is critical to a capital case.

[Doc. 265, p. 139 lines 22-25; p. 140 lines 1-25; p. 141 lines 1-7]. The process described by Mr. Burr is clearly not the process utilized by Petitioner's trial team.

A complete psychosocial history, once it is prepared and provided to the expert, allows them to develop a thorough and reliable assessment. Mr. Burr explained the psychosocial life history report is used by the expert

[Doc. 265, p. 180 lines 3-21].

The foregoing discussion with regard to the relationship between a lawyer's performance and an expert's findings clearly identifies the causal link between the trial team's deficient performance, and the incomplete mental health assessments and opinions presented to the trial court jury, through no fault of the conscientious experts who testified on behalf of Petitioner.

The expert assessments of Petitioner's mental condition were undermined by the trial team's substandard performance in two ways. First, as a result of the lack of a complete family history, the mental health experts who testified for Petitioner were logically and ethically unable to consider conditions known to have a genetic component, such as bipolar disorder. Second, because no one on the trial team had any real knowledge of Petitioner's mental health conditions and issues, they were unable to provide the mental health experts with a thorough personal history of Petitioner which should have included evidence of his delayed development and prominent symptoms of his mental and emotional impairments which were reasonably necessary to a reliable assessment. A discussion of the prejudice caused by the failure to conduct a thorough and competent mental health investigation of Petitioner's own symptoms of impairments and disabilities is thus appropriate.

Family History

The investigation of Petitioner's family history by his trial team discovered basically only two relevant pieces of information. One was the eleven-page admission and discharge summary from the Colorado State Hospital for Petitioner's mother, Marion Eaton. The second was the fact Petitioner's brother had committed suicide, although the date provided was incorrect. These two bits of family history information were the only evidence provided to Petitioner's mental health experts. The mental health experts did not know there was additional reliable and probative information available.

Petitioner, through his genetics, is heavily loaded for mental illness from both sides of the family. Dr. Woods, a neuropsychiatrist, indicated "family history is most important because we've come to understand that many, many not only medical diseases but psychiatric diseases are familial if not genetic." [Doc. 269, p. 29 lines 13-16]. He further explained how and why a family history is reasonably necessary to a thorough and reliable assessment. Symptoms are hereditary, and the symptoms Petitioner displays can be seen throughout his extended family.

[Doc. 269, p. 44 lines 10-25; p. 45 lines 1-4].

The pattern of symptoms throughout the Eaton and Ferrins families are set out in Exhibits 336, 337, 339.25 The following discussion will concentrate on the family members who share specific symptoms which have been observed and documented in Petitioner.

The symptoms and mental condition of Zelma Eaton Smith, the sister of Petitioner's father, Merle Eaton, and thus Petitioner's aunt, are well documented in her hospitalization records, [Exhibit 178], and most closely resemble Petitioner's symptoms. Dr. Woods described the similarities.

[Doc. 269, p. 45 lines 17-25; p. 46 lines 1-18]. These are some of the same symptoms, as described infra, which have been observed in Petitioner.

Another characteristic Petitioner shares with his Aunt Zelma is "this deterioration over time. You know, when they're younger, they seem to be able to bounce back from these symptoms much more effectively, but as time goes by these symptoms tend to, to bring them down and to impact them cognitively as well as behaviorally as well as psychiatrically." [Doc. 269, p. 47 lines 3-8].

Another symptom they shared is one "that appears to be a core symptom when we're talking about this family, and that is altered sexual behavior or unusual hypersexuality. She was in the times that she was hospitalized, there's no other way to put it but a flirt. She was described as seductive. So that's another symptom that one sees." [Doc. 269, p. 47 lines 13-18]. Aunt Zelma's diagnosis was "bipolar disorder, manic episode." [Doc. 269, p. 48 lines 3-5; Exhibit 178, p. 21].

Dr. Ash agreed with Dr. Woods, and explained why the information concerning Zelma Eaton Smith would have made a significant difference in his findings and testimony at Petitioner's trial.

[Doc.267, p. 78 line 25; p. 79 lines 1-7]. Her aggressiveness and hypersexuality are behaviors "which you come to expect with bipolar disorder." Indeed, hypersexuality is "one of the diagnostic criteria." [Doc. 267, p. 79 lines 8-13]. Dr. Ash saw parallels between Zelma Eaton Smith and Petitioner's conditions.

[Doc. 267, p. 79 line 25; p. 80 lines 1-11]. Dr. Ash, before Petitioner's trial, received no information with regard to Zelma Eaton Smith. He, in fact, did not even know she existed. [Doc. 267, p. 119 lines 19-24].

An equally important element of Petitioner's family history concerns his brother, Daryl Eaton. Daryl's ex-wife, Elizabeth Pryor, in a declaration, described behaviors and mood swings which, according to Dr. Woods, "one sees in bipolar disorder." [Doc. 269, p. 78 lines 6, 7; Exhibit 210]. Ms. Pryor, in her declaration, stated,

[Doc. 269, p. 77 lines 5-9; Exhibit 210, p. 1]. Dr. Woods, in reviewing Ms. Pryor's description of her ex-husband's symptoms, observed, "(y)ou could in many cases substitute Mr. Eaton's name there." [Doc. 269, p. 77 lines 11, 12]. Dr. Woods pointed out in Petitioner's life, as early as age 16,

[Doc. 269, p. 77 lines 14-21].

Daryl Eaton also shared Petitioner's symptoms of hypersomnia, multiple episodes of suicidal ideation, mood swings between depression and irritability, and out-of-control behavior which can often accompany bipolar disorder. Daryl, like Petitioner, was paranoid, concerned his wife was cheating on him. His spending got out of control. He started a construction business and started hiring people even though "there was no way he could ever pay those men." Daryl's grandiosity and excessive spending are also symptoms commonly seen with bipolar disorder. Daryl, once again as did Petitioner, would lose control, behave aggressively, and then immediately express remorse, which is unusual, although "it's not unusual within this family." [Doc. 269, p. 78 lines 1-25; p. 79 lines 1-25; p. 80 lines 1-18].

Daryl Eaton also started a construction business with his second wife, Terry Lerseth, and followed hail storms to repair and replace roofs and do painting, [Doc. 265, p. 10 lines 14-20]. Ms. Lerseth described one time when business was so slow she had to go to a food bank to get food. [Doc. 265, p. 10 lines 21-25; p. 11 lines 1-6].

Daryl's energy level was high. "His mind wouldn't stop." He didn't sleep much; maybe a few hours a night. [Doc. 265, p. 11 lines 20-25; p. 12 lines 1-3].

Daryl did not save money. "He spent it on tools, and he just — as soon as he got it, he spent it." [Doc. 265, p. 15 lines 21-25]. Ms. Lerseth realized in January, 1988, they were having serious money trouble when their phone was shut off. [Doc. 265, p. 12 lines 22-25; p. 13 lines 1, 2]. She took a job as a waitress to help cope with the financial stress, however, Daryl disapproved and in March, 1988, they argued. Daryl got real angry and went outside and "kind of exploded...he took one of his pickups and rammed another one and then got his gun out and shot the windshield out." He owned three trucks at the time, and ended up wrecking all of them that night. Ms. Lerseth doesn't know how many shots Daryl fired into his truck, however, it was "(a) lot." She "thought he was crazy." She was "kind of scared. I was hoping he wouldn't come in the house after me." Daryl, afterward, "was very apologetic, sorry he did it. It's like he couldn't control himself." [Doc. 265, p. 13 lines 3-25; p. 14 lines 1-14]. Ms. Pryor described both manic and depressive episodes for Daryl. Ms. Lerseth, however, "described mainly the high energy." Dr. Ash found significant the fact "she described a very sweet, caring fellow, but she also described an episode where this, again, generally very gentle, caring man suddenly lost it and was overwhelmed with rage and was shooting cars in the back and ramming them into each other and, ... unexplicable." [Doc. 267, p. 83 lines 23-25; p. 84 lines 1-3]. Dr. Ash indicated the experiences Ms. Lerseth described with Daryl Eaton would be significant with regard to diagnosis of Petitioner.

[Doc. 267, p. 84 lines 7-13].

Dr. Ash concurred with the conclusion by Dr. Woods that Daryl Eaton was an undiagnosed case of bipolar disorder. His symptoms were classic.

[Doc. 267, p. 81 lines 22-25; p. 82 lines 1-9]. The information provided by Ms. Pryor was extremely important information to Dr. Ash. "Whenever there is a first-degree relative, that is, a mother, father, brother, sister, daughter, son, first-degree relative with bipolar disorder, one immediately has to be concerned about bipolar disorder being there when depression is also present." [Doc. 267, p. 81 lines 16-22].

Dr. Ash pointed to other significant family history which had not been provided to him prior to Petitioner's trial. Petitioner's son, Ed, was diagnosed with bipolar disorder at the Wyoming State Hospital, and medicated with Mellaril, an antipsychotic, and Desipramine, a tricyclic antidepressant. [Doc. 267, p. 85 lines 14-25; p. 86 lines 1-3]. This information would have had a "profound" effect on Dr. Ash's assessment of Petitioner. "A first-degree relative diagnosed with bipolar disorder in a man who shows symptoms of bipolar disorder." [Doc. 267, p. 86 lines 4-8]. Dr. Ash stated identifying two first-degree relatives with bipolar disorder, plus a maternal aunt, "tremendously" alters his view of Petitioner's genetic vulnerability to bipolar disorder from the view he held at the time of trial. [Doc. 267, p. 86 lines 9-20].

Other family history added to the likelihood of Petitioner suffered from a major psychosis. His niece's daughter was apparently diagnosed with bipolar disorder, and a nephew committed suicide, which is often associated with the disorder. [Doc. 267, p. 87, 88]. The failure by the trial team to provide Dr. Ash with any information indicating Petitioner had multiple relatives diagnosed with bipolar disease significantly altered the mitigation evidentiary landscape of Petitioner's trial. Dr. Ash testified without a family history of genetic vulnerability to bipolar disorder, "it's extremely tenuous" to make such a diagnosis, and the trial team fail to provide Dr. Ash with any information about this family history. Dr. Ash, without this history, could not reach the conclusion Petitioner suffered from bipolar disorder. Dr. Ash, when asked what trial counsel had failed to provide him, simply replied, "What was missing was the genetic history and evidence of hypomanic reactions." [Doc. 267, p. 74 lines 4-15].

The trial team also failed to provide Dr. Ash with Exhibit 176, the Weld County General Hospital records of Marian Eaton's psychiatric treatment in the 1960's. [Doc. 267, p. 76 lines 18-24]. Dr. Ash testified the information contained in these records shed considerable light on Mrs. Eaton's lack of ability to be an effective buffer between her children and her husband's violence.

[Doc. 267, p. 72 lines 6-17]. Dr. Woods testified this particular delusion is called Capgras syndrome, a disorder of the right temporal lobe. This delusion first appeared in 1961, around the time of Petitioner's first major criminal episode, when he stabbed a woman in an argument over melons as he was trying to get money to run away from home. [Doc. 269, p. 74 lines 12-25; p. 75 lines 1-9]. Dr. Ash, in light of these delusions, believed "it would be virtually impossible" for Mrs. Eaton to nurture, love and care for her children, [Doc. 267, p. 77 lines 18-20], and Dr. Woods agreed.

[Doc. 269, p. 75 lines 10-22].

Dr. Woods testified life is very difficult for the children of mothers with psychotic illnesses. "They often do not have the level of support. They don't have the level of resources. She was in the hospital ... for years at a time. I believe from 1961 through perhaps 1964 she was hospitalized. These were pivotal years in Mr. Eaton's life. 1961 was when he had his first difficult, real difficulty with the law." [Doc. 269, p. 60 lines 8-13; p. 75 lines 4-9]. The hospitalization records for Petitioner's mother thus have both genetic and environmental significance in assessing his condition. [Doc. 269, p. 75 lines 23-25].

The existence of major disorders on both sides of Petitioner's family tree, and bipolar disorder in a sibling and a child, indicate Petitioner's chance of inheriting psychotic symptoms to be "very high." [Doc. 269, p. 43 lines 21-25; p. 44 lines 1-12]. Dr. Woods testified although Mrs. Eaton's diagnosis was "a bit different than Zelma's in that she was diagnosed with schizophrenia over the years," Mrs. Eaton had "these consistent core symptoms. She was much more consistently psychotic than Miss Smith and over time was treated fairly regularly with antipsychotic medication." Mrs. Eaton "obviously had a mood problem as well. She had tremendous problems with hygiene. She had tremendous problems with being able to organize her environment." [Doc. 269, p. 59 lines 2-19]. The nursing notes from her hospitalizations also specifically describe her auditory and visual hallucinations, including "voices of people I've known but I can't identify them," [Doc. 269, p. 63 lines 10-25, quoting Mrs. Eaton, Exhibit 176, p. 28]; the paranoid sense (dementia) people were removing her undergarments while she slept, [Doc. 269, p. 64 lines 6-16; Exhibit 176, p. 29]; and she talked about seeing transparent people. [Doc. 269, p. 58 line 3; Exhibit 176, p. 61]. The hospital records also reflect Mrs. Eaton "continues to have flight of ideas," [Exhibit 176, p. 62[, which "really sounds manic" rather than schizophrenic. Doc. 269, p. 68 lines 5-25; p. 69 lines 1-20]. Other places in the records describe her as aggressive, "hostile and ... threatening to shoot family and neighborhood children." She had broken most of the windows of her home, exhibiting "anger and threatening behavior that can be part of a mental illness." Dr. Woods described Mrs. Eaton as "underwater." She was not able to function as "a mother that can actually provide the resources to raise her child." [Doc. 269, p. 72 lines 2-25; p. 73 lines 1-22]. Dr. Woods summarized the disadvantage of growing up in the Eaton home.

[Doc. 269, p. 76 lines 10-15].

Other symptoms and disorders appear throughout the Eaton family history. Impulsive behavior is common. One story related by Petitioner's brother, Richard, involved their grandfather, Elmer Ferrins, who fought with his neighbor and killed his sheep.

[Doc. 266, p. 223 lines 6-15]. Dr. Woods viewed this piece of family lore as a good example of the impulsivity which runs through this family. [Doc. 269, p. 38 lines 9-23]. Dr. Ash observed Elmer also ate nails, adding to the "strangeness, weirdness in the family history." [Doc. 267, p. 115 lines 19-22]. Dr. Woods testified Elmer's eating disorder, called feromania or pica, is "a subset of obsessive-compulsive disorders." [Doc. 269, p. 37 lines 12-25; p. 38 lines 1-8].

Other members of the Eaton-Ferrins family exhibited similar behavior. Petitioner's paternal grandfather, Harvey Eaton, "was a real ornery old pup. He was a little man, but boy did he get himself into trouble. He had a temper too." Mrs. Lange recalled "Harvey hit the gas deliveryman over the head with a hammer. He went and turned himself in straight away, but he was known for doing things like that. He got into fights pretty regular and he was always causing trouble. He could not get along with any of his neighbors and he had an awful stubborn streak." [Doc. 68-7, p. 2]. Harvey's granddaughter and Petitioner's first cousin, Darlene Pursel, stated when she and her mother, Zelma Eaton Smith, would try to visit Harvey, he would sometimes literally shoot them off his property. [Doc. 68-8, p. 1]. Dr. Woods noted Uncle Loren Ferrins was a particularly colorful character.

[Doc. 269, p. 39 lines 5-15].

The Ferrins and Eaton families both have a history of late onset dementia. Zelma Eaton Smith, Merle Eaton, and virtually all of the men in the Ferrins family apparently suffered from Alzheimer's disease, or some other form of late onset dementia. Loren Ferrins' daughter, Lorena Ferrins Altman testified her grandfather, Elmer Ferrins, and all of her paternal uncles (Petitioner's maternal uncles) "all died from Alzheimer's...Gus, Ross, Dale, and then wound up Elmer, my granddad. And my dad was paranoid of everybody, didn't trust nobody for nothing." [Doc. 268, p. 83 lines 17-25]. Dr. Woods explained the probative value of this pattern.

[Doc. 269, p. 40 lines 10-18]. The men in the Ferrins family were affected by Alzheimer's. Diabetes seems to plague the women in the Ferrins family. Confirmed cases of diabetes in the family include Marian Ferrins Eaton, Marilu Ferrins O'Malley, Mirabel Ferrins Thomison, and Sharon Eaton Slagowski. [Doc. 268, p. 85 lines 6-25]. Diabetes is another disease which "can have psychiatric manifestations." [Doc. 269, p. 12 lines 22-24].

Dr. Woods explained why obsessive-compulsive behaviors are another important symptom to track through the family tree.

[Doc. 269, p. 31 lines 24, 25; p. 32 lines 1-16].

Dr. Woods identified a variety of obsessive-compulsive behaviors such as eating disorders and hoarding in the Eaton and Ferrins families.

[Doc. 269, p. 31 lines 18-24].

Marian Eaton was known to eat an entire five-gallon tub of ice-cream in the middle of the night. Petitioner's sisters were all obese as a result of eating disorders, and all have had intestinal bypass surgery to control their weight. [Doc. 268, p. 74 lines 21-25; p. 25 lines 1-23]. Denise Heinz describes an example of the obsessive-compulsive eating-disordered behavior of her mother, Judy Mason.

[Exhibit 194, p. 2].

Hoarding is another form of obsessive-compulsive behavior seen on both sides of the Eaton family, usually accompanied by obvious paranoia. The hospital records for Aunt Zelma Eaton Smith document she hoarded items in her room such as shoes, books, and multiple layers of clothing, and she repetitively sorted them. [Doc. 269, p. 56 lines 24, 25; p. 57 lines 1-21]. Sandra Andrae described the paranoid hoarding-like storage of personal belongings by her father, Loren Ferrins.

[Doc. 268, p. 113 lines 13-25; p. 114 lines 1-4]. He had equally bizarre rituals for storing his important papers.

[Doc. 268, p. 114 lines 1-14].

Dr. Woods described Petitioner's family as "an affectively laden family. This is a family that from generation to generation you see multiple symptoms being inherited, passed down from generation to generation." [Doc. 269, p. 45 lines 1-4].

Petitioner's Life History

The trial team, in addition to failing to investigate the mental health history of Petitioner's extended family, also failed to conduct an adequate investigation of Petitioner's own developmental and mental health history. They, as well, failed to make competent observations of their client's symptoms of mental impairment which they observed in their dealings with him. Mr. Stetler explained what a psychosocial history of the client entails, and why it is important.

[Doc. 264, p. 96 lines 18-25; p. 97 lines 1-25; p. 98 lines 1, 2].

The mental health assessment by the forensic mental health experts who testified at trial on behalf of Petitioner, in particular Dr. Ash,27 was adversely impacted by the paucity of documentation and instructions provided to them prior to Petitioner's trial; the failure of the trial team to apprise Dr. Ash of their observations and interactions with Petitioner prior to, and during trial; and their failure to investigate and provide to Dr. Ash important aspects of Petitioner's developmental, psychiatric, and life history.

Documentation and Instructions Provided

The trial team, in May, 2003, retained Dr. Ash, a forensic psychiatrist, to assess Petitioner for competency to proceed, and responsibility at the time of the homicide of Ms. Kimmell. Dr. Ash, when he visited Petitioner for the first time on May 17, 2003, had not been provided any life history information for him. [Doc. 267, p. 41 lines 11-25; p. 43 lines 12-19]. Garri Gemelli, who was listed by the Public Defender's Office on its letterhead as a "Mitigation Specialist," sent Dr. Ash, on November 13, 2003, a packet of materials accompanied by a cover letter which read in its entirety:

Enclosed please find:

[Doc. 267, p. 43 lines 21-25; p. 44 lines 1-25; p. 45 lines 1-17; Doc. 66-3]. Item number 5, the Weld County juvenile court reports, consisted solely of the two-page report of Dr. Donald Langsley to the Weld County District Court. [Doc. 267, p. 44 lines 4-17].

The next communication to Dr. Ash was a December 10, 2003, fax from Mr. Skaggs telling Dr. Ash, "Focus on the three underlined mitigators and see if any fit. Talk to you Thursday." [Doc. 267, p. 45 lines 19-25; p. 46 lines 1-6; Doc. 66-4; Exhibit 15 (highlighted W.S. § 6-2-102 statutory mitigators, attached to December 10, 2003 fax)].

Dr. Ash, when asked if he received any further guidance from the trial team, testified, "This essentially was the extent of it." [Doc. 267, p. 46 lines 7-9]. He did find, based on what he was given,"deep depression is throughout all of the records that were sent to me." [Doc. 267, p. 61 lines 20-25]. He could not, however, go further, and diagnose a bipolar disorder.

[Doc. 267, p. 62 lines 12-25; p. 63 lines 1-7].

Observations and Interactions

Mr. Skaggs and the other members of the trial team failed to relate to Dr. Ash any of their observations and interactions with regard to Petitioner's mental health or his ability to assist with his own defense. They did not tell Dr. Ash, for example, Petitioner was refusing to cooperate in his defense, or that Ms. Moree could not get Petitioner to provide a chronology of schools or jobs. Mr. Skaggs did not tell Dr. Ash Petitioner was getting "ratty" in the county jail, or that he was irritable, unkempt, agitated or uncooperative. Dr. Ash did have some records from the Natrona County Jail describing Petitioner's feelings of persecution by other inmates, however, he had no idea these issues might have been spilling over into the attorney-client relationship. [Doc. 267, p. 50 lines 5-25; p. 51 lines 1-15]. Dr. Ash was able to form a trusting relationship with Petitioner in which information flowed freely. He thus anticipated, in the absence of information to the contrary, Petitioner was doing the same with his attorney. [Doc. 267, p. 51 lines 16-25; p. 52 lines 1-5].

Petitioner's inability to provide a chronology of schools and work was important to the assessment by Dr. Ash as it might indicate he "is becoming increasingly paranoid" under stress which, coupled with his limited intelligence, could make it "very difficult for him to remember and give accurate data." [Doc. 267, p. 53 lines 18-25; p. 54 lines 1-9]. Petitioner's deteriorating physical appearance and hygiene would be of concern, and is consistent with his mother's poor physical hygiene which accompanied her chronic undifferentiated schizophrenia, "and that's something you see often with people with chronic mental illness." [Doc. 267, p. 54 lines 10-25; p. 55 lines 1-3]. Dr. Ash indicated Petitioner's irritability and agitation "has progressed into a direction of paranoia and at times delusional." [Doc. 257, p. 55 lines 4-13].

Dr. Ash was also apparently not aware of Petitioner's outbursts during the guilt or innocence stage of the trial, which was important for similar reasons: "under duress, when he gets tense and the agitation and the anger builds, that he can become psychotic." [Doc. 267, p. 58 lines 11-19].

Developmental, Psychiatric, and Life History

The failure by the trial team to develop a thorough and comprehensive developmental, psychiatric, and life history for Petitioner had perhaps the most significant effect on the forensic mental health assessment presented on behalf of Petitioner at trial.

Petitioner, in the proceedings before this Court, has presented voluminous records which the trial team could have obtained through a reasonable investigation. He has also provided information derived from interviews by his present counsel of witnesses whose identity and relevance were known to the trial team, but whom they did not interview. These documents and witness interviews provide information concerning Petitioner's personal growth, development, and symptomology which was reasonably necessary for a reliable mental health assessment as part of the development of mental health defense for Petitioner.

Early childhood development

The mitigation investigation by the trial team produced virtually no information concerning Petitioner's early years, and only very sketchy information with regard to his adolescence and young adulthood. Mr. Skaggs agreed the first sentence of the October 31, 1961, report by Dr. Donald Langsley raised the possibility of patient records being available in 2003, since they were available in 2013, documenting Petitioner's ten-day hospitalization at the Colorado University Hospital from October 16 through 26, 1961. [Doc.261, p. 217 lines 9-23; Exhibit 223-14]. An investigation into the possible existence of such records would have produced the day-to-day records of Petitioner's hospitalization and related psychiatric assessment. [Exhibit 169-4]. Those records contained the only known data concerning Petitioner's developmental milestones in the first five years of life.28 Both of Petitioner's parents are now deceased, thus no information exists with regard to Petitioner's early childhood except the hospitalization records.

Petitioner's parents, in 1961, told the physicians examining Petitioner he experienced significant developmental delays.

[Doc. 264, p. 137 lines 12-25; Exhibit 169-4, p. 17]. Mr. and Mrs. Eaton also told Dr. Langsley Petitioner spent two years in the first grade. [Exhibit 169-4, p. 17]. The trial team never obtained these records, thus Dr. Ash did not see them before trial. He indicated he would have found these records "very helpful because it talks in terms of Dale Eaton was having trouble right from the beginning. . . . He was, he was slow to walk, slow to talk, slow to potty train, and had difficulty with school right from the beginning, couldn't even complete the first grade, had to have speech help, had major problems throughout." [Doc. 267, p. 126 lines 7-12]. Dr. Woods noted additional evidence of Petitioner's delayed development and cognitive impairment in this same file. Examiners noted Petitioner's speech was described as "slowed," and his "[i]ntelligence was estimated as dull normal, and he had a poor grasp of general information. Judgment and insight were felt to be poor." [Doc. 269, p. 97 lines 14-25]. The records indicate Petitioner is "lagging behind" and, in addition to the factors in his life which are holding him back, "there are other...cognitive things that are going on." [Doc. 269, p. 98 lines 3-8].

Petitioner's Aunt, Marilu O'Malley, was also available to the trial team to provide relevant information about Petitioner's home life and intellectual functioning. He had one extended stay with Ms. O'Malley and her husband, Bill, a visit about which no one from the trial team made any inquiry. She indicated, in her experience, in a declaration admitted as an exhibit in this matter, "Dale was a quiet child. He was beat down. I never thought he had a very high IQ because of the way he talked and the way he acted." She felt Petitioner "probably wasn't very smart, but kids need attention and encouragement to grow and Dale Wayne certainly never received that." When Petitioner was around twelve years old, Ms. O'Malley asked if he could stay with her "because I felt so sorry for him." Petitioner was so needy. Her husband, Bill, took Petitioner fishing, and he talked about it for years afterward. Petitioner bought Bill a fishing rod years later to thank him for taking him fishing. Ms. O'Malley said between Petitioner and his father, Merle, there was "no relationship, no closeness and certainly no love. There wasn't anything Dale Wayne could have done to change the way his father thought about him. It was really sad."[Doc. 68-9, p. 2].

Meeker, Colorado

Other probative evidence of Petitioner's delayed development can be found in the records of the Meeker, Colorado school district, [Exhibit 169-82] and Petitioner's age-peers from Meeker. These materials, which provide relevant data including standardized testing, were also not available to Dr. Ash. [Doc. 267, p. 129 lines 24, 24; p. 130 lines 1-4; p. 131 lines 22-25]. The enrollment forms completed by Petitioner are even important. Dr. Ash stated the form is "very significant" as it shows "a 13-year-old boy who can't spell his father's name," which "reflects such...a low development in terms of academics." [Doc. 267, p. 130 lines 5-15]. He did no better with the enrollment form at age 15. "He's again trying to spell his dad's name and can't do it." [Doc. 267, p. 130 lines 18-23]. The school records reveal Petitioner failed the first grade, and failed the seventh grade twice. He was, nonetheless, socially promoted to the eighth grade. Dr. Ash noted Petitioner's younger sister, Sharon, was also held back so she would not surpass her older brother in school. [Doc. 267, p. 131 lines 2-19].29 Dr. Woods noted Petitioner's obsessive-compulsive hair-pulling (trichotillomania) is captured in his seventh grade picture which shows an odd bald patch on the right side of Petitioner's head. [Doc. 269, p. 94 lines 10-24; Exhibit 169-82, p. 1].

The Meeker school records also contain standardized test results which reveal significant impairments in Petitioner's verbal and reasoning abilities. Dr. Woods found it fascinating there was such a spread in Petitioner's test scores. He is in the bottom one and two percent of the population in arithmetic reasoning (story problems) and language comprehension, however, he was in the 88th percentile in applied science and mechanics. "[T]his is the basis of what we look at 20 years later when he may be working as a welder but he can't keep track of his checkbook, or he lets his ex-wife handle his money even though he knows that she's taking — he assumes that she's taking money from him. He is still able to do this welding to a degree. It's not inconsistent with the kinds of strengths and weaknesses that we see in him." [Doc. 269, p. 92 lines 19-25; p .93 lines 1-24]. Dr. Ash found it remarkable "his scores are just so low, such low percentiles. It was — I had written these down that he's in the 1st, 2nd, 4th, 7th, 7th, 12th, and 16th percentiles except for one thing and that was mechanics, and he was up to 88th percentile with that. Everything else was extremely low." [Doc. 267, p. 132 lines 5-9]. Dr. Ash, when asked what this says about Petitioner's general intellectual capacity, simply replied, "so limited." [Doc. 267, p. 132 lines 10-12].

Interviews with Petitioner's peers conducted in support of his petition herein also provide information important to a reliable mental health assessment. Phyllis Lake, the daughter of John and Syble Barney, who knew Petitioner in junior high school and when he worked for her parents, is quite articulate in describing Petitioner's limitations. Dr. Ash found her description of Petitioner "was really sad. ... [H]er statement he was overweight, socially awkward, poor self-esteem, tries to draw attention to himself, even negative attention. He's poor. He's troubled. Odd, a misfit. Other kids picked on him." [Doc. 267, p. 132 lines 23-25; p. 133 lines 1-4]. Margie Jackson recalled Petitioner was perceived as "different in the head," and "Dale never really fit in at Meeker; he was an outsider." [Exhibit 195]. Jacque Duzik remembers "Dale had very bad hygiene and wore dirty clothes to school...He was invisible." [Exhibit 191]. The person Brian Conrado knew as Petitioner "was the brunt of all kinds of harassment and belittling." [Doc. 268, p. 40 lines 18-20]. "He was belittled. He, . . . from what I remember, . . . he wasn't real smart. Of course, . . . you know, if you took a test in school, then a lot of times you passed your test and your classmate graded it, so your classmates knew how you were doing, whether you liked it or not, `cause they were grading your paper, you were grading theirs, you know, or getting the answers. And, . . . Dale just wasn't — he didn't have it." [Doc. 268, p. 43 lines -15].

Petitioner was so needy Phyllis Lake's brother, Lyn, stirred a fly into a bowl of beans and fed it to Petitioner, then laughed at him, and "he was okay with that." [Doc. 267, p. 133 lines 5-11; Doc. 268, p. 12 lines 23-25; p. 13 lines 1-8]. Dr. Ash found her observations to be important.

[Doc. 267, p. 133 lines 12-19].

Ms. Lake observed Petitioner's "ability to learn was limited." [Doc. 268, p. 13 lines 18-24]. He had a "very difficult time in taking directions," and "you weren't quite sure where he was coming from with his lack of social skills." [Doc. 268, p. 13 lines 18-24; p. 14 lines 1-4]. He ate meals with the Barney family on occasion, and Ms. Lake saw Petitioner "[d]idn't know how to hold a fork. Did not have good manners. He was just hungry." [Doc. 268, p. 16 lines 10-19]. Even simple farm tasks were very difficult. "He couldn't learn simple things like how to — if a gate was twisted, a wire gate was twisted, he couldn't understand how to retwist it to make it stand up or to work." Petitioner was not allowed to drive any vehicles or tractors. [Doc. 268, p. 14 lines 22-25; p. 15 lines 1-6]. Ms. Lake, when asked if her father accepted Petitioner's work, related:

[Doc. 268, p. 15 lines 7-22]. Dr. Woods found it significant the instructions have to be repeated for Petitioner.

[Doc. 269, p. 96 lines 2-25; p. 97 line 1].

Ms. Lake did not believe Petitioner would ever be able to keep a job. "He didn't have the ability to work with people. His social skills, unless he really matured or found someone to guide him his whole life, we didn't know that he could sit, that he could listen, that he could communicate, that he could respond even with love." [Doc. 268, p. 17 lines 8-16]. Dr. Ash acknowledged the observations by Ms. Lake offered insight into Petitioner's development and social skills.

[Doc. 267, p. 135 lines 6-16].

The comments by Ms. Lake also confirmed the testimony of Brian Conrado indicating Petitioner was tormented and ridiculed by his peers, and her observations corroborates the abuse Petitioner suffered in his home. These traumatic experiences add posttraumatic stress disorder "as a compounding condition" in Petitioner's compromised mental and emotional impairments. [Doc. 267, p. 138 lines 1-7].

A significant crossroads in Petitioner's life occurred when his father, Merle, moved the family to Greeley, Colorado. Petitioner, notwithstanding the fact he was badly tormented and belittled by his peers, still wanted to stay in Meeker, particularly on the Barney farm, arguably to avoid further violence by his father. [Doc. 267, p. 134 lines 10-17; Doc. 267, p. 127 lines 3-17].

Greeley, Colorado

The Colorado University Hospital records contain information helpful to establishing a meaningful chronology of Petitioner's first significant contact with the law enforcement as part of a very disorganized, poorly planned attempt to run away from home in Greeley, Colorado, a few months after the family moved there from Meeker. Petitioner, at age 16, stabbed a woman in an argument over melons he was trying to sell her, and stole a truck in his attempt to run away. He told the police "he thought he would become a hermit and was going to go to the mountains." [Exhibit 169-119, p. 14]. He broke into a business in Greeley, stole a rifle, ammunition, and a truck, and drove off looking for the mountains, but he could not find them, and was arrested in Morgan County. [Exhibit 169-119, p. 14]. Dr. Woods found this episode provided significant insight into Petitioner's frontal lobe neurological deficits.

[Doc. 269, p. 101 lines 2-15].

Dr. Ash also found the Colorado University Hospital records important as they provide insight into Petitioner's life in Greeley. Those records describing Petitioner's 1961 arrest and subsequent evaluation reveal a time line in relation to his mother's mental health issues which is significant. "During the latter part of August and early September of this year [1961], Mrs. Eaton had been a patient at the Greeley Hospital because of a mental breakdown and had been seen in consultation at that time by Dr. Mark Farrell of Greeley and is still under Dr. Farrell's care." [Doc. 267, p. 127 line 25; p. 128 lines 1-4 (emphasis added)]. Dr. Farrell confirmed Mrs. Eaton was suffering from a paranoid delusional disorder involving a belief her in-laws "were trying to harm her in some way." [Doc. 267, p. 128 lines 4-9]. Petitioner's frantic attempt to runaway in October, 1961, thus came immediately after his mother's psychotic episode and first hospitalization. Mr. Stetler pointed out this information, in context, was important.

[Doc. 264, p. 130 lines 18-25; p. 131 lines 1-17]. Dr. Ash did not have this document, which places Mrs. Eaton's psychiatric hospitalization in meaningful proximity to Petitioner's first significant criminal episode, prior to his trial. [Doc. 264, p. 128 lines 10-12]. He felt it would have helped the mitigation presentation.

[Doc. 267, p. 128 lines 17-25; p. 129 lines 1, 2]. Petitioner's statements to Dr. Dean, "I hope I get sentenced to reform school so I won't have to go home," [Exhibit 169-4, p. 117] shows home "was a dangerous place for him." [Doc. 267, p. 129 lines 10-21]. Dr. Woods agrees, "It's a very sad statement. It really says something about the quality of his home life." [Doc. 269, p. 98 lines 9-16].

Young Adulthood

The next ten years of Petitioner's life, following his juvenile court adjudication, were spent struggling to earn a living while being in and out of jail. He was arrested July 9, 1964, for taking $81 from the cash register of the gas station where he worked. A mental evaluation conducted in connection with this charge, although finding no indication the theft was motivated by psychosis, noted "[t]his boy is demonstrating some symptoms of rather severe traits of angriness, depression and a masochistic self-destructive attitude. He speaks in an extremely angry way about his father and mother and vows that he is going to be a bigger disgrace to them...He is a severely emotionally disturbed boy who would profit from long term psychiatric treatment in an institutional setting." The examiner reported Petitioner was competent to proceed, but noted he "considers himself to be the object of a great deal of anger and abuse at the hands of his parents, particularly his father." [Exhibit 168, p. 26, Report of Dr. George Woods].

The records of the Buena Vista (Colorado) Correctional Center reflect Petitioner's first months in prison, based on the July, 1964, theft were difficult. Staff followed up with him about his concerns for his mother and his distress over his girlfriend ending their relationship. He was written up in November for fighting in Cell Block B, and thus moved to Cell Block C. He became angry in the dining room on December 12, 1964, and threw a glass of milk in the face of the server, which caused a fight. He was moved to Cell Block D on January 16, 1965. His medical file reflects on January 8, 1965, he was "extremely nervous from fight with inmates," and 2ccs of Nembutal were administered. He was brought into the Hospital on February 16, 1965, "for a shot to quiet him down. He was to the point of becoming hysterical." He was again sedated with Nembutal. [Exhibit 169-41, p. 42; Doc. 168, p. 27]. Dr. Woods explained Nembutal is a phenobarbital, a short-acting barbiturate, which was "the only thing available at that time" to calm him down. [Doc. 269, p. 105 lines 19-25; p. 106 lines 1-2]. Dr. Woods commented on this event in his declaration.

[Exhibit 168, p. 27].

Petitioner was released on parole in early 1966. He subsequently he wrote approximately $100 in insufficient funds check in August, 1966, mostly for cigarettes, gas, soda pop and candy. He made restitution for some of the checks, however, authorities did not believe his assertion he thought he had sufficient funds in his account, and he was returned to prison. [Exhibit 168, p. 28; Exhibit 169-41, p. 30]. Dr. Woods found an "internal consistency" in this incident.

[Doc. 269, p. 102 lines 20-25; p. 103 lines 1-25; p. 104 lines 1-9]. Petitioner was returned to Buena Vista, where he was trained to be welder. [Exhibit 169-41, pp. 20, 23].

Petitioner, after he was released from Buena Vista, returned to Riverton and became friends with David Brewbaker, who was then a young boy with a background very similar to Petitioner's. Dave's father "beat the hell out of [him]" and was sexually abusive as well. Petitioner took Dave fishing and hunting to get him away from his abusive father. [Exhibit 239, p. 1].

Dave Brewbaker also had valuable insight into Petitioner's frame of mind since Dave himself had some years earlier been diagnosed with bipolar disorder for which he now takes medication. He has some insight into his own symptoms, and by comparison, he has insight into Petitioner's as well. Dave is very uneasy around people, so, like Petitioner, he keeps to himself "except for a handful of people who know me very well." He and Petitioner discussed the fact they shared a "sixth sense" which enables them to know just by looking people are out to get them. "I can see them judging me, and they don't even know me. I know Dale had the same feeling." [Exhibit 239, p. 1]. Dave also witnessed Petitioner's temper.

[Exhibit 239, p. 2]. Petitioner's brother, Richard Eaton, also described this very behavior. Petitioner, when frustrated, would open and close his fist rapidly, "[a]nd the more agitated he got, the faster ... he'd do it." [Doc. 266, p. 213 lines 2-6].

Adulthood/Symptomology

There were many potential mitigation witnesses who knew Petitioner, and could have testified and presented additional information with regard to his behaviors, impairments and symptoms which Dr. Ash and Dr. Woods both deemed essential to a reliable assessment.30 Dr. Ash, as previously discussed, testified one of the reasons he could not find Petitioner suffered from a psychosis, such as bipolar disorder, was the absence of any evidence of key symptoms, such as hypomania and grandiosity. The evidence presented to this Court clearly establishes such a history existed, however, the inadequate mitigation investigation by Mr. Skaggs and the trial team simply failed to uncover it.

Dr. Ash explained hypomania exists "when there's a great deal of increased energy, a decreased need for sleep, impulsive, hypersexual, angry, frustrated behavior, grandiose thinking, and there are some others." [Doc. 267, p. 88 lines 10-13]. Richard, Petitioner's brother, indicated at times when Petitioner stayed with him and his wife, Bobbie, he "often wondered if he (Petitioner) got more than three or four hours of sleep." Petitioner would, at times, "just work around the clock on trucks," or read the Bible or watch movies through the night. Richard related one incident when he was watching a comet with his binoculars in the middle of the night, and went to find Petitioner to show it to him. He found Petitioner in his shop under a truck. "I was standing there, and here he was all black and greasy, and the only thing he had on was his underwear." [Doc. 266, p. 226 lines 21-25; p. 227 lines 1-25; p. 228 lines 1-9].

Sandy Hoopes also noted Petitioner did not sleep much, "cause he would work way into the night. He'd be out there with a light, and then ... when we would get up in the morning, he'd be already out there working." [Doc. 265, p. 30 lines 1-9]. Petitioner, at the other end of the cycle, would lay in bed, "[h]e couldn't move. He could not get out of bed." [Doc. 267, p. 83 lines 6-9].

Another characteristic of bipolar disease is grandiosity, and there are ample examples with Petitioner. Melody Cline testified Petitioner "liked to imagine himself a lot better than he was." He exaggerated his achievements and had unrealistic goals. [Doc. 264, p. 139 lines 19-25; p. 140 lines 1-7]. Dr. Woods noted several examples, including his unrealistic view of his relationship with Alice Kardonowy and "the idea that he was going to be able to build a truck stop in Moneta, Wyoming." [Doc. 269, pl 129 lines 12-25; p. 130 lines 1-20]. Petitioner talked about his dream of a truck stop with a number of people, including his son Billy, his brother Richard, his cousin Lorena Altman31 and his neighbor, Doris Buchta, who mentioned it in her journal in an entry on June 9, 1988. [Doc. 267, pp. 83, 91; Exhibit 235, p. 1] Many truck stops do, in fact, get built, however, Dr. Ash testified clinically, it was grandiose for Petitioner to think he could because "Mr. Eaton just simply was unable to follow through in a consistent way. And in my opinion it's so much connected with his bipolar disorder." [Doc. 267, p. 83 lines 10-15]. Petitioner's image of himself as a ladies' man was, as well, unrealistic and grandiose, considering "what's been described to me by woman after woman in all the declarations that you gave me was that, you know, he was physically so repugnant because of his personal hygiene." [Doc. 267, p. 92 lines 5-8].

Deteriorating hygiene is another classic sign of mental illness.

[Doc. 267, p. 54 lines 10-25; p. 55 lines 1-3].

Richard Eaton, Petitioner's brother, and his wife, Bobbie, are among the many witnesses who could attest to Petitioner's failure to bathe and intense body odor. Petitioner, when he was arrested in Yellowstone Park, told the park ranger he was hoping to get mauled to death by a bear. The ranger told Bobbie and Richard "Dale smelled so bad the bear actually ran away from him." [Doc. 266, p. 182 lines 6-21]. Petitioner, at times, smelled so bad Bobbie would make him take a shower. He would not, however, come in the house and use the shower. He told Bobbie he did not "want to leave a ring in my tub." [Doc. 266, p. 179 lines 22-25]. Richard testified "sometimes he went to the car wash with a bottle of Dawn soap, and he'd spray himself down, soap himself up, and spray himself off [with the car wash wand] . . . and do the same with his work clothes. And another incident that when he was staying with us, walked outside, and he was doing it in our front yard in his underwear." [Doc. 266, p. 229 lines 10-24].

Dr. Woods commented on a similar incident related by Steve DuBry about finding Petitioner in a car wash. "Mr. Eaton had hooked up one of the drive-in automobile . . . car washes, he had driven in there, taken the washer, somehow gerrymandered it to the back of his truck so that the water was shooting straight up, and was buck naked in his truck, in the back of his truck, taking a shower. Now, he's out in the middle of town. . . . it's just a totally bizarre story." [Doc. 269, p. 122 lines 10-25]. This incident, and another in which Petitioner served spaghetti to Steve DuBry and his son by pulling it out of the pot with his bare, dirty, unwashed hands, are evidence of his impaired mental condition. "These are, these are recognitions, descriptions of impairment of social context. These are noncriminal situations where most of us would know a better way to do this. And we see these situations over and over again in Mr. Eaton's life." [Doc. 269, lines 16-20].

Petitioner's lack of hygiene extended to his personal surroundings. Bobbie Eaton recalled Petitioner's trailer in Moneta was "dirty, nasty. There was old food still all over the counters. It was — had stuff growing on it. It was just messy, and you couldn't stand to be in there for a second. I had to hurry up and turn around and go out before I threw up. It was pretty nasty, pretty bad." [Doc. 266, p. 182 lines 12-16].

The condition of Petitioner's vehicles and trailer was only made worse by the fact he was a "hoarder." Sandy Hoopes testified Petitioner "hoarded everything," and was definitely a hoarder "cause . . . he doesn't away throw anything. And he has . . . old grocery sacks and stuff that were just there." [Doc. 265, p. 31 lines 19-25; p. 32 lines 1-6; p. 36 lines 14-18]. Other people who knew Petitioner recognized the same behavior, including Sandy's husband Jim Hoopes, [Doc. 215, p. 84 lines 7-19], and Bobbie Eaton, [Doc. 266, p. 182 lines 17-20]. Steve DuBry, according to Dr. Woods, also described hoarding behavior. [Doc. 269, p. 123 lines 1-2]. Dr. Woods found this behavior to be significant.

[Doc. 269, p. 31 lines 18-25; p. 32 lines 1-16].

Work was an important aspect of Petitioner's life, one which the trial team and Mr. Skaggs completely ignored, and thus failed to contact or interview Mark Dotson, a potential mitigation witness who had employed Petitioner.

Mark Dotson suffers from significant health problems, and thus could not attend the hearing before this Court. He did, however, provide a written declaration which outlines significant mitigating facts which could have been presented at trial with regard to Petitioner's severe mental impairments. [Exhibit 69-7].

Mr. Dotson is the former President and CEO of Copper King Mining Corporation, and in 1996, owned West Hills Excavating in Milford, Utah, where Petitioner worked for him, and lived in his trailer behind Mr. Dotson's shop. [Doc. 69-7, p. 1]. Mr. Dotson recalls Petitioner was afraid of people, and didn't trust them. Mr. Dotson has serious mental illness within his own family, thus he had credible insight into Petitioner's mental health.

[Doc. 69-7, p. 1].

Petitioner, in spite of his obvious mental illness, was "ninety percent of the time, . . . pleasant to be around. He's a likeable guy. He was a weird guy, but I liked Dale." [Doc. 69-7, p. 2]. Petitioner, however, was easy to anger, and would act out, "but then his remorse was a lot more than the incident warranted. He would get angry too easily, and then he'd feel too bad about it. It wasn't that big of a deal usually and he would mope around for a couple of days over it." [ Doc. 69-7, p. 2].32

The testimony of Mark Dotson provided Dr. Ash with a useful example of Petitioner's paranoia, which is significant to the psychiatric assessment.

[Doc. 267, p. 93 lines 2-8]. The paranoia reported by Mr. Dotson is consistent with what others have observed.

[Doc. 267, p. 92 lines 9-25; p. 93 lines 1].

Dr. Woods also found Mr. Dotson's insight with regard to Petitioner remarkable, perhaps stemming from the fact Mr. Dotson had a brother with schizophrenia. [Doc. 269, p. 118 lines 14-25]. Mr. Dotson, in spite of Petitioner's mental impairments, "saw him as an effective worker . . . Mr. Dotson felt comfortable with him being around his son particularly, yet he had real problems on the job. It wasn't doing the job. It was the socialization, being able to work around other people, being able to focus." [Doc. 269, p. 117 lines 20-25; p. 118 lines 1-4]. Mr. Dotson took extraordinary steps to accommodate, on the job, Petitioner's illness, even allowing him to work a midnight shift when there were no other employees around. "But the other part was he was just not able to make it in the day-to-day work world in spite of his skills." [Doc. 269, p. 118 lines 5-25; p. 119 lines 1-2].

Dr. Woods also benefitted from the observations of Jim and Sandy Hoopes. Jim Hoopes provided useful information concerning Petitioner's reactivity on the job, such as when a man would "come up and tap him on the shoulder and he would hit the guy, just this hyper reactive response." Mr. Hoopes identified both positive qualities and significant symptoms. "He was a friend to their family, friend to their children, but a very, very paranoid, withdrawn, socially isolated, reactive man." [Doc. 269, p. 120 lines 20-25; p. 121 lines 1-4].

Petitioner's former wife, Melody Cline, was also a potential source of mitigation evidence with regard to Petitioner's impaired functioning. There were many episodes in their marriage when Petitioner abused her. Petitioner would hit her with his fist, and then collapse into tears. He was "very sorry, very contrite . . . he cried, and I just tried to comfort him and tell him, you know, we're both stressed, it's okay." It was always the same. Petitioner, after hitting Melody, cried and begged forgiveness. Melody, even though she was angry and hurt, "always felt sorry for him . . . [because] I think he just couldn't control it." [Doc. 266, p. 108 lines 1-25; p. 109 lines 1-22].

Melody also describes Petitioner's impaired functioning. There were a number of things Petitioner could not do for himself. "[H]ygiene would be on the top of the list." He could not manage the checkbook. [Doc. 266, p. 121 lines 7-16]. He could not keep a job because "he didn't play well with others." [Doc. 266, p. 122 lines 1-4]. Petitioner, when he was unemployed, tried to make money at swap meets, however "that was never a living . . . Can't believe anybody would call it that." Petitioner was a big talker sometimes, however, he "never understood that he didn't make money doing this."Melody indicated Petitioner would spend money to buy things to sell, and pay, for example, $200 for an item which some guy with "a gift of gab" would talk him out of for $150. "You know, that's not how you make money. If he wasn't giving the product away, he was putting money back into bringing more product to sell . . . that's not how you make money." It would be fair to say that Petitioner would go to a swap meet with a pile of junk and some money, and come back with less money and more junk. Petitioner did not make money at swap meets. "There'd be no money for food or housing." [Doc. 266, p. 122 lines 8-25; p. 123 lines 1-13].

There has been some suggestion, albeit, incorrect, Petitioner and his family were not living in poverty during these times. Melody testified when Petitioner was trying to support the family with his swap meet activities, the family lived

[Doc. 266, p. 123 lines 14-25; p. 124 lines 1-10]. There were no laundry facilities or stove. This was how the family lived when Petitioner was trying to make money at swap meets. [Doc. 266, p. 124 lines 11-14].

The physicians at the Wyoming State Hospital who evaluated Petitioner in 1997, after his encounter with the Breeden family, related their observations with regard to the state of Petitioner's mental health.

[Doc. 269, p. 108 lines 4-19; Exhibit 223-33, p. 3].

The remainder of the Wyoming State Hospital examination, as discussed by Dr. Woods, was distorted by Petitioner's score on the Test of Memory Malingering (TOMM), which suggested he was malingering, effectively truncating the exploration of other possible mental health issues. The author of the TOMM, Thomas Tombaugh, cautions it should not be administered to patients with dementia. [Doc. 269, p. 108 lines 20-25; p. 109 lines 1-16]. Petitioner's performance on the TOMM, which should either have never been given or the results disregarded, seemed to temper the diagnosis which included "pseudodementia."33

The lab tests conducted by the Wyoming State Hospital showed high levels of zinc and arsenic in Petitioner's system, which is "not really associated with dementia, it's associated with brain problems." [Doc. 269, p. 110 lines 29]. Dr. Woods, based on Petitioner's welding and exposure to manganese fumes, observed:

[Doc. 269, p. 113 lines 9-17]. Dr. Woods observed Petitioner had been a welder "for a significant period of time." [Doc. 269, p. 114 lines 21-25; p. 115 line 1].What Dr. Woods found even more probative of Petitioner's employment history was "his reactivity, his isolation, his bizarre behavior forced not only him to move from job to job but forced his employers to create work for him, create special circumstances for him in order to keep him employed, and even then they often were not able to do so." [Doc. 269, p. 115 lines 1-5].

Mr. Skaggs and the trial team avoided any investigation, and thus full knowledge of, Petitioner's work and family life, apparently based on a concern such an investigation would "open doors" to certain issues, primarily violence and sexuality. Such an investigation would arguably have been protected under the umbrella of attorney-client and work-product privileges, and could have yielded relevant mitigation evidence. Dr. Ash explained hypersexuality, such as seen in Petitioner's Aunt Zelma and in Petitioner's own conduct toward his wife, is not just a characteristic of bipolar disorder, "it's one of the diagnostic criteria." Clinically, hypersexuality describes when "a person is filled with intense sexual feelings to the point that a person who normally would have good control over their behavior ends up, a loyal wife, going out and having a number of affairs, doing things impulsively sexually, with painful, harmful consequences, which is exactly the way it's written in the DSM-IV.[Doc. 267, p. 79 lines 10-21]. "Hypersexuality is something you come to expect with bipolar disorder." [Doc. 267, p. 80 lines 19-22]. Dr. Woods agrees.

[Doc. 269, p. 50 lines 15-21].

Dr. Ash explained testimony with regard to Petitioner's workplace and family, including his occasional altercations with co-workers and violence toward his wife and children, significantly contributes to an accurate, mitigating psychiatric assessment.

[Doc. 267, p. 94 lines 18-24]. This behavior "can certainly be a part of bipolar disorder. Again, in the DSM-IV the diagnostic criteria is, you know, periods of increased irritability, anger, frustration is part of the, the description of hypomanic or manic episodes." [Doc. 267, p. 95 lines 2-5]. Dr. Ash, with a complete psychosocial history, could very well have considered and explored a much broader range of mitigating mental health conditions than he could with the narrow and limited information he was provided prior to trial. [Doc. 267, p. 138 lines 1-22]. He described the contrast between the information with regard to Petitioner's life history he was provided prior to trial, and the material he received in preparation for his testimony before this Court.

[Doc. 267, p. 141 lines 14-25; p. 142 lines 1-5].

The impact of the newly obtained psychosocial history data is very clear throughout Dr. Ash's testimony. Dr. Woods agreed with Dr. Ash the clinical picture of Petitioner involves multiple, compounded impairments.

[Doc. 269, p. 150 lines 8-25].

There was a direct relationship between Petitioner's disease processes, such as paranoia, and his social withdrawal.

[Doc. 269, p. 152 lines 9-25; p. 153 lines 1-5]. Petitioner's retreat to his life of isolation, and his pattern of abruptly leaving jobs and friends after staying for a period of a few months, reflects his anxiety about his potential for losing control.

Petitioner's psychological disorder and brain disorder cause both impulsivity and disinhibition, which are "actions without thinking." [Doc. 269, p. 153 lines 9-12].

[Doc. 269, p. 153 line 25; p. 154 lines 1-6].

This dynamic becomes even more disabling in persons with obsessive-compulsive disorders (OCD), such as Petitioner's trichotillomania and hoarding. OCD which drives ritualistic or repetitive behavior will "start to impair your ability to function, to actually weigh and deliberate . . . .that's when they start to impair your ability to effectively be mentally flexible. . . So if you have a disorder like bipolar disorder which impairs mental flexibility, and then you have perseveration on top of that, an obsessive-compulsive disorder on top of that, you really are locked in." [Doc. 269, p. 154 lines 7-24]. Petitioner could not, under stress, generate any of alternative courses of action. His deficits in processing speed, working memory, obsessive-compulsive disorder, disinhibition, impulsivity, all affect the act, and the quality of the act. Each of these factors affected Petitioner's ability to function properly, and were compounded by his paranoia. "Paranoia is you don't understand exactly what's going on, . . . because you don't have your working memory working effectively. And that's where problems with . . . being able to effectively weigh and deliberate. You don't have all the data because your brain isn't working properly." [Doc. 269, p. 155 lines 2-25; p. 156 lines 1-18]. Dr. Woods, based on his examination and a thorough psychosocial history, concluded Petitioner has bipolar disorder.

[Doc. 269, p. 159 lines 7-25; p. 160 lines 1-12].

Dr. Woods explained all of Petitioner's diseases, trauma, and limitations were very much a part of his actions in March, 1988, when Ms. Kimmell was killed.

[Doc. 269, p. 160 lines 13-25; p. 161 lines 1-16]. Dr. Woods stated his opinion, to a reasonable degree of neuropsychiatric certainty, Petitioner was acting under extreme mental and emotional disturbance and his ability to conform his conduct to the requirements of the law was substantially impaired at the time of Ms. Kimmel's death. [Doc. 269, p. 161 lines 17-24].

The well-qualified, well-supported, and well-reasoned opinions of Dr. Ash and Dr. Woods as mental health experts, corroborated by the life histories of Petitioner and his family, set forth a complex, mitigating, and humanizing picture of Petitioner which, if those opinions had been presented at Petitioner's trial, very probably would have persuaded at least one juror to decline to impose a death penalty.

Remorse

The evidence Mr. Skaggs used to argue remorse was minimal at best. He argued remorse was established by the Stringfellow Hawke letter, which Petitioner repudiated in the presence of the jury, and by the fact Petitioner drove Ms. Kimmell's body eighty miles and dropped it in a river where it was sure to be found. Mr. Skaggs, when asked if this was the best evidence he could present, replied, "it's the evidence I used." [Doc. 262, p. 32 lines 5-25; p. 33 lines 1-25; p. 34 lines 1-5].

There was, however, additional evidence which the trial team could have discovered through a reasonable investigation which would have enabled Mr. Skaggs to clearly characterize Petitioner as a sincerely remorseful person who was tormented by the fact he does not have the wherewithal or ability to control his conduct. Dr. Ash saw first-hand Petitioner's "genuine, deep, powerful remorse."

[Doc. 267, p. 66 lines 3-21; Doc. 66-6, p. 2].

Mr. Pepin, Petitioner's attorney in the Colorado manslaughter case, "thought that he had a genuine deep sense of remorse about what had happened to Mr. Palmer. And all of that led to just a basic, a positive feel I had being around Dale." [Doc. 263, p. 119 lines 10-24]. Mr. Pepin described the honest emotion which the manslaughter jury saw from Petitioner.

[Doc. 263, p. 126 lines 8-25; p. 127 lines 1-5]. Mr. Skaggs, without ever speaking to Mr. Pepin or reviewing the file, decided to keep the Clay Palmer incident and all related evidence out of Petitioner's trial. Mr. Pepin told Ms. Moree "that I would be willing to testify, if necessary, that I thought that his remorse was palpable as it applied to Clay Palmer, that I thought those were human qualities that I could help communicate." [Doc. 263, p. 135 lines 16-19].

The issue of remorse in Petitioner's case goes much deeper than simply his reaction of "horrendous agony and remorse" to his own conduct in this crime. [Doc. 267, p. 66 lines 16-19]. It reveals a deeper level of agony and suffering which has been a part of Petitioner's life. It arguably softens the impact of his conduct on previous instances when he abruptly lost control. Dr. Ash found similar feelings documented in the records of the 1961 Colorado University Hospital examination. The examiners noted, "Subjectively, he said he felt hopeless and sad. He expressed concern over what happened to the woman whom he had apparently stabbed." [Doc. 267, p. 124 lines 18-22; Exhibit 169-4, p. 11]. Dr. Ash found this an important insight into Petitioner's impairments and character because "[i]t expresses both depression, which I think was there probably before, but also since, and it expresses, you know, the sadness, the remorse." [Doc. 267, p. 124 lines 22-25; p. 125 line 1]. Evidence of sincere remorse, in addition to being a humanizing aspect of Petitioner's character, and illustrative of his positive character which lies beneath his ability to control his frustration, can be diagnostically important as well. Dr. Ash, when cross-examined during the hearing before this Court with regard to narcissistic personality disorder, quickly discounted it based on Petitioner's remorse. "[Narcissistic Personality Disorder] boils down to a person uses other people, doesn't have much in the way of feelings about other people. If they do something to another person, there's very little in the way of remorse." [Doc. 267, p. 148 lines 12-22]. This was not the case with Petitioner.

Mark Dotson described the way Petitioner's remorse would overwhelm him.

[Doc. 69-7, p. 2].

Another relevant episode indicating Petitioner's remorse were his statements to a fellow prisoner, Brett Hudson, in the fall of 2002. Inmate Hudson told Natrona County Deputy Lynn Cohee that Petitioner had told him in 2001, "I did something so bad I don't know if Jesus will forgive me for it." Petitioner, later the same day told Hudson, "It happened a long time ago. I killed somebody young about 16 years ago." Hudson related Petitioner then began crying and said, "I can only hope Jesus forgives me for it." [Doc. 35-1, p. 3]. The jury never heard this information provided by Inmate Hudson.

Petitioner's sister-in-law, Bobbie Eaton, had an experience similar to one by Inmate Hudson. She was trying to persuade Petitioner to go to church with her, but he resisted, saying "he would like to go but . . . he had done something that he didn't think he'd ever be forgiven for." [Doc. 266, p. 186 lines 15-19].

The mental health experts who examined him found Petitioner's sincere remorse to be powerful evidence of how little control he had over his neurological and emotional impairments. Dr. Ash indicated Petitioner had "stated emphatically that he wished he never would get angry with anybody." [Doc. 267, p. 70 lines 2-3]. This evidence is "extremely important," according to Dr. Ash, because "it shows how he struggled with this part of him. He tried to avoid this in a number of ways. He would try to avoid situations that would bring up his anger. And when he would get angry, he would have a great deal of difficulty controlling it and would do things that he would regret." [Doc. 267, p. 70 lines 7-11]. Mr. Burr pointed out Petitioner's sincere regret for his outbursts temper the potential negative impact of such evidence in a meaningful way, therefore, in spite of his getting fired from jobs, Petitioner's work history is a rich environment for evidence which fosters an understanding of both his impairments and his good qualities.

[Doc. 266, p. 31 lines 6-20].

A portion of the evidence of Petitioner's deep and sincere remorse which was available to the trial team, and should have been presented, was directly connected to his crimes against Ms. Kimmell, such as Dr. Ash's eyewitness account of Petitioner's "horrendous agony and remorse." [Doc. 267, p. 66 lines 16-19]. Other evidence of remorse arises from Petitioner's reaction to his prior violent outbursts which invariably reduced him to tears of regret. [Doc. 266, p. 108 lines 1-25]. Mr. Skaggs and the trial team steered away from the evidence of remorse in the latter category, apparently out of a concern over Petitioner's history of violence associated with his various employments. Mr. Skaggs and the trial team, however, without investigating those prior instances, could not make a reasonable strategic decision not to use those prior incidents to help humanize Petitioner. Mr. Burr explained. "This is a man who is on trial for an unspeakable act of violence, and for most people who are on trial for similar occurrences this is not the first time in their lives that they have been violent." [Doc. 265, p. 199 lines 8-11]. A competent defense attorney would perceive there was nothing to fear in Petitioner's work history, rather only opportunities for a deeper level of understanding of his actions. Mr. Burr explained.

[Doc. 265, p. 199 lines 22-25; p. 200 lines 1-2].

Remorse, if perceived as sincere and genuine, moves jurors away from the death penalty. John H. Blume, Sheri Lynn Johnson, & Scott E. Sundby, Competent Capital Representation: Heeding What Jurors Tell Us About Mitigation, 36 HOFSTRA L. REV. 1035, 1037, 1038, 1049, 1050. (2008) (noting that remorse is a factor which can lead jurors to choose life over death). There can be little doubt one or more jurors might well have been persuaded Petitioner was truly remorseful for his crime. The failure of Mr. Skaggs and the trial team to investigate the depth of Petitioner's feelings of remorse, and, therefore, offer a fuller and more complete presentation to the jury with regards thereto, was prejudicial to Petitioner.

Likeability—Humanizing Qualities

The previous discussion of Petitioner's life and social history relates to what Professor Gary Goodpaster emphasized in 1983, twenty years before Mr. Skaggs and the trial team represented Petitioner, concerning the standard of defense performance in capital cases, and the necessity of presenting mitigating evidence which indicates the crimes by the defendant are "humanly understandable in light of his past history and the unique circumstances affecting his formative development, that he is not solely responsible for what he is." Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. REV. 299, 335 (1983).

This mitigating evidence, in and of itself, is often, however, not sufficient to counter the prosecution's characterization of a defendant.

Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L. REV. 299, 335 (1983)(footnotes omitted).

Mr. Skaggs apparently did not agree with Professor Goodpaster with regard to the need to "portray the defendant as a human being with positive qualities." He, in fact, prepared a memo for each of the witnesses telling them what not to say on behalf of Petitioner.

Things you CANNOTsay while testifying:

[Exhibit 220-9 (bold and double underlining in original)]. The jury thus did not hear any evidence of Petitioner's positive qualities, nothing about his suicide attempts, and nothing about his institutional history. Mr. Skaggs and the trial team failed to discover and present any substantial humanizing evidence of Petitioner's strong work ethic, his acts of kindness and acts of generosity.

Petitioner's work ethic is an integral part of his identity, beginning from a very early age. Natrona County Deputy Lynn Cohee uncovered his work ethic in one of her earliest pieces of investigation, a tape-recorded interview of Petitioner's sister, Sharon Slagowski.

[Doc. 199-8, p. 7].

Petitioner's parents expressed the same sentiment in their interview with Dr. Robert Dean and Dr. Donald Langsley, indicating Petitioner "has always been interested in working and has liked to work since early childhood." [Exhibit 169-4, p. 19]. Petitioner, at the age of sixteen [Doc. 169-4, p. 17] had already compiled quite a work history.

[Exhibit 169-4, p. 19].

Petitioner's work ethic was one of the first qualities his childhood friend, Brian Conrado, noted about him.

[Doc. 68-5, p. 1].

Mr. Conrado and Petitioner were both about junior high school age, and earned money by mowing lawns. Mr. Conrado indicated many times his grandfather would haul his lawnmower to the job, "but Dale had no one, so he would push this lawnmower up miles probably during the week to lawns wherever they were." [Doc. 268, p. 43 lines 23-25; p. 44 line 1]. They would meet on the streets and talk as each of them was pushing his lawnmower to the next job. [Doc. 268, p. 44 line 1-6]. Mr. Odin Harris owned a hardware store in Meeker. He sold Petitioner a red Toro lawnmower and trusted him enough to finance it. [Doc. 268, p. 44 lines 9-19; p. 56 lines 19-125; p. 57 lines 1-22].

Mr. Conrado also remembers Petitioner's younger brother, Alan Eaton, who was born with cerebral palsy. Alan had a wheelchair, but "Dale would pull him around in a wagon," usually headed toward school. [Doc. 268, p. 47 lines 13-24]. Margie Jackson also remembers Petitioner pulling Alan around in a little wagon. [Exhibit 195, p. 1]. Alan was also mentioned in Dr. Dean's interview with Petitioner and his parents in 1961. Alan was the "nine year old boy, in the fourth grade, who was born after a six months' pregnancy and has suffered from cerebral palsy since birth." Alan was born when Petitioner first started school. Dr. Dean wrote, "Dale reports that he has always tried to help and take care of this brother. The parents confirm this." [Exhibit 169-4, p. 21]. David Brewbaker, a friend of Petitioner and Alan, stated "I know Alan loved Dale very much. Dale watched out for Alan better than any of Alan's other brothers and sisters. Alan said that Dale argued with his brothers and sisters so that Alan could have money." [Exhibit 239, p. 2].

Terry Schmuck, who knew Petitioner and his family in Riverton, recalls when Alan got old enough to drive, "Dale fixed Alan's vehicles so that he could operate the breaks (sic) and the accelerator with hand levers. Dale modified the vehicles so that Alan could get around and go places like everyone else. Like I said, Dale was a good mechanic." [Exhibit 192, p. 2]. Alan died in 2008. [Exhibit 292].

Petitioner, when he was a young man in Riverton, became friends with David Brewbaker. Mr. Brewbaker is medicated for bipolar disorder, and comes from a family in which he was badly beaten and sexually abused by his father. He "didn't have much of a dad, and Dale tried to fill that role for me." Petitioner took him hunting and fishing, but "(p)erhaps the most valuable thing I learned about Dale was the importance of hard work. He was a hard man to follow on the job because he would work so hard it made everyone else seem lazy." Petitioner got Dave a job cutting hay with him one summer. "He stressed the importance of moving quickly to get the job done. The work was available only for brief times when the season was right. . . Dale was a good person and a good friend to me. He was tender and loving and generous. I loved him like a father or a big brother, and he was always good to me." [Exhibit 239, pp. 1,2].

Jim and Sandy Hoopes have perhaps known Petitioner longer than anyone, ever since the early 1970s. Jim knows Petitioner through work, and his wife, Sandy, considers Petitioner a friend. [Doc. 265, p. 22 lines 13-25; p. 23 lines 1-4]. Petitioner had significant, positive interaction with their children and grandchildren. He took old bicycles and tricycles and welded them together and painted them up so they were like new, and their children rode them. One Christmas he played Santa Claus for their grandchildren and great-grandchildren, and brought them oranges and candy. One great-granddaughter, Belinda, made Santa a gift of feminine napkins, "and Dale was embarrassed, and he pushed it down inside the couch." Petitioner was a very good, jolly Santa. He was also kind and thoughtful. He bought Mrs. Hoopes gifts, such as flower vases, he found at swap meets. [Doc. 265, pp. 22, 23, 29, 81].

Mrs. Hoopes described Petitioner as "intelligent with his hands." [Doc. 265, p. 29].34 He performed mechanical work for Mr. and Mrs. Hoopes, such as putting new brakes on Mr. Hoopes' truck. [Doc. 265, p. 29 lines 8-25; p. 59 lines 7-15]. He welded a gooseneck hitch and metal frame onto their sheep shearing plant so they could tow it behind their truck. [Doc. 265, p. 24 lines 12-22; p. 60 lines 6-17; Exhibit 269]. Petitioner did the work from November through January when it was cold outside, however, he pitched a tent around the trailer and worked on it around the clock. It is still in use thirty years later. Petitioner was such a good welder "he could even weld with bailing wire." [Doc. 265, p. 25 lines 24-25; p. 26 lines 1-15]. Mrs. Hoopes stated "(h)e worked. I mean, he worked hard. Anybody who could work out there in the cold and just keep working, he was doing a — well, you know, and he worked with Jimmy a lot . . ." [Doc. 265, p. 27 lines 2-6].

Jim Hoopes, who is over eighty-four years old, had worked with Petitioner at various jobs beginning in 1972. [Doc. 265, p. 55 lines 1-3]. He reviewed his work history with Petitioner as best he could, given his age and circumstances. [Doc. 265, pp. 60-80]. He "always thought he (Petitioner) was a real good worker, but I had to keep an eye on him cause he had such a wicked temper." [Doc. 265, p. 55 lines 4-8].35 Petitioner was, nevertheless, such a good worker, Mr. Hoopes requested him for his crew whenever he had the opportunity. [Doc. 265, p. 54 lines 10-24].

Mark Dotson, owner-operator of West Hills Excavation, valued Petitioner's job skills and work ethic. Mr. Dotson, although his health prevented him from attending the hearing before this Court, executed a declaration attesting to Petitioner's valuable job skills and work ethic.

[Doc. 69-7, p. 2].

Other employers and co-workers had similar opinions with regard to Petitioner's work ethic. Steve DuBry, of Casper, described Petitioner as "a hard worker, a good mechanic, and a great welder." He also witnessed Petitioner's difficulty with other people. "Dale could not work with other people, he just couldn't handle it. If a contractor needed one mechanic, or one welder, Dale was your man. If the job called for several mechanics then I would not send Dale unless I absolutely had to because I knew there would be problems." He admits "Dale was a skilled worker and I could depend on him to do a job right, but his inability to get along with others often worked against Dale and he lost jobs over it." [Doc. 69-4, p. 1].

Johnny Miller, a construction worker, valued Dale as a good friend and good employee.

[Doc. 69-5, p. 1].He indicated Petitioner "would do anything for you. If you needed something and he could help, he was your man. He never thought twice about helping me with my work. He was a good friend to me, I still consider him my friend." [Doc. 69-5, p. 2].

People who knew Petitioner outside the workplace valued him for his kindness and generosity. Petitioner, while working for Mark Dotson in Utah, was dating Kerry Lynn Rose. Ms. Rose is now deceased, although she was alive at the time of Petitioner's trial, and actually offered her assistance. [Exhibit 171-36]. Her parents, Ron and Sally Rose, remember Petitioner as someone who was good to their daughter and granddaughter. He also poured a new driveway and sidewalk for Mr. and Mrs. Rose. He helped Kerry Lynn financially, even when they were no longer dating. He often had surprises for Kerry Lynn's daughter, Angela, such as candy, toys or games. [Exhibit 200, p. 1; Exhibit 201, p. 1].

Shirley Widmer remembered Petitioner was always helping her husband, Floyd, fix cars, played with their children, and regularly took them out to dinner. [Exhibit 204, p. 1]. Their daughter, Thea Smith, recalls Petitioner picking her up when her motorcycle broke down and driving her home. Petitioner "was very protective of my brother and me and I know he would have done anything for us." [Exhibit 205, p. 1].

Floyd Widmer, though now deceased, testified as a mitigation witness. Shirley stated Floyd "couldn't hear the attorney's questions," and they "didn't practice or go over our testimony with Dale's attorney that I remember." Floyd Widmer, after the trial, was very upset. [Exhibit 204, p. 2]. Thea Smith has the same recollection.

[Exhibit 205, p. 1].

Bobbie and Richard Eaton were also beneficiaries of Petitioner's kindness and generosity. "He was a good man to my point. He was generous. If you ever needed anything, he would try to get it for you or help you." [Doc. 266, p. 180 line 25; p. 181 lines 1-4]. Bobbie and Richard were having financial problems, and Petitioner would "give us money for food and for gas and just to try to help out." [Doc. 266, p. 181 lines 15-20].36 Petitioner, when he went to flea markets, always brought home a gift for Bobbie and Richard. He knew Richard collected marbles, and liked oil lamps, so he would bring them an oil lamp and fill it with marbles. He would bring Bobbie Coca-Cola items and little knickknack horses. [Doc. 266, p. 181 lines 23-23; p. 182 lines 1-6]. Petitioner was especially kind to Bobbie's son by a prior marriage, Bennie, whom they called JR, and would take him hunting and fishing. The Eaton sisters did not accept JR as part of the family, so it was important to Bobbie that Petitioner "welcomed him like he was just part — one of his other nephews and nieces, treated him really well." [Doc. 266, p. 175 lines 20-25; p. 176 lines 1-19]. Sadly, JR was shot to death at age 16, and Petitioner "was very, very emotional about it." He was very supportive of Bobbie, and bought her little gifts to make her feel better. [Doc. 266, p. 177 lines 2-22].Richard stated if he liked you, "Dale would give you the shirt off of his back, and . . . I've seen him give stuff to people . . . when he was doing without." [Doc. 266, p. 232 lines 1-10].

Richard also stated Petitioner went to stay with his niece, Denise Heinz, in July and August, 1997, to protect her from an abusive ex-husband who had been threatening and stalking her. [Doc. 266, p. 232 lines 11-24; Exhibit 194, p. 1].

One characteristic exhibited by Petitioner which would possibly have been significant mitigation evidence for the jury to consider was the fact he would never pass up a person in need of help. What Donna Schmuck "remember[s] most about Dale is that he was always willing to help. Whenever he came by, if Terry was working on something, Dale would stop and pitch in. Dale was good at welding, and he fixed equipment around the farm for us on a number of occasions. He never took any money for it." [Exhibit 203, p. 1]. Donna's husband, Terry Schmuck, has the same memories of Petitioner. "Dale was generous with his time. Whenever I was outside working on something when Dale drove by, he would always stop and help." [Exhibit 192, p. 1]. Priscilla Moree was provided the same type of evidence when she interviewed Keith Lange by telephone. He, too, talked of Petitioner's helpfulness, and told her of a time when his hogs got loose and Petitioner stopped to help him round them up. [Exhibit 171-22, p.1].

Mr. Burr explain why the evidence which would have shown the jury Petitioner's positive qualities is just as important in the penalty phase of a capital trial as the evidence of his substantial mental and emotional impairments.

[Doc. 266, p. 12 lines 17-25; p. 13 lines 1-4]. Mr. Skaggs and the trial team failed to produce mitigation evidence and testimony which would have offered the jury insight into Petitioner's innate humanity.

Defense counsel, when the only genuine question is whether the jury will impose the death penalty, cannot afford to overlook any opportunity draw out admissible evidence of the client's intrinsic human dignity. These opportunities will often arise on the cross-examination of prosecution witnesses who know the client. The practice among capital defense lawyers of taking proper steps to humanize the client during the guilt or innocence stage of the trial is called "frontloading mitigation." Mr. Burr explained why it is so crucial in a death penalty case.

[Doc. 266, p. 32 lines 10-25; p. 33 lines 1-5]. The ABA Guidelines as well provide "(c)ounsel at every stage of the case should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client." [ABA Guideline 10.11.L].

There is no indication in the trial record Mr. Skaggs or the trial team gave any thought to "front-loading" mitigation evidence. This apparent failure to consider "front-loading" is particularly perplexing in light of the fact the law review article by Professor Garvey, which Mr. Skaggs testified he read before trial, and even brought to the hearing before this Court, [Doc. 261, p. 36 lines 1-8], cautions capital defense lawyers that "a number of jurors make up their minds about the defendant's punishment even before they hear any evidence in the penalty phase." Stephen Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? 98 COLUM. L. REV. 1538, 1543 (October 1998). Jurors tend to make up their minds early, thus "(i)ntroducing mitigating evidence early adds an additional humanizing dimension to the image of the defendant as a two-dimensional, cold-hearted killer — an image the jurors are otherwise likely to form prior to the penalty phase." Scott Sundby, The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 CORNELL L. REV. 1557, 1595 (September, 1998). Professor Craig Haney, a lawyer and psychologist who specializes in capital punishment issues, explains the necessity to frontload mitigating evidence in the guilt or innocence stage of trial.

Craig Haney, Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death, 49 STAN. L. REV. 1447, 1457, 1458 (1997). In other words, if the jury knows nothing about the defendant other than the facts of the crime when it renders its verdict finding him guilty, the defense bears a very heavy burden to win them over to life in the second stage of trial.

There were a number of witnesses who testified for the prosecution at the guilt or innocence stage of Petitioner's trial who presented opportunities, through informed and proper cross-examination, to begin to paint a humanizing picture of Petitioner. Doris Buchta is one example of a missed opportunity to "frontload" mitigation — to humanize the defendant as early as possible in the proceedings by drawing out evidence of his relationships with witnesses, whether they testify for the State or for the defense. Mr. Burr explained the missed opportunities with respect to Mrs. Buchta.

[Doc. 266, p. 33 lines 6-25; p. 34 lines 1-24; See also Exhibit 235, a verbatim compilation of Doris Buchta's journal entries which mention Petitioner].

Mr. Skaggs and the trial team missed similar opportunities with other prosecution witnesses. Mary Follette could have testified Petitioner "bought gifts for me and my son as tokens of his affection. Sometimes I would come home to find a huge bouquet of flowers waiting for me. Another time he gave my son, Brian, a pick-up truck. He was generous and I'm sure he would have done anything for me." She also had some sympathy for Petitioner. "When I think of Dale and his situation I am saddened. I always knew there was something wrong with Dale and I don't believe he deserves to be put to death." [Exhibit 313, pp. 1, 2]. Mr. Burr explained this was a wasted opportunity.

[Doc. 266, p. 36 lines 24-25; p. 37 lines 1-18]. Mr. Burr pointed out the seventh paragraph of Mary Follette's declaration reflects the availability of even more front-loading. "Yeah, I mean, you could begin to introduce the theme of his being — his good work ethic and his considerable skills as a welder." [Doc. 266, p. 47 lines 23-25; p. 38 lines 1-2].

Mr. Skaggs and the trial team had the opportunity as well to front-load mitigation evidence through prosecution witness Paul Follette. Mr. Burr points out the declaration by Mr. Follette [Exhibit 314] reflects the "contradictions about people that tend to humanize them and us" and allow the jury to "begin to start resonating with him as a fellow human being." [Doc. 266, p. 38 lines 22-25; p. 39 lines 1-10]. Mr. Follette testified for the prosecution, and could have been cross-examined about his knowledge of Petitioner. His declaration states: "I know Dale cared a lot for his children and even when he had very little he thought of them first. Whatever he had, he made sure they were fed and taken care of. It was obvious to me that he loved his children and tried to care for them the best he knew how." [Exhibit 314, p. 1].

Mr. Burr observed Mr. Follette could also have begun laying the foundation for the mental health case, in addition to elucidating Petitioner's positive human qualities and frailties.

[Doc. 266, p. 38 lines 9-25; p. 39 lines 1-10].

James Raney presented yet another opportunity to begin laying the foundation for Petitioner's penalty stage defense. Mr. Burr noted Mr. Raney's declaration, [Exhibit 285], beginning with paragraph four, reflects

[Doc. 266, p. 35 lines 13-25; p. 36 lines 1-2]. A competent capital defense attorney, through James Raney, would be able to begin presenting the mitigation case-in-chief during the prosecution's case in chief. Mr. Burr explained further.

[Doc. 266, p. 36 lines 3-10].

The failure by Mr. Skaggs and the trial team to conduct a reasonable mitigation investigation caused them to miss these front-loading opportunities. "I don't know which it was, ignoring or failing to see, but he missed these opportunities, you know, in part because they had not done the kind of interviewing with these witnesses that, that would have evoked this information." [Doc. 266, p. 39 lines 11-17]. It is even apparent from the declaration by James Raney he appears to know the Steve DuBry story about Dale reaching into the pot of spaghetti with the greasy hand. "Yeah, that's right. So there are a lot of connections that were there and were unknown to the defense because of the superficiality of their work." Mr. Burr opines competent capital counsel would not have performed this way. [Doc. 266, p. 39 lines 21-25].

The mitigation investigation and presentation on behalf of Petitioner by Mr. Skaggs and the trial team was fundamentally flawed, and failed to show the jury Petitioner, in spite of his severe impairments, was a unique, complex human being with positive qualities. This failure inevitably prejudiced the outcome of Petitioner's capital trial.

Prejudice — Conclusion

A § 2254 petitioner, in order to establish an ineffective assistance of counsel claim, "must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 1419 (2009).

"To establish a claim for ineffective assistance of counsel, a defendant must show that. . . . (2) counsel's deficient performance was prejudicial." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. at 787-792. Prejudice entails "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. See also, United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)(quoting Strickland v. Washington, 466 U.S. at 688, 694).

The United States Supreme Court, in 2011, in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770 (2011), reiterated its philosophy on deficient performance and prejudice first set out in Strickland v. Washington. The Supreme Court, with regard to prejudice, stated:

The United States Supreme Court has outlined the proper prejudice inquiry for evaluating a claim of ineffective assistance of counsel in the context of a penalty phase mitigation investigation.

The significant mitigation evidence presented to this Court, through lay and expert testimony, was not discovered, and if discovered, not utilized by Mr, Skaggs and the trial team. This lack of discovery and/or lack of use was apparently based on a concern an in-depth investigation might "open the door" to presentation of adverse information, arguably through the possible cross-examination of the potential mitigation witnesses.37 This type of mitigation investigation is inevitably ineffective as a judgement as to whether potential mitigation evidence will be helpful or harmful is not possible when there is absolutely no knowledge or understanding, based on a reasonable investigation, of the nature and character of the potential evidence. This is why a "counsel's failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision to focus on Williams' voluntary confessions, because counsel had not `fulfill[ed] their obligation to conduct a thorough investigation of the defendant's background.'" Wiggins v. Smith, 539 U.S. at 522, quoting Williams v. Taylor, 529 U.S. 362, 396 (2000). In other words, a "failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment." Wiggins v. Smith, 539 U.S. at 526. It has long been recognized "strategy resulting from lack of diligence in preparation and investigation is not protected by the presumption in favor of counsel." Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991). Any claims by the trial team of "strategy" carry little weight since "counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made."Kenley v. Armontrout, 937 F.2d at 1308. A strategic decision is an informed choice between alternative courses of action, which does not describe the choices by Mr. Skaggs and the trial team with respect to the mitigation case. Trial counsel's claim of uninvestigated trial strategy, in similar circumstances, have been rejected.

Kenley v. Armontrout, 937 F.2d at 1309 (emphasis added).

The Court has concluded, for a number of reasons, including for failing to investigate reasonably available and potentially mitigating evidence, the performance of Petitioner's trial counsel was constitutionally defective. The remaining question is whether the deficient performance by trial counsel prejudiced Petitioner.

The standard by which a court must judge prejudice is whether there is a reasonable probability the outcome of the sentencing phase of Petitioner's trial would have been different "but for" trial counsel's deficient representation. A reasonable probability is one sufficient to undermine a court's confidence in the outcome of the trial proceeding. An assessment of the probability of a different outcome must "consider the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweig[h] it against the evidence in aggravation." Sears v. Upton, 561 U.S. 945, 130 S.Ct. at 3266-3267.

It is the conclusion of this Court there is, at a minimum, a reasonable probability Petitioner would not have received a sentence of death if the mitigating evidence presented this Court had been presented to the trial court jury. Petitioner has suffered prejudice as the result of the constitutionally deficient performance of his trial counsel.

CLAIM FOUR

The "conflict of interest" which Petitioner alleges in this, his fourth claim, is not one in the traditional sense in which an attorney has "abandoned his `duty of loyalty' to his client" through a conflict. Osborne v. Shillinger, 861 F.2d 612, 625 (10th Cir. 1988); Wood v. Georgia, 450 U.S. 261, 267 (1981); Fisher v. Gibson, 282 F.3d 1283, 1291 (10th Cir. 2002). His claim rather asserts his Wyoming State Public Defender appellate counsel was constitutionally deficient based, once again, on a failure to adequately investigate his background, character, and mental health, which failure was caused by an internal conflict within the Wyoming State Public Defender Office between his appellate counsel and his trial counsel which undermined the investigative efforts of appellate counsel. The Court will address Petitioner's claim from this perspective.

Petitioner was represented on appeal by an evolving team of attorneys from the Wyoming State Public Defender Office. The initial team included Tina Kerin (now "Olson"), Donna Domonkos, Ryan Roden, and Diane Lozano. [Doc. 263, p. 165 line 25; p. 166 lines 1-8]. Ms. Olson, Ms. Domonkos, and Mr. Roden were, at that time, the entire Wyoming State Public Defender Office Appellate Division. [Doc. 263, p. 148 lines 18-22]. Petitioner's appellate team eventually included Marion Yoder, following the departure of both Ms. Domonkos and Ms. Lozano. [Doc. 263, p. 166 lines 9-25; p. 167 lines 1-21]. Mr. Kenneth Koski was the State Public Defender at the time of Petitioner's trial and appeal, and Mr. Skaggs was the capital trial "unit." [Doc. 86-3, p. 18 lines 13-18].

Appellate counsel obtained the files of Mr. Skaggs and Ms. Moree. Ms. Olson testified as part of her record review in Petitioner's case, she reviewed the combined fact investigation/mitigation investigation billings of Ms. Moree, and determined "it was like $21,000, and I think most of that or a good chunk of that was sitting through the trial." This caused the appellate team concern — it both was significantly lower than, for example, what had been spent in the Harlow case, and "the scope of the work that needed to be done could not have been done in that amount of time certainly." [Doc. 263, p. 198 lines 20-25; p. 199 lines 1-17]. Ms. Olson, based upon her file review and the state court record, along with the files of Petitioner's trial attorneys which had been gathered in connection with the appellate team's efforts, offered her impression the scope or breadth of the mitigation case or investigation which had been done

[Doc. 263, p. 199 lines 18-25; p. 200 lines 1-21].

Ms. Moree's engagement letter to Mr. Skaggs, [Exhibit 4], along with the failure by Mr. Skaggs to make any funding requests for "sending Priscilla to places where Dale Eaton had lived," caused concerns. [Doc. 263, p. 201 lines 7-24]. The appellate team also recognized interviews by Ms Moree were "largely by phone," and "did not seem to be productive. * * * [F]or example, if you compared police interviews with Miss Moree's interviews, the police interviews were more replete with information than the mitigation person's, Miss Moree's, interviews." The police interviews largely were in-person. Ms. Moree's witness interviews, by contrast, "were brief." Ms. Moree did not follow-up with personal visits. Ms. Olson indicated "Priscilla did not proceed in a manner that was commensurate with the guidelines or the [mitigation] training that I had received." [Doc. 263, p. 201 line 25; p. 202 lines 1-20]. The appellate team was further concerned the necessary mitigation investigation had not been done, and Ms. Moree simply "was not going out. Priscilla was not traveling. Priscilla was not on the scene, so to speak. That's what you do. You have to go to the towns. You have to do all those things." [Doc. 264, p. 201 lines 1-5].

Petitioner's appellate counsel, in fact, knew competent representation of him would require additional investigation.

[Doc. 264, p. 169 lines 20-25; p. 170 lines 1-7]. The required investigation was never conducted.

[Doc. 264, p. 204 lines 7-25; p. 205 lines 1-11].

The appellate team consulted Russell Stetler, the National Mitigation Coordinator for the Federal Public Defender System, and Richard Burr, Federal Death Penalty Resource Counsel and an experienced death penalty trial attorney. Both confirmed significant avenues of mitigation and mental health evidence remained unexplored in Petitioner's case. [Doc. 264, p. 206 lines 13-25; p. 207 lines 1-12; Doc. 87-6, pp. 35-48; Doc. 87-7, pp. 1-18]. The appellate team learned from Mr. Stetler it

[Doc. 264, p. 207 lines 23-25; p. 208 lines 1-10]. The appellate team similarly learned from Mr. Burr

[Doc. 264, p. 209 lines 2-25]. The appellate team obtained the affidavit by Mr. Burr, [Doc. 71-1], just three days prior to the start of the Calene remand evidentiary hearing. [Doc. 264, p. 208 lines 22-25; p. 209 line 1]. The appellate team then fully realized it needed a thorough, accurate, and complete psychosocial history. [Doc. 264, p. 209 lines 17-25; p. 210 lines 1-4]. Mr. Stetler and Mr. Burr both confirmed Ms. Olson's earlier concerns the appellate team was not doing the mitigation investigation which needed to be done. Both "were assuring me that my concerns were extremely well-founded and that we were in some hot water. They were educating me about the scope of what still needed to be done. Um, and, uh, and it wasn't just at this moment in time. I had many, many, many conversations with Russ Stetler." [Doc. 264, p. 210 lines 9018]. The appellate team was ultimately not able to perform the life history or mitigation investigation which needed to be done on behalf of Petitioner. [Doc. 264, p. 222 lines 20-24; p. 229 lines 23-25; p. 230 lines 1-6]. The appellate team was never able to provide their mental health expert, Dr. William Logan, a proper psychosocial history concerning Petitioner.[Doc. 264, p. 230 lines 7-9].

The Wyoming Supreme Court observed, based upon its application of the Strickland v. Washington ineffective assistance of counsel doctrine, "opportunity to the defendant for a favorable conclusion has been noticeably confined." Calene v. State, 846 P.2d 679, 693 (Wyo. 1993).

Calene v. State, 846 P.2d at 693, n.5. The three cases in which the Supreme Court found the trial counsel to be ineffective all have one thing in common. "It is quickly apparent that the only successful avenue has related to investigation and obtaining witnesses, e.g. Frias [v. State, 722 P.2d 135 (Wyo. 1986)], Gist [v. State, 737 P.2d 336 (Wyo. 1987)], and King [v. State, 810 P.2d 119 (Wyo. 1991)]." Calene v. State, 846 P.2d 679, 693, n.5 (Wyo. 1993). Petitioner's appellate team, when they began work on Petitioner's appeal, recognized any Calene remand required investigation outside of the state court record. [Doc. 263, p. 162 lines 8-25; p. 163 lines 1-16].

There was, however, in the view of Petitioner's appellate team, a hostility within the Wyoming Public Defender Office with regard to ineffective assistance of counsel claims.

[Doc. 70-3, p. 3]. Mr. Koski was the person responsible for staffing and funding Petitioner's appeal, and thus had the ultimate authority over resources, both time and money, to be allocated thereto. Mr. Koski, on at least one occasion, made his feelings clear as to the expenses which can be associated with capital defense within the Wyoming Public Defender System — they drain the system's resources.[Doc. 263, p. 216 lines 2-20; Doc. 70-3, p. 4].

The appellate team, given its lack of capital experience or training, met with expert state and federal capital defenders in Colorado on October 26, 2004. [Doc. 263, pp. 188-190; Exhibit 247-3]. David Wymore, during the meeting, "was very emphatic and vocal about the fact that implicit in our system that we have here in Wyoming is an inherent conflict of interest in raising ineffective assistance of counsel claims on our fellow employee attorneys. * * * [T]hey thought that it was a very big issue. I said huge in my contemporaneous note." [Doc. 263, p. 190 lines 10-19]. The Colorado meeting included a discussion as to whether there would be documentation in support of any conflict claim, and Ms. Olson knew coming away from the meeting the appellate team had a challenging task ahead of it. It needed more assistance, needed more resources, and "[t]hat we would need to continue to confer with people more experienced in capital case litigation and appellate work." [Doc. 263, p. 194 lines 10-25]. Ms. Olson was concerned "we not accommodate the machinery of death [by not raising conflict issue], as Mr. Wymore phrased it." [Doc. 263, p. 195 lines 20-24]. Donna Domonkos, following the appellate team Colorado meeting, first approached Mr. Koski with regard to the conflict issue. The meeting "did not go well. * * * Mr. Koski was not receptive to the idea of the conflict motion initially." [Doc. 263, p. 196 lines 4-22]. He "took the suggestion of a conflict that we would be, you know, wanting to get out of the case, not having to do the representation in the case, was his initial reaction to Donna approaching him." [Doc. 263, p. 197 lines 16-22].

The appellate team, following the adverse reaction by Mr. Koski to the suggestion a conflict existed, continued to make efforts to meet with him and keep him informed regarding their work on the conflict motion to withdraw. [Doc. 263, p. 203 lines 5-25; p. 204 lines 1-21]. Petitioner's appellate defense team meet with Mr. Koski in December, 2004.

[Doc. 70-3, p. 4].

The day after the appellate team met with Mr. Koski, December 30, 2004, Andy Fraser, the investigator the appellate team had chosen to assist them in Petitioner's appeal, telephoned Diane Lozano, and declined to work further on Petitioner's appeal. The reason he gave was the fact "Mr. Skaggs is not happy with the fact that I have been working on the Eaton appeal." [Doc. 67-5, pp. 12, 13; Doc. 67-6, pp. 3, 4]. The loss of Mr. Fraser as their investigator put the appeal team "in a serious bind. We lost valuable time as we scrambled to find another investigator who would have to review a large volume of transcripts and other documents to get up to speed on the case. As all of this was going on, the clock was ticking on our time to pursue the appeal, and we were having to request extensions of time from the Wyoming Supreme Court." [Doc. 66-7, p. 6].

Ms. Olson also recalls a personal confrontation she had with Mr. Koski after the December 29th meeting and just prior to the appellate team filing the motion to withdraw with the Wyoming Supreme Court based on a conflict of interest.

[Doc. 263, p. 207 lines 19-25; p. 208 lines 1-8].

The Wyoming Supreme Court denied, without conducting a hearing or further inquiry, the motion to withdraw by Petitioner's appellate team. [Doc. 67-8].

Ms. Olson, when asked by Deputy Attorney General David Delicath whether Ken Koski actively undermined appellate team's case, candidly replied:

[Doc. 264, p. 252 lines 20-25].

Petitioner's trial record was one of the largest Ms. Olson had encountered, and even prior to reviewing the complete record the appellate team had a concern as to what mitigation had been done in preparation for, and presentation at trial.

[Doc. 263, p. 159 lines 3-12].

The composition of the appellate team, as previously noted, changed over time, however, the most problematic result for the appellate team was the loss of their two chosen investigators, which directly impacted the team's ability to perform the necessary mitigation investigation.

[Doc.263, p. 167 lines 21-25; p. 168 lines 1-7]. The appellate team attorneys, as of February or March, 2005, were Ryan Roden, Marion Yoder, and Tina Olson. [Doc. 263, p. 168 lines 21-25]. Richard Webb was hired as an investigator sometime in February or March, 2005. [Doc. 263, p. 181 lines 2-13]. Ms. Olson described the adverse impact replacing Andy Fraser and Roy Holiday with Richard Webb had on the representation of Petitioner.

[Doc. 263, p. 179 lines 13-25; p. 180 lines 1-4]. Richard Webb, in contrast, was not what the appellate team needed to adequately prepare and ultimately present an effective mitigation case for Petitioner.

[Doc. 263, p. 181 lines 18-25; p. 182 lines 1-2]. Andy Fraser and Roy Holiday being replaced by Mr. Webb

was very problematic. And it's not just a matter of timing, although the timing was very bad because now all this time had elapsed. We'd had apparently three extensions of time at that point — one, two, three — and it was problematic from the standpoint we then had to find a different investigator. And then when we found the outside investigator as Ken instructed us we had to do, he did not . . . turn out to be an investigator who was as helpful as we would have liked for that part of the case.

[Doc. 264, p. 170 lines 12-23]. Mr. Neubauer is more blunt, describing Mr. Webb as "very demanding . . . very rude." [Doc. 262, p. 206 lines 18-25]. Mr. Neubauer describes Mr. Webb as having approached him like a

[Doc. 262, p. 207 lines 7-25; p. 208 line 1].

The appellate team, as previously discussed, consulted Russell Stetler, who confirmed significant avenues of mitigation and mental health evidence remain unexplored in Petitioner's case. [Doc. 87-6, pp. 35-48; Doc. 87-7, pp. 1-18]. The appellate team also learned from Mr. Stetler the performance by Mr. Skaggs and the trial team was definitely deficient, however, the appellate team had done little or nothing to establish Petitioner was prejudiced thereby. Mr. Stetler testified "some of the stuff was just so basic. I mean, there were all these family members who had never been interviewed. There were lots of places to start." [Doc. 264, p. 154 lines 22-25; p. 155 line 1]. The team similarly learned from Mr. Burr

[Doc. 264, p. 209 lines 2-25].

The appellate team specifically sought approval by Mr. Ken Koski to employ a mitigation specialist to perform the mitigation investigation which had never been done in preparation for Petitioner's trial. [Doc. 264, p. 204 line 25; p. 205 lines 1-4]. Ms. Olson understood the critical role and function of a mitigation specialist.

[Doc. 264, p. 202 lines 15-25; p. 203 lines 1-6]. Mr. Koski denied the team's request.

[Doc. 264, p. 198 lines 1-17]. The appellate team discussions with Mr. Koski included informing him, with respect to the ABA Guidelines, of the required composition of a capital defense team, and what a mitigation specialist should have by way of qualifications, experience, and abilities. It did no good. Mr. Koski was "familiar with Mary [Goody] and the kind of work she had done, and he knew how much it costs and what that person would do. So he had that knowledge, and that's what he was telling me I couldn't do from his perspective, I can't do that." [Doc. 264, p. 198 lines 18-25; p. 199 lines 1-8].

Those appellate team discussions with Mr. Koski also included discussing with him the deficient trial team mitigation investigation and representation at Petitioner's sentencing. Ms. Olson made an effort to explain by example the need for a mitigation investigation, an investigation which had not been done prior to trial.

[Doc. 264, p. 199 lines 15-25; p. 200 lines 1-22]. Those discussions by the appellate team with Mr. Koski concerning the critical need for a mitigation specialist included the most current United States Supreme Court cases with respect to the mitigation investigation which should be done by competent counsel, such as Wiggins v. Smith, and Williams v. Taylor. [Doc. 264, p. 202 lines 2-14]. Mr. Koski nevertheless seemed to be of the "opinion that having sent the letters to certain family members and so forth * * * was the adequate effort, and if the family member said I'm not talking to you, that's that." [Doc. 264, p. 203 lines 13-20]. Mr. Koski did not seem to understand what Ms. Olson or her team were discussing with him with respect to the need for a mitigation specialist. His reason given for denying the mitigation specialist request — "[t]he money." [Doc. 264, p. 203 lines 7-12].

Ms. Olson stated the appellate team did not "obtain the resources [the] team felt were necessary to represent Dale Eaton on his appeal and his associated Calene remand proceeding. * * * Ken Koski's refusal to consider and approve [the] team's request for a . . . mitigation specialist[] impact[ed the team's] representation of Dale Eaton." [Doc. 264, p.203 lines 21-25; p. 204 lines 1-4].

The Wyoming Supreme Court, in its Calene decision, suggested any successful ineffective assistance of counsel claim must be based on new facts and evidence not discovered by trial counsel. Mr. Burr, in his affidavit submitted to Petitioner's appellate team and filed with the Calene court, explained in detail the work required to enable appellate counsel to develop the facts supporting Petitioner's claim the representation at trial by Mr. Skaggs and the trial team was constitutionally deficient.

[Doc. 71-1, pp. 14, 15]. The required work described by Mr. Burr is well-supported by United States Supreme Court death penalty jurisprudence. Williams v. Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2006); and the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REV. 913 (Summer, 2003). Mr. Burr advised Petitioner's appellate team of their duty to investigate Petitioner's life history, prepare an accurate, and thorough psychosocial history, and then in turn present it to the mental health expert. [Doc. 265, p. 186 lines 23-25; p. 187 lines 1-2]. Mr. Burr alerted the appellate team to a number of

[Doc. 265, p. 187 lines 7-25]. Mr. Burr advised the appellate team, in essence, to develop the psychosocial history and then present it to the experts.

[Doc. 265, p. 188 lines 5-16]. Mr. Burr does not believe the appellate team was able to conduct the investigation he recommended, basically because of a lack "of time and lack of resources." [Doc. 265, p. 188 lines 17-20]. It is also likely a reasonable investigation and effective performance by the appellate team would have produced the same workplace mitigation declarations presented to this Court.

[Doc. 266, p. 31 lines 24, 24; p. 32 lines 1-9]. Mr. Burr stated his opinion, based on the standards of performance which applied to the mitigation function of capital defense teams during 2003 and 2004, the performance by Petitioner's appellate team with respect to the investigation of Petitioner's background and character "was well below reasonable and was deficient under Strickland, for different reasons, but it was." [Doc. 266, p. 78 lines 24, 25; p. 79 lines 1-8]. Mr. Burr also offered his opinion, based upon his training, experience, and research in the field of capital litigation, there is a reasonable likelihood at least one juror would have voted for a life sentence based upon the information now available as a result of the mitigation investigation which had been done by Petitioner's capital habeas team. "Yes, there is at least a reasonable likelihood, in my opinion probably a greater likelihood of that." [Doc. 266, p. 78 lines 9-25].

Petitioner's appellate team was deprived of arguably the most critical tool for developing Petitioner's claim of ineffective assistance of counsel, i.e., a mitigation specialist with the specialized skills necessary to handle a case like Petitioner's.

[Doc. 66-7, pp. 6, 7 ¶ 23].

The Wyoming Supreme Court, in its April 5, 2005, order remanding Petitioner's appeal to the trial court for a Calene hearing to allow appellate counsel to develop and prove Petitioner's claim of ineffective assistance of trial counsel, required the Calene hearing be completed, and findings of fact and conclusions of law be issued within ninety (90) days. [Doc. 264, p. 210 lines 19-25; p. 211 lines 1-11]. The trial court, following entry of the remand order, held a scheduling conference on April 12, 2005, during which the court allowed the appellate team ten days within which to designate, with reports, their expert witnesses who would testify at the Calene hearing. The court also set an evidentiary hearing date which allowed the appellate team was less than two months to prepare. [Doc. 264, p. 218 lines 15-25; p. 219 lines 1-21].

Appellate counsel advised the trial court and the Wyoming Supreme Court on multiple occasions additional time was necessary to investigate Petitioner's claims for relief. Appellate counsel objected to the "speedy schedule," and moved for a continuance in order to investigate Mr. Eaton's claims for relief. Appellate counsel advised the trial court their investigation was "incomplete" because of the Wyoming Supreme Court deadline, and Petitioner's due process rights were violated by "being forced to maintain that schedule." [Doc. 86-2, pp. 21, 22]. Appellate counsel further stated Petitioner was occasionally unable to assist them in their investigation. [Doc. 86-2, p. 23]. The trial court denied the motion to continue the Calene hearing, and thereafter denied Petitioner's claims of ineffective assistance of counsel.

Ms. Olson concedes Petitioner's appellate team was not adequately prepared to present their claims of ineffective assistance of counsel at the Calene remand hearing. [Doc. 264, p. 229 lines 23-25; p. 230 lines 1-25; p. 231 lines 1-4]. The appellate team was basically not able to adequately fulfill the recommendations received from both Mr. Stetler and Mr. Burr:

[Doc. 264, p. 232 lines 8-25].

Claim Four — Conclusion

A § 2254 petitioner, as previously noted, in order to establish an ineffective assistance of counsel claim, "must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U.S. at 122, 129 S.Ct. at 1419.

An inquiry into an allegation of deficient performance by appellate counsel and resulting prejudice is guided, the same as it is with such an assertion with regard to trial counsel, by the ABA Guidelines for the Appointment and Performance of Counsel in Capital Penalty Cases, which outline the "prevailing professional norms" by which the performance by death penalty counsel is to be measured. Padilla v. Kentucky, 559 U.S. at 366, 367; Heard v. Addison, 728 F. 3d at 1180; Wiggins v. Smith, 539 U.S. at 524; Littlejohn v. Trammell, 704 F.3d at 859, 860; Bobby v. VanHook, 558 U.S. at 6; ABA Guidelines 1.1, pp. 1, 10, 11.

Petitioner's appellate team, as is clearly apparent from the foregoing discussion in which members of his team basically admitted as much, failed to perform to the "prevailing professional norms," primarily for one of the same reasons Petitioner's trial counsel was deficient, i.e., the failure to perform and present to the court a through and detailed mitigation investigation. [ABA Guideline 10.7]. The fact the failure by the appellate team to conduct the required investigation was obviously impeded by the culture of the Wyoming Public Defender Office with regard to ineffective assistance claims, as well as the concrete fact Mr. Koski, as the head of the Wyoming Public Defender Office, refused to allow the appellate team to hire a mitigation specialist, cannot excuse the fact the performance by the appellate team was constitutionally deficient. The appellate team, as evidenced by the testimony of Ms. Olson and Ms. Domonkos, was well aware of what was required to provide effective representation of Petitioner at the Calene hearing and on appeal. The fact said team, despite its clearly diligent effort, could not provide the required constitutional appellate representation of Petitioner also prejudices him for the same reasons he was prejudiced by the failure of the trial team to conduct the required in-depth mitigation investigation. A full and complete psychosocial history for Petitioner was not presented to either the Calene court, nor to the Wyoming Supreme Court.

CONCLUSION

Respondent has not challenged the ability of this Court to consider Petitioner's allegations of ineffective assistance of counsel based on the fact such claims were considered and rejected in the state court proceedings, particularly Petitioner's appeal to the Wyoming Supreme Court. Petitioner's allegations of a conflict of interest provide an opportunity for the Court, perhaps out of an abundance of caution, to address the propriety of its consideration of Petitioner's ineffective assistance claims.

The law of the Tenth Circuit, based upon the United State Supreme Court decision in Kimmelman v. Morrison, 477 U.S. 365 (1986), indicates a state procedure requiring ineffective assistance of counsel claims to be raised on direct appeal will not bar de novo federal review of a claim of ineffective assistance of trial counsel unless it satisfies two conditions. The state procedure must "(1) allow[ ] petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance and (2) provid[e] a procedural mechanism [on direct appeal] whereby petitioner can adequately develop the factual basis of his claims of ineffectiveness." English v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998) (Emphasis added).

The Tenth Circuit Court of Appeals has also provided guidance as to what would constitute "separate counsel on appeal."

Cannon v. Mullen, 383 F.3d 1152, 1173, 1174 (10th Cir. 2004).

The previous discussion of the financial and logistical difficulties faced by Petitioner's appellate team in asserting an ineffective assistance claim on direct appeal to the Wyoming Supreme Court, including the fact trial counsel and appellate counsel shared the same office space, clearly reveal a "culture" in the Wyoming Public Defender Office during the time frame of Petitioner's appeal which, at best, discouraged, and, at worst, substantially impeded, the ability of his appellate counsel to make an "objective assessment of trial counsel's performance."

The second requirement set out by the Tenth Circuit in English v. Cody was also not fulfilled. The Calene remand procedure established by the Wyoming Supreme Court, which allowed appellate counsel, in actual effect, less than ninety (90) days in which to "adequately develop the factual basis of his claims of ineffectiveness" was, as well, in light of the expert testimony of Mr. Stetler and Mr. Burr, obviously an unrealistic time frame.38

The requirements set out by the Tenth Circuit in English v. Cody were, as pertains to Petitioner's ineffective assistance claims, not fulfilled, thus this Court has the ability to consider such claims de novo.

The representation of Petitioner by Mr. Skaggs and the trial team, as outlined in detail by the evidence presented to this Court, failed to fulfill the then applicable "prevailing professional norms," as outlined by United States Supreme Court precedent and the applicable ABA Guidelines for the Appointment and Performance of Counsel in Capital Penalty Cases, and was thus constitutionally deficient to the prejudice of Petitioner. The same conclusion is mandated by the evidence presented to this Court with regard to the representation of Petitioner by his appellate team from the Wyoming Public Defender Office. The writ of habeas corpus sought by Petitioner pursuant to 28 U.S.C. § 2254 will be conditionally granted.

ORDER

NOW, THEREFORE, IT IS HEREBY ORDERED the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 by Dale W. Eaton, Petitioner, is GRANTED, and the sentence of death of the Petitioner, Dale W. Eaton is VACATED, provided, however, the State of Wyoming may within one-hundred twenty (120) days from the date hereof grant Petitioner a new sentencing proceeding in the Seventh Judicial District Court, Natrona County, Wyoming.

IT IS FURTHER HEREBY ORDERED the Seventh Judicial District Court, Natrona County, Wyoming, shall promptly appointed experienced death penalty counsel not associated with the Office of the Wyoming Public Defender to represent Petitioner in any further proceedings before the Seventh Judicial District Court.

IT IS FURTHER HEREBY ORDERED in the event the State of Wyoming concludes not to grant Petitioner a new sentencing proceeding, he shall remain incarcerated by the State of Wyoming under a sentence of life without parole pursuant to Wyo. Stat. § 6-2-101(b), and Wyo. Stat. § 6-10-301.

IT IS FINALLY HEREBY ORDERED Respondent shall have a continuing duty to notify this Court concerning proceedings in the Seventh Judicial District Court with respect to Petitioner.