UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-3764

ALVIN SCOTT LOYD, Petitioner-Appellant,

versus

JOHN P. WHITLEY, Warden, Louisiana State Penitentiary at Angola, Louisiana, Resppondent-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana

( October 29, 1992 )

Before POLITZ, Chief Judge, HIGGINBOTHAM and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Having been convicted of first degree murder and sentenced to

death by a jury, Alvin Scott Loyd petitions for federal habeas

corpus relief claiming ineffective assistance of counsel in the

penalty phase of his capital murder trial. The district court

denied his petition. Finding ineffective assistance of counsel in

the penalty phase, we reverse, render, and remand. Background

Chronology of Proceedings

Loyd was charged with the capital murder of three-year-old

Brandi Giovanetti.1 Local law enforcement officials apprehended

Loyd when he returned to his residence. Loyd was held in custody

at the Feliciana Forensic Facility following a Sanity Commission

determination that he was not competent to stand trial. After four

months Loyd was deemed competent to stand trial.

A jury found Loyd guilty and imposed the death penalty. The

Louisiana Supreme Court affirmed the conviction but vacated the

death sentence, remanding for a new sentencing trial because a

faulty instruction to a hesitant jury violated the integrity of the

unanimous jury verdict. At the second sentencing trial the jury

again imposed the death penalty. The sentence was affirmed on

1 The basic facts of the case have been established in the state proceedings:

On the evening of April 26, 1981, Tina Giovanetti and her three-year-old daughter were walking home after attending a fair in Terrebonne Parish. They accepted defendant's offer of a ride in his pick-up truck. When he reached the Giovanetti home, the defendant asked if he could come in. The woman refused his request and stepped out of the truck. Before she could remove her daughter, however, the defendant drove off with the little girl inside the cab. The defendant traveled to the Mississippi River, crossed into St. John the Baptist Parish on the Lutcher ferry, and continued down a desolate dirt road near a pipeline. At a remote spot, he raped the child, drowned her in a ditch, carried her body into an adjacent swamp, and covered it with leaves.

State v. Loyd,

(La. 1986) (quoting State v. Loyd,

(La. 1984)).

2 appeal.2

The state trial court denied Loyd's first petition for

post-conviction relief but the Supreme Court of Louisiana granted

a stay of execution and remanded the case to the state trial court

for an evidentiary hearing on four issues, including the

ineffective assistance of counsel claim.3 After a hearing, the

state court concluded that the performance of counsel at the second

sentencing trial was deficient; however, the state court denied

habeas relief on the ground that counsel's deficient performance

did not prejudice Loyd. The Louisiana Supreme Court denied Loyd's

application for review, assigning no reasons.

After exhausting state court remedies, Loyd sought federal

habeas relief. The district court granted a stay of execution but

ultimately denied Loyd's requested relief. In regard to the

ineffective assistance claim, the district court concluded that,

contrary to the finding by the state court, counsel's performance

was not deficient. We vacated the district court finding on the

ground that proper deference had not been given to the state

court's findings of fact as required by

(d).4 We

2 State v. Loyd,

(La. 1986), cert. denied,

,

,

(1987), reh'g denied of cert. denial,

,

,

(1987).

3 State ex rel. Loyd v. Butler,

(La. 1987);

(La. 1988).

4 Loyd v. Smith,

(5th Cir. 1990).

3 directed the district court to conduct an evidentiary hearing if it

concluded that the record was not fully developed.

The district court did not conduct a hearing but reviewed the

state habeas court findings, adopted some, rejected others, and

reached conclusions of its own. The court again held that the

performance of counsel was not deficient and additionally found

that any hypothetical deficiency did not prejudice Loyd.

State Proceedings: Sentencing and Post-Conviction Hearing

After conducting an evidentiary hearing, the state habeas

court concluded that the professional performance of Loyd's defense

counsel in the 1985 sentencing trial fell below reasonable

professional standards. Loyd's defense team was composed of three

attorneys. Court-appointed counsel Gordon Hackman and Randy Lewis

had represented Loyd in the 1983 proceedings and had asked

permission to withdraw as counsel three weeks before the second

sentencing trial. This request was denied but William Allison was

added to, and headed, the defense team. At that time Allison's law

practice was, as described by him, "ninety percent civil, various

mix and ten percent criminal." Allison had practiced law for 14

years and had participated in approximately six criminal jury

trials, including one capital case. Hackman, who had been lead

counsel at the guilt/innocence phase, had a practice composed

primarily of civil litigation, although his firm had accepted a

number of criminal cases in the mid 1970s. Lewis was his law

partner. At the state habeas hearing, all three attorneys

4 expressed dissatisfaction with their representation of Loyd in the

1985 sentencing trial.

At trial the defense called three doctors, all of whom had

been retained by the state to determine Loyd's competence to stand

trial. Also in evidence at the penalty phase were sanitarium

admission papers reciting an initial diagnosis of "Antisocial

Personality Disorder," a Psychological report, a Neuropsychiatric

Examination report, a Neurological Examination report, and the

report of a social worker. Most of the psychological testimony was

presented by Dr. Cox, Loyd's treating physician at the Feliciana

Forensic Facility, where Loyd was held during the four months that

he was diagnosed as incompetent. Allison spoke with Dr. Cox for

the first time on the day of the trial, for 45 minutes during the

lunch hour. Also testifying were Dr. St. Martin, the Feliciana

coroner and a member of the Sanity Commission that found Loyd

initially incompetent, and Dr. Ritter, the other Sanity Commission

member.

Although Dr. St. Martin described "an in-depth exam" with

Loyd, Dr. Ritter emphasized that he "did not do a detailed

personality inventory on Mr. Loyd." Dr. Ritter also described the

role of the Sanity Commission as limited:

When you evaluate someone in a prison setting and someone who is depressed sometimes that's very difficult to get any details. Besides you're there for two specific purposes. Not to get a personality inventory, to make a detailed study of personality, but to determine if there are any mental diseases or defect which could impair his ability to proceed to trial or could impair his ability to tell the difference between right and wrong.

No independent psychiatrist or psychologist testified on

5 Loyd's behalf in the sentencing phase despite the fact found by the

state court that Loyd's sanity was a critical issue. Allison had

initially requested $1,000 to hire an independent, neutral

psychiatrist to testify in Loyd's defense; $600 was approved.

Thereafter, according to the state court, "Allison made several

half-hearted attempts to procure [independent, psychiatric]

services, but eventually abandoned those efforts." Hackman had

$1,250 which had been given to him by Loyd's mother to be used for

Loyd's defense. Hackman did not inform Allison of the availability

of these funds. Hackman did not pursue further psychiatric

testimony because he believed that such an attempt would have been

futile.

The state court made the factual finding that Hackman's

decision was based upon a failure to understand the difference

between the McNaughten test for sanity and the Louisiana mitigating

factors of "mental or emotional disturbance," or "mental disease or

defect."5 The state court also found that the aggregate funds

available were sufficient for an independent psychiatric analysis

of Loyd. The court concluded that "for counsel not to have sought

such an evaluation, where funds were available to do so, was an

error which fell below the professional standards of conduct

required to constitute proper representation."

Loyd's new habeas counsel sought the services of doctors whose

testimony in the state habeas evidentiary hearing presented a more

5 La. Code Crim. Pro. art. 905.5(b), (e).

6 detailed explanation of Loyd's mental impairments. Dr. Kenneth

Perkins, a clinical psychologist, reviewed the raw data from the

Feliciana tests and determined that to a large extent the data had

been misinterpreted in such a way that Loyd did not receive

additional necessary testing.6 Dr. Stephen Honor, also a clinical

psychologist, repeated the psychological tests; the raw data from

the new psychological tests mirrored the Feliciana raw data.

Dr. Honor, like Dr. Perkins, found that the Feliciana staff's

interpretation of the data understated the extent of Loyd's mental

impairments. Similarly, Dr. Barry Scanlon examined Loyd, reviewed

his records from Feliciana, and disagreed with the Feliciana

conclusions. Dr. Sanchez, the forensic psychiatrist requested by

counsel for the state, examined Loyd after both the state and the

defense accepted him as qualified. Because of the opinion

formulated after this review, Dr. Sanchez was called to testify by

Loyd's counsel.

The evidence presented at Loyd's sentencing trial -- evidence

based on the Feliciana conclusions -- markedly differs from the new

evidence.

1. Sanity

Sentencing Phase Testimony and Evidence

6 Dr. Perkins did not testify but his written report was entered into evidence. Drs. Honor, Scanlon, and Sanchez all testified at the state post-conviction hearings. Drs. Honor and Scanlon also prepared detailed reports, which were entered into evidence.

7 At the penalty phase, Drs. St. Martin and Ritter testified

that at the time of the crime, Loyd knew the difference between

right and wrong. Dr. Cox concurred that Loyd was "sane" at the

time of the crime. In the state habeas hearing, Dr. St. Martin

testified that he based his diagnosis of Loyd's sanity on "how he

was feeling, [he was not] hallucinating, his general psychological

condition at the time, and the things that he was able to do at the

site of the crime and after the crime." Dr. St. Martin stated that

he did not believe it was possible for individuals to "not show

. . . any psychosis any other time but just have a short burst of

psychosis."

New Testimony and Evidence

The experts presented by Loyd's habeas counsel all expressed

doubts regarding Loyd's sanity at the time of the crime. Dr. Honor

reported that:

While Mr. Loyd did apparently form an intent to kill the child, the evidence of his mental and emotional state, based upon his self report and the examination results, strongly suggests that he would have been unable to appreciate the significance of this act or the probable consequences of this act. Therefore, at that point in time it can be said that Mr. Loyd could not distinguish between the concept of right and wrong.

Dr. Honor opined that there was an 80 to 90 percent probability

that Loyd did not understand his actions at the time of the crime.

Similarly, Dr. Scanlon reported that:

I think a convincing case can be made that Loyd was incapable of distinguishing between right and wrong in view of my conclusion that the quality of Loyd's acts were delusional (psychotic) or delirious (impaired by physical factors) . . . . Loyd may have had a rather limited awareness that he was drowning, raping and sodomizing a little girl (the "nature" of his acts) but

8 it is unlikely in view of his delusional (psychotic) or delirious (impaired by physical factors) state that he could have understood the moral significance of his acts (the "quality" of his acts).

Dr. Honor described how Loyd could move in and out of a

psychotic state:

Loyd represents an individual who is a borderline psychotic. He has a number of personality traits that certainly appear to be [of] very long standing duration. . . . [I]ndividuals [who] get that designation . . . under reasonable circumstances are able to hold themselves together. There is some kind of personality integrity they can hold together. When individuals like that are exposed to very stressful circumstances the great likelihood is that there is going to be a deterioration. . . . [I]t may in fact precipitate the development of a frank psychosis. But probably in many, many cases they become temporary episodes where the person spontaneously regenerates so to speak after the stressors have been . . . by-passed.

The sources of information "most pertinent" to Dr. Honor in making

this diagnosis were his clinical interviews with Loyd and Loyd's

letters.

Dr. Sanchez, an expert forensic psychiatrist frequently

appointed to state sanity commissions, considered Loyd to have

experienced a "psychotic episode" with "sensations of losing

control over his mind." Loyd knew right from wrong at some points,

but not at others.

2. Inability to Stand Trial

Sentencing Phase Testimony and Evidence

The Sanity Commission determined that Loyd was initially

incompetent to stand trial because "he was severely depressed and

he could not best assist his counsel at that time." Dr. Ritter, a

9 member of the Sanity Commission, confirmed the Commission's finding

that Loyd was depressed:

[Loyd] was crying, expressed remorse, . . . best thing I could say, is he, he was suffering from depression, he was feeling blue, remorseful, down in the dumps, and as a result of that he was more difficult than usual to talk to because his thoughts were not coming very rapidly, he was slowed up, like most people who are depressed experience.

Dr. Cox, Loyd's treating physician at Feliciana, also stated that

Loyd had been depressed and despondent, but stated that Loyd's

incarceration for the crime was a major part of his depression.

Similarly, Dr. St. Martin acknowledged that it was very possible

that remorse at being caught could have caused Loyd's depression.

New Testimony and Evidence

Dr. Honor disagreed with "[t]he conclusion by the forensic

experts that Mr. Loyd's level of disturbance was likely to be a

result of his reaction to his crime and his arrest rather than a

representation of his general psychological state."

3. Psychological Traits Relevant to Crime

Sentencing Phase Testimony and Evidence

Dr. Ritter said little regarding Loyd's personality traits

because he did not do a detailed personality inventory on Loyd.7

7 Dr. Ritter did testify that "generally in somebody who has committed that type of crime" displacement has occurred: "[T]he strong feelings that go along with abuse of children, are feelings that have been transferred from another adult to that child. Feelings of frustration, rage, this type of thing." Dr. Ritter added that in general, child abusers were themselves abused as children.

10 Dr. Cox had ordered a neurology exam and other psychological tests.

At the time of trial, Dr. Cox stated: "I cannot explain why this

happened." Defense counsel questioned Dr. Cox regarding specific

findings in a psychological evaluation report performed at

Feliciana. At the onset, Dr. Cox stated that he agreed with parts

of the report yet had doubts regarding other conclusions. This

report was admitted into evidence. The report recited the probable

etiology of the crime:

Mr. Loyd was himself a victim of child abuse and he had a very poor model for adult masculine behavior. He was not able to integrate the antisocial patterns of behavior he learned from his father with the excessively moralistic standards he was taught by his mother. One consequence of this confusion was that he had not obtained a stable adult sexual adjustment. And another consequence was that he developed a pattern of substance abuse.

Regarding this conclusion, Dr. Cox testified: "I think it's very

clear that he developed a pattern of substance abuse. As far as

stable adult sexual adjustment, I can't comment on that." Dr. Cox

testified that the following excerpts from the Feliciana report

were "consistent with Mr. Loyd's personality and makeup":

On the day of his crime, his intoxication rendered his inhibitions ineffective. Apparently he committed the crime cognizant of the wrongness of it but unwilling or unable to stop himself . . . . Later overwhelmed by horror over his actions he avoided memory of the events.

Regarding Loyd's history of child abuse, Dr. Cox testified

that a very high percentage of people who commit violent acts have

a history of abuse as children. He further explained that the kind

of stimulus that could trigger Loyd into blowing up included

stress, pressure, substance abuse, or sleep deprivation.

11 New Testimony and Evidence

Dr. Honor reviewed the raw test scores from the Feliciana

tests, performed his own tests, and found many of the raw test

scores to be consistent with the Feliciana results. Pursuant to

his interpretation, the test results evidence somatic delusions,

disordered thinking, chronic psychological maladjustment with

chronic disorientation, alienation and withdrawal. Dr. Honor found

Loyd to be "of a borderline psychotic nature [with] very clearly

paranoid ideology and schizophrenic personality characteristics."

"Diagnostically he is seen as manifesting a schizoid or schizotypal

personality . . . . The personality profile indicates extremely

high elevations in overall emotional disturbance, depression, and

schizophrenia." Dr. Honor explained the circumstances of the

crime:

Loyd's description of his subjective perceptions from the time of being in the bar until after committing the crime strongly suggests an altered state of consciousness, part of which seems to be rooted in several somatic delusions . . . . Mr. Loyd reports strong feelings of confusion through the night and a dreamlike quality to his state of consciousness . . . . The overwhelming feelings of being threatened, which appear to have been significantly exacerbated by his diminished state of cognition and his underlying paranoid ideation, seems to have triggered a response of rage and fear that became displaced onto this child, who was, at the time, seen as a significant part of this sense of threat. The decision to kill the child seems to have been perceived as a means of eliminating the threatening circumstances . . . . Loyd's sexual attack of the child is seen as a violent weapon aimed at silencing the child.

Dr. Perkins likewise concluded that the Feliciana

interpretation of Loyd's raw test data tended to overlook or

understate the extent of Loyd's chronic emotional disturbance.

12 Some of the patterns are "typically regarded as the classic

paranoid-schizophrenia profile." Drs. Perkins, Scanlon, and

Sanchez each found no basis for the Feliciana admissions report

diagnosis that Loyd has an antisocial personality disorder.8

Dr. Scanlon testified that the Feliciana psychological report

"was insufficient in terms of trying to . . . come up with an

explanation for Loyd's behavior." Dr. Scanlon believed that

physical impairment of thought was the ultimate cause of the crime:

I personally do not see Loyd's crime as primarily determined by emotional or psychological factors . . . . [T]he "form" his actions took (the killing of a little girl after raping and sodomizing her) was probably determined by "emotional or psychological factors" rooted in Loyd's childhood experience. I believe, however, that what triggered his actions was largely an organic (or physical) impairment of thought.

4. Brain Damage

Sentencing Phase Testimony and Evidence

A neuropsychiatric report mentions scarring of the right

temple, weakness on Loyd's left side, and some decreases in sensory

response.9 The report concludes that Loyd "exhibits no evidence of

overt psychosis or brain syndrome" and that the "focal neurological

8 During the post-conviction state habeas evidentiary hearing, Drs. Cox, Ritter, and St. Martin admitted that the "antisocial personality disorder" diagnosis, which was shown to the jury in a report in the sentencing phase was "in error." Similarly, Dr. Fain, who conducted the Feliciana psychological evaluation of Loyd, testified that Loyd is not a sociopath.

9 While at Feliciana, Loyd had complained of intermittent weakness of the left extremity, causing him to drop objects and experience occasional paresthetic numbness.

13 findings in terms of weakness and sensory deficit are fleeting and

would appear at this time to be hysterical in etiology." A

neurological exam, although finding some inconsistencies in sensory

responses, did not report neurological impairment or neuromuscular

disease.

The psychological evaluation explained:

Testing for Organic Brain Damage was not extensive. Some evidence of problems coordinating movement in his left hand was revealed, thus lending support to his complaints of weakness in this area. It is not possible to say when the damage might have been sustained. Other than that, no evidence of brain damage was found . . . . [Loyd] may have sustained some minor brain damage. This appears to be unrelated to either the commission of the crime or his memory loss.

New Testimony and Evidence

Dr. Perkins reported that the Feliciana tests inadequately

investigated the possibility of brain damage. According to

Dr. Perkins, the raw test scores from the Feliciana psychological

evaluation contained inconsistencies associated with underlying

organic factors, such as brain dysfunction. Dr. Perkins found that

the following facts point to the possibility of brain damage:

(1) that Loyd's mother sustained paint poisoning one month before

his birth, (2) family history of epilepsy, (3) family history of

dyslexia, (4) Loyd's history of head injuries, (5) the radiation

therapy Loyd received as an infant for the open exposure of blood

vessels in his temple, (6) family history of alcoholism, (7) Loyd's

personal history of chemical abuse, (8) Loyd's history of headache

experience, and (9) the possibility of a head injury while boating

on the day of the crime. Regarding the neurological exam performed

14 at Feliciana, Dr. Perkins stated:

The neurological exam at Feliciana observed the left-handed weakness in [Loyd's] behavior as well as significantly lower sensation to touch or pin prick on the left side of his body, including arm and leg but was regarded as probably hysterical symptomatology. That certainly would be consistent with Dr. Fain's comment that [Loyd] may tend to express anxiety through somatic complaints, but it also may be indicating, again, a nervous system disorder which, like the possibility of his headaches, may be somatic reactions with neurological basis which are activated by times of intense emotion which would include anxiety, stress/tension, etc.

Dr. Honor reported that the tests of neuropsychological

functioning "while not definitive, are consistent with a diagnosis

of frontal lobe dysfunction. Such dysfunction would be expected to

have an impact on judgment, and higher levels of cognitive

functioning such as organization of thought and processing of

complex ideas."

Analysis

An ineffective assistance of counsel claim requires a two-part

showing that: (1) Counsel's performance was deficient, meaning

that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment"; and (2) the deficient performance prejudiced the

defendant by depriving him "of a fair trial, a trial whose result

is reliable."10 A state court conclusion regarding effective

assistance of counsel is a mixed question of law and fact. State

court findings of fact made in the course of deciding a sixth

10 Strickland v. Washington,

(1984).

15 amendment ineffectiveness claim are subject to the deference

requirement of section 2254(d).11

In determining whether counsel's representation passes

constitutional muster, we must make an independent evaluation based

on the state court's subsidiary fact findings; we need not defer

to the district court's conclusion.12

Performance of Counsel

"The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.13 All of the

circumstances must be considered. In this consideration, however,

we must guard against the temptations of hindsight and

second-guessing. Accordingly, a reviewing court must grant

11

(d) provides:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct . . . [unless certain enumerated statutory requirements are met, including:]

(8) . . . the Federal court on a consideration of such part of the [state] record as a whole concludes that such factual determination is not fairly supported by the record. . . .

12 Nealy v. Cabana,

(5th Cir. 1985).

13 Strickland,

.

16 counsel's decisions a reasonable presumption of reasonability.14

Applying these guidelines, the state habeas court concluded that

the performance of counsel in Loyd's 1985 sentencing trial fell

below reasonable professional standards. The state court found

that funds for an independent psychiatric expert were available,

that Loyd's sanity was a critical issue, that counsel were aware of

the critical nature of Loyd's sanity, and that lead counsel made

only "half-hearted" attempts to obtain independent evidence

regarding this sanity and abandoned those efforts for no strategic

purpose. The court a quo acknowledged these factual findings as

binding pursuant to section 2254(d), but by discounting other state

findings as being erroneous or irrelevant, and by supplementing the

findings, the district court avoided the state court conclusion

that counsel's peformance was not within the range of professional

reasonability. The district court opined that calling Drs. Cox,

Ritter, and St. Martin "was more than reasonable and

constitutionally adequate under the circumstances prevailing at the

time of trial."

The district court discounted the state habeas court finding

that: "[T]he most compelling fact in the performance of counsel in

this matter is that they simply failed to develop independent

psychiatric evidence of mental disease or defect in a death case

where this line of investigation was clearly indicated." Regarding

this statement, the district court held that "to the extent that

14

.

17 the state court implied . . . that no statutory mitigating

circumstances were presented on Loyd's behalf at trial, . . . such

a conclusion is not supported by the record and is clearly

erroneous." The district court made the supplemental conclusion

that Loyd's counsel presented significant statutory mitigating

psychiatric testimony. We cannot agree, but accept as binding the

state court finding that defense counsel's failure to pursue a

crucial line of investigation in a capital murder case was not

professionally reasonable.

The state court found that Hackman did not appreciate the

distinction between the McNaughten rule and the mitigatiang

circumstances of mental disease or defect. Hackman, who was

court-appointed and did not wish to represent Loyd, testified at

the state hearing that despite his general experience with criminal

trials, he did not feel competent to handle the case, he was

convinced that the defense should have conducted additional

investigation and should have obtained the assistance of a forensic

psychiatrist. Allison, who had participated in at least six

criminal jury trials, testified that he did not believe that his

representation of Loyd contributed to the defense.15 The state

court discounted this testimony, stating: "[I]n the case of

15 When asked whether he did an effective job, Allison responded: "I don't think I added anything to the Defense. I was hampered by my lack of experience. I really in retrospect should not have ever enrolled in this case. And perhaps they would have found someone else more qualified and more competent enough to do it. I was hampered by lack of funds, by geographic distance, and by my lack of experience."

18 Mr. Allison, his personal abhorrence of the death penalty might

well have affected his later assessment of his conduct." The

district court accepted the state court decision to discount

Allison's testimony, but dismissed as inconsequential that court's

fact-finding that Hackman misunderstood the law regarding

mitigating circumstances. According to the district court,

Hackman's knowledge was irrelevant because Hackman was not lead

counsel.16 Aside from noting our consistent insistence that

effectiveness of counsel requires familiarity with current state

law,17 we refrain from further dissection of Hackman's role. The

essence and significance of the state court's finding of fact is

that no member of the defense team made the strategic decision

referred to in Strickland regarding the critical issue in this

death case.

The contrast between the data and testimony presented in the

1985 proceeding and the new evidence warrants our rejection of the

16 The district court concluded that Allison was lead counsel and therefore reasoned that the state court decision regarding Hackman was irrelevant because Hackman did not decide who would be called as a witness in the 1985 sentencing proceeding. Nonetheless, the district court also placed great weight on the fact that Hackman, long before Allison arrived at the scene, had retained a psychiatrist who had concluded that Loyd was sane pursuant to the McNaughten test. Because Hackman did not discern the difference between the legal test relevant in the guilt/innocence phase and that relevant in the penalty phase, we find support for the state court's rejecting the alleged significance of the psychiatrist employed by Hackman.

17 Trass v. Maggio,

(5th Cir. 1984); Kennedy v. Maggio,

(5th Cir. 1984); Vela v. Estelle,

(5th Cir. 1983), cert. denied,

(1984).

19 district court's supplemental finding that Loyd's defense counsel

introduced significant mitigating evidence. The marked disparity

in testimony establishes that reasonable professional standards

require that counsel should have used readily available funds to

hire an independent psychiatrist to put Loyd's mental condition in

proper focus.

"[C]ounsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations

unnecessary.18 Counsel's professional duty may be met in more than

one way:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel had a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.19

The state court's factual findings make clear that the decision of

defense counsel not to pursue an independent psychological analysis

of Loyd was neither a strategic choice made after investigation nor

a strategic choice made in light of limits on investigation. There

were no limitations; funds were available. According to the state

factual findings, Allison's decision had nothing to do with

strategy; he wrongly assumed that funds were unavailable and he

abandoned what he knew to be an important pursuit. Hackman's

18 Strickland,

.

19

.

20 decision had not been made after thorough investigation of the law;

Hackman was unaware of the law.20

Whether counsel's omission served a strategic purpose is a

pivotal point in Strickland and its progeny.21 The crucial

distinction between strategic judgment calls and plain omissions

has echoed in the judgments of this court.22 For example, in Nealy

20 We find unpersuasive the district court's supposition that at the time of trial, "Loyd's attorneys had no basis for assuming that they could have found a psychiatrist somewhere in the country who would testify that Loyd may have a mental disease or defect which impaired the petitioner's ability to appreciate the criminalilty of his conduct or to conform his conduct to the requirements of law." This conclusion clashes with the finding by the state court that lead counsel did indeed decide that pursuit of independent testimony was warranted, but abandoned what was characterized as a "half-hearted" attempt.

21 See, e.g., Strickland,

; Kimmelman v. Morrison,

(1986) (emphasis on fact that counsel's failure "was not based on 'strategy,' but on counsel's mistaken beliefs. . . .").

22 See Profitt v. Waldron,

(5th Cir. 1987) (where counsel's omission presented "no advantage" to the defense, the court refused to accord "our usual deference to tactical decisions"); Nealy v. Cabana,

(5th Cir. 1985); Cook v. Lynaugh,

(5th Cir. 1987) (finding ineffective assistance with emphasis on fact that failure to investigate was not a strategic choice); Martin v. McCotter,

(5th Cir. 1986), cert. denied,

(1987) (because the extent of investigation and the extent that counsel's decision constituted a "reasonable strategic choice" was unclear, the court based its holding on the prejudice prong); see also Selvage v. Lynaugh,

(5th Cir. 1988), cert. denied,

(1989) (reasonable strategic decision not to pursue mental background because state rebuttal could turn evidence against the defendant); Kramer v. Butler,

(5th Cir.), cert. denied,

(1988) (counsel's decision not to pursue more than one independent psychiatrist was reasonable where no facts indicated that an insanity defense was tenable); Mattheson v. King,

(5th Cir. 1985) (failure to investigate fell "within the realm of sound trial strategy"); Bell v. Lynaugh,

(5th Cir.), cert. denied,

(1987)

21 we found counsel's performance deficient and stressed that at a

post-conviction hearing, the defense counsel "did not testify that

such efforts would have been fruitless, nor did he claim that the

decision not to investigate was part of a calculated trial

strategy. He simply failed to make the effort."23 Counsel "'did

not choose, strategically or otherwise, to pursue one line of

defense over another. Instead, [he] simply abdicated his

responsibility to advocate his client's cause.'"24

Finding a void of available evidence on a critical issue in a

death penalty case, we hold that counsel's performance was not

professionally reasonable.

Prejudice

The prejudice component of the Strickland test requires a

showing

that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making the determination whether the specified errors resulted in the required prejudice, a court should presume . . . that the judge or

(emphasis on strategic motives for counsel decision). We acknowledge that "strategy" is not necessarily the line of demarcation for defense decisions to investigate. See, e.g., Smith v. Black,

(5th Cir. 1990), vacated on other grounds,

(1992).

23

.

24

(citation omitted) (emphasis added in original).

22 jury acted according to law.25

The state court and the district court held that Loyd had not

demonstrated prejudice.

The state court found that the opinions of the experts

testifying in the habeas proceeding were, to some extent, based on

three unproven hypothetical facts: that Loyd was involuntarily

drugged, that he worked unusually long hours in excessive heat in

the days preceding the crime, and that he suffered a concussion on

a boat ride on the day of the crime. The state court declared

that, "the opinions of Drs. Honor, Scanlon, and Sanchez, to the

extent that they were based on these assumptions, would probably

have had no influence on the jury's assessment of petitioner's

psychological condition on the night of the crime."26 Regarding

frontal lobe brain damage,27 the state court observed that "no more

than a suspicion was indicated, even by his own experts, that this

irregularaity explained or excused the crime." The court

considered whether there was "a reasonable probability that the

remaining overall testimony of Drs. Honor, Scanlon and Sanchez as

25

.

26 The court omitted reference to Dr. Perkins' report, which was admitted into evidence, although Dr. Perkins did not testify. Dr. Perkins did not examine Loyd; the state court presumably discounted Dr. Perkins' opinions to the same extent that the other expert opinions were dismissed.

27 Dr. Scanlon testified that the electroencephalogram performed on Loyd indicated abnormalities but was not diagnostic of any specific mental infirmity, such as epilepsy or a brain tumor.

23 to petitioner's diminished capacity or mental disease or defect,

would have been found by at least one juror, to be a mitigating

factor sufficient to change his or her verdict of death." The

court accepted the doctors' conclusions that Loyd suffered from a

mental disease or defect that in all probability predated the

crime. Yet, according to the court, "[t]he enormity of the crime

committed was so great that any mental disease or defect, short of

legal insanity, would simply not, in this court's opinion, have

tipped the balance in any juror['s] mind so as not to warrant a

sentence of death."

Giving deference to the state habeas decision, we accept as

unproved the theories that Loyd was drugged and exposed to

excessive heat, that he suffered a head injury on the day of the

crime, or that the clinical signs of physical abnormality in his

frontal lobe brain functions explained the crime. The state court

did not explain what portions of the experts' opinions rested on

these assumptions; however, it is apparent that the court found a

mental disease or defect predating the crime but did not find legal

insanity at the time of the crime. If the record were incomplete

with regard to this prejudice issue, we would remand for an

evidentiary hearing.28 Our review of the state habeas hearing,

however, discloses significant testimony and documentation

regarding the factors the experts used in assessing Loyd's mental

capacity. It is abundantly clear that significant portions of the

28 See Kimmelman,

.

24 experts' testimony were not based on the suggested unproven

factors.

When questioned regarding the basis of his diagnostic

conclusions, Dr. Honor stated that he based his analysis on a

combination of his examination of Loyd in person, his meeting with

Loyd's mother, and all of the available test and diagnostic data.

Dr. Honor reported that the tests he performed indicated somatic

delusions, disordered thinking, chronic psychological maladjustment

with chronic disorientation, alienation, and withdrawal. Regarding

the immediately preceding events, Dr. Honor assumed that Loyd had

been drinking, but of other drugs he discussed only biochemical

precipitators. Dr. Honor listed contributing factors: that Loyd

apparently had little sleep, had been working long hours in the

heat, had been arguing with his wife over financial difficulties,

had encountered rejection, and had been depressed. He emphasized

that no individual factor was determinative of his analysis, but

that based on all of the data he diagnosed Loyd as a borderline

psychotic with problematic personality traits of very longstanding

duration. Dr. Honor also gave substantial independent weight to

Loyd's description of events, as this description specifically

matched what is known clinically about psychotic states. Dr. Honor

testified that the information most pertinent to his diagnosis

consisted of the letters Loyd wrote and his clinical interviews of

Loyd.

Dr. Scanlon likewise gave significant weight to his interview

with Loyd. He discussed the unproven factors as being "presumed"

25 or "possible" and indicated his awareness that these factors might

not be supported by the evidence.

Dr. Sanchez stated that he did not know whether Loyd was

drugged. He recited hypothermia and fatigue as part of his factual

basis, stating that no one trigger set Loyd off; rather, the

stresses were cumulative. Both Dr. Scanlon and Dr. Sanchez

testified that in their opinion Loyd was not faking and, in fact,

that he could not fake his mental defect.

Discounting the unproven factors, the experts' fundamental

opinions are largely based on Loyd's descriptions of the crime and

on test scores and interviews. These experts, including

Dr. Sanchez, the psychiatrist first selected by the prosecution,

found that during the crime Loyd was experiencing the effects of

substantial pre-existing mental defects. The absence of this

mitigating evidence undermines our confidence in the outcome of

Loyd's penalty phase. We are charged with "assess[ing] . . . the

likelihood of a result."29 The weighing of the defendant's mental

condition was for the jury, which "must resolve differences in

opinion within the psychiatric profession on the basis of the

evidence offered by each party."30 As we noted in our earlier

opinion,31 because of counsel's inadequacy the jury could not

29 Strickland,

.

30 Ake v. Oklahoma,

(1985).

31 See Loyd v. Smith,

(quoting Ake,

). We earlier quoted:

26 perform this function.

We now hold that there is enough evidence proving mental

disease and defect that the balance of aggravating and mitigating

factors in this case must be weighed by a jury in a new sentencing

hearing.

The judgment of the district court is REVERSED and judgment is

now RENDERED granting the requested writ of habeas corpus. The

case is REMANDED for entry of an appropriate judgment issuing the

Great Writ and directing the State of Louisiana, at its own option,

to sentence Loyd to life imprisonment or to retry the sentencing

phase of his trial within a reasonable period.

Without a psychiatrist's assistance, the defendant cannot offer a well-informed expert's opposing view, and thereby loses a significant opportunity to raise in the juror's minds questions about the State's proof of an aggravating factor.

(emphasis added).

27