from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:05-CV-00225-M)
M. Jernigan, Assistant Federal Public Defender (Randy A.
Bauman, Assistant Federal Public Defender, with her on the
briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.
L. Whittaker, Assistant Attorney General (E. Scott Pruitt,
Attorney General, with him on the brief), Office of the
Attorney General for the State of Oklahoma, Oklahoma City,
Oklahoma, for Respondent-Appellee.
TYMKOVICH, Chief Judge, LUCERO and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
various Oklahoma state-court proceedings, an Oklahoma jury
convicted Emmanuel Littlejohn of first-degree murder and
sentenced him to death. This case-which comes before us for a
second time-arises from the district court's denial of
Mr. Littlejohn's petition for a writ of habeas corpus
under 28 U.S.C. § 2254.
first time around the district court found Mr.
Littlejohn's ineffective-assistance and cumulative-error
claims-among twelve other bases for relief-meritless or
procedurally barred. Reviewing the district court's
conclusions de novo, we addressed the declaration of Dr.
Manual Saint Martin, a psychiatrist who diagnosed Mr.
Littlejohn-for the first time-with undefined, synapse-level
neurological deficits, or an organic brain disorder. Given
that evidence, we reasoned that the disposition of Mr.
Littlejohn's ineffective-assistance claim-and,
derivatively, his cumulative-error claim-hinged on whether
Dr. Saint Martin's averments would prove worthy of
belief, because "[e]vidence that an organic brain
disorder was a substantial factor in engendering Mr.
Littlejohn's life of deviance probably would have been a
significant favorable input for Mr. Littlejohn in the
jury's decisionmaking calculus" during the penalty
phase. Littlejohn v. Trammell (Littlejohn I), 704
F.3d 817, 864 (10th Cir. 2013). As a result, we remanded the
case to the district court for an evidentiary hearing on
whether Mr. Littlejohn's trial counsel proved ineffective
by failing to adequately investigate and present to the jury
a mitigation theory of organic brain damage.
remand, the district court held an evidentiary hearing; the
parties presented the testimony of various
individuals-including Dr. Saint Martin and Mr.
Littlejohn's trial counsel, James Rowan. Following the
hearing, the district court largely restated its earlier
findings and again denied Mr. Littlejohn habeas relief on his
ineffective-assistance and cumulative-error claims. Mr.
Littlejohn now appeals from the district court's judgment
on remand. With the benefit of a more robust factual record
relative to Mr. Littlejohn's alleged organic brain
damage, for the reasons that follow, we affirm.
Littlejohn I, we detailed the factual and procedural
backdrop of Mr. Littlejohn's state-court conviction and
sentencing. See 704 F.3d at 822-24. In brief, in
1992, Mr. Littlejohn and his acquaintance Glenn Bethany
robbed a convenience store in Oklahoma City. As the robbery
neared its conclusion, one of the store's
employees-Kenneth Meers-took a fatal shot to the face.
Although Mr. Littlejohn maintained that he did not fire the
fatal shot, a jury convicted him of first-degree murder and
sentenced him to death in 1994. In 1998, however, the
Oklahoma Court of Criminal Appeals ("OCCA") vacated
and remanded his initial death sentence, because the trial
court improperly admitted uncorroborated testimony suggesting
that Mr. Littlejohn had confessed to the killing of Mr. Meers
and also an unrelated murder. See Littlejohn v.
State, 989 P.2d 901, 910-12 (Okla. Crim. App. 1998). At
resentencing, a jury again sentenced Mr. Littlejohn to death,
based on two aggravating circumstances: (1) his previous
conviction for a violent felony, and (2) the fact that he
posed a continuing threat to society.
Mr. Littlejohn's unsuccessful efforts for state
post-conviction relief, he filed a habeas petition under 28
U.S.C. § 2254 in federal district court. See
Littlejohn v. Workman, No. CIV-05-225-M, 2010 WL 2218230
(W.D. Okla. May 27, 2010) (unpublished). As relevant here, he
argued that (1) the prosecution violated his due process
rights by failing to give adequate notice of certain evidence
it intended to present at resentencing in support of the
continuing-threat aggravator; (2) the introduction of the
testimony of two witnesses violated his rights under the
Confrontation Clause, because the prosecution failed to make
the necessary showing of unavailability; (3) his trial
counsel had been constitutionally ineffective for failing to
investigate and present evidence of his organic brain damage;
and (4) the cumulative weight of these errors entitled him to
district court denied Mr. Littlejohn's petition, and he
brought his first appeal. In Littlejohn I, we
affirmed the district court's disposition of Mr.
Littlejohn's due-process and Confrontation Clause claims,
but reversed the district court's judgment as to the
ineffective-assistance claim and vacated its judgment as to
the cumulative-error claim, with instructions to the district
court to conduct an evidentiary hearing on remand.
See 704 F.3d at 822. Following an evidentiary
hearing, the district court again denied Mr. Littlejohn's
petition, see Littlejohn v. Trammell, No.
CIV-05-225-M, 2014 WL 3743931 (W.D. Okla. July 30, 2014)
(unpublished), and he filed this appeal.
begin with Mr. Littlejohn's ineffective-assistance claim.
To make out an ineffective-assistance claim, a petitioner
"must show both that his counsel's performance
'fell below an objective standard of reasonableness'
and that 'the deficient performance prejudiced
the defense.'" Byrd v. Workman, 645 F.3d
1159, 1167 (10th Cir. 2011) (quoting Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). These two
prongs may be addressed in any order; indeed, in
Strickland, the Supreme Court emphasized that
"if it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, . . . that
course should be followed." 466 U.S. at 697; accord
Byrd, 645 F.3d at 1167; Knighton v. Mullin, 293
F.3d 1165, 1178 (10th Cir. 2002). Here, we take this approach
and conclude that, even assuming arguendo that Mr.
Rowan's performance was constitutionally deficient, Mr.
Littlejohn's ineffective-assistance claim fails on the
basis of lack of prejudice.
the prejudice prong, a petitioner must demonstrate "a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694. "When a petitioner alleges ineffective assistance
of counsel stemming from a failure to investigate mitigating
evidence at a capital-sentencing proceeding, 'we evaluate
the totality of the evidence-both that adduced at trial, and
the evidence adduced in habeas proceedings.'"
Williams v. Trammell, 782 F.3d 1184, 1215 (10th Cir.
2015) (quoting Smith v. Mullin, 379 F.3d 919, 942
(10th Cir. 2004)), cert. denied, --- U.S. ----, 136
S.Ct. 806 (2016).
doing so, we "reweigh the evidence in aggravation
against the totality of available mitigating evidence, "
Hooks v. Workman, 689 F.3d 1148, 1202 (10th Cir.
2012) (quoting Young v. Sirmons, 551 F.3d 942, 960
(10th Cir. 2008)), considering "the strength of the
State's case and the number of aggravating factors the
jury found to exist, as well as the mitigating evidence the
defense did offer and any additional mitigating evidence it
could have offered, " Knighton, 293 F.3d at
1178. "[W]e must consider not just the mitigation
evidence that Defendant claims was wrongfully omitted, but
also what the prosecution's response to that evidence
would have been." [Michael] Wilson v. Trammell,
706 F.3d 1286, 1306 (10th Cir. 2013); accord Grant v.
Trammell, 727 F.3d 1006, 1022 (10th Cir. 2013). At the
end of the day, "[i]f 'there is a reasonable
probability that at least one juror would have struck a
different balance'-viz., that 'at least one
juror would have refused to impose the death
penalty'-prejudice is shown." Hooks, 689
F.3d at 1202 (citations omitted) (first quoting Wiggins
v. Smith, 539 U.S. 510, 537 (2003); then quoting
Wilson v. Sirmons, 536 F.3d 1064, 1124 (10th Cir.
2008) (Hartz, J., concurring)).
the foregoing rubric, we begin by discussing the salient
aspects of the procedural history and factual background of
Mr. Littlejohn's ineffective-assistance claim. We then
turn to whether the more comprehensive factual record now
before us lends force to Mr. Littlejohn's claim of
prejudice under Strickland.
habeas petition, Mr. Littlejohn asserted that his trial
counsel, Mr. Rowan, rendered ineffective assistance in the
resentencing proceeding by failing to adequately investigate
and present a mitigation theory of organic brain damage.
Rather, Mr. Rowan focused his mitigation case on the
testimony of Dr. Wanda Draper, a developmental epistemologist
who presented a socio-psychological account of the impact
that Mr. Littlejohn's troubled upbringing had on his
development. More specifically, Dr. Draper testified
extensively about the substance abuse of Mr. Littlejohn's
mother during her pregnancy and regarding the lack of
nurturing and attention that Mr. Littlejohn received as a
child, and then explained the stunted development that Mr.
Littlejohn suffered as a result of these factors. In
particular, she testified that Mr. Littlejohn had long
exhibited emotional problems and disruptive behavior, and
determined that, although he understood the difference
between right and wrong, he often did not act on that
knowledge. More specifically, on cross-examination, Dr.
Draper stated that she did not think that Mr. Littlejohn had
"a mental illness per se"; rather, "he had
emotional disturbance, [and] he was a troubled child."
State R., Vol. VI, Resentencing Tr. at 133.
habeas petition, Mr. Littlejohn advanced the view that Mr.
Rowan should have investigated and presented evidence of
organic brain damage that he suffered as a result of his
mother's drug use during her pregnancy with him. In order
to buttress that assertion, Mr. Littlejohn attached a
declaration from Dr. Saint Martin, a psychiatrist who
examined him in 2005, five years after his resentencing. In
the declaration, Dr. Saint Martin stated that "Mr.
Littlejohn's history and behavioral symptomatology
presented indications of neuro-developmental deficits."
R., Vol. I, at 176. In other words, Mr. Littlejohn's
brain was "not 'wired' correctly" at the
"level of the synapse[-i.e., ] the microscopic
connections between individual brain cells."
Id. at 177. Dr. Saint Martin specifically explained
that Mr. Littlejohn "suffer[ed] [from] a behavioral
disorder manifested by poor impulse control, psychological
immaturity and judgment [and] caused by neurodevelopmental
deficits experienced in his peri-natal development."
Id. Finally, Dr. Saint Martin described these
deficits as "irreparable, but . . . treatable"
because "drug therapy" can "control the
behavior and diminish the impulsivity, which creates most of
the problems in interacting with society." Id.
at 178-79. Based on Dr. Saint Martin's declaration, Mr.
Littlejohn argued that Mr. Rowan acted ineffectively by
failing to investigate and present evidence of Mr.
Littlejohn's organic brain damage during his
initial consideration of Mr. Littlejohn's habeas
petition, the district court denied relief on the
ineffective-assistance claim. See Littlejohn, 2010
WL 2218230, at *26-*30. The district court first found de
novo review of Mr. Littlejohn's claim appropriate,
because the state court had not adjudicated the claim on its
merits, and because the State did not argue that Mr.
Littlejohn procedurally defaulted his claim. See id.
at *27. Reviewing the claim de novo, the district court found
that Mr. Littlejohn had failed to demonstrate any prejudice
flowing from Mr. Rowan's allegedly deficient performance,
because Dr. Draper had provided the jury with a complete
picture of Mr. Littlejohn's troubled personal
development. See id. at *28-*30. The district court
thus concluded that the evidence that Dr. Saint Martin could
have presented "would not have had a pervasive effect on
the jury's decision"; as a result, it found "no
reasonable probability that the balancing of the aggravating
and mitigating evidence would have led the jury to return a
sentence other than death." Id. at *30.
Littlejohn I, we reversed the district court's
judgment on this claim. At the outset, we detailed two unique
procedural features of Mr. Littlejohn's
ineffective-assistance claim. First, we emphasized that the
absence of a state-court "merits adjudication" or a
"procedural default" on the ineffective-assistance
claim triggered a merits-based de novo review. 704 F.3d at
855. Second, we determined that Mr. Littlejohn's
essentially unchallenged diligence in developing the factual
basis for his ineffective-assistance claim relieved him of
the obligation of satisfying the "strict standards for
an evidentiary hearing" under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA").
Id. at 858.
our own de novo review, we concluded-based on the averments
in Dr. Saint Martin's declaration-that Mr.
Littlejohn's ineffective-assistance claim
"may have merit." Id. at 856
(emphasis added). We noted that "[e]vidence that an
organic brain disorder was a substantial factor in
engendering Mr. Littlejohn's life of deviance probably
would have been a significant favorable input for Mr.
Littlejohn in the jury's decisionmaking calculus."
Id. at 864. Evidence of organic brain damage, we
explained, could have strengthened Mr. Littlejohn's
mitigation case by offering "at least a partial
explanation" for his extensive criminal history-and
importantly, one grounded in his physical, neurological
addition, the evidence of organic brain damage could have
weakened the prosecution's case in support of the
continuing-threat aggravator, by "offer[ing] a less
blameworthy explanation of Mr. Littlejohn's extensive
criminal history" and by providing some suggestion that
Mr. Littlejohn suffered from treatable deficits.
Id. at 865. Along these lines, we emphasized that
evidence of organic mental deficits "ranks among the
most powerful types of mitigation evidence available"
and stressed that such evidence is qualitatively different-in
significant ways-from the social-environment evidence that we
typically are called on to consider in capital habeas cases.
Id. at 864.
on the current record, we concluded as to the prejudice
showing that Dr. Saint Martin's declaration created
"a reasonable probability that [the presentation of]
such evidence would have led at least one juror to support a
sentence less than death." Id. In other words,
we determined-under the limited circumstances developed at
that time-that "[e]vidence that an organic brain
disorder was a substantial factor in engendering Mr.
Littlejohn's life of deviance probably would have been a
significant favorable input for Mr. Littlejohn in the
jury's decisonmaking calculus, " and that Mr.
Rowan's failure to investigate and present
organic-brain-damage evidence (as sketched by Dr. Saint
Martin) would have caused Mr. Littlejohn prejudice.
Id.; see id. at 865-67.
we also underscored that further factual development would be
necessary before a definitive conclusion could be reached
regarding the merits of Mr. Littlejohn's
ineffective-assistance claim. Id. at 856. Indeed, we
emphasized the "highly fact-bound" nature of Mr.
Littlejohn's particular ineffective-assistance
claim, and thus explained that "[a] further exploration
of the substance of Dr. Saint Martin's findings might
well reveal significant theoretical or factual holes that
would make a finding of deficient performance or prejudice
with our reticence to reach definitive determinations on the
undeveloped record, we said:
[W]e conclude that Mr. Littlejohn has alleged a mitigation
theory and supporting facts which, if true, would
entitle him to relief under
Strickland-viz., would justify us in
concluding that his counsel was constitutionally deficient in
failing to investigate and put on mitigating evidence
concerning Mr. Littlejohn's claimed physical brain injury
and that, but for that failure, there is a reasonable
probability that the jury would have selected a penalty less
Id. at 867. In light of these conclusions, we
remanded the matter to the district court for further factual
findings concerning Mr. Littlejohn's mitigation theory.
particular, on remand, we tasked the district court with
determining whether Mr. Littlejohn could demonstrate
sufficient factual support for his mitigation theory. The
district court held an evidentiary hearing at which both
parties presented evidence and testimony. As most relevant
here, Dr. Saint Martin offered-in terms far more specific
than in his declaration, which we considered in
Littlejohn I-diagnoses of Mr. Littlejohn's
physiological mental deficits. Dr. Saint Martin explained
that he "diagnosed an impulse control disorder and
attention deficit disorder[, ]" R., Vol. III, at 123-both of
which constitute "dysfunctions in Mr. Littlejohn's
frontal lobes, " stemming from "prenatal and
perinatal insults." Id. at 126.
two disorders, in Dr. Saint Martin's opinion, led Mr.
Littlejohn to have "low frustration tolerance" and
"a lot of problems with impulses" because "the
normal controls one would expect [to] override destructive
impulses are not present or present enough."
Id. at 126-27. When asked about possible treatment
options for these disorders, Dr. Saint Martin noted "an
80 percent response rate to medication" for attention
deficit disorder and a response "on the order of about
40 percent" for an impulse-control disorder, but
admitted that Mr. Littlejohn had never received medications
for these disorders and that, consequently, there was no
guarantee that he would respond to them. Id. at
addition, Dr. Saint Martin acknowledged on cross-examination
that, "on a very, very, very large number of tests of
intellectual functioning and neuropsychological functioning,
Mr. Littlejohn perform[ed] in the low-average to
average-range." Id. at 146-47. Additionally, he
diagnosed Mr. Littlejohn with" mixed personality traits,
" but declined to conclude that he suffers from
antisocial personality disorder. Id. at 123.
Nevertheless, Dr. Saint Martin acknowledged that Mr.
Littlejohn exhibited a number of characteristics
"consistent with anti-social personality disorder"
and admitted that "individuals with attention deficit
hyperactivity disorder are significantly more likely to
develop anti-social personality disorder." Id.
Littlejohn I, we asked the district court to
reevaluate in an evidentiary hearing Mr. Littlejohn's
ineffective-assistance claim, notably on the issue of
prejudice. More specifically, this examination should have
entailed the district court making a critical determination
in the first instance of whether Mr. Littlejohn did in fact
suffer from treatable mental deficits that could have
substantially explained his past criminal behavior, such that
it was reasonably probable that Mr. Rowan's failure to
investigate and present evidence of organic brain damage
caused Mr. Littlejohn prejudice. However, the district
court's findings are not specific regarding these
matters. Instead, the court generally reasoned that Dr. Saint
Martin's declaration was "not all that it appeared
to be, " and found that "the introduction of this
evidence would have been accompanied by demonstrated
limitations and pitfalls." R., Vol. I, at 961.
Essentially, under this rationale, the district court
concluded that Mr. Littlejohn had failed to demonstrate
prejudice, and this appeal followed.
analysis begins with a discussion of the relevant standard of
review. We then turn to whether the evidence elicited on
remand demonstrates that organic brain damage played a
substantial role in engendering Mr. Littlejohn's life of
criminal deviance-viz., the critical question we
identified in Littlejohn I. Although we cannot fully
embrace the district court's analysis, we ...