On February 21, 2007, the Tenth Circuit (Murphy, with Lucero and Ebel) reversed the district court’s denial of habeas relief to Glenn Anderson, finding that Anderson’s trial attorney rendered ineffective assistance at the sentencing phase of the trial. Anderson v. Sirmons. The panel first addressed the warden’s argument that the claim was unexhausted. Anderson had not raised the claim either on direct appeal or in his first post-conviction relief application. It was presented for the first time in federal court. Anderson was sent back to state court by the federal district court to exhaust the claim. In response to a request by newly appointed state counsel for additional time to investigate the claim and prepare a second post-conviction relief application, the Oklahoma Court of Criminal Appeals denied the request, simply noting that a second application would be time-barred under state law. Anderson then returned to federal court, concluding that it would be futile to proceed further in state court. The panel agreed with Anderson that it would have been futile to file the actual petition and Anderson therefore was not required to do so in order to exhaust state remedies.

Although the state court imposed a procedural bar on the claim, the panel found it nevertheless could be considered on the merits. This was because the warden failed to defend the adequacy on the bar invoked by the state court. Instead, the warden contended that the claim was unexhausted because no successor application for post-conviction relief was ever actually filed, and that the federal court should impose an anticipatory procedural bar different from the one relied upon by the state court in denying the request for additional time. (The warden invoked Oklahoma’s rules deeming claims waived where they could have been raised in an initial application through the exercise of due diligence.) Anderson had contested the adequacy of the time bar by citing to instances where the state rule was inconsistently applied, as well as to the Oklahoma Court of Criminal Appeals’ statement that it had the power to grant relief irrespective of the time rule when necessary to avoid a miscarriage of justice. This shifted the burden of showing the adequacy of the rule to the warden. The warden’s failure to meet that burden resulted in merits consideration of the claim. In a footnote, the panel observed that even if the procedural bar invoked by the warden applied, there was a question about the adequacy of the rule given that a conflict of interest by appellate and first post-conviction relief counsel may have prevented Anderson from raising his claim earlier.

Turning to the merits, the panel noted that the claim had to be addressed de novo because it was never ruled on by the state court. In finding that defense counsel performed deficiently as to the penalty phase investigation, the panel cited , among other things, the 2003 ABA Guidelines. The panel also noted that the mitigation investigator spent only 23 hours doing substantive investigation, all of which occurred in the month before trial, and never even interviewed Anderson. In addition, the investigator did not have access to life history documents. Further, no mental health evaluation was conducted to determine whether any mental health mitigation could be developed. The panel agreed with the penalty phase investigator’s opinion that the investigation trial counsel authorized was wholly inadequate. In finding that Anderson was prejudiced by counsel’s deficient performance, the panel noted the following mitigation themes that were available had counsel investigated properly: (1) Anderson was raised in an environment of neglect and abuse; (2) Anderson suffers from brain damage and is “borderline mentally defective”; (3) addiction to methamphetamine, which Anderson attempted to overcome without the benefit of formal treatment. Instead of developing and presenting such mitigation, which could have offered the jury a potential explanation for Anderson’s actions, trial counsel relied on a simple plea for mercy. The panel rejected the warden’s argument that Anderson’s failure to present an affidavit from trial counsel explaining exactly what investigation had been conducted doomed the claim. The panel pointed out that in addition to the statements by the trial investigator, there was an affidavit by an investigator working for federal habeas counsel recounting the absence of life history documents in trial counsel’s files. The panel found prejudice despite the fact that the case involved three murders and three aggravating factors were found by the jury.