Gregory Thompson v. Ricky Bell, Warden

[Thompson] exhibited none of the signs of an affective illness. His judgment and insight are rather poor. Psychological testing revealed him to be functioning in the average range intellectually, to exhibit no signs of organicity or brain damage on the Bender-Gestalt Test and the Bender Interference Procedure. Personality profiles revealed no evidence of a psychosis, but indicated malingering in the mental illness direction. (For example, the schizophrenic score was at T 120, while clinical observations revealed no evidence of a thought disorder.)

The Riverbend medical record indicated that since 1985, Mr. Thompson had shown a deteriorating mental status. He had become psychotic. He had been treated with anti-psychotic medication at that time. He was treated with Haldol, Cogentin, and Lithium, and three different treating physicians at that time: Dr. Dyner [sic], Dr. Deal, and Dr. Humble had all over the years from 1985 to 1990 had diagnosed him as either having bipolar disorder or a schizo affective disorder or schizophrenia. They described his agitated behavior. They described his hostility. They described his inappropriate affect, his experience of auditory hallucinations, his delusions, his paranoia, his thoughts of persecution. He had attempted suicide of a couple of occasions. He had set fire to his cell burning both his hands and his face. They had certainly — two of those psychiatrists and maybe all three of them had considered the possibility that he was malingering, that he was faking mental illness and throughout their Riverbend records, it was clear that those psychiatrists had discounted the possibility of malingering because they didn't feel that it accounted for all of the psychotic symptoms they saw in him.

From the records I was able to review, it was clear that the social history was very sketchy in terms of his remote history, his childhood and his upbringing, and also family history of mental illness. There seemed to be a[sic] strong evidence to suggest that there was mental illness in his family, probably in his father who committed suicidePage 696and was known to be extremely violent and possibly in his mother but none of those records were available.

a. Both trial and post-conviction counsel knew Petitioner's mental state was an important issue but without assistance from a competent investigator and mental health expert, counsel was unable to explain and overcome the state mental hospital's initial findings.

b. Attorney Parsons was aware of Petitioner's history of head injuries and "the significant [sic] of those head injuries and what that can do to somebody." P.C. Vol. I, p. 38. Later, counsel also witnessed "a period when he [Petitioner] got sick mentally." P.C. Vol. I, p. 83. Trial counsel requested funds for a mental health expert but were denied. Instead, Petitioner was sent to Middle Tennessee Mental Health Institute (MTMHI) for a competency evaluation. Although MTMHI found Petitioner to be competent, Mr. Parsons continued to believe further evaluation was needed. . . .

c. Records from Riverbend Maximum Security Institution reflect that several different treating psychiatrists have diagnosed Petitioner as having either a bipolar affective disorder, cyclic mood disorder, schizo-affective disorder or schizophrenia. All of the psychiatrists described Petitioner's agitated behavior, hostility, inappropriate affect, auditory and visual hallucinations, delusions, paranoia, and thoughts of persecution. Psychiatrists considered the possibility of Petitioner's malingering and all discounted that possibility. State examiners at Riverbend ruled out malingering noting that it did not explain all psychotic features. Test results indicating schizophrenia were found consistent with Petitioner's psychotic disorder even at his then current "stable" level of functioning. Since his incarceration, Petitioner has been heavily medicated. For example, Petitioner has taken LithiumPage 699and Klonopin, both indicated for bipolar disorder; Depakene and Depakote indicated for epileptic conditions and rapid cycling bipolar disorder due to brain disease; the anti-psychotic drugs Haldol, Haloperidol, Mellaril, Navane, Thioridazine, and Trilafon; Cogentin/Benztropine to minimize the effect of such drugs; the sedative Vistaril; and, Ativan/Lorazepam and Valium to reduce agitation.

d. Post-conviction counsel repeatedly requested funds for a mental health expert. The prosecutor argued that post-conviction counsel were not entitled to experts at state expense. P.C. Vol. 1, p. 16. In support of the motion for funding, counsel submitted the affidavit of Dr. Gillian Blair. Dr. Blair's affidavit and post-conviction testimony reflected her need for a complete social history, additional testing and interviews before she could render an opinion on Petitioner's mental status at the time of the crime, at trial, and at the present time.SeegenerallyP.C. Vol. I, pp. 199-219. Dr. Blair opined that based on the Riverbend records, her test results from 1992, and the brief social history available, further investigation and examination of Petitioner was required. Dr. Blair testified that since 1985 Petitioner had shown a deteriorating mental status. P.C. Vol. II, p. 209. Petitioner had been diagnosed with bipolar disorder, schizo affective disorder or schizophrenia.Id.She further testified that schizophrenia and bipolar disorder, indeed all forms of psychosis, generally begin in early adulthood,Id.at 215, which coincides with the timing of the instant offense. Dr. Blair stated that Petitioner's troubles in the Navy, just prior to the crime, would suggest that he was becoming mentally ill at that time.Id.at 216. However, further information was needed to render an opinion and diagnosis of Petitioner at that time. Dr. Blair also stated that further evaluation of Petitioner was necessary to determine his present competency.Id.at 207.

e. The court denied funding for expert assistance at the post-conviction hearing. The court reasoned that funds were unnecessary because Petitioner had not shown a "need," further funding would result in a delay of the proceedings and the issue was a matter of record. . . .

f. Although the court found no "need" for further expert assistance, the court later used the fact that Dr. Blair could not express an opinion as to the issues of Petitioner's mental health to limit Dr. Blair's testimony and, subsequently, to deny Petitioner relief from his unconstitutional conviction and sentence. For example, throughout Dr. Blair's testimony, the prosecutor made repeated objections on the basis that Dr. Blair did not have an ultimate opinion.See e.g.P.C. Vol. II, pp. 208, 215, 216, 220, 259. Although the court allowed most of Dr. Blair's answers, it did so remarking that the weight of the testimony was specious.See id.The court, however, did not allow Dr. Blair to testify about mitigating circumstances.

1. Counsel at all critical stages failed to reasonably investigate Mr. Thompson's background and mental health history. Had counsel done so, they would have discovered that Petitioner had, in the years following his graduationPage 700from high school, intermittently demonstrated bizarre and delusional thought patterns. They would have also discovered that members of Petitioner's family, e.g., his father, had a long pervasive history of severe mental illness. Trial counsel, however, failed to perform a reasonable investigation, failed to find such evidence, and consequently failed to present the following evidence to the jury, both during the guilt phase and during the sentencing phase of the trial.

2. Counsel was ineffective for failing to fully investigate and present relevant evidence of Mr. Thompson's mental health history, and to secure adequate expert assistance to defend Mr. Thompson including psychologists, neuropsychological, and/or neurological experts to establish valid mitigating factors including, but not limited to, three statutory mitigation factors under Tennessee law, i.e., that Mr. Thompson suffered from substantial disorders and demonstrable physical brain damage which made him unable to conform his behavior to the law; left him under the influence of extreme mental or emotional disturbance, substantially impaired his ability to appreciate the wrongfulness of his conduct at the time of the offense,andnon-statutory mitigation under both Tennessee and federal law. As importantly, had counsel secured such mental health history, the result of any professionally adequate pre-trial competency and insanity examination (including, if indeed it was, or had been, professionally adequate, the pre-trial competency examination actually performed in Mr. Thompson's case) would have been different. Specifically, but not exclusively:

i. Counsel failed to discover and interview pertinent, available witnesses who could have testified and/or informed appropriate mental health experts of Mr. Thompson's descent into intermittent and delusional behavior following high school.

. . . .

. . . Had counsel been informed, they would have recognized that witness accounts, of Petitioner's bizarre change in behavior signaled the onset of mental illness. The lingering question would have been answered. The outcome of Petitioner's capital conviction and sentence probably would have been different.

a. Dr. Barry Crown, Penthouse Ste 310, Red Road, South Miami, FL 33143, will provide foundation testimony to establish himself as an expert in neuropsychology. He will testify that he has been provided with background information regarding Petitioner's medical and social history, that he has interviewed, and administered a battery of indicated neuropsycholgical tests to the Petitioner. He will testify that the results of those tests indicate that Petitioner suffers from organic brain damage.Hewill testify that the brain damage observed, as wellas Petitioner's social and medical history, isconsistent with schizophrenia. He will testify thatPetitioner's brain damage substantially impaired theability of the Petitioner to distinguish betweenright and wrong and/or to conform his conduct to therequirements of the law and/or prevented Petitionerfrom doing the same.He will testify that Petitioner's brain damage prevented Petitioner from meaningfully assisting in his own defense at trial and during state post-conviction proceedings and/or from fully comprehending the nature of those proceedings. He will further testify that arguments regarding Petitioner's mental state made by counsel for the State of Tennessee during state post-conviction proceedings were both outside the scope of a lay person's knowledge and that the prosecutor's statements misrepresented Petitioner's prison medical records.

b. Dr. Faye Sultan, 8430 University Executive Park Drive, Suite 690, Charlotte, NC 28262, will provide foundation testimony to establish herself as an expert in clinical and forensic psychology. She will testify that she has been provided with background information regarding Petitioner's medical and social history, that she has interviewed, and administered a battery of indicated psychological tests to the Petitioner.She will testify that, on the basis ofher examination, it is her expert opinion thatPetitioner suffers from schizophrenia and did so atthe time of the offense and at the time of trial. Shewill testify that Petitioner's mental illness wassevere and that it substantially impaired the abilityof the Petitioner to distinguish between right andwrong and/or to conformPage 702his conduct to the requirements of the law and/orprevented Petitioner from doing the same.She will testify that Petitioner's mental illness prevented Petitioner from meaningfully assisting in his own defense at trial and during state post-conviction proceedings and/or from fully comprehending the nature of those proceedings. She will further testify that arguments regarding Petitioner's mental state made by counsel for the State of Tennessee during state post-conviction proceedings were both outside the scope of a lay person's knowledge and that the prosecutor's statements misrepresented Petitioner's prison medical records.

Additionally, if the facts are developed to show that petitioner's mental health should have been introduced as mitigating evidence, petitioner may be entitled to relief. The magistrate judge heard argument of counsel and then ruled that certain specific discovery would be allowed. . . . Not only has Thompson raised the issue of ineffective assistance of counsel for failure to fully explore his mental health for mitigating purposes at his sentencing, which trial counsel testified he should have explored Thompson's mental health further . . .; the record also includes factual allegations that there was some mental health evidence that could have been introduced as mitigating evidence. Furthermore, Thompson alleges he did not receive a full and fair post-conviction hearing in state court because he was denied funds to hire a mental health expert to prove his incompetency/insanity at trial and at execution. If the fact are fully developed, he may be able to demonstrate he is entitled to relief.

After a cursory review of the numerous volumes of state documents involved in this case, it appears that Thompson has alleged a factual basis for some of his claims and the magistrate judge so found. For example, petitioner claims trial counsel failed to properly investigate his mental health history and present mitigating evidence at trial and sentencing. Petitioner contends he had two serious head injuries and intermittent bizarre and delusional thought patterns and witnesses to testify to such, and this mitigating evidence should have been introduced. Furthermore, petitioner contends that his institutional records reveal a diagnosis of schizophrenia with problems of auditory and visual hallucinations and paranoid ideation. If petitioner proves these factual allegations, he may be entitled to relief.

1. Petitioner suffers from schizophrenia. During the vast majority of his incarceration Respondent has medicated Petitioner in order to treat his mental illness.

2. On or about September 1998, Respondent stopped providing Petitioner with appropriate psychiatric medication.

3. Petitioner's mental health thereafter radically declined. Petitioner is now unable to meaningfully assist counsel or understand the nature of the proceedings in which he is being required to participate. Moreover, because of the severe nature of Petitioner's mental illness, Respondent's refusal to provide appropriate psychiatric care is tantamount to subjecting Petitioner to physical torture.See,Exhibit A, Declaration of Faye Sultan PhD. attached.

. . . .

6. Petitioner has no remedy at law. . . . Given the Petitioner's incontrovertible right both to receive proper psychiatric care and to seek federal habeas corpus relief the likelihood that he will prevail on the merits of his motion are great. Should Respondent be allowed to continue to deprive Petitioner of proper psychiatric care Petitioner will suffer irreparable injury. Not only is he being rendered incompetent, he is, for all intents and purposes, being tortured.

At the request of attorneys at the Federal Defender Services of Eastern Tennessee, I initiated a psychological evaluation of Mr. Gregory Thompson in August, 1998. Formal psychological testing and extensive clinical interview were conducted with Mr. Thompson at the Riverbend Maximum Security Prison in Nashville, Tennessee on 8-20-98. This interview was conducted as a "Contact Visit", with no physical barrier between this examiner and Mr. Thompson, and Mr. Thompson was not physically restrained in any way.

In addition to the data gathered during this examination, I was asked to review extensive documentation about Mr. Thompson's psychiatric, military, and legal history. These data also serve as bases for the opinions rendered here. These data include psychiatric records and examinations regarding Mr. Thompson for approximately the past fifteen years, administrative and medical records from the Tennessee Department of Corrections, and legal and police documents relating to the original offenses for which Mr. Thompson is currently incarcerated. In total, hundreds of pages of records and documents have been reviewed for the purpose of this evaluation.

2. On July 15, 1999, undersigned counsel conducted the deposition of Dr. Blau in order to discover the substance of his testimony at the evidentiary hearing. At that time Dr. Blau testified that he had been asked to render an opinion only in regard to Mr. Thompson's competency to proceed in the instant action . . .; that he had not reached any opinion other than that reflected in his report on the competency to proceed . . .; and that in order to render additional opinions he would require further interviewing and testing of Mr. Thompson. . . .

3. It is clear that although Respondent was on notice of Petitioner's mental health claims which are detailed in his habeas petition and was on notice regarding Petitioner's anticipated expert's testimony, Respondent either instructed Dr. Blau not to render any opinion during deposition regarding the issues in the petition or Dr. Blau failed to formulate such opinions.It appears that Respondentmade the strategic decision to limit Dr. Blau'stestimony to Mr. Thompson's competency to proceedgiven Dr. Blau's sworn testimony that his opinion waslimited to Mr. Thompson's competence to proceed, thefact that Dr. Blau only evaluated Mr. Thompson on oneoccasion for the specific purpose of competency toproceed, and that Respondent did not provide a copyof Petitioner's habeas petition to Dr. Blau.

4. Undersigned counsel relied upon Respondent's representation that Dr. Blau would rebut Petitioner's expert witnesses. Had undersigned known that Dr. Blau's opinion was limited to Mr. Thompson's competency to proceed, an issue which is no longer before this court, he would not have taken Dr. Blau's deposition and incurred expenses totaling $4,097.01.

5. Insofar as Respondent's complaint relates to Dr. Crown's response to the Assistant Attorney General Pruden's very few questions which Respondent elected to attach to his motion, Dr. Crown was not asked whether he had an opinion regarding Petitioner's mental condition at the time of the offenseorat trial. Instead Mr. Pruden chose to focus on the communication between Dr. Crown and Respondent's counsel.[⁷]

. . . .

7. Not one of these questions asked whether Dr. Crown had an opinion on the issue of mental state at the time of the offense, at trial, or at any other time for that matter. They queried only regarding the communications between Dr. Crown and undersigned counsel. As a matter of fact, only once in the excerpts attached to Respondent's motion does Mr. Pruden ask any question which could reasonably be interpreted as seeking Dr. Crown's opinions on these issues.

8. On that occasion, Dr. Crown responded that he was unable to render such an opinion because he could not be certain whether he had been provided all relevant information. Crown deposition at Page 9, lines 4-15. Rather than show that he had no opinion on a material issue, Dr. Crown's answer demonstrated that he would not carelessly issue an opinion until counsel for Respondent defined the facts upon which counsel wished Dr. Crown to base that opinion. Despite Dr. Crown's qualified response, counsel for Respondent never asked Dr. Crown whether,assuming that Dr.Crown had all relevant information,he had an opinion regarding Mr. Thompson's mental state at the time of the offense and/or at trial, nor did counsel provide Dr. Crown with supplemental fact which Respondent deemed relevant and then ask him whether, based upon the combined information, he held an opinion on those regards.

9. The reasons Respondent failed to discover Dr. Crown's opinions in these areas were not because Dr. Crown held no such opinions. Respondent's counsel either made a strategic decision to focus on the conduct of counsel (or perhaps to attempt to create theillusionthat Dr. Crown's opinions regarding these areas will come as a complete surprise to the Respondent when they are stated at hearing),orhe simply neglected to ask the relevant questions.

Q: Specifically, what issues regarding Mr. Thompson and his case have you been asked to review and render expert opinions on, sir?

A: At this point, I have been asked to consider his competency and also his mental status.

Q: Okay. Let's take them one at a time, then. Competency, are you talking strictly about his presentPage 708competency in the habeas corpus proceedings?

A: I am talking about his competency at the time that I saw him.

Q: Have you been asked to render any determination about whether or not he was competent to stand trial at his criminal trial?

A: No.

Q: Has anything been said to you that would lead you to believe that you might be asked at a future date prior to the evidentiary hearing to render such an opinion?

A: It hasn't been suggested or asked of me.

Q: So if I understand you correctly then, you were only asked to make a competency determination at the time you met Mr. Thompson?

A: That is correct.

Q: And when was that, sir?

A: June 12th of 1998.

Q: All right.His mental status. Please elaboratefor me, what about his mental status have you beenasked to opine?

A:I have been asked to evaluate it.

Q: His mental status at present?

A: Well, it was his status as of the time that I saw him. I haven't seen him since June 12th of 1998.

Q:Have you been asked to render any opinionsconcerning Mr. Thompson's mental status at the timeof the murder of Brenda Lane?

A:Not specifically, no.

Q:Not specifically. Does that mean that you havenot been asked that specific question?

A:That is correct.

Q:Have you rendered an opinion, though, in thatregard?

Q:No, not as of this time.

Q:So you have not rendered an opinion to Mr.Kissinger yet one way or another regarding Mr.Thompson's ability to distinguish between right andwrong or conform his conduct to the requirements ofthe law at the time of Ms. Lane's murder?

A:That is correct.

Q:Has Mr. Kissinger, or anyone else representingMr. Thompson, represented to you that they would likeyou to render such an opinion during the course ofyour employment?

A:No.

Q: Just so I am clear then, your mental status evaluation of Mr. Thompson is only to evaluate his mental status at present?

A: I have only seen him on one occasion, June 12th of 1998. So what I have to say would be related to that examination. I have looked at other records, but I don't know they are necessarily complete, and I couldn't render an opinion based on the lack of completeness, or what I assume is the lack of completeness.

Q: So you don't feel that based on the materials that you have reviewed to date that you could, based on your professional experience, render an opinion about Mr. Thompson's mental state say back in 1985 at the time of the murder?

A: As I sit here today, I could not.

Q: So you are not prepared to render any opinion in that regard today?

A: That is correct.

Q: What materials have you been provided to review concerning Mr. Thompson?

A: I have seen what I believe to be his Department of Corrections file from it's [sic] inception.

Q: And when you say his Department of Corrections file, do you mean his medical/mental health file?

A: It's his medical file, as well as his general file, including disciplinary reports, including adjustment reports.

Q: Have you reviewed any other records?

A: I have seen the depositions of three of the employees of Prison Health Services. I have seen the reports of the mental health facility that Mr. Thompson spent thirty days in prior to his original trial. I have seen the testimony of the mental health professions at his trial, Dr. Kogley.

Q: Cobley?

A: Cobley. I have seen the materials from Dr. Blaire.

Q: How about Dr. Watson?

A: Watson. I have seen Dr. Watson.

Q: When you say materials from Dr. Blaire, does that simply mean her testimony, or have you seen other —

A: I have seen the raw data, or parts of raw data. Actually, the entire raw data are not in the materials that were provided to me. And then I have seen Dr. Blau's report and Dr. Blau's raw data.

Q: And you just received Dr. Blau's —

A: Correct.

It also results in distortions of affect, meaning, the way that behavior is expressed. And I believe that his affect has been variable from rather depressed to highly agitated and aggressive. And so, putting that together, I believe he does have a schizo-affective disorder of the bipolar type, meaning, there is a considerable spread in his emotionalities, that there is a distortion in his perception of reality, that he tends to fragment at times, and tends to be directed by hallucinatory activity.

. . . [I]n Mr. Thompson's case, there are notations throughout his medical records that he has auditory hallucinations. He also related to me that at the time I saw him he was auditory hallucination free, but that he frequently got command hallucinations that there were voices coming from within him that were telling him what to do, which is what happens in an auditory hallucination state.

Q: Based on your review of Mr. Thompson's records or the records that were provided to you, what do you conclude, or when did you conclude, was the onset of these auditory hallucinations?

A:I have no real pinpoint. For that, mosttypically, people with schizo-affective disordertends to develop in late adolescence to earlyadulthood.

Q: From the materials you have reviewed, do you see anything in those materials that show that this is when it occurred in Mr. Thompson?

A:I believe he began to have a more difficult timewith life in his — in the last stages of his militaryservice. So I believe that the beginnings of it wouldbe tracked to that. I haven't seen the records, but Ibelieve that that's probably when I would anticipatethat it would have begun.

Q: And if I understood your answers earlier correctly, you do not have an opinion at this time as to the exact nature of this brain damage for which you have seen some indicia?

. . . .

A: I don't specifically know the causation. I believe it may be secondary to his thought disorder since we know that in people who do have chronic thought disorders that the thought disorder itself may either be caused by or may result in some damage to the brain. For example, schizophrenics very often have enlarged ventricles of the brain.

Q: I notice that you did not attempt to administer an MMPI to Mr.Page 711Thompson. The reason for that, sir?

A: In the regular course of my neuropsychological evaluations, I tend not to administer a personality questionnaire. I leave that for, or the assessment of personality, specifically to a clinical psychologist or a psychiatrist.

Q: In this case, this would be something that you would defer basically to Dr. Sultan?

A: I would defer in terms of administering or interpreting of the personality testing. Yes.

Q: Would an MMPI-2 be useful in terms of assessing organic brain damage?

A: No, not necessarily. No.

. . . .

A: No. If I thought it was necessary to form a neuropsychological opinion, I would have given it.

Q: And in this case you didn't?

A: That is correct.

Q: And part of that is because you are not interested in determining whether or not he can distinguish between right and wrong?

A: I was asked to assess his neuropsychological status, and that to [sic] extent, I wasn't asked to consider issues of determining right or wrong, sanity, and I wasn't asked specifically to consider personality. But when I looked at him, it was clear to me that Mr. Thompson also had personality problems. He had a thought disturbance.

I assumed that someone else would be looking at him in terms of those thought disturbances, the personality difficulties,and I just recentlylearned that Dr. Sultan had looked at him.

Q: My understanding then is you were solely asked to talk about Mr. Thompson's current competency. That's what you have been asked to render an opinion about — or competency at the time you saw him?

A: Competency and mental status.

Q: In terms of competency, did you evaluate him as being competent?

A: At the time that I saw him, it's my opinion he was competent.

Petitioner claims experts recently obtained by himhave revealed that he was incompetent under Tennesseelaw at the time of the crime and throughout his courtproceedings. Petitioner has failed to state the nameof the expert and failed to provide the proof ofthese revelations. The Court has read the depositionof Dr. Crown, (Court File No. 119, Exhibit 1) but wasunable to located [sic] his opinion that Thompson wasincompetent at the time of the crime and throughouthis court proceedings. As a matter of fact, Dr. Crownstated he was not asked to render any determinationabout whether or not Thompson was competent duringhis state jury trial. (Court File No. 91, Exhibit 1,pp. 7-9). Dr. Crown stated he was only asked to makea competency determination at the time he met Mr.Thompson on June 12, 1998.After meeting with Thompson for two and a half to three hours, which consisted of taking a brief history for twenty-five to thirty minutes and the remainder of the time was spent administering tests, it was his opinion that Thompson was competent on June 12, 1998. (Court File No. 91, Exhibit 1, p. 7-47).

Dr. Crown did testify Thompson had a significant auditory processing deficit which means he is easily distracted by external auditory stimuli. (Court File No. 91, Exhibit 1, p. 20). He further testified that some of the test results led him to conclude that there was some sort of organic brain damage. However, he is not able to make any assessment of the severity of the damage nor does he intend to make such an evaluation. (Court File No. 91, Exhibit 1, pp. 24-28). Dr. Crown believes this organicity is secondary to a thought disorder which he refers to as a schizo-affective disorder-bipolar subtype with organic components. Dr. Crown bases his conclusion on the reports of the people who have treated Thompson for the last fourteen years. (Court File 91, Exhibit 1, p. 35).

Respondent hired Dr. Blau to rebut Dr. Crown's testimony. Portions of Dr. Blau's testimony have been filed with the Court. Dr. Blau testified he did not observe or see any indications of organic brain damage on the test he administered. Dr. Blau found Thompson's responses during testing were rational and appropriate. (Court File No. 89, Attachment C, pp. 31, 47-48).

Thompson has failed to provide any significantprobative evidence which would make it necessary forthis Court to resolve a factual dispute. . . .Thompson has not provided this Court with anythingother than factually unsupported allegations that hewas incompetent at the time he committed the crimeand at the time of his jury trial. Nor has Thompsonprovided this Court withPage 713any significant probative evidence that Thompson wassuffering from a significant mental disease thatshould have been presented to the jury during thepunishment phase as mitigation evidence.

Petitioner had two different psychologicalevaluations and both resulted in findings ofcompetency at the time of the crime and at the timeof trial. Additionally, the record shows that trialcounsel did reasonably investigate Thompson'sbackground and mental health history.

As an initial point, undersigned counsel apologizes for any lack of clarity which may exist in Petitioner's pleadings.¹ Though counsel disagrees with the Court's criticism of those pleadings, the fact that the Court's Decision is contrary to controlling authority and sound legal reasoning provides empirical evidence that undersigned counsel has somehow failed to bring that authority and reasoning to the Court's attention. Mr. Thompson should not suffer because of counsel's shortcomings. Furthermore, this Court should not face almost certain reversal simply because counsel phrased otherwise irrefutable arguments in such a way that the Court remained unaware of the proper resolution of Respondent's Motion for Summary Judgment. In an effort to fulfill his duty to both his client and the Court, counsel now attempts to phrase those arguments in such a way that the Court is fully aware of their nature and asks this Court to alter or amend the judgment entered herein to fully address such arguments and thereafter deny Respondent's Motion for Summary Judgement.²

¹ The Court's Decision contains several negative comments regarding perceived deficiencies in undersigned counsel's pleadings.

² Though Mr. Thompson does not waive or concede any of the issues and/or arguments raised by the pleadings which were not expressly or previously waived or conceded, and the same are reasserted herein, Petitioner's Motion to Alter or Amend centers on two primary issues: (1) whether the procedural bar which was,or would be,applied to claims arising from facts not heretofore presented to the state courts of Tennessee is independent of federal law; and (2) whether the State of Tennessee's interference with Mr. Thompson's attempts to present claims arising from hisunquestionablysevere mental illnesseitherdeprived Mr. Thompson of a full and fair opportunity to present the facts supporting those claims to the state courts of Tennesseeorprovided "cause" for not presenting the facts supporting those claims to the state courts of Tennessee.

Earlier in Mr. Thompson's District Court proceedings, Respondent took the deposition of Dr. Sultan. The district court record presently contains a summary of her conclusions in an expert disclosures pleading (R. 19) and an affidavit detailing her opinion regarding Mr. Thompson's mental health status in February 1999 (R. 34). Having examined Mr. Thompson and viewed his social and medical history, Dr. Sultan executed a report in addition to her testimony at Respondent's deposition. (Attachments A B).

Although this Court denied Mr. Thompson's mental health related claims partially on procedural grounds, Dr. Sultan's deposition and report are important to the merits of the claims. With regards to the merits of Mr. Thompson's mental health related claims, he maintains that he made a sufficient showing of a genuine issue of material fact to overcome Respondent's summary judgment motion notwithstanding Dr. Sultan's opinions. However, Dr. Sultan's opinions certainly are directly relevant to the mental health related claims and should be considered by the Court.Counsel for Mr. Thompsonengaged in[sic]Dr. Sultan's services for the solepurpose of offering her opinions to support hisconstitutional claims.The failure of counsel to ensure that Dr. Sultan's opinions were filed in the record is a result of excusable neglect.

District Court counsel for Mr. Thompson, Stephen M. Kissinger, was under the mistaken belief that the evidence was in the record.¹ To the extent that counsel should have nonetheless known that Respondent had not placed Dr. Sultan'sPage 715deposition and report in the record, counsel's failure to ascertain that fact and file the same himself was the result of excusable neglect. During the time period in question, counsel's office was in a state of turmoil and his caseload was excessively burdensome.

As described fully in the attached affidavit of counsel, Stephen M. Kissinger, this state of disorder contributed to counsel's excusably negligent failure to realize that Dr. Sultan's deposition and report were not filed in the record. (Attachment C).

¹ Respondent's deposition of Dr. Crown and the accompanying report were placed in the record by Respondent. (R. 91). Because Respondent had moved for costs incurred in,inter alia,hiring its own mental health expert, Dr. Blau, on the grounds that Dr. Blau's services were unnecessary because Petitioner had no expert opinions to support the mental health related allegations contained in the petition,counsel for Mr. Thompson was under themistaken belief that Respondent had placed hisdeposition of Dr. Sultan and the report which Dr.Sultan had supplied to Respondent in the record.

1. Mr. Thompson's current psychological status[.]

2.Mr. Thompson's likely psychological status andmental state before and surrounding the time of the1985 offense.

3. Social, environmental, psychological, and economic factors in the life of Mr. Thompson which might have [to] be considered to be mitigating in nature at the time of his trial.

The [sic] is substantial documentation throughout the Tennessee Department of Corrections records that Mr. Greg Thompson has suffered from significant mental illness since at least the time of his incarceration in 1985. He has been treated almost continuously with some combination of major tranquilizer and/or anti-depressant and/or anti-anxiety medications. He has received a variety of diagnostic labels including Psychosis, Psychosis Not Otherwise Specified, Paranoid Schizophrenia, Mania, Mixed Substance Abuse, Schizophrenia, BiPolar Affective Disorder, Schizoaffective Disorder, Malingering, and Adult Antisocial Behavior. This is clearly indicative of the Tennessee DOC mental health staff's view that Mr. Thompson has experienced major mental illness throughout at least most of his period of incarceration. Further, there is extensive documentation contained in these recordsPage 716of many episodes of bizarre aggressive and/or self destructive behavior.

Ms. Lamar described Mr. Thompson as displaying significantly "different" behavior when he returned to visit her following his discharge from the U.S. Navy. "Greg didn't act the same". Unlike the `eager to please', passive, sometimes funny gentle boy who she had reared, Mr. Thompson was "angry", "sometimes sad". "I don't think he wanted me to know what was going on with him. He mostly just stayed away from me." Ms. Lamar reported that she noticed Mr. Thompson sometimes "staring off into space" or "talking to himself". She would ask him about these behavior. [sic] "He'd deny it. He acted like he didn't know what I was talking about." Ms. Lamar recalls being quite concerned about her grandson's mental state during this time. She did not recall ever being asked questions at any time before or during Mr. Thompson's trial.

Ms. Wharton described Mr. Greg Thompson as a highly sensitive, passive, timid, emotionally vulnerable child. She described a childhood of great hardship. According to her report, their grandmother, Ms. Maybelle Lamar was verbally abusive, neglectful of the children's basic daily needs, highly critical, and unable to care properly for the children. Ms. Wharton described many instances of such abuse and neglect. She described the period following their mother's death as particularly chaotic and neglectful, recalling that often there was no food in the home and that the children would take money from under their grandmother's mattress to go and buy food. In the period following their mother's death, Ms. Wharton reported that her grandmother was continuously drunk and unable to care for her grandchildren. According to Ms. Wharton, Greg Thompson frequently witnessed his sister Nora being beaten by their grandmother.

Ms. Wharton further recalled that she and her younger brother had witnessed the brutal beating and rape of their mother by their biological father. She recalls Greg standing in the scene screaming and sobbing uncontrollably.

Of particular relevance is Ms. Wharton's recollections about Mr. Thompson repeatedly banging his head against the wall of their home on many occasions during their early childhood. This behavior frequently followed their grandmother yelling at Greg "You have the Devil in you." Mr. Thompson would tell his sister that he was attempting to "knock the Devil out" of his head in this way. Ms. Wharton recalls believing that this behavior was quite odd.

Ms. Wharton reported that Greg would frequently cry at school during the early school years, and as a result, was often the victim of intense mockery from his classmates. Because Ms.Page 717Wharton was in the same classroom as her brother she observed these behaviors and often intervened on her brother's behalf. She described Mr. Thompson's response to this abuse as quite passive.

Mr. Chavis reported that Ms. Cajulao described Mr. Thompson as displaying increasingly bizarre behavior during the latter part of their relationship. Similar to descriptions proved [sic] by Ms. Nora Wharton, Ms. Cajulao reported several episodes of "paranoid" and aggressive behavior which had no apparent external antecedent. She reported that Mr. Thompson sometimes thought that people were "after" him. He would close all the curtains in the house because he did not want the person who was "looking" for him to see him through the curtains. She remembers being quite concerned about Mr. Thompson's mental state.

Mr. Gregory Thompson has experienced symptoms of a major mental illness throughout his adult life. Indeed, there is information available which suggests that Mr. Thompson was displaying significant signs of mental illness from the time he was a small child. Self-injurious behavior is reported as early as six years old. There is extensive documentation contained within the records reviewed for this evaluation that Mr. Thompson has experienced a thought disorder and/or an affective disorder of some type for many years.

It is my opinion that Mr. Gregory Thompson is mostappropriately diagnosed, according to the Diagnosticand Statistical Manual of Mental Disorders, FourthEdition, as having Schizoaffective Disorder, BipolarType. As is typical of this illness, symptoms becameapparent in early adulthood. Mr. Thompson wassuffering serious mental illness at the time of the1985 offense for which he has been convicted andsentenced. This mental illness would havesubstantially impaired Mr. Thompson'sPage 718ability to conform his conduct to the requirementsof the law.

Further, Mr. Thompson was the victim of severe childhood emotional abuse and physical neglect. His family background is best described as highly neglectful and economically deprived. Mr. Thompson repeatedly witnessed episodes of violence during his childhood in which one family member assaulted or brutalized another. There are significant aspects of Mr. Thompson's social history that have been recognized as mitigating in other capital cases.

It is important to note that all of the informationrelated to Mr. Thompson's early mental illness andsocial history was available at the time of his 1985trial.

A. Mr. Chavis asked me about my availabilityandasked if I would be willing to perform apsychological evaluation to assess what Mr.Thompson's psychological condition might have beenlike at the time of the offense in 1985, to assesswhether it was possible to make such an appraisal, tosee whether there were factors in his personalbackground that might have been investigated at thetime of trial that would have had bearing on hispsychological status at the time of the offense,and Mr. Chavis also suggested that they wanted to know something about Mr. Thompson's current psychological state, his level of functioning at the present time.

Q: Were you also asked if you would be able to determine his competency at the time of his criminal trial in 1985?

A: That was not an initial question, no.

. . . .

Q: Did Mr. Chavis express to you any opinion as to what he thought Mr. Thompson's psychological condition was, his mental status was, at the time of the offense?

A: The only opinion that he expressed to me was that he thought that he was not in good shape, that he had deteriorated. He didn't label it in any particular way. Said he didn't think that he was doing as well.

A: Ms. Cajulao described to Mr. Chavis that during the course of the four-year relationship she had with Mr. Thompson, Mr. Thompson became increasingly bizarre in behavior that he exhibited. There were a number of occasions in which there were incidents that took place in the military that he described to her as him having been attacked. The facts of the situation may in fact not be that, but that was his description to her, that he was being picked on, that he was being bullied, that he was being attacked.

He became depressed, according to her, over time and increasingly paranoid. At some point she would come home from work, and he would be in their home with the curtains drawn, standing by himself in the dark telling her that people were after him and that he didn't want people to be able to look at him through the windows. She remembers being quite concerned about his behavior.

There are a couple of situations that she described to Mr. Chavis in which, with no external provocation that she could identify, Mr. Thompson became quite violent with her, and she saw those behaviors as very unusual for him and reported to Mr. Chavis that Mr. Thompson seemed unaware of what had provoked it and didn't even seem after the fact to remember what had taken place, would simply, after a period of time, calm himself down and return to normal behavior. I found all of that quite significant.

(Id.at 55-56).

Q: What indicates to you or what indicia are there for you that suggest Mr. Thompson was displaying significant signs of mental illness from the time he was a small child? How do you arrive at that conclusion?

A: During my interview with Mr. Thompson's sister — and let me say all of her names — Ms. Nora Jean Hall Wharton, Ms. Wharton spontaneously began to talk to me about Mr. Thompson's behavior in the time period immediately following their mother's death.

By the time of the first grade, Mr. Thompson, when he was being yelled at by his grandmother, she was reportedly verbally abusive in the following fashion: She would yell at him — you have the devil in you, boy. She would then observe Mr. Thompson standing or sitting beside a wall repeatedly banging his head into the wall. She, in her role as protector of him, would ask him what was goingPage 720on, and he would tell her he was trying to knock the devil out of his head. She recalls at the time, although she was quite young herself, being worried about his behavior and thinking it as was very odd.

One of things that we know about people who develop thought disorders is that frequently in childhood you'll see one or more peculiarities in behavior. This would certainly fit in that category. She recalls other instances.

Q: Sort of self-punishment or a self-exorcism type thing?

A: A self-injurious behavior is what we would call it I think. Mr. Thompson, when he was Greg, in the first and second and third grade had rather frequent crying episodes in classrooms that Ms. Wharton recalls also as very unusual in the context of his schoolroom situation. She describes him as being the subject of torment on the part of the students because he behaved in an odd fashion. Sometimes he would simply begin to cry and wail and scream and apparently made a sound like a fire engine when he was sobbing and developed the nickname Fire Engine. That's reported in the trial transcript. She told me much more detail about actually the extent of those kind of emotional outbursts.

At home it was rather common for Mr. Thompson to begin to cry and scream during times when Ms. Wharton herself was being beaten by their grandmother. Ms. Wharton was the victim of physical abuse on the part of the grandmother. Mr. Thompson observed much of this since they were together virtually all of the time, and Nora Wharton was not really permitted much interaction outside of their home.

She [Ms. Wharton] recalled another episode during which her biological father was brutally beating and raping their mother on the floor in front of them when the children were quite small, perhaps Mr. Thompson was himself three or four. She was maybe four or five. Mr. Thompson's reaction to that was to stand and scream and scream and scream and scream during the entire episode.

Any of the — taking the self-injury aside, setting that aside, any one of those behaviors in isolation might not be particularly significant. Putting them together, we begin to see a pattern of intense emotional reactivity.

Q: So basically, if I understand it, it's the self-injurious behavior and the crying and the way you see him reacting to these physical abuses of others?

A: Yes.

Q: And that is indicative of a sign of mental illness to you? I just want to make sure that I'm understanding what you're telling me. If I'm not, please explain it to me.

A: I think I understand your question. It is an early indicator of a problem that's likely to develop. With the benefit of hindsight, it takes on the significance of a precursor, because then we see the escalating pattern of dysfunction and abnormality.

Q: Sort of a causal relationship is what you're seeing developing?

A: I'm not sure what causes what. There are often early indices of later mental illnesses that you don't know exactly what it's going to lookPage 721like later, but you realize in looking at the child that there's a high likelihood that something is not going to be right when that person achieves maturity.

Q: Because of the environment, for example, in which he's growing up?

A: Perhaps. Perhaps because of the genetics involved. Perhaps because of the situations he's exposed to, as you said, the environment. Perhaps because of whatever factors there are. Perhaps nutrition plays a role in this. These children were without food for significant periods of time as well. I don't know all of the reasons, but what I know is that if you look back in the childhood of this man, the beginnings of mental illness are apparent.

Q: Besides Ms. Wharton's report of lack of food, have you seen any evidence that the children were taken away because of malnutrition?

A: No. Ms. Wharton did tell me, however, that there was a neighbor who had planned to make a report to Social Services, so perhaps I'll have the opportunity to interview that neighbor as well.

Q: . . . You don't know to what degree the children were malnourished then?

A: No. I don't know. I do know that — and this is confirmed by the grandmother — in the six weeks approximately following their mother's death, the children were left alone virtually all of the time because Ms. Lamar was drunk and in bed, and so we have a five, a six, and a seven-year-old child in a house with no food. They would occasionally steal money from underneath her mattress while she was sleeping, and one of them would go to the store to try to find some food. Occasionally a neighbor would provide them with a meal or a can of food. I don't know whether they were malnourished over an extended period of time. I do know that there is, from Ms. Wharton's perspective, rather serious psychological damage from that time.

Q: You have no medical documentation showing any malnourished condition or that it's caused some problem with his brain, do you?

A: I don't. These children were never taken to the doctor, so there wouldn't be any medical documentation. There's probably documentation in the school system. According to Ms. Wharton, Ms. Lamar was so drunk at the beginning of the school year following their mother's death that she forgot to sign the children up for lunches at school. They didn't have anything to eat during the day, so they forged her signature on a permission slip so that they could eat. They were discovered and punished by the school superintendent people, and a form was sent home to Ms. Lamar. She then signed it, and the children were able to eat lunch after that point. A couple weeks passed for all of that to get straightened out.

Ms. Wharton has undergone a lot of therapy in recent years and says that she's now able to describe situations that she wasn't very comfortable acknowledging to herself, these being one of them.

Q: Your diagnosis of Mr. Thompson is schizoaffective disorder, comma, bipolar type. What leads you to that diagnosis from what you've reviewed and your testing results?

A: What leads me to the diagnosis is that there is a long history, perhaps at this point almost a 20-year history, of simultaneous thought disorder on the part of Mr. Thompson documented throughout all the records, and affective disorder, emotional disorder, being unable to regulate his emotions, sometimes falling into the pits of despair and becoming suicidal, sometimes becoming highly agitated and manic and having too much energy, too much exuberance, and grandiose thinking. The thought disorder is manifested in persecutory ideas, delusions of grandeur — lots of different kinds of delusions actually — auditory hallucinations that he sometimes admits to, sometimes suspected by the doctors who are doing the examination.

The psychological testing early on in Mr. Thompson's incarceration confirm the presence of a psychotic process. There was an MMPI administered to him by a prison psychologist in 1990 that is described as valid and indicative of psychotic process, and throughout the prison record he receives a variety of diagnoses that take into account both thought disorder and affective illness.

The very best diagnosis to describe all of the complex of symptoms that I just talked to you about is schizoaffective disorder, bipolar type.

Q: You note in your report Mr. Thompson was observed having a significant change in behavior after he was discharged from the Navy. What significance do you attach to that fact?

A: Well, it's interesting, because the state Court of Appeals actually notes this, that prior to his entry into the military Mr. Thompson is described almost uniformly — well, in fact, uniformly according to their opinion — as passive, as compliant, as eager to please, as gentle, as timid, as eager to run from attacks.

At some point — and we don't know, because I haven't seen any psychiatric records from the military at this point; I don't know if there are any — we don't know whether or not the change in Mr. Thompson is perceived as other than behavioral disruption, but, in fact, his description of that time is that he began to notice that people were trying to hurt him all the time, that officers and other people of his rank and slightly above his rank attempted to provoke him, that they sometimes physically assaulted him, that he thought he was being followed a lot, and that he sometimes struck out in what he thought was defense and then later found out from other people who he knew and trusted that there wasn't anything to defend against or that there might not have been anything to defend against.

Q: This is what he related to you during your interview last August?

A: Right. The people who saw him after the military each were struck by how very different he seemed. That was the word that kept being used, "different." Sometimes the people I was speaking to were not able to describe what different meant, but, for example, the grandmother said that he was different as in not right, that he wasn't himself. Ms. Wharton tells me that the grandmother was very well aware that he was in deep psychological distress, and, in fact, the grandmother suggested that he be taken to the psychiatric unit at GradyPage 723Hospital in Atlanta, I believe, for treatment. The grandmother observed him staring off into space for long periods of time. She observed him mumbling to himself. When she asked him what he was doing, he told her he had no idea what she was talking about. She said that was very different from the boy who left her to go into service.

The sister has even a better glimpse of him than that, because he actually went to live with her for a while, and she said he was bizarre. She described him as paranoid. She said that he would explode for no reason at all, that she was afraid of him for the very first time in her life, that they had always been terribly close, the sort of close where if there was only one piece of bread to eat they would share it, that they always looked out for one another, and that suddenly he was behaving in ways that she simply could not identify. She described three very serious episodes of aggression and emotional upset that she said are what led her to approach her grandmother about what to do for treatment for him.

Q: You state that the schizoaffective disorder, bipolar type, would substantially impair Mr. Thompson's ability to conform his conduct to the requirements of the law. How so?

A: There are points in time when Mr. Thompson is out of contact with reality. He is responding to situations that simply don't exist or that he perceives in extremely exaggerated or different form. A person is not able to conform one's conduct to the law if you are frankly delusional or hallucinating in some way. Mr. Thompson over the years has had both of those symptoms.

Q: So it's this delusional aspect of this disorder that is the main factor that would keep him from having the ability to conform his conduct to the requirements of law, if I understand you correctly?

A: Is it the main factor? Let me say that I think it's at least as potent a factor if not more as the other aspect of his mental illness, which is that he has emotional disregulation.

Q: Meaning?

A: Meaning Mr. Thompson often is not in control of his emotions. He has episodes of rage, of aggression, that he doesn't understand or relate to very well. He's told about them later. Sometimes he remembers them, sometimes he doesn't.

2. I was appointed to represent the Appellant, Gregory Thompson, on January 29, 1998, by the district court.

3. In approximately November of 1999, Ms. Leah Prewitt, the Federal Defender for the Eastern District of Tennessee, was forced by illness to cease activities on behalf of Federal Defender Services of Eastern Tennessee, Inc. Ms. Prewitt's duties were assumed by Ms. Elizabeth Ford, an Assistant Federal Defender in the office. Because Ms. Prewitt had not resigned, Federal Defender Services of Eastern Tennessee, Inc., was not able to hire a permanent replacement for Ms. Prewitt. Because Ms. Ford could not doPage 724both Ms. Prewitt's job and her own, Federal Defender Services of Eastern Tennessee, Inc. assigned a portion of Ms. Ford's caseload to affiant.

4. Affiant, however, already had an extremely heavy capital habeas corpus caseload, including, but not limited to, Mr. Thompson's case. In fact, his capital caseload was so heavy that Federal Defender Services of Eastern Tennessee, Inc. was forced to hire a second attorney to handle capital habeas corpus cases in July of 2000. When a portion of Ms. Ford's cases were assigned to affiant, that caseload became so great that affiant made errors which, however understandable, were nonetheless errors.

5.Despite the affiant's efforts, there wereoccasions when he made assumptions, such as theassumption he made regarding Respondent's filing ofthe report and deposition of Dr. Sultan, which were,however reasonable, incorrect. Counsel's failure toverify this assumption regarding these documents wasneglect. Given the extraordinary pressure under whichcounsel was operating at that time, such neglect wasexcusable.

And further this affiant saith not.

Thompson now argues, without citing authority, that the calculation of the Rule 60(b) one-year limitation period should not begin until March 31, 2000, the date this Court denied his Rule 59 motion to alter or amend the judgment. Thompson's interpretation is contrary to the plain language of the rule. Thompson has not cited, nor has the Court found, any authority to support his position. The rule specifies that the motion should be made within a reasonable time, and in this case "not more than one year after the judgment, order, or proceeding was entered or taken." Rule60(b) of the Federal Rules of Civil Procedure. In the case before this Court, the order dismissing thehabeaspetition was entered on February 17, 2000. [Court File No. 125].

Moreover, the Court specifically noted in its memorandum opinion dismissing thehabeaspetition, that Thompson procedurally defaulted his claim that he was incompetent at the time of the crime and an the time of trial. [Court File No. 124, at 35].Furthermore, when addressing Thompson's claim ofineffective assistance of counsel for failing toadequately investigate his mental health, the Courtplaced Thompson on notice that he failed to provideevidence of his allegations that he was incompetentat the time of the crime and trial.[Court File No. 124, at 53].

Petitioner claims experts recently obtained by him have revealed that he was incompetent under Tennessee law at the time of the crime and throughout his court proceedings. Petitioner has failed to state the name of thePage 725expert and failed to provide proof of these revelations. The Court has read the deposition of Dr. Crown, (Court File No. 119, Exhibit 1) but was unable to located [sic] his opinion that Thompson was incompetent at the time of the crime and throughout his court proceedings. As a matter of fact, Dr. Crown stated he was not asked to render any determination about whether or not Thompson was competent during his state trial.

Id.Thus, the filing of this request more than one year after Thompson was placed on notice that such information was not in the record is unreasonable and not excusable neglect.

I. Whether the district court erred when it reviewed Mr. Thompson's claims under the "all reasonable jurists" standard denounced by the Supreme Court in (Terry)Williams v. Taylorto summarily deny Mr. Thompson's petition.

II. Whether the district court erred in denying Mr. Thompson's habeas petition without a hearing where Mr. Thompson did not fail to develop the factual basis of his claims in state court and whether the district court erred by making factual findings without affording Mr. Thompson the opportunity to present evidence with regards to those findings.

III. Whether Mr. Thompson received ineffective assistance of counsel in both the guilt and sentencing phases of his capital trial where counsel failed to investigate and present evidence regarding Mr. Thompson's mental illness and social history and failed to present evidence in support of a life sentence in violation of due process and the Sixth Amendment.

IV. Whether Mr. Thompson's Fifth, Sixth, Eight, and Fourteenth Amendment rights were violated when the state withheld exculpatory evidence which clearly supported Mr. Thompson's claim of serious mental illness and its debilitating effects and presented false evidence regarding Mr. Thompson's mental health during trial and post-conviction proceedings.

[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct.

while an attorney should represent his client with singular loyalty, that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon a court.

Thompson has failed to provide any significant probative evidence which would make it necessary for this Court to resolve a factual dispute. . . . Thompson has not provided this Court with anything other than factually unsupported allegations that he was incompetent at the time he committed the crime and at the time of his jury trial. Nor has Thompson provided this Court with any significant probative evidence that Thompson was suffering from a significant mental disease that should have been presented to the jury during thePage 732punishment phase as mitigation evidence.

Petitioner had two different psychological evaluations and both resulted in findings of competency at the time of the crime and at the time of trial.

Moreover, not one of Thompson's post-trial experts have opined that Thompson suffered from organicity or mental illness at the time of the crime or trial. Blair, Thompson's state post-conviction expert, also a clinical psychologist with ties to Vanderbilt, declined to give an opinion, stating simply that more information was needed. Significantly, she did not fault the testing procedures used by MTMHI or Copple, but merely stated that they were not extensive enough. Indeed, she performed many of the same tests.Similarly, neither Crown nor Sultan ever expressedan opinion that Thompson was mentally ill at the timeof the crime. In fact, Crown stated that he was notasked to render such an opinion. . . . On the otherhand, Crown found Thompson competent in June 1998,which is consistent with Copple's findings and theMTMHI evaluation in 1985.

Also, as the district court found, Thompson failedto submit any medical records or proof to any courtthat he actually sustained the alleged head injuriesor that they resulted in any permanent damage.Further, he has never submitted to any court anyproof that he suffered from severe mental illness atthe time of the crime.

Counsel has now had numerous opportunities via expert testimony to establish that Thompson suffered from organic brain disease or mental illness at the time of the crime.And yet, at each opportunity, counselfails to secure an answer to the critical issue ofwhether Thompson was mentally ill at the time of thecrime.In essence, counsel is attempting to rely on,as proof,two inferences: 1) because Thompson allegedly suffered head injuries, he must have suffered brain damage, and 2) because he is currently suffering from schizo-affective disorder, he must have been suffering from mental illness at the time of the crime. But inferences are not proof, as even Thompson's experts seem to recognize, for each and every one fails to automatically take the leap from these inferences to the conclusion that he was mentally incompetent at the time of the murder.However, absent some evidence of organic braindamage or mental illness at the time of the crime,trial counsel cannot be deemed ineffective forfailing to discover something that does not appear toexist.As we held inLorraine v. Coyle,291 F.3d 416,436(6th Cir. 2002), "[i]t simply cannot be said that trial counsel's conduct fell below an objective standard of reasonableness underStricklandsimply because the leads [of possible brain damage] led nowhere."

. . . .

Thompson has not presented any evidence of incompetence at the time of the crime or trial in either the state or federal proceedings. As previously noted, none of Thompson's experts have stepped up to the plate on the key issuePage 733of Thompson's competence at the time of trial.