In two unrelated death-penalty cases, Moore v. Parker, No. 03-6105 (6th Cir. Oct. 4, 2005) and Clark v. Mitchell No. 01-4210 (6th Cir. Oct. 4, 2005), the Sixth Circuit denied habeas petitions that featured claims of ineffective assistance of counsel at the sentencing phase. In particular, in denying relief both cases distinguished Wiggins v. Smith, 539 U.S. 510 (2003), where the Supreme Court held that counsel's failure to investigate mitigating evidence for capital sentencing could constitute ineffective assistance.
Moore was issued over Judge Martin's dissent that was both rigorous and vigorous. After explaining what Strickland and Wiggins require, he closes: "I have been a judge on this Court for more than twenty-five years. . . . After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." Moore, at 17 (Martin, J., dissenting). "[T]he bad lawyering and incomprehensible arbitrariness that permate the system of should disgust any person concerned with the fair administration of criminal justice." Id. And he notes there is merit in the argument "that the death penalty violates the Fourteenth Amendment because it is so transparently arbitrary that the system entirely fails to satisfy due process." Id.
Clark was issued over Judge Merritt's dissent, which relied primarily on Rompilla v. Beard, 125 S. Ct. 2456 (Jun. 20, 2005), to explain that capital-defense counsel that has some notice of a client's mental defect must engage in further investigation: "With notice of Clark's brain damage, counsel's failure to conduct further investigation is all the more outrageous. Our Court's opinion to the contrary simply refuses to apply ABA Guidelines and the Rompilla case."
Clark at 20 (Merritt, J., dissenting).