Outten v. Kearney, 04-9003.

Decision Date28 September 2006
Docket NumberNo. 04-9003.,04-9003.
PartiesJack Foster OUTTEN, Jr. v. Rick KEARNEY, Warden, Sussex Correctional Institute; Attorney General of the State of Delaware, Jack F. Outten, Jr., Appellant.
CourtU.S. Court of Appeals — Third Circuit

Ricardo Palacio, Esquire, Andrew D. Cordo, Esquire, Ashby & Geddes, John P. Deckers, Esquire (Argued), Wilmington, DE, for Appellant.

Thomas E. Brown (Argued), Deputy Attorney General, Department of Justice, Wilmington, DE, for Appellee.

Before: RENDELL, AMBRO and FUENTES, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge:

Jack Foster Outten, Jr., was convicted by a Delaware jury of, inter alia, first-degree murder and sentenced to death. His direct appeals and post-conviction claims in state court were unsuccessful. Outten then filed in federal court a 28 U.S.C. § 2254 petition for a writ of habeas corpus, which the United States District Court for the District of Delaware denied. We conclude that trial counsel's failure to conduct a reasonable investigation of Outten's background in anticipation of his capital sentencing violated his Sixth Amendment right to effective assistance of counsel. Thus, we reverse and remand this case for resentencing.

I. Factual and Procedural Background
A. The Murder of Willie Mannon

We recite only briefly the pertinent facts of this case as set forth by the District Court, Outten v. Snyder, Civ. No. 98-785-SLR, 2004 WL 4858384, 2004 U.S. Dist. LEXIS 5546 (D.Del. Mar. 31, 2004) (Outten IV), and the Delaware Superior Court, State v. Outten, No. C.R.A. IN-92-01-1144, 1997 WL 855718 (Del.Super.Ct. Dec.22, 1997) (Outten II). (All city or town references are in Delaware.) Outten, his cousins Steven and Nelson Shelton, and Nelson's girlfriend, Christina Gibbons, spent the afternoon of January 11, 1992, drinking beer at Nelson and Gibbons's home in Newark. After consuming approximately one and one-half cases of beer, the four drove to Clemente's Bus Stop, a local tavern located on Route 13 south of Wilmington.

After separating for a short time, Outten, the Sheltons, and Gibbons eventually reconvened and went to Hamill's Pub in Elsmere, and then to Fat Boys Bar in New Castle. At Fat Boys Bar, the three men began playing pool while Gibbons sat at the bar counter alone. She began conversing and drinking with sixty-two year old Wilson "Willie" Mannon, who had arrived at the bar earlier that same day. Ultimately, Mannon left with Gibbons and the three men.

Mannon's body was discovered along a road in a deserted area of East Wilmington at approximately 11:00 a.m. on January 12, 1992. He was found lying on his back with his legs crossed and the top of his head shattered. Mannon's pockets were turned inside-out, and loose change, his empty wallet, and his identification cards were scattered nearby. A broken ballpeen hammer handle rested a few feet away from his body and the head of that hammer was located behind a nearby fence along the road.

Nelson Shelton and Gibbons were stopped by New Castle County police later that morning. The officers sought to question Nelson on an unrelated charge. He was taken to police headquarters and found to be in possession of two gold rings that were Mannon's. His winter jacket also appeared to be stained with blood.

Gibbons accompanied Nelson to the police station. While there, she provided statements to New Castle County and Wilmington law enforcement officers implicating Outten and Steven Shelton in the robbery and murder of Mannon. Gibbons recounted that she had been at a bar the previous night with Outten and the Shelton brothers, and that, at the end of the night, the four of them left in Nelson's car with an "older man" named Willie. From the bar, they drove to a "boat yard," where the older man was beaten with a hammer and an object she thought was a sink. According to Gibbons, Outten struck the man with the sink and Steven kicked him. She was adamant that Nelson, though present, was not involved. Gibbons also told police that the sink was discarded along Interstate 95 after the murder.

The next day, January 13, 1992, Gibbons spoke about Mannon's murder to her social worker, Sandra Nyce. The story she recounted to Nyce differed significantly from her prior statements to the police. Indeed, she implicated Outten and both Shelton brothers in the beating and murder, telling Nyce that all three men had taken turns hitting Mannon and that they had killed a "nice old man."

B. The Trial Court Proceedings

Acting quickly, on January 21, 1992, a Delaware grand jury indicted Outten and the Sheltons for Mannon's death. They were charged with, inter alia, first-degree murder, first-degree conspiracy, first-degree robbery, and possession of a deadly weapon during the commission of a felony. The defendants were tried together in the Delaware Superior Court in New Castle County in January — February 1993. Gibbons, who in addition to providing multiple contradictory accounts of the murder during the investigation gave conflicting testimony at trial, was the State's principal witness.1 After deliberating for two days, the jury convicted the defendants of all offenses as charged.

A penalty hearing was held on March 3-5, 1993. Counsel for both Outten and Steven Shelton made opening statements. One of Outten's counsel — there were two2 — told the jury its decision was simple: choose life or death. He also stated that he and his co-counsel were there "to beg for the life of [their] client." Steven's counsel, by contrast, stated, "My client has instructed me to advise you that we will not be begging for his life in this case."

The State then presented evidence of Outten's past criminal history. That evidence included: a house burglary conviction; seven convictions for non-violent crimes including forgery, issuance of a bad check, misdemeanor theft, felony theft, and criminal impersonation; his family court record; and his probation violations.

Thereafter, Outten presented his mitigation case to the jury.3 He called as witnesses his mother (Carol Outten), two sisters (Robin Outten and Amanda Hart), brother (John Outten), friend (Ruperto Sanchez), and a former girlfriend and the mother of two of his children (Karen Julian).

Outten's mother testified first. She described Outten's relationship with his father, Foster Outten, as his father was dying of cancer. Outten II, 1997 WL 855718, at *21. According to Mrs. Outten, Outten had stayed in his parents' home in order to care for his father for the last two years of his life. Id. He continued to assist his father even when he was completely bed-ridden. Id. Mrs. Outten depicted her husband as a "very strict" man who "punished [the] children as he saw fit." Id. She indicated that Outten had "started off in school okay but got into truancy trouble," and only made it to the eleventh grade. Id. Mrs. Outten also discussed her son's criminal history, including his prior convictions for assault. On cross-examination, she confirmed that Outten had physically attacked his sister Amanda. Id.

Outten's sister Robin testified next. She also explained that Outten had cared for his father toward the end of his life. Id. She stated that "Outten was very upset by his father's death and cried like she had never seen before." Id. Robin told the jury that Outten had a child with Karen Julian in 1991, but the baby had died shortly after birth. Id. "[T]his too," she said, "was most upsetting to Outten." Id. On cross-examination, Robin admitted that she had accrued "theft and misdemeanor convictions," and that those crimes "also involv[ed] Outten." Id.

Ruperto Sanchez, a family friend, testified that he observed "Outten being upset when his baby died." Id. He also "mentioned the good relationship Outten had with his father." Id. On cross-examination, Sanchez stated that he had been convicted in 1991 of a misdemeanor offense involving both Robin and Outten. Id.

Amanda Hart, another of Outten's sisters, then testified. "She described . . . [a physical altercation that occurred] in 1989 between Outten and [Karen] Julian." Id. According to Hart, Outten punched her in the eye when she attempted to intercede. Id. An affidavit of probable cause signed by Hart and introduced by the prosecution on cross-examination indicated that Outten had caused damage to her residence as well. Id. Hart stated that there were times that she and Outten had lived together. During those times, Outten was "helpful to her and others," and treated her infant children well. Id. at *22. She also discussed "how Outten took care of his father in the last years of his illness." Id.

Karen Julian then took the stand. She and Outten had lived together for about four-and-a-half years prior to his arrest for the underlying offense. Id. According to Julian, Outten had been working as a roofer, but had been laid off four to six weeks before the murder. Id. She also "told the jury that Outten had not completed an alcoholic rehabilitation program because he would not give the names of others who had broken some rules." Id.

Outten's final witness was his older brother, John. He testified that "[t]heir father became blind in one eye and suffered a speech impediment as a result of [a] mugging" that occurred in 1974. Id. John also told the jury that "Outten seemed to suffer the worst from their father's frustration" with his impaired condition. Id. It was John's opinion that his brother's relationship with their father "caused Outten to start stealing." Id.

Outten also spoke directly to the jury in allocution. He described his family as "close-knit," but did state that he had been "semi-abused." Id. According to Outten, "his father `chastened' him, making him run away." Id. Outten also reviewed his extensive criminal record, characterizing himself as "mischievous." Id. He "pointed out to the jury that his convictions were for non-violent offenses, such as...

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