Ineffective-assistance-of-counsel

QUESTIONS PRESENTED Trial counsel for the defendant in this capital case learned from four witnesses that the defendant’s mother had a drinking problem, including one witness who described her as an “alcoholic.” Despite that knowledge, the attorney conducted no investigation into whether the defendant had a Fetal Alcohol Spectrum Disorder and never asked the defendant’s parents if the defendant’s mother drank during her pregnancy. Habeas counsel’s investigation of these matters yielded the mother’s admission that she drank during pregnancy and led to a diagnosis of brain damage induced by fetal-alcohol exposure. State postconviction counsel failed to raise the sentencing ineffectiveness claim in state court and 28 U.S.C. § 2254(d) does not apply. The questions presented are: 1. Under what circumstances does failure to investigate a potential mitigating factor constitute ineffective assistance of counsel? 2. May a court assessing Strickland prejudice disregard evidence of brain damage because the capital sentencing jury found unrelated mitigation evidence, as the Eighth Circuit has held, or does such evidence have uniquely mitigating weight, as the Eleventh Circuit and other circuits have held? i PARTIES The caption contains the names of all parties. Dexter Payne is substituted for Wendy Kelley as Respondent under Supreme Court Rule 35.3. ii