Moore v. Habti

Full title: BEVERLY MICHELLE MOORE, Petitioner, v. ABOUTANAA EL HABTI, Warden…

Court: United States District Court, Western District of Oklahoma

Date published: Mar 22, 2021

No. CIV-09-985-G (W.D. Okla. Mar. 22, 2021)

Opinion

CIV-09-985-G

03-22-2021

BEVERLY MICHELLE MOORE, Petitioner, v. ABOUTANAA EL HABTI, Warden, Respondent.

GARY M. PURELL, UNITED STATES MAGISTRATE JUDGE

SUPPLEMENTAL REPORT AND RECOMMENDATION

GARY M. PURELL, UNITED STATES MAGISTRATE JUDGE

Petitioner, a state prisoner appearing through counsel, brings this habeas action under 28 U.S.C. § 2254 challenging her state court conviction of Murder in the First Degree. United States District Judge Charles Goodwin has referred this case for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has filed a Supplemental Response, Doc. No. 250, and Petitioner has filed a Reply. Doc. No. 254. For the reasons set forth herein, it is recommended the Second Amended Petition be granted.

I. Background Information

On January 13, 2004, at approximately 2:58 p.m., Petitioner called 911 explaining that A.S., her boyfriend's son who was 18 months old, had fallen, had a bump on the back of his head, and was “sort of” breathing. Todd Snyder, A.S.'s father, had left the home at approximately 2:45 p.m. to go to a pawn shop and A.S. had been upset when his father left. Following the arrival of EMSA and the fire department, A.S. was taken by ambulance to Baptist Integris Medical Hospital (“Integris”). The following day, A.S. was pronounced brain dead, the physicians withdrew life support, and he passed away.

The Integris treating physicians immediately suspected that child abuse caused A.S.'s condition. Dr. Johnny Griggs, one of A.S.'s treating physicians, diagnosed A.S.'s cause of death as shaken baby syndrome. Dr. Chai Choi, who performed A.S.'s autopsy, concluded the cause of death was blunt force head trauma.¹ Dr. Griggs later testified that Mr. Snyder and Petitioner told him that prior to January 13, 2004, A.S. was a well-developed, functioning, and very healthy child.

1 In the interest of clarity, the Court notes this combination may be referred to as “shaken impact.”

Prior to A.S.'s death, police interviewed both Petitioner and Mr. Snyder separately. Eventually, Petitioner offered a confession of “shaking” A.S. There is conflicting evidence regarding w hether the confession was coerced, voluntary, and/or whether her descriptions of shaking A.S. correspond with his injuries. Petitioner was ultimately charged with First Degree Murder by “on or about the 13^thday of January 2004 . . . willfully or maliciously injur[ing] . . . or using unreasonable force upon a child under the age of eighteen, specifically: [A.S.], thereby . . . caus[ing] his death.” Doc. No. 108-12 at 1. Following a jury trial held from September 12-16, 2005, Petitioner was found guilty and sentenced to life imprisonment. The legal representation Petitioner received during her criminal proceedings is the primary basis of her claim for habeas relief and the claim the Court addresses herein.

Of particular relevance, it is undisputed A.S. was not an entirely healthy, well-developed child prior to January 13, 2004. He was diagnosed with failure to thrive and displayed significant developmental delays and behavioral problems, including tantrums in which he would throw himself backward onto the floor. He experienced multiple falls during the few months before his death, including one resulting in hitting his head and being taken to the emergency room for medical care, though no scans or x-rays were performed. During the week prior to his death, A.S. fell in a cast iron tub at his biological mother's home. He was also lethargic and experiencing diarrhea during that week.

Petitioner retained Isaac Funderburk to represent her during her criminal proceedings. He enlisted the assistance of David Slane who had more experience in criminal defense. Prior to Petitioner's trial, funds were provided to Mr. Funderburk to, inter alia, hire medical expert witnesses. Initially, the defense theory was based upon the contention that A.S.'s fatal injuries were incurred outside of the approximately thirteen minutes in which Petitioner was alone with him prior to his collapse. Petitioner and her supporters communicated to Mr. Funderburk their desire to obtain a medical expert witness from the Shaken Baby Syndrome Defense website. This was one resource out of several that had arisen from a growing debate within the medical community regarding whether short falls could explain injuries to children that were being diagnosed as shaken baby syndrome. It is undisputed the defense did not contact an expert witness from this or any similar resource.

On September 1, 2005, less than two weeks before trial, Mr. Funderburk contacted Dr. Corrie May, a medical expert witness located in Kansas City. Dr. May reviewed the records provided by Mr. Funderburk and the defense received her opinion during the weekend before Petitioner's trial. Therein, she concluded that A.S.'s injuries were consistent with the opinions of the medical examiner and treating physician. However, she also suggested additional testing or evaluations by certain specialists, but these were not performed.

The defense did not offer any expert witness testimony during Petitioner's trial. Instead, they relied on attacking the State's case through cross-examination of its medical experts. They also put forth the theory that Mr. Snyder inflicted A.S.'s fatal injuries.

During post-conviction proceedings, Petitioner obtained further medical evaluations, including histological slides taken during A.S.'s autopsy. She has presented five different expert witness opinions detailing their findings and indicating A.S.'s fatal injuries were incurred days, if not weeks or months, prior to January 13, 2004. One of her primary claims in requesting habeas relief is that Mr. Funderburk provided ineffective assistance of counsel based on his failure to obtain and present medical expert witness testimony. Respondent contends that any such expert testimony would have been challenged as a “minority” opinion within the medical community and found not credible.

Additionally, following her conviction, Petitioner suspected Mr. Funderburk had misappropriated the funds provided for her defense. Petitioner and individuals who provided funds for her defense filed grievances with the Oklahoma Bar Association (“OBA”) regarding Mr. Funderburk's representation and possible misappropriation of funds. The OBA requested responses from Mr. Funderburk, including but not limited to an accounting of the funds received and disbursed for Petitioner's defense. The OBA found that Mr. Funderburk's accounting was inadequate, but it did not choose to further prosecute him. The record contains an indication that the OBA never reviewed Mr. Funderburk's financial records, specifically in relation to his trust account.

Further, it is undisputed that at times prior to and certainly after Mr. Funderburk represented Petitioner, he struggled with substance abuse problems. There is evidence suggesting this also occurred during Mr. Funderburk's representation of Petitioner. In the years following Petitioner's trial, Mr. Funderburk's difficulties in this regard worsened. He died from an accidental drug overdose in January 2010. Whether and/or to what extent these issues affected his representation of Petitioner is unclear.

By this action, as well as in her lower court proceedings on her second application for post-conviction relief, Petitioner asserts claims of ineffective assistance of counsel based on failure to fully investigate A.S.'s cause of death and the timing of his fatal injuries, failure to timely consult with and retain expert witnesses regarding the same, conflict of interest, failure to interview witnesses, failure to present a cohesive defense, failure to communicate with his client, and failure to act diligently on Petitioner's behalf. Doc. Nos. 226, 227. Petitioner also raises a claim under Brady v. Maryland, 373 U.S. 83 (1963) that the State failed to disclose exculpatory evidence. Id. Finally, Petitioner asserts a claim of ineffective assistance of appellate counsel based on appellate counsel's failure to raise these claims in her direct appeal. Id. ²

2 Mr. Funderburk handled all the financial aspects of Petitioner's representation. There is some dispute regarding the extent of Mr. Slane's involvement in Petitioner's representation. Based on the record, including the testimony of multiple witnesses and various documents, the Court concludes it is likely Mr. Slane did not become actively involved in Petitioner's defense until immediately before trial. Regardless, although Mr. Slane's testimony is discussed in detail herein, the Court primarily addresses Petitioner's ineffective assistance of counsel claims with regard to Mr. Funderburk.

II. Procedural Background

As noted in this Court's previous Report and Recommendation, the summary of the lengthy procedural history of this case is primarily based upon the undisputed procedural history included in Petitioner's Brief in Support of Second Amended Petition for Writ of Habeas Corpus, Doc. No. 227 at 27-34, documents attached to Respondent's Response to Second Amended Petition for Writ of Habeas Corpus, Doc. No. 234, and additional documents filed in this habeas action.

At trial, Petitioner was initially represented by Assistant Public Defender, Jennifer Richard. After Petitioner's mother retained Mr. Funderburk, he and Mr. Slane filed their entries of appearance on February 10, 2005. Doc. No. 227 at 27. Approximately one to two weeks before trial, attorney Eric Reynolds joined the team. Id. The three represented Petitioner at the jury trial held from September 1216, 2005. Id.

After a jury found Petitioner guilty, the Honorable Susan P. Caswell followed the jury's recommendation and entered judgment and sentence in the District Court of Oklahoma County on October 11, 2005. Petitioner was sentenced to life without possibility of parole. Id.

Mr. Slane filed an application for post-conviction relief, seeking an appeal out of time on November 9, 2005, and the application was granted. Id. Through counsel, Petitioner filed a notice of intent to appeal on January 20, 2006, with the following proposed list of errors:

a. Defendant was not allowed to put on evidence of her theory of the case, which was crucial to her defense.

b. Defendant's witnesses were limited to character testimony only.

c. Defendant was not allowed to introduce a taped police interview of Todd Snyder.

d. Potential ineffective assistance of counsel.

e. Any additional error found by Appellate Counsel.

Id. at 27-28. However, the attorney who ultimately filed Petitioner's appellate brief on direct appeal alleged only two propositions of error:

Proposition I: The jury should have been instructed on the definition of Life Without Parole and that if sentenced to Life With Parole, Ms. Moore would have to serve 85% of her sentence; and

Proposition II: Defense counsel rendered ineffective assistance of counsel by not requesting argument or instruction on parole ineligibility or application of the 85% Rule to any sentence given to Ms. Moore.

Id. at 28. On June 11, 2007, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Petitioner's conviction on direct appeal, Case No. F-2006-63, but modified her sentence to life imprisonment with the possibility of parole based on the trial court's failure to instruct the jury on the 85% Rule. Id.

Petitioner filed a pro se application for post-conviction relief on September 26, 2008, alleging a single proposition for relief:

Proposition I: Defense counsel rendered ineffective assistance of counsel by failing to have a medical expert testify to medical evidence proving [the] child was not killed by shaking.

Id. The Oklahoma County District Court denied Petitioner's application on October 23, 2008, and notified her of her right to appeal to the OCCA. Id. Petitioner, still proceeding pro se, filed a petition in error in the OCCA on January 16, 2009, alleging the following thirteen instances of ineffective assistance of counsel by Mr. Funderburk:

[a]. Counsel failed to communicate with co-counsel as to the existence of two favorable exculpatory witnesses that [she] explicitly requested to be put on the stand in [her] defense.

[b]. Co-counsel[, Mr. Slane,] was never made aware of the fact that there was over $40,000 in a trust account for expert witnesses and investigators, which he complained to [her] about after [her] trial.

[c]. Because of counsel's flawed defense, he excluded valuable foundational evidence.

[d]. Counsel failed to elicit evidence from character witnesses who would have been vital defense witnesses, because it did not fit with his flawed defense.

[e]. Counsel did not try to exclude the coerced confession, which was the sole evidence for prosecution.

[f]. Counsel did not give an alternative theory for [her] defense that further compounded his flawed defense and his lack of strategy in clearing [her] of the charge of Murder in the 1st Degree.

[g]. [She] had insufficient counsel which resulted in sufficient prejudice to warrant a retrial.

[h]. The crib sheet that was admitted as evidence was not disputed by counsel even though the father's testimony told the court that the stain was not current.

[i]. The daycare provider was brought in as a character witness, which limited her testimony. Had she been brought in as an exculpatory witness, her testimony would have been beneficial to the outcome of the trial. Her testimony was vital to [Petitioner's] defense.

[j]. Counsel did not even counter any of the prosecution's assertions.

[k]. Counsel forced [her] on the stand without adequate preparation and told [her] that [she] would definitely be convicted [if she] upheld [her] adamant reluctance to testify. Counsel did not prepare [her] adequately before [she] took the stand.

[l]. It would behoove counsel for [her] to be found guilty so that his financial misconduct would not be brought to light.

[m]. Counsel's failure to focus attention on the actual [perpetrator], the victim's father, resulted in sufficient harm for reversible error per Strickland v. Washington.

Id. at 29. The OCCA dismissed Petitioner's appeal for lack of jurisdiction on procedural grounds-Petitioner had failed to attach a certified copy of the district court's order denying post-conviction relief to her petition in error. Id. at 29-30.

On September 4, 2009, Petitioner, still proceeding pro se, filed a Petition for Writ of Habeas Corpus in this Court, alleging ineffective assistance of counsel. Doc. No. 1. Respondent filed a Motion to Dismiss the Petition and Brief in Support, Doc. Nos. 10, 11, on grounds that the Petition was filed after the statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) had expired. Then Magistrate Judge Robert Bacharach,³ to whom the case had been referred for initial proceedings, converted Respondent's Motion to Dismiss to a Motion for Summary Judgment on November 4, 2009. Doc. No. 12.

3 Judge Bacharach is currently sitting as a Judge on the Tenth Circuit Court of Appeals.

On December 9, 2009, Petitioner filed a Motion for Leave to Amend Habeas Petition. Doc. No. 17. Judge Bacharach granted the Motion, Doc. No. 21, and Petitioner filed her Amended Petition and Brief in Support, Doc. Nos. 22, 23, on February 2, 2010, alleging the same propositions of error as the first Petition and claiming that she was entitled to equitable tolling because she was actually innocent of the crime for which she was convicted.

Respondent filed a Motion to Dismiss the Amended Petition on February 23, 2010, again alleging it was time-barred. Doc. Nos. 24, 25. After a telephone conference with the parties, Judge Bacharach appointed counsel to represent Petitioner on July 14, 2010, Doc. No. 57, and Petitioner, through her court-appointed attorney, engaged in discovery and filed a Response on January 31, 2011. Doc. No. 88.

On February 16, 2011, the Court converted the State's Motion to Dismiss to a limited Answer on the issue of timeliness. Petitioner replied on April 8, 2011, and filed two appendices with documented newly-discovered evidence supporting her claim that she was actually innocent of the crime for which she had been convicted. Doc. Nos. 108-11. Respondent filed a Sur-Reply. Doc. No. 116. Judge Bacharach considered the evidence included in the appendices and filed an Order granting the admission of certain exhibits included in Petitioner's Motion to Expand the Record, and denying the admission of certain other exhibits. Doc. No. 132.

Thereafter, Petitioner filed a Motion for Leave to File Reply to Brief on the Merits of Actual Innocence Claim. Doc. No.118. The Court granted the Motion, and Petitioner filed her Supplemental Reply on June 29, 2011. Doc. No. 122.

The expert evidence Petitioner submitted with her brief, particularly the expert evidence on the issue of the time the fatal injury was inflicted, was compelling. So compelling in fact that on September 7, 2011, Judge Bacharach issued Proposed Findings of Fact and Conclusions of Law finding Petitioner had produced sufficient new scientific evidence from medical experts to support the miscarriage of justice, or actual innocence, exception to the time-bar:

[N]o reasonable jury could have found guilt of murder without some reason to believe the actions [of Petitioner] on January 13, 2004, had contributed to the death [of A.S.]. Doctors Mack, Barnes, Squier, Ophoven, and Gardner have uniformly opined, based on the medical findings of the State's own expert witnesses, that the fatal injuries would have preceded January 13, 2004, by days, weeks, or months.

The only persons to express a different conclusion were Doctors Griggs and Choi, and both assumed that A.S. had been a perfectly healthy child before January 13, 2004. And, of course, they thought so only because Dr. Griggs had either misunderstood or Ms. Moore had given misinformation. But no one disputes the evidence of: (1) falls in October 2003, December 2003, and January 2004: (2) the existence of significant developmental delays; and (3) lethargy in the week preceding A.S.'s death. With this undisputed evidence, no reasonable juror would have accepted the testimony of Doctors Griggs and Choi regarding the immediacy of the fatal injuries. Without this testimony, the jury would have had no basis to tie A.S.'s death to anything Ms.

Moore had done on or about January 13, 2004, as charged in the Information. The omission of any such evidence on this crucial link in the prosecution's case would have required any reasonable jury to find Ms. Moore not guilty with the benefit of the old and new evidence. Thus, Ms. Moore has shown her actual innocence on the charged offense and that innocence entitles her to avoid the time-bar.

Doc. No. 135 at 33-34. Over Respondent's objection, Judge Cauthron adopted the Proposed Findings of Fact and Conclusions of Law in full on October 28, 2011. Doc. No. 139.

Although Judge Bacharach ordered Respondent to file a response to the merits of Petitioner's grounds for habeas relief, Respondent instead filed a limited answer contending Petitioner had failed to exhaust state court remedies as to the claims in her Amended Petition. Doc. No. 159. Judge Bacharach entered a Report and Recommendation in which he determined that requiring Petitioner to return to state court to exhaust state court remedies would be futile because the state courts would find Petitioner was procedurally barred from asserting her claims in a second application for post-conviction relief. On this basis, Judge Bacharach recommended Petitioner's failure to exhaust be excused as it would be futile for her to return to the state courts. He further recommended Petitioner be allowed to proceed with her habeas action. Doc. No. 162.

On April 6, 2012, Judge Cauthron declined to adopt Judge Bacharach's recommendation and did not address whether the conclusions in the Report and Recommendation were accurate. Instead, Judge Cauthron focused on the newly- discovered evidence, the state attorneys' insistence Petitioner be required to present this matter to the state courts before continuing with habeas proceedings, and the doctrines of comity and federalism. Based on these considerations, Judge Cauthron entered an Order staying the habeas case until Petitioner had presented her claims to the state courts. Doc. No. 182.

As directed, on June 5, 2012, Petitioner filed a second application for postconviction relief and brief in support in the Oklahoma County District Court, along with a motion for evidentiary hearing, motion for discovery, and motion for appointment of counsel. In her application, she raised six propositions for relief:

Proposition 1: Ineffective [a]ssistance of [t]rial [c]ounsel for (a) failure to fully investigate the cause of death and the timing of the injuries attributed to Petitioner, including the failure to timely consult with and retain expert witnesses, and (b) failure to present testimony from expert witnesses as to the cause and timing of the fatal injuries.

Proposition 2: Ineffective [a]ssistance of [t]rial [c]ounsel resulting from conflicts of interest.

Proposition 3: The State of Oklahoma [d]eprived Petitioner of her [r]ight to [d]ue [p]rocess [w]hen it [f]ailed to [d]isclose [e]xculpatory [e]vidence.

Proposition 4: Ineffective [a]ssistance of [a]ppellate [c]ounsel due to failure to raise the claim of ineffective assistance of trial counsel arising out of failure to investigate medical issues and present medical testimony.

Proposition 5: Ineffective [a]ssistance of [a]ppellate [c]ounsel due to failure to uncover the conflict of interest of trial counsel and raise the claim of ineffective assistance of trial counsel arising from the conflict.

Proposition 6: Ineffective [a]ssistance of [a]ppellate [c]ounsel due to [failure to] discover[] the violation of Brady v. Maryland and raise the claim on direct appeal.

Doc. No. 227 at 31-32; Doc. No. 234-7.

After a hearing, Judge Kenneth C. Watson granted Petitioner's motion for discovery and ordered the State to make its file in Petitioner's criminal case and the file in the case of State v. Funderburk, CF-2003-6954,⁴ available to Petitioner. Doc. No. 227 at 32. Additionally, the trial court permitted discovery of the medical examiner's file and the financial and medical records of Mr. Funderburk. Id.

4 State v. Funderburk, District Court of Oklahoma County, Case No. CF-2003-6954, was a case involving criminal charges against Mr. Funderburk, wherein he was convicted of misdemeanor possession of a Schedule III controlled dangerous substance and driving under the influence of alcohol. The case was ongoing during Petitioner's criminal proceedings.

The State filed a response to Petitioner's second application for postconviction relief on September 4, 2012, arguing Petitioner's claims were procedurally barred by the doctrines of waiver and res judicata and, alternatively, were without merit. Id. On July 9, 2013, Judge Watson announced his finding that Petitioner was not barred from presenting the claims raised in the application and overruled the State's request for dismissal based on procedural bar grounds. By agreement of the parties, Petitioner's claims were divided into two separate parts: the first hearing would be devoted to consideration of whether trial counsel rendered deficient performance or labored under a conflict of interest. Id. If the court so found, the second hearing would consider whether Petitioner suffered resulting prejudice. Petitioner's Brady claim was also to be considered at the second hearing. Id.

In an evidentiary hearing held sporadically over nine months, the trial court heard testimony on the issue of whether Petitioner's trial counsel had either rendered deficient performance or labored under a conflict of interest. Id. at 33. Petitioner appeared and was represented by appointed counsel Christine Cave and Assistant Public Defender Andrea Miller. The State was represented by Assistant District Attorneys Gayland Gieger and Jennifer Hinsperger. Id. at 33.⁵

5 The Court notes a great deal of confusion by the state district court and the State's counsel regarding the posture of this matter upon remand. The state district court initially indicated utter confusion regarding why the case was before it and the issues it was supposed to address. Tr. June 25, 2013 at 9, 13-15, 23-27; Tr. July 9, 2013 at 4-13. At one point, in referencing Petitioner's ineffective assistance of counsel claims, Judge Watson stated, “I will not let federal court dictate to me what I should do. I mean, if they felt so strongly in favor of that they should have done it themselves. You know, I still maintain my opinion about it and I'm not going to succumb to their opinion just because they have found something different.” Tr. July 9, 2013 at 9. However, contrary to these statements, the federal court had not issued an opinion regarding Petitioner's ineffective assistance claims. Similarly, counsel for the State, during cross-examination of Dr. Laura Burdette who was testifying regarding Mr. Funderburk's prescription medications during his representation of Petitioner, stated that an affidavit she provided to the federal court regarding the same was “one of the reasons we're here, isn't it?” Tr. Jan. 8, 2015 at 65. Again, this Court never previously considered whether Mr. Funderburk was ineffective, much less whether he was impaired by prescription medications during Petitioner's criminal proceedings. At the end of the proceedings, after nine months of hearings, the state district judge asked, “[T]his isn't necessarily - - this hearing hasn't necessarily been on post-conviction, has it? I mean, it was - - a post-conviction was filed, went to the Federal Court and then sent back to this Court to make some - - to have an evidentiary hearing. Is that - -” Tr. Aug. 4, 2015 at 28. Counsel for both parties explained the procedural history again, followed by more inquiry from the court regarding Petitioner's post-conviction application history, and further explanation from counsel. Id. at 28-30.

Almost four years after Judge Watson's order granting an evidentiary hearing, the attorneys finally received transcripts of the hearing and filed their proposed findings of facts and conclusions of law, as ordered by the trial court, on January 17, 2017. Id. After another fourteen months had elapsed with no ruling from the trial court, Petitioner, on March 23, 2018, requested this Court lift the stay in Petitioner's federal habeas action and excuse her from having to further exhaust her claims. Petitioner contended that her due process rights had been violated by the lengthy state court proceedings and the anticipated future state court proceedings. Doc. No. 213.

Four days later, on March 27, 2018, the trial court entered its findings of fact and conclusions of law. Doc. No. 227-2. The trial court essentially adopted the State's proposed findings from January 2017, Doc. No. 227-3, reached the merits of Petitioner's ineffective assistance of counsel claim, and denied her application for post-conviction relief. Doc. No. 227-2. Judge Cauthron denied Petitioner's previously-filed Motion to Lift the Stay on May 30, 2018. Doc. No. 216.

Petitioner filed a notice of post-conviction appeal on April 5, 2018, and filed a brief in support of her post-conviction appeal in the OCCA on August 1, 2018. Doc. No. 227 at 33. The OCCA declined to reach the merits of Petitioner's appeal, finding all claims waived because they had not been raised in her direct appeal. Doc. No. 234-12 at 9.

On November 9, 2018, Petitioner notified this Court that the OCCA had rendered its decision, resolving the appeal from the trial court's post-conviction ruling. Doc. No. 218. For good cause shown, Judge Goodwin granted Petitioner's Motion to Lift Stay on January 18, 2019, and ordered Petitioner to file “any amended pleading” on or before March 19, 2019. Doc. No. 219. After the deadline was extended, Petitioner filed her Second Amended Petition and Brief in Support on April 19, 2019, raising the same claims she had raised in her second application for post-conviction relief. Doc. Nos. 226, 227.

Rather than addressing the merits of Petitioner's Second Amended Petition, Respondent filed a Response arguing Petitioner's grounds for relief are unexhausted, untimely, and/or procedurally barred. Doc. No. 234. Respondent also asserted that the scientific evidence supporting Petitioner's actual innocence claim does not apply to her claims for ineffective assistance of counsel. Id. Ultimately, the Court rejected these arguments and directed Respondent to respond to the merits of Petitioner's claims. Doc. Nos. 244, 248. Respondent filed a Supplemental Response to the Second Amended Habeas Petition on June 15, 2020, Doc. No. 250, to which Petitioner filed a Reply on July 27, 2020. Doc. No. 254.

III. Standard of Review

The AEDPA provides for consideration of a prisoner's writ of habeas corpus on the ground that “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Generally, the AEDPA requires deference by a federal court to a state court's adjudication of a claim on the merits. 28 U.S.C. § 2254(d). However, in the present case, the last reasoned decision from the state courts was the OCCA's ruling that Petitioner's claims were procedurally barred from review. “[C]laims not ‘adjudicated on the merits' in state court are entitled to no deference.” Harmon v. Sharp, 936 F.3d 1044, 1057 (10th Cir. 2019) (quoting Fairchild v. Trammell, 784 F.3d 702, 711 (2015)). The parties agree that in this situation, § 2254(d)'s deference does not apply, and Petitioner's claims are entitled to de novo review before this Court. Wilson v. Sellers, __ U.S. __, 138 S.Ct. 1188, 1192 (2018) (explaining that § 2254(d) focuses on last reasoned opinion from the state courts); Ylst v. Nunnemaker, 501 U.S. 797, 799-805 (1991) (explaining that courts are to look at last reasoned decision from a state court to determine whether the claim was adjudicated on the merits); Williams v. Alabama, 791 F.3d 1267 (11th Cir. 2015) (holding that where the state district court ruled on the merits but the state criminal appeals court ruled claim was procedurally barred, § 2254(d) deference does not apply and the claim is subject to de novo review by federal habeas court).

IV. State Court's Findings of Fact

28 U.S.C. § 2254(e)(1) provides, “In a proceeding instituted by an application for a writ of habeas corpus . . . a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” In other words, when a state court makes a factual finding, the Court presumes the determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. Davis v. Ayala, 576 U.S. 257, 271 (2015); see also Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (“[E]ven in the setting where we lack a state court merits determination, ‘[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.'” (quoting 28 U.S.C. § 2254(e)(1)).

The parties each offer lengthy arguments regarding whether, in light of the OCCA's ruling that did not address the merits but instead, ruled Petitioner's claims were procedurally barred, the state district court's findings of fact are entitled to § 2254(e)(1)'s presumption of correctness. Although in Grant, the Tenth Circuit stated that § 2254(e)(1)'s presumption would apply in the absence of any ruling on the merits, the Tenth Circuit has not addressed the application of § 2254(e)(1) in this circumstance.

At least two Circuit Courts that have addressed this issue have concluded the presumption of correctness applies to a state district court's findings of fact where the state appellate court dismissed the underlying claims for relief on procedural grounds but did not vacate or otherwise address the merits. See Wardlow v. Davis, 750 Fed.Appx. 374, 377-78 (5th Cir. 2018) (holding that the “AEDPA requires deference to a state trial court's factual findings unless they are expressly rejected by, or are directly inconsistent with, the highest state court's ultimate resolution of the case” and that this “is true even when the state high court's ultimate resolution is on procedural grounds.”); Taylor v. Roper, 577 F.3d 848, 856 (8th Cir. 2009) (applying § 2254(e)(1)'s presumption of correctness to state court's factual findings where the state appellate court found the underlying basis for relief “waived” but did not reject or otherwise vacate the lower court's factual findings).

The Court finds it is not necessary to resolve whether § 2254(e)(1)'s presumption applies. As set out more fully below, presuming, without deciding, that said presumption applies, Petitioner has met her burden of rebutting the presumption by clear and convincing evidence as to several factual findings relevant to her claims.

The undersigned also notes the manner in which the state district court issued its findings of fact. The state court had the parties' proposed findings of fact and conclusions of law for well over one year prior to issuing its ruling. Doc. Nos. 2272, 227-3, 254-3. Petitioner submitted for the court's consideration proposed findings of fact and conclusions of law totaling 117 substantive pages, Doc. No. 254-3, and the State's totaled 23 substantive pages. Doc. No. 227-3. The state district court entered its ruling two business days after Petitioner filed her request to this Court to lift its stay on proceedings due to the state court's delay in issuing a ruling. As Petitioner points out and Respondent concedes, the state district court's ruling mirrored the State's proposed findings of fact almost verbatim. Doc. Nos. 227-2 at 7-31, 227-3 at 3-25. Indeed, the state court's order includes the typographical errors and misused vocabulary from the State's proposed factual findings and conclusions of law. Doc. Nos. 227-2 at 12, 15; Doc. No. 227-3 at 8, 11.

Respondent contends the manner of the lower court's adoption of the State's proposed ruling is outside the purview of this Court. According to Respondent, the “federal courts have no authority to impose mandatory opinion-writing standards on state courts.” Doc. No. 250 at 61 (quoting Johnson v. Williams, 568 U.S. 289, 298, 300 (2013)). In Johnson, the Court addressed whether a federal court should conclude that a state court failed to decide a case on the merits merely because the state court did not address one argument, among many, that it regarded “as too insubstantial to merit discussion ....” Id. at 299. That is not the situation presented here.

More significant to the present case is the Supreme Court precedent criticizing courts that adopt verbatim proposed orders from prevailing parties.

We [] have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor.

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572 (1985) (citations omitted).⁶ See also Avila v. Jostens, Inc., 316 Fed.Appx. 826, 831 (10th Cir. 2009) (“The Supreme Court has criticized [] verbatim adoption of one parties' proposed findings of fact, and this court has noted that it provides ‘little aid on appellate review.'” (quoting Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 830 (10th Cir. 2005) (additional citation omitted)); Rosa v. Williams, No. 07-0713 JH/CG, 2010 WL 11523658, at *6 n.9 (D.N.M. June 15, 2010) (“The Supreme Court has criticized the practice of a court's ‘verbatim adoption of findings of fact prepared by prevailing parties.'” (quoting Jefferson v. Upton, 560 U.S. 284, 293 (2010)).

6 While the State had presumably not been informed prior to submitting its proposed findings to the state court that it would ultimately prevail, the criticism of a court's verbatim adoption of proposed factual findings from the prevailing party and an attorney's potential for overreaching and/or selective factual choosing remains relevant to the underlying events in this matter.

Nevertheless, the state court's findings of fact, though adopted verbatim from the State's proposed findings, are accepted as the lower court's findings and the same review applies. Jefferson, 560 U.S. at 293 (“Although we have stated that a court's ‘verbatim adoption of findings of fact prepared by prevailing parties' should be treated as findings of the court, we have also criticized that practice.” (quoting Anderson, 470 U.S. at 572)); Avila, 316 Fed.Appx. at 831; Rosa, 2010 WL 11523658, at *6 n.9. Thus, this Court should accept the state court's findings of fact and apply the § 2254(e)(1) standard of review. However, the manner in which they were adopted does provide relevant context in considering the same.

In its order the state court set forth eighteen findings of fact, preceded by a narrative of supportive reasoning. Doc. No. 227-2. The Court will discuss only those factual findings most relevant to Petitioner's grounds for relief addressed herein.

A. Finding of Fact #13: Misappropriation of Funds

Petitioner contends that during his representation of her, Mr. Funderburk misappropriated funds provided for her criminal defense. The state court finding of fact with regard to this issue provided, “While the evidence presented to this Court supports that Mr. Funderburk did not provide an adequate accounting for Petitioner's client-trust fund, there has been no evidence to support Petitioner's allegation that Mr. Funderburk misappropriated those funds for his own benefit.” Doc. No. 227-2 at 30. In thoroughly reviewing the state court record, the Court finds Petitioner has presented a significant amount of evidence indicating Mr. Funderburk likely misappropriated funds provided for her defense. The Court shall address this issue somewhat briefly because, while it may provide context for the remainder of the claims addressed herein, it is not determinative of the ultimate issues.

There is absolutely no dispute that Mr. Funderburk's accounting of the funds received and disbursed related to his representation of Petitioner was abysmal, at best. Although recognizing that abysmal accounting practices do not equate to misappropriation per se, the record creates significant questions regarding how Petitioner's funds were handled and ultimately disbursed. Significant to Petitioner's specific claims herein, it is clear funds were provided to Mr. Funderburk for investigators and expert witnesses that were not used for their intended purpose.

Jeff Trevillion, an attorney and certified public accountant, performed an accounting of the funds provided to Mr. Funderburk for Petitioner's defense. Tr. March 3, 2015 at 66, 79-82. He concluded, and Respondent does not dispute, that Mr. Funderburk received a total of $81,000.00. Id. at 97-98. Of that amount, $50,000.00 was to be paid toward attorney fees. Tr. March 3, 2015 at 76, 87-88, 97, 111, 122-25; St.Ct. Ex. 3 at 2-3.⁷ Mr. Trevillion noted that of the remaining $31,000.00 (“Defense Funds”), the money was authorized to be spent as follows: $20,000.00 on expert witnesses, $7,500.00 for consultation/assistance by Marion Stinson,⁸ $6,000.00 for investigators, and $2,000.00 for investigation. Tr. March 3, 2015 at 102-03.⁹ Mr. Trevillion concluded that only $1,040.00 of the Defense Funds were spent as authorized, specifically $650.00 was paid to Mr. Reynolds for investigation and $390.00 was paid to Lynn McComber as an “expert ex-police officer with experience in confessions.” Id. at 103, 112; St.Ct. Ex. 39 at 35, 44; St.Ct. Ex. 45 at 20.¹⁰

7 The representation agreement between Petitioner and Mr. Funderburk indicated Petitioner would pay $35,000.00 in attorney fees and she would be “responsible for expert fees if the innocence project can't provide funding.” St.Ct. Ex. 3 at 2-3. The evidentiary hearings included significant debate about whether counsel were entitled to only $35,000.00 in attorney fees or if instead another $15,000.00 was later authorized and if so, whether Mr. Funderburk had already withdrawn the additional $15,000.00 before receiving such authorization. In concluding Petitioner had not presented evidence supporting misappropriation, the state court partially relied on its conclusion that Mr. Funderburk was in fact entitled to this additional $15,000.00. Doc. No. 227-2 at 25. For purposes of this recommendation, the Court presumes, without deciding, that the $15,000.00 additional fee was proper.

8 Ms. Stinson was a municipal judge in 2005 in Adair, Oklahoma and Pryor, Oklahoma. Tr. Dec. 2, 2014 at 140. Though she does not recall the defendant's name, during that time period she recalls Mr. Funderburk, who had been a law school classmate, requesting her assistance in a murder trial on multiple occasions over a three to four month period and she declined each time. Id. at 140-41, 143-45.

9 The Court is aware the total of these designations is greater than the total of the Defense Funds. Mr. Funderburk's accounting was not amenable to proper balancing. However, as established below, the fact that the totals do not balance is only somewhat relevant to Petitioner's ineffective assistance claim because regardless of the poor accounting, the funds were not spent according to these authorizations.

10 In Mr. Funderburk's accounting submitted to the OBA, he indicates that an additional payment of $350.00 was paid to Mr. Reynolds as an “Investigator Fee prior to being hired as a part of the trial team.” St.Ct. Ex. 45 at 20. However, the only check from Mr. Funderburk's account to Mr. Reynolds reflecting a $350.00 payment is dated October 20, 2005, one month after Petitioner's trial. St.Ct. Ex. 39 at 46. The notation in the Memo portion of the check is illegible, but it does not appear to reference Petitioner's case. The Court notes Mr. Trevillion's testimony that no evidence supports a finding that the OBA reviewed Mr. Funderburk's financial records in considering the grievances submitted against him. Tr. March 4, 2015 at 51.

Mr. Trevillion also testified that Mr. Funderburk's accounting submitted to the OBA did not accurately report the amount of funds he paid to himself. Tr. March 3, 2015 at 107-08. For example, Mr. Funderburk's banking records include a $5,000 check, dated August 31, 2005, made out to “BOK” for cash and on the Memo line, he indicated it was an “advance for expenses” in Petitioner's case. St.Ct. Ex. 39 at 17. This payment is not reflected in his OBA accounting. St.Ct. Ex. 45 at 18-20.

Additionally, Mr. Funderburk paid Mr. Reynolds $5,000.00 for representation in Petitioner's case and those payments are not reflected in the OBA accounting. St.Ct. Ex. 39 at 45, 47; St.Ct. Ex. 45 at 18-20. Mr. Funderburk's banking records also reflect a significant number of checks from his Trust Account from July through September 2005 written to restaurants, residential facilities, supply stores, a hotel, credit cards, and staff members, including $7,635.00 for “case prep” in Petitioner's case to Delisa Camp, Mr. Funderburk's girlfriend who worked as his assistant. St.Ct. Ex. 39 at 15, 18, 29, 31, 32, 34, 37, 39; St.Ct. Ex. 45 at 19; Tr. Dec. 3, 2014 at 6-7; Tr. Jan. 22, 2015 at 13-14.

In its ruling, the state court provided the following reasoning regarding the question of misappropriation:

Mr. Trevillion [] conceded he had no knowledge regarding what Mr. Funderburk did with funds withdrawn from Petitioner's client trust account that were made out to “cash.” He further conceded it was possible such funds went to pay expert witnesses although it was not documented. Similarly, his opinion did not account for funds which may have been withdrawn in relation to trips to Kansas City and San Antonio in relation to Petitioner's case.

Doc. No. 227-2 at 25 (citations omitted). The Court notes again that the state court merely adopted wholesale Respondent's proposed findings of fact and conclusions of law. A more thorough review of the record reveals substantial flaws in this reasoning.

The only medical expert witness the defense retained was Dr. May and, as addressed more thoroughly below, her bill was never paid, in cash or otherwise. Moreover, presuming, without deciding, Mr. Funderburk used the funds received through the checks made out to cash on expenses related to Petitioner's case, as noted, he wholly failed to include at least one in the amount of $5,000.00 in his accounting to the OBA. St.Ct. Ex. 39 at 17; St.Ct. Ex. No. 45 at 18-20. He also did not include any notation of travel reimbursement in his accounting to the OBA. St.Ct. Ex. 45 18-20; Tr. March 3, 2015 at 59-60. Additionally, the record is devoid of any documentation authorizing, separate from the agreed upon attorney fees, the over $7,500.00 in payments to Ms. Camp, Mr. Funderburk's assistant/girlfriend, for “case prep.” St.Ct. Ex. 39 at 15, 29, 34.

While the above is by no means a comprehensive discussion of every discrepancy and/or red flag raised by Mr. Funderburk's financial records and accounting, it is sufficient to establish that serious questions exist as to the propriety of Mr. Funderburk's handling of the funds provided to him for Petitioner's defense. Petitioner has certainly presented clear and convincing evidence, see Grant, 886 F.3d at 889, to rebut the state court finding that “there has been no evidence to support Petitioner's allegation that Mr. Funderburk misappropriated [Defense Funds] for his own benefit.” Doc. No. 227-2 at 30 (emphasis added). Most significant to the present case, however, it is clear funds available to the defense for expert witnesses were not used for that purpose.

B. Finding of Fact #12: Mr. Funderburk's Substance Abuse Issues

Petitioner also challenges the state court's finding of fact #12 in which it stated, “There has been no evidence presented that Mr. Funderburk was impaired or under the influence of intoxicating substances at the time he represented Petitioner in this matter. On the contrary, witness testimony supports that Mr. Funderburk was functioning normally throughout the course of his representation.” Doc. No. 227-2 at 29-30. In the Response, Respondent focuses solely on Mr. Funderburk's behavior during Petitioner's criminal trial, even though the majority of Petitioner's grounds for habeas relief focus on the time period during which Mr. Funderburk should have been preparing for the same. That time period is also imperative to a successful criminal defense.

Petitioner presented evidence that from February 2005 through September 2005, Petitioner filled prescriptions for 500 tablets of diazepam and 500 tablets of clonezapem, as well as six bottles of promethazine with codeine cough syrup. Tr. Jan. 8, 2015 at 29-30. A pharmaceutical expert, Dr. Laura Burdette, testified on behalf of Petitioner that these prescriptions far exceeded the therapeutic benefit of these medications. Id. Presuming without deciding that Mr. Funderburk took these prescription medications, Dr. Burdette indicated this would constitute abuse of the medications. Id. at 31.

Dr. Burdette also identified drug seeking behaviors on the part of Mr. Funderburk during this time period including multiple prescribers, multiple pharmacies, high quantities of duplicate commonly abused medications, paying cash for prescriptions, and refilling prescriptions early. Id. at 26-27. Dr. Burdette further explained that an individual taking these medications can be impaired without appearing to be so to other individuals. Id. at 36.¹¹

11 The Court notes Mr. Funderburk's apparent substance abuse problems did not form in a vacuum. He was convicted on federal drug-related charges in the early 1990s. St.Ct. Ex. 101. Medical records from 2001 reflect an extreme behavioral and belligerent reaction when a doctor failed to timely refill a Valium prescription and the doctor's office described him as “med-seeking” and “drug seeking.” St.Ct. Ex. 54 at 4, 6. In April 2004, Mr. Funderburk visited an emergency room where the physician diagnosed him with, inter alia, “benzo withdrawal” and recommended he follow up with a psychiatrist for “benzo dependence” and “detox.” Tr. March 3, 2015 at 7-10; St.Ct. Ex. 55R at 31. As noted, Mr. Funderburk's drug-related problems continued to worsen, and he passed away from an accidental drug overdose of diazepam and morphine in January 2010. Tr. Dec. 4, 2014 Vol II at 58.

Additionally, various circumstances in Mr. Funderburk's life throughout 2005 are indicative of an individual with a drug problem. Records from Mr. Funderburk's therapist during 2005 and early 2006 indicate many missed appointments and/or on multiple occasions arriving in the morning for afternoon appointments. St.Ct. Ex. 100 at 10-12. He was also experiencing severe financial difficulties, including a foreclosure action commenced in June 2005 resulting in a judgment of foreclosure issued on November 1, 2005,¹² the filing of various creditor liens upon real property, state court judgments based upon nonpayment of debts, and ongoing proceedings regarding failure to pay child support. St.Ct. Ex. 104 at 1-2, 4-5, St.Ct. Ex. 108, St.Ct. Ex. 109, St.Ct. Ex. 123, St.Ct. Ex. 124, St.Ct. Ex. 126. Additionally, Mr. Funderburk had been charged in December 2003 with drug-related criminal charges and that case was ongoing until November 4, 2005, when a plea deal was reached. St.Ct. Ex. 105.

12 Notably, Mr. Funderburk wrote a check from his trust account to Lakeview Towers on August 8, 2005, approximately one month prior to Petitioner's trial, in the amount of $791.00. St.Ct. Ex. 39 at 37. The Memo portion indicates it was for an application fee, deposit, and one month of rent. Id.

It appears an exceedingly reasonable conclusion that Mr. Funderburk was abusing prescription medications during his representation of Petitioner. The parties have presented conflicting evidence regarding whether it affected his performance during trial. Tr. Dec. 1, 2014 at 184; Tr. Dec. 2, 2014 at 178; Tr. Dec. 3, 2014 at 3132, 58-65, 81-82; Tr. Dec. 4, 2014 Vol. I at 12-13, 128-30; Tr. March 20, 2015 at 59-60. However, as this case illustrates, an attorney's representation of a client is not limited merely to his performance in the courtroom. On the other hand, an attorney who is abusing prescription medications is not per se ineffective.

Regardless, it is not necessary for the Court to make a specific determination as to whether Petitioner met her burden in rebutting the state court's finding that no evidence was presented indicating Mr. Funderburk's performance was impaired during his representation of Petitioner. While Mr. Funderburk's use, and likely abuse, of prescription medication during his representation of Petitioner may provide context for various issues raised herein, the Court's finding that Petitioner received ineffective assistance of counsel is not dependent upon the same.

C. Finding of Fact #4: Two Experts

The state court's fourth finding of fact stated, “The defense did consult with two ‘mainstream' medical experts, Dr. Corrie May and an unnamed male doctor, prior to Petitioner's trial. Both doctors indicated they would be harmful to Petitioner's defense.” Doc. No. 227-2 at 28. The existence of this unknown male expert is significant because otherwise, it is clear the defense did not contact a single medical expert witness until less than two weeks before trial. The Court finds Petitioner has presented clear and convincing evidence to rebut § 2254(e)(1)'s presumption of correctness that the defense consulted with an unnamed male expert witness prior to contacting Dr. May.

Respondent concedes that the evidence supporting this finding is the testimony of Mr. Slane. Doc. No. 250 at 72-75. However, the bulk of Mr. Slane's testimony related to expert witnesses is not merely lacking in support in the record but is directly contradicted by additional state court findings, multiple witnesses, and underlying documentation from multiple sources, including Mr. Funderburk. Respondent argues that because Mr. Slane's testimony was the sole evidentiary support for this finding, the state court clearly found the testimony credible. Based on this, Respondent contends that as a credibility determination, it must stand. Id. at 73-75. The undersigned and the United States Supreme Court disagree.

In El-Miller v. Cockrell, 537 U.S. 322 (2003), the Supreme Court issued a lengthy decision discussing, inter alia, § 2254(e)(1)'s presumption of correctness and its application to state court factual findings.

A federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system. Where 28 U.S.C. § 2254 applies, our habeas jurisprudence embodies this deference. Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1) ....

Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.

Id. at 340 (emphasis added). Thus, contrary to Respondent's assertions, credibility determinations are not insulated from review and can be rebutted. A federal court can not only disagree with a state court's credibility determination but, as here, can find said determination was unreasonable or incorrect based on clear and convincing evidence. Id.

As an initial matter, this Court is not making an affirmative finding that Mr. Slane was intentionally untruthful during his testimony. Mr. Slane acknowledged that his memory regarding Petitioner's case was not entirely reliable at the time of the evidentiary hearing as it had been ten years since Petitioner's trial. Moreover, Mr. Slane no longer possessed a file from Petitioner's case or any of his notes. Tr. Dec. 4, 2014 Vol. I at 27. By 2015, when Mr. Slane testified in this matter, he had practiced twenty-one years, represented thousands of defendants, tried hundreds of cases, and noted that his cases ran together in his memory. Id. at 7, 24. The Court finds this reasonable. Indeed, Petitioner's own evidentiary hearing expert, criminal defense attorney Robert Wyatt, stated that he could not remember every expert he had hired over the years without consulting a case file. Tr. March 19, 2015 at 14445.

Mr. Slane testified that he, along with Mr. Funderburk, spoke with two doctors regarding Petitioner's case, a male expert and Dr. May. He testified that they first spoke with a male doctor “that we sent the information to.” Tr. Dec. 4, 2014 Vol. I at 26. He thinks the male doctor was a forensic pathologist. Id. at 26, 85. Mr. Slane testified that he cannot recall this male doctor's name, when they spoke with him, where he resided other than it was not in Oklahoma, nor when they received his opinion. Id. at 26, 29, 85-86. Indeed, the only things he can recall are that the male expert charged them a fee for his services and that the expert's opinion would have been harmful to their case.

There are three amounts Mr. Slane believes they paid to doctors - $1,000.00, $2,000.00, and $5,000.00. Id. at 27.¹³ “I don't remember who got what and when. But I thought that we had sent a packet to a male doctor and asked him to review the information to see if he could help us. And we got a pretty quick response back from him.” Id. Mr. Slane later testified he thought they paid the unknown male doctor $1,000.00 to review their materials. Id. at 84-85. Mr. Slane indicated they later spoke with the male doctor on the speakerphone in Mr. Slane's office. Id. at 27-28, 85-86. The doctor informed them that he would be harmful to their case and therefore, they did not speak with him further. Id.

13 Although Mr. Slane also testified that they contacted only two doctors, the unnamed male doctor and Dr. May. Id. at 29-30.

By contrast to Mr. Slane's vague testimony, the record has a wealth of evidence that undermines or outright contradicts his testimony. Petitioner was never told that her attorneys had consulted with a male doctor as a potential expert witness, or any medical expert witness other than Dr. May. Tr. March 5, 2015 at 54. On September 4, 2012, Mr. Slane signed an affidavit pertaining to the work he performed on Petitioner's case. Tr. Dec. 4, 2014 Vol. I at 83-85. The affidavit does not mention consulting with any other expert witness besides Dr. May. Id. He does not recall why the affidavit did not include any mention of the male doctor. Id.

As of three weeks before trial, Petitioner's mother, Donna Carmichael, understood from a meeting with Mr. Funderburk that the defense had not hired any expert witnesses. Tr. Dec. 1, 2013 at 165-66, 177-78. Also, no member of the defense team ever mentioned to Dr. May that another expert had been consulted and/or concurred with her findings. Tr. Jan. 22, 2015 at 24.

Granted, one could interpret Ms. Carmichael's impression to be that the defense had not secured expert witness testimony, which does not mean defense counsel had not consulted an expert witness they could not use. Doc. No. 250 at 75 n.25. Moreover, Respondent notes Mr. Slane's statement that there are other things he did in the case that are not reflected in his 2012 affidavit. Doc. No. 250 at 74 (citing Tr. Dec. 4, 2014 Vol I at 84-85). However, this evidence coupled with the remainder discussed below sufficiently rebuts the presumption of correctness that might otherwise apply to this finding of fact.

Mr. Slane testified that although he did not handle the financial aspects of Petitioner's case, he recalls they paid the male expert and he thinks the amount was $1,000.00. Tr. Dec. 4, 2014 Vol. 1 at 27, 85 (“I kind of think we may have paid a doctor $1,000 to review the medical records to see if he could even be of help....I think we paid a male doctor $1,000 or he was going to be paid $1,000 to review it. And he reviewed it and wasn't helpful to us.”). Mr. Funderburk's records do not include any payment to an unknown male expert witness. St.Ct. Ex. 39 at 12-22, 29-39, 42-48, 51-58, 61-73, 76-81, 86, 90-93, 96, 98; St.Ct. Ex. 45 at 18-20. Additionally, in Mr. Funderburk's responses to the OBA regarding the grievances against him that included allegations regarding his failure to secure a medical expert witness, he did not include any reference to consultation with this unknown male expert witness or any medical expert witness other than Dr. May. Doc. No. 45 at 16, 18-20.

Respondent argues Mr. Funderburk did refer to this second expert witness in his response to the OBA based on his use of the word, “experts.” Doc. No. 250 at 74. However, a reading of Mr. Funderburk's response in its entirety belies this argument as he was clearly referencing spending funds on a medical expert, Dr. May, and a confession expert. Doc. No. 45 at 3-4. After discussing each, the relevant portion of his response ends with the following: “In my professional opinion the money for the experts would be better spent employing a medical expert to try to combat the bunt [sic] force trauma issue and a confession expert to see if we could find any type of coercion to get the confession thrown out.” Id. at 4.¹⁴ Thus, in a response to the OBA in which Mr. Funderburk had to defend his representation of Petitioner based on, inter alia, his failure to secure expert witness testimony to support her defense, Mr. Funderburk never mentioned a consultation with an additional medical expert prior to deciding not to present the testimony of any such experts at trial. Also, Mr. Funderburk's accounting did not include any payment to any other expert witness other than Ms. McComber. Id. at 18-20.

14 As previously noted, Mr. Funderburk did pay Lynn McComber $390.00 and indicated that she was an “expert ex-police officer with experience in confessions.” St.Ct. Ex. 39 at 44; St.Ct. Ex. 45 at 20.

Relying on an Eleventh Circuit case, Bishop v. Warden, GDCP, 726 F.3d 1243 (11th Cir. 2013), Respondent argues the Court must apply the presumption of correctness to the state court's finding regarding consultation with two experts because the record contains only conflicting evidence. Doc. No. 250 at 74-75. In Bishop, the petitioner had been convicted of malice murder and armed robbery and sentenced to death. Id. at 1247. There was a co-defendant involved in the underlying murder and robbery who was also indicted on the same charges. Id. at 1247-48. During the petitioner's trial, the prosecution repeatedly stated that the co-defendant would face his own day in court. Id. The petitioner later raised a Brady claim based on his contention that his co-defendant had already accepted a plea deal of life imprisonment, and “that the prosecution suppressed the evidence of this plea offer by failing to disclose it to Bishop's defense counsel.” Id. at 1258.

The Eleventh Circuit affirmed the district court's denial of habeas relief on this ground explaining,

The record reflects that both District Attorney Bright and Braxley's counsel Prince claimed direct knowledge of the timing of the plea offer.

Both were armed only with their own recollections, and neither possessed any additional evidence conclusively documenting the timing of the plea offer. The state habeas court heard from both witnesses and, as we've said, credited Bright's recollection over Prince's. In the absence of clear and convincing evidence, we have no power on federal habeas review to revisit the state court's credibility determinations. See Marshall v. Lonberger, 459 U.S. 422, 434 [] (1983) (federal habeas courts have “no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them”); Consalvo v. Sec'y, Dept. of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (denying habeas relief on Brady and Giglio claims that “turn[ed] upon credibility,” because “[d]etermining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review”); see also Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir. 2003) (The deference compelled by AEDPA “requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings lacked even fair support in the record.” (quoting Lonberger, 459 U.S. at 432 [])). The state court's factual finding found fair support in the record testimony of District Attorney Bright; there was no clear and convincing evidence to rebut that testimony. 28 U.S.C. § 2254(e)(1).

Id. at 1259. Thus, Bishop was limited to the conflicting testimony of two individuals.

By contrast, the record in the present case contains significant evidence to rebut Mr. Slane's vague testimony regarding this unknown male expert. Not only was no one else involved in this case aware of the existence of this previous expert consultation, there were indications within three weeks of trial that no medical experts had been consulted/hired and there is no receipt of money ever paid to this unknown expert,¹⁵ Mr. Slane never mentioned this expert in his own 2012 affidavit pertaining to his work in Petitioner's case, and Mr. Funderburk never mentioned this alleged expert in his response to the OBA even though one of the specific issues raised against him was his failure to obtain expert testimony.

15 Notably, considering the sole detail Mr. Slane recalls about this alleged male expert witness is that he lived out of state, it is exceedingly unlikely, if not entirely unrealistic, that Mr. Funderburk paid the individual in cash, as suggested by the state court and Respondent.

This case, unlike Bishop, does not merely turn on two competing individual memories and testimonies. Further, unlike Bishop, the record does not contain “fair support” for the state court's factual finding. Bishop, 726 F.3d at 1259. Instead, there is clear and convincing evidence to rebut Mr. Slane's testimony. The Court concludes Petitioner has rebutted the state court's finding that defense counsel consulted with two medical experts prior to Petitioner's trial.

D. Finding of Fact #5: Retention of Dr. May

The state court found, “The defense first retained Dr. May's services on September 1, 2005, and were aware of her opinion that the victim's injuries were consistent with child abuse by September 9, 2005.” Doc. No. 227-2 at 28. Petitioner's challenge to this finding is limited to whether the defense was aware of Dr. May's opinion by Friday, September 9, 2005, or if it was instead Sunday, September 11, 2005. Doc. No. 227 at 45-46. In addition to that challenge, Mr. Funderburk's retention of Dr. May and the court's factual finding in relation thereto warrants particular discussion.

During his testimony, Mr. Slane discussed contacting Dr. May as a potential expert witness. His testimony in this regard is entirely contradicted by multiple witnesses, including Dr. May and Dr. May's contemporaneous notes from Petitioner's case. Mr. Slane's testimony also contradicts this finding of fact by the state court.

According to Mr. Slane, he and Mr. Funderburk spoke with Dr. May on the telephone several times. Tr. Dec. 4, 2014 Vol. I at 30-31. During that process, Dr. May asked for more information on several occasions, and they provided it to her. Id. Mr. Slane testified that approximately two to three weeks before trial, they spoke with Dr. May by telephone and she relayed her opinion, which was that A.S.'s injuries were consistent with child abuse. Id. at 31-32. Mr. Slane also testified that Dr. May explained the medical records to him over the telephone. Id. at 82-83. He stated that her opinion was consistent with that of the unidentified male doctor. Id. at 33. Mr. Slane testified that he and Mr. Funderburk decided together at that point not to consult a third doctor and instead, to change their defense theory to asserting that someone else had harmed A.S., specifically A.S.'s father. Id. at 33-34, 47-48, 79-81.

Thus, according to Mr. Slane, the defense knew two to three weeks before trial that they were not going to use Dr. May as an expert witness. Id. at 31-32. He testified that they nevertheless had her travel to Oklahoma during the trial in order to explain her findings to Petitioner's family. Id. at 88-89, 92-93.

Additionally, Dr. May's expert report included a suggestion that a neuropathologist could do a better evaluation of the timing of A.S.'s injuries and that it may be similarly beneficial for an ophthalmic pathologist to review the autopsy report. Id. at 104-06; Doc. No. 32 at 51. Mr. Slane testified that they did not follow up on any of these because in their conversation with Dr. May two to three weeks before trial she told him that additional doctors would not get around the problematic areas she highlighted in her conclusion. Tr. Dec. 4, 2014 Vol. I at 110.

By contrast, Dr. May's testimony and the notes from her work on Petitioner's case contradicts every aspect of Mr. Slane's testimony.¹⁶ Dr. May testified, and her contemporaneous notes confirm, that she was first contacted about Petitioner's case by Mr. Funderburk on September 1, 2005, less than two weeks before trial. Tr. Jan. 22, 2015 at 7-8. Mr. Funderburk contacted her by telephone. Id. Her notes reflect they spoke for approximately one hour and forty-five minutes during which she requested autopsy records and medical records because she understood A.S. died in the hospital. Id. at 10-11. She also requested autopsy photographs, a time line regarding the events and when they happened, and a report of death, which is an independent investigatory report from the medical examiner's office. Id. The only individual with whom she spoke was Mr. Funderburk. Id. at 11. Her understanding was that trial was imminent. Id. Her general role in these types of cases is to “go through the medical records and the autopsy, explain the medical data and then talk about how these injuries may have occurred.” Id. at 12. At some point, Mr. Funderburk requested she prepare a list of potential questions for the State's medical witnesses, though that might not have been during the initial consultation. Id. at 12, 23-24.

16 Mr. Slane hired Dr. May as an expert witness in a case at some point after Petitioner's trial. Tr. Jan. 22, 2015 at 38. It is possible Mr. Slane's own acknowledgment that his cases run together after so many years explains these discrepancies.

Dr. May lives in Kansas. Id. at 4. On September 3, 2005, Mr. Funderburk met Dr. May at an Applebee's restaurant in Kansas City. Id. at 12-13.¹⁷ He was accompanied by his girlfriend and several children. Id. at 13. They met for approximately one hour, during which Mr. Funderburk provided Dr. May documents totaling 209 pages that included the records she requested, except for the time line of events and a report of death from the medical examiner. Id. at 14-16, 40; St.Ct. Ex. 32 at 51.¹⁸ With regard to the report of death, the only thing included was the initial page of the autopsy report - location of the incident, age of child, but no formal narrative. Tr. Jan. 22, 2015 at 14. Dr. May stated that Mr. Funderburk may not have had a formal narrative from the medical examiner. Id. She also did not receive any radiological, or histological, slides. Tr. Jan. 22, 2015 at 18.¹⁹ She received photographs of A.S. after his autopsy but no photographs of the internal injuries the pathologist detailed in the autopsy report. Id. at 16.

17 The mother of Mr. Funderburk's girlfriend, Ms. Camp, was ill and lived in Iowa. They were driving back and forth from Oklahoma City to Iowa when they met with Dr. May. Id. at 49.

18 Mr. Funderburk did possess a time line of events but did not provide it to Dr. May. St.Ct. Ex. 29; Tr. Dec. 1, 2014 at 168-69.

19 Microscopic, or histological slides, reflect biopsy size specimens of organs that are taken at the time of autopsy, then prepared for examination under a microscope. Id. at 42. The relevance of such slides in the present case is discussed more thoroughly below.

Dr. May began reviewing the records on September 5, 2005. Id. at 18. She reviewed them through Friday, September 9, 2005. Id. at 18-19. One week is the common amount of time she spends on a case and she felt she had enough time to form her opinion. Id. at 41-42. She does not always have microscopic, or histological, slides in every case. Id. She explained that she does not know if such slides would have affected her opinion in this matter since she has no way of knowing what they would have shown. Id. at 43. Dr. May further explained such slides are most useful when a question of timing of an injury has arisen in a case. Id. at 51. She was never asked specifically about the timing of A.S.'s injuries. Id.

Dr. May never went through the medical records with any member of the defense in order to explain them. Id. at 17. The medical records she reviewed referred to A.S. throwing “tantrums,” but she did not receive any information about him routinely throwing himself backward and hitting his head on the ground. Id. The medical records did not reflect, nor did any individual inform her, that A.S. had been diagnosed with failure to thrive, or of the fall A.S. experienced in the week leading up to his death, nor that he was lethargic and experiencing positional discomfort during that week. Id. at 17-18.

Upon review of the records, she agreed with the pathologist's opinions that A.S.'s injuries resulted from abuse. Id. at 43. Dr. May testified that the abdominal injuries were significant because they indicated another area of the body that was injured besides the head. Id. at 46. The location of that injury typically signifies force being applied to the abdominal area and therefore, could not have been caused by a tantrum, hitting the back of the head, or a fall. Id. at 46. However, included in the report, Dr. May stated that the injury may have been caused by Petitioner's attempt to perform CPR on A.S. at the residence following his collapse. Id. at 55; St.Ct. Ex. 32 at 51. The injury was consistent with “inappropriate cardiopulmonary resuscitation by pressing too low on the abdomen of a small child.” Id.

On September 9, 2005, Dr. May sent her report by Federal Express and facsimile to Mr. Funderburk's office. Tr. Jan. 22, 2015 at 18-19, 33. The Federal Express package was due to arrive to Mr. Funderburk's office by 3:00 p.m. on Monday, September 12, 2005, the first day of trial. Id. at 20-21. She also met with Mr. Funderburk, again at Applebee's with his girlfriend and several children on Sunday, September 11, 2005, and provided the report to him there. Id. at 21. She stated that prior to that date, no one on the defense team could have known her conclusions. Id. They met for approximately one hour. Id. at 22.

Her notes indicate Mr. Funderburk called her on Monday, September 12, 2005, at 2:08 p.m. and because she recorded no billable hours, she believes the call was brief, consistent with her memory of it. Id. at 24. Mr. Funderburk told her that she would not be expected to testify at the trial in Oklahoma, but he would like her to be present for the testimony of the medical examiner who performed the autopsy. Id. at 25-26. However, that decision was not made until a telephone conversation on Tuesday evening when she spoke with Eric Reynolds and Mr. Funderburk. Id. At that time, she brought Mr. Reynolds up to speed on her conclusions. Id. at 25-26, 50; Tr. Dec. 3, 2014 at 22-26. Mr. Funderburk wanted her to be at the trial the following day. Tr Jan. 22, 2015 at 25-26. It is a five hour drive from where she lived to Oklahoma City, so she did not arrive at trial until after the medical examiner had already testified. Id. ²⁰ She saw a portion of the testimony of Dr. Griggs, the attending physician at Integris where A.S. passed away, and that of an ophthalmologist. Id. at 26-27.

20 During his testimony, Mr. Slane repeatedly referenced the defense “flying her out” in reference to Dr. May's travel to Oklahoma City, allegedly so that she could explain her findings to Petitioner and her family. Indeed, he referenced already having paid her travel expenses as a reason for her to attend trial even though they allegedly knew well in advance that she would not testify. Tr. Dec. 4, 2014 Vol. I at 89, 93-94, 140-42. However, Dr. May drove to Oklahoma City on the Wednesday of trial and drove back that night as no accommodations had been reserved or arranged for her. Tr. Jan. 22, 2015 at 25-26, 28-30. In fact, she ran into bad weather on her return trip and had to stay overnight in Perry, Oklahoma. Id. She included travel expenses in the bill she sent to Mr. Funderburk. Id. at 30. Mr. Slane later admitted in his testimony that he does not know whether any expert witness was paid. Tr. Dec. 4, 2014 Vol. I at 140. Yet, he continued to cite her having been paid $5,000.00 as the reason they asked her to come to Oklahoma City. Id. at 142.

Dr. May does not know why the defense team wanted her to go to Oklahoma City. Id at 27. “[I]t may have [had] something to do with the medical examiner, but because of the travel distance and the late notification I did not hear the medical examiner's testimony.” Id. ²¹ After trial ended that day, Mr. Funderburk, Mr. Slane, and she went to where Petitioner was incarcerated and had a discussion. Id. at 2728, 38. They met with Petitioner for approximately one hour. Id. at 28, 38. After that, they went to dinner with members of Petitioner's family. Id. at 28. Dr. May does not know the purpose of her presence at dinner. Id. Between 7:45 and 8:00 p.m. the dinner ended, and someone gave her directions to get back onto Interstate 35 to drive back to Kansas City. Id. at 28, 38.

21 Mr. Slane testified that Dr. May helped them during trial by meeting with them during breaks and helping formulate questions. Tr. Dec. 4, 2014 at 93-94. Dr. May testified this never happened. Tr. Jan. 22, 2015 at 49-50. Indeed, Dr. May did not give the attorneys any notes that she took during trial until after trial concluded that day. Id.

Dr. May sent a bill totaling $3,946.02 to Mr. Funderburk on September 20, 2005, and sent it to him again in December 2005. Id. at 30-31. Mr. Funderburk never paid Dr. May for her time and services. Id.

Prior to arriving in Oklahoma City and going to the courthouse, Dr. May had never spoken with or heard of David Slane. Id. at 26. Contrary to Mr. Slane's testimony, Dr. May never brought him up to speed on her conclusions. When asked if she had ever discussed the case with Mr. Slane, Dr. May testified, “We may have had some discussion at the correctional facility but I don't have specific notes regarding that.” Id. at 29-30.

Other witness testimony also contradicted Mr. Slane's recollection of Dr. May's involvement in Petitioner's case. Mr. Funderburk hired Mr. Reynolds to work on Petitioner's case approximately two weeks before trial started. Tr. Dec. 3, 2014 at 8.²² The prosecution's theory was that A.S. had been injured and died almost immediately. Tr. Dec. 3, 2014 at 15. Mr. Reynolds testified that prior to trial starting, the defense theory was focused on the timing of A.S.'s injuries, that A.S. had been injured outside of that time frame and therefore, someone else could have injured the child. Id. He explained that they received Dr. May's opinion either immediately before or after the trial started. Id. at 23-24, 30. He stated this made it “much less likely that [they] were going to succeed” as they could not argue as well that the injuries occurred outside the prosecution's time frame. Id. at 30.

22 Contrary to Mr. Slane's testimony in which he stated that he asked Mr. Reynolds to meet with and coordinate character witnesses, Tr. Dec. 4, 2014 Vol. I at 67, Mr. Reynolds stated that Mr. Funderburk hired him to do so. Tr. Dec. 3, 2014 at 7-8. He explained that he did not meet Mr. Slane until Petitioner's trial began and they did not spend time together preparing for trial. Id.

Additionally, in August 2005, approximately three weeks before Petitioner's trial, Mr. Funderburk had the previously referenced meeting with Ms. Carmichael in San Antonio, Texas. Tr. Dec. 1, 2014 at 165-66. Ms. Carmichael understood from that meeting that Mr. Funderburk had not yet hired any expert medical witnesses. Id. at 177-78. Following that meeting and before trial, Ms. Carmichael requested Mr. Funderburk attempt to delay the trial due to the lack of expert witnesses. Id. at 177. However, Mr. Funderburk did not want to do so. Id. at 180. Ms. Carmichael learned on the second day of Petitioner's trial that Dr. May had been hired. Id. at 180-81.

Petitioner challenges this finding to the extent it states defense counsel received Dr. May's opinion on September 9, 2005. Doc. No. 227 at 45-46. The Court determines the finding is entitled to § 2254(e)(1)'s presumption of correctness. It is unlikely a member of the defense team reviewed Dr. May's opinion prior to the night of Sunday, September 11, 2005, when Mr. Funderburk met with Dr. May in Kansas City. Certainly that was Dr. May's impression. Tr. Jan. 22, 2015 at 21. Nevertheless, Dr. May did send the report by facsimile to Mr. Funderburk's office on the afternoon of Friday, September 9, 2005. Petitioner has not presented clear and convincing evidence that no one accessed the report prior to Sunday. In any event, whether the defense first reviewed the opinion on the Friday or Sunday before trial began on Monday has no effect on the Court's determinations.

V. Ineffective Assistance of Trial Counsel

Petitioner contends her trial counsel was ineffective in seven ways. Specifically, Mr. Funderburk failed to (1) investigate A.S.'s medical records and behavioral history, multiple resources and information regarding potential expert witnesses provided by the assistant public defender who initially represented Petitioner, and follow up analysis based on an expert witness's recommendations in order to develop a cohesive defense strategy prior to trial; (2) interview potential fact and expert witnesses necessary to present a defense to the State's case; (3) timely consult with and present qualified expert witnesses; (4) present a cohesive defense theory; (5) request a continuance in order to consult with other potential expert witnesses and interview the State's medical witnesses; (6) act diligently on Petitioner's behalf; and (7) adequately communicate with Petitioner. Although the undersigned will focus primarily on Petitioner's claim as to Mr. Funderburk's failure to secure and present expert medical testimony, this issue overlaps with several of the bases for this claim.

To prevail on a claim of ineffective assistance of counsel, a petitioner must establish the following: (1) “counsel's performance was deficient” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding the first prong of a Strickland claim, i.e., deficient performance, the Supreme Court has held that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688. Of course, whether an attorney's conduct is reasonable will depend on the facts of the particular case. Id. To avoid the “distorting effects of hindsight,” an attorney's conduct should be judged “from counsel's perspective at the time.” Id. at 689. Review of an attorney's performance is highly deferential, and there is a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

In addition to deficient performance, a petitioner must also satisfy the second prong under Strickland by showing his counsel's errors were prejudicial to the defense. Id. at 692. Prejudice exists where there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “If the alleged ineffective assistance occurred during the guilt stage, the question is whether there is a reasonable probability the jury would have had reasonable doubt regarding guilt.” Moore v. Gibson, 195 F.3d 1152, 1178 (10th Cir. 1999).

A. Deficient Performance

The record establishes Mr. Funderburk did not retain Dr. May until September 1, 2005, less than two weeks prior to trial. As an initial matter, Respondent's argument challenging Petitioner's claim is based almost entirely on the premise that defense counsel consulted with two medical expert witnesses prior to deciding not to present expert testimony. Doc. No. 250 at 93-99. This Court has already determined Petitioner successfully rebutted by clear and convincing evidence that finding of fact with regard to the unknown male expert. Regardless, the timing of Dr. May's retention does not constitute effective assistance of counsel.

The parties argue at length regarding whether Mr. Funderburk was ineffective based on his failure to interview and/or hire an expert witness who held a “minority” opinion with regard to shaken baby syndrome. These discussions are not entirely without relevance. However, in a case where the timing of A.S.'s injuries were of critical importance, Mr. Funderburk did not contact a medical expert holding any opinion until less than two weeks before trial, endorsed her (likely as a result of this delay) as an expert witness prior to knowing her opinion, and did not realistically have enough time after receiving her opinion to follow up on her suggestions or consult other experts for a potentially more helpful opinion.²³ This, standing alone, raises the specter at the very least of ineffective assistance.

23 The degree to which following up on Dr. May's suggestions may have affected the outcome of Petitioner's case is discussed in the section below addressing the prejudice prong of Strickland.

With regard to the majority/minority view regarding shaken baby syndrome, the Court will discuss two cases cited by the parties in which the courts addressed the competing views and their history. In Commonwealth v. Epps, 53 N.E.3d 1247 (Mass. 2016), the defendant was convicted of assault and battery on a child. Id. at 1249. Epps shares some similarities with the present case.

The prosecution contended that the defendant violently shook the two year old child in his care based on medical testimony that the child was

diagnosed with traumatic brain injury, and scans of her brain that showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as “the triad” associated with shaken baby syndrome. The defendant, when interviewed by the police, denied having injured the child and reported that, hours before the child's grievous injuries became manifest, she had fallen down the wooden stairs in her home and had later fallen off a kitchen stool, leaving a bump on her forehead. The Commonwealth's medical expert offered the opinion that injuries of the type and severity suffered by the child could not have been caused by the short falls described by the defendant. The defendant called no expert to offer an opinion to the contrary.

Id. at 1249-50. The defendant filed a postconviction motion for a new trial asserting, inter alia, ineffective assistance of counsel based on counsel's failure to “retain a medical expert to question whether [the subject child's] injuries were caused by shaken baby syndrome and to acknowledge the possibility that her injuries could have been caused by an accidental short-distance fall.” Id. at 1255.

While the defendant's ineffective assistance claim is certainly similar to the present case, the factual events regarding defense counsel's performance differ. In Epps, trial counsel retained one expert, Dr. Edward Sussman, and counsel was aware before doing so that Dr. Sussman believed in the validity of shaken baby syndrome as a diagnosis. Id. Without viewing the CT and other radiological scans, Dr. Sussman advised counsel that the child's injuries were compatible with impact to the left temporal lobe of the brain and “the tearing of veins in her brain and bilateral retinal hemorrhaging were some evidence of shaking.” Id. at 1255 (quotations omitted). He also concluded portions of the child's injuries were not compatible with the reported falls because he did not believe the falls were of a great enough height. Id. Based on this, “counsel chose not to call Dr. Sussman as a witness because counsel did not believe that he would be of value.” Id. (quotations omitted).

The court further explained,

Trial counsel also contacted other attorneys who had worked on shaken baby cases to find out which experts they had used. At the time of the motion hearing, he could recall that he had spoken with only one attorney and that the attorney had consulted with Dr. Plunkett, but had not called him to testify at trial. Counsel said that the attorney expressed an opinion about Dr. Plunkett that led him to decide that Dr. Sussman was “best.” Counsel spoke with Dr. Sussman about Dr. Plunkett's research regarding short falls, and Dr. Sussman told him that Dr. Plunkett was an opponent of shaken baby syndrome but that his opinions “had been refuted in several peer review articles.”

Although trial counsel read literature critical of shaken baby syndrome, he did not contact any of the authors of that literature and did not seek to retain any other critics who could be helpful as expert witnesses. He testified that he did not choose to call an expert because he believed, based on his conversations with other attorneys, that doctors who questioned the validity of shaken baby syndrome were subject to attack by their peers, which would render them more vulnerable to crossexamination and might lead to a counter-expert being called by the Commonwealth. He said, however, that if he had found an expert from out-of-State who had solid credentials and could assist the defense, he would have “brought in” that witness to testify.

Id. at 1255-56 (additional quotations omitted).

At the evidentiary hearing on the motion for new trial, the defendant presented an expert, Dr. Joseph Scheller, a pediatrician and child neurologist, who described the questionable validity of shaken baby syndrome as a valid and scientifically supported diagnosis, the lack of scientific evidence to support the same, that the confessions in these types of cases are usually “either exaggerated or coerced,” and that he had “never once seen a confession that explains every injury.” Id. (quotations omitted). He also challenged Dr. Wilson's diagnosis. In detailing the medical evidence of the child's injuries, he concluded that the injuries could have resulted from either a short fall, such as three stairs or a fall from 1½ to 2 feet, or an intentional act, and that there was no way to tell from the CT scans and other medical evidence. Id. at 1257.

In considering the defendant's claims, the court discussed the evolving literature and opinions on shaken baby syndrome and its influence on the medical field overall. Id. at 1257-58, 1260-61, 1264-65.

[] Dr. Scheller testified that shaken baby syndrome is the subject of heated debate and widespread disagreement among forensic pathologists, radiologists, pediatricians, ophthalmologists, and physicists and biomedical engineers. He stated that, although in 2006 every pediatrician and child abuse specialist he met believed strongly that shaken baby syndrome was a valid diagnosis, in the more recent past a “significant minority” has recognized that the science behind shaken baby syndrome is questionable and has instead adopted the term “abusive head trauma” or “abusive head injury” as a more general term for inflicted injury. He stated that ophthalmologists disagree on whether retinal hemorrhages prove shaken baby syndrome; although the majority agree that retinal hemorrhages provide some evidence in support of a shaken baby syndrome diagnosis, a minority of ophthalmologists believe that their presence does not point to a specific diagnosis. Dr. Scheller testified that, among radiologists, pathologists, and pediatricians, the majority supporting the shaken baby syndrome theory has shrunk. ....

At the time of trial [in 2007], there was substantial scientific and medical literature that recognized the possibility that accidental short falls can cause serious head injuries in young children of the type generally associated with shaken baby syndrome. Numerous studies had also been published at the time of trial challenging the view that shaking alone can produce the types of injuries associated with shaken baby syndrome. Although these issues were hotly contested in the relevant medical and scientific fields, see People v. Ackley, [] 870 N.W.2d 858 (2015); State v. Edmunds, [] 746 N.W.2d 590 (2008), and although the experts who would support the positions beneficial to the defense were in the minority in this debate, there was significant medical and scientific support for these minority positions. See notes 15 and 16, supra; note 17, infra; Millien, [] 50 N.E.3d 808. There were also published articles that identified the methodological shortcomings of the research supporting the majority view on shaken baby syndrome, and that highlighted the difficulties faced by physicians in accurately diagnosing the cause of injuries that appear to have been caused by child abuse.

Id. at 1257-58, 1260-61 (footnotes omitted).²⁴

24 The Court has omitted lengthy footnotes that cite numerous studies and/or literature supporting the “minority” view that short falls can cause the head injuries associated with shaken baby syndrome, as well as questioning the methodologies used to diagnose the same. Id. Though not determinative in this matter, it is noteworthy that the majority of these studies and/or literature were published before 2005 when Petitioner's trial occurred. Id.

The court in Epps also noted that this growing change in opinions regarding shaken baby syndrome influenced the American Academy of Pediatrics (“AAP”) to change its position regarding the diagnosis of child abuse in head injuries. Id. at 1264-65.

In July[] 2001, the Committee on Child Abuse and Neglect of the AAP declared, “Although physical abuse in the past has been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support the need for a presumption of child abuse when a

child younger than [one] year has suffered an intracranial injury.” Shaken Baby Syndrome: Rotational Cranial Injuries-Technical Report, 108 Pediatrics 206, 206 (2001). In 2009, however, the AAP acknowledged in a policy statement that “[f]ew pediatric diagnoses engender as much debate as [abusive head trauma].” Christian, Block, & Committee on Child Abuse and Neglect of American Academy of Pediatrics, Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409, 1410 (2009). The AAP recognized that the “[c]ontroversy is fueled because the mechanisms and resultant injuries of accidental and abusive head injury overlap, the abuse is rarely witnessed, an accurate history of trauma is rarely offered by the perpetrator, there is no single or simple test to determine the accuracy of the diagnosis, and the legal consequences of the diagnosis can be so significant.” Id. The 2009 policy statement no longer spoke of a presumption of child abuse, and instead declared, “A medical diagnosis of [abusive head trauma] is made only after consideration of all clinical data,” noting that pediatricians “have a responsibility to consider alternative hypotheses when presented with a patient with findings suggestive of [abusive head trauma].” Id.

Id.

The court in Epps noted that the defendant's trial counsel had two alternative defense theories: “[H]e could argue that there was a reasonable doubt whether the defendant caused [the child's] injuries because of the possibility that her injuries were caused by the accidental falls she sustained earlier that morning . . .; or that there was a reasonable doubt whether the defendant caused [the child's] injuries because of the possibility that [the mother] intentionally inflicted the injury.” Id. at 1260. The court also noted the former theory had significant support in the record as the defendant had consistently reported the falls and they were strongly corroborated by other evidence. Id. Within this context, the court considered whether “it was manifestly unreasonable for counsel to have decided to confer with no other expert who might challenge the diagnosis of shaken baby syndrome or who might challenge the opinion that [the child's] symptoms could not possibly have been caused by the accidental falls described by the defendant.” Id.

Without an expert to testify to the possibility that [the child's] injuries might have been caused by her accidental falls, all that trial counsel was able to do to advance the theory of accident was to ask Dr. Wilson to acknowledge the existence of Dr. Plunkett's findings regarding short falls, which Dr. Wilson did and then noted that Dr. Plunkett's findings were not widely accepted within the national community of pediatricians and were not recognized by the [AAP] And without an expert to testify in support of the minority position, or vigorous cross-examination prepared with the assistance of such an expert, there is no reason to believe that a jury will be persuaded by a view rejected by the majority of experts in a learned field. Defense counsel apparently recognized the futility of an accident defense without the testimony or aid of such an expert, because, in closing argument, he effectively abandoned the accident defense entirely, and asked the jury simply to consider who “struck the blow.”

Id. at 1262.

The court concluded it was unreasonable for counsel to make so little effort in retaining an expert to support the defense of accident. Id. at 1263.

Having informed the judge at the beginning of trial that he did not plan to pursue a third-party culprit defense, defense counsel's failure to consult with any expert other than Dr. Sussman effectively meant that the defendant commenced trial without any substantial defense, even though further investigation would have supported a potentially substantial defense of accident. Trial counsel testified that he would have retained an expert to testify if he could have found one with “solid credentials” who could assist the defense. But when asked if he made “any inquiries into whether any experts other than Dr. Plunkett would be helpful as witnesses in this case,” he answered, “No.” He also

testified that he never contacted any of the authors of the scholarly articles that questioned the validity of shaken baby syndrome or that recognized the possibility that short falls could cause the type of injuries usually associated with shaken baby syndrome. Where there was strong, corroborated evidence that [the child] had suffered a head injury from at least one short accidental fall, where accident was the defense that counsel presented to the jury in opening statement, and where this defense was tenable only with the aid of an expert to challenge the majority views on short falls and shaken baby syndrome, it would have been manifestly unreasonable for counsel to have made so little effort to find and retain such an expert if there were experts available with “solid credentials,” that is, experts who could have been found credible by a reasonable jury, and who challenged these views.

Id.

The court further addressed whether counsel could have been considered ineffective in 2007, when the trial occurred, because while there were certainly scientific and medical studies supporting the “minority view,” the record was sparse on whether there were credible experts available to testify regarding the same. Id. Ultimately, the court decided that it did not have to make such a determination. Relying on the evolution of scientific and medical studies following 2007 and the fact that defense counsel did not present any expert testimony, the court concluded:

[O]ur touchstone must be to do justice, and that requires us to order a new trial where there is a substantial risk of a miscarriage of justice because a defendant was deprived of a substantial defense, regardless whether the source of the deprivation is counsel's performance alone, or the inability to make use of relevant new research findings alone, or the confluence of the two. See Commonwealth v. Brescia, [] 29 N.E.3d 837 (2015) (“if it appears that justice may not have been done, the valuable finality of judicial proceedings must yield to our system's reluctance to countenance significant individual injustices”).

Therefore, we need not determine whether it was manifestly unreasonable in July [] 2007, for trial counsel to have failed to make the additional effort needed to find an appropriate expert. It suffices that we conclude that the defendant was deprived of a defense from the confluence of counsel's failure to find such an expert and the evolving scientific research that demonstrates that a credible expert could offer important evidence in support of this defense.

Id. at 1266.

This Court is not performing an appellate review and thus, has less flexibility to consider a “confluence” of factors outside of Mr. Funderburk's performance. Unlike the attorney in Epps though, Mr. Funderburk did not consult an expert well before trial. As established, counsel did not contact Dr. May until September 1, 2005, did not provide the necessary records for her review until the night of September 4, 2005, so that she began reviewing the records the following morning - one week before trial started. Due to the looming trial deadlines, defense counsel endorsed her as a witness without knowing Dr. May's ultimate opinions or suggestions. By the time they received Dr. May's opinion on the eve of trial, there was no time to consult with another medical expert to see if they could possibly find an expert that might reach a different conclusion. Like the defendant in Epps, this left Petitioner without a substantial defense and with no expert testimony to support an alternative cause of death or injury.

The Court agrees that defense counsel was not required to “doctor shop,” as Respondent phrased it. In other words, counsel was not required to perpetually continue searching for an expert witness until he found one to support an alternative cause of death. However, there is a cavernous divide between “doctor shopping” and failing to contact a medical expert witness until less than two weeks before trial. As noted, by the time he received Dr. May's opinions, he had no time to contact another expert or consider her follow-up suggestions.

Another case cited by each party speaks to this issue. In People v. Ackley, 870 N.W.2d 858 (Mich. 2015), the defendant was convicted by a jury of first-degree child abuse. There were no witnesses to the acts that caused the child's injuries and death and, therefore, no direct evidence of causation. To prove causation, the prosecution called five medical experts, each of whom testified, similar to the present case, that the child had died as the result of nonaccidental shaking, blunt force trauma, or a combination of both.

The defendant denied hurting the child and stated that the child's injuries and death were the result of an accidental fall - he testified that he found the unconscious child on the floor in the child's bedroom. Defense counsel contacted one expert prior to trial, Dr. Brian Hunter. Id. at 860. Dr. Hunter informed him immediately of the debate within the medical community regarding shaken baby syndrome and/or abusive head trauma and that he was not the best expert for the defendant because he was on the opposite side of the debate. Id. at 861. Dr. Hunter specifically recommended at least one well-known forensic pathologist, Dr. Mark Shuman, who had conducted substantial research on short falls and who may support the defendant's theory. Id. Defense counsel never contacted Dr. Shuman or any other expert and instead, consulted with Dr. Hunter a second time stating inexplicably that Dr. Shuman was not going to work out. Id. Dr Hunter again advised against using him as an expert. Id. Counsel later testified that he nevertheless continued to use Dr. Hunter to prepare for trial regarding how to approach the prosecution's witnesses. Id.

Following his conviction, the defendant filed a motion for new trial raising ineffective assistance of counsel based on the above. In support, the defendant submitted an affidavit from another well-known expert in forensic pathology who opined that the bruises on the child's body were consistent with the intubation and CPR she received on the day of her death. Id. at 861-62. He further explained that he would have testified that her injuries could not be attributed to shaken baby syndrome, or abusive head trauma, but were caused by a likely accidental ‘mild impact.' Id. at 862. The trial court granted the motion, but the court of criminal appeals reversed concluding that “counsel's decision not to consult a second opinion constituted trial strategy.” Id. (quotations omitted).

The Michigan Supreme Court reversed concluding that counsel did not have sufficient information to legitimate his choice to consult only Dr. Hunter. Id. at 863.

As defense counsel was well aware before trial, the prosecution's theory of the case was that the defendant intentionally caused the

child's unwitnessed injuries, a premise that it intended to prove with expert testimony. This testimony would require a response, and indeed, the court granted counsel funding to seek expert assistance of his own. Yet counsel contacted only Hunter, who repeatedly made clear that he credited the prosecution's SBS/AHT theory and disagreed with the defense's theory. While conceding that the SBS/AHT diagnosis was not universally accepted within the medical community, Hunter explained to counsel that he “really d[id]n't think [he] could help” the defendant because he was on the wrong side of this debate in his field.

As a solution, he advised counsel to consult Dr. Shuman, who not only was on the defendant's side of the SBS/AHT debate generally, but was significantly more likely to agree with the defendant's claim that the child's death in this case must have been accidental. Hunter even suggested that Dr. Shuman was more qualified because he had studied short falls extensively. Whereas Hunter was part of the group of experts who “don't have a good model” to support the accidental fall theory, Dr. Shuman was “someone who has dug into the physics” and the “proposed models” of a short-fall injury. Hunter also characterized Dr. Shuman as a “man of science” and as “the best expert in these types of situations.” Yet counsel ignored this advice. He did not contact Dr. Shuman or any other forensic pathologist with expertise in short falls, rendering Hunter his expert by default.

Id.

In finding that counsel did not have enough information to label his choice to consult only Dr. Hunter “strategic,” the court noted the Supreme Court's holding, “While an attorney's selection of an expert witness may be a ‘paradigmatic example' of trial strategy, that is so only when it is made ‘after thorough investigation of [the] law and facts' in a case.” Id. (quoting Hinton v. Alabama, 571 U.S. 263, 274 (2014)) (emphasis in Ackley). The court explained, “We fail to see how counsel's sparse efforts satisfied his ‘duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'” Id. at 864 (quoting Hinton, 571 U.S. at 274). The court also noted,

. . . [While] counsel is not required to shop for experts until finding one who will offer favorable testimony .... we fail to see [the] relevance [of that general proposition] here. In this case, counsel did no consultation at all beyond settling on the very first expert he encountered, despite the importance of expert medical testimony in the case and despite that expert's specific recommendation to contact a different and more suitable expert.

....

Accordingly, we conclude that counsel's efforts to investigate and attempt to secure suitable expert assistance in preparing and presenting defendant's case fell below an objective standard of reasonableness. While the Court of Appeals may be correct that counsel's deficiencies in this regard did not infect all of his conduct throughout the trial, the rest of his advocacy could not cure this crucial error. As the Supreme Court has said, “a single, serious error may support a claim of ineffective assistance of counsel.” Kimmelman v. Morrison, 477 U.S. 365, 383 [] (1986). Given the centrality of expert testimony to the prosecution's proofs and the highly contested nature of the underlying medical issue, counsel committed exactly that kind of error by failing to consult an expert who could meaningfully assist him in advancing his theory of defense and in countering the prosecution's theory of guilt.

Id. at 864-65 (additional citation omitted)

Ackley is distinguishable from the present case, though nevertheless relevant. Here, Dr. May did not recommend a specific expert witness who may have been better suited to consider Petitioner's defense of an alternative cause of death. However, there are similarities. Dr. May did suggest certain follow up tests and/or other types of medical experts who may be able to more directly illuminate the cause of death and/or the timing of the injury. In Dr. May's report, she stated:

(2) The documentation of the microscopic analysis of the brain by the pathologist for the presence or absence of axonal retraction bulbs, indicating diffuse axonal injury (DAI) fails to include the use of special histological stains and which areas of the brain were sampled. ....

(4) In my view the inclusion of specialized pathology consultants, specifically a neuropathologist and ophthalmic pathologist[,] would have afforded a more thorough examination of the brain and eyes.

St. Ct. Ex. 32 at 51.²⁵ During the evidentiary hearing, Dr. May testified that the types of medical experts she referenced, including neuropathologists, presumably existed in Oklahoma City. Tr. Jan. 25, 2015 at 53-54. However, counsel could not realistically make a choice about whether to follow up on her suggestions as trial was starting within two days, at most. Furthermore, counsel could not make a decision regarding whether it was feasible to consult an additional expert also because trial was imminent.

25 At the evidentiary hearing, Dr. May explained that histological slides are helpful when there is a question regarding when the subject injury occurred. Tr. Jan. 22, 2015 at 51. She further explained that she does not recall being asked any questions in this case regarding the timing of A.S.'s injuries. Id.

Thus, as in Ackley, the Court finds counsel's decisions to either not consult an additional expert and/or not follow up on Dr. May's suggestions were not strategic choices. In a case that relied so heavily on medical evidence, “counsel's efforts to investigate and attempt to secure suitable expert assistance in preparing and presenting defendant's case fell below an objective standard of reasonableness.” Ackley, 870 N.W.2d at 865. Counsel was not able to make a “strategic choice” due to his delay in consulting a medical expert for Petitioner's defense. The choice was out of his hands at that point, unless he was willing to seek a continuance, and it is clear from the record he did not attempt to do so.

The Supreme Court has explained:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Wiggins v. Smith, 539 U.S. 510, 521-22 (2003) (quoting Strickland, 466 U.S. at 690 91). Based on the record, the Court cannot conclude Mr. Funderburk engaged in a reasonable investigation that would make his decision not to consult with and/or potentially present other expert witnesses a strategic choice.

The deficient performance prong of Strickland is “is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Hinton, 571 U.S. at 273 (quotations omitted). Petitioner presented Robert Wyatt, a local criminal defense attorney recognized by various organizations for the quality of his legal representation, to offer his opinion regarding whether Mr. Funderburk's representation violated the Strickland standard of effective assistance of counsel. Tr. March 19, 2015 at 89-96.

He testified that specifically in a case that turns so starkly on medical evidence and, where funds were provided, it was unreasonable “to not engage an expert until about 10 days before trial, which is the day the witness list is due.” Id. at 103.

[It was not reasonable] for the reason that you don't know what the answers are. If you knew what the answers were, you might be able to say yes and have that person ready. But if your witness and exhibit list is due 10 days before trial, you can't wait until that day to provide it, because you have to give a significant summary of what the witness will testify to.

They also, the State generally wants a report, and they want to know what that person has reviewed and what they are looking at, and what they are going to say.

And in addition to that, let's say that as a result of the findings of the doctor, which I think there are some here that were relevant, they may need to send that material off to another expert, someone who's a specialist to look at things. And you can't have that done if you wait until 10 days before trial. It's just not feasible logistically to do that. ....

So I don't think that's reasonable, I don't think it's sound trial strategy.

Id. at 106-07.²⁶

26 Notably, during a motion in limine hearing on the first day of Petitioner's criminal trial, the State complained that it had not received timely notice of Petitioner's defenses, nor the report of Petitioner's endorsed expert witness, Dr. May. Doc. No. 250 at 101-05. Additionally, the court ruled therein that Petitioner could not introduce evidence of A.S.'s falls, behavioral problems, and developmental delays because counsel had no expert medical testimony to support its relevancy. Id.; Tr. Dec. 2, 2014 at 22-23 (“My concern is if you have no medical personnel [who are] going to say these injuries could have been caused by the child inflicting them on himself then the fact that this child may have had these behavior issues or these things going on is irrelevant.”).

Mr. Wyatt also explained that unless you were using it solely for crossexamination purposes, it would not be possible that a report received as close to the beginning of trial as Dr. May's would adequately inform a defense strategy. Id. at 107. For example, in this case, Dr. May specifically suggested that defense counsel investigate particular issues that might show the subject injuries were older than alleged in this case. Id. Mr. Wyatt concluded that the delay in obtaining an expert witness in this case could not be considered strategic.

Not a strategic reason, if they didn't have other expert testimony lined up.

I can't see that there's strategy at all when it's 10 days before trial. That's where I have a problem with it.

. . . That's not a strategic approach. You have to have a game plan going into trial, not seat of your pants. And you don't get the materials the Friday before Monday's trial, or the night before, that's not strategic period.

So any questions regarding strategy, I have to say that with respect to expert testimony in this case, I don't think it's strategic, period.

Id. at 115-16.

Mr. Wyatt also noted that even if the expert witness, such as Dr. May, states that they had ample time to review the record and provide an opinion, it is still not reasonable performance by counsel because they have no time to adjust their strategy. Id. at 139. Mr. Slane stated that they consulted with an additional expert witness and he had adequate time to adjust their strategy following receipt of Dr. May's report.²⁷ However, the defense did not have time to follow up on Dr. May's suggestions regarding histological stains and the presence of iron in A.S.'s injuries. She indicated further examination and testing of these issues might prove A.S.'s fatal injuries were older than the State alleged. Id. at 139.

27 Though Mr. Slane also incorrectly testified they received Dr. May's opinion weeks before Petitioner's trial. Supra.

Respondent contends that when told about additional elements of the case on cross-examination, Mr. Wyatt “substantially revised his opinion.” Doc. No. 250 at 86-87. A review of the transcript reveals Respondent's characterization of Mr. Wyatt's testimony in this regard is exaggerated.

The State, in cross-examining Mr. Wyatt, referenced a taped confession in which Petitioner described actions she took that were consistent with the injuries A.S. received. State's counsel then asked Mr. Wyatt if this evidence would change his opinion regarding whether it was reasonable for defense counsel to change their strategy to “some other person did it?” Tr. March 20, 2015 at 15-16. Mr. Wyatt responded, “Certainly all of those factors would go into a determination of whether you would use an alternative theory” and that it “could potentially” change his opinion. Id. at 16, 17.

Respondent does not include Petitioner's objection at the hearing explaining that in actuality, the medical testimony at trial indicated Petitioner's taped confession was not consistent with the medical findings. Id. at 16; Doc. No. 250 at 86 (wherein Respondent summarizes this portion of the transcript as “[Petitioner's objection overruled].”). Moreover, Mr. Wyatt continued to testify both during the remainder of cross-examination and on redirect following this questioning that these types of issues would not affect his conclusion that counsel's delay in contacting an expert witness until 10-12 days before trial was unreasonable, deficient, and not a sound strategic decision. Tr. March 20, 2015 at 17-19, 25-27.

The Court agrees with Mr. Wyatt's conclusions regarding Mr. Funderburk's representation in this matter. The Court cannot conclude that Mr. Funderburk's failure to engage an expert witness until eleven days before trial “might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quotations omitted). While Mr. Funderburk was not required to shop around for an expert until he found one that supported an alternative theory of causation, the fact that he did not consult a medical expert until trial was imminent, his witness list was due, and he had no time to follow up on any potential suggestions from the expert and/or alter his strategy is undeniably deficient. Mr. Funderburk was clearly not making “strategic choices . . . after thorough investigation of law and facts ....” Id. at 690. His “complete lack of pretrial preparation put[s] at risk both [Petitioner's] right to an ‘ample opportunity to meet the case of the prosecution' and the reliability of the adversarial testimony process.” Kimmelman, 477 U.S. at 385 (quoting Strickland, 466 U.S. at 685, 688) (additional citation omitted).²⁸

28 The Court notes its conclusion would not be altered if indeed counsel had contacted an unknown male witness. Contrary to Mr. Slane's testimony, it is clear that counsel did not contact Dr. May until September 1, 2005, did not deliver records for her to review and examine until late on September 4, 2005, and therefore, did not have her opinion until the weekend before trial. At that point, it was too late to make any real strategic determination as to whether further expert consultations were necessary and/or whether to follow up on Dr. May's suggestions regarding additional testing.

“Strickland recognized that the Sixth Amendment's guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for [her] defence' entails that defendants are entitled to be represented by an attorney who meets at least a minimal standard of competence.” Hinton, 571 U.S. at 272 (quoting Strickland, 466 U.S. at 685-87). “Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Hinton, 571 U.S. at 273 (quoting Harrington v. Richter, 562 U.S. 86, 106 (2011)). As in Hinton, Ackley, and Epps, where the underlying injuries are unwitnessed and the prosecution's case rests heavily on expert testimony, this was such a case.

Nothing in the record indicates counsel's failure to contact a medical expert witness until September 1, 2005, when trial was imminent, was a strategic decision. Counsel simply did not take any action to secure necessary medical expert testimony until approximately eleven days before trial. It is clear from the testimony and evidence presented at the state's evidentiary hearing in this matter that Mr. Funderburk's “overall performance” did not live up to “prevailing professional norms” and was constitutionally deficient. Hinton, 571 U.S. at 273; Kimmelman, 477 U.S. at 381. Based on a review of the record in this matter, the relevant law, and the state court's order and reasoning, the Court concludes Petitioner has met the deficient performance prong under Strickland.²⁹

29 In light of the recommendation, it is unnecessary to address the remaining bases for Petitioner's ineffective assistance of counsel claim. However, Petitioner's allegations that Mr. Funderburk's failure to adequately investigate her defense, request a continuance in order to consult with additional expert witnesses, and present a cohesive defense overlaps with the Court's finding as to his failure to timely consult with and present expert witnesses at Petitioner's trial. Additionally, Petitioner's claim that counsel failed to present a cohesive theory of defense is supported by Tr. Vol. I at 7-20. Finally, it seems unlikely that anyone from the defense team met with Petitioner between February 2005 and the weekend before her trial. Though Mr. Slane claims to have met with Petitioner between six and twelve times during those months and that he signs in at the county jail only “occasionally,” the Jail Logs do not show that he signed in on even one occasion. St.Ct. Ex. 43B.

B. Prejudice

Having established Mr. Funderburk's performance was constitutionally deficient under the first prong of Strickland, Petitioner “must also ‘show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Hinton, 571 U.S. at 275 (quoting Strickland, 466 U.S. at 694). The primary basis for the Court's finding that Petitioner has met the prejudice prong of Strickland was set forth in this Court's previous ruling finding Petitioner's evidence, which remains largely unrebutted, from five medical experts met the threshold finding of actual innocence and allowed this Court to consider her procedurally barred claims. Doc. Nos. 135, 139.³⁰ Thus, the Court will review the previous findings, Respondent's arguments, and additional evidence herein.

30 The Court notes Petitioner's burden of proof for actual innocence permitting this Court to consider otherwise procedurally barred claims is more strenuous than Strickland's prejudice prong. In order to establish “actual innocence,” Petitioner had to establish that “in light of the new evidence, no juror, acting reasonably, would have voted to find [her] guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995). By comparison, Strickland requires Petitioner show only that there is “a reasonable probability” that a jury would have believed Petitioner's new medical experts and the result of her criminal proceeding would have been different. Strickland, 466 U.S. at 694.

In his previous Findings in this case, Judge Bacharach discussed the relevant evidence presented by the State's medical experts regarding the cause and timing of A.S.'s injuries. The State's three medical expert witnesses were Dr. Johnny Griggs, Dr. David Korber, and Dr. Chai Choi. Doc. No. 135 at 2.

Dr. Griggs is a physician who treated A.S. at the hospital and opined that the boy had died from shaken-baby syndrome. For this opinion, Dr. Griggs relied on subdural hemorrhages in both eyes, massive swelling of the brain, and some bleeding into the brain. ....

Dr. David Korber is an ophthalmologist who treated A.S. on January 14, 2005.... Dr. Korber concluded that his findings were consistent with shaken baby syndrome. These findings involved “thousands” of retinal hemorrhages, a “massive amount of blood all over the retina,” and two detached retinas. For the level of eye damage Dr. Korber saw, he initially stated that he thought the injuries would probably have been sustained between “a few days” to “a week” before January 13, 2004. Later in his testimony, however, Dr. Korber appeared to question the ability of anyone to estimate how much time had passed between the injuries and the loss of consciousness. ....

A forensic pathologist, Dr. Chai Choi, performed the autopsy on A.S. and attributed the death to head trauma with blunt force. At trial, Dr. Choi testified that prior to [January] 13, 2004, A.S. had been “essentially . . . a normal child” without any “known medical specific history.” At the time of the autopsy, however, the boy had a massive brain edema (swelling), tearing of the bridging veins, retinal hemorrhages, periserosal mesenteric hemorrhages of a duodenum, subscapular bruises, subarachnoid hemorrhages, a subdural hematoma, and a subgaleal hematoma. Based on these newly-acquired conditions, the physician concluded that the brain injury had been caused by shaken baby syndrome with impact.

Like Dr. Griggs and Dr. Korber, Dr. Choi was asked how much time would have elapsed between the shaking and the boy's loss of consciousness. Dr. Choi answered that the time-period would depend on how the child tolerated the shaken impact, but would usually have taken only minutes. Similarly, Dr. Choi stated that if the impact had been “very violent,” the brain-swelling would immediately have resulted in an inability to breathe and a loss of consciousness.

Id. at 3, 5-7 (footnotes omitted).

Petitioner presents reports of five medical expert witnesses: Dr. Julie Mack, a radiologist, Dr. Ophoven, a pathologist, Dr. Wayne Squier, a neuropathologist, Dr. Horace Gardner, an ophthalmologist, and Dr. Patrick Barnes, a neuroradiologist. As noted by Judge Bacharach, the reports reflect two broad categories of opinions -“criticism of the conclusions expressed by Doctors Griggs, Korber, and Choi, tying the boy's death to trauma or shaken baby syndrome” and “expression of a belief that if the death had involved trauma, the injury would have been inflicted days, weeks, or months before January 13, 2004.” Id. at 8.

Focusing on Petitioner's medical expert testimony regarding the timing of A.S.'s fatal injuries, there is no question that a reasonable probability exists that it could have affected the jury's verdict. As Judge Bacharach explained,

The State's theory was that Ms. Moore had shaken A.S. roughly within [approximately] thirteen minutes of the time that he lost consciousness. There was no evidence of any abuse by Ms. Moore prior to January 13, 2004, the day that A.S. died. And, the Information was specific in charging Ms. Moore with the commission of a murder “on or about” January 13, 2004. Thus, if Ms. Moore had not caused the injuries on January 13, 2004, the jury would have had no reason to blame her for the trauma or for murder. In these circumstances, the timing of the death provided a critical link in the prosecution's theory of guilt. With the new collection of expert reports, that link appears unsupportable because of the undisputed scientific evidence that the trauma would have preceded the collapse by days, weeks, or months.

Doc. No. 135 at 10-11.

In reviewing the testimony of Drs. Griggs and Choi, Judge Bacharach noted that each of them opined that A.S's traumatic injury would have immediately resulted in loss of consciousness but that they also relied at least in part on the absence of any prior traumatic experience. Id. at 11. Dr. Griggs also presumed that A.S. “‘[had been] perfectly fine' until his collapse on January 13, 2014.” Id. at 14 (footnote omitted). However, Petitioner offers undisputed evidence of prior traumatic experiences and health problems, including but not limited to, “a prior diagnosis of a ‘failure to thrive,'” “the existence of significant developmental delays,” “a fall from a porch in October 2003, resulting in edema, contusions, and a hematoma,” “two falls in December 2003, one involving a landing on a tile and concrete floor,” “a fall in a cast iron tub roughly one week before A.S. died,” and “observations that A.S. had appeared to be lethargic in the week preceding his death.” Id. at 12 (citing Doc. No. 108-6 at 1, Doc. No. 108-13, Doc. No. 108-14, Doc. No. 108-19, Doc. No. 108-24 at 1-2, 4-5, Doc. No. 109-9, Doc. No. 109-1 at 1-3, 4, Doc. No. 109-17 at 2, Doc. No. 109-18, Doc. No. 109-20 at 3).

In previous proceedings before this Court, Respondent has not denied that A.S. suffered these prior falls but instead, merely challenged their severity.³¹However, Judge Bacharach found this argument unavailing, see Doc. No. 135 at 1314, and the Court agrees. As Judge Bacharach noted,

31 Respondent's address of prejudice in the current proceedings is limited to a lengthy footnote in the Supplemental Response. Doc. No. 250 at 116-17 n.55. The arguments contained therein are addressed below.

[] Petitioner has presented new scientific evidence suggesting that the falls in October 2003, December 2003, and early January 2004 could have resulted in the kinds of injuries relied upon by Doctors Griggs, Korber, and Choi.

. . . [T]hese physicians relied largely on: (1) subdural and retinal hemorrhages, and (2) swelling of the brain. But, in an article published in 2011, Patrick Barnes, M.D. concluded that these hemorrhages and swelling could “be associated with a lucid interval.”

The potential for a lucid interval becomes critical with Ms. Moore's new scientific evidence that the traumatic injuries, which ultimately proved fatal, had taken place before Ms. Moore and the boy were left alone on January 13, 2004. Thus, even if the jury had attributed the death to trauma, it would have had no reason to single anyone out as the caretaker who was present when the fatal injury took place.

Id. at 14-15 (footnotes omitted).

Petitioner's experts explain that the presence of hemosiderin³² and papilledema shows that any traumatic injury suffered by A.S. occurred days before his collapse. The presence of hemosiderin in the bruising on the back of A.S.'s head was undisputed. Id. at 16. Drs. Ophoven and Mack explained, in scientific detail, that the presence of hemosiderin indicates that the bruising on the back of A.S.'s head was 5-7 days old. Id. at 17 (citing Doc. No. 108-27 at 7, Doc. No. 109-4 at 3, Doc. No. 109-7 at 3). This undisputed evidence signifies that the hemosiderin had taken at least days to develop and because Dr. Choi had conducted the autopsy only about 1½ days after A.S.'s collapse, his injury could not have occurred within those minutes Petitioner was alone with him on January 13, 2004. Doc. No. 135 at 18.³³Based on this unrebutted evidence, the Court finds there is a reasonable probability that if presented with the same, a jury may determine that the bruising on A.S.'s head was caused by something taking place prior to the time Petitioner was alone with him on January 13, 2004.

32 “Hemosiderin is an iron-storage protein complex found within cells.” Id. at 16 (citation omitted).

33 Respondent attempts to rebut this evidence solely on the basis that Dr. Choi had conducted the microscopic analysis on February 10, 2004, 28 days after the assumed act of shaking A.S. Id. However, Dr. Ophoven explained that the samples taken from an autopsy are “fixed” to preserve the cells/tissue. Id. at 18-19. If the fixation process is not done appropriately, samples deteriorate. Id. at 19.

Similarly, Dr. Ophoven's finding that papilledema, which refers to “optic disc swelling,” was present is undisputed. Id. at 20 (citing Doc. No. 108-20 at 4; Doc. No. 109-7 at 4-5). Drs. Gardner and Ophoven concluded that the presence of papilledema indicates that A.S.'s fatal injuries were incurred days before January 13, 2004. Id. at 21-22 (citing Doc. No. 108-20 at 4, 6-7; Doc. No. 108-27 at 5; Doc. No. 109-7 at 5).

Petitioner has presented similarly unrebutted evidence and expert witness testimony regarding the presence of Perl's positive material in A.S.'s blood when he collapsed as well as vitreous hemorrhaging indicating that his fatal injuries occurred days, if not longer, before his collapse on January 13, 2004. Id. at 22-24. The Court concludes that if presented with this unrebutted evidence regarding the presence of papilledema, Perl's positive material, and vitreous hemorrhaging indicating A.S.'s fatal injury occurred days before January 13, 2004, there is a reasonable probability Petitioner's trial would have had a different outcome.

This Court must also consider whether the lack of evidence that might have been offered by Petitioner's expert witnesses would be prejudicial when considered with the other evidence presented at trial. As Judge Bacharach discussed in his previous Findings of Fact, in a police interview, Petitioner “admitted that she had shaken A.S. three to four times while the two were alone on January 13, 2004.” Doc. No. 135 at 28 (citing Doc. No. 109-6 at 10). Petitioner challenged the believability of this “confession” on numerous grounds. The Court concludes, similar to Judge Bacharach, that Petitioner's challenges standing alone are not sufficient to satisfy the Strickland prejudice prong. When considered with the new evidence, however, there remains a reasonable probability the outcome of her trial would still have been different. The Court agrees with Judge Bacharach's reasoning, as follows:

. . . [T]he Petitioner's admissions to law enforcement could not have supported a guilty verdict if the jury were to have the benefit of the new evidence on the timing of A.S.'s fatal injuries. With Ms. Moore's admissions, the jury could have believed that she had shaken the boy three or four times on the day that he died. For murder, however, the jury would have needed to tie an action by Ms. Moore to the traumatic injury that had ultimately caused A.S.'s death. The sole reason for the jury to find this connection was, as the police told Ms. Moore in the interrogation, the fact that she had been the last person to be alone with A.S. before he died. That fact bore relevance only because the jury had uncontested evidence that the traumatic injuries would have caused the death within minutes to a perfectly healthy child. A

reasonable jury would not possibly regard A.S. as perfectly healthy or regard the loss of consciousness as immediate with the benefit of Ms. Moore's new evidence of the breakdown of the auto-regulation system and the significance of A.S.'s hemosiderin, papilledema, Perl's positive material, and vitreous hemorrhaging.

Id. at 31-32 (footnotes omitted).

In reviewing the record as a whole, the Court finds there is a reasonable probability that a jury would have believed Petitioner's new medical experts and the result of her criminal proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Certainly the evidence presented by Petitioner's experts, that was never presented to the jury, undermines confidence in the outcome of her trial.

In the Response, Respondent limits arguments regarding Strickland's prejudice prong to one lengthy footnote. Doc. No. 250 at 116-17 n.55. Respondent does not concede the prejudice prong based upon this Court's previous finding that Petitioner had sufficiently shown actual innocence. Id. at 116 n.55. Respondent further argues:

Judge Bacharach acknowledged that Doctors Griggs and Choi both opined that A.S.'s fatal injuries were very recent, but dismissed this testimony because it was based on “misinformation” that “A.S. had been a perfectly healthy child before January 13, 2004,” while Petitioner's “new” and “undisputed” evidence showed prior falls, developmental delays, and lethargy on A.S.'s part. But now this evidence is disputed. For instance, Petitioner's habeas expert Dr. Janice Ophoven concluded A.S. suffered a fall and head injury and was “lethargic the week before his death” based on information from Ms. Roth. As shown at length above, Ms. Roth was thoroughly impeached

at the evidentiary hearing and has no credibility, see Ground One(C)(3)(ii), supra. As another example, it appears that Dr. Ophoven is the only one of Petitioner's habeas experts to address A.S.'s abdominal injury and offer any explanation for same other than child abuse. Dr. Ophoven claimed the injury “was most likely caused when Ms. Moore performed CPR on the child.” At the evidentiary hearing, however, Petitioner specifically denied that she did CPR “hard” enough to cause A.S.'s abdominal injuries. In sum, although Petitioner's habeas experts were not tested under the crucible of cross-examination at the evidentiary hearing, some of the critical information on which they relied was and came up short. While the evidentiary hearing did not specifically cover prejudice, it certainly developed the record far beyond what was before Judge Bacharach, and his preliminary “actual innocence” determination does not foreclose a finding that Petitioner has not carried her burden on prejudice.

Id. (citations omitted). In reviewing the evidentiary hearing transcripts, the Court finds Respondent highly overstates the extent of impeachment of witnesses and evidentiary disputes.

Ms. Roth provided day care services to A.S., as well as Petitioner's son, A.M. During the evidentiary hearing, Ms. Roth stated that she saw Todd Snyder shake A.M., Petitioner's son, one morning when Mr. Snyder dropped off A.M. at her day care business. As subsequently pointed out to her, in the Incident Report dated September 7, 2003, she specifically stated that she was not watching but heard her assistant “shout at Todd, ‘If you ever touch him again like that I'll lay you out right here on the floor.' She also told Todd to get his hands off [A.M.]. Todd immediately left.” State's Ex 1; Tr. Dec. 5, 2014 at 29-30. In the report, Ms. Roth explained that she then asked her assistant, Michelle Jones, what had just occurred, and the assistant told her “that she had seen Todd grab [A.M.] by the shoulders & spin him back around to face him. She said it had been done with a lot of force & that Todd was squeezing [A.M.'s] shoulders as he shouted at him. That is when Michelle yelled at Todd to let go of [A.M.].” Id. Ms. Roth also explained in the Report, “I checked [A.M.'s] shoulders & they appeared red. [A.M.] was crying & I consoled him. We will check him later for bruising on the shoulders & arms. If they appear, a Child Abuse Hotline report will be made.” Id.

Ms. Roth's testimony did not contradict the acts described other than she testified that she saw the underlying event occur. Ms. Roth stated in the report that she heard it happen from an adjoining room, her assistant immediately described it to her, and Ms. Roth checked A.M.'s shoulders and arms for injuries. While clearly contradictory, the contradiction is relatively minor and hardly warrants Respondent's description of Ms. Roth as having “no credibility.”³⁴

34 Additionally, Ms. Roth's assistant, Ms. Jones, submitted a Declaration noting her account of the underlying incident, and it supports Ms. Roth's Incident Report. Doc. No. 109-1 at 3.

Similarly, Respondent also discusses whether Ms. Roth had perjured herself by claiming to have practiced law at one time. During Petitioner's criminal trial, the State asked Ms. Roth if she had ever claimed to be or had she ever been a practicing attorney. Doc. No. 250 at 90-91. The first time she was asked, she responded, “I had a - yes.” Id. at 91 (quoting Tr. Vol. III 235-36). The second time, she answered in the affirmative that she had been a practicing attorney in California. Id. At the evidentiary hearing, she explained that in the late 1980s when she lived in California, she held a certification “where under a supervising attorney you could perform work that would typically be done by an attorney. Limited [to family law].... We were called little LA - AAs. And I know that that was either associate attorney or attorney associate. It was a very long time ago.” Tr. March 2, 2015 at 51-52.

Due to Ms. Roth's familiarity with the parties involved, including A.S. for whom she provided childcare, she inherently possessed a great deal of relevant information to Petitioner's criminal case. The two contradictions are by no means so egregious as to render her knowledge, information, and/or potential testimony either irrelevant or completely lacking in credibility.

Moreover, evidence related to A.S.'s falls and lethargic behavior the week prior to his death has been provided by other witnesses in addition to Ms. Roth. Doc. No. 108-6 at 1; Doc. No. 108-16 at 1-2; Doc. No. 109-1 at 4; Doc. No. 109-20 at 3. Indeed, there is a medical report dated January 8, 2004, five days before A.S.'s collapse, wherein Sooner Start was conducting an Early Intervention Program appointment with A.S. apparently related to his developmental delays. Doc. No. 10918 at 5. The physician who prepared the medical report described A.S. as “very lethargic and uncooperative.” Id.

More significantly, Dr. Ophoven's detailed opinion illustrates clearly that though she referenced “evidence from the day care provider,” that was by no means the sole basis for her conclusions. Within the exact section of her opinion to which Respondent cites, Dr. Ophoven described the fall that A.S. suffered in October 2003, its physical effects, and other medical evidence as strongly supporting her conclusions that A.S.'s fatal injuries did not occur in the hour preceding his death.

I have reviewed the investigative reports in his case and am aware that witnesses described the child with recent symptoms strongly suggesting a significant headache. As I understand the symptoms the child was unusually quiet and when held placed his head in a specific position. Headache is very unusual in a child this age and must be included in the forensic analysis. These symptoms are consistent with increased intracranial pressure and or meningeal irritation.

Most notably, there was medical evidence that the child suffered head injuries in falls pre-dating January 13, 2004. For example, in October 2003, the child suffered a significant fall and struck his head on a concrete step. He was sent home from Deaconess Hospital without a CT scan or MRI. In pictures taken two months later, the bruising and swelling from that fall is still evident. Indeed, three months after the fall, contusions over his left forehead and towards the left temple - the area injured in the October fall - are evident in the autopsy. After this fall, the child suddenly stopped growing - as reflected in the abrupt change in his growth curve - a significant fact that was not addressed by Dr. Choi, the forensic pathologist who did the autopsy. Evidence from the daycare provider and the Sooner Start records further indicate that the child was “unresponsive” and lethargic the week before his death, seemingly after suffering another significant fall and head injury. This history indicates that [A.S.] was not a “normal” child on January 13, 2004. Complications from multiple accidental blunt force impacts to the head could certainly have caused the death as well as the medical findings. The postmortem examination included histological sections of skin and underlying tissues from the back of [A.S.'s] head. These tissue sections are designated as slides B, C, and D. I have examined

these tissue slides as well as iron and trichrome stains to assist in determining the degree of tissue healing in the damaged tissue. The tissue slides indicate the presence of a significant impact to the back of the head many days or even longer prior to death. The tissues contain abundant iron positive cells, maturing scar tissue and new blood vessel formation indicating substantial healing. An impact to the back of the head could very well have been a significant contributing factor in the terminal cascade. Individuals with significant concussions are at substantial risk for fatal deterioration with subsequent blows. Whether or not this impact was associated with the onset of his seizures cannot be determined from the postmortem analysis.

Doc. No. 88-31 at 7-8. As is evident from this portion of Dr. Ophoven's opinion, she relied on far more than Ms. Roth's information regarding lethargic behavior and/or another fall the week prior to his death. Thus, Respondent's argument that Ms. Roth's supposed impeachment negates Dr. Ophoven's opinion is utterly without merit.

Respondent also states that Dr. Ophoven is the only one of Petitioner's experts that addressed A.S.'s abdominal injuries and in doing so, stated that it was possible said injury occurred when Petitioner performed CPR on A.S. Doc. No 250 at 116 n.55 (citing Doc. No. 88-31 at 3 n.1). Respondent argues that this portion of Dr. Ophoven's opinion is negated because at the evidentiary hearing, Petitioner “specifically denied that she did CPR ‘hard' enough to cause A.S.'s abdominal injuries.” Doc. No. 250 at 116 n.55. Dr. Ophoven's report provides:

The[] medical examiner at the trial also referenced an injury to the duodenum region and hypothesized that this injury could have been caused by a punch to the abdomen. This injury played no role in causing the death of the child and was most likely an injury caused when Ms.

Moore performed CPR on the child. The area of the bowel with the bleeding lies right over the vertebral column immediately underneath the area Ms. Moore indicated she applied two-handed pressure. The procedure would compress the bowel between her hands and the underlying bone and fully explains the findings. There was no evidence of serious abdominal trauma indicating the classic findings observed in blunt force abusive trauma to the abdomen.

Doc. No. 88-31 at 3-4 n.1. At the evidentiary hearing, Petitioner testified, “I don't believe I did it that hard to cause that kind of damage.... But I don't know. I was scared.” Tr. March 5, 2015 at 144. Clearly, Petitioner's testimony does not negate, nor otherwise undermine, Dr. Ophoven's opinion in this regard. Respondent's argument to the contrary is without merit.

Respondent also argues Petitioner cannot rely on her expert witnesses now to prove prejudice because she “agreed” to bifurcation in state court, allowing the parties to present evidence as to the first prong of Strickland and then only proceeding to the prejudice prong if successful. “In consenting to this arrangement, Petitioner ultimately consented to not presenting her alleged newly discovered evidence of the medical doctors and their opinions in State court. Having failed to present the doctors so that their credibility might be tested, Petitioner should not be permitted now to hide behind the law of the case doctrine.” Doc. No. 250 at 117 n.55. Not surprisingly, Respondent cites no authority to support this assertion and the Court finds this argument unavailing.

Under the circumstances of the evidentiary proceedings, merely agreeing to an expedient litigation schedule does not constitute a party's waiver of the remaining issues in future proceedings.³⁵ Moreover, as Respondent is aware, having ruled Petitioner met the “actual innocence” threshold, this Court is permitted to consider claims not previously presented to the state court.

35 This is especially true where limited to only the first prong of Petitioner's Strickland claim and her conflict of interest claim, the state district court proceedings took almost six years to complete.

Relying on Littlejohn v. Royal, 875 F.3d 548 (10th Cir. 2017), Respondent also argues that “the evidentiary hearing included overwhelming evidence, and undisputed factual findings, that minority view experts like Petitioner's habeas experts suffer from some credibility problems.” Doc. No. 250 at 117 n.55. Respondent accurately describes the holding of Littlejohn as “finding lack of prejudice [under Strickland] based on counsel's failure to present expert testimony from Dr. Manual Saint Martin regarding brain damage where, inter alia, ‘the prosecution could have cast doubt on Dr. Saint Martin's diagnosis, as well as painted Mr. Littlejohn as a liar, based on Mr. Littlejohn's documented efforts to manipulate mental-health experts.'” Doc. No. 250 at 117 n. 55 (quoting Littlejohn, 875 F.3d at 565-66). Unlike Littlejohn, there is nothing in the record suggesting bad acts/behavior on the part of Petitioner with regard to her experts and Respondent has not presented any evidence that casts doubt on her experts' opinions. Respondent's disagreement with their opinions does not undermine their credibility. Further, as discussed above, Respondent's attempts to challenge one expert's conclusions based on the credibility of other witnesses falls short.

As established, the defense did not attempt to hire any expert witness, minority view or otherwise, until less than two weeks before trial and did not have time to make such an attempt after contacting Dr. May so late in the criminal proceedings. However, it is worth noting that one portion of the transcripts upon which Respondent relies is the testimony of Robert Estrada, a Texas attorney who had represented a defendant in a high profile shaken impact case in or around 2003 and that defendant received a plea deal of deferred adjudication. Tr. April 14, 2015 at 8, 10, 20-21. Mr. Estrada testified that while the necessary expert in 2005 would have been in the minority view, he had been able to hire a credible expert in 2003. Id. at 16-18. Additionally, he testified that multiple resources were available in 2005 to find such experts. Id. at 18.

Thus, Respondent's only substantive challenge to Petitioner's expert witnesses is that they represent the minority view in this area. But, Respondent has not cited to any law indicating that positing a minority view inherently means that a jury will not find that view credible in a particular case.³⁶

36 It is notable, though not determinative, that as illustrated in the case law discussed herein, the opinions of Plaintiff's experts represent less of a minority within the medical field than in the past.

The Court concludes Mr. Funderburk's deficient performance prejudiced Petitioner. The evidence presented by Petitioner's expert witnesses indicates A.S.'s fatal injury occurred prior to January 13, 2004. Had this evidence been presented at trial, Petitioner could have challenged the opinions of Drs. Korber, Griggs, and Choi that A.S.'s death was caused by injuries incurred immediately prior to his collapse. The Court cannot conclude that such evidence would not have been persuasive.

According to the case law discussed herein, an expert testifying even as early as 2005, once his or her opinion was challenged on cross-examination, could have cited to numerous scientific studies supporting their opinions regarding short falls and traumatic head injuries. Epps, 53 N.E.3d at 1260-61 n.15-18. If a defense expert had caused the jury to doubt whether A.S.'s fatal injuries occurred immediately prior to his collapse on January 13, 2004, the jurors may have then questioned whether the State had eliminated the possibility that A.S.'s death was the result of other health conditions or accidental injuries incurred prior to that date. If the jury had been presented with the testimony of Petitioner's experts, as well as the evidence regarding A.S.'s previous falls, significant developmental delays, and lethargy in the week preceding his death, there is a reasonable probability that Petitioner's case would have had a different result.

The Court finds Petitioner has satisfied Strickland's prejudicial prong establishing ineffective assistance of counsel. Accordingly, the Court should grant Petitioner's request for a writ of habeas corpus.

RECOMMENDATION

Based on the foregoing findings, it is recommended that Petitioner's Second Amended Petition for Writ of Habeas Corpus be GRANTED. It is further recommended that the Writ of Habeas Corpus be issued, unless within ninety (90) days of the entry of an Order adopting this Supplemental Report and Recommendation, the State grants Petitioner a new trial or, in the alternative, orders her permanent release from custody.

The parties are advised of their right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by April 12^th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.