Capital Habeas Petitioner Granted Evidentiary Hearing on IAC Claim

Littlejohn v. Trammell, -- F.3d --, 2013 WL 64372 (10th Cir. 1/7/13) (Okla.) - In an Oklahoma state death penalty case, the Tenth reverses the district court's denial of habeas relief on Littlejohn's Ineffective Assistance of Counsel (IAC) claim and directs the district court to conduct an evidentiary hearing and to reconsider the merits of his IAC and cumulative error claims. He contends that his counsel on resentencing failed to adequately investigate evidence of organic brain damage. The Tenth finds there were patent red flags pointing to a possible physiological explanation for Littlejohn's violent and anti-social behavior and such evidence can be of considerable importance to a capital sentencing jury. There is a reasonable probability that such evidence would have led at least one juror to support a sentence less than death. The facts alleged would, if true, entitle Littlejohn to relief. Because the state court did not adjudicate the IAC claim on the merits, a federal evidentiary hearing could properly be used to develop the factual basis for his claim. The State did not argue that Mr. Littlejohn failed to exercise diligence in seeking previously to develop the factual basis for his claim. His request for an evidentiary hearing meets the less rigorous pre-AEDPA standard.