from the United States District Court for the Eastern
District of Oklahoma (D.C. Nos. 6:10-CV-00115-RAW and
Labovitz, Assistant Federal Defender (Katherine Ensler,
Assistant Federal Defender, with him on the briefs), Capital
Habeas Unit, Federal Community Defender Office for the
Eastern District of Pennsylvania, Philadelphia, Pennsylvania,
appearing for Appellant.
Jeffrey B. Kahan, Deputy Chief, Capital Case Section, United
States Department of Justice, Washington, DC (Brian A.
Benczkowski, Assistant Attorney General, United States
Department of Justice, Washington, DC; Brian J. Kuester,
United States Attorney, Christopher J. Wilson, Assistant
United States Attorney, and Linda Epperley, Assistant United
States Attorney, Office of the United States Attorney for the
Eastern District of Oklahoma, Muskogee, Oklahoma, with him on
the brief), appearing for Appellee.
BRISCOE, McHUGH, and CARSON, Circuit Judges.
BRISCOE, Circuit Judge.
a federal death penalty case arising from two murders
committed in a national forest in Oklahoma. Petitioner Edward
Leon Fields pleaded guilty in federal court to two counts of
first degree murder, two counts of using a firearm during a
federal crime of violence causing the death of a person, and
two counts of assimilative crime. Fields was sentenced,
following a penalty phase proceeding before a jury, to death
on each of the two murder convictions, and to significant
terms of imprisonment on each of the remaining convictions.
completing the direct appeal process, Fields initiated these
proceedings by filing a motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255. The
district court denied Fields's petition, and also denied
him a certificate of appealability (COA). We subsequently
granted Fields a COA with respect to four issues. Now,
exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm in part, reverse in part, and remand to the district
court with directions to conduct an evidentiary hearing on
Fields's claim that his trial counsel was ineffective for
failing to adequately investigate and present at trial
evidence of his organic brain damage.
previously, in addressing Fields's direct appeal,
outlined the underlying facts of Fields's crimes:
Edward Leon Fields killed Charles and Shirley Chick at the
Winding Stair Campground in the Ouachita National Forest on
July 10, 2003. He had seen the couple there days earlier and
drove there the evening of July 10 with a homemade ghillie
suit (a covering for head and body made to resemble
underbrush that Fields referred to as his sniper suit) and a
camouflaged and powerfully scoped rifle in his truck. He
found the Chicks on a vista some distance from their
campsite. He retrieved the rifle, put on the ghillie suit,
and hid near their campsite as it grew dark. In time, the
Chicks came back to the campsite and sat at a table. Fields
waited and watched them for about twenty minutes. When
Charles told Shirley he was going to the tent, Fields shot
him in the face. As Charles slumped to the table, Shirley got
up and began running toward the couple's van. Fields shot
at her and a bullet tore through her foot. She reached the
passenger door of the van, but was shot again, on the side of
her head. Fields caught up and shot her once more, in the
back of the head, in the doorway of the van. Shirley died as
a result of both head wounds. Fields returned to the table
and shot Charles a second time in the head. Charles also died
as a result of both of his wounds.
Physical evidence indicated that Fields then left the
campsite and only returned hours later, when he broke the
driver's window of the van and stole some items. He
rummaged through only the driver's area of the van; the
rest of the van and the Chicks' tent were untouched. A
tip eventually led police to Fields'[s] truck, where they
found the rifle, the ghillie suit, and some of the items
stolen from the Chicks' van. In the meantime, Fields had
been taken in for questioning. He initially denied any
connection to the crime, but confessed when confronted with
the evidence taken from his truck.
United States v. Fields, 516 F.3d 923, 927 (10th
Cir. 2008) (Fields I).
trial proceedings and sentencing
August 1, 2003, a federal grand jury in the Eastern District
of Oklahoma returned a six-count indictment charging Fields
with: two counts of first degree murder (Counts 1 and 3), in
violation 18 U.S.C. §§ 1111(a) and (b), 7(3) and
13; two counts of use of a firearm in a federal crime of
violence causing the death of a person (Counts 2 and 4), in
violation of 18 U.S.C. §§ 924(c)(1)(A), (d), (j),
7(3) and 13; one count of assimilative crime - robbery with a
firearm (Count 5), in violation of 18 U.S.C. §§
7(3) and 13; and one count of assimilative crime - burglary
of an automobile (count 6), in violation of 18 U.S.C.
§§ 7(3) and 13.
30, 2005, Fields entered pleas of guilty as to all six counts
alleged in the indictment. Shortly thereafter, the district
court began death penalty qualification of potential jurors.
On July 13, 2005, the penalty phase proceeding, which was
conducted pursuant to the Federal Death Penalty Act of 1994
(FDPA), began. "At the conclusion of the proceeding, the
jury determined that Fields was eligible for a death sentence
under §§ 3591(a)(2) and 3593(e)(2) by finding,
unanimously and beyond a reasonable doubt, (1) that he
possessed the requisite homicidal intent, and (2) the
presence of one (here, two) statutorily defined aggravating
factors ('statutory aggravators'): substantial
planning and premeditation to cause death (§
3592(c)(9)), and multiple intentional killings committed in a
single episode (§ 3592(c)(16))." Fields I,
516 F.3d at 927.
jury then turned to the ad hoc non-statutory aggravators
framed and formally noticed by the government under §
3593(a)." Id. "The jury found, again
unanimously and beyond a reasonable doubt, that Fields (1)
posed a future danger to the lives and safety of other
persons; (2) caused permanent loss to Charles Chick's
family, friends, and community; (3) caused permanent loss to
Shirley Chick's family, friends, and community; and (4)
inflicted mental anguish on Shirley Chick before her
death." Id. at 927-28.
the jury considered a host of mitigating factors offered by
the defense" and made a number of findings. Id.
At least one juror found, by the required preponderance of
the evidence, that (1) Fields did not have a significant
prior criminal history; (2) Fields served in and was
honorably discharged from the Navy; (3) Fields had worked as
a state prison guard; (4) Fields has special talents in
cooking, art, and computers; (5) Fields is a loved father;
(6) Fields is a loved brother; (7) Fields is a loved son; (8)
Fields is a valued friend; (9) Fields'[s] father died
months before the offenses; (10) Fields'[s] mother moved
away weeks before the offenses; (11) Fields'[s] ex-wife
and their children moved away months before the offenses;
(12) Fields'[s] ex-wife recently had cancer that may or
may not be in remission; (13) Fields'[s] death will
impact his children, family, and friends; (14) Fields
cooperated with authorities after his arrest; (15) Fields
confessed to the crimes; (16) Fields pled guilty to the
crimes; and (17) Fields sought treatment for mental illness.
All jurors, however, rejected several mitigators, including
that (1) Fields'[s] capacity to appreciate the
wrongfulness of his conduct and conform his conduct to the
law was significantly impaired; (2) Fields committed the
offenses under severe mental or emotional disturbance; (3)
Fields expressed remorse for the crimes; and (4) Fields will
not present a future danger to society by being imprisoned
for life without possibility of release.
pursuant to § 3593(e), the jury weighed all of the
aggravating and mitigating factors to determine whether the
aggravators sufficiently outweighed the mitigators to justify
a sentence of death." Id. "The jury
concluded, unanimously, that they did." Id.
"Thereafter, the district court imposed death sentences
on both murder counts." Id.
November 8, 2005, the district court sentenced Fields to
death on Counts 1 and 3, 405 months on Counts 2 and 4, to be
served consecutively to one another and consecutively to any
other term of imprisonment imposed, 405 months on Count 5,
and 84 months on Count 6.
filed a direct appeal asserting thirteen propositions of
error. These included a challenge to "the jurisdictional
basis for his federal conviction, which [wa]s a matter not
waived by his guilty plea," and "many other
objections with respect to the sentencing proceeding."
Id. On February 28, 2005, we issued a published
opinion "conclud[ing] that federal jurisdiction was
properly exercised and that no reversible error occurred in
the proceedings." Id.
filed a petition for writ of certiorari with the United
States Supreme Court. That petition was denied on April 6,
2009. Fields v. United States, 556 U.S. 1167 (2009).
§ 2255 proceedings
April 6, 2010, Fields, through appointed counsel, initiated
these proceedings by filing a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. The
motion asserted nine general grounds for relief, as well as
October 2015, following years of extensive discovery, Fields
filed an amended brief in support of his § 2255 motion,
and the government in turn filed a motion for summary
December 15, 2016, the district court issued an opinion and
order denying Fields's § 2255 motion in its
entirety. The district court entered final judgment on that
filed a motion to alter or amend the judgment. The district
court denied that motion.
filed a timely notice of appeal. A judge of this court
subsequently issued an order granting Fields a COA on four
issues that we shall proceed to address.
Section 2255(a) provides as follows:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a).
a general rule, federal prisoners may not use a motion under
28 U.S.C. § 2255 to relitigate a claim that was
previously rejected on direct appeal." Foster v.
Chatman, 136 S.Ct. 1737, 1758 (2016). Instead, relief
under § 2255 is generally confined to situations where
(a) the "convictions and sentences [were] entered by a
court without jurisdiction," (b) the sentence imposed
was outside of the statutory limits, (c) a constitutional
error occurred, or (d) a non-constitutional error of law or
an error of fact occurred that constituted a fundamental
defect which inherently resulted in a complete miscarriage of
justice, i.e., that rendered the entire proceeding irregular
and invalid. United States v. Addonizio, 442 U.S.
178, 185-186 (1979).
2255(b) states, in pertinent part, that "[u]nless the
 motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the [district] court shall . . . grant a prompt hearing
thereon, determine the issues and make findings of fact and
conclusions of law with respect thereto." The Supreme
Court has interpreted this statutory language to mean that a
hearing is unnecessary in those instances (a) "where the
issues raised by the motion were conclusively determined
either by the motion itself or by the 'files and
records' in the trial court," or (b) where the
motion alleges circumstances "of a kind that the
District Judge could completely resolve by drawing upon his
own personal knowledge or recollection." Machibroda
v. United States, 368 U.S. 487, 494-95 (1962).
In contrast, where "[t]he factual allegations contained
in the petitioner's motion and affidavit" are
"put in issue by the affidavit filed with the
Government's response" and "relate primarily
to purported occurrences outside the courtroom and upon which
the record could . . . cast no real light," a hearing is
required under the statute. Id.
appeal from the denial of a § 2255 motion, ordinarily we
review the district court's findings of fact for clear
error and its conclusions of law de novo." United
States v. Barrett, 797 F.3d 1207, 1213 (10th
Cir. 2015) (quotations omitted). "Where, as here, the
district court does not hold an evidentiary hearing, . . .
our review is strictly de novo." Id.
(quotations and brackets omitted). That "review proceeds
in two steps." United States v.
Herring, 935 F.3d 1102, 1107 (10th Cir. 2019).
"First, we ask whether the defendant's allegations,
if proved, would entitle him to relief, an inquiry we conduct
de novo." Id. (citations omitted). "If so,
we then determine whether the denial of the evidentiary
hearing constituted an abuse of discretion."
One - ineffective assistance of trial counsel for failing to
adequately investigate and present evidence of Fields's
organic brain damage
first issue on appeal, Fields argues that the district court
abused its discretion by failing to conduct an evidentiary
hearing on his claim that his trial counsel was ineffective
for failing to investigate and present evidence of
Fields's organic brain damage. To resolve this claim, we
begin by outlining the legal standards that are applicable to
the claim. We then review Fields's allegations of
ineffective assistance and determine whether, if proved, they
would entitle him to relief under the applicable legal
standards. Finally, we review the evidence presented by both
parties that is relevant to the claim and determine whether
the district court abused its discretion by rejecting the
claim without benefit of an evidentiary hearing. Given the
applicable legal standards, we separate this final portion of
our analysis into two components: whether trial counsel's
performance was deficient and whether Fields was prejudiced
by the allegedly deficient performance. As we shall proceed
to explain, we ultimately conclude that the district court
abused its discretion by failing to conduct an evidentiary
hearing on both of these components, and therefore remand the
case to the district court to conduct an evidentiary hearing
on Fields's claim.
Law applicable to Fields's claim
seminal Supreme Court case addressing claims of ineffective
assistance of counsel is Strickland v. Washington,
466 U.S. 668 (1984). In Strickland, the Court held
that "[a] convicted defendant's claim that
counsel's assistance was so defective as to require
reversal of a conviction or death sentence has two
components." Id. at 687. "First," the
Court held, "the defendant must show that counsel's
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as
the 'counsel' guaranteed by the Sixth
Amendment." Id. "Second," the Court
held, "the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable." Id. "Unless a defendant makes
both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process
that renders the result unreliable." Id.
Fields's allegations of ineffective assistance regarding
evidence of organic brain damage
alleged in his amended § 2255 motion that, "[a]t
the time of the offenses," he "suffered from
organic brain damage." ROA, Vol. 11 at 36. He further
alleged that his "[t]rial counsel failed to discover the
full extent of his brain damage because they arranged for
[him] to receive only limited neuropsychological testing and
then, after that testing indicated frontal lobe dysfunction,
they ignored their neuropsychologist's recommendation to
conduct further testing." Id. Fields alleged
that even the limited neuropsychological testing that was
actually performed "showed that [his] frontal lobes were
impaired" and "[t]hese impairments affected his
executive functioning in areas such as judgment and impulse
control." Id. Fields alleged that
"[e]vidence of this damage would have been mitigating in
its own right and also would have bolstered the defense that
[he] experienced a manic flip at the time of the
offenses." Id. Fields in turn alleged that
"[b]ecause [his] trial counsel did not fully investigate
and discover this brain damage, the jury never heard this
crucial mitigating mental health evidence." Id.
at 36-37. Lastly, Fields alleged that, "[h]ad the jury
known that [he] suffered from organic brain damage, there is
a reasonable likelihood that the jury's verdict would
have been different." Id. at 50.
these allegations in light of the applicable legal standards
outlined in Strickland, we have little trouble
concluding that the allegations, if ultimately proven by
Fields, would entitle him to federal habeas relief from his
sentence. Therefore, we proceed to review the evidence that
was submitted by the parties in support of and in opposition
to these allegations.
The performance prong of the Strickland test
begin by outlining the evidence relevant to the issue of
trial counsel's performance. This includes evidence
contained in the record of the trial proceedings, as well as
extra-record evidence obtained by Fields and presented in
support of his § 2255 motion, including a
post-conviction declaration from Fields's lead trial
requires a reviewing court to 'determine whether, in
light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally
competent assistance.'" Kimmelman v.
Morrison, 477 U.S. 365, 386 (1986) (quoting
Strickland, 477 U.S. at 690). The Supreme Court
emphasized in Strickland that "[t]here are
countless ways to provide effective assistance in any given
case." 466 U.S. at 689. Consequently, Fields "must
overcome the strong presumption that [his] counsel's
conduct falls within the wide range of reasonable
professional assistance." United States v.
Sanders, 372 F.3d 1183, 1185 (10th Cir. 2004). In
determining whether Fields has overcome this strong
presumption, we must consider "counsel's overall
performance, before and at trial," and not focus
exclusively on the "particular [alleged] act or
omission" giving rise to the claim of ineffective
assistance. Kimmelman, 477 U.S. at 386.
lead trial attorney was Julia O'Connell, who at that time
was an assistant federal public defender in the Northern and
Eastern Districts of Oklahoma. O'Connell was assisted by
three other attorneys: Isaiah Gant, a federal public defender
from Nashville, Tennessee, and Michael Able and Barry
Derryberry, both of whom worked in O'Connell's
2004, O'Connell retained neuropsychologist Dr. Michael
Gelbort "to conduct a forensic neuropsychological
evaluation of . . . Fields." ROA, Vol. 11 at 504.
Gelbort "met with . . . Fields on August 11, 2004 at the
Muskogee County Jail," "conducted a clinical
interview[, ] and administered a battery of
neuropsychological tests." Id. at 505. Based on
the interview and testing, Gelbort concluded that
"Fields suffer[ed] from brain dysfunction and cognitive
impairments . . . focused in the frontal lobes."
Id. "Frontal lobe damage," according to
Gelbort, "is well-known to adversely impact executive
function, which acts in part as the 'brakes' for a
person's actions." Id. at 506. The deficits
caused by this frontal lobe damage, according to Gelbort,
"impact[ed] [Fields's] ability to think in a
logical, adaptive and goal-directed manner" and
"also affect[ed] his social
functioning." Id. at 507.
"relayed [his] preliminary finding of brain dysfunction
focused on the frontal lobe to Ms. O'Connell on August
24, 2004." Id. Gelbort "provided a
preliminary report to . . . O'Connell on November 10,
2004," and "provided an updated report to [her] on
March 8, 2005." Id. Gelbort concluded, in
pertinent part, that Fields "display[ed] a pattern often
found in individuals with frontal lobe or non-dominant
hemisphere neurocognitive dysfunction and brain damage with
further evaluation warranted." ROA, Vol. 9 at 227.
2005, O'Connell asked Gelbort if he "could do
additional testing" of Fields, and Gelbort responded by
asking "what kind of additional testing [she] wanted
[him] to conduct." ROA, Vol. 11 at 507. According to
Gelbort, "[h]ad [O'Connell] followed up and asked
[him] to conduct additional neuropsychological testing, [he]
would have told [her] it was unnecessary and would have
instead suggested that a qualified expert conduct medical
testing such as PET scan or EEG to analyze . . . Fields's
brain from a physical standpoint." Id. Gelbort
alleges that O'Connell never got back to him on this
issue. Id. O'Connell alleges in her
post-conviction declaration that she "can offer no
tactical or strategic reason for not having the additional
testing performed" by Gelbort. Id. at 164.
June 19, 2005, . . . O'Connell requested [Gelbort's]
final report, which [he] provided to her." Id.
"On July 1, 2005, . . . O'Connell informed [Gelbort]
that she would need [him] to testify at trial and that the
defense case could begin as early as July 18, 2005."
Id. at 508. On July 3, 2005, O'Connell
"sent . . . Gelbort a contract to cover his anticipated
testimony" and "informed him [again] that he would
be needed to testify around July 18, 200, and also would
be needed to consult ...