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Click here for the full text of this decision FACTS:The petitioner, Douglas Alan Roberts, seeks a certificate of appealability on his claims that his attorney rendered ineffective assistance in his Texas death penalty trial, wherein he was convicted of capital murder and sentenced to death. HOLDING:Granted. Roberts first argues that Pickell failed to hire an investigator or contact and interview witnesses for trial including Roberts’ family members about testifying at the punishment phases of the trial concerning his rough childhood, battles with depression and possible brain damage. Largely based on the affidavit submitted by Pickell, the state habeas court determined that Roberts was competent to instruct his counsel on trial strategy. Subsequent to the state habeas hearing, Roberts’s discovered that Pickell’s affidavit was a virtual carbon copy of an affidavit that the attorney had submitted in a different case. In the federal district court, Roberts submitted the affidavit from the other case as new evidence challenging the presumption that the state habeas court’s factual conclusion that Roberts was competent to direct his trial strategy was correct. The district court did not review the evidence, deferring to the state habeas court’s factual determination that Roberts was competent. the district court should have considered this new evidence in determining whether to accept the state habeas court’s factual determinations. The relevant concern is whether Pickell accurately described his impressions of Roberts and whether his conclusions as to Roberts’ competence were based in fact and were genuine. Roberts presents no evidence challenging either the veracity or the ultimate accuracy of Pickell’s descriptions or conclusions. He only challenges Pickell’s choice of language. This is not enough to rebut the presumption of correctness of the state habeas court’s determination as to Roberts’ competence as there is no new evidence suggesting its determination is inaccurate. As the state habeas court found that Roberts was competent to direct trial strategy, Roberts cannot sustain a Stricklandclaim as he instructed his attorney to do the very thing he now claims demonstrates counsel was ineffective. Thus Roberts’ claim that Pickell was ineffective for failing to hire an investigator and contact and interview witnesses for trial including Roberts’s family members about testifying at the punishment phase of Roberts’s trial fails as a matter of law, and jurists of reason would not find this determination debatable. Roberts also argues that Pickell was deficient for failing to properly develop evidence of Roberts’s mental illness. Pickell’s affidavit, provided to the state habeas court, indicates that, prior to trial, he was aware of Roberts’ “previous hospitalization for psychiatric problems” following a “suicide attempt.” Yet, even though he was aware that Roberts had previously been admitted for treatment at a psychiatric institution, he did not request or obtain the record of that hospitalization. Where, as here, counsel is aware of the client’s history of mental problems, the reasonableness of a decision made by counsel not to investigate that history is suspect. Thus, it is at least debatable that Pickell violated his duty to make a reasonable investigation by failing to obtain � and investigate the content of � the record of Roberts’s treatment for “suicide ideation.” Considering Pickell presented no evidence of Roberts’ life history, and there is evidence that he suffered from head injuries and mental disease, the reliability of the jury’s determination as to Roberts’s culpability is, at best, questionable, and thus a reasonable jurist could debate whether Roberts has demonstrated prejudice. OPINION:Garza, J.; Davis, Wiener and Garza, JJ.

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