William Anthony Lipham was convicted of malice murder, rape, armed robbery, and burglary in 1987, and sentenced to death for the murder. This Court affirmed Lipham's convictions and death sentence in 1988, Lipham v. State, 257 Ga. 808 (364 SE2d 840) (1988), and the United States Supreme Court denied certiorari. Lipham v. Georgia, 488 U. S. 873 (109 SC 191, 102 LE2d 160) (1988). Lipham filed his original petition for a writ of habeas corpus in 1989 and amended his petition in 1990 and 1992. The habeas court issued an order on October 29, 1993, and amended it the following day. This amended order denied all of Lipham's claims except for ineffective assistance of counsel. A ruling on the ineffective assistance of counsel issue was reserved pending an evidentiary hearing scheduled for December 1993. Before the December 1993 evidentiary hearing, Lipham filed another amended habeas petition which raised five additional claims. The habeas court issued a final order in December 1997 which affirmed Lipham's convictions but vacated his death sentence due to ineffective assistance of counsel in the sentencing phase of his trial. The habeas court never addressed the additional claims raised in Lipham's last amended petition. The State appeals the vacation of the death sentence, Case No. S98A0724, and Lipham cross-appeals, Case No. S98X0770. We affirm in part and remand in part.

Claims That Are Barred

Claims That Are Defaulted

2. A habeas petitioner who fails to raise an issue that he could have raised on direct appeal defaults the issue on habeas corpus, unless he can meet the cause and prejudice test.

[A] failure to make timely objection to any alleged error or deficiency or to pursue the same on appeal ordinarily will preclude review by writ of habeas corpus. However, an otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there shall be a showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.

Black v. Hardin, 255 Ga. 239, 240 (4) (336 SE2d 754) (1985); see also OCGA 9-14-48 (d). To show cause, Lipham must demonstrate that " 'some objective factor external to the defense impeded counsel's efforts' to raise the claim that has been procedurally defaulted." Turpin v. Todd, 268 Ga. 820, 825 (493 SE2d 900) (1997), quoting Murray v. Carrier, 477 U. S. 478, 488 (106 SC 2639, 91 LE2d 397) (1986). To show prejudice, he must demonstrate actual prejudice that " 'worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.' " Turpin, supra at 828, quoting United States v. Frady, 456 U. S. 152, 170 (102 SC 1584, 71 LE2d 816) (1982). The only exception to the cause and prejudice test is the granting of habeas corpus relief to avoid a "miscarriage of justice," which is an extremely high standard. See Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325 SE2d 370) (1985) ("miscarriage of justice" approaches the situation where the State is imprisoning the wrong person due to mistaken identity).

Lipham raised the following claims for the first time on habeas corpus: the constitutionality of the Unified Appeal Procedure; the constitutionality of OCGA 17-10-30; double jeopardy arising from his malice murder and armed robbery convictions; the trial court allowing the jury to see a copy of the indictment that included a list of the grand jurors; improper voir dire; erroneous jury instructions; prosecutorial misconduct during the trial; the trial court sentencing Lipham for his crimes other than murder without the benefit of a presentence report; arbitrary discretion by the prosecutor in his decision to seek the death penalty; the mental problems of the defendant precluding his execution on Eighth Amendment grounds; the failure of the prosecution to reveal mitigating information to the defendant; the introduction of an invalid prior felony conviction for impeachment purposes; and the voluntariness of Lipham's inculpatory statement. These claims could have been raised on direct appeal, and Lipham has not shown sufficient cause to overcome his procedural default. The habeas court thus correctly ruled that these claims are procedurally defaulted. Black, supra.

Ineffective Assistance of Counsel

3. Lipham's claim of ineffective assistance of counsel is neither barred nor defaulted. An ineffective assistance of counsel claim does not need to be raised until trial counsel no longer represents the defendant. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991). The record shows that Lipham's trial counsel represented him through his direct appeal, and after trial counsel ceased their representation habeas counsel raised this claim at the first available post-conviction opportunity. See id. Therefore, ineffective assistance of counsel is a viable claim.

In order to prevail, Lipham must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). To show deficient performance, he must demonstrate that trial counsel's performance was not reasonable under the circumstances confronting them before and during the trial, without resorting to hindsight. Strickland, supra at 689-690; Smith, supra. Lipham's burden is high because trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra at 690. To show actual prejudice, Lipham must demonstrate that "there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Smith, supra.

In its December 1997 final order, the habeas court ruled that Lipham's trial counsel had been ineffective in the sentencing phase due to "a total failure . . . to read, review, interpret, or otherwise utilize the voluminous social and psychological records concerning their client." Lipham spent nine years, from age nine to eighteen, in various institutions including a children's home and mental hospitals.

Trial counsel had approximately 2,500 pages of medical, psychological and social records from the Department of Family and Children Services ("DFACS") and the Anneewakee Treatment Center for use at trial. They used two records custodians to introduce the records into evidence, but presented virtually no testimony to explain or distill the records. They presented only one other mitigation witness, the defendant's wife, who briefly pleaded for mercy.

Trial counsel then made a few references to the records in closing argument, stated that Lipham's life had come down to "this stack of papers," and exhorted the jury to read the pile of documents during their deliberations. According to the habeas court, the "cavalier" fashion with which trial counsel used evidence that might reduce the culpability of the defendant for his crimes was defective representation and the records, if properly utilized, would have created a high probability of a sentence less than death. The habeas court therefore vacated the death sentence. With regard to the guilt/innocence phase, the habeas court ruled that the evidence of Lipham's guilt was overwhelming and denied him relief from his convictions.

A claim of ineffective assistance of counsel is a mixed question of law and fact. Strickland, 466 U. S. at 698; Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993). The proper standard of review requires that we accept the habeas court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Linares v. State, 266 Ga. 812, 813 (2) (471 SE2d 208) (1996). We affirm the habeas court's ruling upholding Lipham's convictions because he did not show actual prejudice even if his representation was defective. We also affirm the habeas court's vacation of the death sentence because of trial counsel's inadequate investigation and presentation of the mitigation evidence.

A. The guilt/innocence phase.

Pretermitting the question of defective representation, we find that the habeas court did not err by ruling that Lipham did not show actual prejudice with regard to his convictions. See Strickland, 466 U. S. at 697 (courts need not consider trial counsel's performance on an ineffectiveness claim if no actual prejudice can be shown from counsel's alleged errors).

The evidence adduced at trial showed that Lipham entered the home of a 79-year-old woman on the night of December 4-5, 1985. He raped her, killed her, and took some jewelry from her. Lipham, 257 Ga. at 808-810. A friend testified that he dropped Lipham off near the victim's house on the night of the murder, and a neighbor of the victim testified that she saw Lipham (who was a stranger) that night in her kitchen. The neighbor's son, who is much bigger than Lipham, told him to leave.

The police recovered a .25 caliber pistol that Lipham sold to his brother after the murder; this pistol was determined to be the murder weapon. Witnesses saw Lipham with this pistol before and after the murder; one of the witnesses also testified that she saw Lipham carrying a small bag of jewelry on the morning after the murder and heard him say, "Not bad for a night's work." A pubic hair found in the victim's bedroom was consistent with Lipham's.

Lipham confessed that he entered and ransacked the victim's house, but he claimed that another person had used his gun to kill the victim while he was in the victim's bathroom. No witnesses saw this second person with Lipham that night (or any night). We conclude that Lipham did not show a reasonable probability that, but for trial counsel's alleged errors, he would not have been convicted of the crimes charged. See Smith, 253 Ga. at 783 (1). We therefore affirm the habeas court's ruling on Lipham's convictions.

B. The penalty phase.

Steve Fanning and Ike Hudson were appointed to represent Lipham and they represented him through his trial and direct appeal. For a few months, a lawyer from New York, Michael Dowd, assisted Fanning and Hudson, but the trial court would not appoint Dowd as lead counsel and Dowd then refused to participate further in the case. 1

Fanning and Hudson are experienced criminal defense attorneys, and Fanning was appointed lead counsel. He is a charter member of the Georgia Association of Criminal Defense Lawyers and, at the time of Lipham's trial, had tried approximately 150 felony cases, including six murder cases. Fanning had never tried a death penalty case, but he had tried felony cases when there was jury sentencing and thus was familiar with presenting a mitigation case. Fanning & Hudson divided up the trial responsibilities: Fanning was primarily responsible for the guilt/innocence phase and Hudson was primarily responsible for the sentencing phase.

1) The mitigation investigation.

Trial counsel 2 were able to obtain Lipham's DFACS records and Anneewakee records but they did not use a psychologist to examine them. Instead, Hudson asked one of his friends, a family counselor named Leslie Van Toole, to do him a favor and look at the records. According to trial counsel, Van Toole reported that the records could both help and hurt the defendant: on one hand, they showed that Lipham had a childhood filled with abuse and neglect; on the other hand, they chronicled Lipham's violent, antisocial behavior from an early age. Van Toole also reported that the records showed that Lipham was not insane or incompetent. Michael Dowd had a psychiatrist, Dr. Schiffman, examine Lipham for competency and insanity and he also reported that Lipham was sane and competent. 3 Based on the determination of competency and sanity and the two-edged nature of the institutional records, trial counsel decided not to hire a psychologist.

The social and psychological records from Anneewakee and DFACS chronicle Lipham's difficult childhood. Lipham is one of fourteen children born to Hugh and Aline Lipham. Neither of Lipham's parents had more than a sixth grade education; Aline married Hugh when she was only eleven years old. DFACS social records show that Lipham's parents were violent alcoholics who physically abused the children and each other. The family was extremely poor and the Lipham children were severely neglected. A DFACS caseworker reported that the children were malnourished and dirty, and that housekeeping standards were at "the lowest level."

DFACS records further show that Lipham's mother did not bathe or clothe the children, and that, once the children were older than infants, she neither disciplined them nor spent much time with them. There was a suggestion that Aline Lipham worked as a prostitute when her husband, a truck driver, was out of town. According to the records, Lipham was not encouraged to do well in school. None of Lipham's older siblings graduated from high school and most had been in youth detention. At an early age, Lipham was following the same path and was reported to have a problem with fighting and acting out. State authorities became involved in the situation but Lipham's parents did not cooperate with DFACS and refused to take responsibility for their actions.

In 1972, when Lipham was nine years old, the state intervened and removed all eight minor children from the Lipham household. The younger children were placed for adoption and the older children, including Lipham, were placed in various foster homes and institutions until they became adults. Lipham never saw some of his siblings again and rarely saw any of them. Lipham's parents effectively abandoned him to the state and made no serious attempt at a reunion. Lipham and his brother Gene were sent to the Anne Elizabeth Shepard Home in Columbus.

By this time, Lipham had severe behavioral problems. He was reported by DFACS to be violent towards the staff and other children, bullying the younger children and antagonizing the older children until they fought with him. In fact, the older children became so exasperated by Lipham's disruptive behavior that they convened a "kangaroo court" and beat him with belts as punishment. An attempt to place Lipham with a foster family failed when he beat the foster couple's son.

Lipham was sexually aggressive to other children and even to animals. A report indicates that he once prostituted himself to an adult male. During this time at the Shepard Home, Lipham was struck in the head by a baseball bat (apparently by his brother Gene) and injured. Notes made by social workers and psychologists at the time indicate their concern over Lipham's future. One report warns that, if Lipham is not cured of this behavior, he is headed "toward a life of destruction and violence." A psychological examination conducted when Lipham was eleven years old reveals a "very deprived child who is about to become institutionalized."

In March 1975, Lipham was admitted to Central State Hospital and in June of that year he was admitted to West Georgia Regional Hospital. Both are mental hospitals. Lipham continued to have problems with fighting and misbehaving. In his discharge summary from West Georgia, it was reported that the institution had failed to teach Lipham respect for others, that he continued to be aggressive and impulsive, and that he lacked a conscience. His prognosis was determined to be poor.

In 1976, when Lipham was 13 years old, he was admitted to the Anneewakee Treatment Center, an institution that treated children for behavioral problems. The admitting psychologist noted the long history of institutionalization and diagnosed Lipham as having an anxiety neurosis and an overanxious reaction to adolescence. The psychologist noted that Lipham's overall IQ was in the high 80s, but that there was a wide disparity between his performance IQ and his verbal IQ. Lipham's performance IQ was over 100, but his verbal IQ was about 25 points lower.

Lipham continued to have problems with aggression and lack of impulse control at Anneewakee; he was so disruptive that he was usually not allowed to participate in group therapy or formal educational settings. Other diagnoses during his stay at Anneewakee included conduct disorder and attention deficit disorder; another report suggests a learning disability. There is also a record of another head injury occurring in 1978.

Lipham remained at Anneewakee until he was 18, with his behavior gradually improving. Although Lipham still had problems with impulse control and sometimes argued with the staff, his sexual misconduct ceased and his aggression diminished. Dottie Henson, Lipham's DFACS caseworker, noted in 1981, the year of Lipham's discharge, that she had been afraid to be alone with Lipham when he was a young child but felt comfortable and safe when alone with him as an adult. Lipham left Anneewakee when he was 18 because his state funding support ended. A psychologist noted upon his discharge that his admitting symptoms were in remission, but that future success was greatly dependent upon a structured environment.