☢ test - Í

records they obtained, particularly ‘in light of what counsel actually discovered’ in the records. Here, counsel did not even take the first step of interviewing witnesses or requesting records. Cf. Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 18- 19, 175 L.Ed.2d 255 (November 9, 2009) (holding performance not deficient when counsel gathered a substantial amount of information and then made a reasonable decision not to pursue additional sources); Strickland, 466 U.S., at 699, 104 S.Ct. 2052 (‘[Counsel's] decision not to seek more character or psychological evidence than was already in hand was ... reasonable’). Beyond that, like the counsel in Wiggins, he ignored pertinent avenues for investigation of which he should have been aware. The court-ordered competency evaluations, for example, collectively reported Porter's very few years of regular school, his military service and wounds sustained in combat, and his father's ‘over-disciplin[e].’ [Cit.] As an explanation, counsel described Porter as fatalistic and uncooperative. But he acknowledged that although Porter instructed him not to speak with Porter's ex-wife or son, Porter did not give him any other instructions limiting the witnesses he could interview. Counsel thus failed to uncover and present any evidence of Porter's mental health or mental impairment, his family background, or his military service. The decision not to investigate did not reflect reasonable professional judgment. Wiggins [ v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)]. Porter may have been fatalistic or uncooperative, but that does not obviate the need for defense counsel to conduct some sort of mitigation investigation. See Rompilla [ v. Beard, 545 U.S. 374, 381-382, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)].” Postconviction, defendant presented extensive evidence “about (1) Porter's heroic military service in two of the most critical-and horrific- battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling.” This evidence demonstrated prejudice to defendant, as “‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,’” quoting Strickland. Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (June 26, 2006). Five-four majority reverses Kansas Supreme Court, holding “that the Kansas capital sentencing system, which directs imposition of the death penalty when a jury finds that aggravating and mitigating circumstances are in equipoise, is constitutional.” Kansas statute at issue directed capital sentencing jury as follows: “If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 ... exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise the defendant shall be sentenced as provided by law.” Following Walton v. Arizona , 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which upheld a similar Arizona statute. “At bottom, in Walton, the Court held that a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances. A fortiori, Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.” The Kansas statute does not run afoul of the Court’s prior death penalty decisions; it “does not create a general presumption in favor of the death penalty in the State of Kansas.” Nor does the Court accept “Marsh’s contention that an equipoise determination reflects juror confusion or inability to decide between life and death, or that a jury may use equipoise as a loophole to shirk its constitutional duty to render a reasoned, moral decision, see California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring), regarding whether death is an appropriate sentence for a particular defendant.” “The Kansas jury instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for -- not a presumption in favor of -- death. Kansas jurors, presumed to follow their instructions, are made aware that: a determination that mitigators outweigh aggravators is a decision that a life sentence is appropriate; a determination that aggravators outweigh mitigators or a determination that mitigators do not outweigh aggravators -- including a finding that aggravators and mitigators are in balance -- is a decision that death is the appropriate sentence; and an inability to reach a unanimous decision will result in a sentence of life imprisonment.” Souter, in dissent, would hold that the equipoise statute violates Furman v. Georgia , 408 U.S. 238, 309- 310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam) (Stewart, J., concurring), prohibiting “legal systems that permit this unique penalty to be … wantonly and … freakishly imposed.” “A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the Court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.” Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (February 22, 2006). Defendant’s death sentence was reversed and remanded for re-sentencing (for the third time). At new sentencing phase, defendant seeks to admit new evidence casting doubt upon his guilt (alibi evidence from his mother). Oregon Supreme Court held that he was entitled to do so under the Eighth and Fourteenth Amendments to the U.S. Constitution, citing Green v. Georgia , 442 U.S. 95, 99