United States District Judge Ellison of the Southern District of Texas found that state post-conviction counsel’s ineffectiveness provided cause to overcome the procedural default of Travis Green’s ineffective assistance of trial counsel at sentencing claim. Green v. Stephens, 4:13-CV-1899 (S.D. Tex. May 10. 2017) (Memorandum and Order). Judge Ellison concluded that the defaulted claim was substantial, noting, inter alia:
Contrary to the prosecution's unchallenged assertion that Mr. Green “was brought up in the best of circumstances,” Mr. Green was one of three children born into extreme poverty to a single mother, Betty Ivy, in Shreveport, Louisiana. (R.R. Vol. 18 at 33.) He suffered extreme physical abuse at the hands of his alcoholic biological father, who beat him regularly from the time he was a very young child. Mr. Green witnessed his father beat Ms. Ivy and his siblings as well. Mr. Green eventually moved to Houston with Ms. Ivy. There, Ms. Ivy married twice. Both of her husbands continued the physical abuse that Mr. Green experienced at the hands of his biological father. To escape the abuse, Mr. Green and his brothers left home. They lived on the streets, in shelters, and occasionally with Ms. Ivy's sister, experiencing little stability. When Mr. Green was approximately 12 years old, another teenager smashed a brick into Mr. Green's head, leaving Mr. Green bloody and disoriented. Several years later, Mr. Green was severely beaten by a neighborhood gang.
[Trial counsel] also failed to uncover and present powerful evidence regarding the family's history of mental illness. Mr. Green's maternal aunt suffers from schizoaffective disorder, hallucinations and depression. Mr. Green's mother has been hospitalized for a nervous breakdown, and stated that she has been diagnosed with a psychotic disorder. Mr. Green's brother Thomas has been diagnosed with schizophrenia, and his other brother, Oscar, has been diagnosed with bipolar disorder.
Further, “a minimal investigation into Mr. Green's personal and family history would have yielded evidence of brain damage or mental illness.” Judge Ellison held that an evidentiary hearing was required to determine whether Green was prejudiced by his trial attorney’s deficient performance.