Alton Coleman v. Betty Mitchell, Warden

quantity alleged need be all indictments

involving drug satisfy Appren- offenses to

di COLEMAN,

Alton Petitioner-

Appellant,

Betty MITCHELL, Warden,

Respondent-Appellee.

No. 98-3545.

United Appeals, States Court of

Sixth Circuit.

Argued 2000. Nov.

Decided and Filed Oct. AZ, Tucson, Kay, for Petitioner-

dric F. Appellant. briefed), (argued L.

Charles Wille Ohio, Attorney of the General Office Columbus, OH, Section, Capital Crimes Respondenb-Appellee. BATCHELDER, COLE, and

Before: CLAY, Judges. Circuit J., CLAY, opinion of the delivered the COLE, J., court, joined. in which 454-56), BATCHELDER, (pp. delivered J. part separate opinion concurring dissenting part.

OPINION CLAY, Judge. Circuit Petitioner, Coleman, appeals from Alton denying the district court order Petition- 59(e) motion, pursuant to Rule er’s Procedure, to alter Federal Rules Civil denying amend the district court order application Petitioner’s for writ habeas § 2254 and corpus pursuant to 28 U.S.C. previously en- lifting stay of execution by the court. For the rea- tered district below, AFFIRM IN forth we sons set IN PART and RE- PART and REVERSE proceedings MAND not incon- for further opinion. sistent with this

BACKGROUND History I. Procedural 10, 1984, a Hamilton On October Coun- Ohio, ty, jury indicted Petitioner for grand Storey, murder of Tonnie aggravated the well penalty specifications, with death as robbery Storey. of aggravated as for the briefed), 15, 1985, jury found Petitioner (argued and On June a David C. Stebbins (briefed), Columbus, OH, aggravated of murder under Ohio guilty Dale A. Baich § death Revised 2903.01 with one Office of the Federal Public Defender for Code Arizona, Phoenix, AZ, day, penalty specification.1 following Fre- the District of killing attempt aggravated involving purposeful of or guilty the 1. Petitioner was found of offender, persons by the part to kill two or more murder that of a course of conduct the the September 4, 1990, recommended death court on raising one 24, 1985, for Petitioner. On following June hundred and four claims for relief. The independent aggravating review of pleas common court denied Petitioner’s factors, mitigating the Court of Common post-conviction petition, which was af- Pleas of Hamilton County, Ohio sentenced by firmed the Appellate Ohio First District Petitioner to death. The court then or- in March of 1993. Supreme The Ohio dered that Petitioner be returned to feder- Court subsequently jurisdiction declined al custody, where Petitioner had been over appeal. Petitioner’s serving a twenty-year federal sentence for 30, 1993, On June filed an a 1984 conviction under 18 U.S.C. application delayed reconsideration in 1201(a), § kidnaping federal statute. District, the Ohio Appellate First which However, the court right reserved the of the court denied and by was later affirmed request custody State of Ohio to Supreme 7, Ohio Court. On October Petitioner in order carry out the Ohio 1994, the Supreme Ohio Court set Petition- case, Storey sentence from the as well as er’s execution date for January 1995. sentence, to carry out a second death also imposed by the Court of Common Pleas in Following ten-day stay execution separate in connection with the court, 6,1995, January district Peti- murder of Marlene Walters.2 The court tioner petitions filed for the writ of habeas imposed the death sentence in the Walters corpus pursuant § to 28 U.S.C. 2254 in May case in prior one month to connection with the Storey and Walters imposing separate death sentence in cases, which were later consolidated on Storey case.3 appeal. 10, 1998, February On the district 7, 1987, On October Ap- the Ohio First court petitions § denied Petitioner’s pellate District affirmed Petitioner’s con- stay and lifted the previously execution viction and death sentence in Storey entered the district April court. On upheld which was by the Ohio Su- 1998, the district court denied Petitioner’s preme 20, 1990, Court. January On the motion to alter or amend the district court Supreme United States Court denied cer- pursuant order to Federal Rule of Civil 31, 1990, tiorari. January On the Ohio 59(e). appeals. Procedure Supreme Court set an execution date of 24,1990, which, April in March of History II. Criminal Supreme Ohio stayed Court for six months to allow post-convic- Petitioner to file his Supreme The Ohio provided Court tion petition. post-con- Petitioner filed his following findings factual in connection petition viction pleas the common with Storey murder: which falls under the Ohio Revised Code Appeals Case Number C-1-94-864. Case 2929.04(A)(5) penalty specification. 98-3545, murder, death Storey Number is the case at hand. This Court has affirmed the February the district court Appeals district court decision in Case Num granted Petitioner’s motion to consolidate Mitchell, ber 98-3546. Coleman v. 244 F.3d (federal Case kidnap- Number C-3-94-533 (6th Cir.2001). ing), (Storey Case Number C-l-94-863 mur- der), (Walters and Case Number C-l-94-864 3. Petitioner was from federal to transferred murder). 1998, May this Court severed custody state for execution of the Ohio sen- cases, assigning Appeals the consolidated appeals tences while his direct from his state Case Number 98-3545 to Case Number C-l- 94-863, pending. court convictions were Appeals and Case Number 98-3546 activity during the summer 7, 1984, Debra er criminal and July [Petitioner]

On assaults, 1984, multiple the home of the which included approached D. Brown Day- thefts, Gay summary Millard A of this and Mrs. and murders.4 Reverend with Mr. ton, conversing in activity presented part After is TV Ohio. criminal Gays’ at the home from Gay, they stayed section below. the discussion 9, July 1984. July through [Petition- History Gays accompanied the III. Mental and Brown

er] Ohio, Lockwood, on in religious services 4, 1984, court September the district On 9, Gays day, The next July Petitioner to the Federal Correc- referred Brown to downtown appellant drove and Butner, at North Car- tional Institution dropped them off. and Cincinnati olina, of whether Peti- for an evaluation 10:00 approximately 1984 at July On competent to stand trial on tioner was fifteen, a.m., left her Storey, age Tonnie kidnaping charges. Sally Cunning- federal wearing rusty brown in home Cincinnati Johnson, M.D., Hilkey, Ph. ham and Jim shorts, blouse beige cutoff sleeveless D., evaluation, which was conducted the rings, blue tassel shoes and yellow with competency mental limited to Petitioner’s button. She was a Michael Jackson kidnaping federal to understand High at Bloom Junior School next seen brought against ability him and charges by 11:45 a.m. a teach- approximately at attorney defending against work with an er. charges. parameters, those those Within day, 5:00 and Later that same between Hilkey found Petitioner Drs. Johnson Tonnie on the p.m., 6:00 a classmate saw mentally competent to stand trial. to be May Morgan Streets corner of findings The did not address Petitioner’s of a man company in the Cincinnati Storey mental condition the time a woman. The classmate identified Storey or at the trial. murder time [Petitioner], Tonnie man as When had p.m. that by returned home 4:30 stipulated to Petitioner’s mental Counsel police day, her mother called Storey competency to stand trial reported missing. her appeal on that the case. Petitioner 19, 1984, body July On was discovered being in him examinations which resulted May building in an abandoned Street limited, mentally competent were found A by agent. a real estate Michael Jack- independent investigation and that Pe- pair son button and a of brown shorts titioner’s counsel into Petitioner’s social pocket in the were keys discovered history and mental would have led to the body in the area where the was found. evi- presentation mitigating of substantial keys The identified decedent’s father penalty phase at the of Petitioner’s dence Storey residence. The belonged to the personal background, trial. Petitioner’s body badly decomposed was and identifi- investigating and counsel’s role through fingerprints. cation made presented part VII of background, are body as that of Ton- The was identified the discussion section below. Storey. The of death of Ton- nie cause asphyxia. nie was homicidal DISCUSSION Coleman, St.3d State v. Ohio (1989). application to the Petitioner’s habeas N.E.2d 624-25 Ohio Su- forty-eight grounds court raised preme also detailed Petitioner’s oth- district Court Coleman, St.3d 544 N.E.2d n. 1 4. See State v. 45 Ohio for relief. The district court found twenty- the defendant at the trial which resulted grounds procedurally seven of those to be in that judgment of conviction or on an barred, and appeal the remainder non-meritorious judgment. from that presented in inappropriately or the federal 175, 104, 10 Ohio St.2d 226 N.E.2d Court, context. appeal habeas On this (1967). Petitioner eight raises issues for review. argues judica that res Because ap Petitioner’s habeas § ta under 2953.21 was not an adequate 1995, plication prior was filed in to the and independent state ground on which to passage of the Antiterrorism and Effective procedurally claims, bar his habeas and (“AEDPA”), Penalty Death pre Act thus did not satisfy federal requirements AEDPA applies. standard of review See (6th Smith, under Maupin v. 785 F.2d 135 (6th 408, Mapes Coyle, v. 171 F.3d Cir.1986). Maupin, Under the following is Cir.1999). pre-AEDPA Under the stan required procedural of a state rule which dard, presume we the correctness of state bars federal review of a claim. habeas findings, court factual which are rebuttable First, the apply petition rule must to the only by evidence, clear and convincing and claim, petitioner er’s and the must have law, we review determinations of or deter comply Second, failed to with the rule. involving questions minations mixed of law state courts actually must have enforced fact, and de novo. (citing Id. Rickman v. Third, the rule. the rule must constitute Bell, (6th Cir.1997), 131 F.3d an adequate independent ground state denied, cert. 523 U.S. 118 S.Ct. justifying foreclosure of the federal consti (1998)). 140 L.Ed.2d 962 tutional question claim. “This generally will involve an examination of legiti Procedurally I. Defaulted Claims mate state procedural interests behind the Adequate Independent A. light rule in of the federal interest in con

State Ground sidering federal claims.” Id. If at 138. procedural state rule satisfies the above Petitioner argues that the district court elements, three default may nevertheless erred when it relied on the Ohio state petitioner be excused if the has shown application judicata court’s of res under violating procedural cause for the state § 2953.21 of the Ohio Post Conviction Act prejudice resulting rule and from the al procedurally many bar of Petitioner’s leged constitutional error. Id. federal constitutional claims raised application. habeas judicata that res Perry, State v. the Ohio Su was an inadequate procedural bar in this preme Court found that Ohio courts should case because he was denied a reasonable apply the judicata doctrine of res when opportunity present his claims state determining post-conviction relief under Louisiana, court in violation of Michel v. § 2953.21: 100 L.Ed. 83 judicata, However, Court,

Under the doctrine of res this Rust v. Zent, (6th judgment final Cir.1994), of conviction bars the 17 F.3d 155 Rig McMackin, (6th convicted raising gins defendant from and li- 935 F.2d 790 Cir. tigating any 1991), proceeding, except an has application judi held that of res appeal from that judgment, any defense cata adequate under 2953.21 is an any process independent claimed lack of due ground justifying state fore was raised or could have been raised closure of constitutional claims habeas.

428 the issues opportunity raise had Keener v. Riden argues that appeal (6th Cir.1979), course of his direct supports during the

our, F.2d 581 594 [petition- ... Because judicata of res failed to do so application but position his is- and raise his constitutional adequate not an failed to er] under 2953.21 and because barring appeal, for his ground sues his direct independent state Keener, procedural [under In this Court default [petitioner’s] claims. habeas constitut- judicata doctrine] found: the Ohio res independent’ state ‘adequate and has construed ed an Supreme Court The Ohio to fore- judi- the state relied preclude ground Act to on which the Post Conviction a of his constitutional judicial issues in all but review review of new close cial claims, [petition- As a consider may of circumstances. we not limited number can result, collateral re- claims unless he post-conviction constitutional er’s] Ohio statu- prejudice]. with federal lief is not coextensive show [cause corpus. long as the Ohio tory habeas So omitted). (citations Rust, 17 F.3d at 160-61 Act, by the as construed Post Conviction in Keener cited several cases This Court v. Per- State Supreme Court Ohio that “because of support position of its unamended, will be there ry, remains interpretation placed on [Sec narrow in which an Ohio repeated instances Court, Supreme 2953.21 Ohio tion] claims, cognizable present will prisoner unavailable or inef collateral relief is often court, never been have federal which Keener, remedy.” 594 fective as State by the State courts of Ohio. reviewed However, cases con at 590. these F.2d omitted). (footnote Keener, F.2d at 590 594 exhaustion re forgiveness of the cerned address Riggins, In this Court did not review, the ade for habeas quirement default procedural the coextensiveness § 2953.21 as a judicata of res under quacy Act and Post Conviction under Ohio of a ground justifying foreclosure state Rather, simply habeas. this Court federal claim. One federal constitutional concluded, petitioner Perry, under Koloski, 413 v. 23 Ohio Misc. Mackey was: (6th Cir.1969), 1019, 1021 stated: F.2d process raising his due precluded from Perini, v. we in Terrell [a]s said he had claim in state court because Ohio (6th Cir.1969)], Coley F.2d 1231 [ during the issue opportunity to raise Alvis, F.2d 15 Ohio Misc. appeal and failed the course of his direct (6th Cir.1967)], Supreme Court of [ Thus, law ... because Ohio to do so interpreted has Ohio Revised Code Ohio procedural [petition- bar to establishes a that it narrowly ... so Section 2953.21 claim, will process due this court er’s] no appellant afford the effective would [petition- not consider that claim unless remedy.... appellant hold that the We prejudice]. [cause establishes er] required apply should not be (citing Perry, F.2d at 793 Riggins, 935 appeal of the denial of his mo delayed 104). N.E.2d at order to tion to vacate sentence Rust, Riggins, this Court also citing remedies. exhaust state claims barred petitioner’s found habeas Keener, under without reference coextensiveness in. after conclusion This Court’s Terrell, found that Specifically, Coley, Mackey, Keener. this Court discussion un- petitioner judicata was: whether res did not concern and inde- adequate § 2953.21 was an ,der presenting barred from his constitution- justifying foreclo- pendent ground state he al claims to the state courts because claims; However, federal constitutional Howard sure failed to address the res rather, Moreover, peti- judicata Keener found that because directly. issue even cognizable was not under assuming supported tioner’s claim that Howard Petition 2953.21, position, § available er’s “he has exhausted one decision does not likely Keener, F.2d at State remedies.” 594 establish application” “inconsistent of a Conversely, Riggins spoke procedural 590. Rust and rule. occasional act of “[A]n directly judicata grace by to the issue of res under a in excusing state court or disre § adequate indepen- garding procedural 2953.21 as an a state rule does not ground. Riggins, dent state Rust and render inadequate.” rule Amos v. Keener, Scott, (5th 333, Cir.1995), controlling are as to Petition- 61 F.3d 342 cert. claim; denied, application judicata 1005, 557, er’s of res un- 516 116 U.S. 133 (1995). Further, § an adequate der 2953.21 is and inde- L.Ed.2d 458 as discussed above, pendent ground barring state for habeas James referenced “several cases” in support review of constitutional claims. finding Kentucky its rule to inconsistently applied. have been We do However, Petitioner argues Supreme not find that the Ohio Court’s giving appli facts rise to the Ohio court’s apply judicata failure to res in Howard judicata cation of res to his case render precludes its qualification indepen as an ground inadequate particular in this dent and adequate ground state under instance. Petitioner cites James v. Ken Maupin. 341, 348, tucky, 466 U.S. 80 (1984), support

L.Ed.2d 346 claim to Petitioner argues against applica then judicata § that res under 2953.21 was “not Murnahan, tion of the rule of Ohio v. 63 firmly the sort of established regularly (1992), Ohio 584 St.3d N.E.2d 1204 to practice prevent followed state that can Murnahan, Supreme his case. In implementation of federal constitutional Court of Ohio held that claims of ineffec rights,” and an adequate thus not state appellate tive assistance of counsel are not in ground rely barring on which to consti cognizable post-conviction proceedings Supreme tutional claims. Court in § pursuant to Id. at 2953.21. 1208. The Kentucky James noted that a rule’s dis Murnahan court instructed that colorable tinction between “instructions” and “admo appellate claims of ineffective assistance of was strictly nitions” “not adhered to” and counsel, application for which the of res Kentucky Appeals Court of had judicata unjust, pre would be should be contrary reached decisions to the rule “in in an application delayed sented for recon 347-348, James, cases”. several U.S. appeals sideration the court of where S.Ct. 1830. place pursuant alleged error took 14(B). Appellate Ohio Rules 26 and Id. at Petitioner’s demonstration of the application Ohio courts’ inconsistent of res Murnahan, § judicata under 2953.21 consists of one Defendant in like Petitioner case, Howard, case, pursued State Ohio St.3d this had his claim of inef Howard, appellate 537 N.E.2d In fective counsel assistance in post-conviction request post-conviction pursuant conviction was reversed for relief proceedings improper jury because of an 2953.21. Petitioner Murnahan, applied instruction. The court could have courts in his as Ohio judicata, permitted apply res in that the instruction issue should have litigated appeal, delayed could have been but for reconsideration in the Ohio appeals. chose to reverse the conviction instead. court of Murnahan to his case the Ohio before February of of decided Murnahan However, Peti District. Appellate filed his First 1992. In June of delayed legal support recon offered for for tioner has not Mumahan application litigating applicability based on ineffec appeal of his claim that sideration appellate good counsel. Murnahan to his case constituted tive assistance Appel his Murnahan application the Ohio First February filing cause Petitioner’s Murnahan months after Murnahan found deci late District sixteen Appel under be time-barred application to sion. 26(B), requires applica which late Rule Petitioner had assuming that Even nine to be filed within reopening tions for filing in for delay cause for good shown appellate judgment. ty days entry after of Petitioner, reconsideration, in his habeas 26(B), to an amendment

Appellate Rule the argument no application, offered Procedure, Appellate Ohio Rules of the stronger by omitted counsel' were claims 1993, 1, after Peti July became effective appeal. raised counsel on than those filed his Mumahan application. tioner had ignored are “Generally, only when issues 26, in Rule effect Appellate Former Ohio stronger presented, than those will clearly decision, the time of the Murnahan at assistance of presumption the effective applications for reconsidera required that Greer, Gray v. 800 counsel be overcome.” later of the court’s filed the tion be (7th Cir.1986). 644, F.2d 646 days or within ten filing of the decision court, appellate by the district As noted decision, the a time announcement of the assign- twelve counsel for Petitioner raised good for the court could extend limit that appeal, ments of error on which were 14(B). Appellate Rule under Ohio cause specific in dozens of issues for grounded 33(M) Rule states that Appellate Ohio Petitioner, forty-fourth in the review. Appellate Rules of amendments to the petition ground for relief his habeas 1, 1993, July that took effect on Procedure court, seventy- the district identified some 26(B), govern pro- Appellate Rule such as appellate coun- additional issues which five 1, 1993, except pending July on ceedings (J.A. 214.) “failed to raise”. at sel had of the amended rules to application where Barnes, injustice, in Jones v. Court, cause Supreme those actions would The procedure applies. which case the former 103 77 L.Ed.2d 463 U.S. S.Ct. Reddick, See Ohio v. (1983), St.3d 647 professional 72 Ohio found that judgment appellate N.E.2d counsel includes claims to determination of which colorable for a late cause must be shown Good appeal, appellate and that counsel raise on under filing of a motion reconsideration failing not ineffective when to raise ev is Rules 26 and Appellate either former Indeed, ery argument colorable claim. 26(B): 14(B) Rule Appellate or current appellate coun for ineffective assistance of App.R. good-cause requirement “the every may stronger have been had sel 26(B) incorporates good- succeeds and actually colorable claim been raised: of Murnahan and for requirement cause 14(B).” Reddick, one, two, present only 647 N.E.2d Most cases App.R. mer Usually significant questions.... three argues at 786. that the sixteen Petitioner major Murnahan decision you ... if cannot win on a few separating months likely help, points, the others are not from his motion for reconsideration should attempt great to deal that time and to during not bar his claim because pages many in the limited number of litigating applicability actively he was strategic mean that none five omitted claims relative to the allowed for briefs will actually attention. The value of the twelve claims raised may adequate receive if appeal. reviewing will be Even the merits of adding arguments weak effect stronger appel- ones. Petitioner’s ineffective assistance of to dilute the force of claim, argument late Petitioner’s counsel Barnes, professional that prevailing require norms Stern, Appellate Practice (quoting R. reasonably competent capital counsel (1981)). Petitioner States 266 United particular cases to raise a set of at least have appellate counsel would argues seventy-five appeal contrary claims on is by raising nearly more effective nine been and, given alleged Banes the lack of facts twelve, appeal. ty, rather than issues on claim, underlying beyond Petitioner’s rejected Supreme Court Barnes scope of fact-intensive review under reasoning. such Mapes. argues also that the district Finally, analysis court’s of his ineffective assistance Munahan showing” “substantive stan appellate counsel claim failed to review California, dard violates Anders v. 386 in required provided considerations as 1396, U.S. 18 L.Ed.2d 493 Mapes, suggested In this Court Mapes. (1967), Robbins, as reiterated Smith v. “that to ought eleven considerations be 120 145 L.Ed.2d U.S. S.Ct. in determining taken into account whether (2000). Supreme The clarified Court attorney appeal performed an on direct adopt in Robbins that states are free to reasonably competently.” Mapes, 171 a procedures protecting defendant’s Although argues F.3d at 427. Petitioner right appellate to counsel which are differ analysis that the district court’s procedure presented by ent from the individual claims not raised counsel on Anders, Supreme long Court in so as such insufficient, appeal was Petitioner’s habeas safeguard a procedures “adequately defen application any specif- lacked factual itself appellate right dant’s to counsel.” Rob underlying ics those omitted claims. After bins, procedure at 746. A S.Ct. seventy-five claims un- enumerating satisfying “adequate safeguard” stan appeal, alleged: raised on Petitioner that “reasonably dard is one that ensures appeals, At [Petitioner’s] the time of indigent’s an will be resolved a appeal recognized above issues were and ac- that way that is related to the merit of cepted as viable issues effective at- 279, 120 appeal.” at Id. S.Ct. torneys practicing capital litigation and concerning capital having knowledge Supreme The Court in Robbins stated process. Prevailing profes- litigation Anders, that under the Fourteenth capital ap- prescribed sional norms requires prior to dismiss Amendment pellate counsel must raise these issues fairly must ing appeal, a direct a state appeal.... performance ap- appeal assess whether such is frivolous. pellate failing counsel to raise these Robbins, 270-71, at 120 S.Ct. 746. 528 U.S. Appellate deficient. coun- issues was contrast, to merely finding appeal an be performance prevailing sel’s was below ground an insufficient for ex meritless is reasonably compe- professional norms of to address the cusing obligation the state’s tent counsel. that the Muna- argues claim. Petitioner (J.A. 223.) standard, appellate which allows allege Petitioner not han did application par- a Munahan petition may facts which have lent courts dismiss showing support seventy- if no “substantive” importance ticular to some of Appellate B. Ineffective Assistance appellate coun the ineffective assistance Murnahan, made, Counsel as Cause has been sel claim their denies defendants N.E.2d at next under Rob right Amendment Fourteenth if of ineffective assistance of even his claim appellate adequate and effective bins defaulted, procedurally never counsel was review. may it as cause for his other theless serve procedurally defaulted claims under Car However, Petitioner’s Muma (6th Mohr, 163 F.3d 938 Cir. penter not dismissed for application han 1998). However, Supreme has Court showing in a substantive failure to make procedurally defaulted since held that assistance of support of his ineffective of counsel claim can ineffective assistance rather, claim; counsel the Mur appellate procedural as cause to excuse the serve for ex application nahan was dismissed if only default of another habeas claim ceeding filing the time limit for under satisfy the petitioner habeas can “cause 26(B), procedural bar Appellate Rule prejudice” respect standard with implicate Robbins or An that does not claim itself. Ed ineffective assistance filing, Due to this late the Ohio ders. 446, 120 Carpenter, wards v. appeals court did not review Petitioner’s 1587, 146 L.Ed.2d 518 application for substance. Mumahan any prejudice cause and has forwarded Thus, the standard that Peti Murnahan argument in his defaulted connection with challenging is under the Four tioner appellate ineffective of counsel assistance applied teenth was not to his Amendment Thus, Edwards, claim. under Petitioner’s if motion for reconsideration. Even this appellate defaulted ineffective assistance of to find Court were Murnahan’s “substan may not be used as cause for counsel claim showing” requirement invalid under tive other claims. Petitioner’s defaulted habeas Robbins, applica Petitioner’s Murnahan procedurally tion would remain barred. Evidentiary Hearing II. longstanding princi “A fundamental requested an evidentia ple judicial requires of restraint ry hearing in the district court to further reaching ques courts avoid constitutional develop the of his constitu factual bases necessity in of the of decid tions advance tional claims. The district court denied ing Lyng them.” v. Northwest Indian request, grounds Petitioner’s that Peti Assoc., 439, Cemetery Protective 485 U.S. presumption tioner had failed to rebut the 1319, 99 L.Ed.2d 534 findings of correctness afforded state court 2254(d). § fact Peti under 28 U.S.C. Riggins, proce that under tioner the state find Rust and because We § judicata provided inadequate res under 2953.21 is an ade dure to afford a court, independent hearing, full and fair the district quate ground state Sain, barring review of under Townsend v. 83 habeas constitutional (1963), also find that Petitioner has S.Ct. 9 L.Ed.2d 770 was obli claims. We good failing gated grant evidentiary not demonstrated cause for Petitioner an 26(B) alternative, Appellate filing require hearing. meet Rule In the Petitioner ar court, ments, in procedural gues and that such default that the district its discre tion, precludes granted evidentiary an review of “substantive show should have ing” light hearing, Livesay, of Murnahan in under Sims v. 970 F.2d standard (6th Cir.1992), Petitioner was Robbins. because evidentiary an in hearing denied state prior Townsend was decided passage court. of the 1966 amendments embodied 2254(d). §in The 1966 amendments were Because Petitioner filed for habeas relief by Congress intended to limit the exercise AEDPA, prior passage to the Rees, jurisdiction. federal court See statute’s amendments to 28 U.S.C. F.3d 576. In Fowler v. Jago, 683 F.2d 2254(d) § apply do not to this case. This (6th Cir.1982), this Court found Court, Mitchell, in Scott 209 F.3d that the eight exceptions allowing for the (2000), summarized our standard of setting presumption aside of the of cor review for findings state court factual un- 2254(d) § rectness under “appear to sub 2254(d): § pre-AEDPA der presume “we sume the six Townsend criteria.” historical, primary, or factual findings by addition, we noted Fowler that “in correct, the state courts to be rebuttable order to indepen- eliminate the need for an only by and convincing clear evidence un- dent federal evidentiary hearing, the dis- eight der one of the conditions listed trict court must examine findings pre-AEDPA version 28 U.S.C. the state court to determine whether the 2254(d)(l-8).”5 § state trier reliably of fact found the mate- The district court relied on Mitchell v. rial rejected facts and claim on its Rees, (6th Cir.1997), 114 F.3d 571 when Further, merits.” Id. at 987. “[u]nder denying evidentiary Petitioner’s hearing 2254(d) § ... ... the district court must request. Rees held that “[b]ecause inquiry conduct an into whether the state 2254(d) § express an is limitation on the court adequately has resolved the factual jurisdiction, district court’s a district court petitioner’s issues contained consti- authority is without to hold an evidentiary tutional claim.” Id. at 988. hearing on a matter on which the state The district court this case made such court has made findings unless one of the inquiry: an 2254(d) factors applies.” contained indepen- [T]his Court has undertaken an

Id. at 577. dent assessment of the thousands of “[wjhere

Townsend found that the exhibits, facts pages transcripts, of trial mo- in dispute, tions, are the orders, submissions, federal court habeas and other corpus an evidentiary must hold if hearing thoroughness documents to assess the applicant the habeas did not receive a full reasoning of the state courts. so evidentiary and fair hearing doing, a state the Court has found that the state court, either at the time of the trial inor courts realized the essential and consti- Townsend, collateral proceeding.” importance 372 proceedings tutional of these U.S. at 83 S.Ct. 745. Townsend then and conducted fact-finding their accord- six listed circumstances which a ingly. federal Sufficient and extensive evidence court grant evidentiary must an hearing Storey was adduced at the ... guilt and applicant. habeas punishment phases to establish each es- conditions, 2254(d) eight § 5. Of the adequately developed Petition- facts were not at the argument may potentially appeal (6) er's to sever- hearing; applicant State court did not al, (1) namely that: the merits of the factual full, fair, adequate hearing receive a dispute were not resolved in the State court (7) proceeding; appli- the State court (2) hearing; factfinding procedure em- process cant was otherwise denied due of law ployed by adequate the State court was not proceeding. in the State court (3) hearing; afford a full and fair the material 434 Juiy III.

sential element of the crimes and the Instructions propriety given. of the sentences argues improper jury Petitioner that in- (J.A. 325.) guilt structions at both the Petitioner that the denial of an asserts Fifth, Sixth, phases of the trial violated his evidentiary hearing by both the Ohio state Eighth and Fourteenth Amendment him courts and the district court denied rights. Specifically, Petitioner claims that opportunity develop the factual bas separate jury his five instructions violated argues es claims. of his Petitioner rights. constitutional not one of the Ohio state court factual findings presumption to the is entitled On habeas review state court 2254(d), § correctness under without iden instructions, jury question for a federal tifying specific may which material facts by ailing court is “whether the instruction findings. rebut such The cases Petitioner itself so infected the entire trial that the in support evidentiary hearing of his cites resulting process.” due conviction violates Stewart, claim, Correll v. 137 F.3d 1404 McGuire, 62, 72, Estelle v. 502 U.S. (9th Cir.1998), Wood, v. Jones (1991)(quoting S.Ct. 116 L.Ed.2d 385 (9th Cir.1997), distinguish F.3d 1002 are 141, 147, Cupp Naughten, able in that defendants in both al cases (1973)). L.Ed.2d leged specific contrary facts to state court findings they anticipated which an eviden- Specific Intent/Aggravated A. Murder tiary hearing develop.6 would further Pe likely titioner a stronger would have claim argues Petitioner the trial evidentiary hearing to an if the claim court replacing erred the element of sought something less than a reconsidera intent, specific required Ohio Revised every tion of factual determination made 2903.01(D) guilty Code to find one courts, by the Ohio state and was based on murder, aggravated proximate cause. something more than unarticulated Specifically, Petitioner tri that the alleges facts which Petitioner he was de al court instructed jury to find presenting nied from to the state courts murder, guilty of aggravated Rees, and district court. Under only need find that Petitioner was indicated, passing has not from mere aside principal aggravated offender in the 2254(d) reference, any pre-AEDPA § how not in burglary, aggravated murder. exception applies to his and thus the district court did in denying aggravated not err The crime of murder under states, request evidentiary hearing. for an person purpose- Ohio law “no shall example, sought 6. For providing defendant in Jones in addition to an affidavit categories probation obtain "three of documents from psychological from a officer and a (1) copies his trial counsel: of the notes [de- report, during asserted “that the month that given lawyer had to his at the fendant] Snoho- elapsed jury pre- between the verdict and the 8, 1988; (2) County mish Jail on December sentencing hearing, attorney his met with him copies reports pretrial of of interviews con- just for five minutes ... that his trial [and] by lawyer investiga- duct and the defense attorney requested had not a mental health tors; (3) copies of all documents which diagnostic sentencing examination before ... prosecutor’s discuss or otherwise relate to the despite having previously necessary deemed it Jones, plea at offer.” 114 F.3d appointment to move for the of a mental Cornil, defendant, expert pursuant seeking health to Ariz. R.Crim. P. 11 an eviden- tiary hearing explore competency on the issue of ineffective assis- to stand [defendant’s] Correll, phase penalty tance of counsel at the of the trial.” 137 F.3d at 1412-13. Caldwell, 472 design, views the case.” U.S. calculation and prior and with ly, Court, Rev. 2633. This in Korden Ohio 105 S.Ct. another[.]” cause the death of 2903.01(A). (6th in- trial court Scroggy, § The brock v. 919 F.2d Code Cir.1991)(e% bane), follows: in jury jury the as found that a structed prosecutor’s characterization struction guilty can find the defendant you Before a “recommen jury’s of a death sentence as you ... must find murder aggravated of law Kentucky dation” was consistent with purposely caused ... defendant that not violate Kordenbrock prior calculation did Caldwell. [Storey’s] death with an make out a Purpose “[i]n to kill is stated that order to Cald design.... violation, that aggra- [petitioner] element of the crime of well must show essential purposely A acts the person prosecutor improperly vated murder. the described to cause a specific jury’s when it is a intention role under state law in order to (cit It be established responsibility.” certain result. must Id. water down their count, in question, Adams, at the time this that ing Dugger v. (1989)). present 1211, 103 the mind

there was L.Ed.2d 435 kill specific intention defendant The relevant law is Ohio Revised Ohio person may No be Storey.... Tonnie 2929.03(D): Code murder unless aggravated convicted of finds, unanimously jury If the trial have intended specifically he is found to doubt, that proof beyond a reasonable of another. to cause the death the of- aggravating the circumstances 2419-20). (J.A. at committing guilty fender was found assertions, the Petitioner’s Contrary to factors, the the trial outweigh mitigating not communicate that jury instructions did court that jury recommend to the shall principal the of- finding Petitioner to be the imposed the of death be on sentence sufficient for burglary fender in the [I]f, receiving ... offender.... after murder. finding guilt aggravated as to jury’s trial recommendation Rather, clearly jury instructions stated court imposed, of death be sentence finding guilty aggravated finds, beyond a reasonable by proof finding that Petitioner required murder aggravating ..'. circum- doubt [Storey’s] death with “purposely caused guilty found stances the offender was prior design.” calculation and fac- committing outweigh mitigating tors, death on impose it shall sentence of Penalty Death B. Recommendation finding the offender. Absent such trial argues that Defendant next impose ... ... the court shall the court jurors to think that court’s instructions led following sentences [life] one of the responsibility decision-making ultimate offender!.] elsewhere, lay the death Mississippi, violation Caldwell as trial court instructed 2633, 86 L.Ed.2d 231 U.S. follows: upon a jurors agree All must twelve the If all members of capital a verdict. twelve held that

Caldwell find, a reasonable jury by proof beyond sentencing invalid “when the sentence is doubt, circum- aggravating that the responsibility that jury is led to believe was found which [Defendant] of a stance determining appropriateness the the miti- committing, outweigh guilty of jury not with the but death sentence rests factors, must return you then gating later re- appellate court which with the Court, presented appeal on direct and the finding to the as been such law, you adequate have no choice Ohio courts had relied on matter of would independent grounds barring post- to the that the state but to recommend Court the be ordered. conviction consideration of claim. sentence of death The final decision as to whether the assuming Even claim is the not imposed upon the death shall be barred, jury instruction was not im upon rests this Court after defendant proper. jury We review instructions at pro- certain additional the Court follows phase capital the selection of the sentenc laws, required by the of this cedures ing portion of a trial to determine “wheth Therefore, if you even recom- State. er there is a reasonable likelihood that the penalty, mend the death the law re- jury applied challenged has instruction to decide whether or quires Court way prevents in a the consideration of actually ... will be [Defendant constitutionally relevant evidence.” Bu imprison- sentenced to death or life 269, 275, Angelone, chanan v. U.S. ment. (1998) (citations 757, 139 L.Ed.2d 702 S.Ct. 2511-12.) (J.A. at omitted). jury The instruction at issue violation,

“To establish a Caldwell a de- was as follows: necessarily fendant must show State Ohio seeks recommenda- jury improperly remarks to the described you tions from of a death sentence. In assigned jury by the role to the local law.” order to be entitled to this recommenda- Dugger, 489 at U.S. proving tion the State has the burden of Kordenbrock, Kentucky provided In law by proof beyond a reasonable doubt that that “the shall retire to determine aggravating circumstances which the any mitigating aggravating cir- whether guilty defendant was found of commit- cumstances ... exist and to recommend a ting outweigh is sufficient to the factors Upon sentence for the defendant. mitigation. The defendant has no findings jury, judge of the shall fix a proof given great burden of and is lati- prescribed by sentence within the limits presentation tude of the mitigat- F,2d Kordenbrock, law.” at 1101 ing reaching your factors. verdicts (quoting Ky.Rev.Stat. Ann. you you are instructed that will consider 532.025(l)(b)). judge’s Because the presented all evidence the first jury’s characterization of the sentence as a you which deem fully to be relevant as found, “recommendation” was in Korden- presented again in this proceeding, brock, Caldwell, not to violate we find the along with all additional pre- evidence similar characterization of “recommenda- sented in proceeding. outweigh this To tion” in this requires when Ohio law means ... important be more separate, post-recommendation finding than.... Remember reasonable by the confirming jury’s court sen- present you doubt is when after careful- tence, was also not violation of Caldwell. evidence, ly compare consider and all you say you firmly can not are convinced Sentencing

C. Reasonable Doubt charge. truth of the Reasonable Petitioner argues judge’s that the trial doubt is doubt based on reason and com- “reasonable instruction pen- doubt” at the mon sense. Reasonable doubt is not alty phase process. of the trial violated due possible everything mere doubt because The district court held this claim to. relating depending be to human affairs or procedurally upon open barred because it had not moral evidence is to some

437 Nebraska, 1, 5, 114 S.Ct. v. be- Victor doubt. Proof imaginary or possible (1994) (citations L.Ed.2d 583 of such proof is doubt a reasonable yond omitted). Rather, re the Constitution person ordinary would that an character whole, as a taking the instructions quires, upon it the act rely and willing to be likelihood not be a reasonable that there her own affairs. of his or important most the instructions jury understood that the full, impartial If, consid- a fair after fall on evidence conviction based to allow from evidence of all relevant eration doubt standard. the reasonable ing below beyond a convinced are you trials both doubt as Characterizing reasonable Id. aggravating that the doubt reasonable possible “not a mere doubt” or “substantial was the defendant which circumstances Id. process. not violate due doubt” does committing is sufficient of guilty found in mitigation the factors “rea- outweigh the described In this court to be proven right its ways, including the State has then doubt” several sonable the doubt,” of to the recommendation which was possible entitled “not a mere penalty. Petitioner upheld specifically death Victor. convinced”, “firmly how has not articulated 2503-2504). (J.A. at court’s various together the taken this instruction doubt, created a descriptions of reasonable First, the court’s doubly flawed. jury under- the likelihood that reasonable doubt not reasonable as of characterization establishing a instructions as stood the refers the “firmly convinced” being standard convincing evidence clear and standard, convincing evidence clear factors determining aggravating whether Second, instructing doubt. not reasonable in- jury The factors. outweigh mitigating consider they were to wheth- jury that the at the actually provided, both structions as to the doubt they had reasonable er particular the end of beginning aggravating whether rather than charge, issue, has “the State instruction evidence, mitigating outweighed evidence a rea- by proof beyond proving burden of a conclusion toward misdirected circum- aggravating that the doubt sonable already determined at been that had was found the defendant which stances of the trial. guilt phase to out- committing sufficient is guilty of (J.A. at mitigation.” factors weigh the dis Court has Supreme The 2503-04.) find, both under Victor We of the reason trial court definition cussed penalty phase that the language, own its doubt standard: able process. not violate due did instruction doubt standard beyond reasonable process, but the due requirement is Misconduct Prosecutorial IV. trial prohibits neither Constitution Brady A. reasonable doubt defining from courts prosecutorial alleges so as a matter them to do requires nor Mary Brady in violation in- misconduct long as court ... so course land, U.S. necessity that jury on the structs “sup held that Brady L.Ed.2d beyond a proved guilt be defendant’s evidence prosecution pression ... the Constitution doubt reasonable vio upon request accused to an favorable any particular require does the evidence is process where lates due advising used of words be form punishment, guilt either to material burden government’s jury of the faith faith or bad good irrespective of proof. 438 prosecution.”

of the Id. at 83 S.Ct. would have made a difference in the out- come of the trial. argues Petitioner that the State of Ohio agree We with the district court exculpatory failed to disclose information Brady that no violation occurred in this possessed by the F.B.I. and the Cincinnati case, but on grounds. different agree We police. Specifically, the State of Ohio is not ultimately possession the F.B.I. inwas of detailed responsible for the failure of Petitioner’s and background material information on present, counsel to at the phase of Petitioner. application Petitioner’s habeas any mitigating evidence con alleged categories ten of evidence that the personal nection with Petitioner’s back disclose, State of Ohio had failed to includ- Therefore, Todd, ground. under we find ing exculpatory background profiles and However, Brady no violation. as detailed reports concerning Petitioner and mem- in the discussion of ineffective assistance bers of family. Petitioner’s Petitioner also below, of trial part counsel in VII we find alleged that the State of Ohio’s failure to that it is reasonably probable present disclose such information to Petitioner’s ing mitigating evidence on Petitioner’s directly trial counsel adversely affect- background to the penalty ed trial ability counsel’s to adequately phase of the trial produced would have an present evidence on Petitioner’s behalf at outcome different from the death sentence. both guilt penalty phases depart We therefore from the district trial. finding court’s on the materiality of the Brady production assures the background evidence at issue. exculpatory evidence material to either guilt penalty phases of a trial. Material evidence on Petitioner’s Bagley, 667, 682, United States v. background would have been discoverable (1985), 87 L.Ed.2d 481 the with minimal investigation by Petitioner’s Supreme Court Brady clarified the materi counsel. Such information was available ality standard: “evidence only is material from varied beyond sources control of the if that, there is a probability reasonable F.B.I., including, part as detailed in VII had the evidence been disclosed to the below, school, hospital records, prison defense, the result of the proceeding would evaluations, mental family members and have been different.” Brady rule acquaintances, as well as Petitioner him does not assist a defendant who is aware of self. background While F.B.I. reports essential facts that would allow him to take profiles likely provided would have advantage of the exculpatory evidence at helpful detail, the essence Petitioner’s Todd, issue. See United States v. 920 F.2d circumstances, mitigating that his life ex (6th Cir.1990)(citing United States perience largely had been characterized Wilson, (4th Cir.1990)); 901 F.2d 378 abuse, violence and was independently Hicks, (1st United States v. 848 F.2d and, available to Petitioner importantly, Cir.1988); Grossman, United States v. Thus, Todd, Petitioner’s counsel. under (2d Cir.1988). F.2d the district court did not err failing to The district court found that Brady find a violation in this al had not any shown that of the withheld though we do agree with the district might information have assisted in his de- court on the materiality of evidence relat fense and concluded that Petitioner had ing which, to Petitioner’s background, had not established that the withheld evidence it presented been jury, to the would likely upon with- testify to able quently been the of outcome affected the have the tes- trial. Because drawing the by part VII from indicated the as phase of case had no this tifying prosecutor below. trial, and testified on in the other role Testimony B. Prosecutor of identi- important issue the narrow find that samples, we handwriting mis- prosecutorial fying argues next Petitioner pro- due not violate testimony Hamilton the did that the grounds conduct on case the Walters cess. prosecutor from County prosecu- The Storey case. in the

testified for team prosecution Acts Evidence not on the C. Other tor was testified prosecutor The Storey case. the that the ad argues Defendant handwrit- identify Petitioner’s order violated acts evidence prior of bad mission ing. in the was process because evidence due prose Storey on relief based to the flammatory Habeas and dissimilar the requires characterizes Although cutorial misconduct case. misconduct, deny as he egregious be so prosecutorial misconduct claim as this Donnelly v. process. See a state court eviden petitioner actually challenging due is 637, 643-45, 94 re 416 U.S. courts DeChristoforo, Federal habeas tiary decision. (1974). Al only evidentiary 431 40 L.Ed.2d court decisions S.Ct. view state uni Patter process. courts have almost consistency “federal with due though for of a practice York, the upon versally frowned v. son New at the testifying State prosecutor L.Ed.2d 281 Government prosecuting, the he is rise to evidentiary rulings the case do not trial of court defendant, they the unless against for or violations process whether level due justice should so practice that the principle have stated ... “offend some extraordinary cir only in and conscience permitted in the traditions be rooted reasons”, a compelling ranked as or as to be fundamen people cumstances our omitted). testify (citations so may nevertheless Id. prosecutor tal.” from otherwise withdraw long they as Although Birdman, 602 States the trial. United dis evidence was acts admitted other Cir.1979). (3d testify The 547, 553 F.2d case, district both the Storey to the similar however, case, had in this ing prosecutor relevance. explained its courts and state Further, case.7 role in the no other follows: as Supreme Court stated The Ohio testimony was narrow scope of his other presenting purpose [the hand identifying Defendant’s probative, First, was twofold. evidence acts] Wal from the motions writing several the first proof on burden state’s compared to case, then which was ters to show specification death-penalty directly the wall handwriting part of on the of conduct” a “course body was found victim’s where the or at killing involving Birdman, if defendant even Storey case. Under persons. two or more killing of tempted to this assigned been had prosecutor introduced Second, the evidence was have subse- may prosecutor cases disqualified as witnesses prose- are testifying federal the context of See United they play other role. no cutor, where while Circuit has found that the Second Armedo-Sarmiento, F.2d States v. States of a United testimony by any member 1977). (2d Cir. discouraged, such members Attorney’s Staff is pursuant Revised [Ohio ] Code find that admission of the other acts evi- prove identity by 2945.59 to showing dence process. did not violate due appellant had used a similar “scheme, plan, system” in committing Penalty D. Guilt and other acts. Arguments Phase Coleman, State v. 544 N.E.2d at 625.8 Petitioner improp that supported The other acts evidence both closing er arguments by prosecutor the course of conduct and similar scheme both guilt penalty phases by illustrating, elements as the Ohio Su- trial process. violated due Because Peti noted, preme unique, Court “a identifiable tioner presented had not arguments these plan of activity.” criminal Id. at 626. The appeal, on direct the district court found plan characteristics of this target- included them procedurally to be barred. “It is ing pre-teen African American and teen- well prisoner settled that a seeking habeas automobiles, age girls, theft of murder relief in federal court must presented have ligature strangulation, discarding upon the claim which he seeks relief to the corpses in abandoned buildings. sig- Most appellate Elo, state courts.” Gonzales v. nificant, a bracelet missing from the home (6th Cir.2000). 233 F.3d “A habe prior of a victim was found under the petitioner as only can procedural overcome body Further, victim’s in this case.9 default in First, two instances. he can prejudicial potential of such evidence was demonstrate cause procedural for the de lessened specific the trial court’s in- fault prejudice and actual resulting from struction to the jury finding that the alleged constitutional error ... Alter guilty of aggravated murder in this case natively, a defendant can show that failure required finding beyond a reasonable to consider the claim will result in a funda doubt that specific Petitioner had the in- justice.” mental miscarriage of Gall v. tent to Storey. murder Parker, (6th Cir.2000) 231 F.3d (citations omitted).

Given the relevance of the other acts Petitioner in this case evidence to both the death penalty specifi- has attempted neither to demonstrate cation’s course of conduct requirement and cause for failing to raise closing argu establishing a common scheme under Ohio ments claims before the Ohio state courts 2945.59, § Revised Code as well as the nor show resulting fundamental miscar clear instruction on the need to find riage justice. Accordingly, this Court specific Storey intent as to the murder may prosecutorial review his miscon aggravated find murder in this we duct in claims connection with closing ar- 8. Ohio provides Revised Code 2945.59 tion of ten-year two nine- or old African "any acts of the defendant which tend to Indiana, girls American in one of whom was intent, show his motive or the absence of by ligature murdered strangulation; murder mistake or part, accident on his or the defen- twenty-five-year of a old African American scheme, plan, system dant's doing by ligature woman strangulation; in Indiana question may act in proved” be where such murder, battery Michigan; car theft and elements are material in a criminal case. Ohio, of an African American woman and her nine-year-old daughter by strangulation, 9. As Supreme detailed in both the Ohio Court family whose bracelet was later found under opinions, and district court Petitioner's crimi- body Storey; car battery theft and activity nal in the summer of 1984 included: Ohio; and an additional murder and car theft by ligature abduction and murder stran- Coleman, in Ohio. See 544 N.E.2d at 626 n. 1. gulation nine-year of a old African American Wisconsin; Illinois; girl in car theft in abduc- Id. at S.Ct. abused.” phases of guilt at the guments in McCles- meeting this standard proof not the trial.10 study imposi- on the key was statistical Penalty Scheme Death V. Ohio Georgia sentence of the death tion disparities, that found, racial among other asserts, grounds, on several penalty for the death seek “prosecutors scheme punishment capital the Ohio white vic- black defendants 70% of Fifth, Sixth, and Four- Eighth violates tims, ... of white defen- only 19% but Amendments, Article VI as well as teenth 327, 107 Id. at black victims.” dants with customary interna- of the Constitution (cita- (Brennan, J., dissenting) applied and as law, face on its tional both omitted). tion to him. in dissenting four Justices As noted the First, highlights Petitioner in the disparities McCleskey, such racial the death disproportionate imposition on system cast doubt sentencing capital in the State on African-Americans penalty determinations capital sentencing whether discretion an abuse of indicating of Ohio as been, as practice, particularized have penal death seeking the by prosecutors Eighth Amendment: by the required arbitrary application as an ty, as well of a defendant or “[cjonsidering the race Eighth penalty death violation the penalty if death deciding the victim in Georgia, v. Furman under Amendment completely at odds imposed is should be 2726, 238, L.Ed.2d 346 33 92 S.Ct. 408 U.S. individual be concern an with [the] the (1972). Petitioner notes Specifically, being.” human unique evaluated as Afri between discrepancy striking racial 336, at 107 S.Ct. 1756 McCleskey, 481 U.S. in the Ohio representation American can (Brennan, J., Subsequent Su dissenting). (9%), repre such generally population “have reaffirmed decisions Court preme (49%).11 row death Ohio’s sentation mandates an Eighth Amendment that the argu- However, statistically-based any appropri the assessment individualized Petitioner’s, concerning ment, racial like Penry v. penalty.” the death ateness of application of death in the disparities 302, 317, 109 S.Ct. 492 U.S. Lynaugh, v. McCleskey must confront penalty, (1989). 2934, 106 L.Ed.2d 256 1756, 279, 107 S.Ct. 481 U.S. Kemp, Nevertheless, remains con- McCleskey Supreme Court L.Ed.2d statistically- ability of on the trolling evi- law a demanding McCleskey established dispari- racial concerning arguments based finding prosecutorial dentiary standard for applica- unconstitutional an ty to establish seeking the death of discretion abuse Although penalty. of the death tion is essential discretion penalty: “[b]ecause of Ohio’s in the State we racial imbalance justice process, would criminal to the glaringly ex- system is sentencing capital proof before clear exceptionally demand treme, the statistical more so than it is no has been infer that discretion we would with an admonishment error to cure the claims would of Petitioner's 10. Merits review least, did not very jury. At the our decision. the outcome have affected not trial, thus would at Carroll, 1380, object the remarks 26 F.3d v. United States Under Carroll. under to reversal not be entitled Cir.1994), improper (6th non-flagrant new may give rise to a prosecutorial remarks Prompts Row on Death Imbalance guilt 11. Racial only proof of trial if defendant’s Data, DEAL- Jury PLAIN to Get THE im- Call objected to overwhelming, defendant for ER, 1999 WL August the court failed at proper remarks disparities rejected by considered and penalty, the death imposition may such Supreme in McCleskey Court as insuffi arbitrary thus be in violation of Furman. cient to “demonstrate a constitutionally While the aggravated Ohio crime of mur- significant affecting 2903.01(B) risk racial bias § der under felony includes capital ... sentencing process.” murder, McCles which require prior does not cal- key, 481 U.S. S.Ct. 1756. And design, culation and imposing the death though is, say racial imbalance penalty felony for murder is consistent least, extremely troubling, we find that the Eighth with the Amendment under Tison prosecutorial discretion under the Ohio Arizona, 137, 158, scheme, death and the disconcert (1987), 95 L.Ed.2d 127 where the ing racial accompanying imbalances such Supreme Court found “major partic- discretion, fall, nevertheless under current ipation in felony.committed, combined law, Supreme Court within the “constitu with life, reckless indifference to human is tionally permissible range of discretion in satisfy sufficient to culpability the ... re- imposing penalty.” the death Id. at quirement” imposition of the death 107 S.Ct. 1756. penalty. We find that Ohio Revised Code 2903.01(B) is consistent with Tison.

Second, scheme, Ohio’s a mandatory as death pen Fourth, Petitioner argues that statute, alty shields death penalty deci no method of review exists under Ohio sions judicial from review violation of § Revised Code 2929.03 to ensure a prop Carolina, Woodson v. 280, North 428 U.S. er weighing and consideration of mitigat 304, 2978, (1976). 96 S.Ct. 49 L.Ed.2d 944 ing against factors aggravating factors. 2929.03(D) § Ohio Revised Code provides For imposing states the death penalty, that at the sentencing trial, stage of a the requires Constitution that the state jury’s finding that aggravating factors out define the crimes for which may death be weigh mitigating beyond factors a reason the way sentence in a that avoids stan able doubt must then result recom dardless sentencing discretion using mending the death sentence to the court. objective “clear and pro standards” that Woodson, Unlike the Ohio scheme does “specific vide guidance.” detailed not mandate the death penalty for any Godfrey Georgia, 420, 428, v. 446 U.S. particular crime, 2929.03(D), § and under 1759, (1980) (cita S.Ct. 64 L.Ed.2d 398 the death making process decision tions and internal quotation marks omit is not judicial shielded from review. Fur ted). As the district court discussed ther, in Boyde California, 370, v. 494 U.S. detail, the Ohio provides scheme such 374, 1190, 110 S.Ct. 108 L.Ed.2d 316 First, guidance. 2929.04(A) § provides (1990), Supreme the upheld Court a nearly that the death penalty for aggravated jury instruction, identical a finding where prohibited murder is unless eight one of that aggravating circumstances out aggravating circumstances can be shown. weighed mitigating circumstances mandat Second, if defendant is convicted of aggra ed recommendation of the death sentence. vated murder and aggravating an circum We find that the Ohio scheme is consistent 2929.04(B) shown, stance § can be affords with Boyde. Woodson and defendant great latitude in presenting

Third, argues Third, that mitigating factors. under because the Ohio scheme require 2929.03(D)(1), § does not prosecution’s it is the proof of a conscious desire to kill pre provide, burden to beyond a reasonable meditation doubt, and deliberation imposing for that the aggravating circumstances separate consideration the fails circumstances. mitigating outweigh from determi- circumstances aggravating the death Fourth, recommends if failing to thereby narrow 2929.03(D)(3), guilt, nation the court sentence, § under death-eligible defendants category the full evaluate independently must then 462 U.S. Stephens, Zant v. in violation of the aggravating reconfirm record to L.Ed.2d 235 103 S.Ct. mitigat- outweigh do indeed circumstances Court, Supreme The ing circumstances. Lowenfield 244-245, Phelps, 484 U.S. not resemble scheme does The Ohio (1988), found: 98 L.Ed.2d 568 “Georgia where Godfrey, scheme circumstances” “aggravating use a sentence ... affirmed Supreme Court itself, a means of but is not an end in finding than a no more upon death based class of death- narrowing genuinely or wan “outrageously that the offense ” channeling thereby persons eligible God vile, inhuman.” horrible and tonly see no reason discretion. jury’s We Spe frey, may not be narrowing function why this circumstances aggravating cifically, the at either jury findings performed by 2929.04(A) “specific provide under guilt trial or the phase of sentencing murders listing guidance”, detailed phase. Governor, President, law President, Vice requirement aggra- find the Ohio We under officers, or children enforcement proven at circumstances be vating hire; to es thirteen; murder murder phase of penalty, than rather guilt, crime; another accountability for cape is consistent trial Lowenfield. repeat or mass prisoner; aby murder wit murder; prevent Sixth, a criminal murder to (i) those murder Article VI violates testifying; from ness death sentence: crime; Constitution, every or violent which of under convicted the previously of the offender was of international by the where bound terms felony murder is state of is a States the commission the United in principal offender which treaties interna ag (ii) customary the committed murder violates aggravated party; this found and de court calculation law. The district murder with tional gravated barred, and for procedurally guidance to be the detailed find claim sign. We not shown cause under had Defendant circumstances which aggravating However, merits even review 2929.04(A) from distinguishable prejudice. § to be Peti afforded would not have in God- this claim sentencing of scheme the ill-defined relief.12 habeas tioner frey. that Seventh, argues Petitioner

Fifth, that the argues Petitioner violates electrocution by aggra execution scheme, proof of by requiring Ohio Revised Code Ohio Amendment. Eighth of guilt phase circumstances vating 290, Laden, F.Supp.2d v. States Bin international review of Petitioner’s 12. Merits omitted). (citation Customary (S.D.N.Y.2001) claim law customary international treaty and law, of date, the law from derived international that only have observed would nations, "general and consis- as is defined completely bars law "international claim that by from them practice of states followed tent penally ... is death use of this nation’s de legal obligation.” Siderman of not a sense is United States unsupportable since the 699, Argentina, 965 F.2d Republic pun- Blake v. prohibits capital treaty any that party to Cir.1992) (9th (quoting Restatement se, total abolishment per and since ishment (Third) Foreign Law of Relations yet to the not risen punishment capital has 102(2)(1987)). § United States law.” United customary international level of 2949.22(B) § provides option Florida, for 282, 302-303, lethal Dobbert v. 432 U.S. (cita- injection 2290, (1977) as a form of execution. A 97 S.Ct. 53 L.Ed.2d 344 recent omitted). law, tions and quotations internal providing amendment to Florida option injection for lethal in place of elec- argues that adverse trocution, Supreme caused the Court to publicity in his pervasive case was so an earlier grant dismiss certiorari to prejudicial prejudice may pre be by consider whether execution electrocu- sumed, Dowd, citing 717, v. Irvin 366 U.S. Eighth tion violates the Amendment. 1639, (1961), 81 S.Ct. 6 L.Ed.2d 751 Moore, 1133, Bryan 528 U.S. 120 S.Ct. Louisiana, Rideau v. (2000). 145 L.Ed.2d 927 Under 10 L.Ed.2d 663 2949.22(B), Ohio,

§ Irvin, like execution Flori- coverage media ninety per caused da, by need not occur cent of the 320 prospective jurors electrocution. to have Therefore, an opinion on guilt, defendant’s may ranging Petitioner’s claim be re- suspicion Irvin, from certainty. to near by dressed Petitioner’s opting against exe- 366 U.S. at Eight 2949.22(B). by cution under electrocution jurors the twelve ultimately who were em paneled already considered defendant Coverage/Due VI. Media Process guilty. Rideau, Id. In jurors three had argues Defendant seen a that extensive televised “interview” media with defendant jail, “in coverage flanked multiple Ohio of the the sheriff and two murders troopers, state admitting detail the indicted, which Defendant com had been as mission of the robbery, kidnapping, and prior well as his conviction the Walters murder, response to leading questions case, denied him a Supreme fair trial. The Rideau, the sheriff.” 373 U.S. at has Court found: 83 S.Ct. 1417. In this Petitioner has To hold that the mere any existence of alleged any particular juror was preconceived as to guilt notion or prejudiced by Rather, media coverage. accused, innocence more, of an without prejudice such is sufficient to rebut presumption presumed should be from the extent of prospective juror’s impartiality would coverage. However, media both Irvin and be to impossible establish an standard. Rideau involved clearly established actual It juror is sufficient if lay the can aside prejudice. inference, Petitioner’s ex impression his opinion or and render a tensive local media coverage of his prior verdict based on presented the evidence indictments and murder conviction en in court ... knowledge extensive in the juror sured impartiality and violation of community of either the or crimes process, due is inconsistent with Dobbert. putative criminal is not sufficient it- We find that extensive local media cover self to render a constitutionally age trial un- of Petitioner’s criminal activity, with more, fair. Petitioner in this out simply case has does process. not violate due shown that the community was made VII. Ineffective Assistance

well aware charges of the against him of Trial Counsel and asks us on presume that basis to unfairness of magnitude constitutional at Petitioner that his coun his trial. This we will not do sel’s failure to independently investigate absence of a atmosphere trial ... utter- mitigating person evidence Petitioner’s ly corrupted press coverage. background, al and present failure to such suffered defendant include whether which of the phase penalty at evidence time at or defect mental disease from a in viola- assistance ineffective constituted committed. was the offense Amendment. the Sixth tion of First the Ohio claim before this raised had that counsel court found The district District, Supreme Ohio Appellate a to desire conduct [Petitioner’s] “honored proceedings, Court, post-conviction in Ohio only hearing [Peti- with phase mitigation Therefore, the petition. in his habeas (J.A. at statement.” unsworn tioner’s] this found that correctly court district 403.) honoring Petitioner’s simply By barred, which procedurally is not claim found, wishes, court the district stated appeal. challenge on not does government assis- ineffective provided had not counsel Appeal at 69. Brief on Government trial. phase penalty tance at Washington, 466 v. Strickland Under finding, that its court based district 2052, 80 L.Ed.2d 668, 687, U.S. limit his to expressly wished prevail on (1984), for Petitioner un- to his own presentation mitigation claim, Pe of counsel ineffective assistance court statement, on a trial primarily sworn per that counsel’s both show titioner must Petitioner, and judge, among colloquy un unreasonable objectively formance dis- colloquy This counsel. Petitioner’s Amendment, such der the Sixth request not to decision Petitioner’s cussed Petition prejudiced performance deficient ex- or investigation mental pre-sentence a er. phase of prior to the amination of ineffective assis A claim trial: question a mixed presents tance of counsel understanding it is [Counsel], my THE COURT: fact; review we both therefore of law had an have opportunity you length whether discuss determi court and district the state court wishes request client your Bell, 218 F.3d Carter nations de novo. investigation and a pre-sentence cor- examination, is mental Rickman, at 131 F.3d (citing rect? 1153). includes both novo review Our de That’s correct. [COUNSEL]: components prejudice performance (cit claim. Id. ineffective assistance a decision? of an Has he made THE COURT: Strickland, 104 S.Ct. 466 U.S. ing understanding that at this It’s my [COUNSEL]: not wish a we do 2052). pre-sentence time investigation ex- or a psychiatric amination. requires States “The Constitution evi mitigating to allow consideration from your like to hear that I would THE COURT: do [Petitioner], you himself. client Carter, 218 F.3d capital cases.” dence inves- to have pre-sentence wish Carolina, North McKoy v. (quoting tigation? at 594 don’t. No, I [PETITIONER]: (1990)). this Consistent L.Ed.2d 369 mental ex- to have a wish Do you THE COURT: Revised Code Ohio requirement, amination? 2929.04(B) capital a provides § don’t. No, I [PETITIONER]: circum aggravating more if one that you ... reason Any well Very THE COURT: beyond a reason proved have been stances the sen- [Petitioner], why of, know tencing consider doubt, jury must the able proceeding of this portion not proceed? should circumstances “nature and weigh the character, and offense, history, the One moment. [PETITIONER]: offender,” as as well background counsel) (conferring with factors, mitigating enumerated several Judge, [COUNSEL]: at [Petitioner] this time ad- any evidence raised at trial that is rele- vises us that he feels that he would vant to the aggravating circumstances like have some additional time to think about the statement that the offender was found guilty commit- jury. he would like to make to the ting or any in mitigation factors of the THE COURT: Will consult with you client your imposition of the sentence of death ... long and ask him how of time he thinks is required? testimony and other evidence that is rel- evant to the nature and circumstances just [COUNSEL]: He has indicated previ- ous discussion that he would like the aggravating circumstances the of- overnight. to have at least (cid:127) fender was found guilty of committing, THE light COURT: well. In Very of the fact ... the mitigating factors set forth in divi- of the seriousness of this proceed- (B) ing, going sion of section 2929.04 of the Revised is to be request granted. *It will be until continued Code, any other factors in mitiga- morning. tomorrow tion of imposition of the sentence of (J.A. 2468.) at To further support its con- death, and shall statement, hear the if clusion that Petitioner to limit miti- wished any, offender, of the and the arguments, gation statement, to his own unsworn if any, of counsel for the defense and district court quoted from un- Petitioner’s prosecution, that are relevant to the sworn statement jury: to the penalty that imposed should be on the I am not going to draw it out. I decided offender. to cut it short. You all could have been Two additional elements further cloud here for the longest time. I told them I the record regarding precise under- preferred] you [that] go could back standing between Petitioner and his coun- home today Sunday you after left sel as to the extent of mitigation to be church. I am going to cut it short. I presented the penalty phase at of the trial: am not going to talk for 60 to 70 min- (i) the trial description court’s to the jury utes. procedural outline for the penalty (J.A. 2478-2479.) (ii) phase; and counsel’s closing argu- own ment. court, Unlike the district we see a

gap between Petitioner’s decision to waive At the outset of the penalty phase of the pre-sentence investigation and mental following Petitioner’s pre- waiver of a examination and Petitioner’s decision to sentence investigation and mental exami- limit mitigation exclusively nation, to his own un the trial court explained to the jury First, sworn statement. plain lan defense, if it choose, should so 2929.03(D) § guage of distinguishes pre would' statement, make an opening fol- sentence investigation and a mental exami lowed a presentation evidence, which nation from “mitigation”. Under in turn would be by a followed closing § 2929.03(D),where may death imposed be argument. The defense an open- waived as a penalty, pre-sentence “[a] investiga statement, ing but then presented both tion or mental examination shall not be Petitioner’s unsworn statement and coun- except made upon request of the defen closing sel’s argument. While Petitioner’s However, dant.” also 2929.03(D), under may wish indeed have been to limit mitiga- a jury weighing aggravating mitigat tion to his own statement, unsworn ing factors at the penalty phase capital of a record does support a conclusion, such trial may only hear not reports pre from a given both lack of a expression clear of sentence investigation and mental exami preference such by Petitioner and coun- nation, but also: sel’s present decision to closing argu-

447 First, reasons. it to, for several significant in length following, equal ment that Petitioner position undermines statement. unsworn present counsel not to had instructed his penal- argument at closing Counsel’s in behalf. evidence Petitioner’s mitigation focused on two issues: the trial ty phase of Second, counsel’s it casts doubt on defense Storey nature of the the circumstantial strategy under Ohio Revised mitigation evidence, of execution and the evils murder 2929.04(B).15 Third, § our doubt as Code closing argument chair.13 by electric extends to mitigation strategy to counsel’s any aspect of Petitioner’s reference did not advise his ability competently counsel’s to history. personal of purpose strategy client about the First, assuming Petitioner’s even similarly expressed Bat- mitigation. As of the the circumstantial nature focus on hampering to tenfield, [de- addition “[i]n on a “re premised murder evidence strategic make ability to counsel’s] fense mitigation theory, such a doubt” sidual decisions, failure to in- counsel’s] [defense rejected by the been strategy has since clearly vestigate background] [defendant’s Second, counsel’s Supreme Court.14 Ohio competently advise ability affected his mercy-based generalized, for a preference meaning of miti- regarding the [defendant] particu over a the electric chair critique of availability pos- of evidence and the gation of Petitioner’s social larized account Battenfield, mitigation strategies.” sible Tenth history mirrors the recent mental F.3d at 1229. 236 Gibson, decision, Circuit Battenfield counsel’s Particularly light of defense (10th Cir.2001), where F.3d mitigation, at the record presentation investigate [defen “failure to counsel’s support finding either this case does not to ex and his failure background, dant’s] Petitioner instructed his counsel readily apparent mitigation plore other or, present mitigation, at even evidence unreasonable his al possibilities, rendered instruction, that Peti- an assuming such strategy focusing penalty-phase leged understanding competing any tioner had mercy.” sympathy find the district strategies. We mitigation mitigation, regarding conclusion pre court’s find defense counsel’s We simply honored “counsel phase the trial that Petitioner’s at the sentation judgments sup- professional reasonable § was amend- Revised Code 2949.22 13. Ohio investigation.” Strick- option port the limitations on provide the for lethal ed in 1993 to 690-91, land, 104 S.Ct. 2052. 466 U.S. at injection of execution. Rev.Code as a form .22(B). counsel’s Petitioner's as to whether § At the time of "The determination only strategy ineffective assistance electrocution was trial amounts to respect to the Ohio law. of execution under of counsel should be made available form investigation that thoroughness pretrial McAninch, 235 acceptable White v. an miti- counsel conducted.” "Residual doubt is not 14. Cir.2000). "[Cjounsel (6th Revised Code 995-96 gating [Ohio ] factor under F.3d 2929.04(B), independent investi- it is irrelevant to the issue make some effort since must reasoned, informed gation defendant should be sentenced to make a of whether the in order McGuire, mitigating utility St.3d factors 80 Ohio [the to death.” State v. decision as Carter, 218 F.3d at by defendant].” 686 N.E.2d offered to conduct a constitu- Counsel "failed investigation into adequate pretrial tionally quality relationship between 15. The direct which, turn, mitigation potential evidence investigation quality of background and the strategic ability choices hampered to make "[Strategic strategy mitigation is well-settled. phase] proceedings.” regarding [penalty complete investi- made after less than choices Battenfield, F.3d at 1234. precisely to the extent gation reasonable are choices,” However, informed [Petitioner’s] baseless. applicable Faretta is not to (J.A. 403.) facts, these by Supreme as illustrated emphasis Court’s case on the defen- clear,

If the record indicated a informed independent, dant’s express legitimate assertion that he did self-representation: desire in wish his counsel to present any mitigation behalf, evidence in Petitioner’s case law Here, weeks before Faretta clearly may supported have the district court’s and unequivocally declared to the trial counsel, merely conclusion that respecting judge that he represent wanted to him- client, the informed wishes of a need not self and did not counsel. want The rec- have investigated presented any evi- ord affirmatively shows that Faretta was dence in connection with Petitioner’s back- literate, competent, and understanding, ground penalty phase at the of the trial. and that he voluntarily was exercising Supreme Court has noted: his informed will. free The trial judge [The Sixth speaks Amendment] had warned Faretta that he thought it counsel, “assistance” of assistant, and an was a mistake not accept the assis- expert, however is still an assistant. counsel, tance of and that Faretta would The language spirit of the Sixth required be ‘ground follow all the Amendment contemplate counsel, procedure. rules’ of trial like the other guaranteed defense tools Amendment, by the Faretta, shall be an aid to a 422 U.S. at 95 S.Ct. 2525. willing an organ defendant-not of the The Faretta decision included a lengthy interposed State unwilling between an colloquy between the judge and the unrep- defendant and right to defend him- defendant, resented discussing defendant’s self personally. To upon thrust counsel independent legal exceptions research on accused, against wish, his considered to the hearsay rule, grounds for chal- thus violates the logic of the Amend- juror cause, lenging a for proce- and trial ment. In such a counsel is not.an dure generally under California Codes. assistant, master; but a right Id. at 95 S.Ct. 2525. Defendant make a defense stripped of per- is Faretta, a high-school educated man who sonal upon character which the Amend- previously had represented himself ment insists. criminal prosecution, reasoned that he did Faretta California, 806, 820, 422 U.S. 95 not want to be represented by public (1975) (citations 45 L.Ed.2d 562 defender because that office was over- omitted).16 loaded with cases. Id. at Similarly, found, recently statement, this has Court own unsworn given at all. Mitchell, (6th Coleman v. Second, F.3d assuming gave such an Cir.2001) /”], [hereinafter "Coleman instruction, whether instruction was in- explained where counsel various presentation formed counsel’s of various phase defendant, mitigation options to the mitigation strategy options. Unlike Coleman and where the clearly defendant instructed I, the ineffective assistance counsel claim proceed counsel to a residual doubt the- questions, in this case specifi- raises different ory mitigation, counsel was not ineffective cally the substance and informed nature of following the defendant's clear and in- counsel, purported Petitioner's instruction to formed instruction. Conversely, the ineffec- requires review of a different record. analysis tive assistance in this case concerns Accordingly, I Coleman does not control Peti- First, two elements not at issue in Coleman I. tioner’s ineffective assistance of counsel claim purported whether Petitioner's instruction to in this case. counsel, mitigation to limit to Petitioner’s

449 calculat- of a no information sort at least a crimi- faced in Faretta Defendant 2525. as to reasonable doubt to raise ed theft. charge grand of nal put to ought man be young this whether case, in capital ato Faretta Applying informa- that It was not such to death. intelligence, with low volving a defendant found, that counsel not be or tion could past, unsettling and an education limited to withhold decision made a reasoned self-represen for demand strongest whose strategic for tactical the information “No, responses I don’t” consisted tation pre- not The information was reasons. pre-sentence a if wanted asked he when never jury because counsel sented to the evaluation, hol mental investigation and develop it. the time to took Requiring Amendment. the Sixth lows Peti investigate independently to counsel Bell, Court, 126 F.3d Austin v. This in not does background personal tioner’s (6th Cir.1997), reenforced Glenn: 843 accused, against upon “thrust counsel jury a Eighth requires The Amendment Faretta, at wish,” 422 U.S. considered his of the consider the circumstances to where, 2525, as especially 820, 95 S.Ct. background defendant’s crime and the both to indicate record fails this sentencing during the and character and the preferences mitigation Petitioner’s trial.... Consti- capital of a phase supporting such consideration informed to counsel requires defense tution also Faretta, affir “the record preferences. a defendant’s investigate reasonably li was that matively show[ed] [defendant] jury. it to the present background and understanding, and terate, competent, miti- present investigate or Failure to in voluntarily exercising he was that sentencing may con- at evidence gating Faretta, at 422 U.S. will.” free formed of counsel. ineffective assistance stitute rec There is no such 835, 2525. Glenn, 71 Austin, (citing at 848 under Far- 126 Also F.3d in this case. support ord omitted). 1206-08) (citations 1204, ‘made etta, be “must first F.3d a defendant then concluded disadvantages Court Austin dangers and This aware present investigate and to v. Court failure Martinez counsel’s self-representation.’” phase of 162, penalty 152, 120 at the evidence mitigating U.S. Calif., 528 Appeal of (2000) “did that counsel (quoting grounds 684, L.Ed.2d 597 145 S.Ct. 2525). good,” constituted any do it would Faretta, 95 422 at S.Ct. think U.S. Austin, at 126 F.3d assistance. no indication ineffective record offers Again, found Mapes Similarly, this Court case. aware in this made was so prospect faces the “when client Moreover, obli independent obtains unless counsel put to being death investigate to counsel of defense gation min- mitigation, something presents at evidence mitigating present investiga- some require standards imal trial is well- capital phase 426. This F.3d 171 at Mapes, tion.” v. In Glenn Court. by this established assistance found ineffective has also Court Cir.1995), (6th Tate, 1207 F.3d jury present “failed to counsel where denied cert. men- [defendant’s] view of a realistic (1996), found this Court L.Ed.2d 196 preparation inadequate status” due tal pen of counsel assistance ineffective Skaggs of the trial. penalty phase where: phase of a trial alty Cir.2000). (6th Parker, 235 F.3d virtually no informa given Further, defendant resistance character, history, [defendant’s] tion on not excuse does of information damage- disclosure organic brain background duty independently counsel’s gate preparation 'investi- for the penalty phase gate: capital of a trial. In addition to the Tenth decision, Circuit the Seventh

The sole mitigating source of Battenfield factors Circuit has that found “defense counsel’s properly cannot be information failure to investigate history the mental volunteer; may which defendant counsel a defendant with intelligence low demon- must independent make some effort at conclusively strates did not [counsel] investigation in order to make a rea- effort, make a significant based on reason- soned, informed as decision to their utili- able investigation logical argument, to ty. We find that reluctance on [defen- ably present the defendant’s fate to part present dant’s] a mental health jury and to focus the jury attention of the preclude defense or to should not testify any on factors.” mitigating Brewer v. Ai- investigation potential counsel’s of these ken, (7th Cir.1991) (cita- 935 F.2d factors. Under the American Bar Asso- omitted). tion and quotations internal ciation guidelines appointed for death Circuit, Eleventh in Blanco v. Singletary, counsel, penalty defense investiga- “[t]he (11th 943 F.2d Cir.1991), 1501-02 preparation tion for of the sentencing found ineffective assistance of counsel phase should be conducted regardless of where the “ultimate decision that was any by initial assertion the client that reached not to call witnesses mitiga- [for mitigation is not to be offered.” Ameri- was tion] not a result of investigation and Association, can Bar Guidelines for the evaluation, but was instead primarily a Appointment and Performance of Coun- result of eagerness counsels’ to latch onto sel in Death Penalty Cases 11.4.1.C defendant’s statements that he did not agree, therefore, We with the any want witnesses called.” district court’s conclusions defense Counsel in case at hand failed to counsel made no investigation into [de- present to the any aspects of Petition- family, fendant’s] social or psychological personal which, er’s history, according to background and that the failure to do so various psychiatric and psychological re- representation constituted at a level be- ports record, contained in the which objective low an standard of reasonable- turn myriad affidavits, relied on back- ness. ground reports, evaluations, and mental Carter, 218 F.3d at Specifically, included the following: Petitioner’s grand- defendant Carter violently “reacted to mother, caretaker, who his primary was the idea of a mental health defense [and] abused him both physically psychologi- never volunteered any information about cally, as well as neglecting him while run- family background [, or childhood and] ning her home aas brothel and gambling members of family were un [defendant’s] house. grandmother Petitioner’s involved cooperative.” Thus, Carter, Id. under Pe him in practice her by voodoo him having titioner’s decision to request pre- kill animals and their body parts collect sentence investigation or mental examina use in potions, her magic as well in- as tion did not relieve duty counsel of his structing Petitioner to eat only pre- food investigate background Petitioner’s in pared by her because she believed that preparation for phase their home was surrounded enemies trial. who wanted to poison them. Petitioner only

It is not this Court that has strong- exposed sex; to group in- sometimes ly established defense counsel’s Sixth cluding his or grandmother, mother as well duty Amendment to independently investi- bestiality as pedophilia. Petitioner’s had that Petitioner found Dr. Johnson time periods of lengthy spent mother personality disorder mixed probable said to have and was hospitals, psychiatric antisocial, obsessive fea- narcissistic leav- infant as an abandoned Further, psychiatric an earlier tures. Petitioner was can. garbage him in a ing in 1976 conducted of Petitioner evaluation two occasions hospital admitted Goldman, M.D., found that Peti- by Leo M. dropped out injuries. Petitioner for head Personali- a “Borderline qualified as tioner grade. in the ninth high school 895.) (J.A. at ty”. the phase of penalty the Prior to addition, subse- reports conducted In not contact either did counsel Petitioner’s trial, indepen- included which quent to whom Hilkey, both of Dr. or Dr. Johnson personal Petitioner’s of dent evaluation Pe- reports of psychological prepared had Petitioner, at time history, diagnosed Petitioner’s with in connection titioner personali- having borderline as of in the federal to stand trial competency disorder,17 organic brain of a likelihood ty Hilkey and Drs. Johnson kidnaping case. manic- probable as as well dysfunction,18 to mentally competent Elkun, found Drs. depressive psychosis.19 case, kidnaping the federal Ramsden, trial in that Petition- agreed stand Lewis and limited to the federal himself represent to finding competent this but was not er any phase include the trial.20 penalty and of charge, did at the kidnaping into Petitioner’s investigation independent found that has Supreme Court Petitioner had noted that Hilkey Dr. past. a defen- investigate to failure counsel’s emotionally himself as to present a “need for preparation in background dant’s project tendency to had “a and sound” trial constituted capital of a phase ... light psychological positive in a assistance, himself even when counsel ineffective (J.A. problems,” psychological high- deny argument, [and] an alternative presented 2742-43). Hilkey coop- 2710, 2725, Dr. also remorse the defendant’s lighting at mitigation: test re- police, elevated to have found Petitioner eration psychopathic comparative- sults under to introduce the failure —deviant a full-scale that as as evidence categories, well paranoia amount ly voluminous justified low-normal was not falling defendant] in the I.Q. [supported score of [defen- to focus on falling I.Q. by a decision verbal score tactical range, and a [T]hose voluntary re- confession.... dant’s] borderline limits of upper at clearly ... .demonstrate omissions range. tarded Lewis, Evans, Dorothy M.D. Otnow Elkun, M.D., Report Ph. 19. R. James 17. Leonard Ph.D., Ramsden, D., this reached and Mark reports. Dr. separate Elkun conclusion on Petitioner's did not Dr. Evans comment 20. was, opin- in his himself, that Petitioner commented ion, but noted represent competency to exemplary cases [of the most "one of per- suffering from borderline “persons have I seen personality disorder] borderline usually show extremes sonality disorder sees childhood quite time ... one some emotion, and transient impulsive behaviors replete with early adulthood infancy and and abuse, by delu- episodes psychotic characterized disruptive environ- dysfunctionality, sions, and disassociation. hallucinations who’s left fend an ... individual ment often other alcohol and abuse [Petitioner's] themselves, ... their own establish personality disorder drugs, borderline (J.A. if, fact, any.” they establish rules combination, almost dysfunction, brain 931.) have he extremes guarantee that would 874.) (J.A. at behaviors.” Evans. Report Dr. trial counsel did not fulfill their obli- probability” “Reasonable is “a probability gation thorough to conduct a investiga- sufficient to undermine confidence in the tion of the defendant’s background. outcome,” but does not require showing 362, 396, Taylor, performance Williams v. counsel’s unreasonable 146 L.Ed.2d 389 (2000)(citing likely more than not altered the outcome 4-4.1, ABA Standards for Criminal Justice 693-94, in the case. Id. at 104 S.Ct. 2052. (2d ed.1980)). commentary, p. 4-55 “Mitigating evidence unrelated danger ousness may jury’s Reasonable alter the investigation by selection of counsel would produced penalty, have at least a if sampling of even it does not undermine or . the background provided information prosecution’s rebut death-eligibility reports above because those relied on var- Williams, case.” 120 S.Ct. at 1516. ied, sources, including discoverable school graphic description “[T]he of [defendant’s] records, records, records, hospital prison childhood, filled with privation, abuse and records, prison records, police medical reality that he was ‘borderline men by family statements members and ac- retarded,’ tally might well have influenced quaintances, previous psychiatric psy- and jury’s appraisal culpabili of his moral evaluations, chological pre-sentence and in- (citation ty.” omitted). Id. at 1515 The vestigation reports. production While sentencing phase likely is stage be “the the F.B.I. records on Petitioner’s back- of the proceedings where counsel can do ground would have assisted counsel’s in- his or her Glenn, client the good,” most 71 vestigation, F.B.I. retention of those rec- Thieret, F.3d at (quoting 1207 v. Kubat ords did not helpless. render counsel (7th Cir.), denied, F.2d cert. Williams, Carter, Under Skaggs, Austin U.S. 107 L.Ed.2d 159 Glenn, performance, we find counsel’s (1989)). It is reasonably probable that given the combination of Petitioner’s unin- informing a jury capital of a defendant’s vestigated personal history and the conse- I.Q., low deprived background, psychi quently deficient penalty phase closing ar- problems atric would affect the balance of gument, objectively to be unreasonable. aggravating and mitigating circumstances negative Petitioner’s responses to the trial that had previously resulted in the death questions court’s regarding option for Brewer, sentence. 935 F.2d at 858-859. pre-sentence a investigation and mental evaluation do not establish Faretta find, as con- We given personal Petitioner’s trolling in the precedent face of substantial background, psychological history, po- by Supreme Court and this Court on organic tential dysfunction, brain that it is counsel’s independent obligation to investi- reasonably probable presentation that the gate personal background of a defen- of even a substantial subset of the mitigat- preparation dant in penalty phase for the ing evidence detailed above “would have capital of a trial. humanized [Petitioner] before the such that at juror least one could have

However, for objectively such un found he did not deserve the death penal- performance reasonable to constitute inef ty.” Carter, Therefore, 218 F.3d at 592. fective counsel, assistance of Strickland Strickland, under requires counsel’s objectively un- prejudice, Petitioner show performance satisfied reasonable showing a at probabil penalty reasonable ity phase that but for performance such which likely the trial affected the outcome would have been different. outcome such that confidence in the result- Strickland, 466 U.S. at ing S.Ct. 2052. undermined, death sentence is consti- Moreover, found, Supreme has in violation of Court ineffective assistance tuted showing capital “absent a the ... Amendment. the Sixth punishment system operates in an arbi Proportionality manner, Review capricious VIII. trary [a defendant] prove cannot a constitutional violation 2929.05(A) § re- Ohio Revised Code demonstrating that other defendants who appellate courts to review quires Ohio may similarly be situated did not receive proportionality: “[i]n death sentences penalty.” McCleskey, the death 481 U.S. of death determining whether sentence 306, 107 S.Ct. reviewing shall appropriate, court] is [the Further, Supreme the Ohio Court’s re excessive consider whether the sentence is view of Petitioner’s death sentence under imposed disproportionate to the 2929.05(A) particular in this which cases.” similar consisted of citations to “similar” cases Eighth Amendment bars involving murders were “aggravated which dispropor punishments grossly which are part involving of a course conduct crime. See corresponding tionate to their kill purposeful killing attempt of or two 584, 592, 97 Georgia, Coker persons”, or more mirrored the state court 2861, 53 L.Ed.2d 982 upheld McCleskey,21 review McCles opts to act in a field a State “[W]hen key, Supreme upheld Court the review significant its action has discretion where ing support state court’s for its conclusion elements, act in ary it must nonetheless proportionality, of which consisted of cita the dictates of the Constitu accord with “involving generally to cases similar tions tion-and, particular, in in accord with the McCleskey, 481 murders.” U.S. Lucey, Evitts v. Due Process Clause.” 107 S.Ct. 1756. 387, 401, 83 L.Ed.2d U.S. that, Accordingly, we find under Proffitt (1985). proportionality review un- McCleskey, 2929.05(A) that the State pro- § der does not violate due Ohio, opted proportionality re having also Eighth cess or the Amendment. We view, applied constitu has not such review Supreme Court’s reli- find that the Ohio tionally. Specifically, Petitioner claims involving the ance on similar cases 2929.05(A) determining § 2929.04(A)(5) standard penalty specification death “the sentence is or dis whether excessive finding proportionality support its imposed in proportionate penalty to the constitute, this case did not under Proffitt inadequate because re similar cases” is appli- McCleskey, an unconstitutional their review viewing courts need to base review. proportionality cation of comparison than mere of death more above, we the reasons set forth For sentences across cases. PART IN AFFIRM IN and REVERSE decision; we AF- However, PART the district court Supreme upheld has Court respects judgment guilt Florida law FIRM all proportionality review under verdict, jury’s guilty but entered on the where court “decisions are reviewed the death judgment they are with other REVERSE ensure that consistent of the ineffective assis- circum- sentence because imposed similar sentences Florida, phase of penalty at the tance of counsel stances.” U.S. Proffitt REMAND the case -to the the trial. 49 L.Ed.2d 913 We Coleman, 544 N.E.2d at 634. having reporters district court with instructions to issue a told that he was “real corpus writ vacating surprised” of habeas Petitioner’s jury imposed when the Walters death sentence in Case Number 98 3545 penalty, the death and that he “didn’t ex- due to ineffective assistance of counsel at it pect at' all.” Also in the voluminous phase unless the record post- is Coleman’s initial state-court penalty pro- State of Ohio conducts new petition. Paragraph conviction 364 of that ceeding days within 180 after remand. petition, part fifty-sixth which is of his decision any This does affect other relief, claim for is Coleman’s claim that he against sentence Petitioner. “specifically, consistently adamantly” cooperate refused to in any way any with BATCHELDER, Judge, Circuit investigation mitigation. into Concurrence-Dissent. It is true that the record from Cole- I opinion concur all of the majority trial for Storey man’s murder does not except portion that concludes that reflect that actually Coleman was advised death Coleman’s sentence must be re- during options that trial of his regard versed because his counsel were ineffective penalty phase to the of the trial. Howev- during penalty phase of the trial. er, it is also clear from the materials Cole- The sentence of death we are called presented court, man has to this habeas as upon to review in proceeding this habeas well as from opinion this court’s in the imposed approximately six weeks af- case, companion habeas that he was well ter a jury imposed different a death sen- options; aware of those that he was com- tence on Coleman for the murder of Mar- petent made; to make the choices he lene Walters. This court affirmed the certainly that he knew the time the district peti- court’s denial of Coleman’s guilty Storey verdict case was hand- tion for a writ of corpus habeas in that ed down that only he not could but should Mitchell, case. Coleman v. 244 F.3d 533 provide some kind of reason not (6th Cir.2001). In that we held that: impose another death sentence. He

Coleman admits that cooper- he did not affirmatively right waived his to do that. ate with counsel regarding the investi- Even if his counsel were required under gation and identification of mitigating Bell, the reasoning of v. Carter 218 F.3d evidence; imposed upon restrictions (6th Cir.2000), to undertake an inde- counsel; and refused to submit to fur- pendent investigation and to present evi- ther psychological psychiatric or testing. dence in mitigation, hold, I would for es- presenting Coleman with op- After sentially the same reasons in stated the tions, proceeded counsel with the resid- case, companion habeas see Coleman v. ual theory doubt only at Coleman’s di- Mitchell, 244 F.3d at that counsels’ rection. Coleman competent was to conduct was not deficient here. I acknowl- competent stand trial and to assist his edge in that case this Coleman did not lawyer strategic with choices. actively participate in the as he did in (first added). Id. emphasis at 545 murder, his trial for the Walters but he

In the presented voluminous record clearly so, to knew that had he chosen to do this court in the proceeding habeas before he could have. The record in this case today, us Coleman large includes a collec- does not show that he ordered his counsel tion newspaper of detailing pursue articles the the approach residual doubt proceedings in here, Among Walters case. as he did in the other and I those articles are accounts of Coleman’s acknowledge that this a significant is dis- believe, girls African American year old I cases. the two between tinction Indiana, murdered clearly by dem- one of whom was however, record here that the actions of Coleman’s murder of ligature strangulation; a onstrates him in represent did not African trial counsel-who old American twenty-five-year representing trial but were the Walters ligature strangula- in Indiana woman entire during matter Storey him in the tion; battery Michigan; car theft taking trial was the Walters time that Ohio, murder, African American of an in- “based, properly, on quite place-were nine-year-old daughter and her woman de- made strategic choices formed family bracelet by strangulation, whose by the supplied on information fendant and body of Sto- later found under was Washington, Strickland defendant.” Ohio; battery car theft and rey; 104 S.Ct. and car theft in an additional murder 674(1984). L.Ed.2d Ohio. performance here was if counsels’ Even view, my at 440 n. 9. In Supra majority has been deficient, find that there I would alone a reason- probability nois there —let to meet prejudice sufficient showing of no jury would probability have able —that Coleman prong of Strickland. the second penal- against imposing death decided a there was to show required of the evidence of ty had it been aware that, but for coun- probability “reasonable that he childhood miserable now Coleman’s errors, the result unprofessional sel’s have his counsel should unearthed claims different. would been have proceeding spite of his adamant obstruction and probability a probability is A reasonable cooperate, presented in the refusal to confidence to undermine sufficient objections. over his jury Id. at outcome.” make this wholly failed to has Coleman any probability is do I think there Nor Storey in the case jury showing. to submit a Coleman requiring murder of aggravated Coleman convicted examination psychiatric psychological that the child, specification a an ex- presenting the results such a course of murder was aggravated part produced have to the would amination killing of or involving purposeful conduct was found result. Coleman different That persons. to kill two or more attempt at trial. his counsel competent to assist of Cole- it the jury had before evidence make the competent to therefore He was conduct, de- man’s murderous course to have he wanted whether determination as “a Supreme Court by the Ohio scribed a mental ex- presentence examination a plan of criminal activi- identifiable unique, to have any refused Coleman amination. Coleman, 45 Ohio St.3d ty.” v. State jury— argued to and then examination majority 544 N.E.2d any expert testimo- fear of current without plan- notes that this correctly here opinion he contrary1 to or evidence ny span of the summer the brief during —that mentally ill. Coleman was in fact was 1984—included: decision, but he is to make that entitled by ligature abduction murder prej- finding a of Strickland entitled to not nine-year African of a old strangulation that decision the result Wisconsin; because in udice car theft girl American for. hoped had not what he Illinois; or ten- nine- was abduction two §§ 2929.024 law, Ann. Code alone could have Ohio Coleman Under 2001). 2929.03(D)(1)(West Ohio Rev. See such examinations. requested Finally, simply sup- the record does not

port majority opinion’s conclusion that

the fact trial counsel made that Coleman’s jury closing argument to undermines position instruct- State’s Coleman present

ed his mitigation counsel not closing

evidence. argument Counsel’s did

not mitigation even mention evidence. It impassioned plea dramatic and subject Coleman to the electric chair. wholly

It was consistent with Coleman’s attempt persuade

own that if him,

they penalty voted for the death it

would be that much easier for them to

impose the death the next time

they upon were called to make such a

decision.

I respectfully therefore dissent from portion majority’s opinion hold-

ing that the death sentence must be re-

versed because of ineffective assistance of penalty phase

counsel at the of the trial. MORGAN, al.,

Hattie M. et

Plaintiffs-Appellants, BOARD,

JOINT ADMINISTRATION

RETIREMENT PLAN OF THE

PILLSBURY COMPANY AND

AMERICAN FEDERATION OF MILLERS, AFL-CIO-CLC,

GRAIN

Defendant-Appellee.

No. 00-3859. Appeals,

United States Court

Seventh Circuit.

Argued April

Decided Oct.

Rehearing Rehearing En Banc

Denied Nov.

Case Details

Case Name: Alton Coleman v. Betty Mitchell, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 10, 2001

Citation: 268 F.3d 417

Docket Number: 98-3545

Court Abbreviation: 6th Cir.