Billy Joe Sowell v. Margaret Bradshaw, Warden

SOWELL, Petitioner- Billy Joe

Appellee, Warden, BRADSHAW,

Margaret

Respondent-Appellant.

No. 02-3441. Appeals, States Court

United Circuit.

Sixth 29, 2003.

Argued: Oct. 23, 2004. and Filed: June

Decided History (argued and Laan Mark A. Vander facts Procedural And briefed), R. McDowell Christopher As the that underlie Sowell’s facts Shohl, Cincinnati, (briefed), & Dinsmore controversy, we rely are not in (briefed), H. OH, David L. Porter Randall Appeals’s the Ohio Court of version: Office, Ohio Bodiker, Defenders Public The record discloses that and [Sowell] Com’n, Columbus, OH, Public Defender adjacent in resided [Calvert] Graham Petitioner-Appellee. for floor apartments on the third of an apartment building in downtown Cincin- (ar- Atty. Collyer, Asst. Gen. L. Michael manager nati. the resident was [Sowell] briefed), Attorney Office of gued and acquainted of the and building became Ohio, Cleveland, OH, Charles General of Graham, performed -with who occasional (briefed), Attorney Office L. Wille jobs building. Af- apartment odd at the Columbus, OH, Ohio, Re- for General of in ter Graham became resident [So- spondent-Appellant. apartment building, the two men well’s] developed friendly relationship BATCHELDER, MOORE, and Before respective in their visited one another ROGERS, Judges. Circuit residences. ROGERS, J., delivered opinion May days prior On three BATCHELDER, J., court, offenses, in which [Sowell] instant was MOORE, 838-11), joined. (pp, guest apartment. J. Graham’s Also (Ed- separate dissenting opinion. present were Donna Edwards delivered a wards), a with whom Graham woman OPINION apartment, Billups [Pam] shared former who had been visit- prostitute [a ROGERS, Judge. Circuit Graham ing Edwards]. Graham and of- indicted of Ohio Petitioner state marijuana cigarettes two to [So- fered murder, Billy stipula- with Joe for well], accepted. which he Thereafter penal- tion could receive the that he death fin apartment the com- left the [Sowell] counsel, ty. on advice of his So- Relying pany proceeded to near- Billups opted by a three-judge well to be tried purchased din- restaurant where panel jury. than rather 12-member restaurant, ner for her. En route to the Sowell’s counsel was confident that one of marijuana smoked the second [Sowell] judges panel on the would refuse three cigarette, having consumed first at panel death. The neverthe- recommend Thereafter Graham’s residence. imposed penalty, less So- hotel way made where pair their appeals through well’s collateral direct and There con- a room. was [Sowell] rented the Ohio courts were unsuccessful. On concerning the flicting testimony events review, however, federal the dis- habeas However, transpired thereafter. trict granted corpus, writ of habeas eventually disputed [Sowell] is not jury waiver consciousness, was having lost consumed intelligent, and that his coun- knowing and unspecified quantity during wine marijuana. evening sel was the dis- to the .ineffective. We reverse in addition way trict of a writ next made grant morning [Sowell] court’s of habeas his residence, stopping along he has back his corpus to Sowell because not dem- his Billups. route to obtain breakfast his onstrated that was intelligent Billups or that counsel next encountered [Sowell] his 4,May Billups the afternoon of was ineffective. company of Edwards and the sult pedigree, her Graham ordered [So- to leave the doorway premises. well] of a passed [Sowell] trio store but left, stating going that he to obtain As acknowledge did not one another. his gun, Billups. return and shoot seen, seemingly inconsequen- will be went meeting gained directly apart- [Sowell] to his significance tial later ment where he directed his common-law day. wife, Waugh (Waugh), bring Lenora evening That returned to [Sowell] gun him. Waugh complied after, building according to apartment request, as well with [Sowell’s] testimony, visiting no less than five accompany instructions to him to Gra- consuming taverns and least one dou- apartment. Upon ham’s returning stop. Upon ble of vodka at each shot door, Waugh, Graham’s at in- [Sowell’s] returning apartment building to his [So- struction, knocked and indicated to was realized that he the well] those inside that she was a woman evening, retire for in- mood to the and responded named Portia. Graham at presented stead himself Graham’s the opened door and it. Edwards and apartment. greeted Graham [Sowell] testified, Billups and the trial court inside, him and invited where Edwards found, way [Sowell] forced into Billups present. and were also Graham the apartment, firing a bullet from his produced marijuana cigarette which handgun into the as he ceiling entered. occupants. all was consumed four Billups’s demanded to know [Sowell] testified the trial [Sowell] before whereabouts and threatened shoot following consumption the her. Graham was able to calm [Sowell] marijuana, asleep he fell for a short began apart- and escort him from the time. When he awoke the others were door, ment to close whereupon and the still present and discovered [Sowell] suddenly and shot [Sowell] turned Gra- approximately been removed $190 fell, ham in the abdomen. As Graham from pocket. his trouser At first [So- fired a shot [Sowell] second into Gra- thought that playing well] the trio was floor, ham’s skull. Graham to the fell joke him; however, upon requests mortally wounded. for money the return of his received no way next made his [Sowell] response. [Sowell] further testified that in which Billups cowering, closet was then picked up Graham knife and or- and three into her body. fired bullets dered to leave residence. [Sowell] placed Billups’s next gun [Sowell] complied departed, and [Sowell] he pulled trigger. forehead and How- extremely was angry as result of his ever, gun expel did not a bullet loss. no longer because it ammuni- contained Billups Both and Edwards told the tion. left apartment [Sowell] after trial court that visit to [Sowell’s] warning Edwards not prem- to leave the apartment day question was at ises or would shoot her also. [So- However, friendly. first soon [Sowell] apartment, returned to his well] ob- agitated Billups became and accused money way tained and made his being unsociable in that she did nearby appre- tavern where he was him speak to earlier that afternoon. police. hended Billups also accused of stealing [Sowell] regarding testified the shoot- [Sowell] him during from their $24 encounter ings and told the court that he returned days three earlier. When re- apartment [Sowell] to Graham’s to demand his Billups in money ferred to terms meant to in- and that he was confronted Graham, aggravated murder violation of Ohio was armed with knife. who (“O.R.C.”) 2903.01(A), § after Revised stated Code [Sowell] furtive attempted made a movement one count of murder in violation Graham Graham, 2903.01(A) shooting 2923.02(A). §§ at began [Sowell] O.R.C. the ceiling. struck that one the bullets count aggravated murder contained as fol- explained conduct ag- [Sowell] capital specification alleging that just, just “It I clocked out. When lows: gravated part murder was course of just Iway person going I seen involving aggravated murder conduct I I on my gun, was pivoted, pivoted attempt murder person of one angry, I I shoot- shooting, was started 2929.04(A)(5)(“Im- § another. See O.R.C. everybody I just shooting ing, started position aggravat- seen.” precluded, ... ed murder is unless C-880835, 1986 ... following specified No. WL in the indictment Ohio 1986) (Ohio Aug.20, *1-*2 Ct.App. proved beyond doubt: reasonable (footnotes omitted); see Ohio So part also ... a course the offense bar well, Ohio 530 N.E.2d purposeful killing St.3d involving of conduct (Ohio 1988). 1297-98 attempt persons of or to kill two or more offender.”).1 by the Proceeding Trial Court The 1983, 26, appeared a On Sowell May County Hamilton October On judge, Judge before the trial Crush. So- jury Sowell on one count of grand indicted 1. Fox sentencing system. Cir.2001), against the ble for the death method more ment an individual has ting capital lowing mental must determine whether the cumstances quired doubt.” ground circumstances one or more of In § charged offense, circumstance doubt, [O.R.C.] In 2929.04(A) outweighs weighing three-judge panel common penalty. ... circumstances the nature and circumstances Coyle, offense, factors to determine whether § with a briefly mitigating a series and [O.R.C.] disease, 2929.04(B). "weigh penalty, Ohio presented by the defendant. history, proved beyond a reasonable proved offender, An individual becomes [listing "is capital the nine summarizes aggravating circumstances against been specified § factors, 2929.04(A).... statutory aggravating character, beyond factors such listed [or offense the and all found statutory aggrava- states 658, three-judge uses jury is the only mitigating provocation].” Ohio’s in the indict- an individual a reasonable 664-65 presence of receives the aggravating guilty and back- if one or weighing then] [O.R.C.] employ capital of the panel Once eligi- of a age, cir- fol- re- tence of opinion mitting gating cumstances court or stances the offender [O.R.C.] "the reasons tried was found the vating mony the nature the sentence of found factors in evidence raised at trial that court, the the 2929.04 of the Revised factors in fense and factors set forth in statement, offender. arguments, sentence aggravating penalty that factors.” by were sufficient and other evidence and guilty of death, three-judge panel § circumstances 2929.03(D)(1). Finally, prosecution, found to be jury, the aggravating and mitigation mitigation if guilty if why any, trial any, [O.R.C.] death, circumstances of committing, circumstances the must death, ^[1] should of was found of the jury shall consider division committing and specify of the of the aggravating Code, counsel § that are relevant ^[2] present the offender was be if outweigh 2929.03(F). offender, imposes the ^[3] shall hear imposed on the mitigating cir- the (B) and guilty imposition of imposition of shall is relevant offender relevant as well the mitigating of section or any other offender hear the separate and circum- ... the aggra- testi- com- miti- sen- any any the the de- as Cole, well appeal, 112, waived see Ohio Ohio St.3d by three-judge panel, (Ohio asked to tried 1982) (set- 169, 443 N.E.2d 170-71 capital as Ohio’s scheme allows. See ting raising out Ohio’srules for new claims began § 2945.06. on O.R.C. Trial October post-conviction on appeal), the court in- 18, panel and on October 20 unani- stead found more indirect default mously guilty found of all charges, Sowell holding serving” that Sowell’s “self affida- including capital specification. The vit was insufficient to the presump- rebut (also phase sentencing “mitiga- called the validity tion of established his and his and, 2, tion phase”) was held on November attorney’s on-the-record assurances to the panel on following day, sentenced trial court that was knowing aggravated Sowell to death on the murder Overall, and intelligent. granted years count and to 25 on the attempted summary judgment to the state. murder count. waiver, respect With to his Appeal The Direct appealed Sowell to the Court Ap- Ohio appealed to the Ohio Court of peals argued that he was entitled to Appeals, which affirmed the conviction and relief “he promised because a life sen- Sowell, August sentence 1986. tence trial attorneys if he waived his Supreme WL Court 9082. of Ohio right trial.” J.A. affirmed, similarly on November claim, new further argued see 39 Ohio St.3d 530 N.E.2d trial counsel was due to ineffective their 1294; Supreme the U.S. Court denied waiving a adequately without Ohio, certiorari, see Sowell v. 490 U.S. assuming Appellant’s life would be S.Ct. L.Ed.2d 999 spared. A should be waived if (1989). This ended direct appeal. counsel has received sufficient assur- far, complained Thus Sowell had not that panel ances that a three judge will in jury his of waiver trial had been invalid. spare fact the try accused’s life. To the The State Proceedings Post-Conviction case without sufficient assurances does 20, 1989, On December Sowell filed in not meet the prevailing standards of the County Hamilton of Court Common practice capital for attorneys. defense post-conviction Pleas a petition that raised (citations omitted). J.A. at 341 The Ohio relief, 41 claims for 29th the of which Court of Appeals agreed the argued that jury Sowell’s waiver was not that Sowell’s affidavit was not knowing, voluntary, intelligent. His enough presumption to rebut the estab- sole for support this claim was an affidavit lished representations Sowell’s to the to the petition, attached which he original trial court that his waiver was averred that he had waived his Sowell, knowing and valid. Ohio v. because counsel had 672, 136, App.3d Ohio 598 N.E.2d him that assured he would not receive a (1991). The Ohio Court of Appeals did not death sentence if he went with a three- address Sowell’s current ineffective assis- judge stated, panel. Specifically “I tance argument, apparently finding that it would my right not have waived to a trial procedurally id. defaulted. See at 142. my counsel had informed me subsequent appeal the Supreme my such a waiver would mean that life Ohio, appeal again Court of which raised spared.” would be J.A. at 262. Though issue, waiver for trial court could found was dismissed have that he procedurally jurisdiction. lack on this of defaulted claim Ohio v. 1456, (1991). because he could it on have raised direct Ohio St.3d N.E.2d Petition, Fourth Claim asserted Sowell’s waiv- Initial Habeas The Federal constitutionally of a trial was inad- Application er the Murnahan equate. petition habeas filed a federal Sowell parties For five liti- years, the next 1992, court dis of but district

April issues, including discovery, for petition prejudice gated without various missed exhaustion, record, finding briefing, that Sowell expansion merits lack his ineffective assis perhaps raise granted could Sowell should be an whether via counsel claims appellate tance hearing. In 1994 evidentiary the Warden newly-created of Ohio’s Court Supreme sought have 31 claims— of Sowell’s procedure.2 How application Murnahan including Thirty-Fourth claim but ever, denied his Murna the Ohio courts procedural the Fifth —dismissed due to de- Sowell, 67 Ohio motions. Ohio han February fault. On 622 N.E.2d St.3d Opinion court issued an and Order defaulted, Present Habeas Petition Federal six the claims were Thirty-Fourth claim not. peti- habeas his federal Sowell renewed month, following on March 52 claims. May raising on tion hearing evidentiary filed a motion an claims are involved Only two these claims, including of his the Fifth on various They are as follows: present appeal. Thirty-Fourth. Earli- Ground but not The action of Fifth Ground for Relief. er, January Sowell had filed deprived Petitioner Sowell trial counsel evidentiary requested an traverse the effective assistance On hearing Thirty-Fourth on the claim. the trial case during phase counsel September year, 29 of the same the dis- Sixth, Fifth, Eighth in violation of Opinion trict issued an and Order to the and Fourteenth Amendments granted evidentiary hearing for the States Constitution. United on the Thirty-Fourth Fifth and the claims post-convic- court’s grounds that state Thirty-Fourth for Relief. Peti- Ground inadequate to resolve findings tion “were waiver of a tioner Sowell’s dispute petitioner’s of whether the factual intelligently knowingly, which was not as- was induced erroneous voluntarily entered violated his Sixth, attor- part the on the as surances rights guaranteed ” Amendments to at 427. The court also Eighth neys and Fourteenth .... J.A. Constitution. the United States to the record expand allowed Sowell Piñales, irom including an affidavit Martin 95, Fifth Claim as- 157. Sowell’s J.A. attorneys, the of his two trial one had not received suffi- serted counsel expan- the second waiver issue. This was that a waiver would cient assurances by the court granted of the record Thirty- the sion penalty, the death avoid 60, Murnahan, alleged the error appellate court in which 63 St.3d Ohio v. Ohio 584 65, (1992) St.3d at 584 place. 1204 case handed down took See 63 Ohio N.E.2d —a couple of before Sowell filed fed- Notably, procedure months re- N.E.2d at 1209. petition Supreme Court of eral habeas procedure that quired by Murnahan was the —the considered whether a defendant could Ohio by the required at least 1983 had been since appellate complain of assistance of ineffective County, Appeals Ohio Court of in Hamilton proceedings post-conviction counsel in state appeal were con- Sowell’s trial and where post-conviction appeal stat- under ute, state's C-820640, Rone, Ohio v. No. ducted. See § court held that O.R.C. 2953.21. The (Ohio Aug.31, Ct.App. at *4 1983 WL this, do and instead must defendants cannot 1983). delayed reconsideration with file motion for 828 issue,

regarding since ear- death. The court did not address Sowell’s court litigation lier in the had allowed grounds for relief. The Warden correspon- add to record Sowell to amend, a motion alter filed to or which the post-conviction Piñales and dence between denied, stay, court and a motion to which on this issue. counsel Warden, granted. court currently Bradshaw, Margaret The district court conducted an eviden- appeals. now 21, 1999, tiary hearing on which April Piñales, presented Sowell four witnesses: discussion (a neuropsychologist), Dr. Gelbort (an “attorney-ex-

and Donald Schumacher Since filed pe Sowell his habeas pert”). hearing, At Piñales to prior testified pre-AEDPA tition standards life spared belief Sowell’s would be Collins, apply. Powell v. F.3d three-judge panel because of infer- (6th Cir.2003). standards, Under those we Judge ences from his discussion with de legal review novo a district court’s con pretrial Crush at a conference.3 Piñales in granting clusions a writ of habeas cor strongly admitted that he suggested to pus, for clear error the district court’s three-judge pan- Sowell that he choose the findings. Brigano, factual v. Wolfe el to penalty. avoid testi- (6th Cir.2000). The writ of fied that he “had faith and conviction and corpus may only habeas issue the state attorney” “thought belief in [his] proceedings were fundamentally un going get wasn’t [he] fair a result aof “violation of the Con penalty” by waiving jury. J.A. at 573. stitution or laws treaties United opined Dr. ability Gelbort that Sowell’s 2254(a); § States.” See 28 U.S.C. Estelle reason, ponder and into project the future McGuire, 62, 67-68, 502 U.S. 112 S.Ct. percent were in the two bottom L.Ed.2d The state population. that Pi- Schumacher stated court’s findings factual are entitled to a counseling ñales’ with Sowell—a client presumption correctness, which is re abnormally low intelligence deficient —was only buttable by convincing evidence. 28 because the “downside” choice was 2254(d) (now § repealed)4; U.S.C. not explained by counsel or in the waiver McQueen Scroggy, colloquy the court. (6th Cir.1996). This presumption ap On October the district court plies basic, primary, facts, or historical granted partially a conditional of ha- writ “implicit fact, findings logically beas corpus, finding prop- that Sowell had deduced because the trial ability court’s erly waived his in relation adjudge the witnesses’ demeanor and phase trial, guilt of his credibility.” McQueen, 99 F.3d at 1310. sentencing phase. left undis- presumption apply does not to mixed 25-year turbed 7- Sowell’s to sentence for questions fact, of law and or questions of murder, gave attempted Ohio the op- law, both of tion which are de retrying entirely, reviewed novo. Sowell or of leav- ing Mitchell, place the in Coleman v. imposing conviction 244 F.3d any,sentence (6th Cir.2001). permits, Ohio law than 3. "impression Piñales testified his § that of the opinion All citations to in this refer overview of what occurred” was that Piñales pre-AEDPA to the version. "got feeling Judge the in the discussions with waived, Crush that aif was this would capital not be a case.” J.A. at 525. the to the state courts under same sented Default I. Procedural theory in it is presented which later Jury A. Waiver Abandonment of Wong Money, court.” 142 F.3d federal Sowell’s Post-Conviction Claim in (6th Cir.1998); 313, 322 see Prather v. Appeal Cir.1987) Rees, argu Contrary to the Warden’s (“[I]f merely difference variation ment, ineffec did not his Sowell “abandon” legal theory, rather than different tive-jury-waiver post-convic claim in his claim, legal petitioner] has ex- [then raised appeal. tion Sowell first claim.”). Wong, his peti- hausted post-conviction proceed in his waiver issue had to argued tioner the state courts that his the Ohio trial court as ings before failing her counsel ineffective for to was action, arguing that twenty-ninth cause of defense, insanity an but on present appeal “Petitioner Sowell’s waiver attempted argue to in addition that she knowing intelligent waiver not was premature- counsel her was ineffective for trial” because “Peti of his to ly abandoning expert the search for counsel he tioner was advised his that insane, say who would she was even trial, he would not receive waived his though experts already two found that at He J.A. 244-45. penalty.” Wong, was she not insane. again before the Ohio argument raised this that the latter panel 319-22. The found appeal to the And on Appeals. Court theory, a new Ohio, claim advanced and was again, he raised it Supreme Court legal little argument. this time more defaulted. Id. 321-22. procedurally necessary not It is for us determine Jury B. Waiver Claim Presentation of legal has raised a different whether Sowell Than Pre- on Grounds Other Those here, merely presents a claim variation to the State Court sented legal theory, persuaded because we are argued to the state courts Sowell Warden, by advising the district knowing was not because waiver object would not she erro acted in reliance on his counsel’s testimony supported Dr. Gelbort that assurances, argue, did not neous but he claim, object. has waived her now, that he does not understand because he did Docu- C.Failure to Attach Sufficient giving up, what he was due Jury to Support mentation attorney’s failure to judge’s and Sowell’s Waiver and Assistance Ineffective adequately dangers him warn Raised Claims When He Them choice, deficien and due his own mental Proceedings State Post-Conviction Nevertheless, con cies. argu final default latter The Warden Warden’s grounds. sidered these (cid:127) error, argues that this fails she did raise contends ment because have these the court should found contends below. The Warden defaulted. Conse grounds procedurally relevant both of claims defaulted issue-as- argues, the Warden quently, failing satisfy Ohio’s re appeal by pre from that is distinct presently-framed post-con in a petitioner quirement courts, and it is hence sented to the state more than proceeding produce viction procedurally defaulted. presump self-serving to rebut the affidavit the record was proceeding tion that on underlying argu- ground legal Kapper, 5 invalid. See Ohio “the somehow principle ment is the that doctrine (1983) 36, 448 N.E.2d 826 pre- a claim be Ohio St.3d requires exhaustion 830

(“[A] court, post-conviction petition for relief is ment to the district our we exercise subject to a hearing dismissal without discretion not to reach the documentation- when the record ... indicates default issue.

petitioner is not to and entitled relief petitioner evidentiary failed to submit Expansion II. and Evi- Record containing operative documents sufficient dentiary Hearing guilty plea facts to demonstrate that the Notwithstanding the prom- was coerced or induced false Warden’s addition- ises.”)- rejected court, The Ohio argument, courts Sowell’s al our under 318; claim reason. See J.A. for this precedent, authority to had the conduct Sowell, App.3d 73 Ohio v. Ohio 598 hearing on the claims that were the basis N.E.2d The Sixth Circuit judgment. the district court’s The dis- recognized has Ohio courts’ dismissal for trict court held that the state court’s find- provide failure to documentation as a suffi- ing subject “is to review and an evidentia- cient basis for a procedural default. ry hearing in this Court under 28 U.S.C. Coyle, See Lorraine v. 2254(d)(2) (d)(3).” §§ and J.A. 426-27. (6th Cir.2002) (finding that the failure to The district court concluded that because attach proce- documentation can result in a was not attempting present to evi- default). dural dence that was not presented, least

However, the Warden did not fashion, courts, to some Ohio cause argument make this to the district court. prejudice not required.

The Warden concedes that the failure to

raise the issue before the district court challenges Warden that deci may argument mean that the is forfeited. court, sion arguing the district Procedural default is a defense “that the Sowell needed demonstrate cause obligated is preserv[e] State raise and if prejudice or a fundamental miscarriage it is lose the to assert justice before the district court could hold Cain, defense thereafter.” Trest v. However, evidentiary hearing. an Ab U.S. 139 L.Ed.2d 444 S.Ct. (6th Bell, dur’Rahman 226 F.3d 696 (1997) (internal omitted). quotation marks Cir.2000), explained though we that even Further, procedural juris default is not a prejudice requirement cause and matter, dictional appeals court of “[a] petitioner to met to be entitled ‘required’ is not of proce to raise the issue hearing, the district court has nonetheless sponte.” dural default sua Id. Nonethe authority evidentiary inherent to hold an less, may this court newly- consider a hearing petitioner even if not entitled argument, raised default it so wishes. Abdur’Rahman, one. F.3d at 706 See, States, e.g., Elzy v. United (“Because the district court or properly Cir.2000) (“While procedural evidentiary hearing pursuant dered jurisdictional not a default is bar to review so, its inherent authority do issue claim, of such a and the Government’s whether Petitioner is entitled to an eviden failure may to raise the default operate as tiary hearing showing [via of cause and a forfeiture of its defend prejudice] will is irrelevant and not be ground, may we nonetheless raise these addressed.”). It was therefore not error (citations omitted)). issues sponte.” sua for the district court to exercise its inher light resources have been evidentiary ent power hearing, to hold an expended by the district court ser consequences undertaking prejudice ious without a cause and facing be cause did argu- analysis. the Warden not make this Intelligent right fundamental and hence must be rec- Knowing- Waiver III. part of their ognized the States merits, we con Reaching now the process to of to obligation extend due law present has failed to that Sowell clude jurisdiction.” persons all within their presumption rebut the enough evidence to Louisiana, Duncan v. 391 U.S. jury waiver. knowing intelligent of a Al- ques S.Ct. 20 L.Ed.2d 491 largely legal the We review de novo a law, waiver of petitioner’s tion of whether a though under the common defendants knowing, jury intelligent, trial was right, to the were not allowed waive this voluntary. Coyle, Lott has Supreme Court held that defendants Cir.2001) so, can do under certain conditions: error, the find dis- To a constitutional the the Not must of accused validity the the waiv- merged trict court of a to a constitutional be of ineffective assis- question er with the preserved, the mainte- jealously but court found tance of counsel. body nance of the as a fact importance in criminal cases is of such [sjince require the Constitution does traditions, place in and has such a our and because colloquy, an on-the-record that, any ef- before waiver can become of is validity a to the fective, government coun- the consent of totality from the of the cir- determined must be sel and the sanction of cumstances, the conduct of defendant’s had, express intel- in addition attorney must considered. also be ligent consent And of defendant. words, duty, along counsel has regard of court in that duty the trial court, to ensure with the trial as a mere matter discharged is not to be nature of the understands the defendant rote, but advised dis- of with sound and waiving consequences right and cretion, eye to avoid unreason- right. Counsel’s recommendation with by jury amount waive does from departures able or undue if the rec- constitutional ineffectiveness any of the essen- of trial or from mode was reasonable trial strat- ommendation thereof, tial and with caution elements egy- degree as increasing in the offenses C-1-94-237, Anderson, No. Sowell gravity. increase in dealt with (S.D.Ohio Oct.5, 2001); 1681142,at *15 WL States, 276, 312- 281 U.S. Patton v. United (“The duty to ensure that see also id. (1930) (em- 74 L.Ed. S.Ct. criminal is jury trial waiver defendant’s added). Federal Rule Criminal phasis intelligent primarily rests 23(a) accordingly provides that Procedure court, is also with the trial shared is entitled cases in which a defendant counsel.”). The cited no le district court de- tried unless the jury trial shall be so support commingling its gal precedent writing fendant waives doctrines, court has and this found and the consent Therefore, approval to follow the none. we decline undisputed It is and instead consider mixing approach, government. separately each claim the merits. a written waiver. See signed such Sowell As all of the other formal J.A. 730-32.. regard to only issue with complied waiver were aspects of jury right is waived his whether Sowell well, intelligent consent with as Ac consented.” “intelligently whether he component is the sole Court, cording “the Supreme case. present issue a waiver that criminal cases is jury trial serious 832 edge however,

The district court this case im of jury right, trial is requirements on the posed jury waiver required. not what is A defendant is procedures constitutionally that are not re sufficiently informed to make an intelli- require quired. “Compliance gent waiver he was aware that a ments of Rule of Criminal Proce [Federal composed is of 12 members of the com- 23(a)] a presumption dure creates that the munity, may participate in the selec- voluntary, knowing a and intelli waiver is jurors, of tion the verdict of the Cochran, gent one.” United States 770 unanimous, must be judge and a (9th Cir.1985); see also F.2d guilt or alone will decide innocence Sammons, United States right. should he waive his trial (6th Cir.1990). Although will we not of Knowledge these essential attributes record, from presume waiver a silent is generally sufficient to enable a defen- demonstrating burden of a waiver of intelligent dant to make a and jury trial was not valid lies with the defen decision. it. Supreme dant who waived Court Martin, (citations 704 F.2d at 273 omit has that: expressly held Martin, ted). In however, the court ex guilt by a a determination court after plicitly stated that there no is constitu waiver of trial could be not set requirement tional for the trial court aside a trial except and new ordered colloquy conduct a pri- with the defendant upon plain showing a that such waiver Id. a jury or to waiver. at 274-75.5 freely intelligently and made. Sammons, In this considered the If adjudicatory process the result of the Martin passage expressly and stated that naught, is not to be set it is not knowing jury elements too asking much that the burden of outlined constitutionally therein are not re- showing essential unfairness be sus- Sammons, quired. See F.2d at 597. injustice tained him who claims such Specifically, the Sammons court stated: aside, to have seeks the result set it statement knowledge and that this is sustained as a matter not, course, speculation but as is equivalent demonstrable sufficient reality. constitutionally statement fact, required. the Seventh Circuit McCann, Adams v. United States ex rel. held that a has defendant who “under- 317 U.S. 63 S.Ct. 87 L.Ed. stood that confronting choice him was, hand, on judged by the one to be United States v. This court group of people community, from the Martin, (6th Cir.1983), iden hand, guilt the other to have his tified in specific dicta some aspects of a or innocence judge” determined jury trial about which a defendant should knowingly intelligently waived have at knowledge least some before waiv right trial by jury. ing jury trial. The court observed that Id. (emphasis in original). The court went ignorant defendant of the nature of the on to hold that “[w]hile the district court cannot intelligently weigh suggested failed conduct the colloquy safeguard. value A defendant, action, therefore, the record does not disclose should have both ability any mental evidence un- knowledge some Sammons so rudimentary before he is al- aware elements of lowed to it. A that his waiver cannot stand.” Id. by jury waive technical knowl- strongly 5. We colloquy, nonetheless recommended such continue do so. Id. Sammons does must be unanimous.” treating erred The district Rather, support proposition. that the not Martin as setting forth a state- in dicta Martin’s quoted Sammons merely Sowell, See law. ment of constitutional requirement, then stated “unanimous” (“The 1681142, at *15. Sixth 2001 WL that Martin was not necessarily establish jury- in for a has held that order Circuit Sam See ing requirements. constitutional intelligent as a be mons, Contrary 597. the law, the record constitutional matter of decision, court’s neither case estab district minimum follow- at a bare must reflect requirement lished a constitutional that of de- understandings part on the ing understand that the verdict the defendant jury composed of that fendant: be must unanimous. that community, members of twelve law, as district court applying in selec- may participate the defendant it, facts, the court found several saw any jurors, that verdict tion the twelve of in Sowell’s waiver. The first deficiencies unanimous, by the must be rendered alleged relate to what was “deficiencies” or guilt alone decide judge and that will and, importantly, what was not con- more (em- if a is waived.” innocence colloquy in the between tained added)). court added The district phasis his waiver of a regarding court and Sowell “[bjoth and Martin require Sammons court found the jury trial.6 of and under- inqui- defendant be aware first lacked an colloquy trial court’s ry as to Sowell “understood any by a whether verdict returned stand Yes, following SOWELL: sir. colloquy discus- 6. included the you by tried THE Now if are COURT: sion: three-judge panel you understand that be- Sowell, right, I have All Mr. THE COURT: you guilty judges could three find fore those you your attorneys that wish told been you anything, it is the crime are whether right by jury this up your give charged included with or some lesser case, is that correct? charge, three of them would have to all Yes, sir. SOWELL: you agree, they unless could not convict length this at COURT: You discussed THE they agreed, you unanimously do under- attorneys? your with stand that? Yes, sir. SOWELL: Yes, sir. SOWELL: remaining any questions And THE COURT: people, three THE But it would be COURT: unanswered? innocence, your deciding guilt do or not No, sir. SOWELL: you that? understand now, you do under- THE All COURT: Yes, SOWELL: sir. Unit- the Constitution stand both you do understand that THE COURT: Now of the State States and the Constitution ed running case I some of the have gives you right to absolute [sic] [an] Ohio may required things other here I be it, you you under- jury if do a trial wish you you you, under- tell but I will tell so that? stand running general of the That in a stand it. Yes, sir. SOWELL: you deciding of motions such case the you do understand that COURT: And THE deciding anything other have this case people? would consist your guilt then two of the than or innocence Yes, sir. SOWELL: can that. That does not judges three decide peers, you your do unanimous, COURT: Twelve of THE you do understand have to be that? understand that? Yes, Yes, sir. SOWELL: SOWELL: sir. you be- you And understand that THE COURT: of course do under- THE COURT: And guilty that, course, you could find maximum fore before the stand any charge, you charge against you Okay, do un- could before— unanimously. agree judges to sit they would have to derstand that the Court, judges two will be agree, have to that is the other that all would That means presiding Judge. by the am selected you that? understand participate clearly se- he had the Martin court held that collo- quies are not jurors.” constitutionally required lection of WL extremely that an perfunctory waiver with 1681142, at inquiry *16. This is recom- colloquy constitutionally no adequate. Martin, mended Martin. F.2d at Martin, Further, 704 F.2d at 274-75. al- above, However, as described nei- though capital require cases do a more ther Sammons nor Martin mandated colloquy types extensive than other discussing un- colloquy the defendant’s cases, simple fact that the case is derstanding in selecting of his role capital does not mandate an exhaustive a for requirement constitutional Lott, colloquy. See 261 F.3d at 614-15 Martin, 274-75; waiver. (finding capital a a colloquy case—that —in Sammons, 918 F.2d at 597. Consequent- much more perfunctory than that in the commit ly, judge the trial did not constitu- present constitutionally case was suffi- by failing tional error to include this ques- cient). Thus, cumulative effect in the colloquy. tion alleged these colloquy deficiencies not does The district court was also disturbed require that Sowell’s waiver was that ask court failed to intelligent. not during if he colloquy understood that deficiency Another that the dis would decide whether or not trict court found “the involved virtual ab recommend a sentence and that death such any findings sence state court on the must decision be unanimous. petitioner’s jury issue of whether Sowell, at *16-*17. WL intelligent[,]” waiver was be colloquy court also found district cause inquire “[t]he state courts refused to insufficient the trial court because did not validity toas of the waiver if anyone promised ask Sowell or induced jury, beyond review of the in-court collo right him to to a jury waive his trial or if quy Sowell, and the waiver form.” he understood that a waiver would WL at *17-*18. The district him eligible still leave death sentence. again in noted this context that “the alleged Id. Martin does not list these defi- in-court waiver colloquy was deficient in recounting ciencies in its passage aspects petitioner was never advised that both Martin, generally of a sufficient colloquy, verdicts had unanimous before 704 F.2d at and there is no for basis death sentence could issue.” Id. at *17 concluding that it was constitutional error (emphasis original). However, previ for the inquiries trial court not to conduct ously noted the colloquy was constitu specific on these issues. tionally Further, deficient. Ohio courts The district court found that the sum have it necessary held that for peti all of these deficiencies “demonstrate[d] tioner in a post-conviction proceeding to petitioner’s ato produce more than a self-serving affidavit knowingly trial was not made.” So order rebut the presumption that a well, However, 2001 WL at *17. proceeding on the record was valid.7 See Judge presiding Any right you Common Pleas THE COURT: can Court, presiding of I Judge but that think should discuss of the Com- with him. you pretty PROSECUTOR: believe well mon Pleas Court will decide who the other it, covered Your Honor. judges two will be? J.A. at 728-30. Yes, SOWELL: sir. you

THE your COURT: Do understand that previously procedural 7. As noted de- attorneys you? cannot control that nor can discussion, fault recognized this circuit has Yes, sir. SOWELL: provide failure to documentation in an Thus, nales, he assuming strategy 448 N.E.2d at 826. had a sound Kapper, only life, at the spare decisions look Ohio courts’ would advised So- rea and the waiver was colloquy written well that he should waive See, 318; e.g., J.A. at Ohio sonable. jury trial. Sowell best to thought was Sowell, App.3d N.E.2d 73 Ohio attorney, so right. trust his he waived 136, 143 Unfortunately Sowell, judge for the three trial ended with sentence. It capital Further, con significant might be Piñales led whether evi presented evidence at the cluded from believe, and Sowell to whether Sowell con hearing that information dentiary believed, judges fact panel directly from indirectly veyed either or (be- could not deliver believe counsel caused Sowell to defense cause, juries example, the law allowed sen capital would receive judge-panels penal- but not to deliver the jury. tence if he waived ty), it was or whether estimation at *18. Piñales testified WL prediction they would not deliver hearing as follows: a it. distinction indicates a differ- Such I ... I would A. that [Piñales] believed (which if ence between a of law mistake involved be in a death not changed could have corrected pan- if three-judge case there was a choice) taking and to risk lessen the I that because that believe[d] el. chance of death Neither the sentence. my impression Judge of what was district court nor on parties focused convey to Did I Crush said me. They appear, varying this distinction. to my Absolutely. to Did that client? degrees, taking to assume Sowell was him that is I tell this etched risk. This record contains no evidence I from a brought tablets that down that Piñales told Sowell that the panel Absolutely mountain? not. impose judges penalty, could not the death Q. you recall you Do would have presented not has evidence to Sowell him prom- it to stated in terms of support finding he believed that the ise? impose penalty. could not the death panel No, A. I it as a would not have said im- To extent that court the district promise. a mistake of law plied that Sowell made (“I 562; also see id. at 566 did not J.A. (i.e., that a three- that Sowell believed Sowell, say jury, and [’Y]ou to Mr. waive a him judge could to panel not sentence given penalty.[’] not you will death), it Sowell committed clear error. I everything I from the believe tone lost; litigation risk these facts took a said, connotation, certainly that was not viola- alone do create constitutional not—I but that was couldn’t swear tion. words.”). specific said those court’s So- The district conclusion reflects formed The record that Piñales “intelligently well did not consent” strong impression the discussions from was also based the court’s find- waiver on pre-trial con- Judge during Crush cogni- ings that a “low level of case Judge ferences Crush comprehension” less- penalty. Pi- tive impose would not skills adequate support decision the state Ohio court as basis for dismiss- See, ing e.g., procedural grounds. scope on default reviewed expand of the evidence Lorraine, pro- 291 F.3d at If failure was intel- whether a determine support adequate vide documentation ligent. default, adequate procedural also be must than-average, intelligence. scrutiny, “limited” survives constitutional and writ finding supported by former the dis- on ground cannot issue that it did not. trict court’s observations of Sowell during Ineffective IV. Assistance Counsel evidentiary hearing testimony by Piñales; supported the latter constitutionally As Sowell made a effec- testimony. say by expert We cannot trial, waiver of tive to a findings clearly these are erroneous. The only remaining claim is assis- ineffective district court concluded that “it is clear Sowell, however, tance of trial counsel. petitioner comprehen- exhibited has not demonstrated that his counsel’s petitioner decidedly sion deficits and that performance was unreasonable. “A claim that, misapprehended if he waived his of ineffective pres- assistance of counsel trial, he would not be question fact; ents a mixed of law and Sowell, sentenced death.” 2001 WL therefore we review both the state Even cogni- at *18. with limited and district court determinations de novo. however, intelligence, tive skills and deOur novo review both per- includes question just on still turns what Sowell prejudice components formance and of an “misapprehended.” compre- Even with ineffective assistance claim.” Coleman v. hension deficits intelligence and limited Mitchell, Cir.2001) part there is no basis (citations omitted). concluding thought that he that he was legally guaranteed to be sentenced to Ineffective assistance of counsel claims supports death. The record at most that generally governed are by Strickland v. Sowell understood chances of avoiding Washington, 668, 2052, 466 U.S. 104 S.Ct. penalty greater the death much if were (1984), 80 674 L.Ed.2d in which the Su- waived a trial. Such “misapprehen- preme Court two-part inqui- established a sion,” by comprehen- even exacerbated ry: sion intelligence, deficits and limited still First, the defendant must show that taking amounts to the of a calculated liti- performance counsel’s was deficient. gation still risk thus does not amount This requires showing that counsel made to lack intelligent a consent. errors so serious that counsel was not dicta Martin did not establish the as functioning guaranteed the “counsel” precise minimal require constitutional the defendant the Sixth Amendment. intelligent ments for an con waiver. Second, the defendant must show that trast, approved this court Sammons perfoi’mance the deficient prejudiced the the statement the Seventh Circuit that requires defense. This showing that there is a intelligent waiver counsel’s errors were so serious “

where the defendant ‘understood that the deprive trial, the defendant of a fair was, choice him confronting on the one result is whose reliable. Unless hand, judged by group people showings, defendant makes both it can- community, from the the other not be said that the conviction or death hand, to guilt have his or innocence deter sentence resulted from a breakdown in Sammons, judge....’” mined 918 adversary process that renders the at (citing F.2d 597 United States ex rel. result unreliable. DeRobertis, 1174, Williams v. Strickland, 466 at Cir.1983)). U.S. 104 S.Ct. 2052. 1180 only evidence In determining that, attorney’s whether an con- supports despite a conclusion his in limitations, deficient, duct Supreme tellectual was Sowell understood Court Hence, this choice. waiver stressed that “the proper standard for at- 728; id. reasonably agreed. Id. at see also at torney performance id., (Sowell assistance,” answering Judge as of the “Yes” “viewed Crush’s effective conduct,” id. at had question counsel’s Whether he discussed time of “in of all light attorneys). years and considered with his Sixteen S.Ct. waiver scrutiny circumstances,” id. later, “Judicial hearing, Pi- district court’s performance highly must be of counsel’s specifics ñales did not recall the of his Id. S.Ct. deferential.” recalled conversation with inherent difficulties “Because waiving jury. had they discussed evaluation, court must in- making (Pi- 527; J.A. at see also id. at 529 See presumption that counsel’s strong dulge ñales, you when asked “whether informed range within the wide rea- conduct falls still a Mr. Sowell that is, assistance; professional sonable method to be convicted and sentenced pre- must the defendant overcome death,” answering, spe- “I can’t recall that circumstances, that, under the sumption it, I probably probably cific. said be considered challenged ‘might action that, very strongly, that I also said believe ” (citation omit- strategy.’ Id. sound trial facing that he would not be Francis, 269 ted); F.3d see also Miller jury.”). if he Piñales did waived Perini, (6th Cir.2001); Cobb any difficulty not recall that Sowell (6th Cir.1987). understanding waiver issues at nor the district Neither the Warden Id. at 559. This evidence does the time. test, two-part court cited Strickland performance not show that Piñales’ assis- assuming the ineffective apparently Further, constitutionally deficient. was intertwined of counsel claim tance mistakenly fact that Piñales simple However, waiver claim. So- im- Jiidge thought that Crush would not viola- well must demonstrate a Strickland does not mean that Piñales was pose death for a violation of his tion to receive writ acting unreasonably. rights because of the Sixth Amendment Furthermore, strong evidence there is

ineffectiveness of his counsel. to everything came down Pinales’s requires step The first of Strickland recommendation, not matter did per- that Pinales’s that Sowell demonstrate may or may how much Sowell not have is, seriously That formance deficient. was giving up he informed what been strong presump- overcome “a Sowell must tes- risking. Piñales and Both within the tion that counsel’s conduct falls implicit- Piñales tified that Sowell trusted professional as- range of reasonable wide solely because of ly, and decided waive Strickland, sistance,” U.S. at at See J.A. Pinales’s recommendation. Piñales made and show that S.Ct. (Piñales testifying “Billy Joe 527-28 so that he was not function- errors serious I totally advice that relied on the by the ing guaranteed as the “counsel” puppy like a lost giving.... He was Sixth Amendment. I think I his friend. jail, and became relied on I certainly think he what So however, Piñales, did a constitu (Piñales, said.”); asked id. at 558-59 when tionally job. At sufficient the Ohio response to he whether recalled Sowell’s Pi hearing, Judge Crush asked reply- jury, waive a the recommendation to attorney, other “Coun ñales Sowell’s ... but I ing, specifically “I can’t recall [waiver] sel of course have discussed this you everything. It can tell his reaction length?” at J.A. at with the defendant I wanted to do. was almost whatever “Absolutely, Your replied, 727-28. Piñales Honor,” he faith me. And attorney Clearly put his Sowell’s fate.”); (Sowell, why waiver, at id. when asked did not fall mini- below a trial, answering, he waived mal professional level of competency, and I had faith “Because and conviction and thus did not constitute ineffective assis- my attorney”); (Sowell, belief id. at 574 tance of counsel. deciding

when asked whether to waive required The court not to address right anything he considered components both if com- Strickland one recommendation, other than Pinales’s an- Strickland, ponent fails. 466 U.S. at No.”). swering, Everything “No. appears Thus, 104 S.Ct. 2052. as Sowell did not to come down to whether Piñales had a performed demonstrate that his counsel for thinking Judge reasonable basis level, objectively below an reasonable impose Crush not would sentence. court need not the prejudice discuss com- not district court did consider this ponent. issue, record does not show that Because Sowell has failed to demon- Piñales had no reasonable basis for so strate that the state proceedings de- thinking. nied him right by jury either his to trial Piñales recommended Sowell take a right counsel, to effective assistance of risk, calculated which did. There was he has failed to demonstrate those no guaranteed evidence that Piñales So- proceedings were fundamentally unfair. result, well a or misstated the law. The judgment We therefore REVERSE district court found that Piñales advised granting district court the writ of ha- spared Sowell that “he would be the death corpus. beas Sowell, penalty if he waived trial.” WL *18. While this MOORE, Judge, Circuit dissenting. statement can read in ways, different if statement the district I respectfully dissent because Billy Joe amounted of fact that Piñales (“Sowell”) waiver of his constitu- guaranteed that Sowell would not be sen right tional a jury trial was neither death, tenced to sup record does nor intelligent. majori- What the port such a conclusion. on a Piñales num ty labels a calculated risk undertaken ber of specifically occasions stated that he by Sowell, I consider to be the height of did tell Sowell that he ineligi would be uncertainty abnormally because ble if penalty he waived his individual, unintelligent was not aware that (Piñales jury. J.A. admit he could still receive the death probably ted that he told Sowell that a he waived his light trial. death sentence was still an option he of the pre-AEDPA of standards review (“I jury); waived a id. 566 not say did apply, must we I affirm would Sowell, you Mr. jury, you waive a will grant court’s of conditional writ given not be penalty.”). Piñales of corpus jury habeas because trial waiv- explicitly jury stated he read the knowing er is not and intelligent when a (“I’m waiver to Sowell. Id. at 581 I sure defendant is not aware that he or she must have read [the form] could be sentenced to death. [Sowell]”); id. (“My at 536 recollection Risk synonymous is not with uncertain- table, is now ... sat read it to ty. managed, Whereas can him, risk be uncer- showed him sign.”). where to Al tainty is now, immeasurable wild. The cal- though might Piñales over sixteen later, culation years upon of risk approach centers an estimation the situation differ ently, case, potential potential actions on the record of versus of this loss benefit. concerning his regarding advice to Sowell Accordingly, managed risk cannot be with-

839 grade in criminal above the of down- fact cases possible of the knowledge some out States, v. risk-loving petty the most offenses.” Patton United as Just even side. 312, 253, 276, 74 would U.S. 50 S.Ct. L.Ed. capitalist or venture 281 sports gambler (1930). though right make an Even “the of the bet or investment place the financial trial knowing the size of accused to a constitutional without (the id., amount that could being jealously preserved,” risked be de- stake [must] fully lost), defendant cannot right, a criminal waive this core fendant can ramifications waiving of safeguards understand the have been satis- when certain “[Bjefore to a trial her without any or waiver can become fied. loss could result. Such potential express intelligent ... effective intensity even more concept resonates with must be ob- consent of the defendant” cognitive has limited a defendant when duty of the trial court “[T]he tained. Id. abilities. discharged as a regard in that is not to be rote, of but with sound and mere matter petition filing The of habeas Sowell’s discretion, eye an to avoid advised impacts of AEDPA the enactment before departures unreasonable or undue from proceedings. of the state our review any of trial or from of the mode a state court’s “[d]eter- review de novo We thereof, and with a essential elements cau- law, determinations involv minations of or increasing degree tion as and law.” questions of fact ing mixed offenses Id. at gravity.” dealt with increase in (6th Coyle, Mapes v. added). 312-13, (emphasis 50 S.Ct. Cir.1999). corpus A must writ of habeas proceedings “if be issued the state validity of turns on such waiver unfair a result of a fundamentally were a specific case. particularized facts or laws or Constitution violation intelligent, is or there an “[WJhether the United States.” Powell treaties of competent, self-protecting waiver Cir.2003). Collins, depend upon must accused en trial court to The failure of the state circumstances each case.” unique knowingly intelligent sure that Sowell McCann, ex States rel. Adams United accor ly waived his 87 L.Ed. 317 U.S. 63 S.Ct. guarantees dance with the constitutional analysis of the Our waiver’s to criminal defendants rendered afforded intelligence ignore cannot two circum- fundamentally un proceedings the state appeal: gravi- pertinent to this stances fair. ty potential sentence is at for an mental state. “What stake represents primacy imprisonment de- facing death accused our criminal upon which pillars one which mands the utmost solicitude v. Loui- system See Duncan justice rests. the mat- canvassing capable are courts siana, 391 U.S. 88 S.Ct. make sure has (“[T]rial ter with the accused (1968) by jury L.Ed.2d 491 consequences of understanding of the full to the Amer- criminal cases fundamental Alabama, Boykin v. 395 U.S. his actions.” justice-”); ican scheme of U.S. Const. 1709, 238, 243-44, L.Ed.2d 274 89 S.Ct. 23 (“The Ill, § 2 Trial ... art. of all Crimes Const, omitted). (1969) (quotation “[B]ecause by Jury....”); U.S. shall be (“In qualitative is difference between there prosecutions, all criminal amend. VI form any permissible of and enjoy right the accused shall ... ”). corresponding dif- jury punishment, there is a impartial jury.... “Trial is the reliability....” and, for exceptions, the ference the need normal with occasional 462 U.S. 103 disposing Stephens, of of Zant preferable mode of issues 840 2733, (1983).

S.Ct. 77 L.Ed.2d 235 This that a written waiver is not constitutionally reliability need for is even more pressing Withrow, required. Fitzgerald v. 292 F.3d death-penalty eligible when a defendant 500, (6th Cir.2002). 504 has problems. demonstrated mental Nevertheless, there must be some indi- purpose ‘knowing “[T]he and volun- cation that intelligently a defendant is and tary’ inquiry ... is to determine whether knowingly waiving trial, right jury actually the defendant does understand the which I showing believe includes a that the significance consequences particu- of a defendant pun- understands the maximum ” Moran, lar decision.... Godinez v. ishment available the event of a 2680, U.S. 401 n. S.Ct. of guilt. There why are different reasons L.Ed.2d 321 a defendant would forego trying his or her In evaluating the constitutionality of case in of a jury, front of which one is a processes assessing various the intelli- belief that a defendant bemay likely less waiver, gence of a we have not mandated punishment, to receive a certain particular- that a state trial court conduct a defined ly penalty, if he or she submits colloquy waiver, even obtain a written situation, to a bench trial. In such a for a order waiver be constitu- decision to right waive the sound, tionally the trial court must be con- cannot be intelligent considered the de- vinced that is knowing waiver fendant is not aware of sentence could In intelligent. the context a direct fed- result. appeal, eral we have that a stated waiver is intelligent only if the defen- Here, form neither the written nor the ability dant has “both mental and some oral colloquy apprised Sowell that knowledge before he death penalty would still upon be available is to waive allowed it” so to allow the waiver of the trial. The to “intelligently weigh defendant the value written did not discuss the death safeguard.” United States v. Mar- penalty. The oral colloquy similarly tin, (6th Cir.1983). 704 F.2d We any lacked mention of punishment, save “implorefd] have district courts to person- for an oblique reference to the “maximum ally inform each defendant the benefits penalty” in the midst of a convoluted and and burdens of trials the record question/half thought unfinished half prior accepting waiver,” proffered id. confusing would be to many trained law- but we have stopped short of mak- yers judges, as well as most criminal ing mandatory colloquy. such a See Unit- (“J.A.”) defendants. See Joint Appendix Sammons, ed States v. 918 F.2d Tr.) (Trial (“And at 730 you of course do (1990) (declining impose a colloquy re- that, course, understand before the Howes, quirement); Spytma v. maximum penalty Okay, could be before— Cir.2002) (applying Martin you do judges understand that the to sit context). Sammons habeas Court, with this is the other two

Martin, that, suggested we “[a]t mini- judges will presiding be selected mum, a defendant should be informed that Judge, am not the presiding Judge of the a jury composed 12of members of the Court, Common presid- Pleas but that the community, may participate in the se- ing Judge of the Common Pleas Court will jurors, lection of the verdict be?”). decide who the other judges two will unanimous, must be a judge and that alone The state trial court guilt will never ascertained if decide or innocence should he Martin, right.” waive his Sowell understood that three-judge F.2d at 274-75. Similarly, panel ability we have held had the to sentence him to level in the bottom 2% of the stage intelligence the penalty nor did mention death population.1 expert defendant’s testi- proceeding. The that fied that the “the likelihood Mr. So- places great stock majority The understood, intellectually genuinely well believing that between Sowell distinction intelligently comprehended what was the death judges could not deliver panel of him, at being said to is minimal.” J.A. believing panel that a penalty and Sowell (Gelbort Test.). The state trial court knew Op. at 835. While deliver it. would not problems,2 proceeded to ask of Sowell’s that legal distinction So- this is a narrow him questions rote about several structural understood, I can- attorney perhaps well’s trial, completely aspects but Sowell, given his mental not believe potential punishment failed to mention the two, infirmities, distinguished between the Given that “the Sowell faced. attorney did not particularly when a constitutional accused and when the make clear difference jealously preserved,” be Pat- [must] nothing explain did So- trial court ton, 281 U.S. at S.Ct. if penalty the death could still receive well duty to mindful of the trial court’s ensure panel. three-judge appeared before intelligently waiving that a defendant is clearly that he would not believed Sowell duty trial —a is death he waived his receive the increasing in de- exercised “with a caution that the jury right: whether he believed dealt gree as the offenses with increase judges sentencing from prevented law 312-13, gravity,” id. 50 S.Ct. 253—I judges him to or that the would death intelligently immaterial, agree cannot that Sowell him sentence not un- rights, because he did waived knowing and intelli- belies the either belief eligible still derstand he would nature of his waiver. gent penalty. an individual reality that Sowell was abnormally intelligence low levels I respectfully dissent. shunt- comprehension cannot be powers of Coyle, ed aside. See Lott (6th Cir.2001) n. that “we do (noting lightly any suggestion [the

not take ability to lacked the mental un-

defendant] waiving,” rights he was but

derstand the

ruling that the defendant had suffi-

ciently that he suffered from demonstrated abilities). limitation of his mental

some court found that Sowell education, suffered eighth grade an damage, had an

from brain organic (Drs. specialists along of the mental health finding, all the other Two with 1. This factual court, Cooper) who Walters and Emmett findings William made the district factual prior to the waiver col- clearly upon Based examined was not erroneous. competency during loquy assess presented in order to review of the evidence could that Sowell stand evidentiary hearing, stand trial concluded I am not left IQ, trial, extremely low that he had an that the dis- “firm and definite" conclusion Furthermore, complex concepts, inability comprehend all of the trict erred. capacity. capabil- Joint testimony and diminished intellectual relating to Sowell's mental (Dist.Ct.Op.). Appendix the State. ities was unrebutted

Case Details

Case Name: Billy Joe Sowell v. Margaret Bradshaw, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 23, 2004

Citation: 372 F.3d 821

Docket Number: 02-3441

Court Abbreviation: 6th Cir.