Donnie E. Johnson v. Ricky Bell

drug that the Finally, argues conspiracy, he midst of we defer weapon. theory reject is clear er- joint possession to the district court’s decision to court’s argument alleged ror. Stuut’s that his reliance “clearly on Makos’s made it im- statement met its government The burden that the probable” firearm would con- actually possessed showing that Stuut government nected to the offense. The is it buying He admitted the firearm. not required pos- to show that the firearm then it Makos. The burden reselling session, shown, drug once related to the is that “it [wa]s to Stuut to show shifted show, crime. The must not that defendant weapon was clearly improbable that innocent possible explanation, there is connected to the offense.” U.S.S.G. gun “probably” nor even that the was not comment, (n.3). 2D1.1, § Stuut While offense, yet connected to the nor that it is buying he was claims he believed gun that the so connect- “improbable” was gun self-protection, for Makos for her “clearly ed, but, more, by finding err clearly district court did not added.) improbable.” (Emphasis that this did not meet the burden show ap- enhancement was properly two-level clearly improbable the ing that it was plied. to the offense. Ma- weapon was connected he occa drug supplier and kos was Stuut’s IV her. knew

sionally kept drugs for He illegal that she was involved quite well As we have held that the two-level en- conduct. pursuant applied hancement 2D1.1(b)(1) § “clearly properly applied im both emphasize We defendants, ineligible “safety- a difficult burden to both are probable” standard is sentencing. therefore AFFIRM meet in the first instance at valve” status. We appeal, a defendant both sentences. prevail In order to must show that a district court committed finding that he or she has

clear error “clearly improbable” burden of not met the clearly proof. finding A district court’s reviewing if “the court on the erroneous entire evidence is left with the definite and JOHNSON, Donnie E. Petitioner- firm conviction that a mistake has been Appellant, States v. United United committed.” Co., 395, Gypsum States U.S. (1948). give 92 L.Ed. 746 We Ricky BELL, Respondent-Appellee. to the district court’s cred great deference as it is in the best ibility determinations No. 01-5451. witnesses. United position observe Appeals, Court of United States (6th Hill, 258, 264-65 States v. Circuit. Sixth Cir.1999). hold that the district court did 2003. Argued: March determining commit clear error Sept. Filed Decided and showing Stuut did not meet his burden firearm clearly improbable that it was to the offense. Stuut

was connected drug in the bought gun supplier for his briefed), (argued

C. Mark Pickrell and Nashville, Tennessee, Appellant. briefed), B. (argued Alice Lustre Summers, Paul G. Michael E. Moore (briefed), General, Attorney Office of the Nashville, Tennessee, for Appellee. BOGGS, NORRIS, CLAY, Before: Judges. Circuit NORRIS, J., ALAN E. delivered the court, BOGGS, J., opinion of the in which CLAY, joined. 575-78), (pp. J. delivered

separate dissenting opinion.

OPINION NORRIS, E. Judge. ALAN Circuit Johnson, prisoner Donnie E. on death Tennessee, appeals row from the denial petition of his for a corpus. writ habeas § ap- U.S.C. The sole issue on 2) violence; of defense of threat or performance concerns the the murder was peal heinous, atrocious, especially during cruel that it involved or depravity contends amounted torture which Although mind. he did not during ineffective assistance. constitutionally trial, guilt phase the of his petitioner the elect- court declined to issue The district during sentencing ed to take the stand his it concluded ground writ on this because hearing. He denied that he killed his wife the Amend- that counsel satisfied Sixth attempted to shift the blame to his co- right the to ef- governing ment standards worker, who was on work release from representation fective as defined Strick- prison at the time of the murder. John- 668, 104 Washington, 466 U.S. land son, conceded, 743 S.W.2d at 156. He (1984). 2052, 80 L.Ed.2d 674 however, that he in disposal assisted of judgment. now affirm that corpse.

his wife’s I. only Defense counsel called one other Lee, mitigation, in witness Robert G. limit scope appeal Because the of this minister who had counseled Johnson and ed, underlying gave facts that rise to family jail. his while he was in The minis- prosecution, tragic, while are petitioner’s ter testified Johnson had told him that germane They to our discussion. are not sustaining “his faith God was what was opinion in the of length set forth at some through him this ordeal. He also ex- affirming Tennessee Supreme Court of pressed ultimately to me that he knew that on di petitioner’s conviction and sentence day give one he would have an account- Johnson, appeal. rect State v. 748 S.W.2d ing of life to his God.” (Tenn.1987), denied, cert. (1988). L.Ed.2d 513 mentioned, jury As returned a sen- say petitioner brutally Suffice it to exhausting tence of death. After his di- wife, Johnson, on murdered his Connie appeals, petitioner post- rect initiated a 8, 1984, camping equip December at the conviction action in the Criminal Court of Tennessee, ment where he worked. With the center Shelby County, alleging for co-worker, disposed he then of help of a the first time that he received ineffective body ineffectively her and rather set about during assistance covering up his crime. attorneys his trial because his failed ade- develop otherwise quately During petitioner repre- his mitigating evidence. The court held an sented retained counsel Jeff Crow and evidentiary hearing, which included the Washington. Washington’s Clark back- petitioner, certain of his fami- ground primarily practice. civil counsel, experts ly pro- post-conviction Crow testified state topic proper practices preparing ceedings that he had conducted five or six capital in a sentencing proceedings criminal trials before this one but could case. not remember whether the one murder mother, Johnson, Ruby petitioner’s testi- trial he had second-chaired had been a sentencing spoke attorney Washing- with death-penalty phase case. The fied she ton once about her case and that “he place of the trial took over October 3 and son’s 4,1985. very talked little about it to me.” She met aggrava- found both the 1) only day it: on the of trial. ting presented attorney circumstances Crow Johnson, was not previously According had convicted of to Mrs. she Johnson been background or mar- more that involved the use asked about her son’s one or felonies had had been with the deceased he and his wife cated she riage though marriage. they very hap- their “numerous times and had a her since lived next door .to any marriage.” between cross examination she problems py did not know of On She Rather, stated, wife. she-believed “All I is that Donnie loved her son and his know Connie, who cared for his him a hard worker and he not have killed her. to be children. -well-mannered marriage.” and raised had a did they happy And She information, she was not Despite this anything alleged prob- know about testify. asked to marriage. in petitioner’s lems Johnson, father, con- James In addition to five mem- these “was one of the tended that bers, potential three other character wit- family his that I to person[s] most devoted A child- hearing. nesses testified the seen,” good and that he was a have ever friend, Barry Gray, hood stated that he worker, son, good family and a a hard friend, petitioner good had known to be a on to that man. Mr. went assert Johnson worker, caring family hard and a man. very him little about his trial counsel asked Ingram, petitioner’s jailer pending James schooling. Concerning boyhood son’s trial, petitioner mentioned that had caused testify that he the fact did no trouble while incarcerated and had that had petitioner’s father indicated he And, disciplinary finally, clean record. willing been to do so but had been advised Force, petitioner’s employer, David assert- that it be unwise. Peti- by counsel petitioner good employ- ed had been a that Johnson, Jr., brother, C. tioner’s James ee. theme, that stating continued with this post-conviction hearing The contained him about trial counsel did not ask his contradictory testimony concerning the ex- other than an earlier background brother’s tent to which trial counsel contacted fami- testified, in Had he James arrest Ohio. ly potential evaluated their tes- that he had Johnson would have asserted timony, asking and considered them to spent significant amount of time with testify during petitioner family and that “there his proceedings. family While the members any never that I was an altercation kind contact, fleeting they recall uniform- some laughter.” than fun and remember other ly they discouraged contend that were father, Like his James Johnson stated that however, testifying. position, from Their testify he was available to on behalf of his memory is somewhat at odds with the brother, but trial counsel it would be “said Crow, ' trial counsel. Jeff lead trial coun- advisable not to.” sel, family testified that members indicat- Ward, sister, Shirley Petitioner’s testi- him they ed to did not want to take fied that trial counsel never contacted her. him, According I stand. “As re- fami- She stated that member, family. we talked to the ly any problems man who did not have talked to the minister. We talked to examination, home. On cross she admit- doing Johnson. And we decided after all nothing petitioner’s ted she knew sentencing hearing that to handle the alleged or admitted extramarital relation- the manner which was done.” Peti- ships. co-counsel, Washington, tioner’s Clark cor- Ward, sister, Mary other roborated Crow’s appear testified that she told trial counsel that she members were reluctant to at trial. Johnson,” at trial “All help available but was of them wanted to Don She, too, testified, they never contacted counsel. indi- were con- Washington “but really not wanting cerned or afraid or hard family. worker who loved his in a courtroom spotlight major come under flaw in this appel- was the fact the take a witness chair.” lant was convicted of murdering his wife. suggests that The record Crow and We conclude this evidence would not Washington diligent were preparing have benefitted the appellant, and the of the trial scant guilt phase gave but lawyer failure of the trial to call these sentencing until phase attention during penalty witnesses phase of fact, was returned. Crow testi- verdict gives the trial no right to a new trial. main preparation fied that his for sentenc- (citation omitted). WL at *1-2. ing was to review the Tennessee code on The Supreme Court of Tennessee declined death-penalty procedure guilt while the Thereafter, to review this decision. peti- portion way. of the trial was under another, tioner ultimately initiated unsuc- 2, 1989, August On the Tennessee trial cessful post-conviction challenge that is not denying post-convic- court issued an order relevant to the sole issue before us. accepted tion relief. The court trial coun- sel’s members “could After exhausting his state-court avenues in get testify- not or would not involved redress, petitioner filed the instant ha- ing.” Any testimony [pe- from them “that beas corpus petition 14, on November was a titioner] worker and had a 1997, raising twenty grounds for relief. good marriage” opened would have the The district court petition. denied the door to rebuttal evidence of strains in his Bell, Johnson v. No. 97-3052-DO marriage, the court concluded. The court (W-D.Tenn. 2001). 28, However, Feb. the indicated members’ district court issued a certificate of appeal- enough would not have been to overcome 2263(c) ability § pursuant to 28 U.S.C. jury’s apparent rejection the of petitioner’s the sole issue of whether re- direct the “devastating” ceived ineffective assistance counsel at Citing cross examination that followed. the of his trial due to the Strickland, supra, the court found “noth- present mitigat- failure to ing in evidentiary hearing suggest the ing evidence. any there was failure of meet the of competence standards re- II. quired criminal cases or any action or inaction part prejudiced on their the legal review de the con novo case of their client.” clusions of a district court in a habeas

Petitioner appealed to the Tennessee Tate, 624, proceeding. Mitzel v. of Criminal Appeals, Court which affirmed (6th Cir.2001). 630 Because Johnson filed judgment. the court’s Johnson v. 14, 1997, petition his habeas on November State, (Tenn.Crim.App. 1991 111130 WL after the Antiterrorism and Effective 1991) (No. 61). 26, June The court rea- (“AEDPA”) Penalty Death Act of 1996 soned as follows: effective, became this court’s review of

At post-conviction hearing, the mem- governed state court by conclusions is appellant’s family bers of the testified provisions, AEDPA. Id. Under AEDPA’s they convicting wished to at the may grant corpus we writ of habeas trial but were not called to do so. adjudicated any claim that was on the they adjudica

These witnesses testified would merits in state court unless the appellant have told the the was a tion: III.

(1) that was con- in a decision resulted an unreasonable to, trary or involved mind, turn to precepts these we With Feder- of, established clearly application At the legal point, issue before us. this by Supreme law, al as determined whether a two-part test used determine States; or the United Court of denied effective as criminal defendant was (2) that was based in a decision resulted familiar, extremely of counsel is sistance determination unreasonable on an precise applica if the manner of its presented light of the evidence facts occupy the Court. Com tion continues proceeding. court a state — Smith, U.S. -, pare Wiggins v. (2003), 2254(d). addition, 2527, find- 156 L.Ed.2d 471 § 28 U.S.C. with Bell v. Taylor, supra, are v. made a state court Williams ings of fact Cone, can contra- 122 S.Ct. correct and 535 U.S. presumed to be (2002). put it petitioner can L.Ed.2d 914 As the Court only if the habeas vened nearly twenty years ago: convincing evidence that show clear aiid findings were er- court’s factual the state First, defendant must show that 2254(e)(1). § roneous. 28 U.S.C. performance was deficient. requires showing that counsel made This Taylor, In Williams so serious that counsel was not errors 146 L.Ed.2d 389 guaranteed functioning as the “counsel” (2000), interpreted 28 U.S.C. Court Second, by the Amendment. Sixth 2254(d)(1) requiring § a distinction be as that the deficient defendant must show “contrary to” and that are tween decisions prejudiced the defense. performance appli that involve an “unreasonable those requires showing that counsel’s er- This clearly Supreme cation of’ established deprive were as to rors so serious 405, 120 Id. at S.Ct. precedent. Court of fair a trial whose defendant a “contrary decision is 1495. A state court a defendant result is reliable. Unless “if precedent the state Supreme to” Court showings, makes both it cannot be said opposite at a conclusion court arrives the conviction or death sentence by Supreme] Court on a [the that reached adver- resulted from a breakdown law,” or “if the state court question of the result un- sary process that renders materially facts that are indistin confronts reliable. a Court guishable Supreme from relevant opposite precedent and arrives at result 668, 466 Washington, v. U.S. Strickland A decision is also to ours.” Id. state court (1984); 687, 2052, 80 L.Ed.2d 674 precedent if “contrary Supreme to” Court Mitchell, 604, see also Mason v. that contra “applies the state court a rule (6th Mitchell, Cir.2003); v. 264 616 Greer forth” in that governing dicts the law set Cir.2001). (6th 663, F.3d 673-74 precedent. Id. performance, In we assessing inquire representation whether “counsel’s A court decision involves state objective standard of reason- clearly es fell below an application” “unreasonable ableness,” by pro- prevailing “if as measured Supreme precedent Court tablished Bell, v. 131 norms. Rickman governing identifies the correct fessional state court (6th Cir.1997) (quoting 1154 Supreme] Court’s F.3d legal [the rule from Strickland, 688, 104 it to the 466 U.S. at S.Ct. unreasonably applies eases but 2052). objective reasonableness stan- prisoner’s state This particular facts of the 407, 120 strategic litigation encompasses at 1495. dard case.” Id.

573 fruitless); productive or v. Tay- fail to bear fruit. See Williams simply choices lor, Strickland, 689, 104 398-99, S.Ct. 2052. 529 U.S. 120 S.Ct. 1495 moreover, a defen prejudice, (holding investigate petition- To establish that failure to prob reasonable dant must demonstrate a background, horrific, er’s which was re- unprofession ability that “but for counsel’s sulted in ineffective assistance as defined errors, proceeding the result of the Strickland). al Id. at have been different.” note that the present case con 104 S.Ct. 2052. previous tains elements similar to those of claim, evaluating petitioner’s In we are cases 'which this court has been suffi opinion Supreme mindful of the Court’s ciently by allegations troubled of ineffec Cone, reversed a swpra, Bell v. which tive assistance that granted we either grant this court. See Cone writ evidentiary writ or remanded for an hear (6th Cir.2001). Bell, 243 F.3d 961 factors, ing. Among other this court has Cone, presenta we observed that counsel’s telling found it that “trial counsel did not was a during tion begin preparing for the mitigation phase of attorney’s role. complete abdication of Greer, the trial until after conviction.” pre had During guilt phase, counsel Williams, 676-77; F.3d at see also of his client’s social histo sented evidence (finding U.S. at 120 S.Ct. 1495 attempt in an to raise ry and mental state significant began preparation that counsel insanity. sentencing In the defense of trial). mitigation for only a week before however, no miti phase, presented Despite Greer and other Sixth Circuit all, final gating argu evidence at made no result, cases that have reached a similar ment, and did not even ask the see, Mason, (re e.g., 320 F.3d at 624-26 Cone, 243 spare his Ghent’s life. F.3d manding evidentiary hearing concern and, reversed Supreme Court failure ing develop mitigating evidence so, “a court must doing reminded us that childhood); troubled Cole ‘strong presumption’ that coun indulge Mitchell, (6th man v. F.3d 450-52 range sel’s conduct falls within the wide Cir.2001) (ineffective during assistance assistance because professional reasonable mitigation investigate for failure to easy particu it is all too to conclude that a present background); evidence of troubled unrea lar act or omission of counsel was Parker, 261, Skaggs v. 235 F.3d 269-70 light hindsight.” sonable in the harsh of (6th Bell, Cir.2001); v. 126 Austin F.3d Cone, (citing 122 at S.Ct. 1854 Strick (6th Tate, 843, Cir.1997); v. 71 848 Glenn land); Mason, 643 see also 320 F.3d at (6th 1204, Cir.1995), F.3d 1206-08 we are (Boggs, dissenting) (characterizing Cone J. a hard-pressed to reconcile Cone with con “abundantly extremely clear the making as clusion that counsel rendered constitution high standard that must be met for coun ally vigorously ineffective assistance not penalty phase in the representation sel’s interviewing family pressing members and constitutionally inade considered — testify during sentencing them to the Smith, quate”); Wiggins but see v. phase Wig of the trial. counsel at - - -, While 123 S.Ct. at 2536-37 U.S. gins had sufficient information about their “misery (scope investigation of into client’s chent’s horrific childhood to render their youth” a fell short of the professional as investigation further pursue pro failure to prevailing standards then because counsel unreasonable, fessionally nothing there is knew of “unfortunate childhood” and there in the instant case nothing suggest suggest that further inves that counsel ignored might known leads that have tigation would have been either counter- 574 noted, testimony in miti- from members their case prepare them to

helped us, reminded the door to rebuttal opened has gation. As the Court require petitioner’s counsel to evidence about extramarital af- “Strickland does fairs, undercutting positive image pre- line of miti- the every conceivable unlikely family. sented matter how the his gating evidence no defendant at to assist the effort would be mitigating proffered evidence — -, at sentencing.” Wiggins,. U.S. quantum of the by petitioner falls short Cone, Wiggins, required by Williams. assume, however, if that trial Even we Williams, example, the Court found ineffectively during the performed Virginia Supreme the it unreasonable for trial, the find that mitigation phase we to conclude that had not Court deficiency prejudice petition- did not prejudiced by counsel’s failure to in been already explained, to er’s case. As show vestigate present readily available evi must demonstrate prejudice defendant “graphically describing dence Williams’ errors were so serious as to that “counsel’s nightmarish childhood.” 529 U.S. a fair deprive the defendant of 397-98, Wig 120 1495. Likewise in Strickland, whose result is reliable.” concluded, gins, jury “Had the Court Also, U.S. at 104 S.Ct. 2052. “[t]he petitioner’s place excruciating been able to defendant must show that there is a rea- history mitigating life side that, for counsel’s probability sonable but scale, probability there is a reasonable errors, unprofessional result juror at least one would have struck a A proceeding would have been different. — at -, different balance.” U.S. probability probability reasonable suf- S.Ct. at 2543. This court’s eases do not ficient to undermine confidence in the out- particularly strengthen petitioner’s posi come.” Id. at 104 S.Ct. 2052. Our See, Coleman, e.g., either. tion 268 F.3d inquiry asking is limited to whether the (finding prejudice 451-53 where counsel eight potential character present failed to evidence of above, witnesses described which include childhood, his numerous mental horrific five would have created a disorders, IQ); and emotional and his low that, probability jury reasonable had the (6th Bell, Carter Cir. them, from heard its verdict would have 2000) (finding prejudice where counsel been different. present failed evidence “of a childhood Undoubtedly, abuse, neglect hunger from these fam- in which were normal”); ily helped Skaggs, members would have to human- 271-72 235 F.3d at petitioner by showing (finding prejudice ize for failure to Mm, they loved and valued that he had evidence of defendant’s mild mental retar son, brother, parent. capacity, been a and On dation and diminished “the one hand, say topic may jury other we cannot that this which have convinced the testimony likely justified”). have led to a differ- that a death sentence was not ent entirely possible, precedents result because is as Given the that inform our deci sion, that, the Tennessee Appeals Court Criminal we conclude if we assume out, pointed that the could have professionally con- that counsel were defi petitioner cluded that was even more cul- under fail cient the Sixth Amendment for pable enjoyed loving mitigating testimony because he had to in the ing present witnesses, brutally but had murdered a wife form of character has Also, that, who loved him. the district court unpro- as not shown “but for counsel’s social, psychological or back errors, family, er’s proceed- the result of the fessional evidence; ground mitigating failing for to have been different.” Strick- ing would land, Petitioner’s 104 S.Ct. 2052.

friends, employer mitigating and as wit nesses; Petitioner IY. failing prepare and to testify mitigating to to evidence. Petition court of the district judgment The primarily thus turns on whether er’s case AFFIRMED. social, family, investigation counsel’s of his psychological history adequate to CLAY, Judge, dissenting. Circuit justify strategy presenting single their Petitioner’s counsel’s holding In that witness other than Petitioner on Petition objective fall below an performance did not mitigation. er’s behalf at As the Su as measured of reasonableness standard Wiggins recent decision in preme Court’s norms, the ma- professional prevailing — Smith, -, U.S. 123 S.Ct. conjec- jority engages speculation 2538-539, (2003), if 156 L.Ed.2d 471 coun what evidence defense counsel’s ture about investigation inadequate, sel’s was -itself up have turned and the investigation would strategic only present choice of testimony had nature of various witnesses’ ing behalf at two witnesses Petitioner’s in accordance performed defense counsel objec mitigation must also be considered acceptable professional standards with tively unreasonable under Strickland v. litigation. doing, so penalty death 668, 687, Washington, 466 U.S. 104 S.Ct. against all doubts Peti- majority resolves (1984). Wiggins, 80 L.Ed.2d 674 See of the evidence tioner and holds none — at -, 123 S.Ct. at 2538- U.S. garnered might Petitioner’s counsel “ choices (recognizing ‘strategic jury’s sufficiently impacted the would have complete investiga than made after less the outcome of decision-making to alter extent precisely tion are reasonable to the phase Contrary trial. to penalty professional judgments reasonable I that the record is too majority, believe ”) investigation’ the limitations on support potential as to whether wit- conflicted 690-91, Strickland, 466 (quoting U.S. willing testify, nesses would have been 2052). nature of the is too and the permit the formation of rehable sparse distinguish majority attempts investiga- to whether counsel’s opinion as noth- by concluding that there is Wiggins social, family, psy- or tion into Petitioner’s have caused ing on the should record adequate under an chological history was deeper into Petitioner’s counsel to delve Thus, objective I would remand standard. social, history. family, psychological rec- evidentiary hearing so that the However, conclu- majority reaches this as to counsel’s developed ord could be on the limited nature sion based thereby allow- investigation regard, in this Peti- and evidence derived from whether an informed decision as to ing for which, hearing as post-conviction tioner’s ultimately prejudiced Petitioner was indicated, and conflicted sparse is too right Amendment to ef- his Sixth denied point at this make such a determination counsel. fective assistance of say that That is not to proceedings. an eviden- by way further review upon trial counsel claims that his Petitioner reached tiary hearing the result during the provided ineffective assistance necessarily different. majority would be by failing, among trial phase of the penalty life rests in a case where a Petition- But things, into other family and that presented, of the evidence tioner was devoted to his upon the nature son, worker, good al- he was a a hard and a imperative it is family man. father good the evidence neces- Petitioner’s also lowed to all of him “very testified that trial counsel asked sary for the to make an informed court background little” about Petitioner’s and particularly This so in a case decision. is where, Petitioner, schooling, and that when he offered to such as aside from this testify mitigation hearing, at the counsel the sole witness called on Petitioner’s be- that it better not to offer stated would be half whose was minister (J.A. any testimony by family members. expressed Petitioner had that “he knew 188.) ultimately day one he would have to God[,]” give accounting of his life to brother, Johnson, Jr., Petitioner’s James may actually against have worked him. similarly testified that trial counsel did not background, ask about Petitioner’s “[n]oth- Moreover, record, upon sparse this Ohio, ing things other than his arrest there is evidence to indicate that counsel nature[,]” despite the fact that John- deeper should delved into Petitioner’s spent significant son had amount of time social, past family, psychological and histo- family, with Petitioner and his and that he ry. example, For at the hearing on willing testify was that he never knew of post-conviction petition, first Petitioner any problems marriage. in Petitioner’s prior provided testified that to trial he trial (J.A. 188.) Johnson also testified that counsel with the names of a number of he advised defense counsel that he was behalf, testify witnesses who could on his testify available to on behalf of Petitioner including family Barry his Mend mitigation at the but that counsel Gray, others who could rebut evidence (Id.) said “it would be advisable not to.” A marriage rocky. that Petitioner’s number of Petitioner’s members sister, Ward, Shirley Petitioner’s testi- acquaintances post- testified at the fied that she was never trial contacted hearing. conviction of them indicat- counsel; Some however, if called upon she would they ed that would have offered good have testified that Petitioner was a sympathetic to Petitioner but were not family man any problems who did not have testify called to or were never contacted home, relationship and that the between by defense counsel. The contention of Pe- her brother and his wife seemed harmoni- titioner’s counsel that a number of the happy ous and the weekend before potential were not witnesses inclined to sister, Mary murder. Petitioner’s other testify disputed by several of them. Ward, testified that she told she was available to at trial and mother, Specifically, Ruby Petitioner’s that, called, if she would have testified that Johnson, testified that trial counsel did not Petitioner loved his wife and would not ask her background; about Petitioner’s have killed her. however, asked, she also testified that if she jury Barry would have told counsel and the Gray, who had been a friend of any problems childhood, that she did not know of in Petitioner since testified at the marriage, hearing Petitioner’s and that he that he would have informed the hard worker who cared for his that Petitioner was a friend and Likewise, raised children. well-mannered a hard worker who seemed to care and father, Johnson, provide family. Petitioner’s James testi- In- for his Officer James that, post-conviction hearing gram, jailer fied at the if a deputy Shelby with the called, he would have testified that Peti- County Department, Sheriffs testified at juror that Petitioner in- as few as one vince Petitioner hearing that when undeserving of the death carcerated, disciplinary was someone never had “[h]e development by Further factual knowledge[,]” penalty. anything my write-up or evidentiary hearing may serve willing way been of an that he would have and mitiga- thereby Petitioner’s this conclusion estab- support to this effect at subpoena. receive a failed to conduct an lishing trial but did not that counsel tion 189-90.) Force, (J.A. an owner particularly David adequate investigation; at this is Petitioner Camping where, where of Force in addition to the above testimo- so testified, worked, and hearing at the also record indicates that counsel failed ny, the that, asked, have said medical, school, if he would stated social any to obtain good employee. was a that Petitioner concerning records- Petitioner. service expert testi- presented Petitioner also Indeed, not contest Respondent does hearing as to mony post-conviction at the during the performance counsel’s that trial background investi- manner in which of the trial fell below penalty phase capital performed be gations should objective of reasonableness. standard Blum, is, That in Tennessee. Jeff cases Rather, only contests the sec- Respondent Re- Capital of the Case administrator prong ond of Strickland —Whether Center, about the necessi- testified source investigate present failure to and counsel’s extensively persons with ty speaking Petitioner. mitigating prejudiced evidence or his with Petitioner had contact who Strickland, See Blum stated that: family members. argues preju- that no Respondent of all the fairly extensive search to Petitioner because We do a dice occurred an individual mem- merely of contact consisted of points various evidence past in their Petitioner was a have had would sometime bers’ statements gather- mar- through process, happy man who had a good family life. And material, papers, employee. as much written friend and ing riage, and files, process can in that records that we argument, fallacy Respondent’s we feel discovering information toward however, only that the that it assumes mitigation, and at may helpful be trial counsel could evidence mitigating time, other names of gathering same testimony of Peti- was the presented have in testi- may helpful who individuals friends, and em- tioner’s the defendant. fying on behalf of that the nature' and it assumes ployer, (J.A. 191-92.) adequately witnesses’ these investigation into Pe- proper A

Thus, developed. record before light nature of the background and the defense titioner’s us, clear indication that there is testimony may have revealed investigated further witnesses’ should have counsel persuade social, evidence psycho- mitigating other family, into Petitioner’s in prison to life jury to sentence Petitioner making strategic history before logical is no Because there opposed as to death. only one other witness present choice to what an investi- on the record of mitigation evidence aside from Petitioner background gation of Petitioner’s made Peti- The statements hearing. revealed, cannot conclude friends, this Court employer family, close tioner’s by trial prejudiced Petitioner was not upon which provided a basis failure to inquiry further known that should have Thus, this case evidence. mitigating for the was needed past into Petitioner’s instructions remanded with witnesses to con- should be allowing these purpose an evidentiary doing the district court conduct could we determine whether Peti- hearing on Petitioner’s claim for further constitutionally adequate tioner received factfinding scope representation requiring as to the of counsel’s before Petitioner investigation Mason, nature pay penalty. and the of what evi- the ultimate See dence, any, investigation if further (remanding would 320 F.3d at 620-21 the death Mitchell, penalty petitioner’s revealed. See Mason v. ineffective assistance (6th Cir.2003) (“Because F.3d evidentiary 620-21 of counsel claim for an hearing the record as it now stands inadequate reflects dis- where the record was to allow putes performance about defense counsel’s for meaningful appellate review as to with respect to the of whether counsel performed adequate trial], investigation [the we remand the case as to miti- preparation evidence); evidentiary gating to the district court for an see also v. Unit- Griffin issue.”). States, (6th Cir.2003) hearing on this ed (remanding petitioner’s § 2255 motion Similarly, majority’s contention that evidentiary the district court for an error, any, if was harmless because hearing where petitioner “presented testimony as to Petitioner’s character aas potentially meritorious claim for ineffec- loving husband man would have tive noting assistance of counsel” while opened potentially the door to unfavorable that the right “deserve[d] testimony, also speculation. based on develop a record” in order to demonstrate us, say, That is to on the record before it is prejudice). I respectfully therefore dis- impossible that any to conclude unfavora- sent. ble that may have come into by way evidence of favorable character

evidence would have unanimously persuad-

ed the unfavorable outweighed testimony. the favorable See id. Court,

The record although before the needing further factual development, pro- E.I. DU PONT DE NEMOURS vides clear indication that Petitioner’s trial COMPANY, & Plaintiff- responsibility counsel failed in their in- Appellee, vestigate mitigating evidence penalty at Petitioner’s phase trial. Con- conclusion, trary to the majority’s it can- Joseph OKULEY, Dr. John determined, upon pres- be based Defendant-Appellant. record, representation ent whether proper penalty of Petitioner at the No. phase trial 01-3074.

would have resulted in a different out- United Appeals, States Court of come. Since the record fails to establish Sixth Circuit. whether the scope investiga- of counsel’s Strickland, tion adequate under Argued Sept. 2002. juncture cannot said this whether Decided Sept. and Filed Petitioner prejudiced by performance. Compare Wiggins, 123 Thus,

S.Ct. at I 2538-39. would remand evidentiary hearing. for an Only by so

Case Details

Case Name: Donnie E. Johnson v. Ricky Bell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 25, 2003

Citation: 344 F.3d 567

Docket Number: 01-5451

Court Abbreviation: 6th Cir.