Eley v. Bagley

sure, officials are entitled prison To be 2321, L.Ed.2d 271 302, 111 S.Ct. adoption (1991). in the “wide-ranging deference to policies practices and and execution of im- majority “[m]ost concludes preserve judgment are needed in their that Griffin the video establishes portantly, Albers, Whitley v. order.” internal Har- against both clearly struggling was 321-22, Hardrick em- Rutledge before U.S. drick (1986). I do not maneuver.” deference leg-sweep But such ployed L.Ed.2d 251 was the video shows Griffin agree that tak- review actions not insulate from “does extent to an struggling with officers legitimate pur- for no in bad faith and en juror could conclude that no reasonable juryA 1078. Id. at pose.” wantonly and mali- acted that Hardrick in portrayed the video viewing the events takedown. The performing in ciously Griffin attributes light in of the statements walking began that Griffin video does show reasonably conclude that could to Hardrick Hardrick, and that she resisted away from thought plausibly have Hardrick could grab her arm. Grif- attempt initial maneuver, the takedown the use of however, be- fin, that she did so contends neces- properly, executed although already sore and her arms were cause fact, that, it performed he sary, and bruisеd, caused grip that Hardrick’s if not of the solely pain, inflict even Indeed, Hardrick pain. her additional ultimately occurred. degree that him to “watch that Griffin told concedes arms.” [her] however, as to ambiguous,

The video struggle continuing whether Griffin and, if even at the time of the takedown was, plausibly Hardrick could she whether ELEY, Petitioner-Appellant, J. John necessary under thought have takedown approximately circumstances. In the BAGLEY, Warden, Margaret Rutledge when eight span from second Respondent-Appellee. Har other arm until took hold of Griffin’s maneuver, No. 06-4503. performed the takedown drick continuing to talk with can be seen Griffin Appeals, Court of United States aggressive physi with no the two officers Sixth Circuit. Rutledge cal movement. Hardrick Dec. 2008. Argued: forcefully, her forward sufficient pull then appears It to make her stumble. May Filed: Decided and regained almost her balance Griffin has En Rehearing Banc Rehearing and takedown, performs Hardrick when Denied June 2010.* continues to be restrained both and she Further, officers. no other arms area, and a third

inmates were nearby observing officer stood corrections Seiter, 501 ready to intervene. See (whether con 111 S.Ct. 2321 U.S. ‘wanton’ de “can characterized as duct be facing the upon the constraints pends offi ”) (emphasis original). cial * ruling, participation in this rehearing herself from Judge Clay grant the rea- cused would Judge Cook re- stated in his dissent. sons

Hadacek, Office of the Attorney Ohio Gen- eral, Columbus, Ohio, Appellee. SILER, CLAY, GIBBONS, Before: Circuit Judges.

GIBBONS, J., opinion delivered the court, SILER, J., joined. which CLAY, 971-77), (pp. J. delivered a separate dissenting opinion.

OPINION GIBBONS,

JULIA SMITH Circuit Judge.

Petitioner-appellant Eley John J. aggravated convicted Ohio of murder aggravated and robbery and sentenced to death. He appeals now the district court’s denial of his petition for a writ of habeas corpus, challenging the state trial court’s failure to conduct a competency hearing, his trial counsel’s effectiveness in develop- evidence, mitigation and the trial pan- el’s consideration of mitigation proof. For below, the reasons set forth we now affirm the district court’s decision and dismiss petition. habeas Ele/s

I.

The Ohio Supreme Court summarized the facts of the case as follows: During early August afternoon of 26, 1986, Eley visiting Melvin Green the home girlfriend of Grеen’s Youngstown. According to Eley, he and just Green were sitting around when Green suggested they go down to ARGUED: David Doughten, Lawrence Eley “Arab store.” and Green left Offices, Cleveland, Ohio, Law Appel- for proceeded house and path down a Hadacek, lant. Sarah A. Office of the ohio through leading Sinjil the woods to the General, Attorney Columbus, Ohio, for Ap- Market. Along way, Green showed pellee. ON BRIEF: Eley David Lawrence gun,” “Black Snub nose and told Offices, Doughten, Cleveland, Ohio, Law Eley he going “was to take the Arab Helmick, Jeffrey James Helmick & Hoola- store, off.” Since the proprietor of the han, Toledo, Ohio, Appellant. Aydah, face, Sarah A. Eley Ihsan knew Green’s during the interview and was drugs rob the store go alone and

agreed “passive.” “very calm” and waited outside. while Green jury Eley on one grand indicted Aydah told Eley the store and entered spec- with a aggravated count of murder turn and face up hands and to put committed ification that the murder was Eley Ay- had told the wall. Green after, counter, immediately the com- during, or the store gun had a under dah (R.C. aggravated robbery an and mission of his hands Aydah when lowered so 2929.04[A][7]), Eley was the counter, Eley fired under the went This count also car- principal offender. Eley claimed that he aimed shot. addition, However, In specification. ried a firearm the shot Aydah’s shoulder. head, aggra- count of was indicted on one Aydah right hit on the side of (R.C. robbery the ear- 2911.01[A][1] four inches above vated approximately (R.C. [2]) day conspiracy of shock one count of Aydah lobe. died next 2923.01[A]). gunshot wound Each a fire- hemorrhage due to count carried to the head. arm specification. gun, fired the Green right

Just before In waived his May shot, the entered the store. After a jury opted a trial and for a trial before got and Green ran behind the counter Eley pled guilty not three-judge panel. Aydah’s register. into the cash He took him, charges against thereby to the Aydah lay on the wallet while wounded withdrawing plea guilty by a of not prior store, floor. As the two left the Green insanity.... reason of bag with the gave Eley paper a brown three-judge Trial was held before a According Eley, to money and wallet. 11-12, 1987, the panel May on but de- street, path the they up “got went the present any chose not to evidence. fense up and run the woods.” Eley guilty aggravat- panel found of murder, rоbbery, the fel- aggravated

ed murder, Eley days Several after the capital specification, and ony-murder police at Youngstown was arrested specifications, three firearm two of the girlfriend, the of his cousin’s residence guilty conspiracy. but arrest, Eley After his Carlotta Skinner. During mitigation hearing, the several split that he had police told and Green family Eley’s on be- members testified ‍​‌​‌​‌‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌‌‌‍money robbery, taken in the which mother, Eley’s Joseph, half. di- Cecilia However, Eley later was around $700. Eley’s Eley sev- vorced father when gave money back to Green “because old, eight years en or and stated that all him he had to he said it was on and relationship a Eley had “not much” of get out.” Joseph with his father. testified on night her second hus-

Christmas arrested, drinking began volun- band had been and chok- being [After i]n time, At that tary Eley daughter. that he her and her statement admitted Market, with a Sinjil Eley stabbed the second husband and Green had robbed the Joseph him. testi- Aydah. arresting stop knife order to [The and he shot high Eley dropped fied that out Eley ap- testified that did not officer] grade, ninth but later en- influence of alcohol school pear to be under the Green, cоunsel, including testimony against an offer of According 1. to an affidavit of trial charge voluntary manslaughter with a six- Eley accept various before trial refused to Eley's year plea sentence. offers that were conditioned on Eley’s petition for a writ of certio Corps and learned to be 654. tered the Job Eley money sent home to his Supreme welder. rari Court denied. time, during gave this her mother Ohio, 1124, 117 Eley v. help paying her finish for

money to (1997). Joseph stated nursing school. Eley petition post-conviction filed a drugs Eley problems has had with while § Revised relief under Ohio Code 2953.21 alcohol, person he is a better when September on 1996. The court state not under the influence. She char- he is evidentiary hearing an Eley’s conducted on oriented,” Eley as “church acterized competency Eley’s but denied motion for a again.” had been “born believed he competency ground determination on the sister, Eley’s Laury, Susan testified right competent that he had no to be in a Eley helped family finan- post-conviction proceeding. The court cially Corps, while he was in the Job post-conviction April then denied relief on sweet, normаlly “quiet, Eley, 1999. State v. No. 86-CR-484 any- hurt gentle person that wouldn’t (Ohio 1,1999). Apr. Eley time- Ct.Com.Pl. body.” ly appealed, but the Seventh District Darnall, Douglas psy- Dr. a clinical affirmed trial Appeals Court court’s chologist, found of borderline be post-conviction petition dismissal of the on him in intelligence, and ranked Eley, November 99- State No. percentile twelfth on the Wechsler Adult (Ohio CA-109, 2001 Ct.App. WL Darnall, Intelligence According Test. Nov. The Ohio history has a of chronic alcohol and jurisdiction abuse, declined to exercise over polysubstance but exhibited “no major psychosis post-conviction petition. evidence of defective State v. addition, In Darnall 1506, disorder.” testified Eley, 94 Ohio St.3d 764 N.E.2d 1036 Eley understands the difference be- (Table) (Ohio 2002). right wrong. tween Darnall found 12, 2002, sister, July Eley’s On Susan remorseful, Eley Eley to be but never Laury, filed a notice of intent to file the mentioned that he felt remorse for the present petition for a writ of habeas cor However, police victim. two officers 2254, pus pursuant along § to 28 U.S.C. Eley’s who witnessed confession testi- execution, Eley’s stay with motions to Eley fied that was remorseful before he counsel, appoint competency and for a Eley made that statement. made a if Eley compe evaluation to determine mitiga- short unsworn statement appeals. tent to waive further phase tion that consisted of several bibli- stay, district court entered a but while the quotations cal from the Book of Romans. motions, parties briefing were the last two deliberation, panel After unani- Eley filed a notice of intent to file a habeas mously aggravating found that cir- petition Eley petition himself. filed the on outweighed mitigating cumstance 19, 2003, raising grounds March fourteen doubt, beyond factors a reasonable Bagley, relief. See v. No. Upon appeal, sentenced to death. 4:02CV1994, 2990520, *4 2006 WL of appeals the court affirmed the convic- (N.D.Ohio Oct.18, tions and sentence of In November death. 2003, Eley stay filed a motion to the habe 174, Eley, State v. 77 Ohio St.3d proceeding so that he could file a men as (1996). 640, N.E.2d consid- 644-46 After pursu tal retardation claim in state court eighteen ering the issues raised on 304, 122 Virginia, ant to Atkins v. 536 U.S. appeal, Supreme the Ohio Court affirmed (2002). 2242, This judgment appeals. of the court of Id. S.Ct. 153 L.Ed.2d 335 16, by Supreme] reached Court on a [the claim was later denied. On October 2006, law,” court denied his habeas or “if question the district the state court grounds. Eley, all petition on fourteen materially confronts facts that are indistin- 2006 WL 2990520. Supreme guishable from relevant Court opposite at an re- precedent arrives

Eley timely appealed and now raises 362, Taylor, sult.” 529 U.S. Williams granted a three issues. The district court (“COA”) 120 S.Ct. 146 L.Ed.2d 389 Appealability as to Certificate of (2000). (1) A state court “an whether trial court makes unreason- the first two: Eley’s process by fail- rights application violated due of’ prece- able Court (2) competency hearing; 2254(d)(2) ing to hold § dent under “if the state court whether trial counsel was constitu- governing legal identifies the correct rule tionally by failing investigate ineffective Supreme] from Court’s cases but un- [the prepare mitigating pen- evidence for the reasonably applies it facts to the of the alty phase. expanded We the COA to case,” ... particular or if the court unrea- (3) trial three-judge include: whether the sonably extends or refuses to extend exist- panel give failed to consider and effect to ing Supreme precedent to new fac- mitigation sentencing. valid evidence at tual it apply. situations where should Id. AEDPA, 120 S.Ct. 1495. Under II. question for this court to answer “is The Antiterrorism and Effective Death whether federal court believes the (“AEDPA”), Penalty Act of 1996 Pub.L. state court’s determination was incorrect 104-132, (1996),governs No. Stat. but whether that determination was unrea- all petitions April habeas filed after substantially higher sonable—a threshold.” Murphy, 1996. See Lindh v. 521 U.S. 465, 473, v. Landrigan, Schriro 326-27, 138 L.Ed.2d 481 (2007). (1997). provides: AEDPA findings by Factual made the state courts application An for a writ of habeas cor- based on the trial record are to a entitled pus person on behalf of a in custody presumption may of correctness that be pursuant judgment to the of a State convincing rebutted clear and evidence. court granted respect shall not be with 2254(e)(1); Smith, § 28 U.S.C. v. Warren any adjudicated claim that was on the (6th Cir.1998). 358, 161 F.3d 360-61 merits in proceedings State court unless adjudication of the claim— However, federal courts need not (1) resulted in a decision that was con- every point by review of error raised a to, trary or involved an unreasonable petitioner. prisoner habeas aWhen “state application of, clearly established Feder- has defaulted his federal claims in state lаw, al by Supreme as determined pursuant court to an independent and ade States; Court of the United rule, quate procedural state federal habeas (2) resulted a decision that was based review of the claims is barred unless the on an unreasonable determination of the prisoner can demonstrate cause for the facts in light presented of the evidence default and actual ... or prejudice demon in the proceeding. State court strate that failure to consider the claims 2254(d)(1)-(2). § 28 U.S.C. will in a miscarriage result fundamental justice.” Thompson, Coleman v. 501 U.S.

A adjudication state court is 722, 750, 2546, 115 “contrary to” L.Ed.2d 640 Supreme precedent Court (1991). 2254(d)(1) circuit, § ‍​‌​‌​‌‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌‌‌‍under “if ar In this to determine the state court rives at a opposite conclusion to that a claim proce- whether federal has been

965 defaulted, III. apply three-prong we durally Smith, 785 F.2d Maupin out in v. test laid A. Cir.1986): (6th 135 first address claim of We First, court must determine deprivation process by of due the state rule that is procedural there is a state panel’s competen trial failure to conduct a claim and petitioner’s to the applicable cy hearing. due-proсess right “The to a comply with petitioner that the failed to by fair trial violated a court’s failure to is Second, must de- the rule.... the court proper competency hearing hold where actually cide whether the state courts there is substantial evidence that defen procedural the state sanc- enforced incompetent.” dant v. Filiaggi Bagley, is Third, the court must decide tion .... (6th Cir.2006) 851, (citing 445 F.3d 858 procedural the state forfeiture whether Robinson, 375, 385-86, Pate v. 383 U.S. 86 “adequate independent” an state is (1966)). S.Ct. A de rely ground on which the state can adjudged competent fendant can be foreclose review of a federal constitu- if present stand trial he has “sufficient tional claim.... ability lawyer to consult with his with a (6th Mohr, v. 417 Jacobs degree reasonable of rational understand Cir.2001) Maupin, 785 F.2d at (quoting whether he has a rational as well —and procedural If the state rule was understanding proceed as factual of the an complied with and that rule was “ade against Dusky him.” v. ings United independent” ground for de quate States, 402, 402, S.Ct. fault, if the may we still excuse the default (1960) curiam). (per L.Ed.2d 824 “[Evi petitioner can demonstrate “that there behavior, of a irrational dence defendant’s procedural for him not to follow the ‘cause’ trial, prior his demeanor medi actually prejudiced that he was rule and opinion competence cal on to stand trial error.” Mau alleged constitutional in determining are all relevant whether Cole, 2 F.2d at 138. In State v. pin, 785 inquiry required, further but ... even (1982), 443 N.E.2d Ohio St.3d standing may, one of these factors alone held that res “the Ohio circumstances, Drope be sufficient.” some judicata proper upon is a basis which to Missouri, U.S. an ineffective-assistance claim a dismiss (1975). 896, 43 L.Ed.2d 103 relief where a petition post-conviction signifi represented by Eley argues who is new that there was defendant incompetency cant at trial appeal counsel on direct fails to raise three-judge panel the basis for that claim ‘could be and therefore the trial claim and evidentiary hearing an fairly examining determined without evi should have held on ” Fautenberry competency, the record.’ v. his even after his counsel dence outside (6th Mitchell, Cir.), Eley points a for one. request cert. withdrew — denied, U.S. —, support 172 to various facts in the record to (2008). depositions In Fautenberry, In we this assertion. affida L.Ed.2d judicata support post-convic taken to his state application held that “Ohio’s of res vits enforced, actually petition, Eley’s reported an tion trial counsel pursuant to Cole is Eley that often rambled about abstract adequate independent ground state cooperating of with religious state courts consis ideas instead upon which the Ohio They further forming of a a defense. stated tently refuse to review the merits difficulty had communicat- Eley that often defendant’s claims.” Id. “any revealed suggestion incompeten- with counsel because of his below- ing and education. At the average intelligence cy.” Id. trial, Eley’s unsworn penalty phase at trial Because evidence did not to a series of statement the court was suggest Eley incompetent, that was we Ro- quotations biblical from the Book of Supreme cannot find that the Ohio Court’s in- Eley mans. contends that his mental decision on this issue was unreasonable. in competence directly resulted his refusal The test for whether the trial court erred accept plea a offer that would have holding proper in a hearing not is whether serving years prison. resulted in his six in judge position a reasonable that would During post-conviction proceedings, “experienced respect have doubt with post-conviction Ohio trial court held a com- competency Filiaggi, to stand trial.” hearing, Jeffrey Dr. petency which F.3d at The state trial record reveals Smalldon, psychologist, a clinical testified following. a During suppression hear Eley “pseudo- that was to make inclined trial, Eley held less than a week before philosophical statements that were often testified to his recollection of the confes terms, religious very couched in often diffi- gave police. sion he His answers on both cult to understand.” also sus- Smalldon direct and cross-examination cogent were Eley may that pected have suffered from understanding and show that he had an damage possibly having brain due to — objective hearing. Nothing at the forceps delivery, upbring- to his abusive suggests Eley incompetent the record was ing, boxing as an although adolescent— during guilt phase of trial. At the Eley’s cooperate, due to failure to Small- brief, penalty phase, Eley gave a unsworn suspi- don could not confirm of his thаt nothing statement consisted of but Eley cions. contends now that there was Bible verses. While the statement was give judges sufficient evidence to the trial unusual, perhaps it does lack suggest not suspect incompetent cause to that he was of competency. penalty Nor does the to stand trial. testimony phase about limited edu Supreme The Ohio Court considered and cation intelligence suggest and low that rejected argument. this The court first Moreover, Eley incompetent. was that Eley right held had waived his to a state trial court was aware of Darnall’s competency hearing “knowingly and intel- opinion competent that to stand ligently” having requested after one. trial.

Eley, 672 N.E.2d at 650. holding This Much of the provides problematic. As Supreme suggest competency his lack of Robinson, warned in Pate v. is con- “[I]t generated nearly a decade after his trial. tradictory argue may defendant example, preparation For for his state incompetent, yet knowingly be or in- action, post-conviction reported Smalldon telligently right ‘waive’ his to have the may damage have had brain due court capacity determine his to stand tri- injuries to head during Eley’s suffered al.” 383 U.S. at 86 S.Ct. 836. How- Further, youth. reported Smalldon ever, alternative, in the the Ohio he was unable to obtain hard test data to if Court held even the waiver were invalid, opinions corroborate various he had “any error trial court in formed because harmless, uncooperative was conducting a hearing since during report his examination. Smalldon’s record fails to reveal sufficient indicia was not made until and he did incompetency.” Eley, of 672 not N.E.2d court, According testify hearing January to the at a until Eley had any portion failed to cite roughly Although of the record that a decade after the trial. many investigate present adequate of the factors miti- that Smalldon believed gating penalty phase. evidence at the He “perhaps” conclusions led him to his heavily counsel relied way argues in the same his too have affected would trial, only Investigation Report able to on the Presentence of he was at the time (“PSR”) and not to in- questions serious therefore decided that there were conclude Eley’s family. Eley present,” “at terview much of also Eley’s competency about arguеs present that counsel failed to im- assess- meaning 1996-1997. Smalldon’s evidence, Eley’s portant history social such as his speak competency not ments did trial, upbringing, history of alcohol and which is the relevant difficult at the time of abuse, reasons, deposi- drug employment background. For similar legal inquiry. Further, Eley contends that his defense Eley’s during post- trial counsel tions from by fail- indicating counsel’s was further undermined counsel’s proceedings conviction request independent psychologi- na- ure to an Eley’s uncooperative frustration with by a during qualified mitigation trial do cal evaluation religious ture and beliefs Filiaggi psychologist. According Eley, counsel’s satisfy the test laid out failures resulted in the state courts’ not of Retroactive determinations fully considering potentially mitigating fac- difficult, any such de competency are such as true “ tors his remorse for his ac- on ‘evidence must be based termination possible tions mental or defects. knowledge contemporaneous derived from ” The court district found that Battles, F.2d to trial.’ Bowers v. any arguments not raised of these until his Cir.1977)

(6th Wingo, (quoting Conner post-conviction petition, state where the (6th Cir.1970)). F.2d The cоurt Ohio held that the claims were by Eley from the state proffered by judicata. res Eley, barred 2006 WL virtually post-conviction proceedings has Therefore, at *28. the district psychological probative no value. court that this claim procedurally held by Darnall Eley performed evaluation of defaulted. Id. A review of the state court just Eley’s sentencing hearing, before opinions only partially reveals this is true. compe which he was sane and concluded post-conviction The state court found that tent, probative compe is far more of his Eley’s only portion claim—that coun- tency at trial than examinations conducted hiring sel was ineffective for not a toxicolo- nearly years Although ten later. the Ohio gist pharmacologist by barred res Supreme holding Court’s was that the fail —was judicata because it was not based on evi- competency hearing ure to conduct a “was dence outside the record and therefore harmless,” the was still based on decision could have appeal. been raised on direct fails to finding the critical “the record However, Eley, 2001 WL at *10. incompetency.” reveаl indicia of sufficient court of appeals did reach the rest of Eley, finding 672 N.E.2d 650. This did Eley’s assistance claim on the ineffective application an not involve unreasonable merits and found that he had not shown clearly prece established evidence uncovered further dent, and we therefore affirm the district investigation would have not been cumula- court on this issue. tive to the evidence disclosed the PSR. B. *9, Therefore, *12. Id. we review rest of claim of ineffective second claim is assistance ineffectively by failing counsel on the merits.2 performed counsel caution,” Eley, rejected it. 2. "Out of an abundance of the dis- in the alternative See did the merits of this claim 2006 WL at *28-31. trict court reach 968 shaw, (6th Cir.2007) 442, forth Court set 454 Mitchell, 392, assistance of coun (quoting

the test for ineffective v. 441 Broom F.3d (6th Cir.2006)) (internal Washington, v. sel Strickland quotation 410 (1984). omitted). 104 S.Ct. The Ohio Ap- marks Court of (1) claim, Eley To establish this must show peals’s hinged treatment of this claim on performance counsel’s was defi his Eley this last issue—the court found (2) cient, deficiency preju and could not the new prof- show evidence he 687-88, Id. at diced his defense. 104 S.Ct. merely fered more than cumulative of provе deficiency, Eley 2052. To must presented what was at mitigation. Ohio representation show that “counsel’s fell be character, “history, lists the and back- objective an low standard of reasonable ground” of the offender statutory as a Prejudice ness.” Id. can be shown mitigating factor. Ohio Ann. Rev.Code “that there is a proving proba reasonable 2929.04(B).3 Therefore, § Eley the facts that, bility unprofessional but for counsel’s presented claims counsel should have could errors, the result of the proceeding would probative be mitigation. further proba have been different. A reasonable mitigation hearing, Eley At the first of- bility probability is a sufficient to under testimony fered the of several law enforce- mine confidence the outcome.” Id. at sergeant ment officials. A with the Ma- 694, 104 S.Ct. 2052. Counsel’s failure to County honing Eley Jail testified that reasonably investigate a defendant’s back any regulations violated rules or before ground present mitigating or evidence to during trial. Two officers with the jury at can sentencing constitute inef Youngstown Department Police testified Smith, Wiggins fective assistance. 539 Eley appeared remorseful the time 510, 522-23, U.S. responsibility he аdmitted for his actions. (2003); Williams, L.Ed.2d 471 U.S. mother, sister, Eley’s Joseph, Cecilia and 395-96, 120 S.Ct. 1495. Laury, Eley Susan testified that had diffi- assessing When whether an at culty with dropped school and out when he torney’s mitigation investigation was defi years Eley was sixteen old. then enlisted cient, only quantum we consider “not Corps the Job and received training to already counsel,” of evidence known to but welder, be a Joseph Laury and testi- also whether evidence should have led Eley fied that sent his money mother “a attorney investigate reasonable fur support training her for a nursing degree. Wiggins, ther.” U.S. Joseph testified that was church-ori- 2527. prejudice, Eley To demonstrate ented and often attended church near her must show that new evidence differs home. Joseph Laury both testified to way “in a substantial strength and —in Eley’s poor relationship with his father subject actually matter —from the evidence step-father. Once father and presented at sentencing.” Fautenberry, divorced, mother when was around (citation 515 F.3d at 626 quo and internal fourteen, Eley’s stopped father omitted). seeing him. tation marks failure to “[T]he Christmas, One Joseph’s second hus- present additional mitigating evidence that Eley’s steр-father merely cumulative of that violent already pre band — —became Joseph Laury. Eley attempted sented does not rise to ‍​‌​‌​‌‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌‌‌‍the a with level of constitutional violation.” stop Nields v. Brad- step-father strangling from See, Although undergone respects present the statute has a minor identical version. Glenn, stylistic change, e.g., the version in effect in State v. 28 Ohio St.3d sentenced, (1986). when inis all relevant N.E.2d Later, Joseph discussing him. and Lau- Id. when trial by stabbing dice. mother although Eley typical- PSR, was ry alleged testified that counsel’s overreliance on the sweet, gentle person, his ly quiet, and repeated prior the court its conclusion drugs use of and alcohol often led habitual that counsel’s was “not behavior unreason- becoming person a different when he to his considering the fact that [the able PSR] Darnall, psycholo- a state impaired. was uncovered similar that evidence would witness, Eley that had a gist and testified specific have been uncovered had a inves- history and poly- chronic of both alcohol tigation been conducted.” Id. at *12. substance abuse. cannot find that this conclusion We was proceeding, In post-cоnviction the state application an unreasonable of federal law. Eley mitigating presented additional evi- The record shows that counsel prepared that counsel had failed to uncover at dence witnesses, questioned several includ- sentencing hearing. Joseph testified family. law enforcement and both The Eley delivery forceps that underwent a at question of whether counsel conducted an A girlfriend birth. former testified that “adequate investigation” governed by heroin in the 1970s Eley was addicted to “ ‘presumption of imposed reasonableness binge Eley’s drinker. and had been ” by Strickland hard to overcome.’ [and is] Eley knew step-mother testified she Houk, (6th v. Beuke “eating early as the sec- aspirin” been as Cir.2008) Coyle, (quoting Campbell grade. Eley’s younger ond or third sister (6th Cir.2001)). F.3d To the ex- family rarely ate nutri- testified tent trial counsel failed to further Eley growing up, tional meals when investigate Eley’s history upbringing him may which she believed have affected is, drug and alcohol abuse—that later in life. Several witnesses testified performance extent counsel’s defi- belligerent became violent or Eley cannot show that this failure cient — drinking. when he was prejudiced ability prove mitigating Appeals Court of recounted Ohio Although circumstances. the evidence applicable standard under Strickland. presented post-conviction at the hearing although It wrote that is the obli- “[i]t go into than the depth did more of counsel to make reasonable in- gation presented by sentencing, trial it counsel vestigations particular ... decision not [a] subject did not cover new matter and investigate must examined for rea- be substantially persuasive was not more than sonableness under the circumstances with the trial evidence. Much of what measures of deference to counsel’s strong presented claims should have been at the judgments.” Eley, 2001 WL fact, was, sentencing hearing presented, reviewing present- *9. After the evidence testimony regarding as counsel elicited trial, sentencing phase ed at the Eley’s upbringing, employment difficult quantum that “a infor- court concluded addictions, history, drug alcohol appears mation contained the affidavits Therefore, good prison. behavior in we repetitive presented by of evidence be find second claim is without mitigation stage.” triаl Id. counsel merit, judgment and we affirm the of the forceps delivery, As for the evidence of a district court on this issue. the court found this evidence to be “of the normally rejected by type that would be C. judge panels weighing mitigat- when three Therefore, Finally, Eley Eighth claims that his ing factors.” Id. the court preju- rights no Fourteenth Amendment were violat- concluded had shown three-judge panel’s trial failure the by ed the circumstances of the offense that the mitigation properly to consider valid evi proffers defendant as a basis for a sen He maintains that sentencing. dence at 586, 604, tence less than death.” 438 U.S. the evidence he panel the did not consider (1978). 2954, 98 S.Ct. 57 In L.Ed.2d 973 presented regarding upbring difficult case, penalty the Ohio death statute abuse, history drug ing, his of and alcohol permit sentencing judge did not the level, intelligence low his remorse consider factors such as the defendant’s Eley supports for the crime.4 this claim character, record, prior age. See id. by noting panel’s the discussion of 597, 606, 608, 98 S.Ct. 2954. The Court mitigating sentencing opinion factors in its holding Eddings; just extended this in as any is devoid of mention of this evidence. the may statute not restrict certain factors argues He fact that the three- “[t]he being mitigation, from considered as the judge panel any ... did not mention of the cannot, sentencing judge as a matter of previously mitigation noted in is law, appropriate refuse consider evi strong evidence that such factors were 108-09, 114-17, dence either. 455 U.S. at Therefore, properly considered.” accord 102 may S.Ct. 869. “The ... sentencer[s] Eley, ing judges when the trial excluded weight given determine the to be consideration, relevant they the evidence from their Supreme ruling violated the Court’s in mitigating they Edd evidence. But may not Oklahoma, 104, ings v. 455 U.S. give it weight by excluding no such evi (1982). Further, 71 1 L.Ed.2d dence from their consideration.” Id. at argues that the omission of reference to 114-15, 102 S.Ct. 869. the evidence violates Ohio Ann. Rev.Code If a trial court considers unconstitutional 2929.03(F),5 § which sets forth the content factors, aggravating Supreme the required sentencing opinion, thus vio has held that this error can be cured lating process his due rights under Hicks Oklahoma, v. 447 appellate “by U.S. the state court independently (1980). 65 L.Ed.2d 175 ‘reweighing’ aggravating mitigating reaching factors and a sentence without Ohio, In Lockett v. Supreme the the consideration of the factors found im- Eighth Court held that “the and Four permissible at the trial level.” See Lund- require teenth Amendments that the sen Mitchell, (6th gren v. 440 F.3d 783 tencer, in all but the rarest kind capital of Cir.2006) (citing Clemons v. case, Mississippi, precluded not be from considering, 738, 740, 494 mitigating factor, as a U.S. any aspect of a S.Ct. (1990)). defendant’s character or any record and of L.Ed.2d 725 also claims the court should have con- panel judges, court or the of three strong sidered that he was death, under duress when imposes when it sentence of shall crime, cooperated he committed the that he separate opinion specific state in a its find- enforcement, with law and that he had under- ings any as to the existence of of the miti- gone religious conversion since the homi- (B) gating factors set forth in division of However, Eley fairly present cide. did not Code, section 2929.04 of the Revised courts, these sub-claims to the state and he is factors, mitigating existence of other raising therefore barred from them here. See aggravating circumstances the offender Boerckel, 838, 848, O’Sullivan v. guilty committing, was found of and the (1999); Leroy why aggravating reasons circumstances Marshall, (6th Cir.1985). guilty committing the offender was found outweigh mitigating were sufficient to 2929.03(F) § 5. Ohio Revised Code states in factors. part; relevant aggravating that “the cir- case, peals concluded Eley is correct

In this com- sentencing opinion [Eley] guilty cumstance was found court’s the trial of the analysis in its sparse mitting outweighs mitigating factors somewhat However, Eley’s evidence.6 mitigation case.” Id. at *30. The Ohio this lack of detail the court’s conclusion that thing. It found “noth- Court did same law, refusal, matter as a amounts to nature and circumstances of the mitigating evidence is any of his consider mitigating [because] offense to be the trial court did Although logical. not where, robbery in a under the participated it precise evidence on the not elaborate circumstances, likely to a murder was oc- considered, that opinion does state its 672 N.E.2d at 653. It found Eley, cur.” scrutiny all complete of gave it careful and character, history, background and Eley’s factors, at implies which mitigating the only weight.” to entitled to “modest Id. be explicitly to it did not least refuse weight” Eley’s to gave The court “some As the Ohio relevant evidence. consider “longstanding devotion and care noted, and as recountеd Appeals of family” “Eley and the fact that has shown above, on all trial court heard evidence the Nonetheless, remorse.” Id. at 654. the claims mitigating factors of the Ohio Court also concluded that See absent from its consideration. were aggravating outweighs “the circumstance No. 1995 WL Eley, v. 87 CA State mitigating beyond factors a reasonable the (Ohio Ct.App. Dec. at *5-6 doubt.” Id. Because, Bagley, under Baston v. 420 Moreover, if trial court did err even the (6th Cir.2005), any 637 defect F.3d aggravating of the weighing in its sentencing by the trial court’s was cured by following factors or not Ohio mitigating appellate reweighing courts’ of the evi the both statutory procedural requirements, af presented appeal, dence on direct we Appeals of and the Ohio the Ohio Court firm the district court on this issue. by cured the error careful- Supreme Court independently reweighing the evi- ly and IV. appeals The court of considered dence. above, we For the reasons set forth only mitigation the judgment affirm of the district court the ignored, claims was but it also considered Eley’s petition and dismiss for a writ of Eley’s injuries, additional evidence of head corpus. habeas doubt, the fact possibility of residual Eley’s unpunished, co-defendant went CLAY, Judge, dissenting. Circuit mis- prosecution committed whether Petitioner’s counsel rendered ineffective conduct, im- and whether the trial court of counsel in violation of the assistance gruesome photographs. admitted properly adequately *24-26, ap- by failing of Sixth Amendment *29-30. The court Id. aggravating analysis considering fully the cir- after 6. The extent of the trial court’s cumstances, quickly and have been quite The court first recount- which exist limited. doubt, provided category mitigating beyond proven ed each factor a reasonable summarily by aggravating statute and concluded cir- Court concludes that the applied It then outweigh mitigating none of them case. do all the cumstances factors, Defendant, beyond concluded: by the advanced by full, required [Ohio doubt as is scrutiny reasonable Upon complete careful and 2929.03(D)(3). § ] Rev.Code Ann. mitigating [sic] factors setforth all the 86-CR-484, (Ohio Eley, Ct. No. atten- State or called to the Court's the statutes 21, 1987). July Com.Pl. counsel in manner tion defense investigate Strickland, prepare mitigating evi- 466 U.S. at — 2052)). penalty phase dence for the of Petitioner’s Hоok, Bobby See also v. Van trial. I would therefore vacate Petitioner’s — , 13, 16, U.S. 175 L.Ed.2d sentence and for proceedings remand con- (2009) (noting that “Restatements with opinion.1 sistent this professional standards as ABA [such can ‘guides’ Guidelines] be useful as

To establish that counsel was ineffective what penalty phase reasonableness entails ... under Strickland v. the ex Washington, 668, 687-88, they tent professional describe the norms (1984), Petition- prevailing when representation took (1) er must show that: perform- counsel’s Mitchell, place”); Hamblin v. (2) deficient, ance was the deficiency (6th Cir.2003) (noting prejudiced his defense. Supreme Court has held that ABA “the standards for counsel in death penalty I. Trial Counsel’s Deficient Perform- provide cases guiding the rules and stan ance2 dards to be in defining used ‘prevailing the Because the Appeals Ohio Court of ana- professional norms’ in ineffective assis- lyzed Petitioner’s ineffective assistance cases”). tance According to the ABA only claim prejudice under the prong of Guidelines, cases, in capital “investigations Strickland and not did determine whether into mitigating comprise evidence ‘should Petitioner’s investigation counsel’s consti- efforts to reasonably discover all available tuted deficient performance, this Court ex- mitigating evidence and evidence to rebut amines this element of Petitioner’s claim any aggravating may evidence that be in- Beard, de novo. Rompilla 374, v. 545 U.S. ” prosecutor.’ troduced Wiggins, 390, 2456, 125 S.Ct. 534, 539 U.S. at 123 2527 (citing S.Ct. ABA (2005). To demonstrate that counsel was Guidelines for Appointment and Per- deficient, Petitioner must establish that formance of Counsel Penalty Death representation “counsel’s fell below an ob- (1989)) 11.4.1(C), Cases p. 93 (emphasis in jective reasonableness,” standard of meas- original). The Court has further noted ured against “prevailing professional that “among topics counsel should con- Strickland, norms.” 688, 466 U.S. at 104 sider presenting history, are medical edu- S.Ct. 2052. cational history, employment training respect With representation at the history, family and history, social prior penalty phase cases, of capital the Su- juvenile adult and experience, correctional preme Court has referred ‍​‌​‌​‌‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌‌‌‍to the American religious and cultural influences.” Id. (“ABA”) Bar Association Guidelines con- omitted). (emphasis “ cerning death penalty cases ‘guides as ” Althоugh decisions regarding the determining what is inves- Rompil- reasonable.’ la, tigation 545 of mitigating U.S. at 125 S.Ct. 2456 evidence often in- (quoting Smith, Wiggins v. choices, 539 volve strategic U.S. strategic counsel’s (2003) (quot- L.Ed.2d decisions supported by must be a “thor- 1. Petitioner has failed to make a agree sufficient 2. I majority Because with the that Peti- showing on his claims that the state trial tioner's claim of ineffective assistance of competency court’s failure to conduct a procedurally hear- counsel is not except defaulted — process rights violated his due and that as to Petitioner's claim that counsel was inef- the state trial court’s refusal to consider miti- failing fective for toxicologist to hire a or gating Eighth evidence violated his pharmacologist, Four- which is not at issue here—I Thus, rights. teenth Amendment proceeded this dissent have directly to the merits of Peti- will not address these claims. tioner’s claim. record, testimony Strickland, including the investigation.” ough during mitigation post- and the de- witnesses counsel 2052. When at Schultz, deposition of John one conviction investigation, mitigation their to limit cides attorneys, trial shows that lim- of Petitioner’s made after this strategic choices their attorneys consulted Petition- Petitioner’s precisely “are reasonable investigation ited Darnall, Dr. another men- family, professional er’s that reasonable the extent They Dr. Morrison. also expert, in- tal health limitations on support judgments Authority’s pre- the Adult Parole reviewed Id. vestigation.” investigation report request- sentence owed to coun- “the deference Accordingly, psychological examina- pre-sentencing ed a mitigation judgments about strategic sel’s any of tion, they did not review although adequacy of to the directly proportional or school records. Petitioner’s medical judg- supporting such investigations that, he Mitchell, hindsight,” “in Schultz testified ments.” Jells Cir.2008) mitigation hired a (6th “probably would have Wiggins, 539 (citing (J.A. him,” 910), 2527). but to assist assessing expert “In 521, 123 S.Ct. U.S. at “relatively mitigation was new” noted that [attorneys’] investi- the reasonableness many lawyers experienced were and not however, must consider a court gation, (J.A. trial. it at the time of Petitioner’s already of evidence only quantum counsel, but also whether known ... reasonable would lead known evidence sources, counsel knew the From these Wig further.” investigate attorney[s] to (1) history Petitionеr had a following: 2527. at 123 S.Ct. 539 U.S.

gins, and was a “slow learn- difficulty school in However, has also I.Q. at times had trou- with a low and er” by “hindsight is discounted structed (2) Peti- communicating people; with ble perspective adequacy to ‘counsel’s pegging a nice and non-violent generally tioner was are investigative decisions at the time’ helped family around the person who made, ‘heavy measure of by giving and (3) children; got along well with house and ” judgments.’ Rom to counsel’s deference relationship with his poor had a Petitioner 382, 125 (quot at S.Ct. 2456 545 U.S. pilla, stabbed point and had one step-father 689, 691, Strickland, 466 U.S. attempted to stepfather him his when omitted). 2052) (citations and sister in a both his mother choke (4) had several rage; Petitioner drunken argues appeal, Petitioner On incidents, fight including a knife juvenile during the were ineffective trial counsel adult, and, had numerous convictions as an ways. of his trial several penalty phase assault, theft, entering, and breaking First, maintains that “counsel Petitioner (5) disturbance;” Peti- and “drunk mitigation investi- ineffective their were history drug of serious tioner had talk to most of they in that did not gation alcohol abuse. 25). (Pet-’s Br. at family.” [Petitioner’s] pre- counsel mitigation, At Petitioner’s with family to those members respect With witnesses, including two detec- six argues sented spoke, Petitioner whom counsel was indicated that Petitioner in- tives who “adequately failed to that trial counsel facility of- and one correctional remorseful prior them to vestigate prepare” (Id.) Petitioner’s regarding testified also ficer who Petitioner mitigation hearing. Each incarcerated. good behavior while relying pre- on a trial counsel for faults up less testimony takes of these witness’ report per- without investigation sentence sentencing tran- in the pages than three forming investigation. further script. Although appears may- it counsel demonstrates the deficiency of counsel’s spoken performance. Jells, have to at least two additional fam- See 538 F.3d at 495 members, ily (citing counsel indicated that their Taylor, Williams v. testimony “largely indicative” (J.A. (2000))

testimony already offered. (concluding that counsel had “an obligation fully investigate the possible Based on the affidavits submitted available”). mitigation evidence “Coun- family Petitioner’s other members and ac- sel’s decision not expand their investiga- however, quaintances, appears it that trial rely tion” and to on pre-sentence in- family counsel failed to contact several vestigation report to fulfill obligation this members and friends. See Johnson v. investigate objectively unreason- (6th Cir.2008) Bagley, 544 F.3d Wiggins, able. 539 U.S. at (concluding counsel’s failure to inter- view the petitioner’s mother constituted performance deficient because the inter- Trial counsel chose not to conduct an provided view could have further informa- independent investigation into Petitioner’s tion as to how drug her own addiction medical and academic background, instead childhood). petitioner’s affected the choosing rely pre-sentence on the re- record fails to indicate that port. Petitioner’s Counsel’s own observations of Peti- counsel asked for additional names from tioner and their knowledge of signifi- mother, sister, Petitioner’s and brother-in- cant abuse, however, alcohol and drug law, or from state officials who were famil- should have prompted investigate them to iar with Petitioner as a result of Petition- his medical records. Like the information er’s contact with justice the criminal sys- presented in the provided records to coun- tem. See id. (highlighting counsel’s Wiggins, failure sel in report of Dr. Darnall to ask witnesses who were interviewed for and counsel’s own knowledge should have additional sources of mitigation prompted witnesses them to further investigate Peti- deficient). in finding that counsel was Nor tioner’s medical history records and of did counsel seek use, to contact drug officers who particularly since their mitiga- were involved the preparation of Peti- strategy tion was to show profound the pre-sentence tioner’s report or his case drug influence played alcohol abuse generally. more Petitioner’s life.3 Wiggins, See 539 U.S. at 524, 123 In light S.Ct. 2527. of the broad Counsel also did not seek the court’s spectrum mitigation of evidence Ohio law permission to retain mitigation a expert. permits a present, defendant the fact While counsel’s failure mitigation to use a that counsel only focused on Petitioner’s expert itself does not constitute deficient family members in locating potential miti- performance, their failure to obtain the gating abject an constitutes fail- information that a mitigation expert would fully ure to investigate possible the mitiga- gather regarding Petitioner’s —information tion evidence available. See id. childhood, early years, school substance abuse, interactions family, with and con- Accordingly, trial performance counsel’s tact with justice the criminal system— during the mitigation phase fell below addition, In presentation probation defense counsel’s girl- officer and Petitioner's former at trial history failed to reflect friend, Petitioner’s of both of whom testified Petitioner’s Instead, drug and alcohol abuse. it consisted post-conviction proceedings, pro- would have mainly family noting and detectives regarding vided the signifi- information the good person Petitioner a helped who his cant influence of alcohol in Petitioner's life. family just and was Significantly, "slow.” the trial, the Peti- penalty phase the consti- At norms” and professional “prevailing presented counsel six witnesses under Strick- tioner’s performance tuted deficient sergeant Mahoning A at the mitigation. land. that Petitioner had County Jail testified Prong Prejudice of Strickland II. incarcerated. any rules while not violated De- Appeals Youngstown in the Police the Ohio Court officers Because Two prong prejudice present the merits of at Petitioner’s partment reached who were claim, we re ineffectiveness ap- of Petitioner’s that Petitioner confession testified stan the deferential prong under view this confession. during remorseful peared Effective Antiterrorism and of the dards mother and sister testified Petitioner’s No. Act of Pub.L. Penalty Death learner, was a slow that Petitioner (1996) (“AEDPA”) 104-132, 110 Stat. alcohol, had no drugs trouble with un the state court whether to determine father, a relationship with his and had and related reasonably applied Strickland relationship step-father.4 with his troubled Strick claim. Under cases to Petitioner’s addition, that Petitioner they In testified there is a land, “must show that Petitioner person, gave a nice and non-violent that, but for coun probability reasonable money he earned while in family errors, the result of unprofessional sel’s Corps, religious. and was Peti- the Job different. have been proceeding would that Peti- tioner’s brother-in-law testified probability is a probability A reasonable violent, helped was not around the tioner in the confidence to undermine sufficient house, helped who had a leаrn- his son Strickland, 694, 104 466 U.S. at outcome.” Darnall, Dr. ing disability. psycholo- Thus, ineffective counsel’s S.Ct. 2052. 2929.03(D)(1) § gist performed who setting not warrant performance “does trial, a re- following submitted examination proceed of a criminal judgment aside during to the court and also testified port judg no effect on the if the error had According report, Peti- mitigation. In the 104 S.Ct. 2052. ment.” Id. injuries in several head tioner sustained case, petition a capital context of specific including hospitalization youth, is a when “there prejudice establishes er twelve, a Full Scale age fractured skull at that, absent the er probability reasonable per- 12th corresponding to the I.Q. of 82 rors, including appellate an the sentencer — centile, reading equivalent level and a re court, independently it to the extent addition, In Dr. Darnall testi- grade 7.5. have conclud weighs the evidence—would history Petitioner had chronic fied that aggravating and the ed that balance polysub- of both alcohol of abuse not warrant death.” mitigating factors did stances, a mental disor- qualified which as 2052. The at Id. der. “evaluate the courts to Court has directed pro- During post-convictiоn the state mitigation evi the available totality of presented counsel ceedings, Petitioner’s trial, and the at adduced dence—both from a number of testimony and affidavits proceed in the habeas adduced evidence trial, testify during witnesses who did Williams, ing.” girl- live-in including Petitioner’s former 1495. interfered, step- Petitioner's tioner’s mother they described an altercation Specifically, her, Christmas, anger at- his towards father directed which resulted that occurred on tempting mother. To to choke Petitioner's stabbing step-father. Petition- his Petitioner step-father, his stop Petitioner stabbed drinking his step-father returned from er’s with a kitchen and, step-father in the shoulder talked back older sister after Petitioner’s him, choking When Peti- knife. began her. he friend, sister, step-mother, his a second titioner’s character] or [his] recommenda- physician, and state officials involved tion for a sentence other than death.” (Id.) testimony largely Petitioner’s case. This In affidavit, addition to Trammel’s the abuse, severity focused on the drug Brocklin, of his prosecuting attorney, Gary Van drugs the effect alcohol and had on his submitted an affidavit stating feeling behavior, possible inju- plаnned effect of head “Melvin Green aggravat- ries, a forceps delivery poor robbery nutrition ed and that á [Petitioner] was (J.A. 804). brain, good on his follower.” diming behavior incarcerations, previous greater and the testimony Based on the and affidavits played role his co-defendant in the during submitted post-conviction proceed- crime. ings, argues Petitioner preju- he was diced because his trial counsel failed to Noteworthy among the additional evi- present important mitigating evidence. presented dence during post-conviction While much of the evidence discovered proceedings were affidavits of state offi- during post-conviction proceedings did not cials prosecution involved of Peti- dramatically differ in subject matter or Gary Trammel, tioner’s case. parole persuasive value from the pre- prepared officer who pre-sentence in- sented at sentencing, testimony of Offi- vestigation report, stated that he had su- cer Trammel would have reasonably been pervised Petitioner and his brothers for likely to affect the sentencer’s judgment as years several and that Petitionеr never to whether death was warranted. At miti- gave any problems. him According to gation, presented counsel the testimony of Trammel, Petitioner was not violent and three state officials—a guard at the prison “this crime ... totally out of character where Petitioner was housed who testified for him. person was a who [Petitioner] incarcerated, Petitioner’s behavior while just could never get his act together. present two officers during Petition- Drugs and major alcohol were the factors er’s confession who testified that Petition- for all the trouble that get he would him- appeared er remorseful and (J.A. responsi- took self into.” He noted bility for his actions. Counsel did not always Petitioner did well while incarcerat- present testimony officers who ed and supervision. under Trammel fur- knew about background Petitioner’s ther stated: character aas result of previ- Petitioner’s In preparing the presentence report, I ous contact with justice sys- the criminal could not personally put down a death tem, they nor did present the testimony of sentence recommendation. I still do not any officers closely who were involved in think thаt a death appro- sentence is the the preparation of Petitioner’s case. Had [Petitioner], priate punishment for counsel parole interviewed the officer who death-sentence put recommendation was prepared pre-sentence report rather presentence in the report pursuant simply than relying on report without prosecuting attorney Gary Van Brocklin. investigation, they would have discovered (J.A. As with post-convic- other prepared Trammel was testify on affidavits, tion Trammel noted that he was Petitioner’s behalf why as to he did not ready available and testify, but think death was warranted. The source of trial attorneys [Petitioner’s] never contact- testimony this fact that it would have —the ed him regarding opinions “[his] as to [Pe- been from a law enforcement officer against preparing the ease charged with KNISLEY, Betty Hall, Misty Patricia Testimony about crucial.

Petitioner —is Kay Schieser, Bryant, Angela Teresa or character from background Petitioner’s Stevens, Angela Sowers, Gil Sandra may not members or doctors family bert, Alexander, Freda James Carol effect on the sentenсer have had the same Hoffer, Snively, Barbara and Heather involved in his testimony from an officer as McCloud, Plaintiffs-Appellees, M. cumula- being Rather than prosecution. tive, testimony from supportive such a more “presented] would have

Trammel PIKE COUNTY JOINT VOCATIONAL picture of sympathetic [Petitioner]” DISTRICT, Riffe Vern Ca SCHOOL finding preju- in a could have resulted Technology Center, Fout, Toni reer Jells, 500. dice. ‍​‌​‌​‌‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌‌‌‍Wendy Cheryl Shaw, Harper, and Lor Music, Defendants-Appellants. na courts unreason Accordingly, the Ohio finding that ably applied Strickland No. 08-3082. that, probability is not “a reasonable

there Appeals, United States Court errors, [three-judge panel] absent the Sixth Circuit. that the balance ... have concluded would did mitigating factors aggravating 2010. Argued: April Strickland, 466 U.S. death.” not warrant May 2010. Decided and Filed: 695, 104

CONCLUSION into miti- investigation

Because counsel’s and there is evidence was deficient gating that, probability absent a reasonable investigation, the sentencer insufficient that Petitioner would have concluded death, I have been sentenced to should not and re- vacate Petitioner’s sentence would proceedings consistent with this mand for Petitioner’s convic- I would leave dissent. tion undisturbed.

Case Details

Case Name: Eley v. Bagley

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 14, 2010

Citation: 604 F.3d 958

Docket Number: 06-4503

Court Abbreviation: 6th Cir.