Fautenberry v. Mitchell

III. CONCLUSION Indeed, for a lower sentence. such an irrelevant non-responsive answer fails above, For all of the set forth reasons to “set enough satisfy forth appel the district judgment we AFFIRM court’s late court that [the district has con court] in both eases. parties’ sidered the arguments and has a MOORE, reasoned basis exercising KAREN NELSON Circuit own le [its] Judge, concurring gal decisionmaking authority.” in 05-4304 and Rita v. — States, dissenting —, in 06-3736. United 2456, 2468, (2007). 168 L.Ed.2d 203 Ac I agree majority that the dis- cordingly, I would remand so that jurisdiction trict court had under 18 U.S.C. district court can consider argu Brown’s § Tyrone to sanction Madden for 3583® ments explain the rationale for what supervised-release his admitted violation. ever sentence the district selects. I However, because the district court did not respectfully dissent. adequately explain why rejected it Diana (“Brown”) Blaine arguments Brown’s seek-

ing sentence, a lower I cannot find

Brown’s sentence According- reasonable.

ly, I respectfully dissent and would re-

mand Brown’s case resentencing.

The district court procedural committed

error in this case because the court failed to mention or address one of Brown’s cen- FAUTENBERRY, John Petitioner- sentence, tral arguments for lower name- Appellant, ly, represented that her offense “aberrant “truly behavior” and was a marked devia- tion from an otherwise law-abiding life.” Betty MITCHELL, Warden, (Sent. 7-8). J.A. at 116-17 Mem. at Even Respondent-Appellee. when specifically Brown’s request- No. 05-3568. ed that the court motion, rule on Brown’s the court’s curt response ignored every United States Appeals, argument raised in Instead, the motion. Sixth Circuit. the court denied the motion because the Argued: July court had 2007. already given separate Brown a adjustment Guidelines-based downward Decided and Jan. Filed: for acceptance of responsibility, an issue that Brown’s did motion not even mention.

Even majority recognizes that the dis-

trict failure to court’s mention Brown’s argument

aberrant-behavior during the

hearing “troubling],” Maj. Op. at

and that ruling the court’s on Brown’s

motion “imperfect.” Maj. Op. at 612.

Applying adjustment downward in calcu-

lating a range defendant’s Guidelines does

not excuse a sentencing judge from ad-

dressing the arguments defendant’s other Lyle Sipe, Buell &

ARGUED: Dennis Ohio, Co., Marietta, Appellant. Sipe Schierholt, Attorney General’s Steven W. Ohio, Columbus, Ohio, Appel- Office Lyle Sipe, Buell ON BRIEF: Dennis lee. Marietta, Ohio, Co., for Appellant. Sipe& Heilman, Attorney General’s Matthew C. Columbus, Ohio, Ohio, M. Lisa Office of Ohio, Stickan, Attorney Office of General’s Ohio, Cleveland, Appellee. MOORE, BATCHELDER, Before: GILMAN, Judges. Circuit J., BATCHELDER, delivered GILMAN, J., court, in opinion of the which 643-53), MOORE, (pp. J. joined. dissenting opinion. separate delivered a OPINION BATCHELDER, Circuit M. ALICE Judge. (“Fauten- Fautenberry John

Petitioner Ohio in the state of berry”), prisoner execution, the district appeals awaiting petition directly of his for writ of court’s denial to Columbus. As he exited Dar- vehicle, Fautenberry eight raises corpus. Fautenberry habeas on’s reached back Finding no merit in into the car and appeal. issues on Daron twice in the shot them, judgment Fautenberry we AFFIRM chest. then drove Daron’s Cincinnati, district court. car south to and threw Daron’s body into a wooded area on the north bank I. River, eventually of the Ohio it where was than found more a month later the local 1990, Fautenberry, In who November Fautenberry authorities. took Daron’s recently quit job cross-country as a had car, wallet, briefcase, wristwatch, and Bi- driver, Nutley truck met Donald at a truck ble, and returned Oregon. Portland, stop Oregon, outside and the two target shooting together. went Fautenberry men After arrived on Portland they 24, 1991, leaving February had finished and were spent the next few range, Fautenberry Nutley days shot in the Oregon at the coast with some old $10,000 head and stole from him. Fauten- friends acquaintances, including Cincinnati, Ohio, berry then drove to woman named Christine Guthrie. Guthrie stayed where he with his sister for a short accompanied Fautenberry back Port- coast, traveling time before to Connecticut to land from along way, February visit an old friend. they stopped on an logging old road. Fau- Cincinnati, tenberry while en route back Fauten- escorted Guthrie to a secluded berry money woods, and in gaso- portion need of shot her three times —out stopped head, line to continue his at a in the back of the and stole her bank travels — stop Jersey. later, truck in New There met A days he card. few withdrawing after who, Gary Farmer, learning account, after of Fau- cash from her bank Fautenberry tenberry’s money, buy Juneau, Alaska, need for offered to traveled to where he be- give breakfast and him mon- gan working a fishing aboard boat. On ey in exchange Fautenberry got for sex. March met Jeffer- truck, bar, into the cab of Farmer’s Farm- shot son Diffee at a local and the men two head, er in the there, and took his wallet. Fau- apartment. went to Diffee’s While tenberry returned to Diffee, him, then his sister’s resi- Fautenberry beat handcuffed dence in Cincinnati. times, and him stabbed seventeen which resulted in his death. The local police 17, 1991, February On after another Fautenberry’s discovered fingerprints at Cincinnati, stay Fautenberry brief in again crime, 16, the scene of the and on March residence, foot, left his sister’s this time on 1991, they arrested him for the murder of money. Fautenberry search of walked police Diffee. The then searched Fauten- 125, Highway down in the eastern suburbs berry’s storage room, locker and hotel Cincinnati, stopped of on-ramp the they briefcase, where found Daron’s wrist- 275, and began hitchhiking. Interstate Jo- watch, and Bible. seph give Fautenberry Daron offered to 17, ride. only 1991, Daron intended to travel ten On March in police while custo- Milford, Ohio, miles north to his dy, Fautenberry home called Federal Bureau of but, (“FBI”) upon learning Fautenberry Investigation want- Agent Larry Ott and Columbus, Ohio, ed go north to he message drove left a indicating that he wanted to Fautenberry an extra ten Agent jail, miles and talk. Ott went to the informed dropped (which him near the intersection of Fautenberry Inter- of rights his Miranda waived), state 275 and Interstate which goes Fautenberry subsequently and re- pieces various other weapon, the murder Fautenberry’s confession corded evidence, Fau- transcripts and physical Farmer, Daron, and Nutley, murders Ott, Agent Offi- tenberry’s confessions accurately de- Guthrie. Nelson, Ms. Priest-Herndon. cer each vic- upon inflicted wounds scribed evidence, the court reviewing After robbery was tim, and indicated beyond a reasonable doubt concluded later, days A killing. few for each motive of all counts and guilty Oliv- girlfriend, old Fautenberry called his indictment, in the and ac- specifications Priest-Herndon, that he told her ia In plea. September his cepted that he money” and after ... “only sentencing hear- three-judge panel held now.” price it[,] gotta pay so [he] “did presented mitigat- its ing. The defense to Tom Nelson confessed Fautenberry also evidence, testimony included ing which inform- Department, Police the Portland Nancy Schmidt- Fautenberry, Dr. Nutley and the bodies of where ing Nelson friends who knew Fauten- goessling, and August In located. were Guthrie Those friends included berry well. Alaskan guilty in an Fautenberry pleaded (a friend of long-time Louise Corcoran of Jefferson the murder state family), Ms. Priest-Hern- him to 99 Diffee, sentenced and the court girlfriend with (Fautenberry’s former don imprisonment. years’ lived), Mary Theresa whom he had authori- the Alaskan September (a friend with whom Fautenber- Slayback Hamilton Fautenberry to ties transferred twenties). early After ry during lived Ohio, in which Cincin- county County, evidence, as well as hearing all of this located, jury had grand where a nati testimony of the six law-enforcement charging a five-count indictment returned mitigation presented during officers aggravat- counts of Fautenberry with two the three- hearing by prosecution, (both to the death pertaining ed murder penalty, imposed the death judge panel theft of a mo- Daron), robbery, aggravated that, “thor- finding despite the defense’s card. The vehicle, theft of a credit tor mitigating job presenting the[] ough two charges included murder aggravated reasonable factors,” beyond a it was would ren- either of which specifications, factors suffi- aggravating doubt the death Fautenberry eligible for der factors. outweighed mitigating ciently (1) killing Daron law: under Ohio penalty ap to the state Fautenberry appealed robbery; and aggravated committing while court, his conviction affirmed which pellate of a course killing part Daron as Fau State v. in 1994. See and sentence killing of involving purposeful conduct C-920734, 1994 WL 35023 tenberry, No. Rev.Code persons. See Ohio two or more 1994). (Ohio February Ct.App. 2929.04(A). Fautenberry waived § on di also affirmed Supreme Court Ohio proffered later by jury trial right to a Fautenberry, 72 v. appeal, see State rect specifi- to all counts plea a no-contest (1995), and 435, 878 650 N.E.2d Ohio St.3d in the indictment. cations denied Supreme Court States United review, see Fau Fautenberry’s request for three- presented the prosecution The 996, Ohio, 116 S.Ct. evidence, tenberry v. including the judge panel1 with produce evidence law, prosecution must plea, the who capital defendant Ohio a 1. Under specified murder with right by jury prove aggravated and elects to to trial waives his court, by actually tried a by Ohio R.Crim. tried See aggravating circumstances. panel. Ohio Rev.Code three-judge 11(c)(3). See Pro. Furthermore, even on a no-contest § 2945.06. 622 (1995).

534, claims, In L.Ed.2d 439 March faulted 133 found them to be without 1996, Fautenberry filed motion for re merit, and denied Fautenberry’s petition with the Ohio Supreme consideration for habeas relief. The district court issued Court, arguing that he had received inef a certificate of appealability on nine of appellate fective assistance counsel dur (two Fautenberry’s claims of which relate ing appeal his direct to that court. That to his claim for ineffective assistance of summarily May motion was denied in trial during pretrial plea Fautenberry, See State 78 Ohio St.3d hearing, and which Fautenberry has con- (1997). 320, 1996, July 677 N.E.2d 1194 In solidated for purposes of this appeal). filed, Fautenberry pursuant to Ohio App. Fautenberry eight asserts claims on ap- 26(B), (i.e., R. an application reopening peal, and we will address them separately. reconsideration) delayed a motion for appeals, the state court of alleging ineffec II. tive appellate assistance of counsel during “We de review novo the district appeal his direct to that appli court. This court’s denial ... petition [a] for a writ cation was denied Fautenberry because corpus.” Carter, of habeas Clinkscale v. “failed to demonstrate that there [was] 430, Cir.2004). 435 Fauten good filing cause for application [ ]his more berry filed his petition habeas after the than years two after judg th[e] court’s enactment of the Antiterrorism and Effec journalized.” ment was The Ohio Su (“AED- Penalty tive Death Act of 1996 preme Court affirmed decision. See PA”); we will therefore review his claims 320, Fautenberry, State v. 78 Ohio St.3d (1997). under the standards set forth in that 1996, stat July N.E.2d 1194 Also in ute. 320, See Lindh v. Murphy, 521 petition filed his U.S. post- 336, conviction relief. The trial court 138 L.Ed.2d denied (1997). AEDPA petition, appeals permits and the court of af federal court to firmed grant that denial. See State v. a writ corpus Fauten of habeas only where C-971017, berry, No. 1998 WL adjudication state court’s “resulted (Ohio 1998). Ct.App. December decision contrary to, that was or involved Supreme Ohio Court then declined to re of, application unreasonable clearly es view petition, see State v. law, tablished Federal determined Fautenberry, 85 Ohio St.3d Supreme Court of the United States.” (1999), N.E.2d 849 and refused Fautenber- 2254(d)(1). § 28 U.S.C. “A federal habeas ry’s reconsideration, request for see State court may issue the writ under the ‘con v. Fautenberry, 86 Ohio St.3d 711 trary to’ clause if the state court applies a (1999). N.E.2d 1015 rule different from governing law set forth [Supreme cases, if May 2000, Court] it peti- filed his decides a case differently tion for a than writ of habeas Su corpus [the with the court, preme federal district done on a asserting has] set of materi nineteen grounds ally indistinguishable Cone, for relief. The State facts.” Bell v. moved to dismiss, 685, 694, contending many of Fauten- (2002). berry’s claims had L.Ed.2d 914 procedurally been “The de- [federal] faulted. The may grant district court partially grant- relief under the ‘unreasonable ed the State’s motion application’ and dismissed if some clause the state court cor of Fautenberry’s claims. In a opin- rectly later governing legal identifies the princi order, ion and the district court ple [Supreme addressed from Court] decisions but the substance of Fautenberry’s non-de- unreasonably applies it to the facts of the

623 objective stan- fell representation below “An Id. unreasonable case.” particular Strickland, 466 of reasonableness.” is different dard of federal law application 687-88, law.” federal 2052. When of 104 S.Ct. application U.S. an incorrect 25, 19, Visciotti, 123 537 U.S. we evaluating performance, v. counsel’s Woodford (2002) 357, (quota 279 L.Ed.2d strong presumption indulge S.Ct. “must omitted). the writ may not issue We tions falls within the wide counsel’s conduct in [our] conclude[] because “simply [we] assis- professional of reasonable range the relevant judgment independent Wainwright, Darden v. 477 U.S. tance.” clearly estab applied decision state-court 186, 2464, 91 L.Ed.2d 106 S.Ct. erroneously or incorrect law federal lished (1986). 362, 411, Taylor, 529 U.S.

ly.” v. Williams claim making “A convicted defendant (2000). 1495, 146 L.Ed.2d 389 120 S.Ct. identify must of ineffective assistance state Instead, that “the we must find that are al- or omissions counsel acts clearly established application court’s the result of rea- not to have been leged unreason objectively law [was] federal judgment.” Strick- professional sonable 694, 122 Cone, able.” U.S. land, 690, 104 S.Ct. 2052. 466 U.S. at relevant, con identifying When trial coun- Fautenberry contends that his AED- purposes of federal law for trolling (1) by: performance deficient sel rendered holding, as look to “the analysis, PA we meaningfully to communicate failing dicta, Supreme] of [the to the opposed (2) him, a “reasonable” failing conduct of the time of decisions as Court’s evidence, and mitigating investigation for Williams, decisions.” state-court relevant (3) neces- failing to retain “reasonable 412, 120 S.Ct. 1495. 529 U.S. at rejected sary” experts. The state claim, relying primarily on Fautenber- Trial Ineffective Assistance A. address cooperate. We Penalty ry’s refusal During Phase Counsel in turn. Fautenberry’s allegations three Proceedings argument primary —to First, Fautenberry contends time at oral he devoted of his which most mean to communicate counsel failed ren trial counsel that his argument —is Amendment, him. The Sixth ingfully with during the dered ineffective assistance however, criminal defendant’s protects the An inef phase proceedings. of his penalty is, to process”; “adversarial right to compo has two claim fective-assistance counsel[,] acting the role of advo “have (1) must performance counsel’s nents: case prosecution’s require ... cate^] (2) deficient, defi counsel’s been have meaningful ad the crucible to survive prejudiced must have performance cient v. Cron testing.” States versarial United Washington, v. defendant. Strickland 648, 656, ic, 104 S.Ct. 466 U.S. 668, 687, 104 S.Ct. (1984) marks and (quotation L.Ed.2d (1984). stan proper “[T]he L.Ed.2d 674 omitted). citations is that of attorney performance dard for on the focuses appropriate inquiry id., [T]he assistance,” reasonably effective accused’s not on the process, adversarial by “prevailing professional measured If lawyer as such. relationship with his Beard, Rompilla norms.” advo- reasonably effective is a 2456, 162 L.Ed.2d 360 standards omitted). cate, he meets constitutional citations (quotation marks and evaluation of his client’s irrespective the ha- performance, deficient To establish this reason It is for performance. “counsel’s must show that petitioner beas weight Fautenberry heavily upon attach no to either re- relies that we state- expression of ments in the medical notes recorded dur- spondent’s satisfaction incarceration, performance ing pretrial at the time his in which with counsel’s he trial, said, just expression or to his later “I want to be treated like a of his being,” human good am] dissatisfaction. as dead “I[ proper now.” When considered their (citations Id. at 657 n. 104 S.Ct. 2039 context, statements, contrary these omitted). root, Thus, at its the ineffective- contention, do not demon- analysis objec- is based on “an assistance dysfunctional a attorney-client strate rela- tive standard of reasonableness.” Strick- Instead, tionship. they display Fautenber- land, S.Ct. ry’s despondency because of the situation The record shows that communica- at hand —he had been incarcerated for six Fautenberry problems tion between awaiting months trial for a murder that he attorneys his were the result of Fauten- (on occasions) already had at least three berry’s own determined refusal to commu- committing. Fautenberry confessed to of, nicate, availability not a lack of or effort also relies on the Dr. affidavit of Susan D. by, The record contains abun- counsel. Shorr, mitigation specialist who assisted indicating Fautenberry dant evidence attorneys during preparation his their independently resolved not to communi- the sentencing hearing, in which she anyone, cate cooperate including or with opined Fautenberry uncoop- became lawyers. Fautenberry’s girl- his former erative and only noncommunicative “[a]s friend, Priest-Herndon, Ms. testified that result of relationship the breakdown of the Fautenberry told her of his tactical deci- Fautenberry ... between and his attor- attorneys sion not to communicate with his neys.” This unsubstantiated statement “thought way because he that was his best contradicts Ms. Priest-Herndon’s testimo- thing.” to beat this As the district court ny that Fautenberry had told her of his noted, cited, aptly Fautenberry “has not independent, tactical decision not to com- of, any Supreme and the court is not aware lawyers, municate with his but it substanti- holding Court case the Sixth Amend- ates all other that Fautenberry, accounts requires persuade ment counsel to a recal- fact, refused to communicate. Fauten- citrant to do that which ... client he re- berry’s attempts to blame his counsel for nothing objectively fused to do.” We find his own recalcitrance and unwillingness to attorneys’ inability unreasonable these communicate do not demonstrate meaningfully to communicate Fauten- with counsel were deficient in failing to commu- berry, steadfastly refused who to commu- meaningfully nicate with Fautenberry. Strickland, nicate them. See (“The U.S. at reason- Second, Fautenberry argues that may ableness of counsel’s actions be deter- attorneys rendered ineffective assis mined substantially influenced by failing tance conduct “reasonable” actions.”). own statements or [accused’s] mitigation investigation that would have proffered demonstrate discovered organic damage.2 brain that counsel had failed to communicate contends that further investi with Fautenberry wholly unpersuasive. gation past would have revealed his head disputes 2. The State deciding whether ac- we will assume without that Fauten- tually impair- suffers from a functional brain berry organic does in fact have some sort of dispositive ment. Because it is not to our damage. brain claim, analysis of this ineffective-assistance the circumstances Fauten- tigation under attorneys to the and alerted injuries berry created. brain permanent he had likelihood Fau- conclude, contrary to damage. We Third, Fautenberry contends that in assertion, did that counsel tenberry’s counsel failed to retain “reasonable inves- mitigation a reasonable fact conduct asserting that neither necessary” experts, tigation. Tanley Schmidtgoessling pro Dr. nor Dr. him a reasonable level of assis vided pro- interviewed counsel Defense argument tance. find this baseless. We lay wit- testimony from extensive cured as much Tanley provided Dr. assistance (a close nesses, Louise including Corcoran under the circumstances: He possible friend) Priest-Herndon and Ms. family Fautenberry to de attempted to examine These (Fautenberry’s girlfriend). former a termine whether he suffered from brain Fautenberry’s regarding testified women Fautenberry but refused to impairment, and emotion- family environment unstable Thus, any in the examination. participate Defense counsel upbringing. ally abusive Tanley’s in Dr. assistance were deficiencies numerous the assistance of garnered also Fautenberry’s refus the result of admitted including Nancy Dr. Schmidt- experts, any cooperate, rather than shortcom al fact, Tanley. In Dr. James goessling in Tanley any Dr. or flaw his work. ing of express Tanley Dr. hired any alleged de We conclude as well conducting neuropsychologi- purpose Schmidtgoessling’s fect in Dr. assistance means most effective cal examination —the be attributed to counsel. cannot Fauten- determining whether possible of that Dr. Schmidt- argues Fau- But impairment. a brain berry had mental condi- misdiagnosed his goessling to the examina- tenberry refused to submit concluded that he did not tion when she or inability to discover tion. Counsels’ damage. brain Even organic suffer from directly is damage brain organic establish Schmidtgoessling Dr. if we assume to co- refusal attributable Fautenberry,3 li- misdiagnose “[a] did any insufficiency rather than operate, generally held practitioner censed Fautenberry not Had investigation. good counsel has reason unless competent, examination, Tanley’s Dr. impeded Lundgren v. contrary.” to believe to discovered, would have presumably doctor Cir.2006). (6th Mitchell, dam- verified, any revealed such brain that counsel Fautenberry has not shown counsel deficient will not find age. We Dr. “good reason” believe had they not succeed because did simply incompetent, and we Schmidtgoessling was damage pursue or discovering his brain objectively it was reasonable conclude that (which may alternate avenues unspecified, opin- the doctor’s rely upon for counsel the brain dam- may not have revealed or Campbell See ions and conclusions. Cir.2001) “strong presumption light age). Coyle, 260 F.3d the wide conduct falls within was “no that counsel’s case where there (holding, incompe- assis- professional expert] reasonable range of evidence that [the lawyers Darden, tance,” petitioner’s] [the tent!] expert’s] question [the reason to 2464, Fautenberry’s attorneys conducted had “it was qualifications,” professional inves- mitigation and reasonable sufficient damage. supra. ganic See n. argument brain the sake of We have assumed for or- some sort of does have objectively for ... trial counsel Fautenberry argues reasonable that he was because, prejudiced due to counsel’s al rely upon expert’s] diagnosis”). [the deficiencies, leged jury the not did hear circumstances, any inadequa- these Under (1) personal struggle evidence about his Schmidtgoessling’s expert in Dr. assis- cies with, of, family’s history and his depres there assuming were —cannot tance— (2) sion, the connection between his abu the basis for a meritorious ineffective- sive childhood and the commission these Accordingly, claim. we assistance find no (3) murders, injuries his head and result in deficiency performance. counsels’ (4) ing organic damage, brain and the sex Fautenberry Even if could show that his aspects ual of the murders he committed. deficient, performance counsels’ was he But, Corcoran and Priest-Herndon testi prejudiced has not established that he was extensively fied regarding Fautenberry’s by performance. prejudice prong rough life, upbringing, family his difficult poor his requires petitioner relationships to show that “there with the father fig life, that, ures his his mother’s constant probability is a reasonable but for struggle depression, and longing his errors, unprofessional counsel’s the result acceptance. hearing After this testi proceeding of the would have been differ- mony, as well as all the mitigating other Darden, 184, at ent.” 106 S.Ct. evidence, three-judge panel concluded [petitioner] a challenges “When (1) the mitigating factors included: death as the sentence such one issue in (2) Fautenberry’s “past history”; case, question this is whether there is (3) child”; “rage “abuse[ ] as of his that, probability reasonable absent the (4) childhood”; drugs his abuse of errors, ... the sentencer would have con- alcohol; and his “low self-esteem and aggravating cluded the balance of rejection.” The mitigation omitted evi mitigating circumstances did not warrant Fautenberry’s dence of depression, his Strickland, death.” 466 U.S. family’s history depression, and his abu “reweigh S.Ct. 2052. We thus the evi- sive childhood mirrors the evidence actual dence in aggravation against totality ly presented at sentencing hearing, evidence,” which, mitigating available and therefore its omission cannot be held case, this mitigation includes the evidence to have prejudiced mitigation defense. that was omitted because of al- counsel’s Broom, See 441 F.3d at 410. Further leged Smith, Wiggins deficiencies. See v. more, three-judge panel already had 510, 534, 156 heard some evidence about the sexual na (2003). petitioner L.Ed.2d A does ture of the guilt murders. At the phase, prejudice establish the element where he prosecutor had informed the court that only shows that his counsel pres- failed to prior Fautenberry’s murder of Farmer evidence, ent mitigation “cumulative” Jersey, New agreed to is, already evidence presented to jury. have sex with him in exchange money. Mitchell, (6th Broom v. 441 F.3d Mitchell, See Gillard v. 445 F.3d Cir.2006). Rather, “to prejudice, establish (6th Cir.2006) (stating that the sentencer the new evidence that a petitioner habeas “privy” to evidence introduced during presents must in a way— differ substantial guilt phase of trial and that counsel in strength subject matter —from the need not during reintroduce it the sentenc actually presented at sentencing.” Thus, ing hearing). was aware Mitchell, Clark that at least one of murders Cir.2005). element, and, contained a sexual to the Daron, ry’s they murder of which found upon relies extent evidence, that it already-disclosed “contemplated calculating” we find —a to establish mitigated and insufficient conclusion that is not at all is cumulative reduced the traits prejudice. associated with or organic the side effects of brain disorder. Inclusion of the non-cumulative evidence short, aggregate when we all the miti- (i.e., organic damage and evidence of brain evidence, gating including Fautenberry’s the mur- nature of some of the sexual brain disorder and the sexual nature of the ders) purportedly would have ex- —which (to crimes the extent that those are even nature, and violent plained impulsive mitigating), and reweigh this evidence frustration, inability to tolerate and sexual factors, against aggravating we find not create “a reasonable confusion—does mitigating pale that “these factors before ... that ... the sentencer probability simple [Fautenberry’s] fact that ac- concluded that the balance of would have vicious, plotted, persistent[,] tions were mitigating circumstances aggravating callous,” utterly finding which was the Strickland, death.” did not warrant See three-judge panel. Accordingly, of the 695, 104 2052. Further- 466 U.S. at S.Ct. even if trial counsel rendered deficient more, of the question we whether evidence that performance, we find those deficien- miti- nature of the murders is even sexual prejudice Fautenberry.4 cies did not three-judge panel might just gating. The Fautenberry’s appar- well have viewed as Alleged B. Trial Counsel’s Conflict of gay on victims as strategy preying ent Interest factor. Nor do the side- aggravating damage significant- Fautenberry next contends that organic effects of brain Fautenberry’s actions. Ac- one of his trial counsel labored under a ly mitigate interest, Fautenberry’s reports, which rendered his as cording to medical conflict “[bjrain per ... sistance se ineffective and violated impairment appar- of the sort Fautenberry’s rights. in can ... Amendment ent ... case Sixth Fautenberry argues attorney in such areas of Michael problems cause serious had a conflict of interest because day-to-day functioning impulse as con- Walton affect[,] trol[,] Township, Anderson planningf,] modulation of he was trustee for body capacity township to to- in which Daron’s problem-solving[,] and trustee, found; fiduciary unlikely It as a Walton had a highly lerate frustration.” is township duty that this sort of evidence would have al- to the citizens of upheld; criminal three-judge panel’s tered the decision to ensure that the laws were citizens duty for Fautenber- and Walton’s to the impose the death sentence Second, brief, ceedings holding point Fautenberry im- in state court. 4. At one in his Contrary plies Rompilla inapposite here. that the state court’s denial of his inef- in is Fautenberry’s argument, Rompil- contrary the Court in fective-assistance claim was counsel, though Rompilla even Supreme decision in la did not hold that Court’s Beard, 374, 2456, uncooperative with his client’s and ob- 545 U.S. 125 S.Ct. faced behavior, (2005). per- argument wholly deficient L.Ed.2d 360 This is structive rendered purposes by failing mit- Federal law for of AED- formance to conduct additional meritless. holding, opposed igation investigation. The court made no PA defined as "the dicta, statement, holding Supreme] instead that "the law- [the Court’s decisions such failing yers deci- were deficient in to examine the as of the time of the relevant state-court Williams, 412, petitioner's] prior convic- 120 S.Ct. court file on [the sions.” 529 U.S. First, Rompilla, Rompilla decided in tion.” 1495. long pro- had after concluded his duty to Fau- 171 n. township conflicted with his (2002). tenberry. addressed The state trial court L.Ed.2d 291 claim, Fautenberry’s peti- contained Fautenberry has not an “ac- established relief, post-conviction and found tion for challenge tual conflict.” He does not (1) following evidentiary facts: “No factual ev- findings “[n]o state court’s documents demonstrate that Anderson identiary documents ... demonstrate Township Township or the Anderson Trus- Township had an Anderson Trustees had an interest outcome of tees in the trial” or interest outcome of [his] trial”; [Fautenberry’s] “No eviden- evidentiary demon- “[n]o documents documents that service tiary demonstrate service as a Township strate that Trustee Township hampered [Fauten- as a Trustee any way.” hampered attorneys [his] attorneys in berry’s] any way.” The state 2254(e)(1) § (providing See 28 U.S.C. that, appellate determined “absent “a determination of factual made issue conflict, of an actual there is no by court shall presumed to be a[s]tate arising presumption prejudice from the petitioner correct” unless the “re- habeas fact that also mere defense counsel serves presumption by of correctness butís] capacity public in some as a official.” evidence”). convincing clear and After in- 906395, Fautenberry, 1998 at *5. WL The dependently reviewing record, we find rejected claim, court then Fautenberry has failed to demon- finding that Fautenberry pre- had “not repre- strate that his actively “counsel any evidence the conclu- support sented conflicting sented interests” or that position sion that Walton’s [of on board alleged “adversely conflict his affected in any way ability his trustees] influenced Strickland, lawyer’s performance.” See to defend at Id. trial.” 692, at 466 U.S. 104 Accord- S.Ct. 2052. find ingly, we this claim baseless.

A petitioner asserting habeas an ineffective-assistance generally claim must C. The Prosecution Withheld Material show that his performance counsel’s Exculpatory Evidence in Violation deficiency deficient and that the resulted Brady Strickland, 687, in prejudice. U.S. at 466 104 S.Ct. 2052. But a petitioner habeas next argues can establish an prosecution exculpa ineffective-assistance withheld material prejudice claim without having tory to show if violation of v. Ma Brady 83, 1194, he demonstrates that ryland, his counsel labored 373 U.S. 83 S.Ct. 10 (1963). under “actual conflict” of interest. See 215 L.Ed.2d The State argues Sullivan, 335, 348, Cuyler v. 446 U.S. 100 has been procedurally this claim defaulted. 1708, (1980); S.Ct. 64 L.Ed.2d 333 Strick A procedurally claim is and is defaulted land, 692, 466 U.S. 104 S.Ct. 2052 by thus unreviewable a federal habeas (“Prejudice presumed is if only peti petitioner [the court where the “habeas fail[ed] actively tioner] demonstrates that by to obtain consideration of claim a [that] represented conflicting and that ... interests state court due to to raise [his] failure an actual conflict of adversely interest af before the claim state courts while his lawyer’s performance.”) (quota fected state-court remedies still available.” [were] omitted). conflict,’ Walker, tions “An Seymour 542, ‘actual v. 549-50 (6th Cir.2000). Sixth Amendment a conflict purposes, is Fautenberry admits that interest that adversely present affects counsel’s Brady he did not claim to the performance.” courts, Taylor, argues Mickens v. 535 state but that the prosecu-

629 have different.” United States been the evidence would to disclose failure tion’s 667, 682, 105 S.Ct. Bagley, 473 U.S. result- v. prejudice of and the cause both (1985). 3375, L.Ed.2d 481 a case 87 v. Wainwright See from the default. ing this, involving guilty or no-con- 2497, such as 87, 72, 97 S.Ct. Sykes, may petitioner habeas estab- plea, test “cause” and (discussing L.Ed.2d by showing that there is prejudice lish shows petitioner A habeas “prejudice”). that, probability but for the reasonable that he he demonstrates where “cause” evidence, “he would not non-disclosure be- issue raise a constitutional failed to plea], and would have have [entered. him” “reasonably unknown it was cause See Hill v. going insisted on trial.” Zant, U.S. time. Amadeo at the Lockhart, 52, 59, 106 S.Ct. U.S. 100 L.Ed.2d (1985). Alternatively, he can L.Ed.2d 203 (1988). found that most district and decision findings show that the had not challenged Brady evidence of the have differ- three-judge panel “would been Fautenberry during his disclosed been Bagley, 473 ent.” the State proceedings, state-court the to- analysis must consider 3375. Our ele- directly dispute “cause” does evidence, not each tality of the undisclosed decid- without Thus we will assume ment. Id. item isolation. that ele- Fautenberry satisfied ing ment. prosecu that the Fautenberry contends categories five produce tion failed to we of whether question (1) sug evidence evidence: exculpatory Fautenberry’s procedural de may excuse violated Fau- Agent that FBI Ott gesting therefore, prej issue of fault, turns on the to coun tenberry’s right Fifth Amendment proce “Prejudice, purposes udice. contravening rule announced sel showing analysis, requires a default dural Arizona, 477, 484-85, v. 451 U.S. Edwards merely claim not of the the default (1981) 1880, 378 101 68 L.Ed.2d S.Ct. to the possibility prejudice a created counsel, may an accused requesting (upon actual defendant, to his but that it worked subjected questioning to further not be infecting his disadvantage, and substantial unless the ac provided, until counsel of constitutional trial with errors entire (2) evi questioning); cused reinitiates Collins, v. 291 F.3d dimensions.” Jamison the State of Ohio indicating dence Cir.2002) (citing 380, United 388 im jurisdiction and venue lacked 152, 170-71, 102 Frady, States U.S. (3) Ohio; County, evi in Hamilton proper (1982)). Proce 1584, 71 L.Ed.2d 816 S.Ct. Joseph demonstrating that victim dence prej analysis on issue default dural girl with his arguments had verbal Daron materiality analysis, Brady udice mirrors just to his prior and another friend friend id., Fauten determining whether see so (4) relating to the evidence disappearance; his Bra defaulted berry procedurally has (5) murders; nature of the sexual claim, Supreme we will follow dy Fautenberry was indicating evidence under Bra example proceed Court’s to the just prior and suicidal depressed Strickler v. materiality analysis. See dy reasons, following we For the murders. 1936, Greene, 263, 282, 119 S.Ct. 527 U.S. to estab Fautenberry has failed find (1999). Evidence is 144 L.Ed.2d is material any of this lish Brady purposes material for deemed Brady. purposes probability “only if there is reasonable First, documents the undisclosed that, disclosed the evidence been had Fautenberry’s interaction concerning defense, proceeding the result of or, unambiguous do not establish Edwards Agent Ott initiation of further com- Fautenberry sure, was arrested on munication. violation. To be had May 16, during and sometime Fifth right reinvoked his Amendment following day, police custody, while in he counsel after initiating communication Ott, Fifth right Agent invoked his Amendment to with pro- he would have been According counsel. to Edwards and its tected from further questioning, but Fau- police custody an accused in progeny, tenberry does not who assert that he did so Fifth right has invoked his Amendment to and the alleged Brady evidence does not protected police counsel is from further demonstrate that he so. did order to questioning long so as “the accused himself invoke one’s Fifth right Amendment counsel, further communica- “suspect [does not] initi'ate[ ] must unambiguously tion, counsel,” exchanges, request conversations with the meaning that “he must Edwards, 484-85, police.” articulate his pres- desire to have counsel 1880; see also Van Hook v. ent sufficiently clearly that a reasonable (6th Cir.2007) Anderson, police officer the circumstances would (en banc). Here, the evidence shows understand the statement to be a request it was himself who attorney.” States, initiated for an Davis v. United Ott, Agent communications with in- after

voking right to counsel. Sometime in L.Ed.2d 362 (holding that an am- 17, 1991, evening May a few biguous hours mention attorney of an is not a counsel). asking speak lawyer, after with a Fau- request for The alleged Brady tenberry Agent called Ott and left mes- evidence does not indicate that Fautenber- sage indicating ry that he wanted to talk. At renewed request for an attorney, point, Fautenberry clearly otherwise, had initi- unambiguously or and is there- ated further communications with po- fore insufficient to establish an Edwards lice, Agent Ott did not violate Fauten- violation or require the suppression of berry’s Fifth right Amendment Moreover, counsel his Agent confession to Ott. all by questioning him at that time. The al- of the events that transpired during this leged Brady only evidence shows that time were known to Fautenberry and Agent Fautenberry’s Ott returned call a there no is basis for assuming that the few later and left a message stating hours non-disclosure of this evidence affected his Fautenberry that should call him if he still decision to enter his plea. no-contest See talk. waiting wanted to After Bagley, two 473 U.S. at 105 S.Ct. 3375. hours hearing Fautenberry, without Second, the undisclosed evidence Agent jail, arrange- Ott called made does not establish juris that Ohio lacked ments Fautenberry, spoke to visit diction or that County Hamilton was not Fautenberry (apparently without any ob- the proper venue for prosecution. The jection part or refusal on the of Fauten- state court found that Fautenberry en berry), and received confes- tered Daron’s car at on-ramp “the to [In sion to the four murders. Highway 125,” 275 off of terstate] see Fau

Fautenberry contends that tenberry, this *2, 1994 WL which is newly evidence discovered establishes an Cineinnáti, located to the east of near the Edwards violation. disagree. We Fau Ohio, border of County, Hamilton and tenberry’s mere failure to Agent return County, Clermont Ohio. The state court Ott’s call and “confirm” his desire to concluded that Daron drove north on In speak negate Fautenberry’s does not pri- terstate 275 to a destination “some ten indicating that id., overwhelming evidence Milford, Ohio,” and see of north miles Fautenberry in an east- up picked “restaurant Daron at a dropped Cincinnati, Ohio, 71,” drove see and Interstate ern suburb junction of near Columbus, argu- The at 880. This one N.E.2d north to Ohio. Fautenberry, by prosecu- ably ambiguous determined statement state id., location, which see at this to rebut woefully Daron is insufficient shot tor Ohio; and County, indicating in Hamilton this is evidence abundant body on the Fautenberry dumped Daron’s near the intersection murder occurred River, near the Ohio bank of north Hamil- 71 in Interstate 275 and Interstate Interstate 52 and Highway intersection Second, psychiatric a County, ton Ohio. 35023, Fautenberry, WL see ac- contains a second-hand report, which County, Ohio. *2, in Hamilton is also which Fautenberry’s description of count of general found in this body was later The murder, Fautenberry “drove to states that clear, based on the vicinity. It is therefore overt,] shot (cid:127) (cid:127) (cid:127) Kentucky!,]' pulled [and] court, that Ohio by found the state facts as times.” couple the man the chest murder, see Ohio over this jurisdiction had by hearsay is contradicted This statement 2901.11(B) 2901.11(A)(1), §§ Rev.Code in the record and does all the evidence subject to crimi- is (stating “person convincing and evidence amount to clear if punishment [Ohio] and prosecution nal findings. factual rebut the state court’s under an offense person commits ... [t]he consists alleged Brady [Ohio], any element of which the laws of in- intra-department communications FBI [Ohio],” the ele- and place takes jurisdiction and uncertainty dicating about “inelude[ ] a homicide offense ments of to ob- venue, instructing the officers death”), that Hamilton act that causes these These more evidence on issues. tain Ohio venue. See County proper was the jurisdic- do not establish documents 2901.12(A) (noting that venue § Rev.Code elsewhere; at proper venue were tion or territory of which “in the proper best, question. into they call these issues any of the offense element offense assume, by alleged committed”). if Bra- Even we were proffered None of Fautenberry, factual evidence creates these rebuts dy material evidence; location of convincing ambiguity as findings genuine clear murder, factual venue would jurisdiction that these presume we must both thus 28 U.S.C. See in Hamilton Coun- findings proper are correct. nevertheless 2254(e)(1). § provides “[w]hen ty, Ohio law Ohio. person, death of involves the the offense of pieces that two Fautenberry argues in reasonably determined be and it cannot murder occurred indicate evidence was commit- the offense jurisdiction which First, Kentucky. in the Commonwealth juris- ted, may tried in the offender the facts recitation of prosecutor, body or person’s in which the dead diction plea hearing, stated during the body was person’s dead any part of the and mo- at “a restaurant occurred murder 2901.12(J). It § Rev.Code found.” Ohio I- junction just past lot parking tel body was found Daron’s undisputed Fautenberry emphasizes 1-275.” 71 and River in the Ohio on the north bank circles highway that 275—a that Interstate Therefore, if even County, Ohio. Hamilton 71 intersect Interstate Cincinnati —and mur- location of as to the the evidence and once twice, in the of Ohio once State unclear, jurisdiction and both der were Kentucky. This ar- the Commonwealth County. We lie in would Hamilton course, entirely ignores the venue gument, conclude that this evidence was not materi- D. Ineffective Assistance of Trial During al it did not establish an Prepa- because error Counsel the Pretrial jurisdiction Hearing venue. or ration and Plea Fautenberry argues that his trial coun- alleged The remainder of the Bra sel rendered ineffective during assistance dy regarding evidence—evidence Daroris pretrial their preparation and at plea arguments prior disappearance, to his In hearing. petition, his habeas Fautenber- murders, of the sexual nature and Fauten ry presents three subparts to this ineffec- berry’s depression and suicidal inclina (A) tive-assistance claim: counsel failed to Brady purposes. tions—is not material for (B) engage adequate in an investigation, fact, virtually insignifi the evidence is provided him with erroneous infor- overwhelming cant in light of evidence regarding mation the implications plead- (i.e., guilt Agent both of the confessions to ing him, charges no contest to the against Ott, Nelson, Officer and Ms. Priest-Hern (C) counsel failed prosecu- to hold the don and the physical connecting tion to proof its burden of plea murder) Fautenberry to Daroris and the hearing. The district court determined (i.e., sentencing specifications the three- subpart each of this ineffective-assis- judge panel’s finding “mitigating that the tance claim had been procedurally default- pale simple factors before the fact that granted ed. The court Fautenberry a cer- [Fautenberry’s] plotted, actions were vi appealability tificate of only Subparts on A cious, callous”). persistent!,] utterly C, so we do not allega- address the Considering as we must the cumulative tions Subpart asserted under B. evidence, alleged Brady effect of all the we Fautenberry conclude that has failed to argues State that we probability” establish a “reasonable affirm should the district court’s conclusion the disclosure of this evidence would Fautenberry have procedurally defaulted altered either his decision to enter a no- this claim. A petitioner procedur habeas plea contest the three-judge panel’s ally sen defaults claim where “a proce state tence Bagley, of death. See dural rule ... prevents the state courts 682, 105 S.Ct. 3375. Because this evidence from reaching the merits of petition Brady, is not material under er’s claim.” Seymour, 224 F.3d at 549-50. prejudice cannot show proce excuse his Federal courts must consider four factors Jamison, dural default. See 291 F.3d at when determining whether a peti habeas 388. And because cannot es tioner procedurally has defaulted a claim. prejudice tablish procedural Elo, (6th excuse his Gonzales v. claim, ly Brady Cir.2000); defaulted he is not entitled Smith, see Maupin also on 135, 138 Cir.1986). habeas relief that basis.5 F.2d Fautenberry's Brady regard Agent (i.e., claim with Ott and his own state of mind most tendencies). of this evidence fails for an depression additional and suicidal Further- Brady more, applies only contest, reason: The rule by to pleading evi- no prosecution dence that was indictment, "known to the but charged admitted the facts in the unknown to the United States v. so he also knew the location where he shot defense.” 97, 103, Agurs, 427 U.S. Joseph 49 pertinent Daron and sexual as- (1976) added); (emphasis L.Ed.2d 342 pects see of the excep- murders. With the lone Mullins, also United States v. 22 F.3d pertaining tion of the Joseph evidence to Dar- (6th Cir.1994). Regardless 1371 guilt relationships, of his oris or his counsel murders, in the commission of the knowledge Fautenber- had of all this "undisclosed evi- ry knew the details about his interaction with dence.”

633 Seymour, 224 First, procedurally defaulted. See court must determine rule procedural that is at is a state F.3d 549-50. there claim and petitioner’s to the applicable comply appellate failed to with The state court ad petitioner Second, the court must decide it,

the rule. only allegation presented to dressed the actually en- the state courts whether namely, object that counsel did not to ven sanction. procedural the state forced Cole, ue, held, pursuant and to State v. Third, court must decide whether (1982), Ohio St.3d N.E.2d anis “ad- procedural the state forfeiture and “this is a claim which could should ground state equate independent” and by Fautenberry have on been raised direct to rely which the state can foreclose on is, therefore, appeal by and barred constitutional claim. review of a federal judicata.” Fautenberry, of res doctrine (6th Mohr, 407, 417 v. Jacobs Cole, 906395, at In 1998 WL *3. the Ohio Cir.2001) 785 F.2d at (quoting Maupin, Supreme judicata held that res is a omitted). 138) (alterations “Once the proper upon to an basis which dismiss procedural that a court determines state petition in a ineffective-assistance claim complied and that the rule was not relief a post-conviction where defendant adequate independent rule was an by is new represented who counsel on to court must move ground,” state fails to appeal direct raise claim and at Maupin, F.2d 138. fourth factor. fairly the basis for claim “could petitioner a to The fourth factor allows examining without determined if procedural default he avoid excuse N.E.2d outside the record.” 443 “that was cause for demonstrates there past recognized in the that Ohio’s We have procedural rule and him to not follow judicata application pursuant of res to Cole actually he prejudiced enforced, adequate inde actually (quota- Id. error.” alleged constitutional pendent ground upon state which the Ohio omitted). tion consistently refuse to state courts review claim, A of this Fauten- Subpart Under of a defendant’s claims. See merits berry perform- that his contends counsels’ (6th Collins, Byrd v. 521-22 F.3d (1) they did ance was deficient because: Cir.2000) (“Ohio consistently state courts a number of the not interview sufficient judicata apply invoke res when Cole (2) witnesses, they potential prosecution’s defendant, new represented by who is object not to venue in Hamilton Coun- did fails to appeal, counsel on direct raise a motion to ty, they did not file litigation of the an ineffective stage confession to suppress trial claim appearing assistance of Agent Fautenberry presented Ott. record.”); also on the face of see petition claim to the state court in his Mapes Coyle, F.3d relief, alleged only but he post-conviction Cir.1999) (rejecting petitioner’s the habeas they ineffective because that counsel were wavering attempt “demonstrate Ohio’s to venue; object to he did not failed chal- its procedural default commitment lenge counsels’ failure to interview suffi- rules”). that Fau- therefore conclude We number of witnesses or file cient procedurally defaulted the tenberry has suppression motion. Because Fautenber- object allegation that counsel failed allega- these ry undeniably present did short, then, Fautenberry has venue. courts, to the we find that the tions state they defaulted all the claims correctly procedurally were district court held deficiency Subpart raised A.6 In Subpart claim, C of this Fau tenberry alleges that his trial counsel Even if we were to conclude that Fau- should not stipulated have prosecu tenberry procedurally did not default Sub- tion’s plea evidence at hearing. Fau part claim, A this ineffective-assistance tenberry readily admits that he did not we would find it to be without merit. raise that portion of his claim on direct First, Fautenberry argues that his counsel appeal during post-conviction proceed did a sufficient not interview number of ings, but contends that preserved he this potential prosecution’s witnesses. by raising issue it in his motion for recon attorneys Noting that his billed most of sideration with Supreme the Ohio time in investigation their one-hour incre application his for reopening with the ments, they he surmises were not Appeals. Ohio Court of Both Fautenber interviewing of the out-of-state wit ry’s motion for reconsideration with the argument nesses. This is based on sheer Supreme Ohio Court and his application speculation; it does not account for the reopening with the appeals court of reasonable inference that counsel inter alleged ineffective assistance appellate viewed some the witnesses (including claim, counsel. hand, This on the other witnesses) phone. out-of-state via Fauten- alleges ineffective assistance of trial coun berry many does not indicate how wit sel. The district correctly concluded actually nesses were interviewed or how that the allegations in Fautenberry’s mo many more should have been interviewed. tions for reconsideration reopening, Fautenberry has the burden of establish which argued only ineffective assistance of ing deficiency, his counsel’s specu and this counsel, appellate did fairly present his argument lative is insufficient support ineffective assistance of trial counsel claim Second, ineffective-assistance claim. court, to the state and that Fautenberry Fautenberry cannot establish that he was had Subpart defaulted C of this claim. prejudiced by counsel’s failure to raise the E. Right Jury Waiver of to a Trial

venue issue because the evidence over During Penalty Phase of the whelmingly indicated the murder oc Proceedings County and, curred in Hamilton to the extent the evidence was less than Fautenberry argues here that al issue, conclusive on this proper venue was though he waived right his jury trial jurisdiction where body Daron’s was during guilt phase of his proceedings, found, which County. was Hamilton See he did not waive right to a jury trial 2901.12(J). Ohio § Rev.Code Finally, during penalty phase. The substance Fautenberry cannot establish prejudice argument entirely different from from counsel’s failure to file a motion to the “waiver of jury trial” argument he suppress the statements Agent made to presented to the state trial court in his Ott prove because he cannot that conversa petition post-conviction relief, in which tion improper, as there is no evidence he alleged that: attorneys failed to of an Edwards, Edwards violation. See gain his trust and provide thus failed to 484-85, 101 U.S. at S.Ct. him with the necessary information re- 6. Fautenberry argues that because most of the prejudice stitutes the cause and to excuse his supporting allegations Because, procedural in Sub- already default. not part ed, A of this ineffective-assistance claim merit, Brady claim lacks evidence, alleged Brady prosecution’s that claim cannot preju constitute cause and provide failure to him with this evidence con- procedural dice to excuse default. (2) voluntarily right waive rights; ly his his to be constitutional garding his by jury. a in- sentenced attorneys him with incorrect provided (3) waiver; he the and formation about us, argues Before State mentally to and unable psychologically was not claim that he did waive jury a trial. The state right his waive jury penalty right his a trial on following findings court made trial proeedurally has phase been defaulted be (1) competent was “[Fautenberry] fact: judicata applied the state court res cause (2) occurred”; jury waiver when the and refused to address the merits. “In discussing “[Fautenberry] acknowledged determining courts whether state have re attorneys”; both and [waiver] procedural a rule a lied on to bar review of regarding law court went over the “[t]he claim, we to the last reasoned opinion look ” a proceedings and before the waiver the state Mason v. courts.... Mitch and petitioner[,] three[-]judge panel with (6th Cir.2003). ell, Be F.3d fully that he un- acknowledged petitioner appellate cause the state court’s is decision doing.” he The state what was derstood opinion the “last reasoned state claim court concluded that this “could trial courts,” we must look to decision. ap- at trial or on direct have been raised decision, however, not That did mention by “barred res peal” and therefore was judicata res but addressed merits court, state how- judicata.” appellate The Fautenberry the waiver claim raised ever, did consider whether this claim not post-conviction But proceedings. in his barred, but addressed proeedurally was at that decision did not address all the it rejected and the merits of claim Fautenberry in his claim makes habe- show[ed] “the record on review because appeal, in petition and because collo- Fautenberry engaged was a Fautenberry presented never that claim to quy by judge[ squarely ] and indicated courts. post-conviction the state We waiving his that he understood that he although therefore conclude trial that no right jury promises to a procedural-de claiming reason for State’s Fautenberry, to him.” had been made incorrect, argument is this claim is fault 906395,at 1998WL *7. Seymour, 224 defaulted. See nonetheless F.3d 549-50. Fautenberry ar- petition, In his habeas if we to reach the sub not his to a Even were gues right that he did waive claim, we find it to be pros- of this would jury penalty phase trial on the his stance Fautenberry pre has not merit. This claim that he did not know- without ecution. discovered, sented, a have not right by sentenced we ingly waive his to be establishing precedent materially Supreme is from the claim jury different court, capital defendant has a constitution which chal- that a he raised in the state jury by sentenced a in state competence knowledge right al lenged his relying on argues, his to a right the waiver of court. connection with Oklahoma, 343, 100 be- Hicks v. jury distinguish trial and did not (1980), that Ohio jury 65 L.Ed.2d right waiver tween the statutory right creates a be sen right of his law guilt phase the waiver by jury and that the Fourteenth jury argu- tenced penalty phase. to a at the right. Fauten- protects habeas Amendment ment raises these misplaced. hand, effectively berry’s reliance on Hicks on the other proceedings, Hicks, undisputed that the defen jury it right he to a concedes that waived statutory right to be sentenced knowing- had trial but that he did dant contends in by jury; constitutionally right) the the issue that case was protected to be sen- case, therefore, by jury. violated the tenced a This whether the state court defen is Hicks, rights by distinguishable restricting dant’s and we find no process due through upon grant basis jury’s a which to habeas relief. discretion habitual-offend later er that was declared to statute be Knowing Voluntary F. and Nature of 345-46, Id. unconstitutional. S.Ct. Plea No-Contest however, Here, Fautenberry 2227. did not Fautenberry statutory right by argues be sentenced next have a that he jury. knowingly voluntarily Ohio statute did not applicable The states: or enter his plea. court, no-contest The state trial found guilty is of both [I]f the offender Fautenberry’s resolving petition post- charge [aggravated murder] and one relief, conviction made the factual finding specifications, penalty or more of the plea properly accepted,” “the was and the offender ... imposed

to be on shall arrived at the conclusion legal one by be of the following: determined plea knowingly, intelligently, and vol (a) By panel judges three untarily entered. The appellate state upon tried offender offend- court, in affirming the trial court’s deci right by er’s waiver of to trial sion, Fautenberry’s evaluated three evi- jury; (1) dentiary bases for this claim: the affi (b) By jury and judge, the trial the trial mitigation specialist, Shorr, davit of Dr. if the was tried by jury. offender which stated that defense failed to 2929.03(C)(2) (1981).7 § Ohio Rev.Code positive, “maintain a working relationship 11(c)(3). See also Pro. Ohio R.Crim. (2) with ... Fautenberry”; documents concerning Fautenberry’s psychological clearly expressly and prior plea; condition to his and Fauten jury right waived his to a trial. His waiv- berry’s stating own affidavit that his attor I, Fautenberry, er stated: John ... here- neys adequately apprise did not him of the by knowingly, intelligently!,] and voluntari- consequences plea. of his Fautenberry, ly my relinquish right waive and to a trial 1998 WL at *6. The court conclud by Jury, by and elect to tried a Judge ed that opinion Dr. Schorr’s was insuffi of the Court in which the said cause be cient to rebut the abundant pending.” court explained The trial Fau- demonstrating record plea that his tenberry’s asked rights and him if it was knowingly voluntarily entered. Id. at knowingly, his desire to intelligently, and *7. The court found the documents con voluntarily relinquish right his to a jury cerning psychological condition to be trial; responded he in the affirmative. unpersuasive because he “was twice found The trial court also informed Fautenberry competent trial.” stand Id. And the that if accepted his waiver were and if he court refused to much give weight to Fau- pleaded guilty charges against him, to the tenberry’s self-serving affidavit. Id. he would be sentenced a three-judge (rather panel find, jury). than guilty We A plea did or no-contest involves a court, state knowing- waiver of many substantial constitutional ly and voluntarily Alabama, his right rights, waived to a Boykin see jury trial. 238, 243, We conclude further that he L.Ed.2d 274 (let statutory did not right (1969), have a may alone a accept guilty a court quoted statute, 7. The passage was in effect at the time current amended as of is Fautenberiy’s sentencing trial identical. there no likelihood that the it a “volun- is reasonable only where plea no-contest intelligent ] done disclosure of the undisclosed evidence tary!,] knowing, act[ (cid:127) (cid:127) (cid:127) of the relevant awareness would have altered decision sufficient likely consequences,” plea because that evidence circumstances enter States, Third, v. United Brady to his see was not material defense. (1970). 25 L.Ed.2d psychological none of the evidence indi- Fautenberry asserts that his appeal, On Fautenberry in- mentally cates that was voluntary and knowing plea was not understanding, capable appreciating, (1) incor- his trial counsel four reasons: waiving rights, and his constitutional and if no pleaded him that he rectly informed challenge he not the state court’s does contest, panel would not three-judge the competent that he twice found finding was murders, he committed other learn that Fourth, impor- trial. and most to stand panel perceive would his three-judge the tantly, plea colloquy the state court’s was and he would mitigating, as plea no-eontest thorough, “disorga- and methodical right appeal the denial of his to preserve meaningful result in a “failing nized” or to (2) motions; he unaware pretrial by Fautenberry. dialogue” alleged impermissibly exculpatory evidence And, plea hearing, Fautenberry the in- at (i.e., the by prosecution the al- withheld any questions that he did not have dicated (3) evidence); he suffered leged Brady sum, reject rights. about his we this at the time of from serious mental illnesses unfounded, and agree claim as instead (4) colloquy, the plea; during plea and with state court disorganized!,] ... failed to the court “was voluntarily and waived his knowingly meaningful dialogue,” in a and [engage] during entry guilty plea. of his rights provid- to failed correct the misinformation ed trial counsel. Impact Evi- Admission of Victim G. claim is Each basis this asserted dence First, merit. aside from Fauten- without Fautenberry argues that state unsubstantiated, self-serving berry’s affi- Eighth court violated his Amendment davit, no in the record there is evidence victim-impact rights by admitting evi incorrectly ad- indicating that trial counsel specifically chal dence. entering implications vised him of of statements from lenges the admission During colloquy, plea. plea no-contest family recommending Daron’s fi’iends and they trial indicated that “ex- maximum available that he receive the what [Fautenberry] in detail plained to (1) stated that Daron’s ex-wife sentence: and that plea no contest means” the maximum Fautenberry “should receive ... no by pleading “he understood] (2) sentence”; father Daron’s stat possible giving up ... he in essence [was] contest with no Fautenberry is “an animal ed that rights, particu- substantial number [a] possi “the maximum conscience” to him at larly may be available those only pun appropriate is the ble sentence go if he to appellate level were ishment”; supervisor Daron’s agree the state courts trial.” We Fautenberry committed work stated that self-serving affi- own extremely and he “an brutal offense” contrary to rebut the davit insufficient penalty.” receive a maximum “should undermine in the record argu Supreme addressed Ohio Court intelligent nature of his knowing “error concluded, appeal direct found Second, ment on already we have plea. claim, victim-impact ... admission Brady in the context of the sentencing trary to or appli- statements relate rec- involved an unreasonable [that] Fautenberry, N.E.2d Supreme precedent. ommendations.” cation of Fau- The court nevertheless “not tenberry argues Supreme the Ohio persuaded that error re- warrant[ed] such ap- Court’s decision anwas unreasonable because there was no indication versal” plication employed of Booth because it judges that the three who sentenced Fau- analysis, sort of “harmless error” whereas tenberry “contemplated upon or relied require Booth did not the defendant victim-impact evidence which was available prejudice.” demonstrate “actual Id. them.” helpful We find the Tenth deci Circuit’s 496, 509, Maryland, In Booth v. Gibson, 1224, sion in Hain v. 2529, (1987), 107 L.Ed.2d 440 S.Ct. 96 the (10th Cir.2002), unpub 1239-40 and our that Supreme Court held the introduction Anderson, in lished decision Brewer v. 47 victim-impact of evidence “at the sentenc- (6th Cir.2002) 284, (un Fed.Appx. 287-88 ing phase capital of a murder trial violates case). Hain, published the Tenth Cir Eighth the Amendment.” Id. Just a few cuit in noted decision Booth “[t]he however, later, years the Court retreated expressly does not indicate whether the that “if holding, declaring from this the Court believed such errors to be trial er permit State chooses to the admission of subject review, rors to harmless error or ..., impact Eighth victim the requiring structural automatic re error[s] per no Payne Amendment erects se bar.” Hain, versal.” 287 F.3d at 1239 n. Tennessee, 11. 808, 827, v. 111 S.Ct. (1991). The Hain court 2597, thus concluded that the 720 Payne 115 L.Ed.2d The in state court its did not only Court noted that it case “unreason overturned part ably Booth appl[y] concluding of that disallowed Booth in “evidence such relating ... victim impact to the and the subject errors [were] harmless error on family.” the victim’s death the victim’s Brewer, reviewed, Id. In review.” we as 2, Id. at 830 n. 111 S.Ct. The 2597. Court here, we do the admission of victim-impact portion did not disturb that of Booth that three-judge evidence before a panel. The family “a forbids victim’s members’ charac- Court, Supreme Ohio both in Brewer and crime, opinions terization and about the in present case, Post, relied on State defendant, appropriate and the sen- 380, 754, 32 Ohio St.3d 513 N.E.2d 759 Id.; Sirmons, tence.” see also Welch v. (1987),which states: “Absent an indication (10th Cir.2006) 675, 451 (recog- F.3d panel influenced or consid nizing many circuits have found that ered the victim impact evidence in arriving portion holding Booth’s “survived decision, at sentencing its the admission of valid”). in holding Payne and remains impact the victim statement ... did not agree We Ohio Supreme Court prejudicial constitute error.” Id. And both state trial court admitting erred in Brewer, in here and Supreme the Ohio this evidence. Court found no indication that the three- issue, then, judge panel contemplated is considered or whether Supreme reasoning Ohio the victim-impact Court’s that this evidence available to error Brewer, did not “warrant reversal” was con- them.8 We concluded 47 Fed. Brewer, 8. Supreme As we noted presumed the Ohio is to be correct under the Brewer, finding Court's that there Fed.Appx. was no indication AEDPA.” See at 288. panel three-judge that the challenge relied on the vic- has failed to this factu- tim-impact finding finding appeal, evidence was a “factual al on much less to establish at or id. “create applica- court’s that the state Appx. impermissible capital risk that sentenc unreasonable we was not tion Booth ing arbitrary will be made in an decision here. the same conclusion reach manner.” Id. Those considerations are se federal application of “An unreasonable entirely verely obviat diminished—if applica- an incorrect is different from law judge a a ed—when sentencer is law,” Woodford, U.S. at tion federal laya panel, jury. rather than three-judge omit- marks (quotation 123 S.Ct. 357 that Booth minimal rele We conclude has ted); grant habeas relief under order vance evidence is victim-impact when clause, we application” “unreasonable panel, presented three-judge see ap- that “the state court’s must determine Brewer, Fed.Appx. (affirming, at 287-88 clearly federal law established plication of Supreme application reasonable Cone, unreasonable,” objectively [was] Supreme precedent, the Ohio Contrary to conclusion that “Booth does not Court’s does not Fautenberry’s argument, Booth apply to situations where a defendant erroneous admission indicate whether the by three-judge panel tried rather than a warrants auto- victim-impact evidence jury”), Supreme and hold that Ohio such errors are matic or whether reversal unreasonably apply Supreme Court did not subject to harmless-error review. See precedent. Court Rain, Therefore, n. F.3d at 1239 decision en- Supreme the Ohio Court’s Appellate H. of Ineffective Assistance analysis in of gage a form harmless-error Counsel appli- not constitute an unreasonable does he contends that received Booth did not ad- cation of Booth because his during assistance of counsel ineffective dress that issue. of appeal appeals. the state court direct Moreover, question we whether Booth claim had court found that this district the im- here. Booth involved applies even because Fau- procedurally been defaulted victim-impact admission of proper it to the state tenberry present did not case involves the jury, this whereas appellate timely application court in a victim-impact evi- improper admission procedure proper which is the reopening, panel. The Court three-judge dence to a in ineffective assistance raising Ohio for greatly concerned that the in Booth was appellate counsel claims. (1) might “distract victim-impact evidence to affirm the urges The State us its sentencing jury from constitutional- claim district court’s conclusion required determining task whether ly [of] procedurally defaulted. Under light of has been penalty appropriate the death is law, must raise a criminal defendant background record of the accused Ohio appellate coun his ineffective assistance circumstances particular and the reopening crime,” Booth, 507, application in an sel claim reconsideration) (i.e., delayed 2529, motion for jury’s away “divert the attention where the appeals filed “in the court of background and rec- from the defendant’s v. Mur- crime,” alleged place.” State error took and the circumstances of ord[ ] erroneous, finding "no factual there was clearly review Court’s that it was and our finding impact persuades us victim of the record indication affirmative 882, Coyle, Cooey F.3d sentencing correct. See [the were considered in statements (6th Cir.2002) (affirming the district death”). 910-11 petitioner] to Supreme giving to the Ohio court's deference nahan, 63 Ohio St.3d 584 N.E.2d reopening with that court. Fautenberry (1992). 26(B)(1) App. R. Ohio states good demonstrated cause for not filing his application that an for reopening “shall be application prior January 1996, because filed in of appeals the court where the until that point he was represented by the appeal was ninety days decided within same counsel appeal on and we conclude journalization appellate of the judg it would be unreasonable to expect ment applicant unless the good shows counsel to raise an ineffective assistance cause for at a later filing time.” The state claim against himself. But Fautenberry appeals -rejected Fautenberry’s did not show good cause for failing to file direct appeal February 1994, and the application until July six months Supreme Ohio appeal denied his in after the appointment of new counsel. Ad 1995- In January after the conclu ditionally, he did not explain why he failed sion appeal, direct to raise this claim in his motion for recon state court appointed new counsel to rep sideration filed with the Ohio Supreme resent Fautenberry during post-convic Court in March 1996. We conclude that tion proceedings. In March Fauten- Fautenberry did not comply with the time berry, through counsel, his new filed a requirements liness 26(B) App. Ohio R. motion for reconsideration with the Ohio and that those time constraints are an Court, Supreme alleging ineffective assis actually enforced, adequate and indepen tance of appellate counsel during his direct dent state ground upon which the Ohio appeal court; to that the motion was de courts consistently refuse to address inef nied in May 1996. In July 1996, Fauten- fective assistance of appellate counsel berry filed application for reopening claims. See Mitchell, Coleman v. 244 F.3d with the state court of appeals, asserting (6th 533, Cir.2001) 539-40 (finding that the ineffective assistance of appellate counsel petitioner procedurally defaulted his claim during his appeal direct to the court of because he failed to with comply the re appeals. The court of appeals denied that quirements App. 26(B)); in Ohio R. Wick application because Fautenberry “failed to Mitchell, line v. 813, (6th 319 F.3d 823 demonstrate that there good [was] cause Cir.2003) (finding that the petitioner’s inef for filing application []his more than two fective assistance of appellate counsel years after judgment th[e] court’s was claims were procedurally defaulted be journalized.” The court further reasoned cause he failed comply to with the rule set that Fautenberry could have raised the Murnahan). forth in issue of ineffective assistance of appellate counsel in “previous his application for re Fautenberry argues that the timeliness opening in Supreme the Court” and “pro requirements 26(B) in Ohio R. App. are vided no explanation why as to the applica not “adequate and independent” state tion judicata of res unjust.” would be The grounds upon which to that find his claims Ohio Supreme Court affirmed this decision have been procedurally defaulted. Mau April in 1997 “for the same reasons articu pin, 785 F.2d at 138. be adequate, “To a by lated the court of appeals.” Fautenber procedural state rule must firmly be estab ry, 677 N.E.2d at 1195. ” lished and regularly followed.... Hutchi We hold Bell, procedur- has son v. (6th 720, 303 F.3d Cir. ally 2002) defaulted this claim. The state appel- (quotation omitted). marks Fauten- late court denied his direct appeal in berry Feb- relies on our decision in Franklin v. ruary and Fautenberry Anderson, waited more (6th 418-21 Cir. years than two to file his application 2006), for to argue that an untimely applica- materially different case are in App. facts to Ohio pursuant reopening for tion Franklin, defen- the here. those and from “firmly established 26(B) R. reopening for application rule, at filed dant had id. procedural followed” regularly year after one appeals of Franklin with emphasizing 418, particularly its decision issued Court Supreme of Ohio review “[a] statement court’s effec- prior just the Ohio reveals in Mumahan law case relevant 26(B). Ohio its App. in R. erratic of Ohio has been tive date Court Supreme Mur- 26(B) applica- time effect untimely Rule rule procedural of handling an 420. Fau- that such required Id. at was decided capital cases.” nahan tions days from statement ten to elevate filed within be tenberry wishes application recon- ever-applicable.le- which for all-encompassing, opinion entry of the an (or at least forever itself will sought; Mumahan proposition gal was sideration time) courts the federal bar which long frame within very time for set did not assistance an ineffective to be finding required was application such proee- has claim been counsel take appellate should filed, opined courts but the state court where durally defaulted to the regard approach more lenient that claim the merits 26(B) address refused R. App. Ohio filing. time for in Ohio time constraints because frame the time provide then created “firmly established 26(B). But R. App. observed As we applications. these be cannot inquiry followed” regularly filed Franklin, Franklin the time we must Instead all. and for once made reconsideration, the delayed application inde- “adequate consider whether which within period the time regarding law ... [was] bar procedural state pendent appellate assistance ineffective followed’ regularly ‘firmly established un- filed to be required were claims it [was] which the time in Frank- noted specifically But we clear. Georgia, 498 v. Ford applied.” following the years several that “[f]or lin L.Ed.2d 424, 111 S.Ct. 26(B) July Rule [in amended enactment Howes, added). Rogers (emphiasis Cf. regularly Supreme 1993], the Ohio Cir.1998) n. F.3d require- timeliness rule’s enforced state the not whether is (“[T]he question (citing 420 Franklin, F.3d 434 ments.” procedural consistently apply courts cases). Court Supreme string of Ohio we differently, Put present.”). in the bar signifi are circumstances petition- “whether, time ask Franklin. default, from those cantly different rise to giving actions er’s counsel new to have obtain not Fautenberry deemed did ... could be petitioner for responsible held rule’s existence.” be (and cannot thus apprised been reopening) and for (quotations Hutchison, application at 737 file an failing 303 F.3d four omitted). almost 1996, is which January until alterations decided, and was Murnahan after years Fauten- time that that, of the We find R. App. after Ohio years two-and-a-half for application his filed have berry should time, the By that 26(B) effective.. became new acquired (i.e., he when reopening 26(B) App. R. Ohio limit in 90-day time con- 1996), time January counsel clearly established was 26(B) firmly were R. App. Ohio straints of its apprised have been should followed, he regularly established Nevertheless, obtaining after existence. apprised been have or should six Fautenberry waited counsel, new his decision Franklin existence. rule’s motion he filed during which with, the begin contrary. To months — to the not Supreme Ohio is often best to filter out less meritori- for reconsideration in which he could have raised this ous so that can emphasize issues counsel filing applica- claim but did not—before present opportunity those the best reopening. for We conclude tion Jones, for appeal. relief on See which the holding of Franklin—in (“There 752, U.S. at 103 S.Ct. can 26(B) is not adequate that “Rule stated hardly be question impor- about the pre- state rule that can independent of having tance the appellate advocate consideration of Franklin’s ineffec- clude examine the record with view to se- claim,” appellate counsel tive assistance lecting promising the most issues re- inapplicable here. Fauten- id. at 421—is view.”). “ignored And the four issues” berry his inef- procedurally has defaulted “clearly stronger were not than those appellate fective assistance of counsel presented.” ap- The first of the four claim. pears to be Contrary baseless. to Fau- tenberry’s argument, the trial court did even if this claim was

But not in fact required by review evidence as defaulted, procedurally it must fail because 11(C)(3); Ohio notably, A Crim. R. most it is defendant is entitled to meritless. prosecutor during effective assistance of counsel introduced and the trial appeal right, Lucey, Evitts v. first 469 court transcripts reviewed the Fau- 830, 387, 396, 105 tenberry’s S.Ct. 83 L.Ed.2d Ott, Agent confessions to Of- (1985), but effective assistance does Nelson, ficer and Ms. Priest-Herndon. require every counsel to raise nonfrivo- We have already concluded that the sec- Barnes, on argument appeal, lous Jones v. issue—i.e., ond omitted ineffective assis- 3308, 745, 751-52, 463 U.S. tance of trial counsel—is baseless. The (1983). “[0]nly ignored L.Ed.2d 987 when claim, third omitted which alleges the clearly stronger are than pre issues those impropriety of grand- Ohio’s selection of sented, presumption will the of effective jury forepersons, apparent was not [appellate] assistance of counsel over the record on direct appeal, and thus Edwards, come.” Monzo appellate we do not fault (6th Cir.2002). failing Moreover, raise claim. upon the case which relies Fautenberry argues that his ap challenge grand-jury Ohio’s fore- pellate counsel rendered ineffective as person process, selection Campbell v. they only sistance because raised seven Louisiana, and, appeal, issues on spe direct more (1998), 140 L.Ed.2d 551 was not cifically, present failed they four al until decided long after Fautenber- legedly claims on appeal: meritorious appeal direct had concluded. Final- the trial court’s failure to review evi r/s ly, fourth the omitted claim—that Fau- required by dence as Ohio Crim. R. (2) tenberry 11(C)(3); prejudiced by was wearing the ineffective assistance of tri (3) of counsel; al shackles before the trial court—would discriminatory Ohio’s not have had selecting grand-jury appeal method merit on direct fore (4) persons; the fact because under Ohio appellate that Fauten- law the berry court “presum[es] was forced to wear shackles in that in a trial bench case[,] presence of trial in a criminal the the court. court the consid- material, appellate only relevant, mere fact that eres] counsel confined the appeal their to seven competent issues does not es evidence in arriving its ineffective; tablish that counsel judgment were it it affirmatively appears unless that, coun but for probability reasonable N.E.2d Post, 513 contrary.” to the of errors, result the unprofessional sel’s differ been have would proceeding the Wainwright, 477 v. III. Darden ent.’” L.Ed.2d 168, 184, 106 S.Ct. the record reviewing carefully After omitted) Strick (citations (quoting on arguments Fautenberry’s evaluating Washington, v. land court district that conclude we appeal, L.Ed.2d 694, 104 S.Ct. petition Fautenberry’s denied properly (1984)). AFFIRM Accordingly, we relief. habeas by the governed court. case is the district this of Because judgment Penalty Death and Effective Antiterrorism MOORE, Circuit NELSON KAREN (“AEDPA”), principal- codified of 1996 Act dissenting. Judge, 2254(d), grant we can § at 28 U.S.C. ly proceedings the state-court only if ex- relief an attorney calls forward an When contrary was that in decision “resulted provide asked expert an especially pert, application unreasonable an to, life or involved a defendant’s when mitigating law, as de- Federal of, clearly established an attorney balance, has in the hangs of Supreme by the knows termined expert that ensure obligation 2254(d)(1). § U.S.C. States.” the United When speaks. she which about did not state However, “the where not find will that “[w]e declares majority properly claim of a the merits they did asséss simply because deficient counsel deference petition, in a habeas raised his brain dam- discovering succeed not Ma- apply.” not does AEDPA ave- due under alternate unspecified, pursue age 433, 436 F.3d Stegall, ples have revealed (which may not ormay nues Fautenberry has Cir.2003). I 625, they believe Op. at Maj. damage),” the brain of performance deficient who, -both established counsel actions in the no fault find performance the deficient and that counsel brain indicators numerous face of his trial. phase mitigation prejudiced to ensure inexcusably failed damage, -the Ohio Furthermore, conclude I organic for the actually tested expert their was counsel that his determination un- courts’ claimed b$ she disorder brain clearly estab- contrary to majority’s not deficient I believe to find. able law. federal wrongly lished substance over form elevation counsel; assistance ineffective excuses of Counsel Performance Deficient I. is a doc- who expert an presenting simply obli- counsel por- absolve attempts tor does majority’s Despite of the rudiments the bare grasp ques- simple gation aas Fautenberry’s claim tray I conclude testimony. Because exerted expert’s his counsel or not of whether tion ineffective investi- effort level appropriate trial, respect- I stage defenses, of his penalty in the mitigation potential gating fully dissent. question: a different actually presents case to ensure obligation have an Does counsel assis- ineffective to establish order fully has witness expert own their re- post-conviction on tance suffers the defendant investigated whether show must “[f]irst, petitioner view, before impairment brain organic from an ob- an below fell representation ‘counsel’s he does testify that can witness expert Sec- of reasonableness.’ jective standard content majority While not? ais ‘there show must ond, petitioner state “any inadequacies in Dr. shot himself the left temple, which Schmidtgoessling’s expert assistance ... should have strongly suggested the need cannot be the basis for a meritorious inef- to investigate whether Petitioner had a claim,” fective-assistance Maj. Op. 626,1 at mental defect.” Id. believe that simply hiring any so-called counsel, while perhaps expert, regardless of the quality of the lacking the smoking gun of a brain injury expert’s work, does not entitle counsel to a present in Haliym, certainly had ample free pass regards to their per- own notice the stark facts of Fautenberry’s

formance mitigation phase. life that strongly suggested the possibility of brain damage. First, his counsel was A. Damage Notice of Brain aware physical abuse was frequent When defense counsel is on notice of element in Fautenberry’s childhood. Fau- past incidents that suggest would brain tenberry suffered abuse at the hands of damage, can “[w]e conceive of no rational several people over the youth. course of his trial strategy that would justify the See, failure e.g., J.A. at 649 (Mitig. Hr’g of Sept. of [defense] counsel Stmt, to investigate 1992, Unsworn of John J. Fau present evidence of his impair brain tenberry at 277:3-18); (Fauten J.A. at 652 ment. ...” Frazier v. Huffman, 343 F.3d 280:7-23). berry at A family friend testi (6th Cir.2003) (discussing how fied that abuser, one Donald Langdon, counsel did no investigation into pres “back-handed [Fautenberryl’s head ence of organic an impairment brain after against the wall several times. [Fauten- learning from medical records that berry] appear would disoriented after Don defendant fell a ladder), denied, cert. ald hit (Aff. him.” J.A. at 1996 of Kenneth ¶ L.Ed.2d 4). Corcoran at The abuse was so fre (2004). case, In this however, we are quent “[a]ccording to [Fautenberry’s sis not asked to decide whether counsel inves ter], she and [Fautenberry] grew up think tigated Fautenberry’s counsel did seek ing that getting — hit was normal.” J.A. at psychiatric evaluations from both (Aff. Dr. 2190 ¶ of Pamela 14). Swanson at Nancy (“Dr. Schmidtgoessling Schmidt- In addition abuse, to the there were two goessling”) (“Dr. and Dr. Tanley James physically traumatic events are Tanley”) we must peer into the —instead strongly suggestive of the possibility of adequacy counsel’s investigation. brain damage. The first incident was “In assessing performance, counsel’s a when Fautenberry “was hit in the back of court must thus consider whether counsel head swing, wooden and his recol- adequately up followed on the ‘leads’ that lection is that he lost consciousness, al- were available to them.” Haliym v. though for an uncertain amount of time.” Mitchell, Cir.2007). J.A. at 1916 (Neuropsychological Evalua- One such lead for defense attorneys is a tion by Dr. Jeffery 8). L. Smalldon at Of history injuries; of head “head injuries incident, one observer recalled that were a flag’ ‘red to those in the area of “when [Fautenberry] was around seven psycho-social investigation, signifying the years old, got he hit on the head with a need for additional testing....” Id. at 710 swing. [Fautenberry] bled profusely. He (crediting expert’s view regarding the was taken to a local hospital in Norwich- salience of a defendant’s injuries). head town, Connecticut. It was around the time instance, For in Haliym, “Petitioner’s at- of injury that [Fautenberry]’s behavior torneys were on notice that Petitioner had changed. [Fautenberry] became mean to

645 at- Fautenberry’s that Indeed, it appears at 2185-86 J.A. him.” around people issue; of not unaware torneys were ¶ 20). Fauten- at Corcoran (Aff. of Louise neurop- requested counsel Fautenberry’s up to for unconscious have been may berry suggest- “it is testing because sychological a frac- suffered may have and hours seven suffering may be the Defendant at (Dr. ed that Smalldon 1917 skull, at J.A. tured underly- impairment organic from some the dam- that suggest records 9), some but (Mot. at 915 J.A. at disorder.” severe, ing organic see J.A. less been may have age to Exam.). response Hist.) Neurological that (noting for of Med. (Rep. 1974 or- trial court request, a concus- his counsel’s in neither resulted injury swing a conduct to Schmidtgoessling fracture). of Dr. Regardless dered nor a sion (En- examination, at 1065 J.A. provided neurological still incident details, exact Exam.), and au- Neurological of attorneys Ordering Fautenberry’s try to notice a and psychologist a funds defect. brain thorized organic of an possibility (Granting 1066 at J.A. expert, mitigation oc- head trauma major second “The at 1067 J.A. Tieger); Dr. Employ Mot. to his late- [Fautenberry] was when curred Shorr). Dr. Employ to (Granting Mot. He Navy. in the serving and teens test- neuropsychological requesting Simply a atop laying flat he was reports guarantee however, in itself does ing, the side over down reaching pontoon, was effective. performance that counsel’s level, a lower from cigarette retrieve in between wedged became his head when Investigate Obligation to An B. approaching an pontoon of the the side unable he was recalls He ship. inef found that have cases Many of expected fully he [sic],, and breath mitiga at the counsel of assistance fective crushed.” to be about his head the defendant’s where cases are phase tion 9). After (Dr. at Smalldon at J.A. minimal even to invest failed attorneys of x-rays took incident, military doctors a brain discovering into time of amount aof sign no found Fautenberry’s skull real to the alerted they were when defect Rec.). (Med. at J.A. fracture. Such exist. might that one possibility served have might mitigating investigate last element failure “complete counsel Fautenberry’s flag for assistance red ineffective as a constitutes family. his Mitchell, illness F.3d mental présence v. Mason counsel.” anti-depres- took Cir.2003); Mor Fautenberry’s mother also (6th see 604, 620, ¶ 5), and (Swanson (6th at at 2188 931-35 sants, Mitchell, J.A. F.3d v. ales “suffered Fautenberry’s grandmother assistance Cir.2007) ineffective (finding (Louise at J.A. inter swings,” conduct mood failed counsel trial when ¶ 18). family members at Corcoran various with views evi mitigating possessing friends, each abuse, the elements —the these None ineffec has found dence). Thus, this court his- family or the injuries, head traumatic defen when of counsel assistance tive anything. When conclusive tory —are awas that there told attorneys were of dant’s “history Fautenberry’s with combined never but issue mental-health potential headaches,” J.A. intermittent, severe expert, mental-health however, it consulted 8), (Dr. Smalldon 631, 638 Bell, 417 F.3d Harries attorneys see established have should “Petitioner’s Cir.2005), when into investigation brain Petitioner’s diagnose ... failed impor- paramount mental health they knew or the fact despite injury, trial. phase mitigation for the tance 646

should have known that Petitioner shot In applying this sliding scale for evalu- head,” himself in the because the defen- ating counsel’s duty, the importance and dant’s attorneys provided never the defen- relevance of potential topic for investi- dant with an independent psychiatric gation can anal- make counsel’s obligation “par- ysis, Haliym, 492 F.3d at 715-16. ticularly pressing,” Rompilla, 545 U.S. at 386, 125 2456, while the difficulty in Just because the starkest examples of obtaining or speculative nature of the counsel’s failures are the ones most likely potential may information mean that coun- disapprobation find by this court does sel is less culpable for a failure to investi- not mean that counsel is ineffective only gate. See id. 4, n. 386 125 S.Ct. 2456. when they fail to do the most minimal Thus, in Rompilla, the Supreme Court investigation. Instead, there is a sliding found ineffective assistance of counsel scale for evaluating counsel’s obligation to when the Court concluded that the exis- investigate. On hand, the one the duty to tence of numerous red flags made the po- investigate does encompass a duty to tential existence of an extreme emotional every overturn stone in pursuit of ev disturbance more than speculation remote ery remote possibility; “reasonably dili great significance for the defen- gent may draw a line when they dant’s case. See Rompilla, 545 U.S. at good have reason to think further investi 392-93, 125 S.Ct. 2456. gation would be a waste.” Rompilla v. In the case, instant the possibility that Beard, 374, 383, 2456, 125 S.Ct. suffered from an organic (2005). L.Ed.2d 360 On the other brain defect was certainly not rampant hand, “[c]ounsel’s constitutional duty to in speculation given all of the flags red vestigate a defendant’s background in Fautenberry’s counsel should have noticed. preparation for the sentencing phase of a Accordingly, Fautenberry’s counsel were ” capital trial is ‘well-established.’ Har not under some cursory obligation to in- ries, 417 F.3d at 637 (quoting Coleman v. vestigate the potential for brain damage Mitchell, 417, (6th 268 F.3d Cir.2001)). but were instead under a significant and Furthermore, that the defendant could be pressing obligation to do so. sentenced to death “magnifies counsel’s

responsibility to C. Fautenberry’s investigate.” Id.; Guide Investiga- Counsel’s Appointment tion lines FOR the and Perform ance of Defense Counsel in Death Penal Although Fautenberry’s counsel were ty Cases, Guideline (Am. 10.7 Commentary under a significant and pressing obligation Bar Ass’n, Ed.2003) (“2003 Rev. pursue Guide the possibility that their client (“This duty [to investigate] is in lines”) suffered from an organic defect, brain I (as

tensified are many duties) by the they conclude that failed to up live to their ....") unique nature of the death penalty obligation. .1 The mitigation testimony that Supreme "long ha[s] referred spite [to the fact that the ABA Guidelines were these ABA guides Standards] as to determin- issued well trial, after Petitioner's as the ABA ing what is Rompilla, reasonable.” 545 U.S. represent Guidelines 'a codification of long (second 125 S.Ct. 2456 alteration in standing, common-sense principles repre original) (internal quotation omitted) marks sentation understood diligent, competent (quoting Smith, Wiggins " counsel in penalty death Haliym, cases.’ (2003)). L.Ed.2d 471 492 F.3d at 717 n. (quoting Hamblin v. "Considering performance counsel's in light Mitchell, Cir.2003)). of the current ABA proper Guidelines is de- about you asked Mr. Tolbert Q. Fautenberry’s mental on presented they your and or defect disease mental Schmidtgoess- of Dr. that was condition Fautenber- that testimony was John Fautenberry, evaluate to order ling. correct? bipolar, not ry of is a series conducted Sehmidtgoessling Dr. aof is a kind Raven, which did a “I tests: Correct. A. organic of lines for certain screening test not Schizo? isHe Q. MMPI, A Bender, Trails functioning. A A. Correct. intel- at his looking things B, those all dis- this mental have not He does Q. an I did functioning. cognitive lectual correct? defect, is that ease the informa- of bulk That was MMPI. term, that I understand way The A. our preparing of terms we had that tion right. that’s at Fautenberry.” J.A. of Mr. evaluation 1992, Un- men- are other Sept. sure there Hr’g of I’m (Mitig. Q. Now Stmt, at Sehmidtgoessling than Dr. defects of diseases tal sworn mentioned, cor- 297:12-18). that is two I have rect? evaluation, Dr. her of basis On it, though. her conclusion well covers pretty stated That Sehmidtgoessling A. short, avail- “In terms: no uncertain section this to Okay, qualify so Q. signs no yielded testing psychological able I defect disease or under mental J.A. impairment.” organic suggestive into cubbyholed have almost 3). at Rep. (Dr. Sehmidtgoessling at accurate, to have I have that, is that inexplicable counsel, Fautenberry’s two? of those one this impress best their reasons, did Yeah. A. sentencing panel; upon conclusion Sehmidtgoessling Dr. (Hr’g, at 694-95 J.A. Fautenberry’s examination, on direct twice counsel, Fautenberry’s 322:15-323:8). at Sehmidtgoessling prompted counsel in- obligation an therefore, under while (Hr’g, at J.A. her conclusion. reaffirm Fauten- possibility fully vestigate 297:23-24) (“As at Sehmidtgoessling Dr. defect, mental organic an may berry have signs no were there tell could as I far no defect was there concluded ”); at J.A. 672-73 ... impairment organic mitigation during the a witness presented at 300:24- Sehmidtgoessling Dr. (Hr’g, upon conclusion impressed who phase know, in now, you 301:3) (“As adult separate times. three panel sentencing I description, psychological aof terms any sign of no there is say would was Sehmidtgoessling of Dr. D. Use talk- not We are disorder. major mental of Counsel Assistance Defective depres- or manic schizophrenia ing upon reliance counsel’s Fautenberry’s that.”). govern- like sion, nothing Sehmidtgoessling Dr. testimony of more contrast, actually elicited ment, in reliance to their objection My defective. Schmidtgoess- Dr. analysis from favorable however, testimony, her on Fauten- to admit her ling, provoking adverse emphasized repeatedly personality “a severe suffer berry did accuracy about is it testimony, nor a dis- it I understand not as but disorder her instead, I believe analysis; her Dr. (Hr’g, J.A. or defect.” ease Fau- because problematic testimony was 312:21-24). redi- On Sehmidtgoessling even possess failed to tenberry’s counsel pro- attorneys Fautenberry’s rect, again Sehmidtgoess- Dr. rudimentary grasp emphasize Sehmidtgoessling Dr. voked her whether to assess sufficient work ling’s conclusion: adverse her fairly conclusion grounded in her test- equipped’ to conduct the necessary neu- ing. ropsychological testing for phase case.”). Thus, Petitioner’s post-conviction review, On counsel repeatedly emphasized to the sen- presented opinion has of Dr. Jeffrey tencing panel Dr. Sehmidtgoessling’s con- (“Dr. Smalldon”) Smalldon to establish clusion of mental normalcy, which, as it that Dr. Schmidtgoessling’s in- testing was out, turns she most likely had not conclu- sufficient support to her conclusion: sively established. Had Fautenberry’s fact, however, recognized no neurop- counsel been aware of the shaky founda- sychological test battery was ever per- tions underlying Schmidtgoessling’s con- formed, thus and there was not available clusion, his counsel might have chosen not body sufficient of data to justify provoke repeatedly her erroneous asser- conclusion—one way or the other—(cid:127) tion and they might have continued to presence about the of brain impairment. pursue a more conclusive determination. professional No with specialized train- (“Dr. See id. at 400 Schmidtgoessling’s ing and experience in neuropsychologi- inability to provide conclusive evidence re- cal assessment would expect to lean garding organic brain damage other made the limited battery tests admin- avenues of investigation all the more cru- istered Dr. Schmidtgoessling whether cial.”). Mr. Fautenberry is brain impaired. [The tests Dr. admin- Schmidtgoessling Counsel presenting mitigating evidence istered] not at present do enjoy do widely- not need doctorates in psychology to accepted status even as ply craft; effective their means just but as counsel are of ‘screening for’ organic required brain impair- to have a basic understanding of ment, and that data derived from forensic science when presenting forensic battery, perhaps while suggestive, evidence, is not counsel cannot sufficient to rule out presence call a psychologist testify while counsel such impairment. are ignorant of the foundations of her tes- timony and then (Dr. J.A. hide behind 6) psy- technical Smalldon at (emphasis chological added). terms such as course, “MMPI” Of or the assertion that Dr. “Trails A B.” and Recently, in the context Schmidtgoessling’s conclusion had no foun- of an arson prosecution, we dation in have her testing held that is not true just be- a lawyer possess must a basic cause Fautenberry understand- and his counsel have ing of the science that now found an underlies expert his wit- willing to assert as ness’s testimony. much. We do not need to take Dr. Small- don’s word on the matter; Dr. Schmidt- Even more importantly, it is inconceiva- goessling herself has previously admitted ble that a reasonably competent attor- in another case that “neither she nor ney would have failed to know what his other staff member at the psychiat- court’s expert was doing to test the State’s ar- ric clinic were qualified to conduct the type conclusion, son would have failed to of testing and evaluation that was required work with the expert to understand the to diagnose Petitioner oi-ganic brain basics of the involved, science at least damage for the purpose showing for purposes cross-examining effect of that factor at mitigation.” Powell State’s experts, and would have failed to Collins, v. (6th Cir.2003); inquire about why his expert agreed see (“Dr. also id. at 384 Schmidtgoessling with the State. lawyer A cannot be admitted that she was ‘definitely not deemed where he hires an ex- effective or incompetent, Chiappone Dr. willfully either then consultant pert any reason had lawyers Campbell’s the dark keeps negligently himself qualifi- professional Chiappone’s doing, question expert what about therefore, does cations.”).2 attorney, An opinion expert’s basis what diagnose the skill possess need to is. gener- can ailments hidden client’s 344, 362-63 Bradshaw, F.3d v. Richey a licensed expertise rely on ally added) (citation Cir.2007) (emphasis (6th Mitchell, Lundgren See practitioner. attorneys were omitted). Fautenberry’s Cir.2006). 754, 772 F.3d understand obligation an under thus Schmidtgoess- Dr. foundations basic in the duty to fulfill attorney For to fulfill failed they testimony, but ling’s in law trained one phase, mitigation obligation. in medi expert also be not advocacy need “ to required is not attorney ‘[a]n While in medicine training of cine, a lack but ” he so psychiatry’ in expert so be in the expertise a of failure excuse cannot the in condition a medical diagnose could in diligence Normally, “[counsel's law. Mitch- indicators, v. Clark any of absence constitutionally the just obtaining not (alter- Cir.2005) (6th 270, 286 ell, F.3d 425 expert, but health single mental mandated excuse not that does original), ation shows experts, health two mental red when attorney performance deficient investiga a reasonable engaged counsel a men- of possibility to the him alert flags 772. at F.3d 440 Lundgren, tion....” denied repeatedly deficiency. We have tal mean is expert hiring of an mere “But the petitioner where for habeas petitions ex use the to fails counsel ingless” when for fail- attorneys to blame attempted the nature understand knowledge to pert’s a despite damage brain diagnose to ing testimony. Rich expert’s and limits indicating flags red absence total coun at 362. F.3d 498 ey, See, e.g., damage. any brain for potential diagnosing not faulted not sel could (concluding that at 285 Clark, F.3d 425 on impairments Fautenberry’s mental Clark’s unreasonable “[i]t pres to decided they own, once but their mental field of counsel, untrained sentencing panel, to the psychologist ent of these opinions rely on health, to to under obligation an they under were there who concluded professionals” testimo witness’s of their the basics stand Coyle, v. Campbell damage); no brain 362-63; at F.3d Richey, 498 See ny. Cir.2001) (“Even (6th 531, 555 F.3d 260 (6th 261, 269 Parker, F.3d 235 v. Skaggs psy- a trained Chiappone though Dr. “a re had Cir.2000) that counsel (stating any evidence to detect failed chologist mitigat meaningful present to sponsibility us to declare asks PTSD, Campbell concluded when ing evidence” make to failure independent counsel’s of counsel assistance was ineffective that it unrea- objectively an diagnosis is same neurop- called attorneys defense when his Sixth him of mistake, depriving sonable his creden falsified had who scyhologist assis- effective to right Amendment previous- had knew counsel whom tials and no evidence is There of counsel. tance Mitchell, F.3d 939; Carter flags counsel red there are where Even denied, - U.S. -, Cir.2006), (6th cert. find to declined have investigate, we failed (2007). case L.Ed.2d 730 peti- if assistance ineffective however, a situation hand, such is not unable, during post-conviction even tioner provide failed petitioner has where anof any evidence produce proceedings, evidence. Morales, medical See defect. organic brain ly done a laughable job at trial); (Dr. the first 15). Smalldon at Thus, there was Delo, Driscoll v. F.3d readily available to Fautenberry’s attor- Cir.1995) (holding that defense counsel neys significant mitigating evidence, and was defective for failing “to understand the failure to collect and present readily the laboratory performed tests and the obtainable evidence of this sort is classified inferences that one could logically draw as nothing short “abdication advo- from the results” when challenging the cacy.” Powell, 332 F.3d at 399-400. expert). state’s they Because failed to grasp the basics of Dr. Schmidtgoessling’s E. Fautenberry’s Uncooperative Be- testimony, I conclude that Fautenberry’s havior counsel were defective. The majority would excuse failure not, This is in contrast to the majority’s on the part Fautenberry’s counsel on the suggestion, question of whether or not basis that Fautenberry refused cooper- Dr. Schmidtgoessling was correct in her ate with Dr. Tanley. As the majority de- analysis. Instead, question should be clares: “Had Fautenberry not impeded whether Fautenberry’s attorneys were suf- Dr. Tanley’s examination, the doctor pre- ficiently able evaluate the correctness of sumably would discovered, have verified, Dr. Schmidtgoessling’s analysis. Had any revealed such brain damage.” counsel been better Maj. Op. at fault, 625. The however, for equipped to scrutinize Dr. Schmidtgoess- any failure to discover Fautenberry’s brain ling’s testimony and recognized the need damage, given all of the red flags his for further investigation, they might have medical history, cannot placed be at the discovered evidence of an organic brain of feet a man who is supposedly mentally impairment. Fautenberry has pre- now impaired. Instead, aware of the various the sented statement of one pro- medical indicators of an organic brain impairment, fessional who has reached quite a different it solely was the responsibility of Fauten- conclusion than Dr. Schmidtgoessling: “It berry’s attorneys to pursue zealously evi- my is opinion, offered with psy- reasonable dence of impairment. an chological certainty, that Mr. Fautenberry The is brain American impaired.” Bar (Dr. J.A. at 1922 Association’s (“ABA”) 14). Smalldon at Guidelines Dr. that Smalldon establish ap- the concluded that propriate the impairment conduct only was for “mild,” defense but counsel in added that it “by death-penalty no cases specifically means insignifi- state that cant. ‘Mild’ mitigating when as used evidence must descriptive pursued “re- adjective in gardless of context only serves to statement the client differentiate one classification of that evidence bearing brain in- upon penalty is not jury from other to be classifications presented.” where the collected or 2003 Guide- associated might deficits be even 10.7(A)(2); more Guideline lines, id. at Guideline dramatically apparent.” J.A. (“The at 1922-23 commentary 10.7. duty to investigate (Dr. 14-15). Smalldon at According exists regardless to Dr. of the expressed desires Smalldon, “[bjrain impairment of client.”); the sort Appoint- Guidelines the FOR that is clearly apparent in Mr. Fautenber- ment AND OF PERFORMANCE DEFENSE COUN- ry’s case can also cause problems serious Penalty SEL in Guideline Cases, Death in such areas of day-to-day 11.4.1(C) functioning (Am. as Bar Ass’n, 1983) (“1983 impulse control; modulation affect; Guidelines”). While the majority would planning; problem-solving; and the capac- excuse otherwise performance deficient ity to tolerate frustration.” J.A. 1923 when counsel claims that their client made interview psychiatrist psychologist mitigating evi- find them to it difficult no were 526-27, there because him, id. defense demands ABA dence, for brain potential indicating flags their red barriers beyond go counsel obli- counsel’s increasing recog- damage even ABA may erect. client stated, counsel already have IAs evi- mitigating gations. pursuing when nizes out- to pursue obligation typi- an have information does “[ojbtaining such dence, are however, there when leads; overcoming considerable landish requires cally miti- potential re- denial, shame, significant, aof barriers, as indicators such obligation an defense, or emo- has mental counsel other as well gating pression, client which it. pursue impairments tional Guidelines, 10.7 com- may suffer.” there was or not of whether Regardless recognizes ABA While mentary. between in communication a breakdown may face counsel defense challenges his attor- attorneys, and his pursuing to continue counsel exhorts ful- investigate obligated neys remained of those face in the evidence mitigating organic an presence potential ly a half- condones majority challenges, conclusion, my It impairment. brain effort. hearted Fautenberry has estab- therefore, guidelines, ABA like precedent, Our defective: were counsel lished in the persevere counsel directs also there was notice that on counsel dif despite mitigating damage, search brain possibility significant himself may defendant ficulties to investi- obligation under they were instance, Supreme For create. they failed possibility, fully that gate assistance ineffective found limits scientific the basic comprehend actively “even was defendant when testimony, Schmidtgoessling’s Dr. false off on sending counsel by obstructive Fautenber- by not excused is failure their 381, 125 at 545 U.S. Rompilla, leads.” actions. uncooperative ry’s have noted we Similarly, S.Ct. “ Fau- to address in Ohio last court The in of to disclosure resistance ‘defendant claims ineffective-assistance tenberry’s duty counsel’s excuse not does formation First for Ohio’s Appeals ” of Court was the Harries, investigate.’ independently Fautenberry’s petition considering District Coleman, 268 (quoting at 638 417 F.3d The state relief. state-postconviction for we noted 449-50). case where In a at F.3d Fautenber- only whether addressed be faulted “[tjrial cannot counsel concluded was defective counsel ry’s Lorraine cooperation,” of lack client’s their meeting Fautenberry’s resistance Cir.2002), (6th 416, 435 F.3d 291 Coyle, v. finding of Tanley precluded with Dr. 1621, 947, 123 S.Ct. denied, U.S. 538 cert. at 2325- J.A. See performance. defective we could (2003), neither 489 L.Ed.2d 155 3-7). The court 31, at 1998 Dec. (Op. effort; lack counsel trial fault more, do failure counsel’s stated EEG, a for an arranged case, counsel the conse- make true, not does if “even per MRI, counsel Scan, CAT recalci- Fautenberry’s own quences re test obtaining the eventually sisted does nor attorneys, imputable trance initially re defendant when sults even ‘wide outside performance their it cast Collins, 209 Byrd Similarly, fused. assis- professional of reasonable range denied, 531 Cir.2000), (6th cert. F.3d ” 6). While (Op. at J.A. tance.’ 786, L.Ed.2d 1082, 121 S.Ct. U.S. holding is Appeals’s the Ohio responsible held not (2001), was Rompilla Rompilla, contrary to clearly allow refused defendant when 2005, was not until decided well after issue, this apply we no deference under Ohio Appeals’s Court of 1998 decision. Maples, AEDPA. 340 F.3d at 436. The however, Rompilla, only the most re majority states that even if Fautenberry cent case that the Supreme Court has had presented evidence of an organic brain decided on matter; this Strickland and impairment, is highly “[i]t unlikely that Burger v. Kemp, 483 U.S. 107 S.Ct. sort evidence would have altered 3114, 97 (1987), L.Ed.2d 638 both held that the three-judge panel’s decision to impose counsel is not deficient they when fail to the death sentence for Fautenberry’s mur- investigate mitigating only evidence when Daron, der of they which found was ‘con- they reasonably believe that such efforts templated and calculating’ conclusion —a would be Burger, wasted. See that is not at all mitigated or reduced 794-95, 3114; 107 Strickland, 466 the traits associated with or the side ef- U.S. at 104 S.Ct. 2052. Although these fects of organic brain Maj. disorder.” Op. cases do not specifically address dealing at 627. I must disagree; we have re- with an client, obstinate such specificity is peatedly held that a brain im- not necessary. “[CJlearly established law pairment is significant very during mitiga- under encompasses [AEDPA] more than tion. Furthermore, the sentencing panel’s just bright-line rules laid down by the conclusion that the murder was “contem- [Supreme] Court. It also clearly includes plated and calculating” cannot be divorced legal principles and standards enunciated from the fact panel that the repeated- in the Court’s Taylor decisions.” v. With ly told that Fautenberry was mentally row, Cir.), 850-51 cert. healthy; evidence of a brain impairment denied, 154 would almost certainly cast doubt on Fau- (2002). L.Ed.2d 406 “The lack of an ex tenberry’s abilities to contemplate and cal- plicit statement” of a rule “is not determi culate and certainly would questions raise native” because “[t]he Court has made of culpability. clear that its relevant precedents include only not hurdle bright-line for establishing but rules prejudice also the legal not high: principles and “Petitioner standards ‘need flowing show that precedent.” counsel’s Id. at 852. deficient conduct Because likely Fauten more berry’s than counsel not altered could the not have outcome reasonably case,’ in the rather, believed that' a only medical that examination ‘there is a would reasonable have fruitless, probability that, been obligation their but to pur counsel’s unpro sue that errors, evidence fessional did not the wane simply result of proceed the because their ing client would was have being difficult; been different.’” Lund holding gren, otherwise is 440 contrary F.3d at to 770 clearly (quoting Strickland, established federal law. 466 U.S. at 2052). “Ohio is a ‘weighing’ state, which means that the Prejudice II. The Resulting From aggravating circumstances must outweigh Counsel’s Deficient the mitigating factors in order impose to Performance the death penalty. law, Under federal one

If Fautenberry is to prevail juror on his inef- may prevent the death penalty by fective of claim, assistance not only finding that mitigating factors outweigh must he prove that his counsel were defec- aggravating factors. As the Supreme tive, but also he must show that counsel’s Court recently said in Wiggins, ‘preju the defectiveness was prejudicial. Because dice’ prong is satisfied if ‘there is a reason the Ohio Court of Appeals did not reach able probability that at least juror one

653 This defect. brain organic of an fense balance.’” a different struck have would just because diminish did not obligation Smith, 539 U.S. v. Wiggins (quoting Id. to his attor- erected obstacles L.Ed.2d 523-28, Fautenberry’s attor- Had efforts. neys’ Fautenberry was Although (2003)). purport- of their basis the neys scrutinized judges three of panel a sentenced conclusion, they would expert witness’s ed panel a similarly requires Ohio jury, not fully inves- not they had that realized have sen- death in a unanimous be judges of as damage brain of presence tigated Ann. Rev.Code tence. Ohio Instead, coun- obligated do. they were 2929.03(D)(3). § their of limits of were unaware sel empha- repeatedly has precedent Our empha- testimony repeatedly witness’s of an of evidence significance sized their that panel sentencing sized pen- during impairment organic brain This deficiencies. no mental had client it Harries, that held we In alty phase. Ac- prejudicial. defective both was evidence probable reasonably was Fautenberry has I conclude cordingly, changed have damage would lobe frontal of coun- assistance ineffective established Harries, 417 See sentencing outcome. trial of his phase mitigation at the sel Frazier, noted we at 641. F.3d holding Appeals’s Court the Ohio “probability significant awas there federal clearly established contrary who a murderer find that would jury dissent. Therefore, respectfully I law. impairment brain a functional suffers does who than one culpable morally less not did impairment if brain not, even Frazi- Skiba.” murder Frazier

‘cause’ Tate, v. And Glenn at 798. er, F.3d Cir.1995), suggested we F.3d when change would jury’s sentence organic presented ROSS, Denny Petitioner- (“John See id. defect. brain Appellee/Cross- hardly can sentencing proceeding Glenn’s Appellant, just having produced upon relied to un- given were jurors when result of Dr. report unchallenged

derstand, in the Attorney PETRO, General James the product Siddall, crime Ohio, Respondent, the State dis- organic brain retardation mental omitted)). im- Given Common (footnote County ease.” Summit brain organic anof Respondent-Appel Pleas, of evidence portance I believe sentencing, lant/Cross-Appellee. during impairment only conclusion 05-4212, 05-4213. Nos. his counsel’s prejudice establish could Appeals, States performance. United defective Circuit. Sixth III. CONCLUSION 10, 2007. Sept. Argued: history of physical Given 25, 2008. Jan. Filed: Decided in- head headaches, significant abuse, obligation had juries, his de- mitigation potential fully a

investigate

Case Details

Case Name: Fautenberry v. Mitchell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 25, 2008

Citation: 515 F.3d 614

Docket Number: 05-3568

Court Abbreviation: 6th Cir.