*1 347 First, tо succeed on a claim of malicious same interests and in a manner consistent prosecution, criminal an Ohio claimant with the Fourth Amendment to the Unit- “(1) three elements: must show malice ed States Constitution.” State v. An- instituting continuing prosecution, or drews, 86, 1271, 57 Ohio St.3d 565 N.E.2d cause, (2) (3) probable lack termi (1991). 1273 n. 1 previously forth, As set prosecution nation of the in favor of the Plaintiff against stated a claim Defendants Corp., accused.” Trussell v. Gen. Motors for violations of the First and Fourth 142, 732, syllabus 53 Ohio 559 St.3d N.E.2d remand, Amendment. Accordingly, on 1990) (Ohio added). Second, (emphasis the district court should consider Plain- imprisonment per occurs when a “[f]alse tiffs contention that Defendants violated ‘without intentionally son confines another I, I, Article Section 11 and Article Section privilege against his consent lawful 14 of the Ohio Constitution. any within a limited area for appreciable ” time, however short.’ Bennett v. Ohio CONCLUSION Corr., Dep’t Rehab. & 107, 60 Ohio St.3d (1991) reasons, For the 633, above we (emphasis 573 N.E.2d 636 REVERSE add- ed). Third, the district court’s order and REMAND essential elements for a further proceedings false arrest claim in consistent Ohio are “indistin- opinion. guishable from a claim for imprison- false ment in that each claim requires proof that intentionally confined ... without
one was Smith, justification.” Evans v. 97
lawful 59, (1994) App.3d 217,
Ohio 646 N.E.2d added).
(emphasis Because we conclude
that Plaintiffs complaint states a claim unlawfully Defendants arrested Plain-
tiff, we reverse. HARTMAN, Brett X. Petitioner- Appellant,
C. State Law Constitutional Claims Finally, Plaintiff alleged also vio
lations of the Ohio State Constitution in Margaret BAGLEY, Warden, I, his complaint—specifically, of Article Respondent-Appellee. Sections and 14. The district court squarely 04-4138, 04-4185, below never addressed Plaintiffs Nos. 04-4243. state appeal, constitutional claims. On Appeals, United States Court of merely Plaintiff argues that if this Court Sixth Circuit. finds Plaintiff stated a claim for violations Constitution, of the U.S. then the “state Argued: 2007. Jan. law claims” should be reinstated on re July Decided and Filed: (Pl.’s 28) I, Br. at mand. Article Section 11 of the Ohio interpreted Constitution is lockstep with the First Amendment Mall, Eastwood
the U.S. Constitution. Slanco,
Inc. v. 68 Ohio St.3d (1994). Additionally,
N.E.2d I,
courts have read Article Section protect
the Ohio Constitution “to *4 Stebbins,
ARGUED: David C. Colum- bus, Ohio, for Appellant. Daniel R. Ranke, General, Attorney Office of the Cleveland, Ohio, Appеllee. for ON Stebbins, Columbus, BRIEF: David C. Ohio, Benza, Cleveland, Ohio, Michael J. Appellant. Ranke, for Daniel R. Office General, Attorney Cleveland, Ohio, for Appellee. DAUGHTREY, CLAY,
Before: and GILMAN, Judges. Circuit J., GILMAN, delivered the opinion of court, DAUGHTREY, J., in which CLAY, joined. 871-80), (pp. J. delivered a separate opinion in concurring part and dissenting part.
OPINION GILMAN, RONALD LEE Circuit Judge.
Brett X. Hartman was convicted in an state court of aggravated murder and was sentenced to exhausting death. After they talked. Snipes on the cheek remedies, petition filed a he his state-court Thereafter, Snipes defendant and left court. district corpus federal habeas they apartment went to her bar petition, denied his court The district (COA) across the street. appealability a certificate issued This Hartman’s claims. one of regarding a.m., Morris, an ac- Around 3:00 David to the COA. three more claims added Snipes, of defendant and left quaintance below, we AF- forth the reasons set For Between, Inn another Akron bar. court. of the district judgment FIRM past Snipes’s apartment walking While home, Morris observed way on his I. BACKGROUND through up- Snipes and defendant apartment. window of her Morris stairs background Factual A. Snipes yelling at de- testified from his con- appeal Hartman’s direct touching stuff that was fendant about viction, set forth Supreme Court the Ohio closed the window not his. Defendant the relevant summary of following “obviously very wasn’t she blinds facts: about it” because she “scolded” happy Snipes at a bar met Winda Defendant him the blinds. reopened *5 Akron, Ohio, during 1997. sometime afternoon, p.m., at around 4:30 That in sexual they engaged Subsequently, crossing a Snipes was street observed Dur- occasions. intercourse on several nearby a business district. She was September the late afternoon ing again. never seen alive Snipes’s apart- went to defendant by ty- brutally day murdered her had the off from work on ment and Defendant bed, stabbing According her one to Richard Rus- September her to the Between, times, sell, slitting her at the Inn thirty-eight a bartender hundred at around throat, her hands. entered the bar cutting and off defendant hy- nervous and p.m. appeared and 8:00 aggravated was convicted Defendant Thereafter, excessively. talked per, and murder, tampering kidnapping, in and out of the bar five defendant was evidence, death. and sentenced to p.m. 9:00 and 10:30 to six times between guilt, the to establish defendant’s order defendant introduced statements state police on contacted Defendant first and to a fellow police made to the had anonymous 9 with a September series jail, testimony of a co- inmate in and the calls, admitted to. he later which mentioned cut- that defendant worker reported p.m. call at 9:59 His first 911 way a to a victim’s hands as ting off body. The a mutilated the location of Simpson in the O.J. eliminate evidence ad- Snipes’s to dispatched officers police introduced as evi- The state also case. build- Snipes’s apartment dress entered bloody tee-shirt dence defendant’s around, after but left ing and checked from defen- watch recovered Snipes’s Meanwhile, nothing unusual. finding testimony apartment, and forensic dant’s unit’s arriv- police viewed the defendant to the murder. linking defendant hiding while behind departure al and then Defendant tree across the street. case State’s telling police call made another 911 building and 9, 1997, apartment to the to return September 2:20 a.m. on Around on the further instructions provided the Bucket Snipes met at defendant body’s location. kissed bar. Defendant Shop, an Akron responding police September Akron officers At 12:15 a.m. on defen- Snipes’s apart- call entered unlocked spoke dant Joseph Detective Urbank naked, her ment and found mutilated apartment in front of the building. body lying on the bedroom floor. began Defendant their conversation bed, Snipes’s leg draped across the announcing that “he had sex with the pair pantyhose tied her ankle to the night Moreover, victim the before.” plastic leg, bed and a white chair was on defendant said he did know her top body. Snipes’s of her hands were “only name but knew her psycho as сut off and have never been found. everybody bitch and that that if knew p.m., Around 10:45 defendant was you got horny you drunk and were Morris, Inn police Between with while her, went to go you see went to go see units were across the street investigat- psycho bitch.” Morris, ing Snipes’s murder. having Defendant also told Urbank that he murdered, Snipes learned that had been went to suggested Snipes’s apartment a.m. defendant that he should 2:30 police, talk to the since Morris had ob- September on and “she started danc- served at Snipes’s apartment defendant ing a little bit.” He “lifted her onto the previous evening. bed, her,” undressed “they started Shortly midnight, ap- before defendant having vaginal intercourse.” Defendant proached Gregory Detective Harrison disappointed said he was because while he was at a mobile crime lab Snipes intercourse, refused to anal have parked Snipes’s apartment. outside De- apartment and he left her around 3:30 up said, fendant walked Harrison and However, a.m. defendant claimed that there,” pretty “I hear it’s bad in he did not know anything about *6 if asked Harrison had “ever any- seen murder until the bartender at the Inn thing gruesome.” so Later that eve- Between him told about it on the eve- ning, approached defendant Harrison a ning of September 9. second time and spontaneously men- Around 6:00 a.m. September po- on whore, tioned that Snipes was a “that lot,” slept she a lice took around and that “he had defendant to the police Akron * * * slept with her station, and he had even where he was interviewed slept night with her the before at 3:00.” Lawson and During Urbank. his inter- In their final contact at around 3:00 view, defendant denied making the 911 a.m., defendant was mumbling “kind of calls, and denied hiding behind a tree to himself’ and Harrison heard defen- Snipes’s Then, across from apartment. say whore, dant that “she was a she was defendant changed part a story his whore, big got a she what she deserved.” hiding and admitted a behind tree near a.m., Between p.m. 11:30 and 12:15 de- the murder scene. fendant also approached Akron Police Following September police inter- Lt. John A. Lawson near the murder view, police searched defendant’s and, said, scene abruptly “rather ‘You’re apartment with his consent. police going my to find my semen her and ” seized bloody defendant’s tee-shirt from prints over there.’ When Lawson asked bed, underneath the headboard of his a why, defendant said he “had been with jeans, pair and his her earlier that boots. Police morning, morning 9th,” a and that he had had found knife on his Snipes’s sex with dresser and her. wristwatch on defendant’s bed stand. bloody finger- sta- Police found defendant’s police to the defendant Police took leg on the of the white chair apartment. print search of his after the tion to the Summit awaiting draped Snipes’s body, police transfer over While Jail, De- approached defendant County finger- found another of defendant’s out, R. and blurted Gilbride tective John Snipes’s bedspread. on "An ex- prints police” called the the one that “I was long that the linear pert witness testified body.” that found the the one and “I’m on defendant’s tee- patterns blood found been he had told Gilbride were Snipes’s bedspread ap- Defendant shirt and Snipes since Feb- sexually Further, involved with plied by long-bladed a knife. intercourse and had sexual ruary patterns the blood found on defendant’s early morning during the Snipes applied were the tee-shirt tee-shirt while 9. Defendant stated September hours flat, and not while defendant lying was psycho bitch having sex the that “after wearing it. stating apartment of the
threw him out trial, At introduced a set prosecution coming over.” boyfriend was that her knives, including a meat of defendant’s a.m. and returned He left around 3:30 cleaver, knife, sharpener a and a knife apartment. his own kept Quaker defendant Gilbride, defendant said According to Hilton, he worked as a Square where Septem- on slept p.m. until 6:00 that he chef. to the Inn and then took the bus ber Hoffman, Hilton co-work- Christopher p.m. around 7:30 Gilbride Between bar er, defendant testified that he talked to Inn going while into the testified that August Simpson the O.J. about bar, light defendant noticed Between Hoffman, defendant According trial. and decided Snipes’s apartment on in disposed have Simpson said that could Gilbride, defen- According to her. visit by cutting off the against him entry apartment to the gained dant eliminating “fibers victim’s hands and an unlocked door and claimed through might be found and hair and skin body in her found her dead that he fingernails.” on the un- said that he bedroom. Defendant inmate at the Bryan Tyson, a fellow body her off successfully pick tried to Jail, that dur- County testified Summit floor, had that her hands noticed *7 conversation, jailhouse defendant ing a off, Think- “freaked out.” cut and been Ac- Snipes. he had killed admitted that this,” going get “I’m busted Tyson, defendant said cording to blood off his washed her defendant her, something in himself on pushed “he clothes, wiping down and tried hands him, hitting snapped, his mind she was touched, removed evi- everything he regret- things did he temper, he lost his apartment, him to her and linking dence Then, killed said ted, defendant her.” home. went it like a to make look that he had “tried thirty- one hundred Snipes was stabbed cutting Snipes’s off burglary,” admitted in- Bruising on her ankles eight times. hacksaw, hands, and a and mentioned she was that she was alive when dicated “ without ‘Don’tleave home jokingly said Additionally, sperm was tied to the bed. it,’ card commercial.” like the credit med- vagina and anus. The found her Snipes had examiner concluded ical Defense case throat strangulation and a slit died from O’Neill, of de- acquaintance an Jessica early eve- in the late afternoon or either fendant, with defen- phone talked on the 9. ning September 9. Phone records September dant on Defendant testified on his own behalf. that O’Neill called defendant’s having Snipes showed He admitted sex with sev- spoke with him at 3:12 apartment past year eral times over the and during p.m. p.m. early morning and 4:50 She also claimed September hours of phone she talked with defendant on the Snipes’s apartment. when he was at Af- p.m. sex, around 7:00 having 6:30 or ter defendant returned to his apartment a.m., slept about 3:30 until The defense also introduced p.m., aрartment 6:15 left his p.m., 7:35 suspect, an alternative suggesting Jeff and returned to the Inn Between bar. lived across the hall- Nichols. Nichols way Snipes’s apartment from until he Between, reaching Before Inn defen- apartment Sep- moved out of his around dant noticed that Snipes’s bathroom Nichols as a tember worked light on apartment, was at her and he handyman apartment building for the decided to visit her to see if he could keys and had to the landlord’s access “get Snipes’s laid.” Defendant entered apartments. other apartment through an unlocked door and found body her mutilated in the Barnes, In January Jeffrey “get bedroom. Defendant tried to her Snipes, visiting Snipes’s friend * * * up put her on the bed to see apartment when Nichols came to her if anything there was else I help could Barnes, According door. Nichols with.” “got up right to her door and then he said, throat, up,’ ‘Slit the bitch’s cut her Defendant noticing “freaked out” after called her slut and all other kind Snipes had no hands and realized he vulgar names.” reported Barnes get “could a lot of trouble” if he was police upon hearing
incident to the about placed Thus, at the scene. he washed Snipes’s murder. hands, her off wiped blood his down the an evening prior September On handles, cupboards, chair anything Zarski, a neighbor Linda touched, might else he gathered have Snipes’s apartment building, heard whatever items he could find that be- Snipes pounding on Nichols’s door and him, longed to and left Snipes’s apart- screaming that she wanted her shirt. ment. Defendant “ran home” and threw Snipes’s apartment the items taken from On another prior occasion to the mur- nearby dumpster. into a Upon arriving der, Kinebrew, Linda a neighbor living home, changed defendant his shoes and apartment, at the argu- “heard [Nichols] bloody hid the tee-shirt so that moth- ing, telling [Snipes] to let him in and she er would not find it. wouldn’t.” Thereafter, Parcell, defendant hurried back to mother, Carol defendant’s pro- *8 the Inn Between bar and started drink- an vided alibi. Defendant lived at his “semi-intoxicated,” ing. When he was apartment, mother’s and Parcell claimed anonymous defendant made the 911 that when she came calls September home on reporting body, the location of p.m., Snipes’s 9 at 6:15 her son was sleeping Parcell, According standing his bedroom. to admitted behind a tree watch- de- up police fendant woke arrive at p.m., got ready, Snipes’s apart- 7:00 ment, apartment left the p.m., approached police 7:30 and re- and later apartment report turned to the around that apart- 8:15 he had been at the p.m. previous evening. ment the
355 timely notifi- serted that he did receive tak- photographs introduced Defendant postconviction petition that his had following his arrest cation body his naked en of denied, appeal and he filed his inju- and been that the absence of bruises show receiving notifica- diligently a cut on after belated explained Defendant ries. Finding tion. to be without while he excuse had occurred at work elbow his merit, Appeals of sua Ohio Court moving crates. was appeal as un- sponte dismissed Hartman’s talking with acknowledged Defendant timely. Supreme The Ohio Court then Simpson the O.J. Hoffman about Chris his jurisdiction postconvic- hear declined any- discussing but did not recall case It denied Hartman’s petition. tion also a victim’s hands. cutting off thing about subsequent reopen motion to was in- Tyson as a fellow knew Defendant reasons, based, on the among other claim jailhouse making any mate but denied constitutionally his counsel had been Snipes. that he murdered admissions during penalty phase of his ineffective trial. result Trial exhausting postconviction state After his defendant on grand The indicted remedies, federal habe- Hartman initiated murder, in- aggravated two counts proceedings pursuant 28 corpus as prior of murder with cluding one count January again § U.S.C. 2254 one count of design and calculation asserting grounds 11 for relief. He also capital specification A felony murder. testing necessary that DNA was argued during kidnapping to murder relating performed during none had because been felony murder count. in the included Although he admit- the course of his trial. kidnapping charged also with He was Snipes having vaginal ted intercourse tampering with evidence. murder, he morning on the of the denied all guilty of jury found defendant with her. having anal intercourse He death for and recommended offenses testing DNA on therefore asserted that trial court sen- Snipes’s murder. The samples taken from the two the semen for kid- years to ten defendant tenced him. The exculpate would district cavities tampering with years five for napping, testing. the DNA funds for granted evidence, aggravated and death for Hartman, ulti- Unfortunately the tests Snipes. murder of samples matched mately showed both Hartman, St.3d
State
his DNA.
(2001).
The Ohio
1158-61
N.E.2d
2004, the district court
August
Hartman’s con-
Court affirmed
Supreme
§
petition
Hartman’s
its
denied
Id. at 1183.
death
sentence.
viction
ap-
a certificate
entirety,
granted
history
Subsequent case
B.
(COA)
on the issue whether
pealability
supported
Hartman’s
sufficient
Court decided
Supreme
the Ohio
After
sepa-
kidnapping capital specification
he initiated state
appeal,
direct
Hartman’s
Hartman v.
kidnapping
rate
conviction.
by setting forth
proceedings
postconviction
(N.D.Ohio
F.Supp.2d 632
Bagley,
trial
The state
grounds
for relief.
2004).
expanded Hartman’s
This court
however,
to all
court,
petition
as
denied
of whether
by adding
issues
appeal
an
from COA
Hartman
of them.
filed
*9
as-
provided ineffective
counsel
petition, Hartman’s
postconviction
his
denial of
phase, whether
at the mitigation
sistance
deadline. To ex-
fifing
he missed the
improper “acquittal-
judge gave
default,
as-
the trial
Hartman
procedural
cuse
instructions,
and whether cer-
simply
first”
not
erroneous or incorrect.
Id. at
409-11,
tain of
statements made
prosecutor’s
Findings
II. ANALYSIS review, The AEDPA standard of legal frame- A. Standard of review however, applies only “any claim that work adjudicated on the merits in State proceedings.” Motley, Danner v. “In corpus appeal, a habeas we review a (6th Cir.2006). 448 F.3d Conse novo, legal district court’s conclusions de quently, where a state court previ has not but will not set aside factual findings its ously claim, ruled on the merits of a we they clearly unless are Dyer erroneous.” apply the de novo standard of review. Id. Bowlen, (6th 465 F.3d 283-84 Cir. 2006). reviewing The standard for B. Ineffective assistance of counsel determinations, by contrast,
state-court is during penalty phase governed by the Antiterrorism and Effec Penalty (AEDPA), tive Death Act codified The first COA issue is whether Hart- 2254(d). § at 28 U.S.C. Under the AED- man’s defense counsel rendered ineffective standard, PA a federal court during penalty phase assistance of the may grant a writ of to a habeas trial. Hartman’s claim encompasses his petitioner custody in state respect alleged fully counsel’s failure to either in- any adjudicated claim on the merits in vestigate adequately present or mitigating (1) state court unless the state court’s evidence. This claim fully adjudi- was not to, contrary decision was or involved an courts, cated on the merits the Ohio so of, application clearly unreasonable es- we must also examine whether it has been law, tablished Federal as determined procedurally defaulted. (2) ... Supreme Court or the state
court’s decision was based on an unrea- rulings 1. Ohio court sonable determination of the facts in present Hartman did not his ineffective- light presented of the evidence in the appeal. assistance claim on direct fully He State court proceedings. presented claim court, to the state trial Johnson, Benge however, during postconviction pro- Cir.2007) omitted). (quotation marks ceedings. The trial court determined that
A
judicata
state-court decision is consid
res
barred
claim
because
“contrary
ered
... clearly
established Hartman had failed to raise it оn direct
different,
federal
if it
“diametrically
law”
appeal and “there
proffer
was no
of evi-
opposite
nature,
in character or
or mutual
dence outside the record.” To the con-
ly opposed.”
Taylor,
trary,
Williams v.
529 U.S.
our review of the record indicates
362, 405,
120 S.Ct.
ABA standards indeed recommend obtain- alternatively Hartman argues records, government such Hartman ar- that he is entitled to a remand to the that, jury, if to the gues presented *14 evidentiary hearing district court for an simply records would have “corroborated regarding allegedly whether his counsel’s actually testimony pre- and detailed” the penalty in phase ineffective assistance the Bagley, sented. Dickerson v. 453 F.3d See trial him. prejudiced requested of the He Cir.2006) (6th (discussing the 694 in evidentiary hearing an his initial state- investiga- guidelines mitigation ABA postconviction petition and before tions). below, the district court but both courts typify Hartman’s inef allegations
These
request. Assuming
denied his
that he
distinguish
claim and
it
fective-assistance
2254(e)(2) bar,
§
avoids the 28
we
U.S.C.
in which habeas relief has
from the cases
nonetheless conclude that Hartman has
Smith,
See,
v.
granted.
e.g., Wiggins
been
facts
an
alleged
sufficient
to warrant
510, 515,
S.Ct.
156
539 U.S.
evidentiary hearing on this issue. The
(2003) (holding that
L.Ed.2d 471
ineffec
that,
recently explained
Supreme Court
in
tive assistance occurred where counsel
deciding
grant
whether to
an eviden
“[i]n
troduced “no evidence of [the defendant’s]
tiary hearing, a federal court must consid
history”
despite existing
life
hearing
could enable an
er whether such
abuse);
brutal
childhood
Hamblin
factual
applicant
prove
petition’s
Mitchell,
482, 485,
Cir.
which,
true,
if
would entitle the
allegations,
2003)
(holding
counsel’s assistance
relief.” Schriro
applicant to federal habeas
in
-
nothing”
was ineffective because he “did
-,
Landrigan,
U.S.
S.Ct.
present
jury
and “did not
preparation
(2007).
1933, 1940,
during
penalty phase
of the trial.
Supreme
ruling
Court’s
jury
“acquit
C.
first”
instruction
claim,
In evaluating this
the Ohio Su-
second
Hartman’s
COA issue is whether
that,
preme Court
“[ejontrary
determined
erroneously
the trial court
instructed the
contention,
to the defendant’s
the trial
jury
they
unanimously
must first
“ac-
court never
jury
instructed the
that it had
quit”
penalty
Hartman of the death
before
to unanimously reject
penalty
the death
considering possible life sentences. Prior
before it could consider a life sentence.”
jury
to the
its
beginning
deliberation
the Hartman,
If all 12 jury members of the find were unanimously unable to agree to rec- proof beyond death, a reasonable doubt that they ommend shall consider life aggravating sentences,” ... circumstances are and concluded that because outweigh sufficient to the mitigating fac- ... implicitly “[t]he advised that tors, you then must finding single juror return such prevent could the death to the penalty,” court.... proper. instruction was Id. *15 I you, law, instruct aas matter of that if
you
finding,
make such a
you
ruling
then
have
District court’s
no choice and must make a recommen-
The district court addressed this claim
dation to the court that the sentence of by comparing
jury
the state trial court’s
Defendant,
death be imposed on the
instructions
those deemed constitution
Brett X. Hartman.
ally
Mitchell,
sound in Scott v.
209 F.3d
(6th Cir.2000).
854
Characterizing the in
hand,
On the other
if after considering
in
structions
Scott
“virtually
as
identical”
all of the
at
evidence raised
trial which
here,
to the
given
instructions
the district
is
you,
relevant to the issues before
the
court concluded that
the instructions in
evidence,
testimony, other
argu-
and the
question passed constitutional muster.
counsel, you
ments of
cannot unani- Hartman,
F.Supp.2d
338
at 671. Further
mously agree that
the State of Ohio more,
Baker,
the court cited Roe v.
316
proved beyond a reasonable
that
doubt
(6th
Cir.2002),
F.3d
563
as another
aggravating circumstances,
thе
as I
case where this court “found no constitu
them,
have defined
outweigh the miti-
tional violation when the sentencing court
factors,
gating
you’ll
then
your
return
failed to
jury
instruct the
unanimity
that
reflecting your
recommendation
deci-
required
was not
jury
before the
could
sion.
Hartman,
consider a life sentence.”
333
event, you
In this
will then proceed to F.Supp.2d at 671. The district court not
determine which of the
possible
three
ed, however, that
opinion
this court’s
imprisonment
life
impose.
sentences to
Mitchell,
Davis v.
363 however, jury unanimously agree must giv- the to the instructions stantially identical” whether it Nevertheless, imposed, sentence on the final here. trial court by en imprisonment. a term of life be death or that it was court concluded the district Thus, may though jury id. even and See of Scott prior precedent bound unanimously “acquit” a be required an- not cannot overrule panel “a Roe because considering life of death before Hartman, F.Supp.2d at defendant 333 panel.” other sentences, requires jury that the law n. 16. 671 sentenc- that their ultimate
be instructed
review
3. Our
be unanimous.
must
decision
Supreme
that the Ohio
argues
Hartman
giv-
urges that the
Hartman
instructions
war-
claim does not
ruling on his
Court’s
case, although
explicitly
not
er-
en in this
AEDPA because
under
rant deference
roneous,
subject to an
ambiguous and
were
cursory
pre-
as
so
ruling was
Court’s
The
interpretation.
Su-
unconstitutional
reasonably ap-
it
review of whether
clude
that, in evaluating
held
preme Court has
not
Warden does
plied federal law.
inquiry
argument,
an
the appropriate
such
Hart-
Although
argument.
address this
“whether there is
reasonable
centers on
Supreme
the Ohio
man is correct
jury
applied
likelihood
has
any federal
law
to cite
failed
Court
in an unconstitu-
challenged instruction”
determination,
the Court
of its
support
Boyde
Californiа,
manner.
tional
le-
governing
articulated
nevertheless
370, 380,
108 L.Ed.2d
110 S.Ct.
U.S.
to evaluate
applied
that it
gal standard
(1990)
the “reasonable likeli-
(applying
Furthermore,
in this case.
instructions
an
to determine
hood” examination
extensively on
own
its
the Court relied
jury instruction was
ambiguous
allegedly
Brooks, 75 Ohio
prior holding
State
unconstitutional).
urges that
Hartman
(1996), which
St.3d
N.E.2d
likelihood
reasonable
there
cited
the federal law
directly address
did
in-
court’s
misinterpreted the trial
Danner,
see
by Hartman. But
unanimity
every
requiring
as
structions
of the [applicable
(“Any consideration
deliberation, including
ques-
stage of
*16
the
case
within
state
federal
contained
law]
out-
mitigating factors
the
tion of whether
courts
is
the state
relied
upon
law
which
aggravating
the
circumstances.
weighed
the [federal-law]
consider
too attenuated to
erred
court
that the district
We believe
on mer-
adjudicated
the
to have
claim
been
given
that the instructions
determining
in
its”).
not resolve this
we need
Ultimately,
substantially identical
in this
were
case
because,
reviewing Hartman’s
issue
even
(Roe
in Davis
Scott.
those evaluated
novo,
the Ohio
agree
we
de
claim
instructions
specifically
not
address
did
in-
that
the
conclusion
Supreme Court’s
here.) The
at
to those
issue
analogous
improper.
structions were
and, more re
cases
in those
instructions
Mitchell,
The state trial court in
... proved
Davis added:
the State
is, you
beyond a
“[T]hat
must find that the
reasonable
aggra-
State has
doubt
prove beyond
vating
failed to
a reasonable
circumstances
...
outweigh
doubt
factors,
aggravating
mitigating
you’ll
then
your
circumstances which
return
the defendant
recommendation
guilty
reflecting your
was found
of commit-
decision.
event,
ting outweigh
In this
mitigating
you
factors.”
will then proceed
omitted).
F.3d at 685
determine
(emphasis
possible
which
the three
Mapes
life
Coyle,
Cir.1999),
imprisonment
The verdict *18 man’s trial differed from those used D. Prosecutorial misconduct death-penalty cases that this other recent that issue asserts the death- Hartman’s third COA Although court has reviewed. during same, alleged implication prosecutor’s the the the sentence verdict forms were the of the trial that penalty phase the provided life-sentence verdict forms as an could be considered find, by proof ... murder itself jury “we the do not aggravating circumstance amounted to argues Hartman prosecutor’s that the ref- prosecutorial misconduct and violated erences pertaining to facts to the murder rights. Hartman’s constitutional He spe- itself were improper in the course of dis- cifically highlights four alleged instances of cussing aggravating circumstances. during penalty misconduct phase in Supreme 1. ruling Court’s prosecutor which the stated: 1. kidnapping is certainly the fact The Ohio Supreme Court considered Snipes only Winda was restrained the third alleged statement of prose-
during
aggravated
murder. She
cutorial misconduct
that Hartman now
kidnapping
Hartman,
was tortured and the
highlights.
en-
cumstance I you and want to think crime post-mortem and the mutilation of it, about take each one—everything body.” Hartman, 333 F.Supp.2d at that Attorney Bandy went over in 664 & n. 13. Characterizing the statement regard to the kidnapping: Winda as “a passing remark” and “limited in na- Snipes restrained, ture,” however, she was ter- the court concluded that it rorized, wounds, over 130 stab her did not render the penalty-phase proceed- slit, throat was her hands were re- ing “fundamentally unfair.” Id. at 664. moved, think about that aggravating Moreover, the district court determined circumstance. that the trial court properly instructed the *19 process of to the level of a due violation. circumstance aggravating the jury as to relief, Hartman order to warrant habeas had failed that Hartman kidnapping, must show that jury that the presumption the to overcome Id. instruction. prosecutor the court’s the so in- would follow the statements of trial with unfairness as to
fected the review 3. Our resulting conviction a denial make the deny In order to due process. of due correctly noted court The district pro- the misconduct must be so process, prosecutorial his preserved Hartman that persistent per- it nounced and by raising it claim for misconduct review atmosphere the of the tri- meates entire the Court. Of Supreme the Ohio before gross probably prejudice as al or so statements Hart allegedly improper four the defendant. to, the Ohio agree we with points man Jones, court that and the district 238 F.3d Supreme Simpson Court Cir.2000) (citations im quotation fourth statements were marks the third and omitted). respect below with explained As proper. claim, however, Hartman’s fourth COA question The two statements in do restraint, “torture,” and “ter alleged Moreover, description. fit as both the to estab Snipes are central
rorizing]” Supreme and the district court Court kidnap the necessary element of lishing a noted, properly trial instructed the that Hartman’s restraint in this case: ping only kidnapping as jury to consider increase Snipes led to substantial the mur aggravating an circumstance of harm to which she was physical the risk of jury presume that the followed der. We that associated with exposed separate from an ‘over these instructions “unless there is first and prosecutor’s her murder. they ig were whelming probability’ simply detail this seri second statements Scott, (quot nored.” See from that associated separate ous harm Marsh, ing Richardson v. 481 U.S. Snipes the murder to which was sub (1987)). 208, 107 L.Ed.2d 176 S.Ct. Such jected by virtue of her restraint. us, convicted In the case before statutory com harm” is physical “serious separate kidnapping of- Hartman of the aggravating the sole ponent kidnapping, fense, mitigation evidence was rel- and the charged against Hartman. circumstance substantially atively weak. These factors (defin § Ann. 2905.01 See Ohio Rev.Code attempt to rebut the undermine Hartman’s asportation or re ing kidnapping as jury obeyed the presumption of, purpose of another straint weigh only the kid- court’s instruction to ... things, “terrorizing], or among other mitigat- against circumstance napping physical harm on the inflicting] serious Supreme Court’s factors. The Ohio victim”). reason, prosecutor’s For this closing ar- prosecutor’s that the conclusion statements were not mis first and second rights, Hartman’s gument did not violate leading. therefore, contrary or an unrea- was not clearly established application of sonable contrast, By the third and fourth law. federal encouraged the improperly statements account the means of jury tо take into Sufficiency kidnapping evi- E. throat—and killing—the slitting Snipes’ dence Snipes’s mutilation of post-mortem final COA issue Hartman’s fourth and circumstances. But body aggravating as sup- insufficient do not rise asserts generally isolated remarks such *20 ported jury’s the ie., conclusion that he napping, restraint, was the completed was guilty kidnapping capital of the specifica- prior to her murder and that the restraint separate tion and kidnapping charge. merely was not incidental to her murder.” Specifically, he claims that the evidence Id.
was insufficient to establish either Justice Pfeifer dissented on this issue. standard elements of kidnapping or the that, opined He although possible is “[i]t additional that kidnapping element was believe that a kidnapping occurred,” the by motivated an animus separate from that record did not establish the kidnapping which motivated the murder. This addi- beyond a reasonable doubt because “the tional element required was present alleged kidnapping reality was in a series case both under Ohio law and under the of actions were that incidental the crime Eighth Amendment that principle ag- “an (Pfeifer, murder.” Id. at 1183 J. dis- gravating circumstance must genuinely senting). narrow persons the class of eligible for the penalty death and must reasonably justify 2. ruling District court’s imposition of a more severe sentence The district court deemed Hartman’s on the compared defendant to others found kidnapping claim to be his argument “best guilty of murder.” See v. Stephens, Zant relief,” Hartman, habeas 862, 877, U.S. 103 S.Ct. F.Supp.2d at but ultimately concluded (1983). L.Ed.2d 235 If required to be juror “[a] reasonable could well find by motivated a separate animus from the that Hartman’s restraint of Snipes Winda itself, murder a capital kidnapping specifi- motivated different animus than cation would presumptively genuine- fail to the animus motivating the murder.” Id. at ly narrow the class of murder defendants Reviewing 669. law, Ohio the district eligible for the death penalty. See id. questions concluded two were significant for determining the existence of Supremе ruling Court’s “(1) separate animus: was the restraint The Ohio Supreme Court determined prolonged, secretive, the confinement or prosecutor had proof introduced the movement substantial signif- to show a that one of Snipes’s legs had been tied to independent icance offense, of the other bed, and had shown that this restraint (2) asportation did the or restraint of was effected while she was alive. Hart- subject the victim the victim to a substan- man, 754 N.E.2d 1162. Regarding the tial increase in risk of harm separate and separate requirement, animus the Court apart from that involved in the underlying stated that crime?” Id. the test to determine whether the kid- analysis district court’s focused on napping was committed separate with a prong second in determining that the animus as to support so a separate con- tying of Snipes’s leg to the exposed bed
viction is whether the or restraint move- her to a substantial increase in the risk of ment of the victim merely incidental harm separate from that involved separate to a or, crime underlying in- First, murder. the court that tying noted stead, whether it has a significance inde- Snipes’s leg “substantially increased her pendent other offense. risk of harm of rape.” assault and Id. omitted). (quotation Id. marks Applying Second, the court held that the restraint test, the Court question concluded: “The evi- “only marginally increased her dence therefore shows Snipes’s kid- risk of the type of murder she suffered'—(cid:127) *21 separate kidnapping that was the commit The court throat.” a slit and strangulation the under- motivating from apart and conclusion, the part, on this latter based lying murder. Snipes died testimony that coroner’s slit. Id. Were throat was her after quickly require “separate animus” The facilitate to intended restraint the does not demand Ohio law ment under reasoned, Hart- murder, the of form kidnap an animus to possess a defendant upper Snipes’s restrained have man would other to commit an animus exclusive of the forensic light inwell as extremities instead, requires that the crimes; simply it struggled demonstrating that she evidence See separately. exist animus kidnapping n. 15. Further- at 669 Id. her arms. with 126, 397 Ohio St.2d Logan, 60 State v. that “Snipes’ more, determined the court (1979) the 1345, (framing 1351-52 N.E.2d a feet, tall 2 inches with size, 5 only small determining the existence issue primary that bind- suggests pounds, weight of 128 wheth kidnapping animus as separate of a necessary neither bed was her to the the vic movement of or restraint er “the likely associat- murder nor carry out the to the independent of “significance tim” has (citation Id. at 669 the murder.” ed with offense”). of substantial Evidence other omitted). victim, example, can the for movement requirement satisfy separate-animus the review 3. Our have ultimate may perpetrator if the even for this claim preserved Hartman crimes additional to commit ly intended it in his direct by raising habeas review Jells, 53 See State v. the victim. against result, Supreme As a the appeal. (1990) 464, 22, 475 559 N.E.2d Ohio St.3d the evidence determination Court’s sep a supported the evidence (finding that kidnapping the support to was sufficient where defen animus kidnapping arate kidnap separate and specification capital forcing her and by a victim kidnapped dant unless it is upheld must be conviction ping off, and driving a into van her son to, application unreasonable contrary anor death beating her to by her then murdered federal law. Evi of, clearly established or drive of the during the course either if, when constitutionally sufficient dence is Similarly, a junkyard). at a arriving after favorable to most light in the viewed where the been found animus has separate of fact trier “any rational government, to order the victim in restrains defendant elements the essential could have found sepa harm inflicting substantial facilitate doubt.” beyond a reasonable crime that associated apart from rate and 443 U.S. Virginia, Jackson a (such torturing or terrorizing as murder (1979) (empha 61 L.Ed.2d S.Ct. may have victim), if defendant even original). insis murder victim. ultimately intended 4, 564 Seiber, Ohio St.3d the See State Supreme Court As the Ohio (1990) (finding concluded, N.E.2d evidence that district court separate animus supported forcibly ty- evidence Snipes Hartman restrained substantially in on a kidnapping based bed for some legs to the of her ing one the defendant where of harm creased risk alive sufficed while she of time was period pa bar various and terrorized kid- threatened elements standard to establish the one finally murdering trons before turn to the we Consequently, napping. them). in both Jells kidnapping was of whether central issue to the merely incidental was Seiber support find- constitutionally sufficient found instead, murder; restraint was an animus possessed ing that Hartman separate purpose to have a that genuinely wounds “separate amounted to harm distinguished it from typically the restraint apart” from that associated with the mur- inherent in the crime of murder. der. We believe that the district court’s focus case, present Snipes Snipes’s both on diminutive compared size
found with one leg
by pantyhose
bound
*22
with Hartman’s and on
rapidity
of her
gag
the bed and a
over her mouth. Ac
death following the slitting of her throat
cording
examiner,
to the medical
Snipes
resolve the debate in favor of the Ohio
had been bound while she
still
was
alive.
Supreme
majority
Court’s
opinion. See
that,
medical
report
examiner’s
stated
Hartman,
The disagreement among justices thus centered on inflicting whether beatings In addition to the issues listed in the and numerous patently COA, nonlethal stab Hartman attempts to raise in this procedural to excuse рrejudice has shown ineffective allegedly issue of appeal Coleman this claim. See default counsel. habeas his former assistance 722, 750, 111 S.Ct. 501 U.S. Thompson, regard- a COA sought previously Hartman (a (1991) petitioner L.Ed.2d 640 district court claim, but both ing this to obtain prejudice must show cause This request. court denied and this de- procedurally relief on a habeas federal to rehear petition denied also claim); Joseph Coyle, faulted Be- banc. request en COA particular Cir.2006) (“[Establishing 441, 462-63 appeal for granted COA cause the establishes above, prejudice likewise and Strickland forth set only the issues covers preju- cause and purposes prejudice determined previously we have because dice.”). acquittal-first matter of On the his former regarding claim that Hartman’s instructions, I also dissent on merit, we decline is without counsel habeas *23 deci- Court’s Supreme that the Ohio belief here. address it to further clearly established contrary to sion runs on instruc- precedent Supreme Court III. CONCLUSION I therefore cases. would capital in tions above, forth set of the reasons For all re- and death sentence Petitioner’s vacate of the district judgment AFFIRM we trial. phase sentencing for a mand new court. Peti- I review majority, would Like the de claim assistance ineffective in tioner’s concurring part CLAY, Judge, Circuit courts failed state because the Ohio novo dissenting part. in and the merits. See this claim on adjudicate to II.B and Parts exception of With 510, 528-31, Smith, 539 U.S. v. Wiggins majority’s II.C, in well-reasoned join I (2003); 2527, 156 L.Ed.2d 123 S.Ct. claim to Petitioner’s respect With opinion. 721, Smith, 726-27 v. McKenzie at the assistance counsel of ineffective Carter, 375 (6th Cir.2003); Clinkscale majori- I concur sentencing phase, Cir.2004). (6th Petitioner 430, 436 F.3d and its procedural default analysis of ty’s “fail[ed] counsel trial contends established Petitioner conclusion and background investigate his thoroughly default. procedural excuse the cause to mitigat- potential history for health mental from the However, dissent respectfully I suffi- evidence,” present failed to and as it denies Pe- opinion inаsmuch majority (Pet.’s atBr. mitigation. evidence in cient of counsel assistance ineffective titioner’s novo, I 13)1 de Reviewing this claim 11, view, my Petition- claim on merits. relief. habeas grant Petitioner would ineffectively at the performed er’s counsel Vacate, Petition to to his appendix In an violating thereby Peti- sentencing phase, May 1998 evalua- attached Petitioner Right to Coun- Amendment Sixth tioner’s by a clinical conducted tion Petitioner Petitioner I believe Correspondingly, sel. conducting a "by suf- ineffectively not formed challenges effec- counsel’s also 1. Petitioner mitigating factors investigation into ficient in his conceded as counsel inasmuch tiveness dur- significant evidence presenting they not nothing and “there was statement opening (Order (Aug. crime,” at 2 sentencing phase.” ing the the blame for to reduce could do 10, 2005)) Accordingly, of ineffective claims prosecutor’s object to the failed to counsel bases are alternative on these assistance failed arguments, and counsel improper Mitchell, 329 Bugh v. See this Court. before victim im- use of certain object the state’s Cir.2003) (6th Val- (citing However, 502 n. granted F.3d this Court pact evidence. Francis, 270 F.3d scope, entine limited a more COA Petitioner’s on Cir.2001)). per- counsel question whether certifying the psychologist, alcohol, and forensic drugs James W. Sid- and family’s his history dall, Ph.D., wherein Dr. Siddall identified of alcoholism. She testified that while Pe- “potential mitigating pursu- her, circumstances titioner lived with got he himself a 2929.04(B).” ant to Ohio job, Revised Code worker,” [§ ] “was a hard helped con- (J.A. 1332) (both at Report The Siddall set forth tribute and in financially terms of work) history, Petitioner’s including social insta- household, house to the bility living situation, adjustment in his even then she problems noticed his with problems (J.A. school, 708-09) at and at physical home at alcohol. Ms. Wolpert fur- abuse at step-father, that, the hands of a alleged ther stated experience, her Peti- sexual step-moth- abuse the hands of a at tioner only had “a difficulty little” er, the death of his father authority histo- and was “[n]o[ ] more [rebеllious] ry alcoholism, abuse (Id. substance any 711-12) than other child.” runaway living time as a homeless on the Ms. Hartman agreed testified that she Moreover, streets. Report the Siddall as- care Petitioner eight when he was sessed Petitioner’s per- mental status and Petitioner because was experiencing “disci- sonality, concluding that Petitioner suf- pline problems and problems with step- fered from “a personality mixed disorder (J.A. 724) father” at home. She indicat- with obsessive-compulsive, narcissistic, and ed that Petitioner behaved hyperactively *24 (Id. 1337) antisocial features.” at It went and difficulty had some adjusting both so- on to characterize individuals with mixed cially academically first, and at and that personality typically “stubborn, as disorder rebellious, grew later he lying and stealing self-centered, tolerance, low frustration apparently so Ms. Hartman would send failing] and norms,” to conform to social him back to his mother. Ms. Hartman (id.) “[ujnder and noted that the influence additionally reported on epi- Petitioner’s disinhibiting substances, of episodes of ir- sodes a runaway, as his involvement in ritability, hostility, aggression, and loss of theft, and his time juvenile served in a (Id. 1338) may control be observed.” at Further, detention center. she testified to Petitioner’s trial counsel did not call Dr. car, his theft of a apparent his selling of Siddall to testify penalty phase, in the alcoholism, nor drugs, and stays two additional did he introduce Siddall Report into in California group homes. Finally, Ms. Instead, evidence. entire case miti- Hartman testified that Petitioner took ac- gation of testimony consisted from Peti- tion make amends with his father and sister, (“Ms.Wol- tioner’s Wolpert Rhea step-mother, voluntarily turned himself in aunt, pert”), and Arietta Hartman to the California group home that he had (“Ms.Hartman”).2 Their testimony largely time, left improperly at an earlier and— tracked the mitigating factors contained in while group at the home—earned his GED the Siddall Report. Wolpert Ms. spoke got job. As previously, stated about difficulty Petitioner’s adjusting as a testimony of Wolpert Ms. and Ms. Hart- child, his family situation, unstаble his man constitutes entirety of the case time a runaway, as his involvement with put Petitioner’s counsel in mitigation. forth 2. majority acknowledges, As the Wolpert, body Ms. Wolpert's testimony Ms. came not Petitioner, years who is eleven older than from first-hand knowledge of Petitioner’s life away moved home when from Petitioner was activities, relayed from stories to her merely years five old. Until late Petitioner's mother. their Ms. Hartman lived with and teens, when he lived with Wolpert Ms. for a for similarly cared Petitioner for peri- brief years, few Petitioner had little with contact (three od years). of time and one-half result, Wolpert. Ms. aAs almost the entire
373
691,
Ac
S.Ct. 2052.
Id. at
essary.”
no
proffered
counsel
Petitioner’s
Critically,
consider “whether
must
cordingly,
by Petitioner’s
we
abuse
physical
investiga
a reasonable
conducted
by Petition-
abuse
counsel
of sexual
or
step-father
Spisak
background.”
of Defendant’s
Evidence
and insufficient
tion
step-mother,
er’s
684,
Mitchell,
Cir.
judge to
the trial
alcoholism
genetic
2006).
is
determining
“to
what
‘Exhib-
an aid
Petitioner’s
As
to it in
reference
allow
751-52)
reasonable,”
have looked to
(Id.
courts
at
it U.’3
Association Guidelines.
Bar
American
(1) deficient
both
must show
Defendant
Beard,
545 U.S.
Rompilla v.
(2)
counsel;
that coun-
performance
(2005) (citing
L.Ed.2d 360
S.Ct.
prejudiced
performance
deficient
sel’s
2527).
524, 123 S.Ct.
at
Wiggins, 539 U.S.
funda-
the trial
defense,
rendering
thereby
Justice
for Criminal
ABA Standards
Washing-
unfair. Strickland
mentally
that:
provide
668, 687,
104 S.Ct.
ton, 466 U.S.
...
a substantial
lawyer
has
[t]he
(1984).
de-
performs
Counsel
L.Ed.2d 674
mit-
raising
perform
role to
important
f[a]ll[s]
“representation
ficiently where
prosecutor
both to
igating factors
of reasonable-
objective standard
an
below
sentencing.
at
to the court
initially and
Objec-
688,
the outcome.” must ... investigation, attorney’s inqui- prong satisfy either Failure to of evidence only quantum consider not ry dispositive. counsel, also whether already known a reason- lead would the known evidence pro- view, failed trial counsel my
In further.” investigate attorney to able representation objectively reasonable vide 2527. 123 S.Ct. Strickland, at 539 U.S. Wiggins, phase. See mitigation at the possessed at least apparently Trial counsel “[Coun- 104 S.Ct. 466 U.S. records mental health of Petitioner’s investi- some duty to make reasonable has a sel that, the Beyond records. his criminal and decision reasonable to make a gations or mitíga- counsel’s reflects trial unnec- record investigations particular that makes ad- objection to the exhibit's Respondent's by te» prepared Petition- U was a chart 3. Exhibit required judge Petitioner missibility, trial mitigating factors setting forth er’s counsel physical both the references to to redact step-father’s abu- initially included response abuse alcoholism. genetic In alcoholism. siveness tion phase investigation Mitchell, involved consulta- Hamblin v. n. Siddall, tion with Dr. (6th Cir.2003) and discussions with 2, 488 (quoting ABA Guide Wolpert Ms. and Ms. Hartman. Dr. Sid- Appointment lines & Performance dall prepared evaluated Petitioner and a of Def. Counsel Death Penаlty Cases report identifying to assist counsel in po- ¶ (2003)) 10.7, at 80-83 (citing the “2003 mitigating presentation tential factors for ABA ... Guidelines they because are the sentencing phase. Dr. Siddall inter- exposition clearest of counsel’s duties at viewed personally Petitioner and adminis- penalty ..., phase duties that were psychological tered several personality recognized by applicable this court as Although assessment tests. the Siddall the 1982 trial of the defendant in Glenn v. Report identified pathways several for fur- Tate”). A “reasonably competent attor investigation, ther it appear does not ney” pursued would have stronger evi trial pursued paths. counsel those dence of genetic alcoholism. Wiggins, See Rather, us, from the record before it 534, 123 539 U.S. at S.Ct. 2527. appears that trial counsel unreasonably Second, according to the Report, Siddall limited investigation, his all but foreclosing Petitioner suffered physical abuse at the potential consideration of three mitigating hands of step-father, his and sexual abuse First, Report clearly factors. the Siddall at the hands of step-mother. As the genetic identified alcoholism as a factor in majority indicates, Petitioner’s claims of mitigation. Wolpert proffered Ms. vague physical and sexual abuse were not corrob- testimony about family’ history her of alco- by orated family Petitioner’s members holism and personal Petitioner’s struggles during interviews with Yet, Dr. Siddall. abuse, with alcohol as did Ms. Hartman.4 Dr. investigation Siddall’s was not exactly surprisingly, Not judge the trial found this searching fact, itself. report indi- testimony genetic insufficient to establish cates that Dr. Siddall relied and, background on alcoholism accordingly, redacted that information summarizing mitigating factor an prepared from exhibit Petitioner’s justice involvement, “criminal Petitioner’s guide jury’s counsel to mental treatment, health deliberations. Consistent with and the the ABA circumstances of Guidelines, offense,” the instant two meetings with
[rjecords himself, Petitioner telephone inter- requested should be concern- *26 views with client, оnly not Petitioner’s mother and the but Ms. also his (J.A. 1332) parents, Hartman. at siblings, The fact that grandparents, and children. A Petitioner’s mother multi-generational and Ms. investi- Hartman did gation frequently not significant discloses corroborate Petitioner’s claims of patterns of family dysfunction may goes and childhood abuse not unequivocally help ... the hereditary counsel, underscore na- mean that trial upon investigation, ture of a particular impairment. would find no of record abuse.5 On the Notably, 4. when asked about testimony Petitioner’s Hartman’s episode recounted an drinking, Wolpert responded, Ms. “He was where hospitalized Petitioner was as an ado- (J.A. 709) involved a little bit.” at Counsel’s following lescent a "chuck-a-lucking” contest. exploration genetic of (Id. 738) alcoholism consisted of at first, questions: two "there's alcoholism in correct;” your second, family; fact, is that and 5. In Report suggests Siddall that “[Petitioner] has been around alcoholics and mental health apparently records in counsel's life, you're alcohol all of his if possession aware of that?” presenting described Petitioner as (Id. 712) case, at In Wolpert gave "symptoms each Ms. characteristic of children who brief, (J.A. lukewarm 1339) affirmative answers. Ms. had been abused.” at narcissistic, antisocial fea- and evidence, compulsive, body of very small of basis of “episodes prone him to left which tures” secretive often with coupled when loss and hostility, aggression, irritability, reasonably compe- abuse, a of treatment (See the influence. when under control” of simply conclude not could attorney tent 1337-38) report addi- Dr. Siddall’s at J.A. have investigation would “that further mixed Petitioner’s tionally that indicated at U.S. Wiggins, 539 See fruitless.” been to propensity and disorder personality To extent 123 S.Ct. by in- “compounded were abuse substance Petitioner’s attributed partially Dr. Siddall environ- in his home stability and abuse “instability and disorder personality 1339). more, (Id. at What ment.” (id. environment,” at home his abuse in implication that Report raises Siddall rea- greater even 1338), had counsel trial some evi- possession had in his counsel of instances alleged investigate son Report quotes The of abuse. dence abuse. Mexi- at New psychologists findings Peti Third, concluded Dr. Siddall Development and Diagnostic co Youth dis personality mixed from “ tioner suffered symp- ‘presented that Petitioner Center that, combined when condition order—a had who of children characteristic toms substances,” lead to can “disinhibiting self-esteem, including poor abused been hostility, aggres irritability, “episodes be- authority, rebellious and difficulty with 1338) (J.A. at control.” ” sion, loss of 1339) (Id. findings ap- These havior.’ reflects, further Dr. Siddall Report theAs health rec- the mental came from parently instability abuse concluded which, of possession trial counsel’s ords in mixed to Petitioner’s contributed home at the course, not introduce did counsel view, Dr. my Sid disorder. personality trial. of Petitioner’s sentencing phase a reason prompt would conclusion dall’s trial that Petitioner’s majority finds fully Pe investigate more attorney to able strategic choices likely made counsel stability emotional mental titioner’s mitigation case Petitioner’s presenting by requesting time, example, over sympathetic lens the more “through juvenile records, from de records school in omit testimony,” and members’ family homes, or from group facilities and tention portions helpful less ting reference counselors. or professionals any medical that, disagree I do not Report. the Siddall us, appears it before record On the through mitigating evidence by presenting additional not conduct did trial counsel Hartman, trial coun Ms. Wolpert and Ms. development ex into investigation Dr. way that in a Petitioner sel humanized “Our disorder. personality of a istence Yet, by con testimony could not. Siddall’s clear that ... make precedents Court’s their testi mitigation the case in fining ultimately incom conducting partial, similarly limited trial counsel mony, sat investigation does mitigation plete, and abuse alcoholism genetic *27 Dicker requirements.” isfy Strickland's so, counsel dоing In jury. the put before 690, 695 Cir. F.3d Bagley, 453 son sympa less to reference foreclose did not 2006). background Petitioner’s thetic elements of elicited counsel himself history, investigation, since from his insufficient Aside of examination direct testimony on evidence such to introduce failed trial counsel Dar Hartman. Ms. Wolpert and counsel Ms. Specifically, his control. Cf. within 186, 168, 477 U.S. Wainwright, Dr. Siddall’s den evidence of failed introduce to (counsel (1986) 2464, 91 L.Ed.2d from “a S.Ct. suffered that Petitioner conclusion mitigation limited where not ineffective obsessive- disorder with personality mixed 37 designed
case was
to foreclose rebuttal
sel’s closing argument covered a total of
petitioner’s prior
convictions);
pages
ten
in
transcript,
culminating in
Mitchell,
Clark v.
286 n. 6 “a two and a half page story about the
(6th Cir.2005) (finding
represen-
counsel’s
ancient
philosopher
Greek
and orator Aes-
deficient,
part,
tation not
because it was
chylus, the
conclusion which was counsel
likely that “counsel made a strategic deci-
telling
‘the
your
answer is in
”
sion
testimony
to limit
petition-
about [the
(Pet.’s
9;
hand.’
Br. at 21 n.
see also J.A.
past in
prevent
er’s]
order to
‘opening-the-
774)
at
Qualitatively and quantitatively, tri-
door’ to evidence of
criminal back-
[his]
al counsel’s performance fell below “pre-
ground”). Ms. Wolpert readily described
vailing professional norms.” See Strick-
Petitioner’s efforts to work hard and con-
land,
688-89,
at
U.S.
104 S.Ct. 2052.
tribute
to
household while he lived
Additionally, Petitioner must show he
her,
and testified that Petitioner had
prejudice
suffered
as a result of trial coun-
only “a
difficulty
little”
with authority as a
sel’s
performance.
deficient
Petitioner
(J.A.
711-12)
child.
at
Similarly, Ms.
only
need
show “a reasonable probability
Hartman testified that Petitioner had tak-
that, but for
unprofessional
counsel’s
er-
steps
en
mend
to
his relationship with his
rors, the result of
proceeding
would
father
step-mother,
good
to make
at
have
Strickland,
been different.”
466 U.S.
group
California
home from which he
693-94,
at
377 alcoholism, (briefly) homeless- abuse, and impulses. controlling of incapable 581, Bell, F.3d 218 Carter v. inas See important ness. course, critically This, of Cir.2000) (fаilure (6th to investi- on Petition control bears 596-97 impulse much as Brown, history of vio- v. and childhood unstable culpability. gate er’s California Cf. 837, 663, Mitchell, 93 F.3d 545, S.Ct. 264 lence); 107 v. Greer 479 U.S. (O’Connor, J., (1987) Cir.2001) (6th (counsel concur of and knew 934 L.Ed.2d 678 eom who ] history a (noting family of alco- ring) investigate “defendant to failed to attributable that are care, violence, criminal acts incarcer- holism, and mit[s] foster or emo background, disadvantaged Mitchell, a 348 F.3d ation); Smith v. cf. less may be problems, and mental Cir.2003) tional (6th preju- (finding no 177, 204 such have no who than defendants culpable presented five “trial counsel where dice excuse”). fact, penalty death the Ohio principal and its mitigation, at witnesses a or defect” disease rakes “mental statute comprehensive a presented ... witness Rev.Code See factor. mitigating social, family, petitioner’s] of [the picture Thus, 2929.04(B)(3).6 had the § upon based ex- background, psychological ‘ personality apparent of Petitioner’s known [njumerous of sources of review tensive and investigated disorder, counsel and had only psy- information,’ not which included and alcoholism genetic of evidence adduced interviews, hospi- tests, also chological probability abuse, is a reasonable “there social records, and ser- reports, school tal have struck juror would least one that at records”). vices less balance,” finding Petitioner different mitigat- testimony on these Dr. Siddall’s pris to life in sentencing him and culpable strength “in differ both would ing factors at 539 U.S. Wiggins, on, See death. from evidence ... subject matter Williams, 529 2527; also 537, 123 see S.Ct. sentencing.” See at actually presented (finding 395-98, 120 S.Ct. U.S. Mitchell, F.3d Hill investi failure from counsel’s prejudice Cir.2005). reflects here The record “might which evidence introduce gate insufficient forth put trial counsel of jury’s appraisal influenced well have of alcoholism, no evidence genetic of culpability”). his moral Smith, 348 abuse. and sexual physical Cf. kind ... has the Moreover, “Petitioner where (finding prejudice no at 200 F.3d to assess- history ... relevant troubled of elements mitigating “virtually all of the Wig- culpability.” moral a defendant’s ing of were complain[ed] petitioner] that [the (cit- 535, 123 S.Ct. 539 U.S. gins, expert’s] tes- mitigation [the via presented 492 U.S. Penny Lynaugh, Hill, report”); mitigation her timony and (1989)). 2934, 106 L.Ed.2d 109 S.Ct. cumula- (finding evidence at 317 testi- or his report, Dr. Through Siddall’s to be the information” “most of tive where have received jury would mony, the psycho- in the nine included conveyed “was Pe- understanding of comprehensive more penalty in the reports submitted logical Trial counsel’s history. social titioner’s Therefore, phases”). mitigation Wolpert—Peti- Ms. of examination limited alcoholism, or genetic of stronger evidence and distant sister— much older tioner’s abuse, either put forth any evidence sufficiently ex- did not Hartman and Ms. testimony or more Dr. Siddall’s through history” “troubled Petitioner’s plore criminality the offender’s appreciate the to consid- finder the fact directs statute conduct the offender's conform or to committing conduct "[wjhether, time of at the er Ohio Rev. the law.” requirements offender, offense, a mental because 2929.04(B)(3). § Code defect, capacity substantial lacked or disease *29 378
depth examination of Ms.
and Ms.
Wolpert
claim
contrary
runs
clearly
established
Hartman would
“merely
not be
cumula Supreme Court precedent—specifically,
tive,” and
support
could thus
finding
of Mills v. Maryland,
367,
486 U.S.
108 S.Ct.
prejudice.
Mitchell,
Broom v.
Cf.
1860,
(1988),
379 ... you “[I]f as follows: the issue in framed our of cases a line Mills flows From a beyond prove to “acquittal- the State so-called that examining Circuit failed find cir- majority aggravating the the As that instructions.7 doubt jury reasonable first” jury instructions mitigating observes, acquittal-first outweigh the ... cumstances requiring “[a]ny instruction to encompass proceed deter- factors, will you ... then reject unanimously first must jury a that imprison- life possible [the] of mine which a consider it can penalty the death Davis, before to recommend.” sentences ment Davis, at 689 F.3d 318 sentence.” life (alterations and added at 685 F.3d 318 added). instruc- Acquittal-first (emphasis at 709- 465 F.3d omitted); Spisak, also see Fourteenth and Eighth the implicate tions slightly employed Here, trial court the 10. they create as inasmuch Amendment you ... cannot “[I]f language:8 different jury will the that probability substantial proved State] unanimously agree [the that unanimity as to mit- require impermissibly aggra- the doubt beyond a reasonable only constitutes This not factors. igating the outweigh ... vating circumstances law, spuri- but also Ohio of misapplication then factors, you pro- will ... mitigating Un- of death. favor the scale ously tips possible of three which to determine ceed instruction Davis, acquittal-first an der impose.” to sentences imprisonment life giving from juror the individual “precludes 787-88) cho- the words (J.A. Although at and runs mitigating to effect vary between jury instructions the sen for 689; Davis, at 318 F.3d Mills.” of afoul and Peti- hand on one Spisak and Davis at 709. 465 F.3d Spisak, also see other, meaning the the case on tioner’s clearly very here jury The instructions any- If does not. instructions the of effect jury instructions. acquittal-first constitute in Petitioner’s instruction jury the thing, jury the from only slightly They differ of mis- threat greater an even poses case and in Spisak, in Davis and instructions it reiterates because jury the leading constitutionally questiona- ways more even “unanimously.”9 act must jury Spisak Davis trial courts ble. law, if of you, as a matter I instruct Supreme Ohio also followed cases 7. These you no have finding, then such you make in State v. applying Mills decision Court’s a recommendation must make choice Brooks, N.E.2d St.3d 75 Ohio be of death sentence that the to the Court line consider in this (1996). cases Several [ ]. imposed on the Defendant dicta, the chal having found only in issue hand, considering all after On the other procedurally if instructions lenges to is rele- trial which raised the evidence Mitchell, F.3d 854 Scott defaulted. testimony, you, the before issues to the vant them, Cir.2000) would not being I (6th one evidence, coun- arguments of and the other it. Fur to follow bound this Court consider agree unanimously sel, you cannot Roe ther, acknowledges, majority as the beyond a reasonable proved State Cir.2002) concerned Baker, circumstances, as aggravating that the doubt now at to those dissimilar jury instructions them, mitigat- outweigh the defined have I hand. your recom- you’ll return factors, then your decision. reflecting mendation phase penalty length, Petitioner’s greater At event, proceed to you will then In this read, part, as pertinent jury instructions possible life the three which of determine follows: impose.... sentences imprisonment added) jury find 786-88) (emphasis (J.A. 12 members If all that the doubt beyond a reasonable proof suit- point more perhaps a subtly, circumstances, I have de- 9.More as aggravating the instruction by psychologists, ably explored them, outweigh the sufficient are fined what jury to consider asks factors, at hand you return must then mitigating what it proved,” and "State “failed finding Court. such Additionally, the trial court’s verdict
form substantially mirrors UNITED America, verdict STATES *31 forms in Spisak, Davis and Plaintiff-Appellee, further com- pounding the risk of misleading jury. more, What is judge the trial here dis- WHITE; B. Richard Michael A. jury missed the to deliberate with the di- Suhadolnik, Defendants- “[wjhenever rection to return a verdict all Appellants. you, 12 of and I repeat, jurors all 12 05-3403, 05-3442, Nos. (J.A. 793) 06-3239, agree.” 06-3240. together, Taken inappropriate acquittal-fírst jury instruc- United States Court Appeals, tions, form, the verdict and the trial Sixth Circuit. judge’s statement upon dismissing jury Argued: Jan. 2007. a deliberations raise reasonable likeli- hood that applied the instructions Decided and Filed: June case in way Petitioner’s such as to Rehearing Denied July 2007.* preclude giving effect to mitigating factors found, unless unanimously thereby violat- rights Petitioner’s Eighth under the
and Fourteenth Amendments. According- view,
ly, my Supreme the Ohio Court’s
decision runs contrary to the U.S. Su-
preme clearly Court’s established prece-
dent in Mills.
Thus, because the trial court gave un- acquittal-first
constitutional jury instruc-
tions, and because Petitioner’s counsel
rendered ineffective assistance at the sen-
tencing phase, I would vacate Petitioner’s
sentence and remand for new sentencing
phase trial. * former,
prove.” seems, it Judge establishes a grant would rehearing Norris for the State, presumption fact, threshold that the separate reasons opinion. stated in his proved its case.