Jeffrey D. Lundgren v. Betty Mitchell, Warden

erally judicial agency- allows review of final Jeffrey LUNDGREN, D.

action Petitioner- adequate when there is no other Appellant, remedy, except pre- when other statues Fausto, Relying clude this review. Id. on we found that preclude the CSRA did Betty MITCHELL, Warden, right

Leistiko’s of review under the APA. Respondent-Appellee. Id.4 No. 02-3001. Likewise, we find that the Veterans’ effectively precludes judicial Benefits Act Appeals, United States Court of Fligiel. review for The Act’s express ex- Sixth Circuit. DAB § clusion of review in 38 U.S.C. and its inclusion of DAB review and subse- Argued: Dec. 2005. judicial quent § clearly review Decided and Filed: March 2006. congressional demonstrates intent to limit review to governed the adverse actions

§ Fligiel 7463. may not circumvent this

limitation invoking judicial review

provision of the APA.5

IV. CONCLUSION

For reasons, the aforementioned

judgment of the district court granting

summary judgment to the Veterans Ad- VACATED,

ministration is RE-

MAND to the court entry for an of DIS-

MISSAL. Frank, (6th Harper See also personnel F.2d 285 postal employees, matters for Cir.1993). Harper, postal likewise, we held that a statutory find 'no entitlement to re- governed by worker Reorganiza- the Postal view' within the PRA.” Id. at 290. (PRA) right tion Act had no to administrative judicial postal review for her claim that the appeal, Fligiel challenged 5. On the denial of regulations service did not follow its own Therefore, statutory process. due we do not when it promotion. Relying denied her a preclusion reach the issue of whether the Fausto, case, we recognize held "[in] we process review extends to due claims based comprehensive Congress scheme that es- on the United States Constitution. tablished in addressing the PRA for review of Jenkins,

ARGUED: James A. Cleve- land, Ohio, Appellant. for Charles L. Wille, Attorney Ohio, General’s Office of Section, Capital Columbus, Ohio, Crimes Appellee. ON BRIEF: James A. Jen- kins, Cleveland, Ohio, Hilow, Henry J. McGinty, Gibbons, Hilow Spellacy, & Cleveland, Ohio, for Appellant. Charles L. Wille, Attorney Ohio, General’s Office of Capital Section, Columbus, Crimes Ohio, Appellee. for MERRITT, DAUGHTREY, Before: CLAY, and Judges. Circuit CLAY, J., delivered opinion court, DAUGHTREY, in which J., joined. MERRITT, 784-802), (pp. J. delivered a separate dissenting opinion.

OPINION CLAY, Circuit Judge.

Petitioner, Jeffrey D. Lundgren, an Ohio prisoner, death row appeals the November 14, 2001 order judgment of the United States District Court for the Northern Ohio, District of denying petition his for a writ of corpus habeas pursuant filed to 28 § 2254. U.S.C. Petitioner was convicted in Ohio state court of five aggra- counts of vated murder with death penalty spec- two ifications and five counts of kidnapping. 1830s, jury’s During recom- Mormon followed the The trial court Kirtland, Ohio, sentenced Petitioner Smith moved to built mendation appeal Pe- Temple, managed This Court certified the Kirtland death. now 1) the trial relating to titioner’s claims the RLDS. to allow introduction of court’s failure 1984, Lundgren fam- summer and his 2) evidence, prosecuto- mitigating

relevant ily from Missouri to Kirtland so moved 3) misconduct, and ineffective assis- rial Lundgren could as senior serve penalty guilt tance counsel temple job pay no but guide, that had phases. family Lundgren lodging. did include initially follow, attracted favorable attention in we AF- For the reasons Sunday guide. and as a of habeas school classes FIRM the district court’s denial Russell, religion petition. professor and DENY the corpus relief William college, that Lund- RLDS testified I. well, scripture gren exceptionally knew Mormon, Book of and fol- especially the BACKGROUND scripture lowed the chiastic method of A. Substantive Facts searching interpretation, which involves However, challenge recurring patterns. state text for Petitioner does Therefore, findings Lundgren of fact. be- did not understand the Bible’s courts’ by this Court to concen- cause of the deference due historical context tended to Lundgren factual habe- state court determinations trate on this esoteric method. as, to the statement of facts as we defer fit within the traditions of the generally visions, Court Ohio recited in that he RLDS faith described review of Petitioner’s convic- upon direct experiences, direct and God spiritual tion and sentence: directly to speaking prophets. years, Lundgren three Over the next

1. as the Ohio Su- Facts Recited guide taught temple served a and as preme Court Bible the Book of classes on the Despite Mormon. the church’s direction Lundgren’s Background from money to turn all received over born in Missouri and Lundgren was church, Lundgren to the temple visitors Reorganized in the Church Je- raised received kept solicited and contributions Day Saints sus of Latter Christ Temple contributions visitors. (“RLDS”). attending college, While temple dramatically, the dropped wife, Al- met and married his Lundgren shortages. suffered fund bookstore also school, Lundgren ice. in Unsuccessful eventually Lund- removed The church in the joined Navy and Viet- the served and, in Octo- gren religion teacher After early nam in the 1970s. his War guide temple him as a ber fired discharge in he unsuc- honorable quarters him from next and evicted his hospital main- cessfully held series of jobs temple. in Missouri. and other tenance religious form the beliefs Lundgren’s The Cult Although of this the

foundation case. on, Lundgren attracted From 1985 RLDS, headquartered Independence, in classes be- following in his substantial Missouri, differs from the Utah-based texts. knowledge religious cause of his Church, religions trace Mormon both and Sharon Eventually, Kevin Currie Joseph origins prophet their the Lund- Bluntschly moved with Smith, Jr., the Book of published who grens, Brand, Daniel The Murders as did Richard Kraft, Gregory Winship. Debbie April direction, In Lundgren’s joined group April Olivarez group began preparing for the wil- living Lundgrens Those with the called trip. derness Those who worked left him “Dad” and contributed their pay- jobs their bought provisions. and some money checks and other for common Lundgren encouraged all of the follow- group expenses. couples, Two Ron and ers to up any use of their available Susan Luff Tonya and Dennis and Pat- credit All members, cards. of the group rick, also money, contributed but did not including Averys, gathered their with Lundgrens. live spring worldly possessions. April Around Avery family moved from two or secretly three of the followers Missouri to Lundgren’s teachings. follow began digging six-by-seven-foot pit Avery Dennis, family included age the dirt floor of Lundgren’s barn. Lund- 49; 46; Cheryl, age daughters, and their gren Cheryl Avery told to write and tell Trina, 15; age Rebecca, 13; age family her they were going Wyo- Karen, age 7. Then, ming. Lundgren invited the Lundgren’s eviction, After he and his Averys to dinner. family and followers moved to a rented There, 17, 1989, farmhouse. Lundgren April Dennis, On continued Cheryl and classes, stressing importance their daughters three ate dinner at the Kirtland Temple. According to dinner, farmhouse. After Lundgren, his followers had to recap- Lundgren went out to the barn with his temple, ture the earthquake would son, Damon, followers, Brand, and four it, elevate and Christ would return and Kraft, Winship, and Ron Luff. The establish Zion. Lundgren spoke also Averys stayed in the house his conversations with God and his vi- women and children. At Lundgren’s di- sions. He discussed the Book of Revela- rection, Luff individually Avery led each Mormon, tions and the Book of and re- family barn, member out to the where ferred “pruning vineyard” and the each was bound gagged by the men. kill need to ten followers before Zion After placed the men Avery each family could be created. Eventually, the men member pit, into the Lundgren shot group paramilitary undertook person each two or three times with a training prepare to temple for a assault. .45 caliber semiautomatic weapon. The (his Lundgren picked May birth- men then pit filled the with dirt and day) day as the recapture temple, Afterwards, stones. Lundgren and the but later decided it yet was not time. others went back to the farmhouse and Averys, The fringe of the group, prayer held a meeting. were only invited to a few of Lundgren’s prayer meetings. The Months Prior to Arrest By October the RLDS church had day, The next April police officers excommunicated Lundgren. early and FBI agents visited Lundgren 1989, Lundgren stressing was the need farm investigate reports about the for his followers go on a wilderness planned temple assault. Everyone in- trip before Zion possible. By would be time, terviewed said that they were both Kevin at the Currie and anoth- follower, er farm Olson, voluntarily Shar and knowing had left the denied group, but Kathryn Larry anything and about plans Keith to assault the tem- Johnson joined. had ple. The FBI left without arresting away on Evidence Presented the Sentenc- drove 2. group and anyone, Phase, ing as Recited the Ohio trip. their wilderness Supreme Court campsites selected mountain Lundgren youth, Lundgren mostly As a was Davis, Virginia, and the West near loner, active and sports but was through in tents there Octo- group lived father, His church activities. a strict took ber Some of followers disciplinarian, enjoyed teasing pun- and mili- jobs, continued their men ishing Nancy Schmidtgoess- him. Dr. Virginia, West tary exercises. While for the ling, psychologist who testified his Tonya chose Patrick as Lundgren defense, that Lundgren determined suf- arrangement did not second wife. That personality from a mixed disorder fered out, picked Ka- Lundgren so then work narcissism, features paranoia, with That thryn as his second wife. Johnson However, Lund- and antisocial traits. Johnson, Kathryn’s Larry upset choice IQ average, of 124 was above gren’s husband, dis- group and contributed schizophrenic was not or manic de- he By Lundgren, sension. October growing Lundgren pressive. up, While his family, and about ten of followers his and, support, had little emotional However, dis- to Missouri. more moved adult, developed feelings he intense and, by the end sension occurred strong to con- grandiosity and desire 1989, Larry Johnson had con- December trol his environment. He could authori- federal law enforcement tacted from employment maintain “stole ties about murders. every Al- employers. almost” one of his though Lundgren became obsessed 3, 1990, Kirtland be- January police On offenses, religion, at time of the in the gan pit out the barn digging Lundgren did not have a disease mental un- Avery’s body. Police found Dennis or defect. Avery family mem- covered the other lasting In an unsworn statement almost day. Lundgren bodies the next bers’ hours, life- Lundgren explained his five in the back and had shot Dennis twice spiritual truth and long search for in the torso. He Cheryl three times quoted length He visions. once in the head and twice shot Trina Mor- Testament and the Book of Old thigh, in the back and body, Rebecca Lundgren ever planning denied mon. and chest. The Karen the head ad- Temple, Kirtland but take over the tape wrapped duct coroner found silver Averys. Lundgren killing mitted heads, hands, and the victims’ around sin he saw he abhorred the asserted origin damaged bullets of two feet. Avery family and explained in the Police at the was unknown. found scene Averys. him commanded to kill the God .45 caliber semiauto- discovered stated, say “I cannot that God He Lundgren, weapon, belonging matic sorry I say I that I am wrong. cannot they fired all of the other bullets had in to do what God commanded me did bought weap- Lundgren recovered. Lundgren further ex- act.” physical in Virginia it in West on in 1987 sold “I I am prophet am a God. plained, 7, 1990, fed- 1989. On January October not a I am prophet. more than even in Lundgren arrested eral authorities therefore, I not wor- prophet; am false California. A rebuttal thy penalty.” of the [death] had 474, Lundgren confirmed Lundgren, St.3d witness 73 Ohio State temple. (1995). an attack on the 304, armed planned N.E.2d 304-06 Other evidence established that II. Lundgren temple

RLDS had fired as a ANALYSIS guide allegations. because of theft A. Standard of Review Id. at 321. This Court reviews the decision of the History B. Procedural district court deny petition for a writ 1990, jury Ohio convicted Petition corpus habeas de novo. Allen v. Yu er of aggravated five counts of murder and kins, (6th 396, Cir.2004). 366 F.3d kidnapping. five counts of The murder petition Petitioner filed his for writ of counts included affirmative findings in corpus habeas the district court after penalty specifications. two death After 24, 1996; April the Antiterrorism and Ef trial, subsequent penalty the trial court (“AEDPA”) fective Penalty Death Act adopted jury’s recommendation of a § amendments to 28 U.S.C. 2254 therefore 21, death September sentence on 1990. apply Bell, in this case. Coe v. 209 F.3d Appeals The Ohio Court of and the Su 815, (6th Cir.2000). “requires AEDPA preme Court of Ohio affirmed Petitioner’s heightened respect for state court factual conviction upon and sentence ap direct legal determinations.” Herbert v. Bil peal. Lundgren, See State v. Nos. 90- (6th ly, Cir.1998). 160 F.3d L15-140, 91-L-036, 1993 WL 2254(d) Section states: (Ohio App. Ohio LEXIS 4394 Ct.App. An application for a writ of habeas cor- 14, 1993), Sept. aff'd, 73 Ohio St.3d pus on behalf person of a in custody (1995). 653 N.E.2d 304 Petitioner failed to pursuant to the judgment of a State post-conviction secure relief from state court shall granted not be with respect court. Lundgren, See State v. No. 97-L- any claim adjudicated that was on the 1998 WL App. Ohio merits State court proceedings unless (Ohio Ct.App. 18, 1998), LEXIS 6164 Dec. adjudication claim— den’d,

juris, 85 Ohio St.3d (1) resulted a decision that was con- N.E.2d 171 to, trary or involved an unreasonable Petitioner petition filed a for a writ of of, application clearly established Feder- corpus habeas in federal district court law, al determined Supreme May 1999. The district court denied Court of States; the United petition without evidentiary hearing (2) resulted in a decision that was based and issued a blanket denial of Petitioner’s on an unreasonable determination of the claims for relief in November 2001. Peti- facts in light of presented the evidence tioner appealed to this Court December in the State court proceeding. In February panel of this 2254(d). § 28 U.S.C. Court vacated the decision of the district court and remanded the case for individual 2254(d)(1), § Under a state court deci- treatment of Petitioner’s claims. Upon re- “contrary sion is to” clearly established mand, the district court addressed each federal law if “the state court arrives at a claim individually, claims, denied all opposite conclusion to that reached [the again denied a certificate of appealability Supreme on a question Court] of law or if as to all claims. This Court reversed the the state court decides a case differently decision of the district court in part and than [the Court] on a set of granted a certificate of appealability on the materially indistinguishable facts.” above-named claims in June 2004. Taylor, 362, 413, Williams v. 529 U.S. 120

763 (2000). 749, 722, 111 Thompson, A 501 U.S. S.Ct. 1495, 389 146 L.Ed.2d S.Ct. (1991) 2546, is “unreasonable (emphasis an 115 L.Ed.2d 640 court decision state clearly added). established federal of A can application” petitioner federal habeas the correct “if the court identifies state law proeedurally by “failing a claim to default unreasonably governing principle but legal by a a obtain consideration of claim state the facts of the to applies principle court, petitioner’s the either due to failure “‘[C]learly Id. estab- prisoner’s case.” the state raise claim before courts law, as the Federal determined lished state-court are still avail while remedies States,’ re- Court of United Supreme procedural able or due to a state rule that holdings, opposed ‘the as fers to reaching from prevents state courts dicta, Supreme] Court’s decisions [the of Sey of claim.” petitioner’s the merits of the relevant state-court as of the time (6th Walker, 542, v. 224 549-50 mour F.3d ” v. F.3d Bagley, 380 decision.’ Williams Cir.2000) Sykes, (citing Wainwright v. 433 Cir.2004) (6th 932, (quoting 942 Williams 84-87, U.S. S.Ct. 1495). at 120 S.Ct. Taylor, v. 529 U.S. (1977)). pro L.Ed.2d 594 When the state Moreover, of a findings the factual rule prevents cedural the state court from to be presumed court are correct state claim, hearing procedural of the merits if Petitioner can only be contravened can 1) petitioner a failed default occurs when convincing clear and evidence show 2) rule, comply with the the state actual are See U.S.C. they erroneous. ly against petitioner,1 enforced the rule 2254(e)(1). § presumption The correct 3) “adequate the rule is an and inde findings to the factual also attaches ness pendent” foreclosing ground state review court on the state appellate based state of a federal claim. Willis v. constitutional Mata, trial record. See Sumner (6th Cir.2003). Smith, 351 F.3d 539, 546-47, 66 L.Ed.2d S.Ct. U.S. comply Failure to with well-established normally rules procedural enforced indepen usually “adequate constitutes Procedural Default Standard B. grounds foreclosing state for review. dent” proeedurally defaulted a Petitioner has See id. 745. on majority appeal. of the issues he raises petitioner may pro A avoid this forth the standard for We therefore set only by showing that there default cedural procedural here. default prejudice cause for the default has stated Court default, from a mis resulting prisoner that “in all cases which a state justice carriage of will result enforc claims in defaulted his federal state has petition default in the ing procedural independent to an and ade pursuant court Sykes, case. 433 U.S. er’s See rule, procedural state federal habeas quate showing requires cause 2497. A S.Ct. un corpus review the claims barred proffer than the mere excuse. more can prisoner demonstrate cause less Rather, pro “the of cause existence prejudice and actual for the default ordinarily default must turn cedural alleged violation federal result can show that some prisoner whether law; or demonstrate that failure consid objective external defense factor result in a fundamental er the claims will comply with justice.” impeded counsel’s efforts miscarriage Coleman anticipated default requires predictably be said This also that the state courts Court rule, consistently petitioner ground. else enforce of that comply the rule cannot who fails to 764 Petitioner, however, rule.” procedural Murray State’s has to failed

Carrier, 478, 488, U.S. S.Ct. (e), (f), (i), preserved (h), (g), subissues and 91 L.Ed.2d petitioners Habeas infra. rely conclusory cannot assertions argues trial Petitioner prejudice procedur cause and to overcome unconstitutionally court op denied him the default; al they present must affirmative portunity introduce mitigating to evidence argument evidence or as to precise (a) (i): pieces through prejudice produced. cause and See Tins Million, (6th ley F.3d Cir. (a) The full nature and extent of 2005) (citing Northland Ins. v. Stewart Co. given accomplice state’s incentives to Co., (6th Title Guar. F.3d to Bluntchley testimony secure her Cir.2003) (“It appellate is a settled rule understanding and her ben- those perfunctory issues adverted to cooperate. efits to [ ] manner, unaccompanied some effort (b) The full nature and extent of the a developed argumentation, are deemed given accomplice state’s incentives waived.”) omitted)). (quotation marks Olivarez secure testimony her and In the of cause preju absence understanding her of those benefits dice, may petitioner demonstrate that cooperate. [ ] the failure to consider the claims re will (c) The full nature and extent of the sult miscarriage jus fundamental given accomplice state’s incentives tice. A miscarriage justice fundamental Brand to secure her testimony and results from the conviction of one who is understanding her of those benefits “actually Murray, innocent.” U.S. to cooperate. [ ] 496, 106 S.Ct. 2639. (d) A Temple. view the Kirtland Petitioner failed to raise certain claims [] in his appeal direct state court. The (e) government Information certain appellate Ohio court subsequently refused witnesses were truthful. [ ] to address issues on judicata these res grounds upon Petitioner’s collateral attack (f) cooperating That witness Olivarez on his conviction sentence in state and the Petitioner “if believed that court. For all his procedurally default- Zion were occur” no one would claims, ed has Petitioner failed to argue question the death of Averys. [ ] any cause for default his to this court. (g) That Petitioner’s killing reasons for These claims individually, are discussed the Avery’s upon were in- based his infra. terpretation of scripture. [ ] (h) That Petitioner con- attempted to C. The Mitigating Presentation of Evi- . form dence his conduct to interpreta- tion scripture. [ ] 1. Petitioner Has Procedurally De- (i) That cooperating witness Brand had Certain Subclaims faulted given a prior inconsistent statement Petitioner to preserve has failed all his respect the manner of the evidentiary claims review death Avery. of Dennis [ ] Court. preserved Petitioner has subissues (Pet.Br.39.) (a), subclaims, (b), Of these (c), (d), Petitioner infra, see by arguing (a) (d) argued only through them upon ap- on direct appeal again direct (e) state peal. upon remaining district courts collateral subclaims (i) review. See Lundgren, 653 through N.E.2d at procedurally are defaulted.

765 plain er- First, Supreme Court’s Ohio sub- found Appeals of Court The Ohio fashion, address, any in did (i) judica- ror review not on res (e) through barred claims in sub- presented failed evidentiary to Petitioner claims because grounds ta (i) appeal.2 assignment in (e) his direct through in this claims bring the claims 97-L-110, WL 1998 that has held Moreover, No. this Court Lundgren, error. 6164, at LEXIS 964592, App. Ohio does not analysis 1998 error plain court’s a state the Ohio found has Court This procedural *8-9. default.3 petitioner a save the merits denying review rule 854, courts’ Mitchell, 866 209 F.3d See Scott peti- a when proceedings post-conviction Cir.2000). analysis is (6th error Plain failed, to raise a have, but could tioner right to as a court’s properly viewed more “ade- to constitute appeal, on direct claim prevent to defects procedural overlook grounds state independent” quate to equivalent but is not injustice, manifest federal subsequent foreclosing review id. at 866-67. of the merits. See a review Seymour, 224 See proceedings. habeas in the argues alternative Petitioner (“Ohio rule that claims a has at 555 F.3d a number proof that “ample there is possible; if appeal on direct be raised must by evi- are supported [these subclaims] litigation their otherwise, bars judicata res on provided the record outside dence proceedings.”). state subsequent 1.) (Pet. at Peti- Reply Br. appeal.” direct that the Ohio Su argues Petitioner however, on fails, to elaborate tioner de any procedural Court waived preme sub- to which is and this evidence where by conducting may have existed fault only pages to applies. it claims Petition on some of analysis plain a error Petitioner refer- 10,000 record page though appeal, even upon direct claims er’s (e) to subclaims respect ences preserve those had failed Petitioner (i) testimony dur- witness contain through objec contemporaneous through claims (See trial. guilt-phase ing Petitioner’s appears to Petitioner during trial. tions 9901-02, 9904-06, 9560-64, J.A. analysis indi error plain believe 10052-57.) evidentiary Petitioner’s not consis do the Ohio courts cates that (i) (e) allegedly through relate subclaims rule, and judicata their res tently enforce court the trial testimony that mitigating any of rule not Court should therefore in- counsel to Petitioner’s to allow refused defaulted procedurally claims Petitioner’s trial guilt-phase during inconsistency. troduce courts’ the state because analysis plain error appellate court's that an of res two variants Ohio courts 2. The claim defaulted procedurally an otherwise convictions. attacks judicata for collateral finding by this Court that precludes variant, procedural source of and the The first in Petitioner’s have, imposed the rule court state here, petitioner could is when default (citing (See Knuckles Reply Br. Pet. case. failed, direct review. bring claim on but 92-3208, WL Rogers, however, No. courts, preclude on collat- also Ohio (6th Jan. Cir. at *9-10 U.S.App. LEXIS actually were any claims attack eral curiam) opinion). 21, 1993) (unpublished (per appeal. See litigated on direct brought and in Knuck- unpublished decision 97-L-110, Court’s This WL Lundgren, No. however, panels les, binding on future is not This sec- at *9. App. LEXIS Ohio Court, Rule Sixth Circuit course, see of this cannot judicata, of of res ond variant is con- proposition default, (2004), because be- procedural basis of as the serve prece- Supreme Court trary United States comply with a petitioner’s failure cause event, see dent, be the law not it could give rise to the rule does procedural state Coleman, S.Ct. 2546 501 U.S. at 555. Seymour, 224 F.3d bar. See in- review plain error (finding reservation finding pro- against grounds to rule sufficient per cu- unpublished, relies on 3. Petitioner default). cedural proposition for the of this Court riam decision II.C.2, mitigating particular, various reasons. See Part Peti- evidence. infra. appeal The record on direct provided alleges tioner that defense counsel was distinct from record available Peti- to develop: unable forming appeal. tioner in the basis for his (a) The full nature and extent of the clear that The record is Petitioner and his given state’s to accomplice incentives of the allegedly mitigating counsel knew Bluntchley testimony to secure her (and indeed to attempted evidence intro- and her understanding of those ben- trial) duce it at and could have used efits to cooperate. [ ] knowledge upon basis for di- as review (b) full The nature and extent of the appeal. rect given state’s to accomplice incentives argues Petitioner the alternative Olivarez to her testimony secure and that Petitioner’s ineffective assistance understanding her of those benefits counsel his default. excuses This Court cooperate. [ ] has held that constitutionally defective (c) The full and extent nature representation does cause constitute for given state’s to accomplice incentives excusal procedural default. See Wil Brand to her testimony secure and lis, 351 at 745. F.3d But Petitioner does understanding her of those benefits counsel, not claim appellate ineffective and to cooperate. [ ] the basis of Petitioner’s default on sub- (Pet’r 39.) Olivarez, Br. Bluntschly, and (i) (e) through claims arises from Petition Brand had been members of Petitioner’s er’s failure to raise on these issues direct cult, were charged accomplices to Peti- any appeal, not failure Petitioner’s trial crimes, tioner’s pursuant plea and bar- counsel, example, proffer contempo gains state, with the testified during the objections. raneous Petitioner’s invocation guilt phase of Petitioner’s trial. These for this “miscarriage Court’s use of the accomplices testify did during not the miti- (see justice” 7) gateway Pet. Br. Reply also gation phase. fails because Petitioner has not offered “In a capital case the sentenc he “actually evidence that was innocent” or [may] er not precluded be from consider objections, but for the failed the re factor, ing, as mitigating any aspect sults of sentencing phase would have defendant’s character or any been record and different.

the circumstances of the offense that the 2. Petitioner Was Not Unconstitution- proffers defendant aas basis for a sen ally an Opportunity Denied to Pres- tence less than Mary death.” Mills v. ent Mitigating Relevant Evidence land, 367, 374, U.S. 108 S.Ct. Mills, L.Ed.2d 384 The rule of (c) Evidentiary (a), (b), a. rulings and however, applies penalty phase did prevent not pre- Petitioner from trial, Petitioner’s not guilt phase. senting mitigating relevant evidence Petitioner ample opportunity had pres (a), In preserved (b), his subclaims his ent believed connection between his (c), argues Petitioner that the trial court religious Averys’ deaths, beliefs and the improperly circumscribed the cross-exami- opportunity during he penalty took nation of Bluntschly, state witnesses Oli- trial, phase giving lengthy unsworn varez, Brand, preventing Petitioner’s statement to the connection. See Lund trial counsel from eliciting from the wit- gren, 653 N.E.2d at 321. nesses the full extent agree- of their plea government Moreover, ments with the thereby even were the above wit- inappropriately limiting the testifying admission of during penalty phase, nesses ing plea agreements, including fur- their establish that has failed to Petitioner accomplices questions of his originally cross-examination about offenses ther plea arrangements would charged, about the offenses which each wit- Rather, evidence. mitigating elucidated pled guilty, ness the conditions of the evidence went precluded supposedly plea arrangements, and the maximum not credibility, witness bias toward sentences to be recommended under the character, background, cir- or Petitioner’s court, however, plea bargains. trial Mills, of the crime. 486 U.S. cumstances to mischaracterize did allow counsel event, 108 S.Ct. plea agreements or cross-examine trial, sufficient enjoyed counsel Petitioner’s speculative accomplices issues plea of a the fact latitude establish probation pa- possible such as their witness, the for each fact agreement role. charges dropped had been substantial scope “The of cross-examination the for then- exchange in against each witness admissibility during of evidence cross- Petitioner, and mini- testimony against the examination are matters which rest for each mum and maximum sentences judge.” sound discretion of the trial plea agreement. under their witness (1980), Angley 63 Ohio St.2d O’Brien counsel, how- precluded trial court defense 100, 407 N.E.2d 17 O.O.3d ever, accomplices questioning from 611(A). Here, 490, 493; R. we Evid. pa- they might eligible be about when of discretion determine that no abuse arrangements po- plea their role under occurred, Lundgren op had a full since by each wit- departures tential downward portunity to the bias or demonstrate (inasmuch sentencing judge ness’ ultimate prejudice accomplices. each of these actually had been as none of witnesses Moreover, possible er any we find that yet.) sentenced harmless beyond ror a reason would be argue to this Court Petitioner does overwhelming able doubt view of the thorough a cross-examination of how more demonstrating evidence to but accomplices potential, his three guilt. plea-bar- speculative, reductions their Lundgren, 653 N.E.2d at 319. would have constituted gained sentences claims, to these same respect With mitigating Certainly, such evi- evidence. court found habeas review the district credibility to go dence would that: witnesses, ample testimony as to the but to arrangements had elicited

plea been incen- explain fails how the Petitioner jury to the accom- permit consider may con- given accomplices be tives testifying and their at- plices’ motives evidence mitigating strued as relevant veracity. tendant this evidence much less how exclusion of imposition of the sen- contributed to the In Petitioner’s claims with addressing death_[T]he transcript un- tence respect accomplices’ to these cross-exami- jury heard evi- equivocally shows nations, the of Ohio found Supreme Court given regarding dence the “incentives” that: .... The Trial Court to the witnesses unfairly Lundgren argues the trial court specifically limited counsel’s defense of his restricted the cross-examination questions concerning whether concerning full accomplices benefits n Bluntschly and []01ivarez, could re- fact, plea arrangements. of their or a lesser probation ceive term trial court allowed cross-examination Olivarez, plea agreement Bluntschly, regard- pursuant and Brand sentence ... [T]he reason limitation for this from cluded submitting going evidence Trial because the Court believed sen- his “character or any record and tence of probation speculative. was too offense,” Mills, circumstances of the Lundgren v. Mitchell, U.S. at No. 108 S.Ct. 1:99 CV 1268 the court’s (N.D.Ohio 2001) Nov. (opinion refusal or- allow view the Kirtland der). Temple. independent An review of the record 3. Summary confirms the Supreme Court of Ohio and the district court’s assessment of Petitioner the rec has failed to show any ord at trial. We therefore conclude mitigating relevant evidence was precluded Petitioner has failed show that counsel’s jury’s during consideration restrictions upon cross-examination of penalty phase of his trial. all Almost Peti- these three accomplices precluded the in tioner’s evidentiary go claims to testimony troduction of mitigating evidence. Ac during the guilt-phase of his trial. Claims cordingly, the district court did not err in (e) respecting (i) rulings through denying habeas relief on grounds. these been procedurally defaulted. For nonde- (a) faulted claims (c), through Petitioner b. Evidentiary (d) ruling pre- did not has failed to show how permitting cross- . vent Petitioner presenting rele- examination of Petitioner’s accomplices as vant mitigating evidence speculative, to and admittedly unlikely, as- Petitioner takes issue with the pects of their plea arrangements would district court’s refusal to jury allow a view have adduced mitigating evidence when Temple Kirtland presen before the jury had heard ample testimony as to tation of during evidence penalty the nature and extent plea of each agree- phase. Petitioner requested this view for ment. Finally, Petitioner has failed to the purpose of “allowing] to bet show how the trial court’s per- refusal to ter comprehend the testimony to pre be mit a jury view of the Kirtland Temple sented and the physical context (d)) (ruling precluded the introduction of setting in which the events place.” took mitigating evidence. (J.A. 2216-17.) at The trial court denied the view because “no evidence was ad D. Effective Assistance of Counsel duced at guilt/innocence phase ... 1. Petitioner Has Procedurally De- which the defense could reasonably allege Certain Subclaims any faulted material fact occurred at the situs requested (J.A. jury view.” Petitioner has successfully pre 2242.) only served some of his ineffective assis tance of counsel subclaims. In

Petitioner his thir has to failed show how this teenth claim for view of relief to the Ohio Kirtland Court of Temple would have Appeals, adduced Petitioner mitigating alleged evidence. ineffective as Petitioner presents sistance of no argument in counsel due to his brief to counsel’s failure this (nor, Court proffer apparently, meaningful the district defense upon the court) about how the entry of a viewing not guilty by would have reason of insanity been mitigating. Moreover, plea by providing Petitioner corroborating expert ample submitted evidence as testimony to his reli- in support of that defense gious beliefs during the penalty phase of its use aas mitigating and/or factor. The the trial. See Lundgren, 653 N.E.2d at Ohio Court of Appeals addressed this issue 321. Accordingly, Petitioner was not pre- merits, on the despite the fact that Peti- a result case to his as prejudice fault and direct on issue raise tioner did Here, Peti- ineffectiveness.4 counsel’s claim involved of that the concluding appeal, his counsel’s argued that See record. has not trial tioner beyond evidence ineffec- 97-L-110, appeal WL direct on performance No. Lundgren, 6164, at LEXIS App. presented Petitioner 1998 Ohio Nor has tive. proce- Therefore, is not this failure claim counsel’s appellate his *13-14. for cause durally defaulted. for relief sub- claim bring his twentieth (i) (d), (h), under his (b), (c), (a), claims relief, Peti- for claim fourteenth his appeal. relief on direct for claim fourteenth assistance ineffective alleged tioner to over- has failed Therefore, raise Petitioner failure to due counsel’s counsel during on sub- default these evidence procedural come objections nine series below). (a) (i), through (numbered claims. trial nine of these only three raised Petitioner on Law Federal Clearly Established (f), ((e), appeal direct upon instances Counsel Constitutionally review, Court the Ohio collateral Defective On (g)). claims of Petitioner’s all held Appeals articulated first Court barred evidence non-objections based determining two-part test now-familiar 97-L-110, No. Lundgren, judicata. res in Strick is ineffective counsel whether LEXIS App. 1998 Ohio WL 668, 104 466 U.S. Washington, land default procedural *13. For (1984), “[i]t 80 L.Ed.2d S.Ct. claims however, only those Court, rule forth set question past on direct bring failed to Petitioner clearly established qualifies Strickland subsequently were and which review the Su law, as determined Federal defaulted. procedurally are deemed barred States.” the United Court preme (h), (d), (b), (c), (a), Therefore, subclaims 390, 120 529 U.S. at Taylor, Williams sub- defaulted, but (i) procedurally are Strickland, show 1495. Under S.Ct. for (f), preserved (e), (g) are claims ineffec was assistance counsel’s that his review. in show burden the tive, bears Petitioner relief, Peti- for claim In his twentieth was 1) performance counsel’s that his ing assistance ineffective alleged tioner words, it “fell below deficient, in other in- failure counsel’s counsel because reasonableness,” standard objective an suppress motions file vestigate and/or by prejudiced 2) that Petitioner search from a warrantless found evidence performance. attorney’s deficient the been had Petitioner the barn 687-88, 104 S.Ct. Strickland, at U.S. Averys’ bodies the in which renting 2052. this not raise did Petitioner were found. estab has Court Ohio Court the appeal, and on direct claim deficiency the for objective test by res an barred lished the claim found Appeals 97-L-110, com defendant a convicted No. Lundgren, “When prong: See judicata. counsel’s LEXIS App. 964592, 1998 ineffectiveness Ohio of the plains 1998 WL Therefore, pro- is claim must show assistance, 6164, *13. defendant at the ob an below cedurally defaulted. fell representation counsel’s reasonableness,” as standard jective procedural may overcome Petitioner norms.” professional by “prevailing judged the de- for showing cause only by default the prevail on fundamental cannot Petitioner presented overwhelming evidence the 4. Given prong. justice miscarriage of case, including fact in Petitioner's Averys, shooting the admitted Petitioner 687-88,. at Id. 104 S.Ct. 2052. “Indicia of sion only weakly supported by the record objective unreasonableness include the vio- likely more to have been affected lation of ‘certain basic duties’ inherent in errors than one with overwhelming record representation defendant, of criminal support.” Strickland, 466 U.S. at among a ‘duty them of loyalty’ to the S.Ct. In making this determination client, from which derive ‘the overarching as to prejudice, this Court examines the duty to advocate the defendant’s cause combined effect of all acts of counsel more particular duties to consult with found to be constitutionally deficient, in on important defendant decisions and light of totality evidence to keep the defendant informed of impor- See, case. e.g., Foltz, Blackburn v. tant developments in the course of the (6th F.2d Cir.1987). If Peti- ” prosecution.’ Bell, Rickman v. 131 F.3d tioner fails to prove either deficiency or (6th Cir.1997) (quoting Strick- prejudice, then Petitioner’s ineffective as- land, 2052). at U.S. 104 S.Ct. sistance of counsel claims must fail. assessing deficient performance, reviewing Strickland, U.S. 104 S.Ct. 2052 courts must take care to avoid “second- (“[A] court need not determine whether guessing” strategic decisions failed to performance counsel’s was deficient before bear fruit. Id. at 104 S.Ct. 2052. examining prejudice suffered If Petitioner is successful in prov defendant as a result of the alleged defi- ing performance, deficient Petitioner must ciencies .... If it is easier to dispose of then show that counsel’s constitutionally an ineffectiveness claim on the ground of deficient performance prejudiced Petition lack of sufficient prejudice ... that course er. Petitioner “need not show that coun followed.”) should be sel’s deficient conduct likely more than not Capital defense counsel altered has af case,” outcome rather, duty firmative pursue only mitigation that “there evi is a probability reasonable dence that, and to but conduct an appropriate unprofessional counsel’s inves er rors, tigation potential into result of mitigating the proceeding factors: would have been different.” Strickland, 466 U.S. Counsel’s constitutional duty to investi- 104 S.Ct. 2052. Ohio is a “weigh gate a defendant’s background prepa- state, ing” which means that the aggrava ration for the sentencing phase of a ting circumstances must outweigh the miti capital trial is “well-established.” Cole- gating in factors order to impose the death Mitchell, man v. (6th 417, 268 F.3d 449 penalty. Under law, federal juror one Cir.2001); see Bell, also v. Austin 126 may prevent the death penalty by finding 843, (6th F.3d Cir.1997). 848 “pros- that mitigating factors outweigh aggrava pect being of put to death unless coun- ting factors. As Supreme Court re sel obtains presents something in cently said in Wiggins, “prejudice” mitigation” magnifies counsel’s responsi- prong is satisfied if “there ais reasonable bility investigate. to Mapes v. Coyle, probability that at juror least one would 408, (6th 171 F.3d Cir.1999). 426 And have struck a different balance.” Wiggins notwithstanding the deference Strick- Smith, v. 510, 539 523-28, U.S. 123 S.Ct. requires, land neither this court nor the 2527, 156 L.Ed.2d 471 Supreme Court has hesitated to deem

In determining prejudice whether deficient counsel’s failure to fulfill this has resulted errors, counsel’s obligation. See, court e.g., Wiggins Smith, v. “must consider the totality of the evidence 539 523-28, U.S. 123 S.Ct. 156 before jury.... [A] verdict or conclu- (2003) L.Ed.2d 471 ... (concluding that

771 11.4.1(C), p. § Penalty Cases in Death investi- their expand to failure counsel’s (1989) adding emphasis). 93 back- personal defendant’s of gation physical (6th included which Bell, 637-638 ground, F.3d 417 v. Harries presentence abuse, beyond .2005). sexual Cir Social of Department investigation Not Was Counsel Deficient Defense constitu- constituted reports Services Guilty by Not Assert a Failing to performance); deficient tionally Insanity Reason Defense of 362, 395, 529 U.S. Taylor, v. Williams his trial that alleges Petitioner ... 389 L.Ed.2d 120 S.Ct. guilty a not assert to counsel’s failure “to con- failure (2000) counsel’s (finding was constitu insanity defense reason that would investigation an duct Petitioner tionally performance. defective graphically records extensive uncovered his this Court brief child- states nightmarish describing Williams’ an appropri Bell, to obtain “failed trial counsel deficient); Carter hood” about Cir.2000) (conclud- testimony [Peti (6th to offer expert ate F.3d 596-97 which time at in- at the of mind failure tioner’s] state counsel’s defense ing 46.) (Pet’r social, Br. family, occurred.” offenses defendant’s these vestigate argument legal “constitut- forth background puts then psychological Petitioner an below entitled a level are at defendants representation criminal ed reasonableness”). law cites case objective experts standard health mental (Pet’r Br. 47- concern this contention. principal “our Accordingly, support Oklahoma, exercised 470 U.S. [counsel] 49, citing Ake deciding whether (1985) is ... judgment L.Ed.2d 53 professional 71, 105 S.Ct. reasonable supporting minimum, investigation assure must, (“The at whether State miti- to introduce psy competent decision counsel’s access the defendant back- [Harries’s] evidence gating appropriate an conduct will who chiatrist Wig- itself reasonable.” ground ”).) argues .... Petitioner examination 522-23, 123 S.Ct. at U.S. gins, to “ask failed counsel trial Petitioner’s omit- and citations (internal quotations contemplated expert [as] an and secure for investiga- ted). counsel’s assessing “In 48.) (Pet’r Br. Ake.” objective re- conduct tion, must we a counsel’s in that is correct Petitioner measured performance, of their view a not possibility explore failure profes- prevailing under ‘reasonableness insanity defense by reason guilty ” 523, 123 S.Ct. at Id. norms.’ sional including investigation, through reasonable Strickland, U.S. (quoting expert, health mental qualified use of 2052). recent ... More 688, 104 S.Ct. constitutionally the level rise can United Guidelines, ABA Strickland, 466 U.S. counsel. defective recognized has Court States (“[Strategic choices 690-91,104 S.Ct. norms, professional reflecting prevailing investiga- complete less than after made into miti- “investigations that emphasize the extent to precisely reasonable are tion comprise efforts ‘should evidence gating judgments professional reasonable miti- reasonably available all discover to investigation. on limitations support rebut to and evidence evidence gating duty to words, has counsel other may be evidence aggravating to make investigations reasonable make Wig- prosecutor.’” by the introduced particu- makes decision a reasonable S.Ct. at 539 U.S. gins, see also unnecessary.”); investigations lar Ap- for Guidelines ABA (quoting (6th Cir. Collins, 332 F.3d Powell of Counsel Performance pointment 2003) (holding that capital defendant is admitted, goessling on cross-examination, entitled to mental expert- health during that she should could not reach a conclu- guilt penalty phases); Sims v. Live sion that Petitioner was not sane at the say, (6th Cir.1992). 970 F.2d crimes, time of his Petitioner has no sub- Here, however, the only conclusion sup grounds stantive on which to claim that ported the record before Court this' is trial strategic counsel’s choice was unrea- that defense counsel did secure appropri sonable.5 ate mental health experts and did make an To the extent that Petitioner’s ar adequate investigation into Petitioner’s gument can be framed as one impugning mental state background well before the competency of the psychologists re the criminal trial. tained to counsel, assist trial Petitioner’s Petitioner’s trial requested counsel argument has little merit. The Constitu received funding for two clinical psycholo- tion does not require indigent gists, Dr. Newton Jackson and Nancy Dr. criminal defendant be able retain the Schmidtgoessling. Petitioner has consti- expert of his choosing, only that a compe tutional right only one mental health expert tent be Ake, made available. See expert. Ake, See U.S. 105 S.Ct. 470 U.S. at 105 S.Ct. 1087. A licensed 1087. Records submitted the court indi- practitioner is generally held to be compe cate that these psychologists each evaluat- tent, unless counsel has good reason to ed Petitioner well before Petitioner’s Au- believe to the contrary. Skaggs v. gust Cf. 1990 guilt-phase trial. These same Parker, (6th 235 F.3d Cir.2000) records show that the psychologists met (finding defense counsel’s reliance on ex with Petitioner’s defense counsel in ad- pert during penalty phase unreasonable in vance of trial and each had evaluated after light of expert’s highly unusual and eccen Moreover, Petitioner. both mental health tric behavior during guilt, Here, experts phase). interviewed people from Petition- Petitioner presents no er’s background, evidence that Dr. including immediate fami- Jackson ly and Dr. members. Schmidtgoessling were incompetent. Instead, Petitioner submits diligence Counsel’s just not obtaining an affidavit of Ph.D. psychologist Jeffrey the constitutionally mandated single men- Smalldon opines who that Petitioner tal health expert, but two mental health “should have been seen as eligible ... experts, shows that counsel engaged in a a defense of not guilty by reason insani reasonable investigation into Petitioner’s (J.A. ty.” 121.) mental question state at the before time of the crimes. Court, however, Counsel’s decision not pursue whether all an insani- ty mental defense health experts must be understood would agree as a strate- one, gic absent any whether compelling defense viable, evidence to was but the contrary. Given that whether defense counsel’s counsel decision not to pursue did call Dr. Schmidtgoessling during the defense was a reasonable strategic penalty phase to testify to Petitioner’s choice. “[Reasonably diligent may counsel mental condition, but that Dr. Schmidt- draw line when they have good reason to 5. To the extent that argument Petitioner's Moreover, can S.Ct. 1087. to the extent that two be framed as counsel’s procure failure psychologists being paid through defense mental expert health whose conclusions were counsel could not conclude that Petitioner Petitioner, Petitioner’s favorable claim must insane, counsel’s decision to discontinue also fail. Petitioner does have not a constitu- pursuit of that line of defense was a reason- right tional expert to an whose conclusions able one. Ake, favor Petitioner. See 470 U.S. at possible. De- the extent evidence to a cal be would investigation further think Schmidtgoessling — Dr. placed Beard, fense counsel Rompilla U.S. waste.” ” testi- Schmidtgoessling Dr. on the stand. L.Ed.2d 2463, 162 —, —,125 S.Ct. family back- difficult Petitioner’s fied to (2005).6 discipline of forms the unusual ground, time at the information counsel’s Given child, to as a subjected had Petitioner been the support to trial, is no evidence there of had Petitioner abuse emotional and the un- was decision that counsel’s conclusion parents. Dr. by his subjected to been reasonable. Petitioner’s that testified Schmidtgoessling perception of Petitioner’s of his phase affected penalty the beliefs religious As to as- Petitioner diagnosed ineffective for she reality, claim and that trial, Petitioner’s the with mental disorder personality of to use mixed the with respect sistance narcissism, para- being Con- features similarly fail. dominant must experts health Dr. tendencies. noia, contention, and anti-social defense Petitioner’s trary to that, in testified Schmidtgoessling further psychologi- mitigating did submit counsel assert the defense to enough, failure that the argues that Petitioner's Although the dissent 6. of counsel assistance ineffective constitutes the defense present to failure counsel’s as whether factors assis- to such ineffective reference to without amounted insanity at trial nothing counsel, as insane and actually regarded himself there is the Petitioner tance insanity a willing on an have such defense support to reliance he was to whether the record the dis- argument, (according to Dr. support of its his behalf presented defense. Jeffrey L. Dr. diagnosis of Smalldon, did not the however, lucid and cites was sent Petitioner 94), testimo- Smalldon; see, insane, Dr. Smalldon’s e.g., J.A. at regard as himself diagno- provides a definitive actually ny never circumstances considering such without at time of was insane Petitioner straightfor- sis that strategy even or as matters Rather, indicated Smalldon Dr. crimes. counsel his by Petitioner belief and/or ward as delusional regards Petitioner that he how no matter was not insane that Petitioner have should [Petitioner] that "such psychotic Petitioner religiously-motivated delusional his 1990 time of eligible at the as been seen committing murders. may been have by reason of guilty not a defense trial for that reveals own discussion dissent’s The 121). Ironically, Dr. (J.A. at insanity.” has never been decree” of "deific defense after legal conclusion offers Smalldon of Peti- the circumstances under successful Schmidtgoessling's conclusion criticizing Dr. i.e., case, was no mental there where tioner's as a was insane” he believe "I don’t that testify the defendant's to to expert able health opinion, psychological opposed "legal, as investiga- diligent insanity, despite counsel’s give.” qualified something was she under Ake. required as the defense tion into 121). (J.A. at argument would the dissent’s The success legal litera- canvassed has dissent Petition- contention that on the appear to rest counsel’s Petitioner’s that and concluded ture insanity explore the duty counsel had er’s insanity at the present a defense failure on the reliance beyond the reasonable defense ineffec- trial constituted Petitioner's time of experts al- health findings two mental de- that because of counsel tive assistance say hired, could of whom one ready neither dissent, was the fense, opinion of Ohio law. under was insane that Petitioner might to Petitioner available only one ex- to doubt no reason counsel had Yet penal- escape death permitted him The dis- or conclusions. capabilities perts’ true, points the dissent Although it is ty. investigation counsel’s conclusion sent’s in which out, reported cases there are contradicts was unreasonable basis presented as the decree” "deific cases, that, capital holding even Court’s defense, been suc- has the defense insanity qualified only one entitled defendant times, (or as the seven only four times cessful expense of the expert health mental cases) been and has never counts dissent expert state, the conclusions even if Consequently, there can in Ohio. successful Ake, 470 U.S. See defense. favor the fail to has been defense that the no contention be S.Ct. successfully enough, or frequently utilized her opinion as a psychologist, Petitioner odors, fensive testimony as to “really ... believed that it was right to kill the Averys’ (J.A. stomach contents. these folks because he believed that God 10106-27.) at (J.A. 10836.) commanded him to do so.” at (g) Testimony concerning “other acts may It inferred, be however, Dr. evidence” not related to or similar to Schmidtgoessling’s conclusion that Peti- the offenses at bar. “insane,” tioner was not that in her view (h) Prosecutorial recitation of facts not Petitioner’s thinking delusional did not rise during evidence closing argument. legal definition of insanity under (i) Prosecutorial argument that the de- Ohio law. fense “sanitized” and “whitewashed” Given the of a absence factual basis (J.A. 10351.) the case. at claim, Petitioner’s the state court’s conclu- (Pet’r 55.) Br. sion that defense counsel was not ineffec- As analyzed supra, (a), (b), subclaims tive for its present failure to an insanity (c), (d), (h), (i) are procedurally de- defense cannot be said to contrary be to or faulted, and Petitioner has failed to over- application unreasonable of federal law.

come his default. Only (e), (f), subclaims Counsel k- Was Not (g) preserved are Defense for our review. Ineffec- tive in Failing Object to Particu- a. Counsel’s lar object Pieces is not Evidence failure usually performance deficient In his relief, fourteenth claim for Peti- tioner alleged matter, As ineffective threshold assistance trial of any size, due counsel to counsel’s failure to numerous potentially raise objectiona series of objections nine at trial. ble events occur. ob- “[T]he Constitution does jects nonobjections of the are as follows: insure that defense counsel will recog

(a) Evidence of nize and raise every character of the vic- conceivable constitu

tims, though even tional their Isaac, claim.” Engle character 456 U.S. was not issue. 102 S.Ct. 71 L.Ed.2d 783 (b) (1982). Moreover, Evidence as to experienced what the prosecutor trial coun

told police sel learn objections do as it related to to each potentially the search objectionable and recovery of the vic- event could actually act to bodies, tims’ which had the effect their party’s detriment. Learned counsel bolstering the witness’ testimony objections therefore use in a tactical man and establishing appearance of ner. In light of this, any single failure to conducting a search in conformity object usually cannot be said to have been with the law. error unless the evidence sought is prej so (c) A witness’ mentioning of “Jones- udicial to a client that object failure to (J.A. 9579.) town.” essentially defaults the case to the state. (d) Expert opinions that were Otherwise, not stated defense counsel must so consis in terms probability. tently fail to objections, use despite nu (e) Demonstrative use and merous admission clear reasons so, for doing

numerous firearms and other mate- counsel’s failure cannot reasonably rials unconnected to the death have been said to have been part of a trial Averys. strategy or tactical choice. Hodge See (f) Use of the decayed victims’ Hurley, (6th clothing 426 F.3d Cir.2005) body (“[C]ounsel’s attached “parts,” resulting object failure to to any of the prejudicial introduction of of- numerous improper statements in the conclusory prosecution's closing argument Petitioner's assertions that the is well out cumulative effect of the errors denied Peti- [professional norms].") (emphasis side right original).7 tioner his to effective assistance of guilt counsel. The evidence of Petitioner's b. Petitioner fails to show how overwhelming. was Petitioner admitted to alleged prejudiced errors counsel shooting Averys. Accomplices testi- Petitioner against provided fied Petitioner and details assuming, a'rguendo, of the crimes. Coroner's evidence corrob- Even that prove accomplices' testimony. Petitioner is able to that it was error orated the Foren- object sic evidence further corroborated the ac- for counsel to fail to to the above- evidence, complices' penalty phase, referenced Petitioner has failed accounts. In the 1) object any Petitioner himself did not disclaim the to show how the failure to of the enumerated instances amounts to a acts, merely but asserted that his actions deprivation counsel, wrong constitutional of and were not because God's will direct- 2) prejudiced by light overwhelming how Petitioner was ed them. of this admission-i.e., why evidence, this Court should find it is difficult to conclude that probability probability that "there is a reasonable there exists a reasonable that that, unprofessional but for counsel's er alleged errors, but for the the result of rors, proceeding the result of the would guilt penalty phases either the or would have been different." Strickland 466 U.S. have been different. at 104 S.Ct. 2052. Petitioner is not presumption prejudice e. The Court of Ohio's sion entitled to a of un "fail[ed] less it can be said that his counsel was not an unreasonable cation Petitioner meaningfully oppose prosecution's preserved has review Nixon, 175, 179, case." Florida v. 543 U.S. allegations his of ineffective assistanceof 125 S.Ct. 160 L.Ed.2d 565 counsel due to counsel's failure object (subclaim(e)), presents argument firearmsevidence Petitioner no Hodge support prejudice prong beyond the convict the basis of the exception Hodge repeated badchar-acter. Withthe of 7. This Court found and certain pervasive prosecutorial misconduct, to which objected: arguments, defense counsel never the bad- character thesestatements are }lodge's precisely review, prosecutor harmful case To accused Hodge "lying"; complain- they false,unsupported, stated that the because misleading, are ing `absolutely believable"; they witness was ratherthan because are testifying "wrongful- accused Dr. Steiner of true argu- but inad- missible.As to the bad-character ly" "unethically," telling lie"; ments,they sufficiently egregious "a were telling stated that defense counsel was lie"; severely misrepresented "a warrant, minimum, to objection testimony following at thebench conclusion Omley, examining physician; of Dr. pros- argument. ecution's rebuttal We are (incorrectly) finding stated that a in favor of un- able articulatea sound Hodge required finding great- that Fenn's professional why rea-son defensecounsel did grandmother great-aunt were "absolute object pattern repeatedmiscdnduct, liars"; suggested (without any evidence) accordingly we must conclude that Hodge frequent underage was a drink- object coun- sel'sfailureto er; (without any evidence) insinuated range professionallycompetent "outsidethe wide assis Hodge get part prosecu- wanted to Strickland, tance" 690, U.S. family's Security checks; sug- tor's Social S.Ct. 2 0 gested Hodge type person was the jury running night; 5 2 . should fear into at Hodge generally argued 426 F.3d at 386. should (subclaim victims’ clothing (f)), and “other to proffer objections, Petitioner had failed (subclaim acts” evidence (g)). to prove prejudice. See Lundgren, No. 90-L-15-140, 1998 WL 1993 Ohio Petitioner argues that his trial App. *91-92; LEXIS Lundgren, counsel should have objected to the state’s 653 N.E.2d at 324. addition, In the Ohio introduction of firearms evidence which Supreme Court observed: was “unconnected to the death of the Averys.” counsel Petitioner vigorously pro- further contends that fessionally his trial counsel objected should have defended his client an un- presentation the of the Averys’ putrified popular part cause. As a of that strenu- clothing in the Finally, defense, courtroom. Peti ous counsel could make tactical argues tioner that defense counsel should choices. Lundgren’s trial strategy was objected have to the testimony of an Offi to concede that he shot Averys, the but cer Alvord that revealed that Petitioner argue he did not deserve pen- the death had been investigation under plans alty, given his sincere religious motives. assault the Kirtland Temple. facts, Under the the decision not to ob- review, On direct ject the Ohio issues Court raised in Ap- propositions of peals found that five, the six, court did not seven, commit law eight, nine, eleven, plain error allowing the thirteen, firearms and fourteen, twenty-one, twenty- ostensible “other acts” evidence into two, the twenty-three did not fall below trial, concluding that while the firearms objective standard reasonableness. (and presumably the testimony going to Lundgren, (internal N.E.2d assault) the planned were “questionable quotation omitted). and citation relevance,” Petitioner had failed estab- The district court found the firearms lish that but for disputed evidence, evidence admissible as relevant to a find- “the results of guilt or penalty phases ing of prior calculation design would have been Lundgren, otherwise.” therefore concluded that counsel did not 90-L-15-140, No. 1993 WL err in failing object to their admission. App. LEXIS, Ohio at *19-20. The Ohio addition, the district court found that Supreme agreed, Court summarily finding Agent Alvord’s testimony revealing suspi- that Petitioner was prejudiced not by the cion of plans Petitioner’s to assault admission of the evidence under plain Temple was admissible because it was error ad- standard. See Lundgren, mitted the context agent’s of the N.E.2d at testi- mony tending to reveal that Petitioner was Petitioner argues that his trial counsel packed and ready to move and therefore should objected prosecution’s had prior calculation and design to kill the use, court, Averys’ clothing as Averys and then quit the area. Finally, visual exhibits of where bullets penetrated. the district court concluded that The clothing, recovered from the buried clothes were properly admitted show Averys, bodies was accompanied by that their defects were consistent with “pungently acrid” smell. testimony as to the gunshot victims’ Both the Ohio Court of Appeals and the wounds. Ohio Supreme Court failed to treat sepa- rately each The Ohio evidentiary subclaim under Court’s conclusion Pe- titioner’s ineffective cannot be assistance of said to be either “contrary counsel to” assignment of Instead, error. nor an the courts “unreasonable application” of the concluded generally that even were Peti- Strickland test. The evidence against Pe- tioner able to prove counsel erred in failing titioner going to guilt was undisputed, and credibil- for the (b) vouching improperly plan- crime—the of the elements the basic witnesses, ity government five—are family of of a and execution ning of them- in and factors re- witnesses strong aggravating (c) continually questioning support does character, Petitioner selves. Petitioner’s garding how, the above without Court briefs to (d) the defense “sanitized” arguing that probability a reasonable evidence, “there case, and and “whitewashed” er- unprofessional that, for counsel’s but jury from prevented it had would proceeding rors, result in the case true facts looking at the Strickland, 466 U.S. different.” have been 10351), (J.A. at argu- Petitioner’s 2052. 694, 104 at S.Ct. “knew counsel (e) defense that arguing fail. must subclaims these ment under (J.A. 10352), at had” they were consider (f) jury should that the arguing Summary 5. experienced” victims “terror the his defaulted procedurally has Petitioner (J.A. 10354), counsel assistance ineffective claims by in evidence not evidence, arguing facts (g) character victim on premised as into looked Petitioner stating that Jonestown, of “cer- the use the mention before he Avery barn of Karen eyes warrantless language, tainty” her, mis- prosecutorial and search, wiretap, shot to cause argument Without conduct. guilty return (h) jury to exhorting the up on issues these bring his failure

for “suffer could so Petitioner verdict overcome cannot Petitioner appeal, direct (J.A. 10360), consequences” default. procedural this un- adversely on (i) commenting show claims non-defaulted Petitioner’s statement of Petitioner sworn nature on premised relief habeas for grounds no phase, penalty during Petition- counsel. assistance ineffective of com- juror’s sense (j) appealing not for reason ample had trial counsel er’s Peti- on vengeance to take munity per- and had insanity defense bringing tioner, and Pe- into investigation a reasonable formed witness. (k) defense coercing potential background. state mental titioner’s 58-59). (See Br. Pet’r determination Moreover, court’s the state prejudice prove subclaims, failed has Petitioner Petitioner these Of cloth- (k) the victims’ (i) by the introduction only subclaims preserved evidence, Petitioner’s firearms ing, the Petitioner appeal. on direct arguing them contrary plans was assault Temple for subclaims of his remainder raised of federal application unreasonable nor an in state attack on collateral first time law. review, the Ohio collateral On court. Petitioner’s all of held Appeals Court Misconduct Prosecutorial E. misconduct prosecutorial on based claims De- Procedurally No. Lundgren, Has judicata. Petitioner res barred 964592, 1998 Ohio Subclaims 97-L-110, Certain 1998 WL faulted procedural For 6164, at *13. LEXIS App. preserve failed has Petitioner however, only those Court, default claims misconduct prosecutorial of his bulk bring on failed Petitioner claims argues Petitioner for review. subsequently were and which fundamentally review direct him denied prosecutor defaulted. procedurally are deemed following: barred doing the fair trial (k) (i) pre- are Therefore, subclaims questions, leading asking (a)continually 77 review,

served for while the remaining The Supreme Court has advised that subclaims are procedurally defaulted. isolated prosecutor’s statements aof argu- ment, Here, argued Petitioner has not that his like all closing arguments counsel, are performance counsel’s appeal on direct seldom carefully constructed in toto be- Nor ineffective. pre- has Petitioner event; fore the improvisation frequently sented cause appellate coun- results in syntax left imperfect and sel’s bring failure to his prosecutorial mis- less meaning crystal than clear. While (a), (b), (c), conduct (d), (e), subclaims (f), general these observations in way no (h), (g), (j) on appeal. direct There- justify prosecutorial misconduct, they do fore, Petitioner has failed overcome his suggest that a court lightly should not procedural default these subclaims. infer a prosecutor intends an am- biguous remark to have its most damag- 2. Prosecutorial Misconduct Legal ing meaning or that jury, sitting Standard through lengthy exhortation, will draw that meaning from plethora the of less review, On habeas “the rele damaging interpretations. question vant is whether prosecutor’s the Donnelly, 416 646-47, comments U.S. at ‘so 94 infected the trial with S.Ct. unfair 1868. This Court ness has as to further make the conviction instructed a denial of ” courts to consider: due process.’ Darden v. Wainwright, 168, 477 181, degree the U.S. to 2464, 106 S.Ct. the 91 remarks com- (1986) plained 144 L.Ed.2d have a tendency to (quoting Donnelly v. mislead jury the and DeChristoforo, prejudice to accused; 416 U.S. the 94 S.Ct. whether they (1974)). 40 are extensive; isolated or L.Ed.2d 431 “Even if the they whether prosecutor’s deliberately were or conduct acci- was improper or even dentally placed before the universally and condemned, the provide we can re strength of competent the only proof lief if the es- statements flagrant were so guilt tablish the of the accused. as to render the entire trial fundamentally Parker, unfair.” Bowling v. 487, Angel 344 v. Overberg, (6th F.3d 682 F.2d 608 (6th Cir.2003). 512 Cir.1982) (en banc). Reversal required is This Court has re- only if the prosecutor’s fused to misconduct find a prosecutor’s is “so prejudicial pronounced persistent and comments to it per constitute misconduct when meates the the atmosphere entire behavior was the trial so “fundamentally or so gross as unfair probably deny prejudice [the the due pro- defendant] defendant.” cess based on Pitcher, Pritchett v. the totality F.3d the circum- (6th Cir.1997); stances.” Mitchell, Hamblin v. see also v. Gall F.3d Parker, (6th Cir.2003) (internal (6th F.3d Cir.2000), quotations omitted).8 overruled on citations grounds other sub nom Bowl ing, 344 F.3d at 501 n. 3. If a court does AEDPA, Under this bar heightened is find a constitutional error in the sentenc by the deference this Court grant must ing phase, the court must then ask wheth the Ohio Supreme Court’s rulings on Peti- er the constitutional error influenced the tioner’s prosecutorial-miscon- nondefaulted jury’s decision between life death. duct claims. See Bowling, 513; 344 F.3d at 8. The panel Hamblin prosecutor's found blow, duced only one improper both prej- repeated references udicial, to numerous blows re- prosecutorial but not misconduct. victim, ceived the when ad- evidence 354 F.3d at 495. negates rights Amendment Fifth Makowski, F.3d Macias see also statutory prerogative. Cir.2002) (“If court the defendant’s (6th 447, 453-54 prosecu- the However, totally we appeal, restrict direct case hearing the were would comment prosecutor’s making any the tor from concluded might have process due unfair, Macias’s where especially violated be comments likewise on a us statement, before case is defendant, But this unsworn rights. So corpus. of habeas a writ for “the petition something less than offered has not whether question nothing relevant but truth, truth the whole wrong, but was decision state court’s ... where Therefore truth.” application unreasonable it was an whether unsworn make an defendant chooses law.”). federal clearly established capi- stage of penalty in the statement may comment trial, prosecution tal Sub- Under Allegation Petitioner’s S. has not statement defendant’s in Fact (k) Basis Has No claim affirmation, oath made under been (k) that in subclaim argues Petitioner limited to must be comment such but a de- coerced improperly prosecutor jury that defendant’s reminding the threat- (a coconspirator) fense witness oath, in under not made statement unindicted status review ening to other testimony of all contrast testified person if the the witness witnesses. evidence no presents Petitioner defense. 275, 528 DePew, St.3d 38 Ohio State however, nor makes charge, of this 542, 554 N.E.2d testimony this type as to what argument repeated made supplying. from prosecutor The prevented was witness testify for Peti nature of did Moreover, coconspirator unsworn this references preju- finding jury defense, to a the precluding testimony and invited the tioner’s denied alleged coercion that the from Petition or dice conclusions negative draw fundamentally fair trial. during Petitioner oath testify under to er’s failure phase trials. penalty guilt or his either Under Comments The Prosecutor’s f. aggravating or mitigating the reviewing But (i) Improper, Were Subclaim always case, prosecutor the in the evidence Petitioner Prejudice Not Did as statement to Petitioner’s referred prosecution were The comments statement.” “unsworn a. The Prosecutor’s during its initial references improper made six such closing rebuttal In its argument. closing ei “forbids The Fifth Amendment more did much prosecution the argument, on the prosecution by the ther comment statement to Petitioner’s merely refer than by the silence instructions accused’s the invited prosecution The as “unsworn.” is evidence such silence court the inference negative jury draw to U.S. California, 380 guilt.” Griffin was un (1965). statement that Petitioner’s fact L.Ed.2d 106 615, 85 S.Ct. initially went argument The sworn. Code, Section Revised Ohio follow: in a 2929.03(D)(1) defendant grants the [Petitioner’s] problem The other make an right the proceeding capital gentle- ladies and yesterday, statement stage. penalty the at statement unsworn remarks Judge the men, is, heard you that: has found Court Supreme Ohio The pros- other it, [the have heard you about extensively prosecutor the permit it, state- attorney] mention ecuting defen- the fact on the comment under given was yesterday ment affects unsworn statement dant’s Now, oath. is it because the Defendant duct requiring reversal on appellate re- is not familiar with an oath? Griffin, view. See 380 U.S. at (J.A. 11259.) at S.Ct. 1229. A reviewing court need not verdict, reverse a however, sentence or if

At point objected. defense counsel it the finds comment amounted to ensued, A sidebar prosecutor the beyond harmless error argued that Ohio reasonable doubt. permitted law comment on See Chapman the unsworn v. California, nature of a defendant’s 386 U.S. capital sentencing phase (1967). statement. 87 S.Ct. Over 17 L.Ed.2d 705 defense objection, counsel’s the trial court An may error be harmless the when state permitted prosecutor’s the comment on the presents an otherwise “compelling case of unsworn nature of statement, Petitioner’s guilt” review of the record as a but cautioned counsel to avoid “undue em- whole shows that the verdict would (J.A. 11261.) phasis.’’ at prosecution have been the See same. United States then jury: continued 499, 511, Hasting, U.S. 103 S.Ct. gentlemen, Ladies and during the course 76 L.Ed.2d 96 of testimony, during the post-phases of In Chapman, Court re- trial, you indication to that the versed the high California court because of Defendant made Kevin Currie swear air a prosecutor’s repeated references to the if oath and he oath, violated that he was defendants’ Chapman, silence. 386 U.S. to die. He had the naked dancing wom- 25-26, 87 S.Ct. 824. Pursuant to Cali- en swear an oath as they returned to law, fornia prosecutor implied that the their husbands with their soiled under- jury could draw an inference state garments and he had their humiliated fact which would been within

husbands swear an oath allegiance personal defendant’s knowledge. him dressed in full Id. military gear after 26-42, fact, the conclusion of S.Ct. 824. In that dancing prose- ceremony. cution’s closing argument Ladies gentlemen, structured the statement given almost entirely around Defendant defendants’ yesterday, refusal prophet God, you testify. compound Id. To heard oath injury, ad- ministered Judge but pursuant Parks each also and law, to California the every witness who came into this court- trial court also instructed jury the that it room[;] that they swore af- and/or could draw negative inferences the firmed that the testimony that I am defendants’ silence on matters within the going give you, jury, the is the personal defendants’ knowledge. Id. at you truth as shall answer to God. 25-26, 87 S.Ct. Supreme 824. The Court Defendant, The gentlemen, ladies and that, held in a case where “fair-minded did take such an oath. You are jurors might very well brought in permitted, gentlemen, ladies and to con- not-guilty verdicts,” the emphasis on de- sider that you fact as consider his testi- fendants’ silence impossible made it say mony. “that the prosecutor's comments and the (J.A. 11261-62.) trial judge’s instructions did not contribute petitioners’ convictions.” Id. at

b. The improper statements under sub- S.Ct. (i) claim 824. do not amount to revers-

ible error DePew, the Ohio Supreme Court prosecutor’s

A prosecutor’s found a comments, comment on a although defendant’s silence is improper improper, and may “in light harmless of the over- rise to the prosecutorial level of miscon- whelming weight of the aggravating cir- court, how The 323. 653 N.E.2d at gren, to the relative case in this cumstances DePew, the statements were ever, concluded mitigation” in offered factors aggravating com had “the because prosecutor error harmless N.E.2d out strongly in this case mented: circumstances defendant, beyond he the factors any mitigating weighed gentleman [T]he the times about Supreme five different Id. The you doubt.” Ohio told reasonable we all took, the oath about and you sentence independent oath its referenced Court take, the oath I take, the oath Id.; see for its conclusion. assessment oath ex- takes the everybody you finding the reflected holding take — This infra. enough defendant; isn’t man he the cept Appeals, of the Ohio Court lower Ev- the oath. take here and get up improper, but statements the also found Ev- the oath. took in this ease erybody “overwhelming the light in harmless right raised case in this erybody case rel this circumstances aggravating solemnly I man, says he hand to factors.” Lund mitigating the ative to truth, truth the the whole tell swear to 90-L-15-140, 1993 WL No. gren, me help truth so the nothing but at *31. LEXIS App. 1993 Ohio except DePew. Everybody God. 2929.05(A), § Ohio Rev.Code Under Id. to “in- required are courts appellate Ohio a conditional granted later This Court cir- weigh” aggravating dependently prison- to the state corpus habeas writ factors: mitigating against the cumstances prosecution’s because in DePeiv er supreme and the appeals The court unsworn prisoner’s comments judgment review court shall prose- statement, combined when imposed of death the sentence case and inflam- misleading and numerous cutor’s judges in of three panel by the court trial and throughout matory comments review other they manner the same effect had the closing arguments, during cases, they shall except that evidence, criminal proper without impugning, all weigh theory independently be- mitigation review sole prisoner’s Anderson, disclosed evidence DePew and other jury. fore facts Cir.2002) (“Cumulatively, it (6th consider the case and in the the record F.3d harmless.”)9 are not to determine errors offender is clear these and the offense circumstances aggravating whether found the Court The Ohio of commit- guilty found the offender was un- reference repeated prosecution’s mitigating factors outweigh the ting Lund- See improper. statement sworn no such told the such] mention numerous supreme court found 9. The state ex- prosecutor then The existed. by prosecution: conviction the improper statements totally irrele- and commented hibited openly declared case prosecutor in this The appellant depicting next photograph care hearing he not vant that did pretrial aat Further, prosecu- the marijuana plant. treatment. fair appellant received whether penalty the the tor, closing prosecutor informed remarks Later in his the necessarily not fight, was alleged knife not juiy that "it’s stage, the told appel- evidence, thereby that implied and twenty you three counts get if true wrongdoing, of which guilty lant not sixty up to add it will life —that's Further, absolutely evidence. no there was does in- necessarily While this true.” jury on a prosecutor commented the (see of the law a total misstatement volve unsup- appellant, conviction subsequent [E]), certainly could and it 2967.13[D] R.C. record, and in the evidence ported misleading. as be construed by the trial being admonished then [after DePew, at 556. N.E.2d against previously warned judge, who had case, and whether the sentence of As for the statutory mitigating factors death is appropriate. specified in 2929.04(B), R.C. we find added). (emphasis lack significant crim- Pursuant § 2929.05(A), inal convictions given Ohio must be Court in some mit- dependently igating weight 2929.04(B)(5). under aggravating reexamined R.C. and mitigating However, factors in Petitioner’s case other listed factors and affirmed 2929.04(B)(1) the sentence of R.C. (4), (6), death. See through and Lundgren, (7) 653 N.E.2d at The appear 324-25. do not to be applicable in this Ohio Supreme Court determined: case. None of the victims “induced or independent

After pursuant assessment facilitated” the offenses Lundgren to our 2929.05, duties “duress, under R.C. did not coercion, we act under n determine that supports strong provocation.” evidence Also, as Dr. aggravating circumstances of which Schmidtgoessling testified, Lundgren’s Lundgren guilty was found beyond a personality qualify disorder does not Now, reasonable doubt. we must also a “mental disease or defect.” .... Fi- weigh the facts and evidence the rec- nally, Lundgren, thirty-eight who was ord and consider Lundgren and his of- offenses, time of the princi- was the fenses to determine whether aggra- pal offender. Except for Lundgren’s vating circumstances of which Lundgren personality disorder the other mat- was convicted outweigh the mitigating already ters considered as to his histo- factors in this case beyond a reasonable ry, character, and background, no “oth- doubt. er appear factors” relevant. Therefore, First, we find that the nature and cir- weighing the aggravating circumstances cumstances of these offenses do not of- against foregoing mitigating factors, slightest fer the mitigating value. we conclude that the aggravating cir- contrast, we determine features of cumstances as to each murder for which Lundgren’s history, character, and back- Lundgren was convicted outweigh the ground are entitled some mitigating mitigating factors presented by this weight. Lundgren’s in early difficulties beyond case a reasonable doubt. childhood adversely shaped personal- We also conclude that the death penalty ity, and his personality disorder, as at- imposed for aggravated each murder is tested to Dr. Schmidtgoessling, ad- appropriate and proportionate when versely affected his ability cope compared with similar capital cases. throughout life. He has four children This upheld court has the death penalty and served honorably with Navy in cases involving “course of conduct” during the Vietnam Additionally, War. murders .... This court has upheld also we accord some mitigating weight the death penalty in cases involving Lundgren’s life-long struggles to find murders occurring during the commis- meaning redemption through reli- sion of a kidnapping. gion, Bible, and the Book of Mor- Id. mon. Unquestionably, he holds his reli- gious deeply beliefs state of strongly, Ohio argues that this re- those helped shape weighing beliefs cured impermissible his life. weight Overall, however, jury we find may that the the given miti- the prosecutor’s gating features of Lundgren’s impermissible back- pursuant remarks to the ground, history, and character are enti- United Supreme States Court’s holding in to only tled modest weight. Clemons v. 738, 494 Mississippi U.S. 110

783 such factors: reweighed (1990). independently and The 1441, L.Ed.2d S.Ct. cir “Therefore, aggravating the appellate weighing a state held that Court Clemons mitigat foregoing consideration the against a trial court’s cumstances can cure court factors the factors, aggrava aggravating we conclude unconstitutional ing of aggravating “reweighing” murder independently as each ting circumstances reaching a sen and factors mitigating outweigh and . was convicted Lundgren fac the of the consideration without tence this presented mitigating factors the level. the trial impermissible found tors Lund doubt.” beyond a reasonable case 1441. 740, 110 S.Ct. Id. at at 324-25. 653 N.E.2d gren, reweigh held that has Court This of conclusion Ohio’s Supreme Court under Court Supreme by the Ohio ing fed- application an unreasonable was not 2929.05(A) the § satisfies Rev.Code Ohio address- were this Court Even eral law. the court when of Clemons requirements prosecutorial misconduct ing Petitioner’s aggrava impermissible eliminates either four- under review the upon direct claim mitigating overlooked adds or ting factors prosecutorial for reversible factor test11 420 F.3d Bagley, v. Baston See factors.10 Circuit, fac- the fourth in this misconduct Cir.2005). (6th This Court has 632, 638 evidence the strength of total tor —the however, case, in which addressed not counsel defendant —would the against trial level cure is said reweighing the prosecu- the finding even strongly against jury’s the prejudice tending to violation on Petitioner’s commentary extended tor’s evidence, opposed view flagrant to constitute statement unsworn factor impermissible of an inclusion jury’s error. reversible therefore and misconduct mitigating relevant consider a or failure aggravating reweighed Having however, find, id. We See factor. improper without factors mitigating applica supports of Clemons premise testi- refusal to Petitioner’s inference errors doctrine of the Clemons tion Supreme Court oath, the Ohio fy under Clemons, here. See complained sort outweighed factors aggravating found (“We ac 110 S.Ct. 494 U.S. reason- “beyond a factors mitigating weigh nothing appellate cordingly see ad- does not Petitioner Id. able doubt.” aggravating and of the reweighing or ing reweighing high court’s the state odds is at dress mitigating circumstances factors, let mitigating fairness aggravating contemporary standards reweighing has likely this inherently unreliable what effect alone that is or of the the evidence arbitrary imposition analysis. Given to result this Court’s sentence.”) case, cannot this Court in this death presented con- of Ohio’s Court Supreme say that the consid- Court Here, the Ohio application an unreasonable clusion cir- mitigating aggravating ered the law. federal case in Petitioner’s present cumstances (1) the likelihood considers: Court held This Supreme Court has States United

10. The Arizona, tended prosecutor 536 U.S. that the remarks Ring v. ruling in that its defendant; (2002), prejudice or 153 L.Ed.2d mislead 122 S.Ct. having ex- exhausted were isolated (2) to cases the remarks is not retroactive whether Summerlin, delib- tensive; (3) See Schriro were review. direct remarks whether made; (4) 159 L.Ed.2d S.Ct. the total U.S. accidentally erately or di- exhausted had Petitioner Because against the defen- evidence strength of the Ring, years before seven Adams, rect review 376 F.3d See Millender dant. Ring whether address Court need Cir.2004). (6th rule. the Clemons affects 784 Summary in overlooked bypassing only his available I defense. will then show in why, light of alleged

Petitioner eleven instances of considerations, these conduct of prosecutorial misconduct. Petitioner has Lundgren’s counsel was manifestly inef- defaulted nine of these eleven subclaims— (a), (b), (c), (d), fective. The (e), (f), writ of (h), corpus habeas (g), (j)— should and has have in failed to issued this show cause for case to require his de- new (i) fault. Of remaining trial in Lundgren subclaims would be allowed (k), (i) only has present basis in fact. insanity With defense before the (i), respect subclaim the Ohio Supreme jury.

Court’s determination prosecu- I. Insanity as a tor’s comments on Defense Petitioner’s unsworn statement constituted harmless error was Widespread A. The Insanity Use of not an application unreasonable of federal in Deific Decree Cases law, in light significant evidence For over two years, hundred trial coun going guilt toward both and the weight of sel presented have insanity defense in aggravating circumstances. “deific decree” in many states, cases in

III. Ohio, cluding and England. See v. State (Utah 342, 20 Lafferty, 2001) P.3d CONCLUSION (Mormon fundamentalist, who killed his For the reasons, foregoing we DENY sister-in-law and her infant pursuant child petition for a writ of habeas corpus. to God’s revelation,” “removal presented insanity defense to jury); v. People Cod MERRITT, Judge, Circuit dissenting. dington, 529, 23 Cal.4th 97 Cal.Rptr.2d Lundgren testified that killed he a fam- 528, 1081, 1103, P.3d (2000), 1110-14 ily of five cult members a religious overruled on grounds by Price v. different so, sacrifice. said, He did he because he Superior Court, 25 Cal.4th 108 Cal. received a command from God that Rptr.2d 409, (2001) 25 P.3d 13n. sacrifice necessary to prepare for (defendant presented insanity defense to “Zion” and the “Second Coming.” I dis- jury after strangling chaperones of two agree with our Court’s decision and rea- girls sexually he abused professedly be soning in section II.D.3. above rejecting cause God actions); commanded the State Lundgren’s ineffective assistance coun- Blair, 143 N.H. 732 A.2d 449- sel claim based on trial counsel’s inexpli- (1999) (counsel presented insanity de cable failure to raise the defense of insan- fense jury in case in which husband ity. Other than insanity Lundgren had bludgeoned his wife and son with a ham no defense. In many similar “deific de- mer after experiencing a “trance” in which cree” cases in which a person “delusional” God revealed that he would be cast into Lundgren like professed to be following if lake fire so); he refused do kill, God’s command to defense lawyers Serravo, People (Colo. P.2d uniformly almost an insanity entered 1992) (en banc) plea (jury found has accepted defendant not the de- —and guilty fense some of the reason of insanity cases. As we for stabbing shall see, even the his wife “in prosecutors order to sever the marriage case not could understand bond” in why Lundgren’s accordance with God’s purported lawyers did not enter such instructions); I defense. Ryan, State v. 233 Neb. will apply also Ohio’s definition of (1989) (cult insanity N.W.2d leader light a mental theory illness plea counsel entered guilty by reason of

785 insanity de victory,” presented of spoils “com- following Yahweh’s insanity after Wilhoite, 228 jury); People v. to fense an “unfaithful” and kill to torture mand” 561, 12, 592 169 Ill.Dec. N.E.2d Ill.App.3d State, 486 So.2d member); Laney v. cult (court (1991) not defendant 48, found 55-58 (defendant (Miss.1986) shot 1242, 1245-46 fol insanity after she of by reason guilty purportedly because God officers police nine- to shove her lowed “command” God’s insanity presented act and commanded apartment of win daughter out year-old Cameron, 100 v. State jury); to defense if to see the defendant “a test pass dow to (1983) (en 650, 520, 654 674 P.2d Wash.2d to the immi prior get into heaven” could insanity banc) de- regarding (jury question world); Perkey v. Card nent end implemented defendant when existed fense (S.D.Ohio well, 770, F.Supp. 770-74 369 repeatedly his to stab “command” God’s Cir.1974) (6th 1244 aff'd, 1973), 492 F.2d within spirit” “evil stop to stepmother (defendant carrying out claimed was he 200, Ariz. Malumphy, 105 v. her); State and en by shooting victim orders God’s (1969) (defendant, who 677, P.2d 678 461 of insani guilty by not reason plea of tered due to co-employees two killed shot Guiteau, 161, v. F. States 10 ty); United deeds, sanctioned that God his belief (defendant (D.D.C.1882) alleged he 186 jury); State insanity to defense presented to command kill following God’s 401, 279, Paolo, A.2d N.J. 168 Di 34 v. insanity defense presented president (defendant In (1961) repeatedly Fellow Mehren, Elizabeth jury); 407-08 to Ex-Priest, Murdering pro- Los Guilty God mate ex-girlfriend because stabbed of (Mas 2006, Times, 26, A15 Jan. pre- Angeles the actions fessedly commanded inmate, com claimed who God People v. sachusetts jury); to insanity defense sented priest, pre him to kill defrocked manded 945, Schmidt, 324, N.E. 945 110 216 N.Y. Mom jury); to insanity defense sented (defendant, God com- (1915) who claimed to with Rocks Killed Kids Who Committed sacrifice, aas to kill a woman him manded 2004, 7, Trib., Apr. Hospital, Chi. Mental State jury); insanity defense presented (Texas innocent mother found at 8 01C01-9508-CC-00270, Hudson, No. v. of two insanity she stoned after reason of 77844, *1, (Tenn.Crim.App. 8 1999 WL heavy rocks sons death young her 1999) remanded Feb.19, court (appellate in with God’s in accordance professedly guilty judgment of entry for of Origin Moran, structions); Richard of in which defen- insanity in case reason Trial Verdict: The Special Insanity as nephew, be- one-month-old her dant shot (1800), 19 James Treason Hadfield to kill her had instructed that God lieving (1985) (jury Soc’y Rev. &Law McDaniel, v. State Satan”); “the son de insanity pled who defendant acquitted (Ohio 887184, at *2-3 WL No. shooting of following attempted fense 1998) (defendant, after Ct.App. Dec. direction); at God’s England purportedly king of that God religious delusion experiencing Wilson, 242 Conn. State v. . cf wife with kill his him to commanded (1997) (“An individu A.2d insanity defense bat, presented baseball that causes under a laboring delusion al State, 499- Ivery 686 So.2d jury); approbation in the divine him to believe (defendant, who, who in all (Ala.Crim.App.1996) is an individual his conduct fully able “ninja of God” to be unlikely practicality, to be claimed cond wrongfulness of that peo- kill “to appreciate command God’s have followed uct.”).1 money as the take their ple at will and assistance constitute ineffective held to decree cases only a few deific I am aware State, P.2d Galloway counsel. present- was not insanity defense which the (defendant, pro- at the (Okla.Crim.App.1985) them, to do so was failure In one ed. fact, In insanity the defense even at Id. 504-06. Renowned barrister Thom- raised in the trial of Lundgren’s one of cult as Erskine defended Hadfield and entered followers, see Luff, State v. 85 App.3d Ohio an insanity plea, jury and the returned a 785, 493, 621 (1993),but, N.E.2d 498 verdict of not guilty by of insanity. reason puzzlement prosecutors, of the was not 408, at Id. 508. presented own case: Forty-three later, years the House of None of the cult yet defendants had as Lords promulgated rule, M’Naghten the pled guilty by [not reason of insanity], provides if, the defense of insanity though even the acts in question were so “at the time of the committing act, the illogical, and some of the other conduct party accused was labouring under such a of the group members was so bizarre reason, defect of mind, from disease of the prosecutors that the had why wondered not as to know the nature of quality at least one of them had not entered the act or, he was doing; it, if he did know such a plea. [he] did not know he was doing what was Cynthia Peggy Stalter Sassé & Murphy wrong.” Case, M’Naghten’s Eng. 8 Rep. Widder, (1991) The Kirtland Massacre 273 718, (1843). 722 Use of insanity de- (full-length book co-written one of fense deific decree cases has espe- been Lundgren’s prosecutors). cially widespread jurisdictions like Ohio following some form of the M’Naghten Origins B. Insanity The Staten, rule. See State v. 13, 18 Ohio St.2d Defense in Deific Decree (1969) (The 247 N.E.2d 295 Ohio Su- Cases preme Court always “has stated the sub- early As as the defense of not stance of M’Naghten] [the rule as a part of guilty by reason insanity was successful own its test for determining whether an in a deific decree in England. case See accused be should relieved of criminal re- generally Case, 27 How. St. Tr. Hadfield’s sponsibility act.”); for an Margaret E. (K.B.1800). Hadfield, James a for- Clark, Comment, The Immutable Com- soldier, mer British fired a horse pistol mand Meets the Unknowable Mind: Deif- King George III in Drury Lane Theatre ic Decree Claims and the Insanity Defense but missed King’s head than less Serravo, People v. 70 Denv. U.L.Rev. after Moran, foot-and-a-half. Richard The Ori- (“The (1992) major cases dealing gin Insanity as a Special Verdict: The with the deific decree come from M’Naght- Trial Treason James for Hadfield jurisdictions.”). en (1800), Law Soc’y & Rev. (1985). Hadfield believed that had example God classic of insanity under told him to sacrifice himself to save the the M’Naghten rule was the deific decree world chose assassinating King as to kill. In year one after M’Naght way surest of assuring his own death. decided, en’s Case was Judi God, fessed direction of "drove demons out” interpret that defense as an admission of neighbor him). of his by killing another, but, In retrial, guilt, in his allowed counsel to represented the defendant himself. Jon Kra- present insanity defense. Lafferty, State v. kauer, Under Banner Heaven (Utah xxii-xxiii 20 P.3d 2001); State v. Laffer (large print 2003) (Mormon ed. ty, fundamental- (Utah 1988). 749 P.2d ist killed his addition, sister-in-law her infant child prosecutors why wondered some of pursuant revelation”). God’s "removal Lundgren's followers did not raise the insani

The brother of the ty aforementioned defendant Cynthia defense. See Peg Stalter Sassé & declined to insanity raise the Widder, defense in his gy Murphy The Kirtland Massacre first trial because he believed would do,' he was thing to wrong provided of Massachusetts —then cial Court mind, and was condition responsible trial in a murder insanity illustration justice, not of object compassion, to cite case American the first credited acquitted.” Id. test, & now ought H. Morris be Grant M’Naghten To Kill”: Haroun, Told Me “God Ansar Delusion?, Diego 38 San

Religion later, Benjamin Thirty years Justice (2001): 973, 1004 L.Rev. New York Cardozo, writing then fully he where is instance A common that, in the concluded Appeals, of Court doing is done he is the act that believes commentators, the deific de- two words of God, and of command immediate by the strongest case “the presented to kill cree sincere the delusive but under acts he under insane” finding the defendant for by the doing is he is what that belief Haroun, Morris & M’Naghten rule. the which superior power, of a command recounted Cardozo 1007. Justice supra, at laws, the laws and all human supersedes insanity and of examples previous two the nature. of another: provided (7 48 Mass. Rogers, v. Commonwealth to whom infant child A kills her mother (1844). Met.) 500, 503 She devotedly attached. she has been tried 1882, Guiteau In Charles act; quality and the knows nature Garfield James assassinating President it; but law condemns the knows that she defense, insanity the upon relied an delusion by insane inspired is she kill the told him to claiming that God her and or- to appeared has that God jury the judge instructed President. a mock- It the seems dained sacrifice. in- of example to the above citation meaning of that, the within ery say to own illustration: his sanity and with act is statute, the knows that the she be an man, to you know whom Another wrong. Al- father, insists affectionate 324, Schmidt, 110 N.E. 216 N.Y. People v. com- him and to appeared has mighty Car- According to Justice 945, 949 No his to sacrifice child. him manded criminally a defendant dozo, holding such duty him his has reasoning convinced “abhorrent,” be responsible would to is as real it, command do but the jury instruc- likely disregard jury would No you. is now my voice as him Id. directing otherwise. tion his can shake reasoning or remonstrance times, both before In more modern pur- him from or deter conviction courts, trial, numerous after delusion, the is insane This pose. recog- Ohio, two including at least brain, seems coinage of diseased implicitly, or nized, explicitly either rea- supposed, which defies generally be appropriate as an decree doctrine deific rea- ridicule, palsies son and defense, especially insanity for the basis conscience, and son, blindfolds cited cases jurisdictions. See M’Naghten springs all into disorder throws I.A. supra section action. human Guiteau, F. v. States United Insanity Defense C. Ohio’s M’Naghten (D.D.C.1882). applying insanity applicable definition Ohio’s judge informed rule, specifically was, according to Lundgren’s trial an insane was under “if [Guiteau] Court, liberal “more state’s had command- Almighty that the delusion tradition- than the of crime” accused those act, consequence to do ed him Staten, 18 Ohio rule, State M’Naghten it was al seeing incapable he was (1997) (“What (1969), St.2d 247 N.E.2d constitutes a mental disease was defined as follows:2 or defect question is a jury.”); for the McDaniel,

1. One criminal State v. accused of conduct No. 1998 WL responsible (Ohio 1998) for such criminal con- Ct.App. *3 Dec. if, duct conduct, at the time of such as a (insanity plea in deific present decree case defect, result of mental disease or he jury); Perkey Cardwell, ed to does not capacity have the either to (S.D.Ohio F.Supp. 1973), aff'd, 492 wrongfulness know the his conduct (6th Cir.1974) F.2d 1244 (insanity plea in to conform his conduct require- deific presented decree case to trier of ments of law .... fact). In order to establish the defense of The following two sections both apply insanity where raised in a crimi- plea elements of Ohio’s definition insanity nal proceeding, the accused must estab- Lundgren case and that a conclude lish a preponderance of the evidence jury justifiably could have considered that disease or other defect of his mind Lundgren legally insane. impaired that, had so his reason at the time of the criminal act with which he is II. Mental Disease or Defect charged, either he did not know that A mental theory health upon which in- such act was wrong or he did not have sanity could have been based readily was ability the to refrain from doing that act. available the time of Lundgren’s trial. Luff, 785, State v. 85 Ohio App.3d 621 Based diagnosis on the Jeffrey Dr. L. (1993) N.E.2d Staten, (quoting Smalldon attached to Lundgren’s habeas court)). N.E.2d at (syllabus by the petition, psychiatric literature, and Thus, Ohio law’s definition insanity had treatment of similar deific decree killings (1) two elements: defect, mental disease law, in the case there was at least a jury (2) a corresponding incapacity “either question as to whether Lundgren, a cult to know the wrongfulness of his conduct or leader whose extreme deranged reli- to conform his conduct to requirements gious prompted views his belief that God of law.” Id. The Court of Ohio commanded him to kill a five, family of emphasized has that “insanity is an issue suffered from the mental condition known for the to decide” and that “[t]he as delusional disorder with grandiose

weight given to be the evidence and the themes. credibility of the concerning witnesses establishment of the of insanity defense in A. Overview of Delusional Disorder a criminal proceeding are primarily for the with Grandiose Themes trier of the Thomas, facts.” State v. Although the definition of “delusion” and Ohio St.2d 434 N.E.2d 1357-58 the propriety of (1982); encompassing religious Oklahoma, see also Ake v. 470 U.S. 68, 81, 105 beliefs within that (1985) definition S.Ct. are both 84 L.Ed.2d 53 unsettled, (“Perhaps somewhat ample because there there is sup- is no single, often port in psychiatric accurate the psychiatric legal conclusion on in literature for the sanity given case, in a juries remain notion that some extreme beliefs like the primary factfinders on ....”); this issue deific decree kill are delusional and Robinson, Paul H. § Criminal Law grandiose. 9.3 At the time of Lundgren’s tri- changed Ohio has since its definition of 621 N.E.2d insanity. Luff, See State v. App.3d 85 Ohio Delu- Defining Spitzer, On Manfried See defined al, “delusion” term sions, Psychiatry Comprehensive Manual and Statistical Diagnostic 1987) (1990) question (rev.3d (stating that ed. Disorders Mental religious profes- falsity inapplicable is (“DSM-III-R”), “psychiatric truth or Haroun, dilemma, Bible,” beliefs). & Morris to this Responding diagnostic sion’s sources), various all (quoting excluding proposed at 1023 supra, scholars some constituting delu- as: religious beliefs on incor- sions, based like Freud have charac- belief others personal while A false reality and about external belief as delusional. religious inference rect terized all almost of what spite firmly sustained published In an article Id. at 379. spite else believes

everyone trial, Dr. Manfried year and ob- incontrovertible what constitutes as of these both views Spitzer dismissed “ contrary. or evidence proof vious clinically cheap’ solutions” ‘quick and ordinarily accepted not one The belief the APA’s unjustified, opting instead person’s cul- by other members some, all, religious general view (i.e., not an arti- it is subculture ture or dif- Spitzer Id. Dr. are delusional. beliefs faith). religious cle of defining DSM with the APA’s fered sets out DSM 395.3 The clear- DSM-III-R more to accommodate so as delusion disorder. of delusional subtypes various delusions religious ly problem delusion,” “grandiose subtype is such One reality which external about “statements in- whose content delusion “[a] as defined about a mental statements uttered like are im- of one’s sense exaggerated volves certainty and i.e., subjective state, with identity. or knowledge, power, portance, Id. at 391. by others.” incorrigible somatic, or other religious, may have It delusion, of of definition Regardless psychiatrist’s 396. The Id. theme.” of, majority mental vast many, if not the with people notes that further “Bible” APA with the professionals agree health leaders “can become grandiose delusions re purportedly that Spitzer Dr. some These defi- at 200. Id. religious cults.” of be should experiences beliefs ligious American nitions, published both The New Harvard delusional. considered (“APA”), explicitly, Association Psychiatric two over published Psychiatry, Guide the notion inartfully, embrace though trial, describes years before As are delusional. beliefs religious some un delusions religious grandiose both noted, “the commentators two recent “Schizophrenic heading general der ‘authentic’ re- between distinguishes DSM V. Tsuang, Stephen T. Ming Disorders.” as that are characterized ligious beliefs Schizophrenic Disor Day, & Max Faraone religious beliefs ‘nonauthentic’ normal Psy ders, Guide to New Harvard abnormal, in The as characterized may be Jr., (Armand Nicholi, M. chiatry & 267-68 Morris is, psychopathological.” text, 1988). patient ed., According to Haroun, at 1037. supra, be the universe” “king claiming to be of DSM’s at the leveled chief criticism A with God relationship special of his cause usage of the delusion its of definition Id. at delusion. grandiose from suffers belief,” generates “false phrase religious delu describes The text scientifically legally problem obvious depth: greater sions even religious beliefs. false divining true of and of "delusion” of DSM, definitions quite Diagnostic similar version current 3. The DSM- found in those “grandiose delusion” to Disorders Mental Manual and Statistical Haroun, supra, at 1025. & See Morris ("DSM-IV-TR”), III-R. 2000) provides (rev. 4th ed. Religious delusions are false beliefs that busy he was preaching to pa- his fellow religious spiritual involve themes. tients and letting them know he had The delusional status of a religious belief given been a special mandate from God obvious, may be the case of a bring in new converts through his patient who collected a roomful grape- ability to Eventually, preoccu- heal. fruits they because she believed con- pation diminished, with special powers tained the essence of God. More than and no other evidence of psychopatholo- delusions, however, with other the delu- gy was observed. patient was dis- sional status of religious beliefs may be charged, having received no medication difficult to religious establish. A belief at all. Two months later he was arrest- is not delusional if consistent with the theater, ed at a local this time for dis- patient’s cultural context. For example, rupting the showing of a film that de- many Jehovah’s believe in Witnesses picted subjects he believed to be satanic. imminent end of the world. Such a Benjamin James Sadock Virginia & Alcott belief would not be delusional if ex- Sadock, Kaplan & Sadock’s Synopsis pressed by sect, a member of that but it (9th ed.2003). Psychiatry 517 might be delusional if expressed by a nonreligious person ... A delusional re- Other sources similarly posit the exis- ligious likely belief is to lead to function- tence of religious delusions. See Joseph impairment. al Westermeyer, Some Cross-Cultural As- Id. at (emphasis pects Delusions, 267-68 in original). in Delusional Beliefs (Thomas 216-17 eds., F. Oltmanns et al. lead, Following the DSM’s a recent psy- 1988) (describing study patients chiatry textbook grandiose illustrates a type religious delusions); delusional disorder with Robert L. religious Spitzer, example: First, Michael B. Kenneth S. Kendler & Stein, 51-year-old

A Dan J. The Reliability man was arrested for dis- Three turbing peace. Delusions, Police had been Bizarre 150 Am. Definitions of called to a local park to him stop from (1993) J. Psychiatry (discussing carving his initials and those of a recent- themes). delusions with religious ly formed religious cult into various Perhaps the most clinically effective trees surrounding a pond in park. method for distinguishing authentic reli- confronted, When he had scornfully ar- gious experience insanity from was un- gued that having been chosen to begin a covered in study a of how mental health new religious revival, townwide it was professionals diagnoses. make such See necessary for him to publicize his intent Sanderson, Susan Brian Vandenberg & in a permanent fashion. police The Paese, Paul Authentic Religious Experi- were unsuccessful in preventing the man ence Insanity?, or 55 J. Psychol. Clinical from cutting another tree and arrested (1999) (hereinafter “Sanderson Psychiatric him. examination was or- Study”). The Study Sanderson asked dered at the state hospital, and pa- sixty-seven professionals mental health tient was observed there for several eighteen rate religious different beliefs as weeks. He denied emotional diffi- authentic religious experiences or as delu- culty and had never received psychiatric sions with religious content. Id. at treatment. 609- There was no history of eu- 10. phoria The religious or studied swings. mood beliefs patient ranged The angry was from being following about a hospitalized biblical passage and to “cut only gradually permitted the doctor off the hand that has sinned” cutting however, interview him. In a days, few out the habit of shopping to hearing the my opinion, within reasonable is [I]t to sacrifice telling person voice of God certainty, that Mr. Lund- scenarios, psychological eighteen Id. Of his child. charac- from both severe (cid:127)gren suffers considered professionals the mental psychotic and a disorder. ter disorder to be to sacrifice child deific decree conclusively Although I am unable and the most authentic religiously least possibility of Paranoid rule out authors of- at 611. The Id. delusional. my opinion psy- Schizophrenia, their conclusions: summary of fered as ei- is described chotic condition best in the factor determining “The essential Disorder, Type Mixed Delusional ther to which ... the degree was ratings (with grandiose persecutory and from con- experience deviated religious themes) Not Psychotic Disorder Oth- or practices. and religious beliefs ventional Specified. erwise experi- unconventional The more (J.A. 0118.) specification The “Mixed and ence, religiously authentic less no one delusional Type” “applies when healthy it deemed mentally less DSM-IV-TR predominates.” theme be. charac- Dr. Accordingly, Smalldon’s cultur- from of deviation importance delusional disor- Lundgren’s terization fact by the is underscored al convention Type” presumably resulted as “Mixed der au- least experiences rated the two grandiose both of his identification healthy were also mentally and thentic above, themes, persecutory discussed severe the most that involved the two forth the fol- sets themes. DSM-IV-TR with complying consequences: physical “Persecutory Type” lowing definition one’s to sacrifice from God request disorder: delusional interpreta- child, following a literal applies when central subtype This to cut off scripture the biblical tion of per- involves of the delusion theme suggest ... results hand These one’s being con- that he or she son’s belief something doing were that participants on, cheated, fol- spied spired against, us- prescribes, to what DSM-IV similar lowed, drugged, maliciously poisoned as the basis cultural norms ing (implicit) harassed, in the or obstructed maligned, religious experience evaluating goals. Small long-term pursuit health.” mental exaggerated and become my be slights Id. at 614.4 ... system delusional focus of a delusions persecutory Individuals Condition Mental

B. angry may resentful are often they those be- against to violence Diagnoses Dr. resort Smalldon 1. The hurting Schmidtgoessling lieve are them. Dr. Id. Lundgren’s attached to affidavit trial, DSM- Smalldon, Lundgren’s time of Jeffrey L. At the Dr. petition, habeas criteria diagnostic five Ohio, established diagnosed III-R licensed psychologist first and “es- The disorder.5 follows: for delusional as mental condition Lundgren’s culture, contract it to not dominant disagreed 4. Two commentators Morris partici- conforming orthodox.” Study’s that the views conclusion Sanderson Haroun, following DSM’s essentially pants supra, at were & 1040. arguing the “DSM- that prescriptions, instead consid- cultural of ethnic and IV’s discussion essentially provides at 329 5. DSM-IV-TR expand the clearly was intended erations criteria. same five thought the ideas of beyond scope ‘normal’ sential” feature of delusional disorder is He has to possess special claimed pow- presence persistent, “the of a ers, nonbizzare among them the ability predict delusion” of at least one month’s duration events; future ability to “sense” the that is not product of another mental presence people and events which are disorder. DSM-III-R at 202. Dis geographical at a remove from where he tinguishing “bizarre” from “nonbizarre” is; ability and the to trigger “natural” science, delusions is not an exact especially events such as earth tremors. re-He religious the context of delusions. See portedly told his followers that he was generally Spitzer al., Robert supra L. et present Golgotha at when Jesus Christ (discussing three definitions bizarre de crucified, and that in other ways as lusions). DSM-III-R, nonetheless, de well he was able to transcend re- fines a “bizarre delusion” as “[a] false be strictions of time. He claims to have lief that involves phenomenon that the experienced multiple “visions” where he person’s regard culture totally would has had him illuminated for certain as- implausible.” at DSM-III-R 395. Exam pects special of his mission on earth. ples religious of bizarre delusions include (J.A. 0108.) Lundgren reportedly an that, “the belief swallowing, when person that, nounced because of his faithfulness ingests parts of the Devil” and the delu killing the Averys, gave Jesus Christ elderly sion “of an widow who believes that Lundgren the title “God of the whole body her has been parasites; invaded Earth,” made him divine and so immortal by traveling up and down her spinal col bullets, he could not “pierced” by be umn, they have created a magnetic current knives, objects, other and made him rosary causes beads near her to rotate “the law.” Earley, Prophet Pete Death: in a clockwise direction.” Robert L. Spit The Mormon Killings Blood-Atonement al., zer supra, et at 881. On the other (see (1991); 0105.). also J.A. More hand, nonbizarre generally delusions in over, Lundgren’s belief God instruct volve life, situations that occur in real ed him to kill Avery family was “per followed, “such as being infected, poisoned, sistent” in that it lasted more than one distance, loved at disease, having a [or] month. He received the “revelation” being deceived spouse one’s or lover.” roughly six murder, months before the see DSM-III-R at person 202. A incorrectly Earley, supra, at and apparently believing that he has a special message day maintains to this that God commanded from a deity is an example of a nonbizarre killings. religious delusion. See DSM-IV-TR at diagnostic second criterion is that “[a]uditory hallucinations, or visual if pres- belief God commanded ent, are prominent [as defined him kill Avery family to “purify” the ) A(l)(6 Schizophrenia, ].” DSM-III-R at cult so that the members could see God is 202. A “hallucination” is sensory “[a] likely per- most a “nonbizarre delusion” and is ception without external stimulation dissimilar “totally implausible” be- sensory organ.” relevant liefs Id. at characterizing 398. Re- “bizarre” religious de- ligious God,” lusions. “I am a delusions are less common in prophet Lund- gren Schizophrenia claimed than various types his unsworn other statement at delusions, “[hjallucinations the sentencing at phase, “I am id. even and more (J.A. 10894.) than a prophet.” occurring in at Dr. the course of an intensely Smalldon religious summarized some of shared experience generally have beliefs that could be grandiose pathological considered no significance,” id. at A 398. delusions: “prominent hallucination” “through- occurs cocaine) condition medical or a general several days or day for several out disease). at See id. weeks, hal- Alzheimer’s (e.g., each for several a week times record at 324. The being 201; limited not DSM-IV-TR lucinatory experience The Lundgren drugs at took Id. 194. not show that moments.” does few brief assessing Lundgren consti- experts medical condition any health had such or mental hallu- (See experienced he at indicate that factor. J.A. organic did not an tuting event, any and, hallucina- cinations, 0111.) too apparently occurring were in fact

tions indicated, Lundgren Dr. Smalldon As “prominent.” to be considered brief for delu- all five criteria satisfy appears is not Third, behavior the individual’s disorder. sional from the apart or “obviously odd bizarre” a li Schmidtgoessling, also Nancy Dr. at Id. ramifications. and their delusions similarly dur testified psychologist, censed daily “[ijmpairment Accordingly, that, through his odd phase penalty ing Lund- at 200. rare.” Id. functioning is “more views, Lundgren became religious to be “obvi appear not did behavior gren’s caught up reality,” “more with of touch out reli from his apart or bizarre” ously odd visions,” “more and and his in revelations For ramifications. and their gious beliefs 10829.) (J.A. noted at She grandiose.” movies and watching enjoyed he example, “special he that had Lundgren’s belief 10970.); (J.A. Cyn at weights. See lifting interpret could “biblical powers” Murphy Peggy Wid & Sassé thia Stalter and that one else could” way in a no things 45-46, 63-64 der, Kirtland Massacre right it .... that was “really believed he (1991). that he kill these folks because believed Major Depressive Fourth, “[i]f (J.A. at him to do so.” commanded God during present has been Syndrome Manic 10836.) Lund- concluded She disturbance, the dura total the delusional personality a mixed gren suffered syndrome the mood episodes all tion of be features predominate with disorder the total duration brief relative has been anti-social narcissism, paranoia, ing DSM-III- disturbance.” delusional 10834.) (J.A. she did Although at traits. Depressive Major Both R at 202. insane or Lundgren was not believe terms, nei defined Syndrome are Manic (J.A. at or defect a mental disease had Lund to describe appear ther of which ultimately question 10860.), insanity is 217, 222; (cf. J.A. id. gren. See witnesses, to de expert jury, not (“He Smalldon] me [Dr. struck Thomas, 70 Ohio St.2d See State cide. unusually anxious nor depressed neither 1356, 1357 79, 434 N.E.2d met Fifth, never “[h]as the individual Addressing Cases 2. Similar it can- Schizophrenia, A for criterion Disorder Delusional factor organic an established not be in two situations Trial counsel the disturbance.” and maintained initiated pre- case similarity to instant striking does Lundgren at 202. DSM-III-R jury, as insanity defense sented Schizophre- A for to meet criterion appear defen- on the basis part, least as schizo- nia, diagnosed has not been rural Ne- In a disorder. delusional dant’s term at 194-95. The id. phrenic.6 See 1980s, Michael early setting in (e.g., braska to a substance factor” refers “organic paragraph 65 of his Schizophrenia” in noid "I unable am asserted 6. Dr. Smalldon 0118.) (J.A. at Para- affidavit. possibility of conclusively rule out 794

Ryan formed a religious and led cult devel issue to the jury. Ryan, 444 N.W.2d at oped out of teachings group the of a called 617. the “Posse Ryan, Comitatus.” State v. Another strikingly similar situation 74, (1989). 610, 233 Neb. 444 N.W.2d 617 out of arose two murders in July Utah on Like Lundgren, Ryan stockpiled weapons 24,1984. Ron and Lafferty, Dan two Mor- in apocalyptic anticipation, practiced polyg brothers, mon joined fundamentalist amy, frequently and “talked to Yahweh.” Prophets” “School they where re- 1985, Ryan Id. at 618-19. In claimed that ceived “revelations” from God and em-

Yahweh appalling ordered the torture and braced the doctrine “plural marriage.” death of one cult member who was “lack (Utah 342, v. Lafferty, State 20 P.3d ing in faith” purify so as to the farm before 2001); Krakauer, Jon Under the Banner the immaculate birth of one of the cult ed.2003). print Heaven 260 (large 620-22; member’s Id. at Ryan children. spring Ron received a “remov- Clarke, F.Supp.2d 1058 al revelation” ordering the deaths of his Cir.2004), (D.Neb.2003), (8th aff'd, 387 F.3d 785 who, daughter, sister-in-law her infant — denied, —, rt. U.S. ce according “revelation,” had become 2526, 161 S.Ct. L.Ed.2d 1119 path. “obstacles” God’s Lafferty, 20 later, at 352. years P.3d Two Lafferty At Ryan his trial plead not brothers fulfilled the “revelation” guilty by with insanity. Ryan, reason murders so they inspired horrific Jon Kra- N.W.2d at defense, 632. To bolster this full-length kauer’s book Under the Ryan Banner presented testimony psychi- of a Heaven. That day, same the brothers atrist and a psychologist. The psychiatrist a plan abandoned to murder the local Mor- diagnosed Ryan suffering paranoid mon leader who previously had excommu- schizophrenia “auditory hallucina- nicated Ron from the Mormon church. tions, delusions, psychosis.” Ryan, State v. Lafferty, 749 P.2d F.Supp.2d at 1059. At penalty (Utah 1988). phase, the psychiatrist same further testi- fied Ryan “actively was psychotic” At his first trial in Ron refused “clearly delusional.” Ryan, 444 present insanity defense because he N.W.2d at 644. The psychologist defense’s jury believed interpret would that de- did not diagnose paranoid schizophrenia fense as an of guilt.7 admission Id. at but instead Ryan concluded that suffered appealed He 1250. the conviction and sen- from a delusional Ryan, disorder. part tence in on the ground that he was F.Supp.2d at 1061 n. 10. psychologist not competent to stand trial. Id. at 1242. further stated “Ryan paranoid had a in prison While awaiting trial, his 1985 Ron personality disorder and a paranoid disor- attempted himself, to hang apparently re- der characterized active delusional sulting in organic some brain damage due thinking.” Id. at 1059. The psy- state’s to oxygen deprivation. Cook, Lafferty v. chiatrist disagreed with both (10th of the de- Cir.1991). 949 F.2d aAt fense’s experts, concluding that Ryan was competency hearing trial, prior his 1985 mentally not ill and exhibited no evidence medical diagnosed examiners him with two psychosis. Id. at (1) 1060-61. Although mental disorders: an amnestic syn- ultimately rejected insanity resulting drome from his attempt, suicide defense, Ryan’s (2) present counsel did disorder, delusional also called himself, Dan Lafferty defended appealed sen- verdict sentence. See tenced prison, Krakauer, to life apparently supra, has at xxii-xxiii.

795 were that Ron’s extreme beliefs concluding Lafferty, system.” delusional “paranoid and, anything, if exhibited 1242-43; psychotic also DSM-III-R not see 749 P.2d personality disorder to delusional of narcissistic (referring symptoms the at 199 (Paranoid) not- Disorder” jury again The “Delusional at 495-511. disorder. Id. “Paranoid was called category defense, but, that this unlike ing insanity rejected the DSM-III). years Over two in counsel, case, Disorder” jury, the Lundgren’s trial, the Utah before Lafferty, 20 sanity. of issue decided the findings the examiners’ summarized Court P.3d at 355. condition: mental of Ron’s deific decree cases in other Counsel para- describing symptoms the In insanity defense at the presented have also that disorder, stated the examiners noid of the defendant’s partly on the basis least religiosity, pervasive Lafferty’s See, v. e.g., People delusional disorder. November, during the noted been had 529, Cal.Rptr.2d 97 Coddington, 23 Cal.4th evaluation, developed had since 1103, (2000), 528, 1081, 1110-14 P.3d system,” “religious a delusional into by Price v. grounds on overruled different to determine Lafferty was unable 1046, Court, 108 Cal. 25 Cal.4th Superior spiritu- himself and between boundaries (2001); 618, n. 409, Rptr.2d 25 P.3d experiencing was that he beings, al Hudson, No. v. 01C01-9508-CC- State boundaries,” that he was ego “blurred (Tenn.Crim.App. at *3-4 1999 WL martyr com- “religious suffering from 1999). Feb.19, “par- created a had that his mind plex,” involving the Therefore, Dr. di- pseudo-community light of Smalldon’s anoid that one systems,” literature, and social legal psychiatric agnosis, “reflective was Lafferty’s revelations cases, Lund- the issues whether similar Lafferty grandiosity,” Messianic disorder from delusional gren suffered system judicial and the hospital felt and whether grandiose themes law corrupt man-made agents were or disease mental condition constitutes God, it and that were on trial before to the presented have been should defect him to [understand] “impossible for jury. oth- objecting to inconsistency his liberty he infringing [while on his ers Wrongfulness Knowledge of III. in- from God to an entitlement claimed] Incapacity to Conform or of others.” liberty fringe the Law Conduct 1242-43. 749 P.2d at Lafferty, least a raises at Lundgren also habeas Ron’s granted Tenth Circuit have met he to whether could question as that the Utah court ground on the petition insanity de- of Ohio’s the second element standard competency misapplied “either incapacity had an he fense—that sys- delusional “paranoid of Ron’s light conduct or wrongfulness his know at 1556. 949 F.2d Lafferty, tem.” requirements conduct conform his and, after was retried Ron App.3d Luff, 85 Ohio law.” State prison, allowed a decade over spending (1993) (quoting State 621 N.E.2d insanity defense. pursue counsel Staten, 247 N.E.2d St.2d 18 Ohio 363. The defense 20 P.3d at Lafferty, court)). (1969) (syllabus by a clinical psychiatrist called knew Lundgren Determining whether both testified who psychologist forensic hinges on of his conduct wrongfulness disor- delusional Ron suffered from to moral “wrong” refers term whether the Krakauer, at 493-94. supra, der. disagreed on wrong. Courts have legal analysis, a different experts offered state’s majority opinion this issue. in Peo of the unsettled status of insanity Ohio’s Schmidt, 324, ple 945, 216 N.Y. 110 N.E. 1990, law in Lundgren’s counsel should (1915), 949 strenuously Justice Cardozo put question jury. this to the “morally wrong” advocated the interpreta Regardless of Ohio’s definition of tion, deriding leading the alternative as “wrong,” Lundgren appears satisfy easi “abhorrent” results: ly the establishing alternative basis for hold, therefore, We are times there insanity second element of the defense— circumstances which the word that he an incapacity had “to conform his ‘wrong’ as used in statutory the- test of conduct requirements of law.” Sta responsibility ought not to be limited to ten, 247 (syllabus N.E.2d at 294 by the legal ... wrong Obedience to the law is court). This alternative perhaps basis is If, however, duty. itself moral there is prime example of Ohio’s then “more an insane delusion that ap- God has liberal” approach to the insanity defense peared to the defendant and ordained than the M’Naghten rule. See id. at 295. crime, the commission of a we think it Punishing an individual without the capaci cannot be said of the offender that he ty to wrongful avoid actions “would be like knows the act to wrong. be inflicting punishment upon an inanimate Various courts have followed this view. object, machine, had, such as a because it Wilson, E.g., 605, State v. 242 Conn. 700 without intelligent human interven 633, (1997); Serravo, A.2d People v. tion, damage.” caused some Id. at 298. 128, (Colo.1992) (en 823 P.2d banc); indicated, As- Dr. person Smalldon like Worlock, 596, State v. 117 N.J. 569 A.2d Lundgren truly 1314, believing that (1990); God com Crenshaw, State v. (1983) (en manded him to kill probably Wash.2d 659 P.2d does not have banc). the capacity to conform his conduct to the (J.A. 0114.) requirements. láw’s

At the time of trial in Ohio law was somewhat unsettled on this After applying both elements of Ohio’s question, and the seminal insanity case definition of insanity to Lundgren’s mental the Ohio Court left this condition, Dr. Smalldon concluded that question generally unaddressed. See Sta “within reasonable psychological cer- ten, 18 Ohio St.2d 247 N.E.2d 293. tainly ... Mr. Lundgren’s clinical condi- unreported per Two curiam decisions from tion was such that he should have been the Ohio Appeals Court of suggested eligible seen as at the time of his 1990 trial the term “wrong” refers to only legal for a guilty defense of not by reason of wrong. State v. Huntley, C-800780, No. (J.A. insanity.” 0121.) agree. I juryA (Ohio 1981 WL *2at Ct.App. Sept.2, could have justifiably considered Lundgren 1981) curiam); (per Graves, State v. No. legally insane. C-790605, (Ohio 1980 WL at *3 16, 1980) curiam). Ct.App. July (per In a IV. Ineffective Assistance of Counsel trial, case postdating Lundgren’s the Ohio I now turn to whether the failure to Court of Appeals agreed with “legally present insanity defense constituted wrong” view. Luff, 621 N.E.2d at 499. ineffective assistance of counsel. The There is question little that Lundgren Amendment, Sixth incorporated knew that it him against was the law for through kill Due Avery family. Process Clause of There is also little question Lundgren Amendment, Fourteenth guarantees could not have known it morally to be wrong to do if criminal so he defendant in proceed- state court believed God commanded the act. In light ings the right “to have the Assistance of to secure the history, and dant’s mental Strickland his defence.” for Counsel 684-85, necessary prepa- for experts 466 U.S. assistance Washington, (1984). viola- A 2052, L.Ed.2d 674 ABA Guidelines ration of the defense. S.Ct. two elements: right has Performance Appointment tion of (1) that counsel’s must show 11.4.1, petitioner pp. Penalty in Death Cases Counsel (2) deficient, that the performance “unique nature 10-12 at Id. the deficiency prejudiced defense. duty to in- penalty” intensifies death dispute beyond It is 2052. 104 S.Ct. Id., commentary, p. vestigate the case. standard, pre- which Strickland that the Guidelines, ABA Similarly, the 2003 55. “clearly trial, constitutes Lundgren’s dated a codification “merely represent law, as determined Federal established principles of common-sense longstanding, of the United States.” Court the by diligent, understood representation 362, 391, Taylor, 529 U.S. See Williams cases,” penalty in competent counsel death (2000). 389 146 L.Ed.2d 120 S.Ct. Hamblin, attorneys at direct 354 F.3d guilt pertaining investigate issues Deficiency A. “overwhelming regardless penalty counsel The assistance for the ABA Guidelines guilt.” evidence conduct of simi- on the based was deficient of Defense and Performance Appointment counsel, guidelines the ABA larly situated 10.7(A)(1), Penalty in Death Cases Counsel cases, the penalty in death for counsel commentary to the p. 76 sup- theory a mental health availability of that, capital emphasizes “[i]n Guidelines To establish insanity defense. porting large cases, the mental vulnerabilities of the Strick- deficiency, the first element compound population of the client portion that test, show “the defendant must land counsel and that possibilities for error” the an ob- fell below representation counsel’s re-investi- investigate and duty “to has reasonableness.” standard jective Id., commen- possible all defenses.” gate Strickland, 104 S.Ct. U.S. ABA Guidelines The 1989 tary, p. 78. the con- of reasonableness indicium One a de- to formulate instruct counsel further in situations. counsel similar other duct of possibili- theory “[t]he and note fense above, over for in section I.A. As discussed sentenced client will be ty that counsel years, defense two hundred litigate poten- increases the need death insanity uniformly presented almost ABA Guidelines all issues at levels.” tial in numerous in deific decree cases defense 11.5.1, com- 11.7.1(A), (1989); id. p. ABA Courts also look jurisdictions. ABA Guidelines 59. The 2003 penalty mentary, p. counsel in death standards all to “consider attorneys and standards guiding similarly counsel cases “the rules pro- available,” defining ‘prevailing to “thor- in potentially to be used legal claims in assistance norms’ ineffective po- each fessional basis for investigate the oughly Mitchell, 354 F.3d Hamblin cases.” claim,” significantly “be and to tential (6th Cir.2003) Wiggins v. (citing potential all litigating vigilant about more 510, 524, Smith, 123 S.Ct. U.S. case than capital at all levels issues (2003)). ABA The 1989 156 L.Ed.2d 10.8(1)- ABA Guidelines any other case.” penalty death for counsel in Guidelines 10.8, commentary, (2003); (2), id. at p. year Lund- over a before published cases p. 89. in- to conduct exhort counsel gren’s trial present failure to surprisingly, Not guilt phase, relating to vestigations case decree in a deific insanity defense state, mental the defendant’s explore violate Strickland: held to been to the defen- has relevant collect information appears defense, It that a great deal of evidence advise him as to insanity case). only of appellant’s existing plausible mental illness was defense available, appellant’s counsel failed Our Court’s decision the instant case in presenting only defense to the Strickland, rightly quotes 466 U.S. at jury for consideration ... 690-91, proposi- S.Ct. for the light of duty [I]n the tremendous amount of tions “counsel has a to make investigations” reasonable insanity, available defense evidence of “[strategic choices made after less than inadequacy of the State’s evi- complete investigation are reasonable burden, say dence to meet his we cannot precisely to the extent reasonable appellant’s trial awas true test of the professional judgments support limi- process ap- adversarial nor counsel’s tations on investigation.” Our con- Court proach a reasonable fascimile of trial cludes that Lundgren’s trial counsel made strategy ... a investigation reasonable they because We find that appellant herein was de- hired experts, two mental health both of adequate nied an ... defense Without apparently whom willing were not to tes- evidence, the benefit of the defense tify Lundgren that suffered from a men- appellant fact that simultaneously la- tal any severity. illness of capital a bored under the delusion that his acts case, however, “duty defense counsel’s to were directed and authorized God make reasonable investigations” into the was not jury. made to the known mental apparently health of an deranged State, Galloway 940, v. 698 P.2d 941-42 begin client does not hiring and end with (Okla.Crim.App.1985). Other courts have two mental professionals. health Had concluded that a adequately pre failure to Lundgren’s “investigated counsel and re- pare present and to insanity an defense is investigated” Lundgren’s mental condi- ineffective where ques there are serious tion, they would have uncovered the large tions about the defendant’s mental condi body of psychiatric describing literature tion plausible and no other defense is avail “delusional disorder” and its connection Zahradnick, able. See v.Wood 578 F.2d religious to delusions and cult leadership. (4th 980, Cir.1978); 982 United States v. Lundgren’s Had counsel “signifi- been Fessel, 1275, (5th 531 F.2d 1278-79 Cir. cantly more vigilant about litigating all 1976); Texas, 619, 622, Brooks v. 381 F.2d potential issues,” they would have discov- (5th Cir.1967); Swenson, 625 Goodwin v. ered that similarly almost all situated F.Supp. (D.Mo.1968); 287 People counsel in past two centuries have Jones, 6 Mich. Wkly. Law. 1322 (Aug. presented insanity duty defense. The 1992) (summary of unreported decision investigate, to prepare, to present and to Michigan Appeals); Court of insanity Alvord defense was intensified not cf. v. Wainwright, 956, 959, 105 only 469 U.S. because this is a penalty case, S.Ct. death (1984) but J., also because (Marshall, simply L.Ed.2d 291 there was no possible other defense. dissenting from grant denial of of certiora- ri) (“[Cjounsel duty had a to investigate Our that, Court further “[g]iven states his client’s case and amake minimal effort trial,” counsel’s information at the time of persuade to him to only plausi follow the Lundgren’s counsel was reasonable in de- ble defense].”); defense insanity [the clining present insanity defense. Brennan v. Blankenship, F.Supp. The state court’s opinion denied relief un- (D.Va.1979), (4th aff'd, 624 F.2d 1093 der this same rationale. See State v. Cir.1980) (counsel failing was ineffective in Lundgren, 97-L-110, No. 1998 WL both investigate (Ohio defendant’s case and to 18, 1998), *6 Ct.App. Dec. the insani- declining present By allowed, 85 Ohio dismissed, appeal ensured (1999) defense, Lundgren’s counsel ty N.E.2d 1465, 709 St.3d Averys’ only on focused the trial available (“[Biased the information upon irrelevant and rendered deaths counsel, tragic no basis there was trial appellant’s condition mental Lundgren’s guilty of not evidence plea entry of for the killings. for the religious little wonder rationale It is insanity.”). reason State, St. 118 Ohio pro- investigation See Davis unreasonable (“It (1928) a defense to is not to corroborate N.E. little evidence duced is a the accused that, ... if Lund- prosecution point The basic defense.8 society and that the religious a reasonable member of had conducted counsel gren’s to constitute alleged made mental Lundgren’s representation into investigation religious part suffi- was a discovered the offense health, they would offender.”).9 This every alleged virtually what belief to do cient evidence any- described hardly be has done conduct could counsel situated similarly other insani- deficient. thing but present for over two centuries — jury. ty defense Prejudice B. the failure remarks also Court Our counsel Lundgren’s failure of in- present counsel prejudi- insanity defense present strategic “reasonable was a sanity defense pres- and accurate complete cial because however, make a Counsel, cannot choice.” condition mental Lundgren’s of entation what not know if does he strategic choice of not in a verdict resulted could have undertook counsel is. the law oc- as has insanity of by reason guilty or men- the law study of comprehensive no or, least, cases, at similar in some curred therefore, in- had and, theories tal health could have portrayal such a because to base a upon which sufficient information at sentence Lundgren the death spared obvious making of the In lieu strategy. prejudice, To establish phase. penalty the their present and to investigate to choice of the Strickland component the second defense, Lundgren’s only possible client’s show standard, must “[t]he defendant opening in the guilt counsel conceded that, but probability a reasonable there is hurry “to opted then statement errors, the re- unprofessional for counsel’s trial” the murder stage first through the have been would proceeding the sult of without few cross-examinations with a is probability A reasonable different. Lundgren. to defend witnesses calling any confi- to undermine sufficient probability The Mor- Death: Prophet Earley, Pete Strickland, 466 the outcome.” 423, dence in Killings 425 Bloodr-Atonement mon distinguished between long 9. Courts conse- hypothesized the court 8. One district and those involving religious motivation investigate in the cele- cases quences a failure to to involving kill. God's command professedly Hadfield: of James brated trial stated, insanity de- the would not Cardozo As Justice great Erskine Thomas Even the disease acquittal showing of a mental requires a to obtain able fense have been investigated defect, person not a showing if he had Hadfield satisfied James a located ... Erskine of that case God facts delusion” suffering insane from "an prove, Schmidt, the words thirty-two witnesses v. People kill. him to commanded at judge, Kenyon, trial 945, of Lord 324, 949-50 N.E. 110 216 N.Y. offense, and "committed time Hadfield hand, kills because person who a other On the was, very ain it he was one a horrid most suffer from does religious but not belief of a deranged state.” in- establish or defect cannot disease mental Swenson, F.Supp. n. v. Goodwin sanity. Id. at 950. (D.Mo.1968). U.S. at 104 S.Ct. 2052. Lundgren Wilhoite followed God’s “voice” when she must demonstrate that “counsel’s nine-year-old shoved her errors daughter out of were serious enough deprive peti- eighth-story window of apart their tioner of a proceeding the result of ment in pass order to “a test if see ” Tate, was Glenn get ‘reliable.’ v. could prior F.3d into heaven” [Wilhoite] (6th Cir.1995). Lundgren imminent end of the has world. Wilhoite sufficiently not guilty by demonstrated that found reason insanity. failure of his Id. at present Serravo, counsel to 58. In only possible People his 823 P.2d (Colo.1992) (en banc), insanity Serravo, defense—the pro- defense—and to evidence, professedly vide corroborating implementing God’s instruc including ex- tions, pert testimony, his wife “in stabbed order to “undermines sever confidence the marriage bond.” jury outcome” of guilt his found sentencing Ser- ravo guilty by phases. insanity. reason Id. Likewise, at 130. judge Colorado found One court prejudice found in a deific not guilty by defendant reason of insani decree in which case failed pres- counsel ty professedly after following God’s di ent insanity defense: rection to kill her husband in order to use Had appellant’s of insanity evidence his life proceeds insurance help child presented trial, been there is a sub- victims Mafia-prduced pornography. stantial possibility that the State would Rouse, Karen Woman Is Ruled Insane in have been unable to prove sanity Post, Killing, Denver Apr. B- beyond a Thus, reasonable doubt. recently, Most found Deanna prejudice appellant suffered from Laney innocent of insanity reason after his counsel’s deficiencies obvious. she stoned two of her young sons to death State, Galloway (Okla. 698 P.2d heavy rocks purportedly accor- Crim.App.1985). dance with God’s command. Mom Who That finding is not surprising in light of Killed Kids with Rocks Committed to the insanity defense’s occasional success in Hospital, Trib., Mental 7, 2004, Chi. Apr. cases where defendant claims that God at insanity 8. The defense has also benefit- commanded the killing. A verdict of not ted in defendants other deific decree cases. guilty by reason insanity of has been en Moran, See Richard Origin The Insani- of in tered at least five deific decree cases ty Special as a The Verdict: Trial for within the last two In decades. State v. (1800), Treason James 19 Law of Hadfield Hudson, No. 01C01-9508-CC-00270, 1999 Soc’y 487, (1985) (British & Rev. 508 jury 77844, WL at *1 (Tenn.Crim.App. Feb.19, found guilty defendant not of reason 1999), the defendant shot her one-month- insanity following attempted shooting old nephew, believing that God had in of the king at purported direction of structed to kill her son of “the Satan.” God); Carol Delaney, Abraham on Trial: Two health experts mental testified that The Legacy Social Myth 35, Biblical 66 of she suffered from disorder, delusional (1998) and (providing first-hand account of Cal- another expert diagnosed her major with jury’s ifornia acquittal of defendant based depressive disorder. Id. at *3-4. The on insanity case); defense deific decree Tennessee Court of Criminal Appeals va Sword, People v. 29 Cal.App.4th 614, 34 cated verdict and remanded for 810, (1994) (defendant Cal.Rptr.2d 812 entry judgment of a of guilty by not rea found guilty by not reason of insanity and son of insanity. Id. at Similarly, *8. in guilty of degree second murder after People Wilhoite, v. Ill.App.3d 12, 228 169 shooting killing tenant accordance Ill.Dec. 48, 50, 592 (1991), N.E.2d 52 with “command”); Hudec, God’s People v.

801 rely on cases that many similar to find the 184, 186, (Cal.Ct.App. Cal.Rptr. in “deific decree” insanity defense 1985) (ordered published not be Apr.29, strategy a defense (defendant to formulate Court) cases by California My col- success. chance some insanity with reason guilty found counsel that defense also assume leagues after kill manslaughter voluntary guilty psychiat- to look into obligation had no told God because professedly his father ing under- in order to themselves ric literature so). to do him insanity that defense theory of stand the case, “death where capital the instant In all the other similar used in counsel ... should be “doubts is different” the defense was some of which cases—in accused,” v. DePew favor resolved successful. Cir.2003) (6th Anderson, 311 F.3d case, unusual interesting and States, This is 333 U.S. v. United Andres (quoting and one psychologically; legally and both L.Ed. 1055 740, 752, 68 S.Ct. counsel would think defense only would Lundgren’s (1948)), failing present as well responsibility, professional feel the a track defense defense—a possible curiosity inquire enough natural as have cases— in similar success of some record legal psy- into the relevant themselves trial’s out- in the confidence undermines obviously did They literature. chological come. develop any any of this not do research is the prejudice to find reason further A pros- some might theory legal presen- proper effect a mitigating potential chamber avoiding death pect condition mental Lundgren’s tation my view constitutes client. their sentencing phase. in the have had could counsel, matter no assistance ineffective may prevent law, juror one federal “Under the mur- or barbaric the crime how odious mitigat- by finding penalty the death der. factors.” outweigh aggravating ing factors may correct colleagues be my Although Mitchell, 354 F.3d Hamblin cases, that, in deific decree out Cir.2003). pointing prong (6th prejudice more is unsuccessful insanity defense probabili- is a reasonable if “there satisfied successful, down- our Court it is juror would have often than least one that at ty by stating of success Wiggins those instances plays different balance.” struck only been successful S.Ct. defense has Smith, that “the 539 U.S. however, dissent, re- My four times.” Had L.Ed.2d of not verdicts investigated his instances effectively counts seven counsel trial cases, insanity in insanity such reason of presented guilty by condition mental in the last two occurred presentation jury, such a most of defense much may well be justifi- number legal The any juror decades. given have would decree cases the death “deific impose higher declining because cation (ac- ... level the trial at 65-66 resolved at Delaney, supra, also been penalty. Cf. ap- that were insanity deific decree verdicts with deliberations count jeopardy concerns.” guilty to double of not due pealable verdict resulting in case Haroun, at 1011-12. supra, & insanity). See Morris reason Moreover, Ohio’s definition light Opinion the Court’s 6 of Footnote C. “more liberal insanity that was then tradition- than the of crime” those accused re- colleagues’ my problem Staten, rule, 18 Ohio State M’Naghten it al is that my view 6 to in footnote sponse (1969), coun- 13, 247 N.E.2d St.2d had no obli- counsel that defense assumes egregious. more oversight was all necessary sels’ legal research to do the gation addition, I am not convinced that polling a delusional defendant to determine

whether he he is believes insane should be primary factor counsel’s decision to

pursue only plausible defense in a capi

tal case. See v. Blankenship, Brennan 149, 156

472 F.Supp. (D.Va.1979),aff'd, 624 (4th Cir.1980) (“Under

F.2d pro standard,

fessional it is improper for coun blindly rely

sel to on the statement of a

criminal client reasoning whose abilities highly

are suspect.”).

Y. CONCLUSION

The failure of counsel to

present the insanity defense was manifest-

ly ineffective light the deific decree law,

case guidelines the ABA’s in death

penalty cases, the availability of an appli-

cable mental theory, health and the ensu-

ing prejudice trying a capital case

without presenting only plausible de-

fense. For foregoing reasons, I dis-

sent. GENORD,

Michael A. M.D., John R.

Sanborn, M.D., Fishbaugh, Paula M.

M.D., Schiller, Andrea M.D., L. Mark Dykowski, M.D.,

D. Eckele, John E.

M.D., Betty Chu, M.D., S. Plain

tiffs-Appellees,

BLUE CROSS & BLUE SHIELD MICHIGAN,

OF Defendant-

Appellant.

No. 04-2486.

United States Court of Appeals,

Sixth Circuit.

Argued: Jan. 2006.

Decided and March Filed:

Case Details

Case Name: Jeffrey D. Lundgren v. Betty Mitchell, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 13, 2006

Citation: 440 F.3d 754

Docket Number: 02-3001

Court Abbreviation: 6th Cir.