Jells v. Mitchell

1692k(e).5 § superfluous. See 15 U.S.C. be JELLS, Petitioner-Appellant, Reginald the statute “a court should read

Because a whole and avoid construction statutory superfluous,” renders a word Warden, Betty MITCHELL, v. Darue Metal Prods. & Sons Grable Respondent-Appellee. (6th F.3d 596-97 Mfg., & Eng’g Cir.2004), argument unpersua is Jerman’s No. 02-3505. Second, argued it while could be sive. Appeals, States Court of United language the model would be

adoption of Sixth Circuit. Defendants, Jerman practice better for her provides support no assertion 19, 2008. Argued: March only language accept is the adopting the Aug. 2008. Decided and Filed: of this legal to avoid error procedure able fide error defense calls type. The bona reasonably procedures

for maintenance of error. any bona fide

adapted to avoid such

Here, demonstrated con Defendants time, effort and research were

siderable “in evaluating validity

spent

writing” requirement. Defendants’ com regularly officer attended FDCPA

pliance

seminars, rele examined and distributed law, regularly meetings, held

vant case is

encouraged open discussion of FDCPA Further, Defendants sent the

sues. after Notice, take they continued to

Validation good steps, particu faith

reasonable

larly through compliance depart the firm’s We,

ment, to with the law. there comply

fore, court that the agree with district ap appropriately fide error defense

bona

plies in this case.

III. CONCLUSION reasons, AFFIRM foregoing

For the we court. judgment of the district 1692k(e) withstanding act or omission provides: that after such U.S.C. amended, occurred, opinion re- has such imposing any provision No of this section scinded, by judicial or other liability apply any omit- or determined shall act done or any good conformity any authority ted in faith in to be invalid for reason. Commission, advisory opinion not- March 2002. For the reasons

tion on below, judgment we REVERSE court. district I. BACKGROUND A. Facts 2254(e)(1), has Under 28 U.S.C. rebutting presumption “the burden to a court’s of correctness state [accorded convincing clear and finding of facts] evidence.” Jells has failed to rebut adopt and we therefore presumption, conclusions, facts, as de- legal but not the Supreme tailed Court of Ohio: Rossman, Alan ARGUED: C. Office 18, 1987, April On at about 10:30 Defender, Cleveland, Public the Federal Ruby p.m., Stapleton 11:00 the victim Ohio, Snyder, Laurence R. Appellant. for Staple- four-year-old and her son Devon General, Attorney Office of the Ohio kidnapped in front of several ton were Cleveland, Ohio, Appellee. for ON witnesses at the intersection of Lake- Rossman, BRIEF: Alan Office of the C. view and Euclid Avenues Cleveland. Cleveland, Ohio, Defender, Federal Public kidnapping Three witnesses to the Offices, Cleveland, Doyle, T. Law William Reginald appellant Devon identified Stickan, Ohio, Appellant. for Lisa Marie Also, the wit- kidnapper. Jells as the Ranke, Daniel R. Office of the Ohio Attor- the wom- nesses identified the victim as Cleveland, Ohio, General, Appellee. ney and threw appellant picked up an the BATCHELDER, COLE, and Before: Moreover, into a van. the witnesses CLAY, Judges. Circuit by appellant van the identified the used kidnapping. during J., COLE, opinion delivered the Banks, a witness to the abduc- Owen court, CLAY, J., joined. in which tion, pas- a that while he was testified BATCHELDER, 513-24), (pp. delivered J. by daughter, senger a car driven his separate dissenting opinion. a Banks, heard a woman’s Camila he appel- the victim and screams and saw OPINION “tussling.” lant He also noted that the COLE, Judge. Circuit van used to abduct the victim and her sign “Keep child had a which read on Cuyahoga County, three-judge A Ohio Trucking,” although the van which was panel Reginald convicted Jells for the mur- appellant him was found to Ruby Stapleton der of and sentenced linked to the “Keep a read on Van- display sign on 1987. After ex- which to death October abduction, During Owen hausting post-conviction and reme- nin.” direct Ohio, timely out of the car and told his jumped dies in the filed State plate daughter to write down the license petition corpus a for a writ of habeas he “sensed for the of the van because the United States District Court number Furthermore, something wrong.” on October Northern District pick up a little peti- appellant The court denied his Owen observed district Devon, put testimony Stapleton, and of Devon boy, later identified as victim, of the van. son indicates that he and him into the his mother had appellant’s entered van appellant, who told approached Owen they and later exited the van. It is not drunk. him that the victim was Owen testimony exactly clear from his how a at good appel- that he had look stated they initially came to be the van or lant, was at the driver’s side since Owen they how later came to be out of the van straight at him. At looking of the van and Euclid Lakeview Avenues. He trial, a photograph identified Owen further that appellant put testified De- person strug- who was the victim as van, von’s mother back into the and that ap- identified gling appellant, they while were in van hit appellant perpetrator. as the pellant victim right on the side of her face Banks, another to the witness Camila object, causing with a circular her to abduction, driving testified that she was bleed. Devon also stated his moth- home when she heard a wom- her father by er was knocked out the blows. As screaming “help me.” She observed mother, upon result of the attack woman, dragged he appellant hood and sleeve Devon’s coat were victim, later identified as the whom she wet with blood. the van and “shoved her inside.” explained appellant Devon took Next, pick up a little appellant she saw junkyard. appel- his mother to a There (Devon) boy put him inside the van. body lant removed his mother’s from the testified that the woman was Camila van, junkyard, carried her into the fight off the man. trying appellant abandoned her. Then drove the license number Camila recorded station, gas purchased gas, to a van, Although the “149 MJV.” dropped junkyard. off Devon at another was listed in the name of license number Later, Clyde Smith found Devon Gills,” “Reginald appellant later ac- mother, junkyard crying for his so he At knowledged ownership of the van. picked up him and took him to his house the van from a trial Camila identified police. and called the ap- identified the photograph, and she 26, 1987, ar- April appellant On pellant kidnapper. as the by police. Cleveland The van rested a third to the Wright, Edward witness num- plate was identified the license abduction, testified that at about 11:00 given police ber that was Camila p.m., concluding as he was his shift as An examination of the van re- Banks. Hough Bakery, at he security guard A appellant’s fingerprints. vealed trans- a scream. He walked to heard woman jack matched mission found the van screaming he heard the and ob- where body. A marks found on the victim’s a man his arm around the served with in- print shoe was found on the tennis then screaming waist of the woman. He of the The shoe side van’s windshield. and the saw the man throw the woman left print compared with the victim’s Wright gave child into the van. tennis shoe and was believed to have police partial a license num- Cleveland by been made the shoe. ber, “Y 169 or 165.” He was able 28, 1987, April off-duty Cleve- appellant lineup, out of a On pick the Further, the victim’s police him trial. he identi- land officer found identify in a body partially concealed a barrel Stapleton photo fied Devon and a of the junkyard at East 84th and Grand Ave- victim. 486 support jurisdiction tion in for review body partial- The

nue Cleveland. 29, Supreme on June the Ohio Court pants panties ly nude with Supreme Court declined to exer- disarray. the blouse in down and pulled jurisdiction and dismissed the case on cise muddy with a A of cardboard piece Jells, 23, v. 83 September 1998. State body. found near print shoe (1998). 1431, 699 N.E.2d 946 Ohio St.3d appellant’s right matched print The shoe 11, 1999, applica- filed an On March Jells shoe. in the Ohio reopen appeal tion to his direct victim testified that the The coroner Appeals. That court denied Court impacts multiple as a result of blunt died Jells, 54733, v. No. 2000 application, State neck, head, trunk and extremities (Ohio 26, 2000), Ct.App. Apr. WL injuries to the brain and multiple affirmed, Supreme and the Ohio Court organs. Altogether the other internal Jells, 454, 739 State v. 90 Ohio St.3d ninety separate over victim suffered (2000). N.E.2d 345 body. blows to her 21, 1999, a September Jells filed On Jells, 22, 559 N.E.2d v. 53 Ohio St.3d State corpus, pursu- petition for writ of habeas (1990). 464, 466-67 2254, § ant in the United to 28 U.S.C. for the Northern States District Court History B. Procedural Ohio, alleging twenty-three District of 1987, 31, three-judge panel August On 18, 2002, grounds for relief. On March County, Ohio Court of Cuyahoga of the concluded that claims district court convicted Jells on two Common Pleas merit and dismissed his ha- were without in violation of Ohio kidnapping, counts of petition. The district court issued beas 2904.01, (“COA”) ag- § and one count of Rev.Code appeаlability a certificate of Jells kidnapping gravated felony murder with on whether counsel rendered constitu- tionally ineffective assistance sentenc- in violation of Ohio Rev.Code specification, Court, 3, ing. appeal, On on October 2903.01(B). 18, 1987, September On 2006, granted following Jells a COA on the to five to twen- panel same sentenced Jells (1) prosecu- additional issues: whether the years imprisonment on each of the ty-five material, infor- exculpatory tion withheld ag- charges and death on the kidnapping Brady mation from Jells violation of felony charge. State v. gravated murder Maryland, 373 (Ohio Jells, No. Ct Common CR-217570 (2) (1963); L.Ed.2d 215 whether trial coun- 1987). review, Pleas, direct Oct. On sel rendered ineffective assistance of coun- con- Appeals affirmed Jells’s Ohio Court by encouraging right to waive his sel Jells, sentence, State v. No. victions and jury properly informing to a trial without (Ohio Ct.App. Apr. 1989 WL 43401 (3) waiver; consequences him of the of the Court, 20, 1989), Supreme as did the Ohio adequately the trial court in- whether Jells, N.E.2d State v. 53 Ohio St.3d consequences of his formed Jells (1990). jury trial waiver so the waiver was petition post- Jells filed his initial voluntary; and whether a knowing and conviction relief in the state trial court line-up prosecution shown to a witness was petition November 1991 and an amended unduly suggestive and rendered the wit- in April 1995. The trial court reviewed in-court identification unreliable. ness’s petition, and denied Jells’s amended II. STANDARD OF REVIEW affirmed. State Appeals

the Ohio Court (Ohio Jells, 72484, v. No. 1998 WL 213175 Because filed his federal ha- Jells 1998). 30, after the Antiterror- Ct.App. Apr. corpus petition filed a mo- beas

487 materially Penalty indistinguishable Death Act of facts.” Id. at ism and Effective (“AEDPA”), 104-132, 412-13, 120 110 S.Ct. 1495. Pub.L. No. 1996 effective, 1214, the standard Stat. became 2254(d)(2), § As to 28 U.S.C. a applies in AEDPA review set forth decision involves an “unreasonable applica petition: clearly Supreme tion” of established Court court prohibits AEDPA a federal from law if a “state court identifies the correct corpus a writ of habeas to a granting governing legal Supreme rule from [the to a state person custody pursuant unreasonably cases but it applies Court’s] to a claim judgment respect particular to the facts of the prison state adjudicated on the merits case,” 407, 120 1495, at er’s id. S.Ct. or if it adjudication unless state court unreasonably “either extends or unreason that claim— ably to extend a legal principle refuses (1) in a that was resulted decision from Supreme precedent Court to a new to, contrary or involved unreason- Walker, Seymour context.” v. 224 F.3d of, application clearly established able (6th Cir.2000) 542, Williams, (citing 549 law, by the Federal as determined 1495). 407, is, 529 U.S. at 120 S.Ct. That States; Supreme Court of the United the federal habeas court “should ask or application whether the state court’s in a that was resulted decision clearly objeс established federal law was on an unreasonable determina- Williams, based tively unreasonable.” 529 U.S. light added). tion of the facts in of the evi- 409, (emphasis 120 S.Ct. 1495 presented dence in the State court “The Court has made clear that its

proceeding. precedents only relevant include not (6th Mitchell, 916, Morales v. 507 F.3d 928 bright-line legal rules princi but also Cir.2007) (quoting Hofbauer, Moss v. 286 ples flowing prece from and standards Cir.) (6th AEDPA, (quoting F.3d 858 Withrow, v. Taylor dent.” 288 F.3d denied, 2254(d)), cert. 28 U.S.C. U.S. (6th Cir.2002). Likewise, the statute’s 702, 154 L.Ed.2d 639 123 S.Ct. plain language “restricts source (2002)). clearly Supreme] established law to [the respect to the first of these With Williams, jurisprudence.” Court’s relief, Supreme bases for habeas Court However, “clearly phrase has clarified that the estab “may ap look to lower courts of Court holdings, lished” federal law refers to “the decisions, binding precedent, not as peals’ dicta, Supreme] opposed of [the analysis of but rather to inform the Su decisions as of the time of the Court’s holdings to determine wheth preme Court court decision.” relevant state Williams clearly estab legal principle er a had been ("Williams”), 362, 412, Taylor v. 529 U.S. v. by Supreme Foley lished Court.” (2000). 1495, 146 A 120 S.Ct. L.Ed.2d 389 (6th Cir.2007). Parker, 488 F.3d “contrary clearly decision is to” estab applies AEDPA defer

lished federal law as determined This Court if ence to the state courts’ determinations Supreme Court “the state court arrives claim, but we by regarding that reached the merits of opposite at a conclusion not reached of law review de novo all issues Supreme question on [the Court] Anderson, if the state courts. or the state court decides case differ Williams (6th Cir.2006). 789, a of 460 804 ently than Court has on set F.3d ‍​​​‌‌​​‌​‌​​‌​​‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​‌​​​​‌​‌​‌‍[the] 488 in procedure place a state there must be MATTERS

III. PROCEDURAL to Mau petitioner that the failed follow. seeking a writ of petitioner A Second, at 138. the state pin, 785 F.2d proce certain corpus “must meet habeas court must have denied consideration review of his requirements permit dural ground claim on the petitioner’s federal court.” Smith claims a habeas Third, procedural state default. Id. Corr., 463 F.3d Rehab. & Dep’t v. Ohio review, proce preclude habeas state Cir.2006). (6th petitioner 426, “The 430 “adequate an and inde dural rule must be available the remedies must first exhaust id., “firmly that is pendent ground,” state his fed by fairly presenting in court state followed.” regularly established courts; unexhaust- eral claims to state Deitz, (quoting Ford v. 391 F.3d 808 by the not reviewed ed claims will be 411, 423-24, 111 Georgia, 498 U.S. S.Ct. Money, (citing Deitz v. federal court.” Id. (1991)). 850, A 112 L.Ed.2d 935 state (6th Cir.2004); 804, Lott v. 391 F.3d 808 independent ground rule an procedural Cir.2001)). (6th 594, Coyle, 261 F.3d 601 rely it does not on federal law. Cole when “is satisfied requirement The exhaustion 722, 732, 111 Thompson, man v. 501 U.S. in the in highest state when (1991). 2546, Fur 115 L.Ed.2d 640 S.Ct. was convicted has petitioner which the ther, inquiry “generally will involve opportunity full and fair given been a legitimate examination of the state inter Lott, claims.” 261 petitioner’s rule on the in procedural light ests behind the rule and citations omit (quotations F.3d at 608 in considering the federal interest federal ted). a If court did not entertain a state F.2d at Maupin, claims.” 785 138. claim, it a court will review federal is due where the state court’s omission If are these three factors satis failure to raise petitioner’s either to the fied, proce a can overcome the petitioner in courts while state those claims the state “demonstrating] dural default either petition to the remedies were available or prejudice actual cause for the default and proce a state comply er’s failure to with violation of feder alleged result the state courts prevented dural rule that law, demonstrating] al or failure to of the claims. reaching from the merits in a consider the claims will result funda Mitchell, 754, Lundgren v. 440 F.3d Coleman, justice.” miscarriage mental (6th Cir.2006). 750, 501 U.S. “Cause” addition, “may requires showing for default that “some this Court corpus objective claim for habeas factor external defense not consider a impeded comply if claim default counsel’s efforts to with procedurally relief i.e., Murray v. procedural if the last state the State’s rule.” ed state court — Carrier, 478, 488, judgment in the case 477 U.S. 106 S.Ct. court to render a (1986). pre it 91 L.Ed.2d 397 Ineffective assis rejected the claim because was not cause, pro the state’s tance of counsel can constitute so sented accordance with Yanai, long v. 501 F.3d as the ineffective assistance of counsel cedural rules.” Girts (6th Cir.2007) (quoting Hargrave- procedurally claim is not itself defaulted. (6th Yukins, “Prejudice” Id. at 106 S.Ct. 2639. Thomas v. 374 F.3d Cir.2004)). However, requires showing that the errors at trial noncompliance [petitioner’s] “worked to actual and sub procedure a state will bar habeas review disadvantage, infecting if stantial his entire only procedure the state satisfies the Smith, dimen trial with error of constitutional Maupin standards set forth Cir.1986). (6th First, Frady, sions.” United States v. 456 U.S. 785 F.2d matter, mitigation 1584, present- In this 71 L.Ed.2d 816 152, 170, 102 S.Ct. upon petition- trial tended to focus the miscar ed at (1982). Additionally, under family, to his his may loving er’s behavior exception, Court riage-of-justice school, if good claim it behavior at his obedience defaulted an otherwise consider teachers, authority strong has shown and his his petitioner concludes prob ethic, tendency violation has and his to walk work that the “constitutional addition, argument. of one who an away in the conviction from ably resulted Delo, 513 Schlup petitioner’s v. indicated that actually innocent.” is times, L.Ed.2d 298, 327, family many had moved and also 115 S.Ct. Murray, expert opinion 477 U.S. evidence that (quoting presented 2639). intelligence of 496, 106 petitioner was borderline hostility. Final- over-controlled his OF ASSISTANCE INEFFECTIVE IV. presented unsworn ly, petitioner AT SENTENCING COUNSEL emphasized in he his statement which Devon, ethic, his empathy his work Appeals Decision Court A. Ohio in tragic at the manner which sadness rejected Appeals The Ohio Court death, must have met her Stapleton ineffective were claim that counsel the verdict disagreement his sentencing phase for the preparing in Further, in its panel. reached his trial: judge panel opinion, the three written that his trial next asserts Petitioner petitioner presented had observed failing in to in- ineffective counsel were alia, of, character, family inter evidence his troubled regarding troduce evidence relationships, employment history, and failing early life and family and stability. emotional expert utilize assistance. now offered Examining the evidence matter, recog we “must As an initial record, a cer- we find that de hors is afforded broad that trial counsel nize peti- of the evidence which tain measure authority determining what have ad- now claims should been tioner mitigation.” State will be offered cumulative of what was mitted to be 247, 255, (1991), 61 Ohio St.3d Frazier trial, i.e., frequent presented at also reiterate 574 N.E.2d 483. We moves, change caregivers, borderline were de proceedings post-conviction style. intelligence, superficial personality infringe denials or signed to redress to conclude are therefore unable We rights and of basic constitutional ments probability is a reasonable there an avenue for sim not intended as were that, alleged for this omission but retrying Laugensen [Lau the case. ply counsel, trial would the result of his State, [(1967),11 Misc. gesen] v. different, petitioner’s have been Lott, supra; State v. 663] 227 N.E.2d of counsel challenge to the effectiveness [(Nov. 1994), App. Nos. Cuyahoga Sowell, supra, respect fails. See in this 66389, 66390, 615012] 1994 WL N.E.2d 136. Further, present the failure to supra. concerning remaining to the items As merely cumulative evidence which tragic circumstances is, other more at trial presented that which was now claims should petitioner in not indicative of which speaking, generally i.e., admitted, mother’s alcohol- been of trial counsel. assistance effective he often wit- which (1994), ism and abuse App.3d 100 Ohio v. Combs State nessed, appear this information would 90, 105, 652 N.E.2d fa- inconsistent with the 1992 WL 333011. The affidavits of completely be portrait petitioner presented mitigation vorable which Keefe Smith is, at trial. That trial theories that were no more than alter presented counsel as- native or emphasized favorable cumulative to the theories Therefore, they life and chose to used Fisher. do pects petitioner’s support over con- not present him as someone who substantive relief under had “no either negative feelings prong trolled his of the Strickland-Lock hart-Bradley difference” or “condition re- test. pathological * * * thought dis- quiring treatment or Lott, Accord supra; State v. Stаte v. 584) (Tr. in light of order.” Considered (1991), 686, App.3d Williams 74 Ohio petitioner’s the nature of defense at tri- 695, 600 (rejecting argu- N.E.2d 298 al, conclude that the compelled we are to ment that counsel was ineffective produced in negative more information by failing to put mitigation forth evi- petition for connection with the amended dence on that defendant’s troubled child- hood). Indeed, post-conviction relief is inconsistent with social worker Linda strategy working the essential trial negative Pudvan’s averment that even family history establish reasonable and in turn provide doubt is relevant to petitioner “explanation residual doubt that committed of Mr. Jells life and behav- ior during attorney these offenses. are therefore unable his offense” and Ken We Murray’s that counsel was ineffective averment that unfavorable in- to conclude formation explain “further serves to failing present this information. (1994), stresses and traumatic events that cul- Accord State v. Combs 100 Ohio night minated the 90, 103, of the offense” seem N.E.2d 205 App.3d wherein odd in light complete pre- of the denial the court stated: sented at trial. A not post petition conviction does Jells, merely show ineffective assistance be- 1998 WL at *5-6. Because presents expert opinion cause it a new Appeals Ohio Court of found that coun- theory deficient, that is different from the performance used sel’s was not it did (Nov. 10, at trial. prejudice State Jamison reach the prong of the 1992), C-910736, App. analysis.1 Hamilton No. Strickland Jells, prong. 1. The dissent claims that the Ohio Court of 1998 WL *6. The com- Appeals performance found Jells's counsel's plete excerpt opinion from the Ohio demon- prejudicial, Dissenting to be deficient but not determining strates the court was wheth- Op. quotes selectively at but from deficient, performance er Jells's counsel’s Appeals' Ohio Court of decision when reach- See, prejudiced. e.g., not whether Jells was Above, ing this we include the conclusion. (stating id. at *5 that the court was "unable to entirety court’s decision on this conclude that counsel was ineffective in fail- context, Read issue. dissent's assertion information”); ing present id. at *6 "largely accepted that the Ohio court Jells’ (stating post petition "[a] conviction does investigation assertion that his counsel’s merely not show ineffective assistance be- and decided deficient the case instead on the presents expert opinion cause it a new that is question prejudice,” Dissenting Op. see trial”); theory different from the used id. erroneous, clearly again as time and Williams, (citing App.3d State v. 74 Ohio Appeals this section the Ohio Court of focuses proposition 600 N.E.2d 298 for the deficiency, on the standard for not the stan- that "trial [not] counsel was ineffective fact, prejudice. only explicit dard for In its failing mitigation put forth evidence on prejudice prong mention of the from Strick- childhood”). case, that defendant’s troubled quotation land. ais from another which repeated contrast to the references to Appeals support the Ohio coun- Court of cites as section, deficiency prong prejudice performance only not the sel's in this there is virtually are unchal- plausible options Legal Standard B. lengeable; strategic choices made claims that his counsel complete investigation than after less sentencing because during ineffective precisely to the extent are reasonable evi investigate relevant failed to judgments professional that reasonable presented. have been that could dence support investigation. the limitations on two-part inquiry when engage in a We words, duty In other counsel has a reviewing ineffective-assistance-of-counsel investigations make reasonable or to claims: a decision that makes make reasonable claim that defendant’s A convicted unnecessary. In particular investigations as was so defective counsel’s assistance case, any particular ineffectiveness a de- of a conviction or require reversal investigate directly not to cision must be components. has two death sentence in all the assessed for reasonableness First, the defendant must show circumstances, heavy applying meas- was deficient. performance counsel’s judgments. ure of deference to counsel’s showing that counsel made requires This 690-91, 2052. not Id. at 104 S.Ct. We do that counsel was not errors so serious pre- decide “whether counsel should have guaranteed functioning as the “counsel” case,” mitigation sented a but rather by the Sixth Amendment. the defendant investigation supporting “whether Second, the defendant must show mitigat- decision not to introduce counsel’s performance prejudiced the deficient background evidence of ing [Jells’s] requires showing defense. This Smith, v. 539 Wiggins reasonable.” itself as to errors were so serious counsel’s 2527, 510, 523, 123 156 L.Ed.2d U.S. S.Ct. trial, of a fair deprive the defendant A (emphasis original).2 471 Unless trial whose result is reliable. violation is established where Strickland it can- showings, makes both defendant attorney’s investigation scope of an or death be said that the conviction not prior to trial was mitigating into from a resulted breakdown sentence of what” counsel light “unreasonable adversary process that renders 525, 123 their client. Id. knew about result unreliable. S.Ct. 2527. 668, Washington, v. 466 U.S. Strickland (1984). 2052, 687, L.Ed.2d 674 104 S.Ct. 80 Analysis C. applies standard Strickland correctly Appeals The Ohio Court claim:

to Jells’s standard as identified Strickland Jells, No. rule. State v. thorough governing federal choices made aftеr [Strategic (Ohio 213175, 72484, at *2 Ct. 1998 WL and facts relevant investigation of law (2005), 2456, Wiggins, 539 might 162 L.Ed.2d 360 section that be one comment in this Williams, 2527, 510, prejudice interpreted as a reference to the 529 123 S.Ct. U.S. alleged prong: 1495, omission of coun- "but for this explained merely 120 S.Ct. U.S. sel, his trial would have been the result of do out in Strickland and not the standard set here, the remain- different.” Id. at *5. Even Therefore, rely may on we establish new law. makes it clear that the der of the sentence analyzing ineffec- decisions when Jells's those is, again, reaching inef- yet the issue of though even of counsel claim tive assistance prejudice: chal- “Jells's fectiveness and decided after his convictions those cases were lenge in this to the effectiveness of his counsel Mitchell, v. 354 final. See Hamblin became respect fails.” (6th Cir.2003). F.3d Subsequent Supreme Court decisions in Beard, Rompilla U.S. 125 S.Ct. 30, 1998); Williams, see App. Apr. “investigations mitigating also sel’s into evi- (2000) (“It 391, 120 529 U.S. at S.Ct. comprise dence ‘should discover efforts to past rule set forth in question reasonably mitigating all available evi- ‘clearly qualifies Strickland established any and evidence to aggrava- dence rebut law, Federal as determined the Su- ting may evidence that be introduced ”) preme of the United States.’ Court the prosecutor.’” Wiggins, 539 2254(d)(1)); (quoting Bell v. 28 U.S.C. (quoting 123 S.Ct. 2527 ABA Guide- Cone, 685, 697-98, 535 U.S. Appointment lines for the and Perform- (2002) (clarifying 152 L.Ed.2d 914 that ance of Penalty Counsel Death Cases the rule that courts Strickland is must 11.4.1(C) (1989)); Hamblin, accord 354 apply challenging to claims the effective- (finding Wiggins F.3d at 486 to “stand[] during capital ness of trial a sen- counsel proposition for the that the ABA standards However, tencing we hearing). conclude penalty for counsel in death provide cases that applied the Ohio court standard guiding the rules and standards to be used objectively to in an the facts Jells’s case in defining ‘prevailing professional unreasonable manner. cases”). norms’ ineffective assistance 1. Deficient Performance constitutionally required This general In addition to the background investigation necessary is to regarding Strickland standard deficient enable counsel strategic to make choices performance, Supreme pro has Court presenting mitigation about a defense. specific guidance respect vided to with rea Williams, 397, See 529 U.S. at 120 S.Ct. professional during sonable assistance Indeed, the deference owed to coun sentencing a phase capital case. See sel’s strategic judgments about mitigation 381-90, Rompilla, 545 U.S. at 125 S.Ct. directly proportional adequacy to the 2456; 521-29, Wiggins, 539 at 123 investigations supporting judg such 2527; Williams, 395-97, 529 U.S. Wiggins, 521, ments. See 539 U.S. at 123 In particular, 120 S.Ct. 1495. the Court Accordingly, S.Ct. 2527. evaluating when recognized has that in a capital mitigation reasonableness counsel’s “obligation case has an to conduct a thor strategy capital case, a “a reviewing ough investigation of the defendant’s back court must consider the reasonableness of ground” to availability determine the investigation support said to that strat Williams, mitigating evidence. 529 U.S. egy.” Wiggins, 539 U.S. at 123 S.Ct. (citing S.Ct. 1495 ABA Stan assessing 2527. “In the reasonableness of (2d dard for Criminal Justice 4-4.1 however, an attorney’s investigation, ed.1980)); Anderson, see also 460 F.3d at only quantum must consider not (“Defense complete counsel’s failure to already counsel, of evidence known to but investigate deciding present before not to also whether the known evidence would mitigating evidence perform is deficient attorney lead a investigate reasonable to ance as a matter of law under Strick “[A]ny further.” Id. forego decision to land.”); Bell, Harries v. 417 F.3d 637 mitigation evidence is unreasonable if not (6th Cir.2005) (“Counsel’s constitutional made after a reasonable determination to duty investigate to a defendant’s back investigation.” cease further Spisak v. ground in preparation for the sentencing Mitchell, (6th Cir.2006). 465 F.3d phase capital of a trial is ‘well-estab ”) Mitchell, lished.’ (quoting case, Coleman v. In the instant Jells claims (6th Cir.2001)). (1) 268 F.3d by: failing Coun- counsel were ineffective many other neglecting speak to fami phase of mitigation prepare to (2) ly members had lived with Jells who convicted; fail- after he was case until speaking with the available. When were mitigation specialist utilize a ing to contact, they family did their members background, about his information gather they failed to ask inquiry was brief educational, medical, psycho- including his questions; as a result sufficiently probing (3) failing to history; logical, and social they failed discover the abuse Jells proper so that a a continuance request boy from his mother’s live-in received prepared; could be mitigation defense stepfather. friend and his Jells counsel strategy. develop mitigation failing to psychological report prior did obtain below, we conclude the reasons For trial, obtain accessible failed to grant relief on courts’ failure the state reports and records that school records — an unreasonable grounds the first two had would demonstrate mental of Strickland. application impairments, including learning difficulties in the disruptions led to classroom (a) Timely Prepare Failure to extremely reading and an low level. Fur miti Eisenberg, Jells’s Dr. James ther, could have claimed even if counsel at the habeas expert, testified gation phase a result ignorance of Jells’s difficulties as not con evidentiary hearing that he was to in responsibility of their abdication Septem by trial counsel until Jells’s tacted background, into information quire Jells’s 2, 1987, had been days after ber two “prodded” them into ac that would have to only days prior sixteen convicted in the readily tion was available to them that, to mitigation hearing. Prior Report. Competency This Competency mitigation a employ had failed to counsel “prod sort of Report provided the same gath have expert or who would specialist Department ding” information as history personal evidence of Jells’s ered records or the Social Services Presentence Jells’s any records. When available Wiggins, Investigation Report described they Eisenberg, Dr. counsel contacted trial information, and, any given “reason such eval psychological him to a perform asked ex attorney would have ably competent” Jells, him provide failed to but uation mitigating for panded search history personal records —rec Jells’s beyond the three witnesses would been collected had ords would have three wit Jells and the questioned mitigation specialist they used a —that 539 Wiggins, in further detail. See nesses the evaluation. With necessary for were 524, 123 2527. at U.S. records, Eisenberg history Dr. out to of Jells’s counsel The failure requested psy perform was unable to the prior begin mitigation preparations Thus, testimony evaluation. his chological phase of Jells’s trial culpability of the end hearing sup mitigation was at the under Strick- objectively unreasonable Jells, by complete evaluation of ported Tate, F.3d v. 71 land. See Glenn psycho the limited supported but (6th Cir.1995) (concluding that coun- 1207 he had time to administer. logical test any significant make “fail[ure] sel’s addition, sentencing phase to con- until counsel “failed for the preparations In Jells’s ... guilt phase have un- investigation that would after the conclusion duct an unreasonable”); see also describing objectively records” extensive covered Williams, Williams, 120 S.Ct. youth. 529 U.S. difficult Jells’s did not it that “counsel (finding significant 120 S.Ct. mitigation] phase members, for begin prepare [the family three only interviewed until a week proceeding gathered before the to have the evidence that such a trial”); Hamblin, specialist typically fact, F.3d at n. 2 would collect. In Eisenberg Dr. testified that he that, could not (noting professional under the norms having recall ever been involved in a miti- ABA, “mitigation in- established gation provided case where he was abso- begin quickly as vestigation pos- should as records, lutely records, no school medical Mitchell, sible”); 264 F.3d Greer results, psychological any test or social (6th Cir.2001) (“Under circum- 676-678 history Eisenberg to evaluate. Dr. stated finding guilty stances where a cannot only that he not never mitiga- met with a surprise, anticipate come failure to specialist, tion necessary but that the in- finding adequately prepare such a so as to formation that generally gathered by is sentencing phase constitutionally for the a specialist presented such was never impermissible”)- Accordingly, the Ohio him. Jells сonfirms that no mitigation Appeals unreasonably applied Court of specialist was used in his case. neglected Strickland when it to find that affidavit, Jells states that he was never prepare Jells’s trial counsel’s failure for by anyone visited “who could assist [his] mitigation hearing timely in a fashion attorneys in preparing mitigation. performance. constituted deficient mitigation There were no specialists or investigators who visited or talked with (b) Mitigation Failure to Use a Special- concerning mitigation.” [him] case or [his] ist Due to the of a mitigation special- absence also conclude that We Jells’s ist, Jells “was unable provide to attor- [his failing counsel ineffective in were to use a neys] any with background concerning mitigation specialist gath who would have or to mitigation [himself] assist the educational, ered information about Jells’s phase of trial.” [his] medical, psychological, and social back case, In the context of Jells’s his coun- ground necessary prepare to a proper employ mitigation sel’s failure to a expert mitigation post-conviction defense. In a fully who would investigated have Jells’s affidavit, Shorr, Dr. a mitigation Susan educational, social, psychological and specialist Cuyahoga County for the Public background objectively unreasonable. Office, Defender’s stated that Jells’s Taylor, Williams v. Supreme the initially requested counsel her assistance Court found counsel ineffective where but through “never followed on their re they failed to interview all wit- available quest by formally involving in the [her] and present nesses failed to evidence of case.” Had her assistance —which she “mistreatment, abuse, and neglect during obtained, was willing give to she —been childhood, early [the defendant’s] as well would gathered pertaining have testimony as that he was ‘borderline men- to “developmental experiences,” Jells’s retarded,’ tally had suffered repeated “family dynamics and functioning,” “aca injuries, might head and have mental im- capacities demic and concomitant aca pairments organic in origin.” 529 at U.S. failure,” demic or “interpersonal success 370, Supreme 120 S.Ct. 1495. The Court relationships adjustments,” and social held that right defendants have “a —in- “history abuse,” drug of alcohol constitutionally deed a protected right —to general “psychological functioning.” provide jury mitigating with the evi- Similarly, Eisenberg Dr. testified that dence that his trial counsel either failed to Jells’s trial appear 393, counsel did not to have discover or failed to offer.” Id. at consulted any mitigation specialist or 120 S.Ct. 1495. Smith, torney pursuing have realized de- would Wiggins

Similarly, also necessary.” Id. See deprived been these leads was found to have fendant his “counsel at 125 S.Ct. 2456 Rompilla, counsel when 545 U.S. competent of investigation [his] of duty their a to exam- (holding that counsel had abandoned only ru- acquired having after background and incar- Rompilla’s school records ine history from knowledge of his dimentary and to for evidence ceration records look at 539 U.S. set of a narrow sources.” as discovered history dependence, Wiggins, 2527. In 123 S.Ct. “extenuating could have information Investigation the Presentence obtained significance”). depart- kept Report and records spe- have a counsel did not While procured of social services

ment mitigation spe- employ obligation cific to trial. investigation prior psychological cialist, fully they obligation have an did held that “[e]ounsel’s Court Supreme ‍​​​‌‌​​‌​‌​​‌​​‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​‌​​​​‌​‌​‌‍evi- possible mitigation investigate investigation their expand decision See, Williams, 529 e.g., available. dence Investigation beyond [Presentence Under Ohio at 120 S.Ct. 1495. U.S. [Department of Social and the Report] mitigation evi- law, range potential the profes- fell short of records Services] To determine quite is broad. dence prevailed at standards” sional appropri- a sentence death whether aof time, required preparation which ate, pro- statute penalty the Ohio death stan- history report, and below the social weigh must three-judge that a panel vides Bar by the American promulgated dards factors, “the na- against aggravating Association, to which we “standards offense, the circumstances ture and determining ‘guides long referred ” character, background history, (citing Id. Strick- what is reasonable.’ ” relevant factors.3 and other 2052; offender land, at 466 U.S. 2929.04(B) (emphasis Ohio Rev.Code Williams, 120 S.Ct. added). give defendants law also 1495). There, their inves- scope of “[t]he of evi- presentation in the “great latitude light of also unreasonable tigation [mitigation] Ohio Rev. factors.” dence in the actually discovered counsel what 2929.04(C). Thus, pro- provide § to Code records,” Services] of Social [Department in Ohio fessionally competent assistance and of alcoholism revealed which cases, must con- defense counsel capital Wiggins’ mother. part the neglect on thorough investigation reasonably duct a 2527. The Court 123 S.Ct. at Id. mitigation evidence that possible all at- into reasonably competent “any that held (5) significant his- of a offender’s lack include: The factors 3. These other relevant and tory prior convictions criminal (1) in- of the offense Whether the victim adjudications; it; delinquency duced or facilitated (6) participant a in the (2) unlikely the offense offender was the Whether it is If committed, offender, the but for principal have been the would but not the offense duress, was under that the participation fact offender of the offender’s degree coercion, strong provocation; or degree of the offend- and the offense the Whether, committing (3) the at time of the acts that led to participation in the er's offender, offense, of a mental the because victim; death of the defect, ca- lacked or substantial disease (7) are relevant to Any other factors criminalily of the pacity appreciate the to should be issue whether offender conform the of- or to offender’s conduct to death. sentenced requirements of to fender’s conduct 2929.04(B) (emphasis add- Ohio Rev.Code law; ed). offender; youth of present sympathetic picture would alerted them that [petitioner] suffered family, social, illness”). psychologi- defendant’s and from mental background. Wiggins, cal See U.S. (c) that, (noting according 123 S.Ct. Failure Request to a Continuance standards, “among to ABA topics We find third argument, Jells’s consider presenting should are that his counsel were in failing ineffective history, history, medical educational em- request to gather continuance to mitiga ployment history, training family and evidence, tion unpersuasive. to be Dr. history, juvenile social prior adult and cor- Eisenberg that, initially testified when con experience, rectional religious and cul- counsel, tacted Jells’s he informed them influences”); Bell, tural Carter v. 218 F.3d that he did not have sufficient time to (6th Cir.2000) 581, 596-97 (concluding prepare a psychological evaluation because investigate defense counsel’s failure to he records, needed more time “to collect to “family, defendant’s or psychological social members, family interview to [and] work background ... representation constituted with the social prepare worker to a com objective at a level below an standard of plete thorough history social reasonableness”). request [Jells].” Jells’s counsel did not duty Jells’s counsel failed to fulfill their continuance from the Ohio trial court. investigate background prior While the Court should generally mitigation hearing. That Jells’s coun- guess second strategy decisions such sel conducted investigation some of Jells’s requests continuance, for a see Strick- background is evident from their limited land, 104 S.Ct. presentation of Jells’s unstable childhood counsel’s choice this case not to seek during academic difficulties the miti- prepare more time to adequately for the gation hearing. However, while counsel mitigation phase violated obligation their generally has the discretion to determine thorough “conduct a investigation” of further investigation into available potential mitigating Williams, evidence. mitigating unnecessary, evidence is see 529 U.S. at 120 S.Ct. 1495. Because

Strickland, 699-700, 466 U.S. at 104 S.Ct. Jells’s counsel obligation were under an 2052, counsel’s awareness of Jells’s unsta- investigate fully any potential mitigаtion ble home environment and academic diffi- evidence and were gathering aware that culties should have alerted them that fur- records of history Jells’s social would have investigation by ther a mitigation specialist assisted in presenting psychological a eval- might proved fruitful. Wiggins, See 539 uation during of Jells mitigation hear- 524-25, at 123 S.Ct. (finding 2527 ing, request counsel’s failure to more time counsel having ineffective for “abandoned gather to such evidence objectively investigation their petitioner’s of back- Prelesnik, unreasonable. See Tucker v. ground after having acquired only rudi- (6th Cir.1999) 181 F.3d mentary 756 knowledge (finding of his history from a that counsel narrow set of was ineffective in critiquing failing sources” and coun- to request sel for a pursuing not leads continuance when discovered dur- “he was un- ing Harries, prepared his minimal investigation); for trial and had not obtained aware”). 417 F.3d at critical (critiquing 638 counsel for evidence of which he was Nonetheless, “declin[ing] to seek the assistance of a it not an unreasonable mental health expert or application conduct a thor- of Strickland for the Ohio ough investigation [petitioner’s] of mental Court of Appeals to conclude that counsel’s health, even after [petitioner’s] mother request failure to a continuance did not counsel, clearly that defense demonstrates As noted assistance. ineffective constitute minimum, “strategy” of employed afforded a generally above, has this Court to regard appropriate as an candi- Jells great presenting deference counsel See, e.g., Poin than for imprisonment continuances. rather requesting date for life (6th Mitchell, F.3d v. dexter death sentence. for the

Cir.2006). not unreasonable It was negate not our ear- This conclusion does same def counsel the to afford courts unrea- conclusion that’the Ohio lier in this case. erence they re- when sonably applied Strickland ineffective assistance Jells’s jected Mitigation (d) Any Employ to Failure claim, counsel’s deci- “defense counsel as Strategy could doubt to focus on residual alone sion reject argument Finally, we Jells’s strategy reasonable trial not constitute a failing develop to erred his counsel counsel never conducted defense because of this support strategy. mitigation before de- mitigation into investigation an Eisenberg’s Dr. contention, points to Jells residual doubt.” pursue to ciding never dis testimony Jells’s counsel case, Anderson, at 804. In this 460 F.3d him nor strategy with mitigation cussed ade- counsel failed conduct strategy. they even had indicated mitiga- investigation potential into quate affidavit in his own Similarly, states Jells investigate failure to evidence. This tion attorneys ever does not recall that he unreasonable, id., and objectively see miti purpose “discussing with [him] a residual pursue counsel’s decision looking be judges would what the gation, that ineffective upon strategy doubt based for qualifies or what mitigating, for See also unreasonable. investigation was However, that trial the fact mitigation.” Strickland, 690-91, 104 466 U.S. mitigation their did not share counsel after less (“[S]trategic choices made Eisenberg Dr. or with strategy with Jells are reasonable investigation complete than that his necessarily demonstrate does reasonable extent mitigation precisely have a did not trial counsel limita- judgments support professional Court contrary, the Ohio On the strategy. investigation.”). counsel were tions on found that Jells’s Appeals strategy essential “with the operating doubt reasonable working establish (e) Deficiency Regarding Conclusion petitioner doubt that and in turn residual Prong Jells, offenses.” these State committed that his has demonstrated Jells (Ohio 213175, at *5 WL

No. they: ineffective assistance when provided 1998). contests Ct.App. Apr. (1) mitiga- timely prepare failed to “unreasonable determination finding as an trial; failed to of Jells’s phase tion pre light of the evidence the facts in gather infor- specialist mitigation use proceeding.” in the State sented prepa- background mation about Jells’s 2254(d)(2). Yet, of fails to § U.S.C. Court The Ohio mitigation. for ration evidence, “clear and alone the any let fer that these recognize Appeals’ refusal needed, rebut this convincing evidence” the fell by outside omissions Jells’s Court of determination of the factual competent assis- professionally 2254(e)(1). bounds More Appeals. 28 U.S.C. applica- an unreasonable tance constituted Appeals’ over, Court of if the Ohio even by the determined law as tion of federal strategy of counsel’s trial characterization in Strickland. unreasonable, Supreme Court the record can be viewed Prejudice 2. prosecution’s rebut the death-eligibility 398, case.” Id. at Preju- S.Ct. 1495. unreasonably In addition to determining where, dice is established taken as a that trial counsel were not ineffec- whole, mitigating the available evidence during mitigation hearing, tive to the “might well have influenced the [sentenc- actually preju- extent it addressed appraisal petitioner’s] er’s] of [the moral dice,4 Appeals the Ohio Court of unreason- 398, culpability.” Id. at 120 S.Ct. 1495. ably alleged determined errors of Wiggins, See also 539 U.S. at Jells’s trial not prejudice counsel did (concluding S.Ct. 2527 jury “had the Jells’s case. been confronted with [the] considerable counsel, “An by error even if evidence, mitigating there is a reasonable unreasonable, professionally does not war probability that it would have returned setting rant aside judgment of a crimi sentence”). with a different nal if proceeding the error had no еffect on Strickland, judgment.” 466 U.S. at (a) Evidence Presented at Mitigation Prejudice 104 S.Ct. 2052. exists Hearing petitioner where the shows that “there is a that, probability reasonable but for coun case, In the instant the Ohio Court of errors, unprofessional sel’s the result of Appeals following reached the conclusion proceeding would have been different.” concerning the evidence introduced at Id. at 104 S.Ct. 2052. In capital Jells’s trial: cases, “the question is whether there ais mitigation presented [T]he at trial tend- that, probability reasonable absent the er ed to upon petitioner’s focus loving be- rors, the including appellate sentencer — havior family, good to his his behavior at court, to the independently extent it re school, his obedience to authority and weighs the evidence—would have conclud teachers, his strong ethic, his work ed that the balance of aggravating and tendency away his to walk from an argu- mitigating factors did not warrant death.” addition, In ment. Williams, counsel indicat- Id. at 104 S.Ct. 2052. ed that petitioner’s family had Supreme Court instructed that a moved prej times, many presented udice and also expert determination must be made opinion evidence that “evaluating] totality petitioner of the available mitigation intelligence borderline evidence—both adduced at and over-con- trial, hostility. and the trolled his Finally, petitioner evidence adduced in the ha- presented proceeding reweighing against beas it an unsworn statement —in in aggravation.” which he emphasized ethic, 529 U.S. at his work his 397-98, Further, empathy Devon, S.Ct. 1495. his sadness at the “Miti gating evidence dangerous tragic unrelated to Stapleton manner which must may ness death, alter the [sentencer’s] selection have met her disagree- of penalty, even if it does not undermine or ment with the verdict reached Referencing presentation the "cumulative” *5. This reference at most addresses information, Appeals the Ohio Court of present how Jells’s counsel's failure to certain noted that it was "unable to conclude that pieces of evidence was not deficient—it cer- that, there is a probability reasonable but for tainly makes no determination as to whether counsel, alleged omission of the result of present the failure to this evidence caused different, his trial would have been and Jells, prejudice. him See 1998 WL challenge [Jells’s] to the effectiveness of his *5-6. Jells, respect counsel in this fails.” WL figure,” and strong nurturing a for Further, opinion, in its written panel. well in ability cope “doesn’t have pe- observed judge panel three short, of, inter situations.” unstructured evidence presented had titioner tendency has “a em- that Jells character, relationships, tests showed alia, family ... minimize rug under the things emotional stabili- brush history, and plоyment in his unhappy experiences some ty- life, such as prevent ... emotions and 213175, *5. Jells, 1998WL coming to the surface.” [from] sadness hearing, Jells’s mitigation At the tests, Eisenberg Dr. con- these Based on (1) Jells Dora four produced witnesses — any suffer from Jells did not cluded that (2) mother; Barabaray Michael, Jells’s any or other personality disorder antisocial (3) uncle; Bee Jones, Anna Jells’s Lee mental illness. and Jells, grandmother; maternal Jells’s tes- as unsworn Eisenberg well Dr. unsworn testi- —as offered his own Jells also mother himself. Jells’s from Jells timony and educational mony detailing his social a frequently as moved that Jells testified that he had Jells background. described to New York child, Mississippi from child, and that the as a frequently moved by mul- Cleveland, he was raised and that explained He frightened him. moving had further stated She family members. tiple subjects in difficulty with some that he had work,” and “liked to “quiet,” Jells school, up” he had been “beaten and except any problems, gave “never [her] got fights into occasionally by bullies parents.” do with kids would normal what that as a further indicated at school. Jells raise helped that he had testified Jones jobs for odd teenager regularly he did “happy- Jells as described Jones Jells. juvenile to a until he was sent neighbors and, as person, and nonviolent go-lucky” stealing year for a camp detention aware, who did someone far as Jones a Gen- camp, Jells obtained At the purse. problems any disciplinary have (“GED”) Development eral Educational testi- likewise grandmother school. release, consistently and, following his raising Jells that she assisted fied arrest. Be- the time of his employed until in his life. She strong influence awas that of the four testimony and this sides any prob- did not indicated Jells mitigation other witnesses, offered no Jells school, jobs, and worked several lems evidence. Finally, Dr. temperament. an even had testimony con- Eisenberg provided expert (b) Evidence Withheld psychological various cerning results produced the evidence In contrast to Jells. administered that he had tests hearing, the withheld mitigation during the an intelli- Eisenberg, to Dr. According could have evidence, which Jells’s counsel IQ of has an that Jells test showed gence hearing if sentencing at Jells’s produced him in a borderline “place[d] which adequate mitigation they conducted had Other tests showed intelligence.” area more significantly investigation, paints in the area of deal- trouble “has that Jells troubled back- of Jells’s picture detailed deny unpleas- “tends to feelings,” ing with in,” ground.5 has need things “a and hold antness documentary that was evidence newly presented reviews primarily has educational, a search Jells's Eisenberg’s through uncovered medical, Dr. available pro- records psychological hearing evidentiary testimony at the habeas аnalysis of Jells that psychological testimony Eisenberg’s vides the Dr. the district court. history school records reveal a

Jells’s Jells’s mother very frightened “was cognitive learning serious and socialization Henry physical because of the and verbal impairment. These records detail Jells’s Henry Army abuse. had in been and inability academically function his he acted like he had been tortured response evolving behavioral ver- camp. concentration He acted like he was —from bally acting out as the class clown to more torturing way Dora the he had been tor- openly aggressive tactics—to this frustra- tured. I Henry believe saw beating [Jells] particular, tion. In Jells suffered from a Henry Dora. would also beat An- [Jells].” learning disability feelings which led of other aunt “I attested: believe that [Jells] insecurity. inadequacy and Jells’s below- by witnessed verbal abuse Ted towards average intelligence affected his classroom Dora. I believe that does like [Jells] performance. Jells also suffered “serious Ted.... [Jells] would rather not see the maladjustment” resulting from his fre- Likewise, abuse.” the abuse inflicted on quent moves. expressed prob- these Jells’s mother upset- Michaels was so by angrily acting lems out at school. ting that occasionally Jells would flee from While school officials recommended that his mother’s home grandmother’s to his counseling regular Jells receive on a basis house. Dr. Eisenberg Nancy and Dr. suggested psychi- that a referral to a Schmidtgoessling, psychologist who re- considered, atric clinic should be such ac- viewed Jells and post-convic- submitted a Likewise, tions were never taken. affidavit, tion both concluded that this abu- school records reveal several missed op- sive home profound environment had a portunities to deal with cognitive Jells’s impact on psychological Jells’s develop- through special difficulties education and ment and lead to feelings of victimization remedial classes. that added to the experi- frustrations he enced in school.

Jells’s educational troubles were com- pounded by family situation. Jells’s (c) Conclusion Regarding Prejudice mother had seven children with different Prong constantly men and she moved and out of relationships living while Jells was light significantly great of the her. Many of these relationships were er detail about psychological Jells’s back abusive and Jells was a ground witness to the provided by the evidence that violence cruelty that were attorneys inflicted would have discovered if upon his partners. mother her they had timely conducted a complete only two men who perma- were somewhat mitigation investigation, there is a reason home, nent Henry Jells’s childhood probability able that at least one of the Michaels, according Delts and Ted vari- judges may have reached a different con affidavits, aggressive ous were and abusive regarding clusion imposition to both Jells and his mother. Jells’s penalty. moth- death opposed As to the evidence er attested in her affidavit: “Whenever presented at hearing, the additional me, Henry would usually beat would [Jells] evidence shows that Jells experienced sig stand back and watch. [Jells] would then nificant learning disabilities which caused comfort beating.” me after the According him great frustration and led to increas submitted, to the affidavit Jells’s aunt ingly aggressive behavioral responses. present mitigation he was peals unable to at the post-convic- when it considered Jells's hearing. Eisenberg provided Dr. an affidavit petition. tion relief Ap- to the same effect for the Ohio Court of

501 than death of life rather that a sentence further demon- evidence additional This 54 Ruppert, v. See State profound appropriate. was experienced that Jells strates 1250, 263, 1254 N.E.2d 375 Ohio St.2d to his mother’s due victimization sense of (1978) Ann. Rev.Code short, (noting that Ohio rather In relationships. abusive at 2929.03(E), codified § now cumulative, pro- this evidence being than 2929.03(D)(3), unanimity of the required understanding of nuanced a more vides judges imposing in panel of three pres- background and psychological sentence). That is all that is re- Jells. death picture of sympathetic a more ents in a showing prejudice quired for in decision Morales This Court’s recent review, and for during habeas capital case required made the has that Jells confirms has made this above Jells the reasons There, “the avail- prejudice. showing 694, Strickland, at 466 U.S. showing. See coun- Morales’s trial information able 535, 2052; Wiggins, U.S. 104 S.Ct. 539 to the present and to failed discover sel 123 S.Ct. details about many specific included jury uncon- life, and continued tumultuous OF INFOR- V. WITHHOLDING abuse, dysfunc- drug alcohol and trolled IN VIOLATION MATION mental history, potential family tional BRADY OF cultural and detailed problems, health and the volume Legal light A. Standard background. evidence, there nature of compelling Maryland, v. Brady Under that effective probability

is a reasonable 1194, 87, 10 L.Ed.2d 83, 83 373 a different achieved could counsel have disclose (1963), must prosecution 215 Morales, 985 507 F.3d at outcome.” a de material, to exculpatory evidence all omitted). See and citations (quotation failure fendant, irrespective of whether 690, 458 F.3d Bagley, Dickerson v. also faith. good or bad done disclose Cir.2006) (6th peti- (holding that 698-99 claim, a ha- Brady a successful To assert requirement prejudice satisfied the tioner (1) the show that must petitioner beas failed to dis- counsel showing that his by pe to the evidence favorable withheld nearly mental- he was evidence that cover (2) titioner, suppressed the evidence biolog- active retarded, have an did not ly petitioner and by govеrnment, father, in an unstable up and grew ical Greene, v. Strickler prejudice. suffered pros- by “pimps, environment surrounded 1936, 144 281-82, 263, 119 S.Ct. 527 U.S. Hamblin, dealers”); titutes, drug and (1999). rule en Brady L.Ed.2d 286 petitioner (holding that at 489-93 F.3d impeach and exculpatory compasses both requirement prejudice satisfied ma such evidence when ment evidence neglected showing that his trial Bagley, 473 U.S. v. States terial. United up extreme “grew that he discover 3375, 676, 87 L.Ed.2d 105 S.Ct. fami- neglect, surrounded poverty (1985). explained United This Court ed- instability, poor had a ly violence “Materiality pertains v. Bencs States from mental likely suffers ucation innocence, and not or guilt to the issue disorder”). disability or for ability prepare to the defendant’s Cir.1994) (6th F.3d trial.” 28 and omitted evidence The undiscovered 427 U.S. Agurs, (citing States United shifted the bal- above could detailed L.Ed.2d 342 112 n. 96 S.Ct. circumstances aggravating ance between Brady (1976)). under is material Evidence one least mitigating that, had exists probability if a reasonable him find leading panel, judge on defense, the evidence been disclosed to the him, record available to Jells was able to proceeding the result of the would have file an petition post-conviction amended for 682, Bagley, been different. 473 U.S. at relief. 105 A probability S.Ct. 3375. reasonable provides Ohio two avenues for state sufficiently is one that undermines confi- prisoners present newly discovered evi- dence in the outcome of the trial. Id. “The dence challenges their convictions. question is not whether the defendant First, an prisoner present Ohio can newly likely would more than not have received available in petition evidence post- for evidence, different verdict with the but conviction relief under Ohio Rev.Code in its whether absence he received a fair 2953.21(A). § If this evidence pre- is not trial, understood a trial resulting in a sented in petition, the first new grounds worthy verdict Kyles confidence.” v. for relief in presented subsequent petitions Whitley, 419, 434, 1555, 514 U.S. 115 S.Ct. generally are considered to be un- waived (1995). 131 L.Ed.2d 490 When determin- less the prisoner can show that he could ing whether the withheld information not have discovered the evidence prior to prejudicial, material therefore we con- the first petition or that there is new law light it in sider of the evidence available that should be considered. Ohio Rev.Code for supports petitioner’s trial that con- 2953.21(A)(1)(a) (A)(4). §§ In the lat- Smith, See Towns v.

viction. 395 F.3d case, ter petitioner must also show (6th 251, Cir.2005); 260 Clinkscale v. Car- “clear convincing that, evidence but ter, (6th Cir.2004). 375 F.3d 445 for trial, constitutional error at no reason- B. Procedural Concerns able factfinder would have found peti- guilty tioner of the offense of which the It is undisputed prosecution convicted_” petitioner was Ohio Rev. during withheld from Jells his trial 2953.23(A)(1)(b). § Code thirteen items of evidence Jells pres fact, ents in petition. City failed case, In Jells’s he obtained the withheld to provide much of this information despite by April information 1994. Jells pos- had filing aof Freedom of Information session of this material prior to the filing Act request. In response City’s of his Petition Amended to Vacate or Set fully requested failure disclose infor Aside pursuant Sentence to Ohio Rev.Code mation, the trial granted Jells’s man April 2953.21 on Thus, 1995.6 under compel damus action to production and law, Ohio judicata res bars Jells from rais- both the Appeals Ohio Court of and the ing those claims that presented were not Supreme Court affirmed. See State in this Amended Petition they because Cleveland, ex City rel. Jells v. No. could been have raised at that time. State (Ohio 1992WL Ct.App. 369893 Dec. Jackson, ex rel. Rash 102 Ohio St.3d 3, 1992); State ex rel. City Jells v. of 145, (2004); Broom, N.E.2d Cleveland, 67 Ohio St.3d 619 N.E.2d F.3d (1993). City finally of Cleveland provided the remaining Second, withheld docu Ohio also provides an avenue 1994, and, in April ments complete with a which prisoners state can present newly 6. The dissent notes that Jells to include failed and it is petition this amended that was be- request Brady for petition relief in his initial Appeals fore the Ohio Court of and the Su- for post-conviction Dissenting Op. relief. See preme they Court of Ohio when conducted irrelevant, at 518. This is as the Ohio courts their review of his claim. granted petition, Jells' motion to amend his relief specific trial and for during his trial court. to the discovered legal argument 33(A). Brady violations. Jells’s could P. Ohio R.Crim. Action, full, states: Cause permission the trial court petitioned of the fact light Rule 33 motion file a right process to due Petitioner Jells’ from unavoidably prevented that he withheld ma- because the violated States to trial. Ohio prior obtaining the evidence evi- exculpatory impeachment terial 33(B). for petition not Jells did P. R.Crim. during capital him his 1987 dence from the state point this and at permission, such trial. deny requests would presumably courts a pretrial filed Petitioner’s P. Ohio R.Crim. pursuant relief to

for to Pursuant request discovery. [] for 33(A) an exces- waited Jells has because of the Fourteenth process the due clause he obtained of time since period sive Amendment, duty had a prosecutor it. See seeking to raise before exculpatory disclose all material 84525, Newell, 2004 WL v. No. State in accordance impeachment evidence 2004) (Ohio 16, 2931000, App. Dec. at *3 discovery. for request with Petitioner’s opinion). (unpublished [83 373 U.S. 83 Brady Maryland, v. See (1963). 1194, See 215] 10 L.Ed.2d S.Ct. Therefore, has no state Jells as P. 16. also Ohio R.Crim. remaining, procedurally he remedies addition, refer- petition explicitly Jells’s that of this claim portions those defaulted be- that are the withheld documents ences courts. presented were not cause of action in this fore this Court Carter, 613 337 F.3d Roberts v. See provid- not documents were statеs that the (6th Cir.2003); v. also Lancaster see the trial had until well after ed to counsel Cir.2003) (6th Adams, 423, 436 324 F.3d ended: (when fails to obtain petitioner a habeas by the state request of a claim public

consideration records Petitioner made defaulted). courts, procedurally AAA [which the issue post-conviction. on Exhibit Further, Brady not able to demonstrate disputed Jells is for the requests includes under Ohio filing for relief did the State Only cause for not documents]. then 2953.23(A) P. R.Crim. duty provide or Ohio Rev.Code constitutional fulfill its 33(A) informa exculpatory withheld obtaining after impeachment material 501 U.S. Thompson, Brady, [83 See Coleman 373 U.S. tion. See evidence. 722, 750, 115 L.Ed.2d 640 Pe- post-conviction, During S.Ct. 1194]. Lancaster, (1991); F.3d at 437. that should documents obtained titioner Peti- the time of provided at have been defaulted procedurally has Because Jells See Exhibit discovery request. tioner’s in his amend- presented items not on those AAA, CCC, [which 1-25 Series Exhibit in the relief post-conviction for petition ed Brady documents]. disputed includes the Ohio, those only need consider we State in presented items the withheld Four of conclude preserved. that were We items in the included action cause of are presented in Jells’s the four items that items these exhibits. Because for attached Petition in his Amended Brady claim Brady relief in his included claim In were preserved. are relief Post-Conviction the Ohio Court presented to in that was Action Twenty-Seventh Cause of documents these withheld relief general Appeals, petition, requested that procedurally been defaulted.7 not that occurred violations process for due ap- fairly in resulted his Amended Petition presentation argues 7. The dissent that pieces Jells includes two more of his Amended Petition for Post-Conviction that withheld information were referenced Relief include: A statement Willie Smith, long-time in his Amended Petition for Stapleton, PosNConvic friend of However, says tion which he that Stapleton Relief. these items were visited him murder, for a part Brady night of his while on the presented as claim at time, Stapleton had a drink presented and were instead while there and left, appeared “tipsy” when part sufficiency-of-the-evidence she that she claim. van, said Devon was out These were defaulted he they claims because thought Stapleton get would into a car fairly cannot considered to have been be stranger with a Reese, very because she presented. Baldwin v. 541 U.S. friendly. Smith stated that when he (2004); 124 S.Ct. 158 L.Ed.2d 64 door, Stapleton walked Connor, he saw the 270, 275, Picard v. 404 U.S. van and could see Devon (1971). ‍​​​‌‌​​‌​‌​​‌​​‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​‌​​​​‌​‌​‌‍sitting the van S.Ct. pres 30 L.Ed.2d 438 To but could not driving. see who was Smith fairly, ent a claim it is sufficient if the explained that he saw days the same van presented substance of the claim was later, recorded the license number and courts, the state such that the ultimate reported police, it to the but that he had question would have been the despite same any not response. received Smith also legal theory variations or factual selected the van from a photographic array allegations Picard, urged support. its (2) presented him; that the officers A 509]; at Whiting 277-78 [92 signed sister, Stapelton’s statement from (6th Burt, 395 F.3d 612-13 Cir. which averred Stapleton that would not 2005). Here, the state courts would not take a a stranger ride from that and Sta- alleged have been alerted that the informa pleton drinking had been when she last tion supported Brady through his claim p.m. saw her at 6:30 night on the of the presentation Jells’s of the information in (3) murder; An interview and statement sufficiency-of-the-evidence context. boyfriend, from the victim’s Anthony Mas- singill, indicating that he was certain that Analysis C. Stapelton had arrived at the bar to visit 1. The Withheld Information him at p.m. after,” 11:00 “or a little that The four withheld documents that were purpose her stated was to retrieve the part included as a Brady keys claim in apartment, to the during and that her prising only the Ohio courts that he was mak- that this material existed. The Ohio courts However, ing general process actively due claim. regarding intervened on Jells’s behalf explicitly Brady, material, prosecu- references granting affirming this or a court tion’s failure to disclose information until well compelled production order that of the mate- ended, after the trial had and the documents level, rial. At the federal the Honorable John that Jells believed should have been disclosed. M. Manos of the Northern District of Ohio protect Brady This is sufficient to his claim evidentiary conducted an hearing on the issue procedural from default. information, Brady concluding of withheld expanded that the record should be to include No other court has concluded that this ma- defaulted, even more withheld information. While we procedurally terial party and no any conclude that argues withheld information not parties much before this court. The presented recognize, to the state proce- seem to courts has been as the dissent chooses not to, defaulted, durally hearing the record we reference this establishes that Jells has adequately preserved Brady argument. simply his to reiterate that the nature of this explicit disputed addition to Jells’s always reference to the withheld information has petition, fairly withheld information in presented apparent there can been and in Jells’s be no petitions doubt that the Ohio courts were post-conviction aware relief. claim, claim de we review the of the drinking its to have been visit, appeared she Anderson, 460 F.3d at 804. him that told novo. See Stapleton high.” “was and give who would a friend” “was she home; poliсe report A Brady Application 3. a ride

her later anonymous person, noting that trial, sought to prosecution At Banks, called be Camilla determined randomly kid that Jells had demonstrate to state period thirty-minute twice within from the streets Stapelton napped a man observed father she and her prosecution supported Cleveland.8 boy ap- young a female grabbing theory by presenting witnesses she could p.m., and that 11:00 proximately grab Sta- they saw Jells testified that who that her father well but the male see force from a street intersection pleton the license reported The caller could. van be Devon into his sometime her and MJV, although she number was plate p.m., while p.m. and 11:00 tween 10:30 first was not sure that she stated and screamed. Stapleton struggled numbers. three Instead, statement Mas- the withheld credited, Decision Appeals Sta- Court if demonstrates singill, voluntarily getting into was still pelton misconstrued Appeals Court The Ohio time the alterca- the van the of out of after claim, that stating simply Brady Jells’s intersection, as he was tion at the street on error was based assignment of him at Stapelton visited “certain” that in erred “the trial court that contention his This state- a little after.” p.m. “or 11:00 im- for that evidence rejecting his claim any conclusion obviously weakens ment had to the state’s witnesses of peachment Stapel- kidnapping occurred when that the trial, and not to ... prior provided be at the intersec- forced into the van ton was witness on testimony of the following the Stapel- tion, that demonstrates because it 213175, at 1998 WL direct examination.” voluntarily getting into and was still ton noted, Jells’s However, we have *10. that inci- the time of the van out of properly relief after post-conviction for petition by Massin- statements The withheld dent. claim, a clear included Brady a stated the prosecution’s refute and Smith also gill able to re- was not that Jells statement as the kidnapping, of a theory random until information complained of ceive the that Sta- support a conclusion statements that explicitly stated post-conviction, voluntarily riding with had been pelton to was attached the withheld information was night of the murder —and the Jells fairly present- Because Jells petition. the van—both and out of the getting in courts, freely has Jells the state claim ed this at incident the time of the and after Further, before as there is this claim. preserved intersection. mer- the regarding the no state decision kidnapped some who had Reginald theory Jells at trial disputes that its State 8. The purpose of a random off the street the participated in woman Jells had was that However, pros- the purpose, is that correct? kidnapping improper murder. some Marino, ecutor, depo- in his detailed Carmen Right. A. theory the case: the State’s sition Supreme Court also seems The note, there no ransom stating Jells “killed theory, A. There was that credited by some third kidnapping for hire a kidnapping wasn't her and Stapleton after first Ruby on a woman assault party. It a street was Ohio.” streets Cleveland child her off resisted.... for sex and she Jells, at 477. 559 N.E.2d Q. was theory that this So the State's alleged be who the State about man impeaches Other withheld evidence passenger’s seat “like a pas- normal credibility senger” of witness who believed that and she stopped yelling. had At trial, trial, the altercation was an abduction. At the time of the Wright’s testimony was in conflict with that Camilla Banks testified she and her of Owen and Banks, abduction, Camilla Stapleton’s judges apparently father and the witnessed testimony found their positively more credible. she identified Jells as the However, However, this balance could have shifted abductor. a withheld document Wright’s testimony had presented been caller, anonymous reveals that an later along with the indicating information Banks, identified police as Camilla told Stapleton was with her own voli- that she had witnessed the incident but tion earlier night, that Camilla that “she couldn’t see the male well.” Banks did clearly see Jells on night Second, not all the testifying wit- in question, that Stapleton’s boyfriend saw nesses believed that abducting Jells was Stapleton around the time of or after the Stapelton when he forced her into the car. altercation, and that Stapleton was not impeachment of Camilla Banks com- under duress that time. bined information from Smith and Finally, the evidence Stapleton Massingill Stapelton voluntarily ac- night intoxicated on the of her murder companied the driver of the van much of undercuts the aggravating factors listed evening would have bolstered the cred- three-judge panel when it found it ibility Wright, security guard trained appropriate impose penalty. the death who working in the area when he Specifically, the court listed as an aggrava- witnessed the incident the intersection. ting factor the “methodical manner trial, At Wright testified that he did not which the defendant deprived the victim of notify because, police upon based freedom,” her referencing Jells’s state- observations, thought Stapleton he and the ment to Owen Stapleton Banks that was man Wright knew each other. reasoned drunk and implying that the court did not that the something incident was like a believe Jells’s statement to be true. The quarrel” “lover’s and “nothing serious.” withheld information indicates that the vic- Wright further testified that while he tim had drinking been high,” and “was lady yell times, heard the three she never providing plausible non-methodical ex- yelled her, anyone help for though even planation for the statement made to Owen there were а people few around at the Banks. Wright time. that Stapleton testified was placed into the van by on the driver’s side Lastly, trial, Jells’s defense in man, the but that the door was not closed. theory cluded a that there had been no Wright was uncertain how the victim kidnapping.9 together, Taken the withheld side, moved passenger over to the but he evidence is sufficient to undermine confi observed her thereafter sitting straight up dence in the rejection trial court’s of this 9. argues The presented only dissent that Jells the time of the altercation in the intersection] theory of misidentification at they trial. Dissent- is because all believed it was a lover’s 516-17, However, ing Op. was, n. 2. quarrel.... the record kidnapping, If it in fact a attorney shows that argued Jells's [Stapleton] that "there every opportunity had get out kidnapping could be no parties insofar as the passenger of the side door. With the number riding together around, had been around people for an hour standing if this awas kid- to an [following alleged hour and a half napping, you the say know she would to some- (Joint ("JA”) 624-25.) one, Appendix abduction.]” being kidnapped. ‘I’m Help me ... I closing arguments, attorney argued suggest Jells’s the reason is because she wasn’t kid- (JA that "the police 615-16.) reason no one called the napped.” attorney [at ar- Here, there can 115 S.Ct. 1555. Id. at the circum- “kidnapping” The theory. judges that all three “kidnapping” no confidence the be surrounding stances they aggrava the trial court when determined that by the would have weighed were factors Rev.Code aggravating factors listed Ohio ting that determined 2929.04(B) in sen- mitigating mitigating factors outweighed § outweighed this, Because of to death. tencing presented with the they factors had been that weakens information, evidence the withheld there and therefore withheld case kidnapping strength of the State’s that the sentence can be no confidence Brady, as the purpose material Kyles, 514 have been the same. See would that, had probability is a reasonable there 453, 115 U.S. at defense, been disclosed the evidence Ap- cites the Ohio Court The dissent would proceeding of the the result support on direct as peals’ appeal decision 473 U.S. at Bagley, different. been there for her determination that Revised Code S.Ct. 3375. Under aggravated overwhelming evidence than 2905.01, requires more kidnapping § at trial. Dis- kidnapping circumstance Instead, any “restraining” someone. just However, this de- at 515-16. senting Op. a specific done for restraining must be made without consider- termination was terrorize, to inflict or such as purpose, “to by the information ation of the withheld or on the victim physical harm serious Fur- Brady. in violation prosecution 2905.01. withheld O.R.C. another.” ther, findings quoted as court’s Stapelton suggests information dissent, to kid- each of the references for much of voluntarily with Jells directly or ambiguous either napping are any weakening inference night, by the withheld impacted information at the intersection liberty “restraint” of summary Brady. First is violation of causing “purpose” of done for the and his testimony that “he of Devon’s withheld “favorable Stapleton harm. The van [Jells]’ into mother either forced were put reasonably be taken to could it volun- they entered or [Jells] light in such a different whole case (quoting at 514 Dissenting Op. tarily.” in the verdict.” confidence to undermine *2) Jells, (emphasis from 1989 WL 43401 419, 435, 115 Whitley, Kyles added). by the Next are the statements (1995).10 490 131 L.Ed.2d S.Ct. “abduction that there was same court the State is not whether question “[T]he Banks and Camilla by Owen witnessed if go jury to the had a case have would id., and that five Wright,” evidence, and Edward but the favorable it had disclosed that the abduction testified the witnesses that we can confident whether be forceful.” or “deliberate the “intentional” have been same.” jury’s verdict would Brady evidence argues that Jells also the Stapelton's foot- presence of that the gued actually of innocent that he is demonstrates no was further evidence that in the van print kidnapping. of aggravating circumstance the occurred, she kidnapping as it indicated that innocence, actual In to demonstrate order put along van" and "riding this had not, that, likely than show more Jells must dash,” "up which was indica- feet on the her found him juror would not reasonable sur- "being very comfortable with her of tive Schlup v. guilty beyond a reasonable doubt. 617.) (JA Lastly, attor- roundings.” Jells's 298, 327, Delo, 130 specifically the Court to focus neys “ask[ed] (1995). new Jells’s L.Ed.2d under kidnapping statute 2905.01 on establishing to the standard does rise charged, that this defendant which a reasonable innocence his because actual kidnap- guilty even burden as to the him juror has not met its could have found still State considering new (JA 624.) evidence. after ping.” Id. These conclusions discount Wright’s denied effective assistance of prior counsel testimony dispute appeared that the during to and his trial: quarrel” abe “lover’s not an ab- —i.e. Petitioner asserts that his in- duction—and credit Camilla’s statement him formed that a judge panel three at trial that she could clearly see the ab- would be best for him because of the However, duction. the withheld state- pretrial publicity surrounding Staple- by Stapelton’s boyfriend, believed, ment if ton’s death and because Devon’s testi- happened means that whatever at the in- mony. He further asserts that coun- tersection, his Stapelton was not abducted be- sel that, alia, informed him she never getting cause was still inter voluntarily into and out of the van the time of judge panel three would also hear after Further, abduction. alleged the withheld the mitigation phase, that if the matter call-log from night of Stаpelton’s mur- were jury, tried to a all twelve members directly der impeaches Camilla’s state- jury would agree have to to con- regarding ment her alleged view him, vict and sentence that a reviewing Lastly, abduction. the withheld state- court apply would a presumption of cor- Massingill ments of and Smith bolster when reviewing rectness certain errors. Wright’s testimony at completely trial — avers, however, He attorneys his ignored in the Ohio Appeals Court of de- “felt judge panel three be would occurred, cision—that no abduction given best in my case they because felt that a that evidence demonstrating three judge panel give would not me a and Stapelton knew each other would sentence death.” Amended Petition have bolstered his conclusion that the in- Relief, for Post-Conviction Exhibit S. cident “nothing serious” and like a quarrel.” “lover’s We find that this decision was a stra- The remainder of the challenge dissent’s tegic choice. Accord State v. Woods to the effect of the Brady goes violation (March 5, 1997), App. Medina No. 2589- whether the evidence of mur- Stapelton’s 104634], M [1997 WL unreported. der was undermined the violation. Moreover, the court examined a similar However, because charged Jells was argument (1991), State v. Sowell felony upon murder based a kidnapping, 672, 683, Ohio App.3d 598 N.E.2d not, not, we need and do find that the trial and stated: might have reached a con- different twenty-ninth action, cause of clusion as to culpability as to the only cause of action not heretofore Instead, murder Stapleton. it is suffi- addressed, Sowell find, challenges do, cient for us to as we knowing and Brady intelligent withheld information nature of refutes the his prosecution’s presentation weak of jury of waiver a evi- trial. Sowell offered regarding dence whether a kidnapping oc- of support this contention his own curred. affidavit, in which he averred that he executed the upon waiver trial coun- VI. INEFFECTIVE ASSISTANCE OF representation sel’s that a trial before COUNSEL PRIOR THE TO three-judge a panel would not result PENALTY PHASE in the imposition of penalty. the death A. State Court Decision Sowell’s “self-serving” not, affidavit is review, On however, collateral the Ohio Court of sufficient to rebut the record Appeals rejected Jells’s claim us, that he was before which contains Sowell’s un- indicated that Jells subsequently which that he stated in which waiver

written sentence to be possible derstood his and intelligently volun- “knowingly, he one of life. his most relinquished] tarily waive[d] * * See Jury trial to a right Analysis B. was, there- Jackson, Sowell supra. evidentiary above, an

fore, to a not entitled this Court makes explained As advanced challenge ineffec- reviewing on the hearing inquiry when two-part See, when of action twenty-ninth e.g., claims. cause of counsel his tive assistance 687,104 his burden Strickland, initial 2052. failed to sustain 466 U.S. at he grounds demonstrating substantive his First, must demonstrate that Jells Id. was deficient. performance for relief. counsel’s any that Second, must demonstrate (1983), Jells St.3d 5 Ohio Kapper v. State See Id. prejudice. him deficiency caused such Upon our determi- 823. 448 N.E.2d showings, both a defendant makes subject “Unless petition was Sowell’s nation that conviction or it cannot said that evidentiary be hear- an without to dismissal from a breakdown resulted death sentence assignment of first overrule ing, we adversary process renders in the error. Further, because Id. result unreliable.” not dem- event, has petitioner In any merits of this reached the the state courts resulted this decision how onstrated to this claim. issue, applies review AEDPA show, He does not to him. prejudice case that had this say, we cannot Performance Deficient would jury, a result to been tried coun correctly notes that his v. Jells Accord State different. have been him duty to inform a professional sel had Woods, supra. jury right his to trial the nature of 213175, *3. Jells, 1998WL it that he waiving so consequences of state argued before While Jells and informed intelligent could make errors made several his counsel courts that See Model Rules waiver decision. during constituted to and trial prior However, 1.4(b) (1983). R. PROf’l Conduct counsel, this Court assistance of ineffective sufficient evidence presented has Jells not only appealability a certificate granted in this failed to demonstrate counsel right to denied Jells was to whether duty. making of counsel in effective assistance Martin, the Court States United jury right to to waive his decision of the knowledge level of explained what issue, that his argues Jells trial. On for defendant right required jury trial they because ineffective counsel were waive it: intelligently conse- properly him failed advise therefore, both defendant, should have A He argues his waiver. quences of knowledge ability some the mental and inform to determine failed is al- he trial before jury right men- was borderline that Jells trial court knowl- it. A technical to waive lowed fully retarded, they did and that tally however, is jury right, edge of the right present of his advise is A defendant required. is what jury-related other jurors any or twelve intelli- make an to sufficiently informed additionally argues that Jells implications. jury if he aware that was gent waiver they al- when were ineffective his counsel com- of 12 members composed the is prior to waiver sign the lowed him selec- may participate the munity, he Report, Competency of completion 510 jurors,

tion of the jury- verdict simply vit indicates that Doughten was not unanimous, must be and that a judge personally aware of whether Jells in- guilt alone will or decide innocence formed certain aspects right of his to a jury should he waive his trial right. jury trial because he was out of town when Further, waiver was entered. the affi- (6th 267, Cir.1983) (citations 704 F.2d 273 davit attorneys confirms that the discussed omitted); Bradshaw, accord Sowell v. 372 with Jells which evidence would pre- be (6th 821, Cir.2004); F.3d 832 v. Spytma particular sented to that three-judge panel (6th Howes, Cir.2002). 313 370 F.3d why thought it would be explained that, The Court has while given that particular panel. effective “Knowledge of these essential attributes generally sufficient to enable a defen- The submitted affidavits show that Jells dant to knowing make a intelligent was advised that a three-judge panel decision,” Martin, 704 at F.2d a de- would likely be a better decision-maker for knowledge fendant’s of these elements is phases both of his trial. Providing such not “constitutionally required.” United advice does not constitute unreasonable Sammons, (6th States 918 F.2d 597 performance by Dickerson, counsel. See Cir.1990). Rather, dispositive inquiry (“Counsel 453 at F.3d necessarily had is whether the defendant “‘understood amake choice between the two modes was, the choice him confronting on the trial, and it impossible say at the hand, one judged by to be group time which would be better for his client. people community, from the on professional We find no norms that dictate hand, other guilt have his or innocence lawyer how a and his client go should ” Sowell, judge.’ determined choice.”). about making this Accordingly, Sammons, at (quoting F.3d 918 F.2d Jells presented has not sufficient evidence 597). to overcome the “strong presumption that counsel’s conduct within [fell] the wide

Despite Jells’s broad allegations, range of reasonable professional assis- he has not produced any evidence to estab Strickland, tance.” 466 U.S. at lish that counsel failed to inform him of the S.Ct. 2052. fundamental nature of the choice confront ing him. While affidavit indicates 2. Prejudice that he “does not recall” having been in rights formed of the go along with the Even if Jells could show that his right trial, to a jury the affidavit also performance counsel’s deficient, he indicates that met with he two of his attor would still need to demonstrate that he neys to discuss whether the case should be prejudice suffered as a result. To demon tried to a jury or a three-judge panel. strate prejudice, Jells “must show that Jells further attorneys recalls that the told there ais probability reasonable that but that, him opinion, their a three-judge for counsel’s unprofessional errors, the re panel would be publici best because of the sult of the proceeding would have been ty case, surrounding the potentially different. A reasonable probability is a damaging testimony by Devon, and be probability sufficient to undermine confi cause they felt that a panel three-judge dence Strickland, in the outcome.” would not give Jells a sentence of death. 104 S.Ct. 2052. Jells has not Jells also submits affidavit of one his made such a showing. merely argues attorneys time, at thе David Doughton,- if counsel had adequately informed support However, of his claim. this affida- him right trial, of his to a jury might he

511 error, the that he right the and at least one therefore could not not have waived objection. argues jury might not have sen raise an Jells that the member of the provides Supreme no Ohio Court would not treat any tenced him to death. Jells barred, claim, such omitted as support proeedurally to this and thus claim but the prejudice fails demonstrate under would instead allow claim to be presented such time where the conflict Strickland. longer present. was no Jells provides no AND VII. KNOWING INTELLIGENT support for cases his assertion. The he WAIVER only cites refer to ineffective-assistanee-of- claims, exception counsel similar present not this claim to Jells did procedural applied the bar has never been Appeals, Court of and the Ohio Ohio by courts in this situation. Supreme the claim for Court reviewed Therefore, we conclude the Ohio no error plain error and concluded that erroneously did its apply not default rule. Jells, 559 N.E.2d at occurred. 467-68. Further, attempt con in his plain-error The court’s review is not Jells fails merits, He showing argues on the and there cause. that the same sidered review proeedurally fore defaulted on counsel who obtained the waiver were Jells has exception applicable. appeal, this if no counsel on and that this reason claim Mitchell, 662, expected he not v. 455 F.3d 673-74 could have been raise See Keith — However, (6th denied, U.S. —, Cir.2006), cert. claim earlier. the ineffec- 1881, (2007); regarding 127 167 L.Ed.2d tive-assistance-of-counsel claim 369 Mitchell, jury v. 440 waiver also the same Lundgren F.3d involved Cir.2006). (6th trial and on appeal, counsel both at on ap- Jells nevertheless raised claim this acknowledges that claim was Jells peal. bring he was able to Because presented Ap- Ohio Court of appeal, on ineffective-assistance claim he that, argues peals. He because his counsel any why has not demonstrated cause for right had him to waive the to the advised bring he could not also ineffective- trial, no jury procedural there is bar waiver claim at that time. Jells likewise his to question result of failure this waiver any showing has that a not made funda- while he still retained the same counsel. by miscarriage justice mental occurred argument, of this Jells relies on support acceptance jury trial the trial court’s his addressing ineffective-assistance- decisions waiver, nor he he is has established that of-counsel claims. These cases conclude actually required Schlup, innocent as that, Ohio, “it is the well-settled rule 115 S.Ct. 851. We conclude party permitted that a will not be to take this defaulted on claim. Jells has advantage of an error which he himsеlf or induced the trial court to make.” invited PRETRIAL IDENTIFICATION VIII. Leuck, Lester 142 Ohio N.E.2d v. St. (1943); complains line-up that the shown to State ex rel. Jells Johnson Auth., At unduly suggestive. Wright Ohio Adult Parole 95 Ohio St.3d (2002). argues participants, were five line-up, 768 N.E.2d Jells there youngest. far the Jells appeal, that at the time of this rule line-up, in the dressed any placed that the waiv- middle would barred claim City jail jump- ill-fitting not valid Cleveland er was because same paper-like or mate- represented gray him at trial and on suit made blue jail slippers rial and or socks while appeal, that this counsel invited or induced 512

other participants wore street clothes and Wright had ample opportunity to inde- shoes. Jells’s counsel filed a motion to pendently identify observe and appel- suppress this identification before the trial Furthermore, lant. he unequivocally court; the motion was denied without ex- displayed ability to identify the de- planation. fendant based on his recollection of the defendant’s conduct. Accordingly, this A.State Court Decision proposition of law is not well-taken. appeal, On direct the Ohio Supreme Jells, 559 N.E.2d at 472. Court addressed this claim on the merits Legal B. Standard determined the identification was properly admitted: Pretrial identification proce

Appellant in proposition his fifth of dures violate process due where the proce law alleges that lineup shown to dures are “unnecessarily suggestive and witness Edward Wright was unduly sug- conducive” that they such risk “irreparable gestive and inherently unreliable. Ap- mistaken identification.” Stovall v. Den pellant this proposition no, bases on the fact 293, 301-02, 388 1967, U.S. 87 S.Ct. 18 that, while the other inmen the lineup (1967). L.Ed.2d 1199 In v. Biggers, Neil wearing clothes, were street appellant 188, 375, 409 U.S. 93 S.Ct. 34 L.Ed.2d 401 was wearing prison i.e., garb, a jump- (1972),the Supreme Court that identi held suit. fications through obtained suggestive

In may means (1972), State v. still be Sheardon admissible if they 31 Ohio are 20, 196-97, St.2d reliable. Id. O.O.2d N.E.2d S.Ct. 375. In paragraph syllabus, determining two of they whether reliable, this court are held “the central respect police lineups question” is that: “whether under ‘totality of the circumstances’ the iden

“The process due clause the Fifth tification was reliable though even the con and Fourteenth Amendments forbids procedure frontation suggestive.” Id. any pre- post-indictment or lineup 93 S.Ct. 375. unnecessarily is suggestive and conducive irreparable mistaken [T]he factors to be considered in evalu- ”* * identification.* ating the likelihood of misidentification See, also, Kirby v. include the (1972), opportunity Illinois of the witness to view the criminal at the 32 L.Ed.2d 411. time crime, A reviewing court degree attention, should witness’ examine the factors surrounding accuracy the actual of the eyewit prior witness’ de- scription ness incident criminal, determine whether the the level of susceptible certainty witness to suggestion demonstratеd the witness which confrontation, at the would lead to an irreparable, length mis taken time identification. See Neil v. between the crime Big and confronta- gers, tion. supra. In the judice case sub Wright was able 199-200, Id. at 93 S.Ct. 375.

to describe the clothes that Devon and Analysis C. the victim wore. Wright was able recognize that appellant’s hair in court Although it is clear that pre was shorter than it had been at the procedure identification unduly scene of the kidnapping. applying suggestive, Ohio Supreme Court did the Biggers ..., factors we find that unreasonably determine that the iden-

513 oth- about the details significant notice not reliable. nonetheless was tifícation im- he line-up because the of determining er members weighed to be factors five perpe- as the Jells mediately recognized the (1) of opportunity the reliability are: days elapsed Lastly, only eleven during the trator. perpetrator the view witness line-up, the and the incident of attention degree between (2) crime; witness’s the time. of period (3) significant of the accuracy is not which the perpetrator; the Mitchell, 706 492 F.3d perpe- Haliym the v. of descriptions See prior ‍​​​‌‌​​‌​‌​​‌​​‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​‌​​​​‌​‌​‌‍witness’s Cir.2007) length of that a (6th (concluding demon- certainty (4) of trator; the level and identifying observation days between when the witness several strated excessive); v. Howard length of time the is not and identification suspect; the Cir.2005) (6th Bouchard, identification. the 405 473 crime and F.3d the between 199-200, not an exces- S.Ct. 375. 93 months Neil, (finding that three 409 U.S. time). the cor- against length of these factors sive weigh We identifica- suggestive the of effect rupting Brathwaite, 432 IX. Manson CONCLUSION itself.

tion 140 L.Ed.2d 97 S.Ct. above, we REVERSE the reasons For (1977). but court the district of judgment the writ of habeas sugges conditional Jells a impermissibly GRANT Despite the unless death sentence of corpus, vacating identification Wright’s procedure, tive penal- a new At commences tri of Ohio the State sufficiently reliable. was still Jells days within against him working as trail ty-phase that he was al, testified Wright judgment becomes this intersection the date that the from near guard security case for further final, REMAND Stapleton. and abducted allegedly where Jells opinion. saw consistent screaming and proceedings a woman Wright heard her into the and throw up her pick a man BATCHELDER, Circuit M. ALICE that van, Wright testified and of a back dissenting. Judge, incident, During the that man. was Jells to 150 from to see Jells able Wright was overturns majority Today, panel closely on he focused and was away, feet petitioner which sentenced judgment, as it occurred. the event death, by re-characteriz- Jells Reginald it claim, reviewing Brady defaulted ing a evidence, Ohio Su- Considering with- State’s that the novo, finding and de determination preme Court’s unconstitutionally prej- holding of evidence not unrea- was was reliable identification finding that Jells; and also udiced view Jells a clеar Wright had sonable. unconstitutionally in- were generally incident, the area was during the to discover— they failed because adequate as close were well-lit, Wright and Jells and during the the trial present he stated Wright forty feet. as phase mitigation sentencing Stapleton on Jells closely — focused “nu- a more provided would trial, he testi- At occurred. the incident Jells. picture sympathetic anced” black shirt wearing a that Jells fied either support does not the record Because to describe able jeans, and with blue re-characterization majority’s prior Wright’s hair. of his appearance finding of majority’s Brady claim or perpetrator descriptions physical claim; be- resulting from prejudice Wright demon- Jells. largely matched over- us to permit not the law does cause certainty in identi- high level strated a judgment Strickland state court’s turn the that he did Jells; indeed, he testified fying on subjective the basis of interpretations point, More to the Devon testified against facts, nuanced; Jells, no matter how trial. See WL 43401 at because the facts of this ease do permit *2.

a finding of prejudice on either Brady The Ohio Eighth District Court Ap- claim or claim, peals’ opinion I Strickland must from Jells’s re- appeal direct his conviction spectfully provides a reasonably dissent. vivid

account four-year-old Devon’s testimo- ny: I. Devon Stapleton took the stand and testified that on the night question he Devon Stapleton When was four years and his mother were en route from his old, he watched helplessly as a man beat bar.[1] father’s Devon stated that as he his mother senseless with a transmission and his mother were trying to go jack. So was close Devon to the onslaught Coventry Road, [Jells] asked his mother that his mother’s splattered blood onto they if wanted a ride. Devon’s testimo him. His last image of his mother was of ny indicated that he and his mother body her lifeless being dragged by this were either forced into [Jells]’s van savage cold, man into dark junkyard in or that they [Jells] entered it voluntari the middle of the night. When he was ly. At about 10:30 p.m.[,] Ruby Staple- by Clyde Smith, found alone outside a ton escaped from the van causing [Jells] junkyard different in the wee hours of the to stop and physically force her and morning, kept “Devon telling Smith that Devon back in. This is the abduction his mother was over a fence and that he witnessed Owen and Camilla Banks get could not to her because of the wire.” and Edward Wright. Devon testified Jells, (Ohio *2 WL they that drove around for a long time. App.1989). police A report from a few Devon stated that he saw [Jells] hit his days after the crime recounts: mother twice with a thing.’. ‘silver After his hit, mother was Devon she stated victim, Conversed with Stapleton. Devon ‘got knocked out.’ Blood splattered was Devon was shown several photos of on Devon’s clothes. males, blaсk and three photos of the Devon testified that at some point suspect’s van. Devon pointed immedi- carried [Jells] his mother from the van. ately to photo the second which was the Devon recalled seeing a junkyard and arrested [Reginald male said, Jells] and that opened [Jells] a big fence. Devon ‘This is man hit my that mommy,’ could not see where [Jells] took his ‘Ask that man my where is mommy.’ mother. [Jells] returned van, to the Devon also stated that picture [the drove more, around some and eventually was van] the [assailant’s] van. stopped at a gas station. Devon testi- The child was adamant in positively fied that he was later abandoned near a

identifying photos of the suspect Re- junkyard. Devon stated that just he ginald Jells [v]an, and the with the li- stood there until some [Clyde man plates cense 149MJV. Devon requested picked Smith] up. him me to take to see the [him] man Clyde Smith testified that early [Reginald so Jells] he could ask him morning hours of April 1987[,] he where is mother. added.) his (Emphasis upon came a child who had been aban- 1. Devon's father Anthony Massingill. V(C). Maj. See Op. § witnesses, Camilla four this case testified Smith street. on the doned Wright[,] Banks, Edward Banks, Owen picked crying. Smith the child testified Stapleton Devon him and took the child up forceful. intentional and telling kidnapping kept Devon (Smith’s) home. perpe- as the [Jells] a fence four identified over All mother that his Smith testimony also Green’s because Patricia get her trator. he could deliber- police. abduction was called the Smith indicates wire. Owen shiny Anita, sub- Camilla wife, noticed and forceful. ate Smith’s she Devon Banks, Wright[,] coat which Devon’s Edward on stance that van as Devon [Jells]’s stated be blood. identified Stapleton all thought a that and of abduction. was his mother’s the night the the blood one used the Devon[,] a van. Banks, him of and out had thrown man and Camilla Owen victim, Ruby Sta- the identified Wright *2; also Ohio see at Jells, WL up picked [Jells] woman as the pleton, 22, 559 N.E.2d Jells, St.3d 53 Ohio It clear from the van. is threw into and court of (1990). in the Elsewhere 466-67 that by State presented the on evidence the elaborated the court opinion, appeals’ forced, against her Stapleton was Ruby testimony: Devon’s of appraisal its Devon was that van and will, into the view good agot that Devon clear It into the van. placed also in [Jells]’s was Devon assailant. for an [Jells] to observe able and van facts, the evidence in the As discussed hit his [Jells] saw period. He extended in the Stapleton while Ruby that showed saw her object and a silver with mother of silver some sort with beaten van was knock his He [Jells] saw splatter. blood out’ as ‘knocked that she was object and a into unconscious, carry her mother yard. junk into dragged and a result Devon to the van. return junkyard Ruby that showed further evidence The off dropped eventually he was stated the van was found blood Stapleton’s relay accu- ability to Devon’s [Jells]. matched which print a shoe along with paid a he events indicated rately these on her recovered shoe tennis left the night his the of attention deal good jack was also A transmission body. and his kidnapped were h[e] mother the which matched van in [Jells]’s found Further, informa- the murdered. mother body. on the victim’s marks found was substantiated by Devon relayed tion van, the stated unequivocally [Jells] De- evidence. physical by scientific identified had witnesses four which Mg’ and as ‘real [Jells] described von the kid- of perpetrator belonging to age and the child’s Given black.’ ‘black him. belonged to napping, night’s recall the able to he was (“This *18 id. at *8-9; that his also see detail, conclude at we Id. events supported overwhelmingly indetermi- description [Jells] guilty Further, identi- Devon finding [Jells] natively vague. court’s day kidnap- certainty the great circumstance aggravated with [Jells] fied nothing Ruby find arrest. We testified A coroner [Jells]’s after ping.”). identi- out blunt Devon’s to death unreliable beaten Stapleton evidencing instrument, fication. wounds— a transmission 90 blows—matched over 470. Jells, at N.E.2d *6; see also Id. at Id. van. from Jells’s recovered jack corroborating acknowledged The court Jells, *12; N.E.2d evidence: appeal On to the Supreme Court, splatter. He saw knock [Jells] his moth- that court affirmed the court of appeals unconscious, er carry her junk- into a decision, and concluded opinion its with an yard and return van.... Devon’s independent assessment of death sen- ability relay[ ] these events [accurate- tence, stating: ly] indicated paid he good [that] deal Ruby killed Stapleton

[Jells] after first of attention night his mother and kidnapping her and her off child h[e] were kidnapped and his mother Cleveland, streets of Ohio. find that We Further, murdered. the information re- the aggravating proved circumstance is layed by Devon was substantiated beyond a reasonable doubt. in- [Jells] physical scientific and evidence. troduced in mitigation that significant history prior criminal con- 559 N.E.2d at 470. ^[1] he had no Jells, 1989 WL 43401 at *2; see also Jells, omitted). Jells, 559 N.E.2d Weighing the mitigating imprisonment, outweighs the mitigating a reasonable doubt. the aggravating circumstance, we con- clude that the aggravating circumstance old), and [4] his duct, ^[2] he could at [3] his 477 (paragraph possibly low intelligence. youth factors factors adapt well to (21 beyond against breaks years the marks found on the van on her body. A also matched the left tennis shoe recovered [Jells] Ruby Stapleton’s blood was found in the ... belonged to him. found [physical] along unequivocally with a shoe print which [Jells]’s evidence [] showed that transmission stated that the van van which matched victim’s jack body. Id. at *8-9. Jells fully aware of De- on Based the forgoing recitation of in- von’s testimony and physical this evidence сontrovertible facts—which the majority before yet trial and pursued he a defense has expressly adopted own, also as Maj. its of misidentification —he argued that he 1(A) Op. § cannot conclude that Regi- —I was not perpetrator, that he did not nald Jells any suffered prejudice undue Ruby abduct and Devon Stapleton, and from either the alleged Brady violation or that he and his van had been misidentified. the alleged ineffective assistance of coun- At sentencing, argued Jells “residual Indeed, sel. I find it remarkable that i.e., the spare court should his life doubt” — anyone could. Simply put, Devon’s testi- (that is, if it found because it find) should mony powerful that, so is even standing some residual doubt toas whether he actu- alone, proves it that Jells kidnapped and ally committed the crime. Ruby murdered Stapleton: It is clear that got good Devon view of Even if the alleged Brady materials the assailant. Devon was in van [Jells]’s would have aided Jells’s defense—which and to able observe for [Jells] an they extend- not, would they as fit only an entirely period. ed He saw hit [Jells] his mother theory different defense; i.e., Ruby object a silver and saw her blood was with Jells voluntarily2 is still —Jells theory Jells's of defense was (which "misidentifica- Crimestoppers was later determined (i.e., tion” someone else and abducted mur- Banks) to have been Camilla have would fur- Ruby dered Stapleton), though pro- defense, he thered this in that it would have cast only duced defense, one witness for his doubt on Camilla ability Banks’s identify (that witness testified Jells, to Jells’s alibi Jells was but even that have would had little force home), which was consistent against with the mis- her in-court identification. The re- identification theory. Brady Of the maining materials evidence actually would have bol- issue, only the anonymous statement stered the identification Jells.

5X7 ineffective-assistance sentencing-phase is over- testimony, which Devon’s left with my explain claim, compelled and feel alleged Bra- currently whelming. And though briefly. Even albeit disagreement, testi- Devon’s diminish not do dy materials analysis majority’s Furthermore, after- with the disagree I also way. any mony in compelled claims, (i.e., I am other evidence Jells’s mitigation acquired majority’s socially on mal- specifically learning disabled to comment Jells the ma- child, was the that, he claims because aas of those treatment adjusted, con- physical extensive the correct ultimately reaches witness to of and jority victim culpabili- any of those abuse) Jells’s to lessen no merit finding little does clusion— considering the act, particular this ty claims. for other i.e., was suf- totality of the evidence — II. successful to become a

ficiently intelligent histo- criminal mechanic, prior no had auto claim, the Brady analyzing snatching, and purse one than ry other review— de novo majority conducting — murder, gruesome especially was an properly if the State had contends entire the course over committed to Jells’s evidence withheld provided gratifica- of sexual purposes evening, reason- counsel, might that counsel then victim’s presence tion, in the from con- State ably prevented son. four-year-old the three- members vincing all three Ruby kidnapped if withheld Therefore, that Jells panel even judge that, it says majority says taken majority provided Stapleton. been had coun- if Jells’s un- even is sufficient and have evidence together, been this should majority as the court’s exactly the trial performed had confidence sel dermine legiti- have, no there is See occurred. kidnapping they should a says finding that trial, convic- the of V(C)(3). pieces that the The four possibility mate Maj. Op. any (1) have been tion, would a statement or the sentence are: at issue evidence assaulted, and of kidnapped, impression relating his different. Smith Willie one (2) in front Ruby Stapleton murder; a murdered brutally the night of the Ruby on son, rational and no Yawn, Ruby’s sis- four-year-old Cynthia of her from statement the reasonably consider Ruby could of fact on of impressions finder ter, relating her otherwise. (3) and conclude murder; evidence statement a total night the majority’s the join father, I cannot Consequently, Massingill, Devon’s Anthony from dissent. respectfully the Ruby and must on opinion of impressions relating (4) Crimestop- murder; a and the of night legal majority’s the with disagree I also to Camilla sheet, attributable intake pers and the Brady claim the analysis both Further- in Jells’s van. Ruby’s blood ence had received counsel Presumably, Jells's if indicat- testimony also trial, more, Green’s Patricia before evidence withheld the and was deliberate theory de- abduction different that pursued a ed forceful, have would stipulation a fense, endorsed was namely, one now there and Jells, Ruby trial, prosecution but that which the majority: it from that beginning of hence, had not been voluntarily, to the and him of the witnesses with all call agreed not to But, assuming that counsel kidnapped. even deposition, subsequent In a incident. testimony, Camilla’s discredited have ton of could a "we had that testified prosecutor testimony, and bol- father’s her diminished I kidnapping and that watched people that Edward portions of the favorable stered they either defense I told believe pro- still prosecution testimony, the Wright’s every call going to I was it or stipulate to guilt, Jells’s overwhelming duced one.” pres- testimony and the notably, Devon’s most Banks, stating that had gotten she not Thus, Jells did not raise a Brady claim in good perpetrator. look majori- (Nov. his original 8, 1991) petition, but ty surmises if Jells’s counsel had been added it as the 27th cause action in his armed evidence, with this then that coun- 26, 1995) amended (Apr. petition, claiming (1) sel would have: persuasive been more that his “right to process due was violated in showing Ruby Jells volun- because the State withheld material im- tarily “after time of the altercation at peachment and exculpatory evidence from (2) street intersection”; been more him during his 1987 capital trial.” Specifi- effective impeaching Camilla Banks’s cally, Jells complained (1) that: witness (3) Jells; identification of bolstered Ed- Wright Edward had mistakenly described ward Wright’s testimony that Ruby ap- Jells as having light complexion skin peared to be with Jells voluntarily face; (2) chubby Devon Stapleton correspondingly impugned the contradicto- mistakenly had described van as ry testimony that appeared Ruby to have white, Jells’s murder weapon brown, as abducted; been nullified suspicion jacket and Jells’s light blue. Jells did that Jells had been lying when he told identify or any describe other Brady Owen Banks that Ruby was Maj. drunk. materials in petition, and notably, V(C)(3). Op. § those are not (or the Brady materials ar- As I indicated, I am confident— guments) to which either Jells or the ma- particularly in light of Devon’s testimo- jority points.3 now ny the absence of allegedly —that The state trial court eventually ruled on Brady withheld evidence had so little ef- (and dismissed) Jells’s petition April on fect on the determination that Jells kid- 1997. In opinion, its the state trial court napped Ruby that Jells cannot show any addressed Jells’s Brady claim succinctly, prejudice, even if there Thus, was error. I stating: “Cause of Action 27: No exculpa- disagree with the majority’s contention tory evidence was withheld from [Jells]. that the allegedly withheld evidence under- All witness statements subject were to in- mines confidence in the trial court’s find- camera inspection and disclosure to de- ing that a kidnapping fact, occurred. I fense. Conflicting or disagreeing state- find this contention But, inconceivable. ments are for matters the trier fact of the Brady issue itself—and the majority’s resolve.” The court concluded: “The evi- of treatment it—warrants some further dence in the record established ... that no discussion. exculpatory evidence was withheld from first petition a Jells filed post-convic- for [Jells]. This court overrules of Cause[] tion relief with the state trial court on Action ... 27.” The court denied peti- his November 1991. He filed an amended tion and Jells appealed the denial the petition on April 26, 1995. During the state appellate court. intervening years, four Jells had obtained copies of the witness statements to the On appeal, Jells asserted that his Brady police that comprise his Brady claim. claim was based on the two aforemen- 3. Recall that the Brady four materials at issue information, withheld items of Maj. Op. see here (1) are Smith, statements from (2) Willie V(B)(1), § based on Jells’s attachment of Cynthia Yawn, (3) and Anthony Massingill; these materials as exhibits to his post- state (4) and sheet, Crimestoppers intake contain- petition, conviction though even did he not ing a statement attributable to Camilla Banks. argue them, them, about discuss or even men- The majority contends preserved that Jells has tion them in the text of petition. the Brady respect claims with to these four then re- (Ohio The court App.1998). (1) *10 police the of pieces tioned evidence— (1) claim, gov- finding that: jected Wright that Edward suggesting reports under was sufficient disclosure having ernment’s as Jells mistakenly described had (i.e., “while [Jells] (2) discovery laws face, the Ohio’s chubby and skin and light should the statements that complains had mistak- Devon that suggesting report trial, are satis- we prior to white, provided been the mur- as the van enly described procedure with the compliance as fied that jacket brown, Jells’s as weapon der is 16(B)(1)(g) Crim. R. [Ohio] discuss, outlined or even not did Jells light blue. Bra- requirements of to meet sufficient materials. to, withheld any other refer any- prejudice no ”); there was dy trial court’s Furthermore, framed he “Moreover, has been no evidence (i.e., way Brady, not misapplication aas error a reason- that there is to indicate at offered had occurred what misstatement disclosure an earlier that asserted, probability trial able State] “[The trial: have resulted would this information the statements that because agreed, proceedings.”). outcome a different for in- all available were these witnesses counsel, then by defense inspection camera the Ohio majority rejects both The from was withheld evidence exculpatory no appel- the Ohio fact and findings of court’s So, incorrect.” is analysis This [Jells]. law, and instead findings of late court’s premise the factual that argue not did Jells its review based on a de novo conducts that the argue not did incorrect —he “miscon- courts the Ohio that assertion available not been had witness statements no claim,” “there is so Brady strued his defense inspection for in-camera the merits regarding court decision state analysis argued “[t]his V(C)(2). counsel. Jells § Maj. Op. claim.” of th[at] incorrect,” and, specifically, petition “Jells’s majority contends: during trial inspection court’s in-camera stated properly relief post-conviction prosecutor “[t]he enough, but a clear state- included [and] claim Brady exculpa- all material duty to disclose had a to receive not able that Jells ment in accor- impeachment tory and post-con- until of information complained discovery.” request for [Jells]’s dance with V(C)(2). But, this Maj. Op. viction.” State was is, argued That i.e., in- “complained information” — state- the witness to disclose obligated post-convic- in Jells’s described formation trial.4 ments subsequent appellate motion before tion-relief presently information not the of brief—is the Ohio resolving appeal, his for which only information issue. Brady claim as fol Jells’s appeals framed in either statement” clear is “a there for that evidence claim[s] lows: “[Jells] en- motion or post-conviction-relief had Jells’s state’s witnesses impeachment witness the two are brief appellate suing to trial, pursuant prior provided to be and Devon (of Wright Edward statements following the camera] not [in Brady[], had Wright that suggesting Stapleton) direct exami on testimony of witness light having as Jells 213175, mistakenly described Jells, WL 1998 v. nation.” (1977))); v. O’Hara 30 51 L.Ed.2d in- found—an the state court is—as 4. Which Cir.2007) (6th 499 F.3d Brigano, Brady doctrine. See portrayal of accurate delayed apply to does not ("Brady generally Presser, 844 F.2d v. States United information, but exculpatory disclosure Cir.1988) ("The Brady did not (6th doctrine Delay disclose. complete failure to only pre-trial right dis- a constitutional create delay itself only Brady when (citing violates proceeding.” covery a criminal 545, 559, prejudice.”). causes Bursey, 429 U.S. v. Weatherford skin chubby and a face and Devon had finding no violation and prejudice. no See mistakenly white, described the van as Mitchell, v. 98-CV-2453, Jells No. *14-20 brown, weapon (N.D.Ohio murder as jack- 2002). Mar. Specifically, the et light blue. The Ohio trial court explained: district court decided on purely this case factual basis The evidence [Ruby that the victim Sta- rejected and flatly Jells’s assertion that pleton] and her son [Devon] were with these withheld, documents had been stat- willingly [Jells] earlier the evening is ing unequivocally: “All witness statements Indeed, not relevant. [Jells’s] defense subject were inspection in-camera counsel was aware of this fact and ar- added). to defense.” (emphasis disclosure gued in closing his argument [in

Furthermore, when Jells appealed state trial court] the victim’s con- denial of post-conviction his petition, he duct earlier in the evening refuted the did argue not that the statements kidnapping were not charges. Specifically, coun- available to his defense counsel in- argued sel that there could be no kid- camera inspection. they He conceded napping parties insofar as the had been argued were and (incorrectly) that Brady riding together around for an hour to an required pre-trial discovery. impor- More hour circumstances, half. The tantly, Jells did complain not at all about however, when, became a kidnapping the four documents now at issue. Those Euclid, intersection of Lakeview and were dispute. not in the victim and her son were forced into van. [Jells]’s As described in the Ohio

For all reasons, of these I disagree with Supreme opinion, Court’s several wit- the majority’s contention that pre Jells son) (including nesses the victim’s de- served Brady claim as to thesе four scribed what happened at the intersec- documents, and I disagree majori with the tion. This testimony is ty’s statement that the Ohio court did sufficient establish a kidnapping at time re- render a But, decision on the merits. even gardless what had occurred earlier if properly preserved his (by claim the evening. documents), appending beyond it is dispute prejudice is a (citation substantive Id. omitted; at *16 emphasis add- component claim, of a Brady ed). see Strickler The district court also addressed the Greene, 263, 281-82, 527 U.S. 119 S.Ct. other materials: 1936, 144 L.Ed.2d 286 (citing Brady, The Crimestoppers intake statement is 1194), U.S. at 83 S.Ct. and the Ohio only a paragraph. Its vague statement court of appeals clearly rendered a finding of what Camilla Crimestop- [Banks] told that Jells suffered no prejudice. There pers, regarding what the victim suppos- fore, I also disagree must that this decision edly told her [Camilla’s] [Owen father does not warrant deference under AED- Banks], has virtually no impeachment PA. Inasmuch as the Ohio ap court of value. If anything, the statement peals question considered the of prejudice, highly incriminating [to because it Jells] it, decided upon relied its determina contains that plate license number that tion that none, Jells had shown I cannot subsequently was traced to [Jells]. conclude it that unreasonably applied Bra Camilla’s statement to police the that dy in this case. she could not see the male iswell more

Moreover, the district court reconsid- significant. Such a statement arguably ered this evidence in of light Jells’s habeas could have used impeach been her petition and reached a conclusion, similar description and identification of [Jells]. in case facts of Jells’s to the this standard however, not does non-disclosure, Its manner.” unreasonable objectively is an statement the because relief warrant majority IV(C). But, what the Maj. Op. used in is that term ‘material’ as not misapplication is not a the to describe goes undermine on not does claim. It Brady objectively “an alone The the trial. of Strickland —let in the result confidence rather, misapplication al- indicates unreasonable” specifically statement —but Strickland, albeit man application not see the perfect could though Camilla came simply courts Thus, as- Ohio even in the one which well, could. her father from im- different subjective could be conclusion testimony to a suming Camilla’s persua- the regarding majority is testimony bolstered the that of Owen’s peached, forcefulness, af- addition, weight of the siveness, other or In by the statement. This is mitigating evidence. identify ter-acquired [Jells]. able were witnesses relief. therefore, un- habeas basis for statement, proper does not a in the trial. confidence dermine A. court Thus, district *18-19.

Id. at analysis: Brady its concluded his ineffective-assistance raised allegedly all the must view court] [This post- for petitions state in his Ohio claim collectively deter- evidence withheld that his relief, “assert[ing] conviction ‘material’ evidence whether such mine failing to intro- in were ineffective counsel in the confidence it in that undermines fami- troubled regarding his evidence duce Here, of the evi- none outcome. failing to utilize early life and ly and be charac- can allegedly withheld dence Jells, 1998WL Ohio assistance.” expert addition, only In exculpatory. as terized Following (Ohio.App.1998). *5-6 that she statement pretrial Camilla’s petition, denial of his court’s the trial clear- perpetrator male not see the could claim analyzed the appeals Ohio been usa- would have arguably ly, even *2, no Strickland, and found id. at under In view impeachment. for ble prejudice: to the eyewitnesses testimony of other matter, present- mitigation In lacks suffi- statement kidnapping, that upon [Jells]’s to focus at trial tended ed to be material significance cient his family, good to his loving behavior Brady context. in the is defined term au- school, obedience his behavior therefore, court, *20. The district teachers, strong Id. at his work thority and his Id. Brady claim. rejected away tendency to walk ethic, and his addition, trial In argument. agree cannot foregoing, I from on Based family [Jells]’s indicated or of the facts majority’s rendition with the pre- also times, and many to this moved regard had law application opinion expert respectfully I sented Consequently, issue. Brady intelligence borderline ofwas [Jells] dissent. Finally, hostility. his over-controlled III. statement an unsworn presented [Jells] ethic, his work emphasized he in- which sentencing-phase analyzing Jells’s Devon, sadness his empathy ac- his claim, majority effective-assistance [Ruby] Sta- in which tragic manner Ap- Court knowledges “[t]he death, met her must have pleton Strickland identified the correctly peals reached the verdict with rule,” disagreement federal governing as the standard in its written Further, panel. applied court the Ohio “that but asserts opinion, the judge panel three Indeed, observed social worker Linda Pudvan’s that presented of, [Jells] had averment that even negative family his- alia, character, inter family relation- tory is provide relevant to an explana- ships, employment history, and emotion- tion of Mr. Jells life and behavior during stability. al his offense attorney Murray’s Ken

Examining the evidence now offered averment that unfavorable information record, dehors the we find that a certain further serves to explain the stresses measure of the evidence which [Jells] and traumatic events that culminated now claims should have been admitted to the night of the offense seem odd in be cumulativе of presented what was light complete- presented denial of trial, i.e., frequent moves, change of trial. givers, care intelligence, borderline su- (citations, Id. at *5-6 quotation marks, and perficial, personality style. areWe omitted; added). editorial marks emphasis unable to conclude that there therefore So, based on the foregoing, it appears that is a that, reasonable probability but for the Ohio court appeals of largely accepted counsel, this alleged omission the re- Jells’s assertion that his counsel’s investi- sult trial have would been differ- gation was deficient and decided the case ent, and challenge [JellsJ’s to the effec- instead on the question of prejudice. tiveness counsel in respect fails. As to the remaining items concerning B. the other tragic more circumstances which now [Jells] claims should have majority “conclude[s] that the Ohio admitted, i.e., been his mother’s alcohol- court applied [Strickland] to the facts of ism and the abuse which he wit- often Jells’s case in an objectively unreasonable nessed, this would appear information IV(C). Maj. manner.” Op. According be completely inconsistent fa- majority, perform- counsels’ vorable portrait of which [Jells] counsel (i.e., ance their for search mitigating evi- presented is, at trial. That trial counsel dence) was deficient and prejudicial (i.e., emphasized the aspects favorable there is a “reasonable probability” that the [Jells]’s life and chose to present him as mitigating evidence that would have been someone who over controlled his nega- found during a sufficient search would tive feelings and had no pathological dif- persuaded panel three-judge ference or condition requiring treatment Jells was not deserving of the death penal- or thought disorder. Considered ty). Thus, the majority reaches different light of the nature of [Jells]’s defense at conclusion than the reached, Ohio court trial, we compelled are conclude even though they both applied the same negative more produced information (i.e., Strickland) law and considered the in connection with the amended petition same evidence. post-conviction is inconsistent relief with the essential strategy But, work- that, more than majority con- ing to establish reasonable doubt tends they reason reached differ- turn residual doubt that [Jells] commit- ent conclusions merely is not disagree- ted these offenses. We are ment on the weight or effect given therefore to be unable to conclude in- the evidence—that would be entirely unac- in failing to present this effective ceptable AEDPA; under it infor- is because the mation. applied Strickland ain manner

that was objectively unreasonable. Be- in of Strickland application court’s two Ohio the disagrees with majority cause the objectively be manner cannot deemed this analysis Strickland parts different fact, is not even incor- In it disagree- unreasonable. two ways, the different in two with disagreement in it even Nor is rect. examinations. separate require ments majority’s assessment. the 1. time, dis beyond in is, point at this It case capital in a counsel that defense

pute disagree does opinion court’s The Ohio inves mitigation complete perform must preju- of majority question on the the Mitchell, v. See, e.g., Hamblin tigation. begins by however, majority dice, and the (Batchel Cir.2003) (6th 482, 496 F.3d unrea- Appeals of “the Ohio Court saying: any dis is there Nor der, J., dissenting). alleged errors that the sonably determined “clearly was requirement this pute that prejudice trial counsel did of Jells’s in sentencing of Jells’s as established” IV(C)(2). The § Maj. Op. case.” Jells’s in was deficient counsel Jells’s 1987. Id. indeed determine court did Ohio regard. this did not alleged errors counsel’s Jells’s majori analysis, the of pages ten After case, agree I cannot but Jells’s prejudice has “Jells similarly, stating: ty concludes unreasonable. this determination [performed counsel that his demonstrated the agree that I cannot point, the More to (1) time failed to they: deficiently] when the court made Ohio manner which of phase mitigation for the ly prepare was unreasonable. determination miti trial; failed to use Jells’s gather information specialist gation majority, the just like The Ohio court — preparation in background about IV(C)(2) the § Maj. Op. “evaluated] see — IV(C)(l)(e). § Maj. Op. mitigation.” evi- mitigation of the available totality however, proposition, This unremarkable at trial[] that adduced dence—both unsupported— into the immediately leads [post-convic- in adduced the evidence that: indeed, and, unexpected re-weigh[ed] [and] —assertion proceeding tion-relief] Appeal’s “The Court refusal see aggravation,” against it by Jells’s these omissions recognize 397-398, 362, Taylor, 529 v. Williams profes the bounds outside fell (2000), to 146 L.Ed.2d 120 S.Ct. assistance constituted sionally competent “a reason- there determine whether law of federal application an unreasonable un- that, for counsel’s but probability able Court Supreme by the as determined pro- errors, the result professional (em IV(C)(1)(e) Maj. Op. Strickland.” different,” see have been ceeding would added). phasis 466 U.S. Washington, Strickland (1984). 80 L.Ed.2d S.Ct. find the “refusing]” But, far from omit, exclude, or did not The Ohio court deficient, the Ohio performance fully con- any evidence—it fail to consider on finding whatsoever tendered no appeals major- same evidence all the sidered per- of counsel’s sufficiency/deficiency did not consider Ohio court ity did. The fact, and, appears formance improp- or unreаsonable bound itself the above-de- accepted or assumed fairly fully and review—it er standard Be- performance scribed deficient. evidence, re- all of 697, 104 considered Strickland, 466 U.S. cause evi- aggravating against it weighed disposi- provides for expressly nothing improp- fact, there was dence. prejudice prong, solely on tion 524

er about application court’s ly.”); Taylor, 362, Williams v. 529 U.S. Strickland. 410, 120 1495, (2000) S.Ct. 146 L.Ed.2d 389 (“unreasonable application of federal law is majority’s disagreement The with the different from an application incorrect Ohio court application, is not its but in law”). federal conclusion, its disagreement even that pronounced. is not The majority says that majority The relies on Morales v. Mitch [after-acquired] “this provides evidence ell, (6th Cir.2007), F.3d 916 and Dick more nuanced understanding of Jells’s (6th erson v. Bagley, 453 F.3d 690 Cir. psychological background pres- and thus 2006), to its support position, but in both of ents a sympathetic picture Jells,” more those cases the state court had rendered Maj. Op. IV(C)(2)(c), thereby leading to opinion no prejudice on the prong, so our “a probability reasonable that at least one review was case, de novo. present judges may reached different the Ohio court did render opinion on regarding conclusion imposition prejudice prong finding preju no — death penalty,” id. Even if this assess- be) dice—and our review is (supposed to which, ment were view, in my it correct— ‍​​​‌‌​​‌​‌​​‌​​‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​‌​​​​‌​‌​‌‍the deferential review dictated AEDPA. is not—these findings of “a more nuanced majority also cites Hamblin v. Mitch understanding” and “a sympathetic more ell, (6th Cir.2003), F.3d 482 but that picture” purely are (necessarily) subjective pre-AEDPA. case was Thus, majori disagreement determinations. Our with a ty’s proffered legal support ap for its subjective state court’s determination of proach to this case actually provides no the effect proper is not a support at all. See, basis for habeas relief. e.g., Schriro v. Landrigan, -, 550 U.S. 127 S.Ct. IV. 1933, 1939, (2007) (“The 167 L.Ed.2d 836 For all of reasons, the foregoing I re- question under AEDPA is not whether a spectfully from majority’s dissent opin- federal court believes the state court’s de- ion in present case. I would affirm the termination was incorrect but whether that district court’s decision deny habeas determination was unreasonable —a sub- relief. stantially threshold.”); higher Yarborough v. Alvarado, 652, 665, 541 U.S. 124 S.Ct. (2004) (“We 158 L.Ed.2d 938 cannot

grant relief under AEDPA conducting

our own independent inquiry into whether

the state court was correct as a de novo

matter.”); GAETH, Carl Lockyer Andrade, Plaintiff-Appellee, v. 538 U.S. 63, 75, 123 S.Ct. L.Ed.2d 144 v. (2003) (“It is not enough that a federal HARTFORD LIFE INSURANCE court, habeas independent its review of CO., Defendant-Appellant. the legal question, is left with a firm con- No. 06-6490. viction that the state court was erroneous.” (citations quotation omitted)); marks United Appeals, States Court of Visciotti, 19, 24-25, 537 U.S. Woodford Sixth Circuit. (“[A] 154 L.Ed.2d July Submitted: 2008. federal may habeas court not issue the Decided and Filed: Aug. writ simply because court concludes in independent its judgment that the state- applied decision [the law] incorrect-

Case Details

Case Name: Jells v. Mitchell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 18, 2008

Citation: 538 F.3d 478

Docket Number: 02-3505

Court Abbreviation: 6th Cir.