John David Stumpf v. Betty Mitchell, Warden

Board members. Because the Board did

not raise an presumption irrebutable 3502.02(D),

applying section we find that appellants have no equal protec- suffered tion violation.

III. reasons, For foregoing we AFFIRM judgment of the district court. STUMPF, John David Petitioner- Appellant, MITCHELL, Betty Warden, Respondent-Appellee.

No. 01-3613. of Appeals, United States Court Sixth Circuit. Argued: Dec. 2002. April 28, Decided Filed: OH, Columbus, Respondent- for

Section Appellee. BOGGS, Judge; Chief and

Before: MOORE, Circuit and DAUGHTREY Judges.

DAUGHTREY, J., the opinion delivered court, MOORE, J., joined. which BOGGS, 618-623), a (pp. C.J. delivered opinion. separate dissenting OPINION

DAUGHTREY, Judge. Circuit a David is petitioner,

The John death prisoner state incarcerated Ohio’s court’s dis- appeals row. He district petition, filed corpus missal of his habeas § pursuant to 28 which U.S.C. his and death challenged guilty mur- aggravated for one count sentence der, specification capital with escape detec- was committed to murder tion, trial, punishment and apprehension, offenses, including aggravated for other attempted aggravated mur- robbery and (1) Stumpf alleges Specifically, der. involuntary un- guilty plea his (2) process rights his knowing; due use of inconsis- violated the state’s were against convictions tent theories to secure Clyde accomplice, Stumpf both (3) effec- Wesley; deprived that he was sentencing; at of counsel tive assistance (4) penalty statute that the Ohio death ap- face and as on its unconstitutional him. briefed), plied to (argued Alan Freedman M. (briefed), for Midwest Center Carol Heiss guilty plea, Stumpf a entering Prior to Justice, IL, Petitioner-Appel- for Chicago, by jury and right to a trial waived his

lant. three- his case heard elected have law, Ohio when judge panel. Collyer, of the Attor- Under Michael L. Office Cleveland, OH, pleads guilty aggravated General, Ann defendant ney Carol murder, must an evidentia- hold Attorney of the court (argued), Ellensohn Office a factual basis General, ry hearing establish & Human Services Sec- Health such (briefed), three-judge panel held tion, Attorney plea. Stephen E. Maher found that there hearing in this case and Crimes Caрital of Ohio General’s Office Stumpfs plea, was a factual basis for representation sentencing or to the aggravated he was constitutionality death penalty Ohio and, specification the capital ultimately, statute. mitigating there was insufficient evi- spare Stumpf imposition

dence to from I. PROCEDURAL AND FACTUAL penalty. the death BACKGROUND Stumpfs Under Ohio law at the time of A. The District Factual Find- Court’s conviction, aggravated murder statute ings required “specific proved that intent” be underlying Most of the facts are undis- convict someone that crime. At the puted in this ease and do not affect the evidentiary hearing to establish a factual legal necessary determinations to the reso- Stumpfs basis plea, Stumpf for and his appeal. reason, lution of the For that and attorneys argued that he not shoot did because we review the district court’s de- and, indeed, victim present that he was not only termination the facts for clear er- when the victim was shot. The ar- state ror, adopt we the district court’s charac- gued response Stumpf was the facts, terization of the by as determined shooter, the three-judge panel and courts, the state as follows: adopted heard the case theory, the state’s 14, 1984, May Clyde On Stumpf, Daniel finding Stumpf was the actual shoot- Wesley, Leroy Edmonds, and Norman er. At a trial of Stumpfs accomplice later visiting Washington, a bar in however, Penn- Wesley, presented the state sylvania, got on jailhouse Interstate and head- testimony of informant to es- sundown, ed By west toward Ohio. Wesley they tablish that was the shooter. Guernsey County. had reached They Stumpf sought When to withdraw his and, stopped car guilty plea Wesley’s along their 1-70 leaving on basis of convic- tion, car, motion, Stumpf opposed the state Edmonds and arguing Wesley testimony nearby the informant’s walked to a was unrelia- house under the ble. pretense of needing phone to make a call. they The house chose was owned We conclude that district court and occupied Mary Norman and Jane granted should have to Stumpf relief on Stumpf Stout. Stout admitted and Wes- either or grounds: both two alternative ley into his home and allowed them to first, guilty plea that his unknowing was they phone. use the When had complet- involuntary and because he was manifest- call, ed the both Stumpf and Wesley ly not that specific aware intent an produced pistols and announced a rob- element pleaded of the crime to which bery.1 Stumpf held Stouts at gun- second, guilty and, pro- due point in back bedroom while Wesley rights cess were violated the state’s searched the house for items to steal. in securing deliberate action convictions Stumpf point, of both At Wesley some Stout moved the same toward crime, using him inconsistent theories. Be- shot between granting cause we are on the eyes pistol. relief these two with his The shot was grounds, fatal, do not we reach chal- not and Stout subsequently pushed lenge to the effectiveness During counsel’s into the next room. Wesley pistol had carried Edmonds's with them into the house. Wesley's chrome Raven .25 black caliber A altercation, portion struck on the bedroom. bullet Stout top the head Stout in the of the head was pistol with a and shot struck head part actions were during surgery, time. These but of it second recovered him semi-conscious enough to render in place. had to be left Another bullet was lying kill him. but While recovered from the mattress of the second room, four other Stout heard floor bedroom. dispute There no gunshots. wife was shot four Stout’s times killed Mary was shot and Jane Stout gun- bedroom. She from three first died robbery, of this al- during the course left side of her head. The shots though dispute is a as whether there her wrist through fourth bullet went left Wesley the Stumpf or fired fatal shots. penetrating chest and struck her without killed, and Stumpf After was Mrs. Stout of fifth the skin her chest. A bullet was the car fled.

Wesley stole Stout’s and bedroom, recovered from the wall of that later, Stumpf days arrested several was the of the bed. above headboard any initially denying after knowl- and being and edge about these crimes then The chrome Raven never recovered was survived, had he confess- told that Stout by police, Stumpf the and admitted that he being ed to involved. thrown it out of car after had the window proceedings the the trial court At time Wesley and had the resi- he left Stout occurred, yet ex- Wesley had not been pistol caliber was dence. The black .25 However, Texas. subse- tradited from police the after the sold by recovered men having pleaded guilty quent Stumpfs it, along guns, to an with one Stout’s death, sentenced to having and been Washington, Pennsylvania. individual Wesley aggravated convicted of was Dye, the expert a ballistics from Ronald jury murder and received a sen- by Identification and Ohio Bureau of Criminal the imprisonment tence of life without Investigation, a the Ohio Attor- division of years. The parole for 20 possibility of office, Stumpfs at ney General’s testified Wesley’s at introduced evidence State hearing to the forensic factual basis Wesley not fired Stumpf trial cartridge findings regarding bullets Ed- that killed Mrs. Stout. the shots from scene. cases recovered the murder charged not monds was the Stout spent Dye eight were testified there charged was robbery, murder and but scene, cartridges found at the that seven this during for other offenses committed by gun, fired and one them had been one spree, agreed and he and did crime by gun. Dye fired also different Wesley testify against Stumpf both pistol, which had been said the black concerning Mary the murder of Jane bullet, fired by police, the one recovered Stout. fired the other seven were all while bullets Anderson, No. 2001 WL have gun. gun the That could same (S.D.Ohio 2001). Feb.7, C-1-96-668 Raven, one the chrome or of sеveral been types guns. other Regarding B. Facts Ballis- Additional tics Evidence plea proceeding, prose- At Stout, argued that the ballistics evidence bullets that struck cutor Of two Stumpf had Part only pieces supported each were recovered. conclusion Stout, apparently him Mrs. she was that struck between shot since bullet weapon against during with the same used eyes surgery, was recovered while shot evi- husband, saying, ample “There’s found second her fragment a second pleas, dence to conclude that defendant fired to determine whether there is a plea. all hit anybody, Following shots that because the factual basis entry all gun jury same fired of those shots.” How- of a waiver to have a ever, evidence, Wesley’s trial, during pros- hearing the same hear the commenced Eastman, cellmate, put ecutor Wesley’s three-judge panel. on before a stand, Wesley’s to repeat witness con- During hearing, factual basis Eastman, fession him. According prosecution argued had shot Wesley told him that after Stout, Mrs. while argued the defense face, dropped shot Stout by Wesley, Mrs. Stout was shot ran, chrome which point Raven and Stumpf. three-judge panel found Wesley picked up pistol and shot Mrs. Stumpf beyond “guilty a reasonable doubt” Stout. This version of the crime was also (aggravated of count one of the indictment supported by the ballistics evidence that Sout), Mary along Jane pistol tendency jam the black had a (that specification one she was killed round, firing just one which may escape aggra- detection for the crimes of Wesley have led to discard it after shoot- robbery attempted aggravated vated ing only it once. murder) (firearm), specification four and guilty and of count two indictment Guilty C. The Plea aggravated (attempted murder of Norman Stout), its Stumpf Wesley specification. not firearm and could be tried together Wesley because contested his ex- Mitigation Hearing E.The Texas, tradition from where he had been result, apprehended. As a Wesley while mitigation day The was held hearing one Texas, Stumpf was still detained in plead- evidentiary the conclusion of the' guilty the aggravated ed murder of hearing, days, lasted less than two and Stout, Mary Jane violation of Ohio Rev. the presentation consisted of of 15 wit- 2903.01(B), § capital spec- Code and to the nesses for the of primarily some defense— ification under Ohio Rev.Code Stumpfs family friends and members and 2929.04(A)(3) § that the murder was com- a employers few former and teachers —and purpose mitted for escaping of detec- by of an Stumpf unsworn statement him- tion, apprehension, trial punishment or for self. presented Defense counsel no expert aggravated the offenses of the robbery witnesses, of beyond parole a officer a and pleaded He guilty Stouts. also court clerk who as to Stumpfs testified attempted aggravated of Norman lack of significant history. a criminal The and specification Stout to a firearms for general was strategy defense to show that Subsequent each count. the entry nature, Stumpf generally good had a plea, his prosecutor notified the trial temper, fairly steady lacked a violent had a judge plea agreement that a had been education, work history but a a limited had Stumpf questioned reached. was environment, about difficult home and re- agreement length, some as detailed spectful Stumpfs towards women. un- below. sworn statement recounted his version of emphasized Wesley, crime and that Evidentiary Hearing D. The and Mary had shot Jane Stout. law, Under Ohio the trial court must evidentiary hearing

conduct an ag- all Following hearing, three-judge gravated death, involving guilty panel finding murder cases sentenced right jury mitigating gent; two his waiver to a only that hе established (28) invalid; that his lack of a trial was he received ineffec- his and age factors: the penalty assistance of counsel at background. tive criminal significant permitted he was not to be phase; History Appellate Procedural F. trial; at motion a new present his for improperly the trial court considered non- conviction, his and while After statutory aggravating circumstances Wesley pending, Clyde appeal was direct ignored mitigating substantial evidence convicted, by Mary jury, a Jane was also sentence; deciding his the trial when result, filed As a murder. Stout’s denying erred in his motion to vacate court his motion for leave withdraw guilty plea his sentence or withdraw alternative, or, to have the trial evidence; newly based discovered his death sentence court set aside post-sentence proceedings consideration of sentencing hearing. him a new grant than three-judge panel less the entire summarily denied two motion process rights; violated his due case at judges three who had heard his by failing to an the trial court erred follow (the judge third had died the trial level statutory requirement that the court Ohio interim), Supreme the Ohio Court meaningful analysis written produce it at the same time affirmed the order im- mitigation evidence as a for basis ap- conviction on direct affirmed posing death sentence. peal. post- petition then filed a opinion and The district court issued two court, raising conviction relief state orders. The first found several his trial challenges validity jury of procedurally claims had petitioner’s been of and the effectiveness trial coun

waiver defaulted, Anderson, Stumpf v. No. C- see representation, particularly with re sel’s (S.D.Ohio 2001); Feb.9, the sec 1-96-668 Stumpf to that he gard to counsel’s advice claims, remaining on ond denied relief if he penalty not the death would receive Anderson, 242585, Stumpf 2001 WL see v. Stumpf plеaded guilty. petition, 2001). (S.D.Ohio Feb.7, No. C-1-96-668 hearing and sub requested evidentiary an However, a grant court did the district his support mitted affidavits of multiple following appealability on certificate of peti claims. The trial court dismissed the (1) statutory pro five issues: whether the evidentiary and hearing, tion without an capital governing punish Ohio’s visions by decision was affirmed the Ohio this Sixth, Fifth, violate the ment scheme Supreme of The Ohio Appeals. Court Fourteenth Amendments Eighth, and see v. appeal, Court dismissed State Constitution, on either the United States 712, 56 565 N.E.2d 835 Stumpf, Ohio St.3d (2) applied Stumpf; face their or as (Table)(1990), and the States Su United guilty plea knowing, was Stumpfs whether subsequently denied preme Court certiora (3) voluntary; intelligent and whether Ohio, 956, 112 Stumpf ri. v. See the ineffective assistance Stumpf received (1991). 415, 116 L.Ed.2d S.Ct. 435 trial; penalty phase of his of counsel at the (4) Stumpfs process rights filed a for a whether due petition next writ court, as when the trial court failed alleging in federal were violated corpus habeas his or allow him to with for relief that the Ohio Death vacate sentence grounds newly unconstitutional, plea discovered Penalty draw his based on statute is both (5) evidence; whether received applied Stumpf; that his and written and as appellate coun- knowing not the ineffective assistance guilty plea was and intelli- 600 (6th us, Johnson, 324, pressed Before

sel. has the Garcia v. 991 F.2d 326 Cir.1993). brings a four claims When defendant fed- first but has abandoned petition appellate challenging plea, eral habeas claim counsel was ineffec- generally the state satisfies this tive. burden producing transcript proceed- plea Garcia, 324, ing. 991 A F.2d state II. STANDARD OF REVIEW finding plea proper is court was Stumpfs peti habeas Because federal correctness, a presumption accorded un- 1995, tion was filed November transcript of plea proceeding less the § amendments to 28 2254 contained U.S.C. plea inadequate demonstrate that in the Antiterrorism and Effective Death voluntary, intelligent knowing. was (AEDPA) Penalty Act of do apply 1996 326-27; Simmons, Garcia at Dunn v. 877 (See case. Murphy, to this Lindh v. 521 (6th 1275, Cir.1989), F.2d 1277 overruled 320, 336, 2059, 117 138 U.S. S.Ct. L.Ed.2d grounds by Raley, on other Parke v. 506 481)(1997) (finding changes that AEDPA 20, 517, U.S. 121 391 L.Ed.2d ‍​‌​​‌​‌‌​​‌​​‌​​‌​‌​‌​​‌‌​‌​​​​​​​‌‌‌​​​‌‌‌‌‌‌​​‍apply to at pending do not cases the time (1992). 1996). 24, of AEDPA’s enactment April proper standard of this review claims, therefore, must be evalu then, turns on whether the record of 2254(d) § prior ated under as it existed proceedings surrounding state court the enactment AEDPA. guilty plea doubt as to “leav[es] Accordingly, we review the district plea intelligent whether the was in fact disposition of for writ petition court’s Dunn, voluntary.” 877 F.2d 1277 novo, corpus although habeas de the dis- Black, (citing Roddy v. 516 F.2d trict factual findings court’s are reviewed (6th Cir.1975)). 1384 If the record does only McQueen clear Scroggy, error. leave as to doubt whether the Cir.1996). (6th F.3d We also voluntary, intelligent and knowing, defer to the state findings, court’s factual not, argues defendant that it State may only which “clear rebutted contrary. bears burden of proving convincing However, evidence.” Id. (citing Boykin, Id. 395 U.S. at “basic, only applies deference primary to 1709). S.Ct. facts” and not to of question mixed law and Although Stumpf not contend does fact, subject which are to de novo review. explicitly guilty plea his invalid was Id. specific he was not because aware that an intent was element of crime to the III. ANALYSIS pleaded guilty, which argument is Validity A. The of the Petitioner’s in continually inherent the fact that he Guilty Plea professed committing his innocence of the held, The Supreme has in shooting during Court actual both after and Alabama, Boykin v. guilty reflects, plea. record for exam (1969), expectation L.Ed.2d 274 that when a ple, given his that he would be enters a guilty plea, defendant the state an to opportunity present to the evidence the burden showing plea panel bears of three-judge relevant to conduct. voluntary, was intelligent knowing. Moreover, the record indicates Determining plea voluntary, statutory whether a is explicit requirement of intent intelligent and knowing requires analy explained during was never to .an totality sis of the of plea colloquy. Furthermore, the circumstances. although his to court convicted under attorneys represented 2903.01(B), which, although § it specifies to the elements explained they caused “purpose- must be crime, arguments their own of the ly,” specifically require does intent. plea colloquy during court (D) However, of the subsection same stat- evidentiary hearing to establish a factual ute clarifies that is indeed neces- intent a typical pre- refute the plea for the basis sary aggravated element of murder: fully have that defense counsel sumption (D)No adequately explained person ag- all elements of a shall be convicted guilty. gravated murder is pleads specifically to a before he unless he crime client Indeed, to have to representations counsel’s found intended cause defense death of another.... betray igno- their own the court either to aggravated element of of the intent rance (1984) (amended § Ohio Rev.Code 2903.01 murder, woefully a represent or inade- 1996). Furthermore, the statute limits meaning a understanding quate inferring specific from intent fact-finders colloquy it- plea. Finally, solely participation an in a from accused’s to self, along with statements felony murder: stages proceed- through all court jury aggravat- no case shall an [I]n a unwillingness ings, demonstrates case ed murder be instructed such to to admit intent. it may person manner that that a believe any who or to commit attempts commits Stumpfs crime and At the time of sub- (B) listed of this sec- offense division conviction, mur- aggravated Ohio’s sequent inferred, conclusively tion to be be- specific intent specified statute der еngaged design in a cause he common aggravated necessary element of with others commit offense as follows: murder. The statute read and violence the offense force or because murder. Aggravated § 2903.01 and the manner of its commission would (A) death, in- person purposely, likely produce No shall have cause design, any person calculation and tended to cause the death prior during of another. who is killed the commission death commit, flight or from the attempt or (B) person cause the purposely No shall commit, the attempt of or commission fleeing while immedi- death another jury aggravated If a mur- offense. in an committing ately attempting or person who der case is instructed that aggravat- kidnappingfsic], rape, commit any of- attempts commits or to commit arson, aggravated robbery arson ed or (B) listed division of this section fense burglary or robbery, aggravated or bur- inferred, in may engaged be because glary, escape. or design others commit common with to (C) violates this section is Whoever by or be- the force or violence offense murder, and guilty aggravated of shall of the offense and the manner cause its provided in section punished be likely commission produce would to be of 2929.02 the Revised Code. death, to the to have intended cause (1984)(amended any person during § 2903.01 death of who killed Rev.Code Ohio 1996).2 commit, of, attempt to or the commission gravated murder. See Ohio Rev.Code § was amended on 2. Ohio Rev.Code 2903.01 (D) (2002). July removed and § 1996. Section was 2903.01 descriptions ag- replaced additional of flight of attempt Washington’s participation from the commission or based on robbery. offense, Id. at 288. jury to commit the the also shall be instructed that the inference is non- Here, plea proceeding the record conclusive, may the inference clearly demonstrates that the defendant intent, determining considered that it an possess understanding did not the of by is to consider all evidence introduced aggravated charge to which he prosecution person’s the indicate the pleaded guilty. Although the district court intent by person the to indicate his ultimately concluded the state court lack of in determining intent whether record of suggestive knowing person specifically the intended to cause voluntary plea, plea did it concede that the person the death of the killed.... picture clarity.” “not a proceeding of agree, We and we note that this “lack of 2903.01(D) (1984)(amend- § Rev.Code Ohio clarity” first surfaced at the the moment 1996). Finally, ed the fact-finder must prosecutor plea the informed court that a prosecution also be “the instructed that agreement gave had been reached. He prove must specific per- intent of the following agreement: account by proof son have caused death Honor, SCOTT: Your the first matter beyond a doubt.” reasonable Ohio Rev. dealt with would be or the State (amended 2903.01(D) (1984) 1996). § Code would ask pursuant leave Court together, provisions Read these indicate 7(D) Criminal Rule Ohio Revised specific may intent not be inferred Code Section inter- by 2941.30 amend solely from of participation the fact in a specification lineation one to first felony murder but must be established ex- count of the Indictment in that it order plicitly prosecution. may read as follows: The Grand Jurors Ohio courts have confirmed this inter- specify further find and under Ohio Re- In pretation the statute. In re Wash- 2929.04(A)(3) vised Code Section in com- ington, 81 Ohio St 3d 691 N.E.2d pliance with Ohio Revised Code Section (1998), Supreme Court of Ohio 2941.14 being that the aforesaid offense appeal regarding considered an whether court, charged the offense in the first there was evidence support sufficient Murder, Aggravated was [commit- specific requisite intent for an aggra- purpose for the of escaping ted] detec- conviction, vated murder in a case which tion, apprehension, punishment trial or the murder was committed the course of words, for other offenses—the “other robbery. court explained: As the offenses” are the first change, commit- “Washington guilty cannot found [be of] ted the above named David John aggravated solely murder based on his Aggravated Robbery to wit: complicitous It necessary actions. is also adding and then we’re language for the state to that Washington establish Aggravated “and Attempted Murder”. culpability acted with the kind required If that granted, amendment is the defen- aggravated commission of murder.” dant then would enter a Id. particular the first count contained the Indict- court found that there was sufficient evi- ment, being Aggravated Murder dence for the trial to court conclude that count a of plea guilty specification and to Washington had with the requisite acted amended; one to first the count as intent, because trial court the inferred in- a plea guilty would also enter the to only tent and “hearing considering Indictment, all being second count in the me, the evidence” of presuming instead intent the up. offense of—excuse back As plea agreement. also a the As the he would enter record re- to the first count veals, four the specification stage plea agree- to to even at this plea guilty So, ment, pleading be to appeared first count. he will the defendant to be unable count, amended specifica- the the to follow the proceedings: first count and specifica- tion one to the first JUDGE Thank you, HENDERSON: regard count. With tion four to the first ruling on the Scott. Before motion or count, being Attempt- to the second Indictment, I amendment of the would Murder, he Aggravated ed would enter ask Counsel for the defense if they wish Attemptеd plea guilty Aggra- to the upon to comment the statement of the plea guilty to the vated Murder and Tingle? Prosecutor. specification the second count. If the to please, TINGLE: If the Court pleas of to the two counts and the guilty by Prosecuting statement made At- specifications accept- I’ve mentioned are torney is an accurate statement based Court, by the Court then ed would our him upon discussions with earlier 11(c)(3) Rule proceed to under Criminal today and upon ready one which we are a factual for determine if there is basis proceed to time. this to the plea Aggravated I’m going JUDGE HENDERSON: Murder and the charge existence ask for the defendant Counsel circumstances and if the aggravating I am going inform the defendant that pleas accepted the State would then are question very ask one of the defendant pros a nolle ask leave to enter shortly question and that is this: Do specifications and three to the first two you, Stumpf, affirmatively John David pros count also a nolle as to the and agreement that has acknowledge the third, fifth counts in In- fourth and by been the Prosecutor con- stated including specification dictment and by curred in the defendant’s counsel? to the count. third Having the defendant of the forewarned understanding of my That the ar- asked, I’m question going that is to be rangement proposing that we are question Stumpf, you ask that now. do present Court at the time.3 affirmatively acknowledge agree- this of the trial court Reviewing portion this ment? record, court the district commented you repeat STEPHENS: Would attorney’s explanation “the prosecuting question him Your Honor? for plea was somewhat difficult agreement JUDGE HENDERSON: do follow, criminal and that defendants acknowledge you affirmatively often answer questions such situations will agreement by that has been stated posed the trial court without a clear in by your Prosecutor and concurred every ut- understanding of each term attorneys? if especially tered advised counsel to do Yes, THE sir. DEFENDANT: just that.” trial court in But the Obviously, every ambiguity plea in a attempting rather to elucidate the than more, defendant, proceeding, for the without will demon- prosecutor’s explanation “knowing is not immediately plea turned to the defendant for strate However, intelligent.” exchange set prosecutor’s verification of the account of merged part of the same agreement specifica- 3. The also were to treated as offense one, specification tion four one sentencing purposes. of count is, gun specifications of count two. That both merely out above turned out to be have a constitutional privilege against beginning of much confusion that was to self-incrimination? allowing

follow. After amendment of the Yes, THE DEFENDANT: sir. indictment, the court a plea conducted col- JUDGE a full un- HENDERSON: With loquy, examining first the defense attor- derstanding anything you say that neys, and then the defendant: may against you, you willing be used are questions regard

JUDGE The Indict- then to answer to HENDERSON: your understanding your ment to rights? seems be order and the Court going inquiries is to make certain of the Yes, THE DEFENDANT: sir. counsel for the defendant and the defen- Now, you JUDGE HENDERSON: dant to proposed entry as of the questions heard the I put your guilty plea. necessary It ques- is believe, attorneys, I relative to their ad- tion thoughtfully be asked and answers you vice to and their counseling you, given a case of this I’m going sort. you did not? inquire attorneys for the defen- Yes, THE DEFENDANT: sir. dant, you fully investigated have you per- JUDGE HENDERSON: Do facts and the law of this case and deter- sonally acknowledge your attorneys any question mined whether there exists you they have informed and advised of the admissibility any claimed ad- say they have? missions, confessions or other evidence Yes, THE DEFENDANT: sir. under Federal and State law and ad- you JUDGE HENDERSON: Are satis- your concerning vised client the same? fied with the they services which have have, TINGLE: We Your Honor. performed you? you JUDGE HENDERSON: Have in- Yes, THE DEFENDANT: sir. your formed client of the elements of the Judge Henderson questioned next charged, offenses with which he is all physical as to his and mental may defenses which to him available health, presently and whether he was un- and of all of his Constitutional rights, der the drugs influence of or alcohol. He both State and Federal? then went over the crimes to which Yes, TINGLE: we have. was pleading guilty. following ais complete account explanation of his attorneys After his they indicated that defendant: explained the elements of the crime to client, their Stumpf was sworn in for the JUDGE you HENDERSON: Do under- limited purpose answering questions you stand that are charged with several concerning plea, and affirmed his being offenses? The first offense that of attorney’s statements, as follows: Aggravated Murder, there have specifications been two being presented

JUDGE HENDERSON: I’m at this time in particular proceed- going you questions ask number of ings, Aggravated to wit: Robbery and you if do not ques- understand those Attempted Murder possession of a you may tions inquire your attorneys firearm while committing those offenses. you better able every- understand youDo understand that? thing that being you. asked These Yes, THE DEFENDANT: sir. have rights you to do with the have person as a who has been accused of a you JUDGE Do HENDERSON: under- you crime. Do you understand that you stand charged also have been Yes, DEFENDANT: sir. THE Aggravat- Attempted the offense with in the first Murder, felony which is ed you pres- HENDERSON: Are JUDGE degree? parole, or sir? ently probation Yes, sir. DEFENDANT: THE No, sir. THE DEFENDANT: the first For HENDERSON: JUDGE below, IQ Stumpf has a low As indicated Mur- count, Aggravated is that of which mentally to be and has been found following to the der, subject are you Nevertheless, emotionally immature. to a subject being to you are penalties: inquired court never into trial twenty years proba- without sentencе guilty plea pro- ability to understand is, tion, of life without that a sentence charges nature of the cee'dings or the twenty years; sentence for probation out explanation him. The set against period for a probation of life without crimes only account of the above is penalty death thirty years and the No- Stumpf by to the court. provided imposed against could be electrocution elements, explain the court where does that, sir? youDo understand you. charges as listed or even read Yes, DEFENDANT: sir. THE indictment.4 under- youDo HENDERSON: JUDGE to subject proceeded Henderson then you Judge would be also that stand rights to the about the he was question four specification the under under by pleading guilty. The ex- years surrendering incarceration to three first count as follows: any change other went you begin to serve before sentence? youDo under- JUDGE HENDERSON: Yes, DEFENDANT: sir. THE will you plead guilty you if stand that youDo under- HENDERSON: waive, is, right you give up JUDGE that will Aggravat- Attempted Court; stand also jury trial or trial to Murder, in count which is set forth ed and until presumed innocent right to be two, degree in the first felony is a beyond a reasonable proved incar- be sentenced be you ques- could and to doubt; right to confront five, four, or six period for a and to against you cerated tion the witnesses twenty-five than obtaining but not more process seven compulsory have that, sir? you favor; understand years? right Do your witnesses testify your at trial or to Yes, remain silent sir. THE DEFENDANT: no infer- choose and that you may youDo under- HENDERSON: JUDGE you if choose not may be drawn ences the first felony that for a also stand you trial. Do understand testify your at more fined not degree you could be up rights? those you may giving $10,000.00? than Yes, Honor, sir. THE DEFENDANT: refer- Your STEPHENS: that, explained we have you ence And HENDERSON: JUDGE re- going to He was the in- the defendant. the fine and could receive both him but we have carceration, spond I have mentioned? which informed put the defen "purposely” not sufficient amend did initial the interlineation intent, which is during specific hear indictment dant on notice ment ing, par indication in the record implied but there is no from expressly than intent more actually read the indictment that he had felony, required element of is a ticipation in a read to him. any point or that it had been aggravated murder. Moreover, of the term we conclude that use is, plea, hearing presented there or trial the evidence that is to be and underlying mitigation punishment relative to the so that evidence in of facts considering he is that there will be and after a presentence in- belief presentation vestigation, evidence and I wanted to report and recommendation that make clear to the Court with refer- approved prepared by probation to right ence his of waiver of trial to department you may that receive Court. prescribed by the maximum sentence that, you law. Do understand sir? JUDGE HENDERSON: I understand appreciate your bringing that and I Yes, THE DEFENDANT: sir. attention, my Stephens. to Of course in any JUDGE HENDERSON: Have sentencing portion you this trial promises or inducements been made to rights speak your do have those to sir, you, agreement other than the which own present to evidence and testi- behalf you affirmatively acknowledged have on mony your My own state- behalf. the record? you my question you ment to to No, THE DEFENDANT: sir. except rights you intended to those you JUDGE HENDERSON: Are Counsel, do have. satisfactory? is that fact of count one specification Yes, sir. STEPHENS: specification one and four? read exchange We this to reflect a mis- moment, STEPHENS: One Your Hon- understanding attorney between Stephens Honor, or. Your has defendant Judge Stephens, Henderson. answer- asked me to explain his answer. His ing for asserted the defendant’s yes. answer is He will recite that with right present to evidence “a during hear- obviously understanding his right his ing or trial relative to thе underlying to present evidence at a later time rela- plainly facts” case. He was refer- conduct, tive to his respond but he’ll ring to the factual hearing basis and as- that. serting the challenge defendant’s wish to JUDGE HENDERSON: At no time am Judge the state’s version of the facts. I implying that the defendant will not Henderson indicated in response that the right have the present evidence in present during defendant could evidence mitigation hearing and I do appreciate trial,” sentencing portion “the ap- it, Stephens, you bring this to the parently referring mitigation to the phase. attention of the Court. And I’m going any this was the first indication defendant, himself, to ask that the re- that the defendant did not wish to concede spond question that I asked with the state’s version of the par- facts. The that understanding that he has right ties next prior suppression discussed a present evidence in mitigation. I’m hearing, and then the court ques- resumed going to ask the if defendant he is in fact tioning Stumpf: guilty of the charge set forth in Count JUDGE you HENDERSON: Do under- one, including specification one and stand, Stumpf, any promises that if or specification four? inducements you by have been made to Yes, The Defendant: sir. any person you plead guilty to cause they are not binding upon Again, exchange between Stephens Court, you if plead guilty that and Judge Henderson has all the hall- Court, this panel Judges, will decide marks of a misunderstanding. serious your sentence after all of considering unwilling plead “guilty” finding support and to proceedings, reserving right expressly without did not understand [the defendant] to his conduct.” “relevant evidence present Anderson, Stumpf v. plea.” nature of his pre- reference to preceding with the Read 2001) (S.D.Ohio (quoting 2001 WL 242585 evidence, only refer to this could senting 327). Garcia, F.2d at We conclude hearing to es- evidentiary subsequent mis district court’s reliance was plea. a factual basis tablish however, Stumpfs qualifi because placed, reiterating his de- obviously, was and it temporary, cation more than was account of his challenge the state’s sire to by the trial court. was never addressed called actions, procedure and had the of the evi- determination an immediate contrast, Garcia, the defendant By support by the state to upon relied dence had not intended to first claimed that he conviction, the imminent the defendant’s Garcia, kill 991 F.2d his victim. undoubtedly have misunderstanding would statement, judge the conducted After this finalized plea the was light come to before the defen “a discussion” with substantial again, Once Stumpfs fate was sealed. the facts of the regarding dant however, referred to the Judge Henderson intended then admitted that he had Garcia evidence “right present defendant’s Here, judge, the trial to kill his victim. Id. missing hearing,” completely mitigation Stumpfs plea, had not accepting before ad- despite that his implication clear the intent specific that informed the defendant was concerned guilt, Stumpf mission to which he an element of the crime was ability to contest his preserving inquired about whether pleading, nor had or, of his actions. if actually state’s account shot the victim Stumpf had not, intended that she be specifically had Moreover, arguments defense counsel’s inquiry, In the absence of some killed. evidentiary hearing subsequent during the ability of his Stumpfs express reservations to contest defendant’s desire confirm the version of the' on evidence of his put of the crime. From version the state’s crime, attorneys’ arguments his along with hearing, counsel at that opening statement intend, not even and was that he did not Wesley, Stumpf, was the that not argued Stout, for, killing of Mrs. present For ex- Mary shot Jane Stout. one who notice trial court on put the should have state- opening counsel’s ample, defense the true not aware of following: included the ment imрort plea. of his [the as outlined Scott scenario [T]he court did not focus on The district sequence does follow prosecutor] Rather, it found of intent. question occur, they except for as did events that he was Stumpfs position shooting of to the actual as statements spedfica- consistent with shooter was Stout, which the defendant Mary Jane However, pleaded guilty. to which he tion will show occurred the evidence believes court the district making finding, Wesley. Daniel at the hands of Stumpfs position is recognize failed to rejected Stumpfs ar court The district to which he charge inconsistent was not position that he gument that his It this inconsisten- guilty. pleaded also invol guilty plea rendered his the shooter to his claim that cy gives rise Garcia, 327, 991 F.2d at untary, relying on validly entered. was not that a authority proposition for the reviewing pre court Generally, a position by qualification “temporary explained has counsel sumes that defense to rebut is not sufficient defendant the crime to a defendant court the elements of state of correctness presumption pleading guilty, even where the record ic to kill. prosecutor responded intent any kill, does not reflect statement counsel purpose to a whoever “[a]s Mintzes, Berry to that effect. 726 F.2d any shot Mrs. Stout didn’t intend to do her (6th Cir.1984) (“it 1142, may ap- favors when he shot four It her times. propriate presume in most cases shooting person seems to me that four routinely explain defense counsel the na- your times shows what intent was.” ture of the offense in sufficient detail to Indeed, the three-judge panel, which notice”); give accused but cf. element, presumably knew of the intent Morgan, Henderson v. 642- found, doubt, beyond a reasonable (1976) 49 L.Ed.2d 108 principal was “the offender” that, (finding where the defendant’s attor- aggravated murder and no made other neys argued to the court that their finding specific as to intent. Its conclusion victim, client had not harm intended to regard in this panel indicates that there could no presumption be that counsel that Stumpf shooting found s of Mrs. Stout explained had to their client intent intent, provided requisite specific crime). was an element of the In this there was no other evidence in the record case, defense counsel did state to the court satisfy finding, this element. Given this they Stumpf had informed of the ele- unlikely it is that Stumpf can be said to ments of the crime. In a typical such knowingly have conceded specific intent to an assurance would prevent reviewing kill pleading guilty, when he continued court from finding plea that a was involun- to maintain throughout proceedings case, however, tary. In this the record that he had not actually been the one who clearly Stumpf sought establishes that shot the victim. preserve right argue his that he not the shooter and thus counterbalances the We conclude that the record Stumpf s given by assurances defense counsel that plea hearing subsequent and the evidentia- they explained the elements ry hearing, together, taken demonstrate Stumpf. plea that the he entered was constitution- that, ally Boykin invalid. holds “because a course, recognize, of

We guilty plea is an admission of all the ele- need not have been the “principal offend- ments of a charge, formal criminal it can- er”—the actual shooter—in order to have truly voluntary not be unless the defen- specifically intended the death of Mary possesses dant an understanding of the Nevertheless, Jane Stout. it is clear from in law relation to the Boykin, facts.” 395 the record of the factual hearing basis 5, at U.S. 243 n. 89 S.Ct. This theory the state’s of guilt completely relied understanding must include “real notice of being principal offender. him, charge the true nature of the against The prosecution presented no evidence universally recognized first and most death, intended Mrs. Stout’s requirement of process.” due Henderson than arguing other that he was the actual 644, Morgan, v. 426 U.S. 96 S.Ct. 2253 shooter. In closing arguments at the (quoting 329, v. O’Grady, Smith 312 evidentiary hearing, counsel, U.S. defense con- (1941)) 85 tending prosecution that the L.Ed. 859 had not met that, (finding its burden regard because the defendant did basis seeking penalty, effectively the death not chal- know intent was an element of the lenged prosecution’s proof specif- as to crime to pleaded guilty, which he plea his

609 and, therefore, pleaded guilty voluntary).5 We have held under an could not be voluntary is not deemed guilty plea agreement provided that “a absolutely no it does entering so with- person where the form of a reduction possi benefit consequences understanding of the out sentence, ble an additional indication Stubbs, plea.” intellig States his United plea knowing that his was not Cir.2002) (6th 402, 411, (quotation F.3d argument standing This alone ent.6 omitted) split in a ‍​‌​​‌​‌‌​​‌​​‌​​‌​‌​‌​​‌‌​‌​​​​​​​‌‌‌​​​‌‌‌‌‌‌​​‍decision (finding, carry weight, given would not much mandatory minimum sen- involving case well-recognized that a principle plea tence, elements of the that if the “essential involuntary cannot be merely rendered the defendant was crime with which because, in it turned out hindsight, not to understood the defen- charged were not the best decision. See McMann v. court, dant, counsel, his or the district then Richardson, 759, 769-71, guilty plea would be con- the defendant’s (1970). S.Ct. 25 L.Ed.2d 763 How invalid”). stitutionally ever, Stumpfs plead guilty— decision to above, when the state As discussed by agreement a capital a crime with —to plea court of a defendant’s does record specification, especially the absence of plea is constitutional demonstrate any take identifiable reason to such a adequate, the burden of ly the state bears action, course of an creates additional in voluntary, knowing showing plea ferenсe was invalid. com Here, pre and the state has intelligent. that he position bination his was not no evidence to counter the sented extrinsic shooter, ignorance the reveals his which proceedings record of the discussed above. specific an element of intent as of the Instead, respondent explicitly the has re crime, that Stumpfs the record indicates argue alone to that the lied that record he plea involuntary was “because ha[d] voluntary, knowing, plea was and intelli understanding an incomplete such the gent. paucity indeed, Given — charge plea that cannot stand an his as lack—of to refute what is the evidence intelligent guilt.” Ivy admission record, clear on we must conclude that (8th 1136, 1141-42 Caspari, 173 Cir. F.3d not met the state has therefore its burden involuntary where 1999)(guilty plea defen may showing plea stand. was not informed that intent dant was Furthermore, totality circum- underlying necessary element of the felo provide surrounding plea stances ad- ny). plea ditional that evidence was question The of counsel’s effectiveness

voluntary, knowing, intelligent. For not before as representing Stumpf in is us example, argues that the fact that Stumpf is, independent ground an for relief. It eligible penalty for the death remained Henderson, Indeed, eligible penalty. We for the death discount 5. defendant had n indictment, relief, charged however,' possible heard which that he as a basis victim, "willfully” read in stabbed plea hearing because record of the indi- Henderson, 642, open court. listing possible judge, cates that the while Supreme 96 S.Ct. 49 L.Ed.2d 108. The aggravat- Stumpf receive for sentences could put Court was not found that this sufficient to murder, Stumpf at the ed did inform time of required him on intent was a notice penalty by plea death electrocu- his that "the plead- to which he element of the crime you.” against imposed could tion 645-46, ing guilty. 96 S.Ct. 2253. Id. understood, Stumpf judge thеn asked whether answered, "Yes, Stumpf sir.” plea Stumpf his 6. also claims that was invalid because aware that he remained he was not however, facts, challenge challenge tended to raised context the state’s validity guilty plea. evidently of his The position sanctioned his attor- clearly Stumpf record shows has al- neys, Stumpf reaffirms the conclusion that ways being denied It is also shooter. by pleading guilty was not aware that strategy, clear that defense counsel’s aggravated admitting murder he was throughout evidentiary hearing both the specific Mary intent to kill Jane Stout. mitigation hearing, argue and the was to There are other indications in the rec- that after shot Norman Stout he ord, well, pointing to the existence of at fled, panicked was not probability least reasonable present Mary even the home when Jane pleaded guilty would not have had he shot, was, Wesley Stout was and that known that such a would have fact, the one who shot Mrs. Stout. One admitting specifically amounted to that he if possible, unlikely, explanation for coun- Mary intended the death of A Jane Stout. strategy that they sel’s themselves were mitigation investigator reported, later specific unaware that intent an ele- affidavit, an did “John not want to But, ment of the crime. failure to re- Moreover, plead guilty.” affidavits from search the most basic details statute Stumpfs family impression affirm the under which charged their client was attorneys were less than candid in “range compe- would be outside the explaining to them the motive behind the tence” to which the defendant is entitled. plea. example, Stumpfs For mother and Henderson, See 426 U.S. at they sister said that were told Perhaps disturbing pos- more is the attorney that he would not receive the sibility counsel, realizing that intent penalty death plea. because of his offense, was an element of the nonetheless us, from We conclude the record before plead guilty chose to allow their client to as it Mary relates the murder of Jane only then —and then —to contest the Stout, that there a prob- exists reasonable this, too, existence that element. But that, ability petitioner had the fully been manifestly would constitute ineffective as- informed of the elements of the offense to sistance, merely since a is not a con- which pleading consequences he was conviction, fession but serves as a with plea, of that he would not pleaded have only resulting sentence left be de- aggravated to her murder. 242, Boykin, cided. See 395 U.S. 89 requires S.Ct. 1709. It is true that Ohio B. The Due Process Violation factual hearing aggravat- basis cases of At Stumpfs post-plea the time of evi- murder, ed but it would nonetheless dentiary hearing mitigation and his plainly reckless and incompetent for an —or sentencing hearing, accomplice, his Wes- attorney rely hearing on a factual basis — Texas, ley, fighting was still extradition. to refute an element of a crime to which During Stumpfs plea both hearing, held already his client has Fi- pleaded guilty. pursuant 2945.06, § to Ohio Rev.Code nally, lawyers whether were sentencing hearing, his not, prosecutor aware of ar- the intent element or their gued, and the compels three-judge panel ultimately behavior the conclusion that found, that principal himself was not was the of- aware of the intent fender, responsible actually element. Stumpfs shooting observation of his at- torneys’ Mary attempt to contest the state’s ver- Jane Stout. After sentenc- events, 1984, position ing sion of and his in the fall of Clyde own the state tried throughout plea colloquy in- Wesley jury spring before a of 1985.

611 found, implied, or sister circuits have charged aggravated also Wesley was inconsistent, theo and the use of irreconcilable capital specifications, murder with trial, argued agаinst Wes- to secure convictions more the state ries during sup- the shooter. To prosecutions defendant in for the ley, not than one presented argument, the state port process this the due clause. same crime violates Eastman, Wesley’s cell- testimony See, Groose, from 205 F.3d 1045 e.g., Smith v. mate, Wesley had made (8th statements Cir.2000); Calderon, about 120 Thompson v. about the concerning details (9th Cir.1997) (en banc) to Eastman vacated F.3d Wesley the stand and de- murder. took 538, 118 grounds, on other 523 U.S. S.Ct. shooter, jury was the but nied that he (1998); Drake v. 140 L.Ed.2d 728 aggravated convicted him of (11th Cir.1985) (en Kemp, 762 F.2d 1449 sentencing phase of At the Mrs. Stout. banc) (Clark, J., specially concurring); cf. trial, jury then recom- the same Wesley’s (5th Scott, v. 69 F.3d 1255 Cir. Nichols life, years of 20 mended a sentence 1995) de (involving situation where both penalty. than the death rather it fendants had shot at the victim and was hit actually unclear whose bullet had argues prosecu victim; the court found that the killed the theories con conflicting two tor’s use of prosecution two theories advanced of the shooter to con cerning identity defen were not inconsistent because both a due Wesley him and constitutes vict both under the dants could have been convicted process violation. issue of first parties). law of On this Process clause Due The Constitution’s court, join our impression we now right to a every defendant guarantees finding circuits in the use sister Department v. fair trial. See Lassiter inconsistent, irreconcilable theories to con Servs., 18, 24-5, 101 S.Ct. 452 U.S. Soc. for the same crime is a vict two defendants (1981); v. Turner 68 L.Ed.2d process violation. due 466, 471-72, Louisiana, (1965). Supreme 13 L.Ed.2d Groose, Eighth Circuit Smith emphasized that “because Court has also prosecutor a case which considered very in a prosecutor peculiar different, conflicting state- used two law, definite sense the servant tri- by a co-defendant at successive ments guilt aim of which is that shall twofold at the first petitioner to convict the als ..., it is as escape or innocence suffer at a second and a second individual trial improper from duty much his to refrain Smith, That 205 F.3d at 1049. trial. See produce wrongful a methods calculated men group young a of four case involved every legitimate it to use conviction as burglarize looking for homes who were Berger one.” v. bring method to about In the course of their evening. one States, 78, 88, 55 S.Ct. 295 U.S. United search, burglars they group saw another (1935), 629, overruled on 79 L.Ed. 1314 they They a home. realized breaking into States, v. grounds, other Stirone United help them men and decided to knew these 4 L.Ed.2d 252 80 S.Ct. U.S. The residents were into the house. break (1960). burglary. the murdered in the course of the issue at trial was whether primary The principle the Drawing on the four place before or after murders took “overriding concern [is] Constitution’s in the of- young began participating men justice finding guilt,” United the the four men first told 97, 112, fense. One of the Agurs, States committed (1976), group that the other police of our 49 L.Ed.2d 342 several victim, tors had fired shots at the and both participation the murders without the later, group days felony of four. Two he told the could have been convicted under police Therefore, that he had seen one of the four men theory. prosecu- stabbing the with a group from his victims factually incon- arguments tor’s were not pocketknife; story. he later recanted this sistent, both defendants could because then statements prosecutor The used both prosecutor even if the have been convicted in against to obtain convictions men each argument in had used identical both at groups. of the two See id. 1047-49. Groose, 205 F.3d at 1051. cases. See it, Examining the record before Finally, the Ninth Circuit considered use of in- Eighth “[t]he Circuit held Thompson. similar situation in In that herently factually contradictory theories prosecutor argued at one trial principles process.” of due Id. violates that, jailhouse based on informant testimo- at court found that in order to 1052. The ny, rape one defendant had committed a violation, in- process amount to a due an trial, prose- and murder. At a second consistency prosecutor’s theories jailhouse cutor used different informants prosecutor’s “must exist at the core of the argue that the second defendant had the against case defendants the same disposition motive and to commit process crime.” Id. This constitutes a due plurality crimes. A of the en Ninth banc it un- violation because renders convictions Circuit,7 specifically excluding situations reliable, duty to given that its “[the s]tate’s light, evidence comes to found where new pursue citizens does not allow it to prosecutor that a cannot use inconsistent many possible convictions as without re- theories of the same crime in order to gard to fairness and the search for ‍​‌​​‌​‌‌​​‌​​‌​​‌​‌​‌​​‌‌​‌​​​​​​​‌‌‌​​​‌‌‌‌‌‌​​‍truth.” multiple secure convictions. See id. at Id. at 1051. Judge The court echoed Clark’s finding process a due violation under in concurrence an Eleventh Circuit case circumstances, Eighth these in Circuit which, although granted it habeas relief distinguish Smith v. was careful to Groose grounds, alternate also involved inconsis- from in Fifth facts its case those tent theories: Scott, opinion Circuit’s Nichols v. prosecutor’s theories of the same (5th Cir.1995), F.3d 1255 where the court negate crime in the two different trials process question did not reach the due in a They totally one another. are inconsis- prosecutor argued case which the in two flip flopping tent. This of theories of separate cases that different defendants inherently the offense was unfair. had each shot the one bullet that Un- killed peculiar der the facts of this case the victim. See id. 1268. The distinction perpetra- prosecutor the Nichols case was that both actions violate majority opinion prosecutor pursues 7. The rested on an ineffec- cess is violated when Thomp- tive assistance of counsel claim. See wholly sepa- inconsistent theories of a case at son, However, despite 120 F.3d at 1051-56. that, arguing rate trials” but in order to find majority judges join the fact that a of did not prejudice, the court decide must which of the portion opinion finding a due omitted); true)(quotation two theories is Id. violation, process concurring several of the (Kozinski, J., dissenting, joined by at 1066-73 dissenting judges they indicated that Nelson, J.)("In mutually the case of inconsis- process would a due find violation for the use verdict, tent which I am not sure is the case wholly sep- of inconsistent theories to convict here, required I believe that the state is to See, e.g., arate defendants. id. at 1063-64 necessary steps modify take the to set aside or J., Thomas, (Tashima, concurring, joined by 1071.) at at least one of the verdicts.” Id. J.)(agreeing premise pro- the that "due argues The state also guise to the of his own. fairness essential fundamental import charge ... The state “it no justice was of very concept of in this man- conquer against Stumpf which of capital cannot divide criminal trials actions reduce ner. Such the two killed the witness [defendants] and rob them of gamesmanship specification to mere capital since the [Mrs. Stout]” for the truth. supposed search their was killed because she was Mrs. Stout crime, not that a witness to the (quoting at 1059 120 F.3d Thompson, the shooter. Fi- the defendant had been (Clark, J., Drake, concur- 762 F.2d at inconsistent, nally, asserts that the state ring)). not used in theories were irreconcilable clearly used incon- In this the state cases, prosecution the these two because sistent, Stumpfs theories at irreconcilable testimony at rely did not on Eastman’s Wesley’s pro- trial At each hearings and Wesley’s arguments trial. None these the argued ceeding, prosecutor the persuasive. is pull the the one defendant had been in the fatal shots resulting trigger, First, clearly process has a due trial, the Wesley’s At Mary Jane Stout. though testimony Eastman’s claim even testimony on Eastman’s prosecutor relied time of his trial. was not available the argued scenario gun-switching and on the It true that this is not a case where Wesley’s secure conviction. by Stumpf, to selectively presented evidence prosecutor asserted: prosecutor theory support case Stout, had killed Mr. Believing he in that case. arguing he was the murder gun aside and left [Stumpf] pitched the However, challenge to the process the due hallway immediate area back on the of inconsistent theories is based use At doym steps basement. fairness. Because notion of fundamental [Wesley,] gun own point whose theories render convictions inconsistent colored jammed, that chrome picked unreliable, they constitute violation help- sat up Raven and as Mrs. Stout any defendant process rights the due bed, four times in lessly on her shot her Groose, they whose trial are used. to the crime. order to leave no witnesses at the was in fact the defendant petitioner irreconcilably incon- These statements are second, trial, inconsistent the- and the first very made same sistent with those years until four ory light not come to did Stumpfs plea hearing, when prosecutor at conviction, trial. at the second after his he told the trial court: Groose, Neverthe- 205 F.3d at 1048. See Stout, killed Mr. Believing that the had less, due found Eighth Circuit same chrome turned the [then] Logical- rights had been violated. process pistol upon automatic colored Raven process rights] ly, due [defendants’ “both Mary as she sat on bed Jane Stout ac- prosecutor’s prejudiced were times. Three times and shot her four Drake, 762 F.2d or neither’s were.” tions head and neck and the left side of the J., (Clark, concurring). Further- at 1479 writs; in order obviously one time of the state more, disingenuous it is identify anyone not to leave available there is no violation argue that him. had no prosecutor rights because testimony at the that, knowledge of Eastman’s Eastman’s The state claims because The state learned Stumpfs plea. at the time of time of testimony was not available testimony soon Eastman’s really is as- Stumpfs guilty plea, Stumpf yet con- sentencing Stumpfs plea claim the serting Wesley’s process due Wesley. just argument that the convictions of This short tinued to maintain astounding, given seeking the fact that in Stumpf Wesley, each of which both murder, Wesley aggravated by arguing that a different to convict was obtained shooter, prosecution proof and the offered no of the individual was the were sound below, Indeed, specific intent other than the as discussed element reliable.8 testimony theory Wesley that actual shooter. maintained that Eastman’s was the state during hearing on That the state relied on Eastman’s testi- was unreliable mony pre- from the fact that it Stumpfs motion to vacate his is evident and/or testimony jury, and from day, his sentence. To this there has been sented his it prevented Wesley’s of corrective action the fact that counsel suggestion no Stumpfs from evidence of presenting state. guilty plea. presented Had the state argument, The second with which state’s theory of the crime consistent with the agreed, the district court is that the identi- theory Stumpfs evidentiary it asserted at critical ty of the shooter was not the issue hearing, keep it had no need to would have in either trial and that therefore the use jury. Wesley’s that information from theories did not violate different ultimately process rights. By pleading guilty accepted due The district court murder, argument goes, argument core issue at capital the state’s state’s evidentiary Stumpf hearing admitted concerted action with was not the However, Mary identity Wesley causing the death of Jane of the shooter. conclusion, purposes avoiding reaching Stout for the detec- the court started prosecution faulty tion. All that was left for the with what we believe to be a as- ie., prove, theory, sumption, then to under this was that that “the state was not re- quired prove petitioner Mrs. Stout was killed so that the defen- was the court, escape dant could detection for other actual shooter.” The district in con- argument ignores cluding specification crimes. But this to which that, aggravated Stumpf pleaded guilty, fact as the murder stat- Ohio Rev.Code 2929.04(A)(8), § specific require ute existed intent was a did not necessary Stumpf proven “principal element of the crime. See Ohio to be the 2903.01(B); offender,” overlooked, § supra, again, Rev.Code see also once the fact pp. aggravated 15-16. that the Because never confess- statute itself Stout, specific kill requires specific ed to intent to Mrs. intent. See discussion su- prosecution proving pra pp. required bore the burden of 15-16. The state was not beyond a prove petitioner reasonable doubt that that the was the actual shooter, charge. required prove spe- it was but cific intent.

Finally, argues the state that irreconcil- proceeding able theories were not used because East- Even from the district however, testimony completely assumption, man’s unrelia- court’s false can- we agree ble. State’s counsel even asserted at oral not with the court’s ultimate conclu- that, argument rely the state did not on sion. district court found al- testimony prosecute though Eastman’s in order to required prove state was fact, Wesley's argument counsel wanted to inform that his own was irrelevant. The jury prosecutor previously Wesley’s trial court did not allow counsel to argued Wesley, and not was the Stumpfs proceedings discuss in front of the prosecutor argued shooter. The jury. shots, firing had never admitted to

615 shooter, regard- explicit “the state court determination the actual Stumpf was argue credibility ing that the state did Eastman’s which this remains fact and the actual shooter give Although [the] court must deference. petitioner was the petitioner find that trial court did presumption there is a that a state court’s court went The district actual shooter.” correct, findings this presump- factual are trial court cited recognize that the on to applies only tion to basic facts and to those reason, very a very finding as “a and implicitly through facts established the tri- received petitioner substantial reason” ability to the wit- unique judge al court’s court penalty. The district the death credibility nesses’ and demeanor. See found, however, not that habeas relief was McQueen, 99 F.3d at 1310. No court at warranted, Supreme Court because any considering Stumpf s claims actu- level ag- independent reweighing of Ohio’s testimony.9 ally observed Eastman’s The circumstances gravating mitigating explicitly first court to examine the tran- on any misplaced reliance cured scripts testimony, two-judge of that Apparent- the actual shooter. having been panel, any trial failed to make factual find- reweighing process, ly engaging such ings, denying Stumpfs instead motion concluded that Supreme the Ohio Court summarily. Supreme The Court of Ohio testimony was sufficient Eastman’s much it that the recognized as when found aggravating mitigat- tip the balance of “apparently” trial court had determined factors. ing testimony change that Eastman’s did not reasoning, agree cannot with this We balancing mitigating aggrava- reweigh- that a we do not believe because Supreme The Court of Ohio ting factors. imposi- support the factors used to ing of transcripts, examined the presumably also penalty curеs the due tion of the death “min- concluding testimony was of at issue. The Ohio Su- process violation credibility.” presumed Neither the imal Court, true, it found that “the preme court, finding by factual the trial nor the testimony during Clyde Wes- of cellmate Supreme explicit more one made credibility, espe- minimal ley’s trial is of type complete of Ohio is due the Court guilty plea and cially light appellant’s state, by the be- contemplated deference contrary the substantial evidence any courts had bet- cause neither of these sentencing during appellant’s adduced judge Eastman’s credi- opportunity ter hearing.” v. 32 Ohio St.3d State bility than we do.. 106, But, putting aside at 512 N.E.2d 598. Finally, presses argument the state an question the moment the of whether testimony was not credible that Eastman’s testimony need be credible for Eastman’s type of it relied on “the same because process violation to be established due gun switching gun jug- implausible presentation of prosecution’s the state This, course, it, told.”10 gling there is no and evident reliance Indeed, Wesley, WL only actually State v. two fact-finders ob- See (1986). App. Ohio LEXIS 8651 testimony. jury at Eastman’s served obviously Wesley’s credited Eastman trial Wesley's trial 10. Eastman testified enough Wesley guilty. judge, The trial find Wesley had shot told him that pre-trial proceedings, made at least one Stout, dropped Stumpf panicked and Mr. credibility when he found that determination Wesley picked up the Raven. then .25 caliber government agent within Eastman was not a a few times. and shot Mrs. Stout Raven Arizona, meaning of Miranda moaned, Wesley her Mrs. Stout shot When (1966). L.Ed.2d 694 again sure she was dead. to make 616 process The fact for A due claim is a mixed point. pertinent

is beside the claim not whether fact and process question s due is of law and is therefore gun-switching story plausi- subject Eastman’s to de novo review. See Williams (6th ble,11 684, prosecution but whether the relied Coyle, 260 F.3d 706-07 Cir. 2001). Wesley’s story Herе, on that to secure conviction. proper standard of re prosecution The found Eastman’s testimo- prob view is whether there is a reasonable ny enough “implau- to present credible ability prosecutor’s of incon use theory gun switching” Wesley’s sistent, sible irreconcilable theories rendered jury and obtain his conviction on that theo- See, e.g., the conviction unreliable. id. at ry. 706-07; 83, Brady v. Maryland, 373 U.S. 1194, (1963); 215 83 S.Ct. L.Ed.2d holding that a constitutional violation 668, Washington, Strickland v. recognize occurred in this we that at 674(1984). 2052, 104 S.Ct. 80 L.Ed.2d suggested circuit has that a due least one probability” probability A “reasonable is a conflicting for the use of process violation to undermine the outcome and is sufficient may theories be obviated when the second than preponderance less of the evidence. of two inconsistent theories results from 2052; See Strickland at discovery of new See evidence. (6th Jackson, Lyons v. 299 F.3d (“when Thompson, 120 F.3d at 1058 no .2002). Cir significant light new evidence comes to cannot, prosecutor in order to convict two standard, against Measured this trials, separate defendants at offer incon- process state’s due violation mandates that regarding sistent theories and facts Stumpf plea both s and his sentence be set crime”). quarrel same have no We First, proba- aside. there is a reasonable proposition, this to the extent it is that, bility prosecution pur- had the not acknowledge meant a state’s need to conflicting concerning sued theories who investigate pres- continue to crimes and to shooter, Stumpf was the actual either ent all available evidence court. How- pleaded guilty not have would or the three- ever, case, although Eastman’s tes- this judge panel would not have found a factual timony light until did not come to specific for basis intent element Stumpf had convicted and sentenced been Second, aggrаvated perhaps murder. death, many opportunities the state had likely, probabil- more there is a reasonable conflicting to correct its use of theories. that, ity prosecution pursued had the Stumpf, upon learning the state’s reli- theories, Stumpf inconsistent would not theory Wesley ance on the was actual- have been sentenced to death. shooter, ly timely filed motion to above, guilty plea length vacate his his sentence. As discussed at it was and/or judges hearing necessary The two this motion ex- three-judge panel to find pressed that Stumpf specifically some concern over whether there intended the death Mary evidence that not in fact Jane Stout order for it to shooter, accept aggravated the state did not take that but murder. See 2903.01(D) (“[n]o § opportunity person to advocate that all the avail- Ohio Rev.Code presented aggravated able evidence shall convicted of sentenc- be ing panel. specifically unless he is found to have in- argue story many could One is more recounted months Eastman testi- before likely plausible to be because it is so similar fied. crime, Stumpf's account of the which he another”). theory reliance on prosecution’s death of cause the tended However, fact that panel evi- crime. virtually no offered prosecution grant Stumpfs con- motion to withdraw other than its did not intent regarding dence Had does not dictate the conclu- guilty plea Stout. his Stumpf shot Mrs. that tention find theory they been sion that did not Eastman’s testi- alternate prosecution’s the First, in mony persuasive. denying there is a the three-judge panel, by the heard stated, summarily, panel have the “The that it would motion probability reasonable under advisement something less than took the matter guilty of Court Stumpf found same, having considered the does murder. aggravated the Motion to Former overrule Withdraw Moreover, than a reason- there is more Motion to Set Plea and the Alternative three-judge panel that the probability able Imposed.” Because Aside the Sentence to death Stumpf not have sentenced would ruling, gave the court no basis its inconsis- employed not prosecution had of relief could have been made on denial In theories. ex- and irreconcilable tent im- any grounds; of it would be number finding that the reasoning for plaining its Hence, reasoning. to divine its possible case out- factors aggravating rejection Stumpfs motion panel’s (and there- mitigating factors weighed the that, had negate does not the conclusion penal- the death Stumpf that deserved fore theory alternate been be- prosecution’s was pronouncement the court’s first ty), sentencing proceeding, at a panel fore the a reasonable beyond it “f[oun]d probability a reasonable there is principal that the Defendant was doubt have him to panel would not sentenced indictment,” one of the offender count Second, only of the three death. two ie., In charge. aggravated still alive judges original panel on the were from turn, panel finding prevented motion. Stumpf brought his when princi- not the concluding was motion should Stumpfs contention that his offender, “a have been which would pal by judges three was re- have been heard v. mitigating factor.” State powerful by Supreme Court: jected the Ohio Green, 352, 363, 738 N.E.2d 90 St.3d Ohio provides that expressly 2945.06 R.C. “[vjery few (2000)(noting may majority of them judges or “[t]he approved death sentences have been aris- of fact and law questions decide all principal not the against persons who were ” Unanimity the trial.... ing upon offender”). fact, hearing on during panel finds only mandated when guilty his Stumpfs motion to withdraw guilty guilty. or not Whether defendant members, original panel plea, one of entitled to withdraw appellant was Bettis, Judge stated: sentencing hear- to a new guilty plea or satisfied that we had not been [I]f law, de- questions properly ing were man, was, fact, trigger majority panel. by a termined may very ... offender principal 95, 105, 512 upon this Court’s 32 Ohio St.3d well have had an effect State (1987). pen- the death determination whether N.E.2d saying I’m it alty should follow. then, 2945.06, § Rev.Code Under Ohio would, possible. but it’s required only judge’s opinion one However, under deny Stumpfs motion. Bettis made this Judge It is true that unanimity was re- provision, the same hearing in which the during comment penalty. questions guilt transcript quired as it both a panel had before Stumpfs panel on judge the third of the Because testimony and evidence Eastman’s BOGGS, Judge, dissenting. the- Chief prosecution’s alternate died before testimony came to ory and Eastman’s The court has reversed the district trial court’s denial of light, the corpus denial of a writ of habeas court’s prove nothing motion can whether grounds: Stumpfs guilty plea two judge, at the factual basis or third involuntary unknowing, and that per- mitigation hearings, would have been process rights his due his own trial and testimony, and the suaded Eastman’s sentencing were violated the state’s it, should state’s reliance on against per- later use of evidence another aggra- not have been found either disagree I of these conclu- son. with both murder, vated or should not have received sions, respectfully and therefore dissent penalty. the death granting from the of the writ of habeas corpus. out, Finally, petitioner points reweighing that

Ohio courts have held I aggravating mitigating circumstances higher court is not a cure for errors begin I with the second of the court’s sentencing process, where the result I grounds, as believe that is the more two process, correct weighing of the had the profoundly majority cites mistaken. present, factors been is unknown. See three cases from other circuits to buttress Davis, 361, 372, v. 38 Ohio St.3d 528 State theory prosecution its that Ohio’s of Wes- (1988) (“We 925, cannot accept N.E.2d 936 1985, in ley, place April which took some par a cure in this independent review as Stumpf pleaded guilty seven months after ticular action cannot if because we know death, and was sentenced to somehow vio- weighing process by the result process rights. lates due None three-judge panel have differ would been germane of the three are to this case. impermissible aggravating ent had the cir Calderon, Thompson In a celebrated present.”). cumstance not been case, penalty California death the court pros- vacated a death sentence because the CONCLUSION

IV. presented mutually incompati- ecutor two rape-murder during On the basis of the two claims addressed ble theories for the defendants, opinion, contemporaneous trials of two voluntary, knowing, intelligent Thompson was not Leitch. Thompson v. Cal- (9th (en deron, Cir.1997) process rights and that his due were vio- 120 F.3d 1045 banc) prosecution’s (plurality), lated use of inconsis- vacated other tent, 538, 1489, grounds, theories to irreconcilable convict both 118 S.Ct. 140 (1998). accomplice, During pre-trial him and his the L.Ed.2d 728 we REVERSE men, proceedings district court’s decision and REMAND and in Leitch’s both trial, prosecutor’s theory this case to the district court with instruc- was that victim, corpus girlfriend, tions to issue the writ of habeas in Leitch killed the his be- favor, petitioner’s get together unless the state cause he wanted to back ex-wife; retry days elects to him within 90 him in Thompson assisted trial, entry Thompson’s date of of the conditional Be- Id. at 1055. In writ. crime. however, granting Stumpf prosecutor argued cause we are relief on involuntary plea process Thompson raped both his and due the victim and then claims, remaining up present- we need not reach his killed her to cover his act. He jail arguments. ed different house infоrmants at each

619 contradictory theory. actually each his assertion that he did not pull trial to bolster trigger, held that especially light Id. at 1056. The Ninth Circuit of contradic- evidence, prosecu- tory arguments this shift violated forensic such as the fact the truth and that he that a duty weapon tor’s to discover .25-caliber killed Mrs. Stout, trying to secure convic- improperly Stumpfs gun. the same caliber as Thompson, sake. tions for their own prosecutor Nor did the in Thompson 1058-59; see, e.g., Berger F.3d at v. United trials; collect new evidence between States, U.S. simply manipulated the facts he had. ‍​‌​​‌​‌‌​​‌​​‌​​‌​‌​‌​​‌‌​‌​​​​​​​‌‌‌​​​‌‌‌‌‌‌​​‍(1935) (stating govern- L.Ed. 1314 contrast, Wesley’s place trial took seven in a criminal ment’s fundamental interest Stumpf pleaded guilty, months after dur- prosecution is “not that it shall win ing which time informant Eastman told done”). justice but that shall be It also prosecutors Wesley confessed that he first, Thompson, was tried found who However, murdered Wesley Mrs. Stout. fact prejudiced due having Eastman, denied confessed to “[o]nly Thompson’s prose- trial did the suggested the forensic evidence that East- change theory argu- cutor and the airtight. man’s statement was not A cur- presented pre- ments those [from sory comparison of the facts to those in hearing], directly trial offer facts that Thompson therefore reveals that the Cali- underlying premise conflicted with the of fornia case has little application to our charges brought.” Thompson, the 120 case.1

F.3d at 1059. Kemp, In Drake v. an Eleventh Circuit

Distinguishing Thompson from the case majority the remanded for a new difficult, before us is not however. First trial proof because the burden of was im- all, prosecutor the in Thompson pur- properly shifted to the defendant and the mutually incompatible sued the two theo- prosecutor rights violated the defendant’s ries of the at contemporaneous murder during closing arguments in the sen- joint pre-trial proceedings, trials and tencing phase. Kemр, Drake v. 762 F.2d deliberately chose witnesses who would (11th Cir.1985) (en banc). single 1449 A conflicting story tell the that he needed to concurring judge argued that Drake’s Knowingly put- convict each defendant. rights Fourteenth Amendment had been ting prosecutorial on false evidence is mis- prosecutor, violated. The in trials that conduct that violates the Due Process year apart, argued were a in one instance Illinois, 264, Napue Clause. 360 U.S. that a co-defendant must have committed (1959). 1173, and, 79 3 L.Ed.2d 1217 S.Ct. after having alone se- Nothing conviction, in this case indicates that argued per- cured a that same prosecutors deliberately presented strong enough false son was not to commit the crime, Stumpf pleaded guilty evidence: to aggra- and therefore Drake must have specification helped. concurring judge vated murder with the of kill- The concluded ing attempted aggravated inescapable a witness and that it prose- “seems murder with a Henry firearm. The State had cutor obtained Drake’s conviction every through testimony reason to believe his over-all admis- the use he did not believe; responsibility. bringing logi- sion of It was under no this ease under however, obligation, at if ... accept face value cal not actual factual framework of 538, 566, noting Thompson, 1. It is worth that constitutional claim Calderon v. 118 (1998) (reinstat- ultimately Thompson prevent made in did not S.Ct. 140 L.Ed.2d 728 relief). July ing denying the defendant’s execution on habeas mandate (Clark, be, Drake, might Stumpfs at it constitutional Napue.” 762 F.2d retroactively violated. concurring). rights were J. Drake therefore specially Stumpfs further case either: does not prose- this court mentions the Although prose- that turns on the concurring opinion Eastman’s knowledge cution’s subse- knowledge that he was cutor’s inferred concerning Wesley’s al- quent statement presenting comport false evidence does not being Mrs. leged confessiоn to Stout’s in this case. with the facts killer, does court’s decision not rest undisputed It is majority, knowledge. cited The last case (8th Groose, know of prosecution 205 F.3d did not East- Smith v. Cir. time of 2000), Stumpfs That case man’s statement at the equally unconvincing. robbers, sentencing. Nothing conviction and indi- groups involved two the first which, prosecution cherry-picked cates that preparing burglarize when Stumpfs house, already in facts to confirm discovered the second order evidentiary hearing. ma- stealing the homeowner’s process joined jority prosecution possessions. groups argue The two does not forces, point during any obligation the crime was under confess error some Stumpfs post-conviction proceedings were Id. at or homeowners murdered. bring appeals, An nor even to Eastman’s group, 1047. The leader first accounts of statement to attention. There is thony Lytle, provided varying alternately claiming simply no misconduct in this happened, prosecutorial what retroactively case group, implicate of the second Michael that could head process rights. killed the and that due Cunningham, couple cohorts, (Lytle’s) one Bow of his James prosecutors not “hold that Groose does man, was the murderer. Id. at 1047-48. present must the same precisely evidence Smith, The convicted Jon Keith an state in trials for different defen- theories Lytle’s felony- group, other member of for only dants. Rather [it] hold[s] pur murder based on his association with factually contradictory of inherently use Bowman, ported gang member who fellow process.” theories of due principles violates actual argued to be the killer. Four majority remarkably Id. at 1052. The ex- later, successfully state then months conclude pands holding that evi- prosecuted Cunningham for mur the same dence in case that a a second contradicts ders, Lytle’s story based on othеr can guilty plea implicate in an earlier case already couple Cunningham killed the process Stumpf pled rights. guilty due Lytle when and his friends entered a in colloquy which he indicated that house. Id. at 1048. waiving that he was certain understood A Eighth ultimately granted rights. Circuit constitutional defendant’s corpus that he Smith a writ of habeas because the an “admission committed him.” charged against North prosecution Cunningham state’s violated crime 25, 32, process rights. Again, Alford, Carolina v. 400 U.S. Smith’s due Ibid. (1970). 160, Nothing the crux of the case was deliberate S.Ct. 27 L.Ed.2d 162 short, presentation prosecutor “In that the suggests of false evidence: record relying claimed to in was on ac- what the State be true remiss rejected Cunningham’s knowledgment guilt. it See Dickerson v. Smith’s case 450, States, Only Id. at and vice versa.” 1050. United (2000) J., (Scalia, showing prosecutorial of this kind of mis- L.Ed.2d 405 claim, if a support (observing as defendant dissenting) conduct could dubious wrong-doing, voluntarily acknowledges Ambiguous evidence is not false evi- ... dence; is not offended “regrettable” “Constitution tactics are not neces- qualm of con- criminal’s commendable sarily unconstitutional. Id. at 703-04. stupidity”).2 or fortunate fit of science The fact of the matter is that no one but Therefore, any grounds I not see do Wesley know who shot Mrs. allegation prose- which to base an Stout. put The State is entitled to on the cution the same set of facts in two skewed available evidence to convince the finder of different trials order achieve two mutu- guilt. long fact of As it does so in a ally incompatible guilty verdicts. This manner, good faith manipulating without similarity case has little or no with the evidence, selecting or out critical pro- due Drake, Thompson, facts of and Groose. cess is not violated. Far more instructive is the Ninth Cir The Shaw court also speculated that if v. Ter quite cuit’s recent decision Shaw violation, there awere constitutional (9th Cir.2003). hune, 353 F.3d 697 The Watts, defendаnt, the second rather than imposing court sentence en held Shaw, would be the one who argue could person hancements on two defendants point. Id. at n. 5. I Similarly, during attempted al use of a firearm an could understand a court accepting Wes- robbery and assault on a restaurant man ley’s prosecution claim that the could not not a ager process, violation due honestly present evidence in case that although testimony clearly indicated government contradicted what the had re- only perpetrator gun one had held a (a upon previously type lied of “prosecuto- manager’s head. Id. at 701-02. estoppel”), rial or even that it could not defendant, Shaw, When first learned present evidence that contradicted a posi- the conviction and sentence of his accom However, it taking tion was elsewhere. later, plice years three he filed a habeas none of those theories can retroactively petition, citing Ap the California Court of fundamentally render unfair the fair pro- peals upholding decision Watts’s sentence ceedings received. “Indeed, which stated: the evidence ad trial, presumably duced at which was avail Having that I logi- indicated believe it is trial, prosecutor prior able to the tends cally impossible for s claim to suc- support jury the conclusion that the in circumstances, ceed under these I touch trial People [Shaw’s] was mistaken.” v. only lightly on the court’s resolution of the Watts, 1250, 1259-61, Cal.App.4th 76 91 question of “whether there is a reasonable (1999) Shaw, Cal.Rptr.2d (quoted 1 in 353 probability prosecutor’s use of 701) (bracket Shaw). at F.3d added inconsistent, irreconcilable theories ren- However, (Maj. dered the conviction unreliable.” distinguished the Shaw court 40). Op. Nothing its case from that occurred Thompson, pointing to the prosecutor manipulate Stumpfs рroceeding fact that the did not rendered the convic- most, evidence—the same crucial distinction that tion At unreliable. existence of Shaw, present is in our argued case. 353 F.3d at Eastman’s statement could be assuming, arguendo, majority plea voluntary, 2. Even that the was not a conclusion Stumpf pled guilty is correct that based on infra, validity plea I address but the of the is advice, legal substandard it does not follow entirely an matter. flawed different However accepting acknowledgment guilt be, guilty plea might a defendant's it cannot misconduct, prosecutorial pre- amounts contradictory prosecutorial constitute a theo- requisite finding Stumpf’s for a violation of ry guilt, required in Groose. rights. majority argues constitutional 622 without sentencing Stumpf: life unreliable, choices in conviction

have rendered pa- twenty years; life without analysis simply parole be for would then our but evidence, which It made and death. any newly thirty years; discovered for role back- a more difficult against act in a proceeds for him to strategic sense sound un- the court does ground which encourage judges that would way O’Dell, F.2d States dertake. United options. of the first two choose one (“Motions (6th Cir.1986) for anew 637, 640 guilty, he was entitled Stumpf pled Once newly discovered evidence on trial based a three- evidentiary hearing before an see, disfavored.”); e.g., Herrera v. Col- are the evidence to confirm that judge panel 390, 400, lins, Rev. plea. Ohio supported the case (1993) rule that (stating the L.Ed.2d strategic one §Ann. 2945.06. Under Code remedy for proper not the habeas relief is facts, have panel might view newly judicial error based a claim of jury than a to render likely less been evidence, some constitu- absent discovered it would have verdict because death It proceedings). trial flaw in the tional theory legal behind grasped if Eastman’s indeed be bizarre would that, guilty of Mrs. Stout’s while position not undermine could statement shooter, force, introducing murder, actually the but he was not by its own conviction do so. death proceeding could not deserve the it into another and therefore did decision, prosecu- hoping court’s Following arguably our penalty. dilemma benefit, faced with the same namely tor the dismissal another only to advised not future would be well charges to the remaining specifications potentially con- upon reliance such eschew for the eligible him that made him against proceedings, tradictory later evidence indict- In Ohio penalty. “[i]f death any prose- other prevent presumably but specifications, or more ment contains one might He or she doing cutor from so. or no contest to the and a deceitfully to disclaim a forced even be may court dismiss charge accepted, to hear such jury was entitled belief ac- specifications impose sentence sum, the result whatever evidence. justice.” cordingly, in the interests claim, Wesley bringing the might were 11(C)(3). Therefore, the P. Ohio R.Crim. of retroac- agree principle I cannot incorrect that received majority is in this unconstitutionality propounded tive guilty: pleading at all from no benefit case. avoid improved his chances to significantly although in the end his penalty, death II the desired result. strategy yield did not attacking claim respect With exegesis of the court’s extensive Despite opinion appears guilty plea, the court’s itself, plea hearing at the the “confusion” notice of the to take no benefit at the sentenc- place that took the events pleading guilty. from gained in fact neither a sur- hearing apparently were ing trial, jury opting to waived a He first begin- in the disappointment, nor a prise three-judge charges before contest counsel. to the defendant or his ning, pled guilty return panel. He then fact, attorney stated the defense charges some prosecution dropping agree- rendition of the prosecution’s It axiomatic that specifications. is 16). accurate, (Maj. Op. at No ment decreases acceptance responsibility course of the objection made to the will be penalty death chances any ef- hearing, nor was there sentencing sentencing court had three The imposed. guilty plea at that fort to withdraw America, UNITED only It was the Eastman STATES

point. Plaintiff-Appellee, light came to at- statement tempted guilty plea. to withdraw his Simi- larly, hearing” at the “factual basis before three-judge panel the did not defense DEMJANJUK, John Defendant- minute,

attempt say: “Wait we aren’t Appellant. argument thought able to make an that we No. 02-3529. stage.” we would be able to make at this argument. It made the three-judge The Appeals, United States Court of panel They heard and considered it. sim- Sixth Circuit. ply persuaded. were not Argued: Dec. 2003. Finally, it is true that Stumpf denied actually that he shot Mrs. Stout. Never- April Decided and Filed: 2004. theless, by pleading guilty, he knew that Rehearing Denied June only argue he would be able to that Wes- ley part in fact committed the murder as mitigation phase proceedings. of the majority asserts that there is evidence (Maj.

of a “serious misunderstanding,” Op. 23), judge between the lawyers. But no one was denying

Stumpf was involved the murder of Mrs. lawyers laying Stout. His were groundwork argue not Stumpf was triggerman and therefore did not de- penalty. the death

serve would certainly argu- be anxious to make that ment, hardly that, it surprising

knowing precise point proceed- relevant,

ings that it would be he would want ‍​‌​​‌​‌‌​​‌​​‌​​‌​‌​‌​​‌‌​‌​​​​​​​‌‌‌​​​‌‌‌‌‌‌​​‍to double-check that he would have

an opportunity argue mitigating majority simply factor. The misinterprets Stumpfs caution as confusion. circumstances, appears

Under these it that Stumpf legal me understood his strat- egy, executed it according plan, got

exactly opportunities bargained that he for, making grant of a writ habeas Therefore,

corpus unwarranted. I re- spectfully dissent.

Case Details

Case Name: John David Stumpf v. Betty Mitchell, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 28, 2004

Citation: 367 F.3d 594

Docket Number: 01-3613

Court Abbreviation: 6th Cir.