*1 5 of the Section authority under gress’ Plaintiffs-Appel- Tennessee, for Memphis, Kimel See Amendment. Fourteenth lants. — -, U.S. Regents, Bd. Florida of briefed), and (argued E. Moore Michael 649-50, -, General, Criminal Attorney of Office (2000). L.Ed.2d Tennessee, for Nashville, Division, Justice present carefully considered Having of Regents of Board Defendant-Appellee Kimel, conclude we of light case.in of Tennessee. State their maintain cannot faculty members briefed), and (argued M. Galanter Seth University, a state against suit ADEA Justice, Rights Civil of Department U.S. our VACATE We therefore employer. Section, Washington, Division, Appellate district AFFIRM judgment prior D.C., Intervenor. for plaintiffs’ dismissing order court’s briefed), (argued Sutton (cid:127) Jeffrey S. action. ADEA Attorney Decker, of Office W. Jack Columbus, Ohio, for Amici Curiae General, of Ohio.
State Burch, (briefed), Port- Lipman H. Sheri Tennessee, for Johnson, Memphis,
er & Uni- State Memphis
Defendant-Appellee
versity. (briefed), Law Office A. Hedin Douglas Jr., BYRD, Petitioner- John W. Hedin, Minneapolis, Minne- A. Douglas Appellant, Employ- National sota, Amicus Curiae Association. Lawyers ees Warden, COLLINS, Terry L. (briefed), American W. Osborne Thomas Respondent-Appellee. Washing- Persons, Retired
Association American D.C., Curiae ton, for Amicus 96-3209. No. Persons. of Retired Association Appeals, States United COLE, MOORE, JONES, Before: Circuit. Sixth Judges. Circuit 11, 1998 March Argued: 6, 2000 April and Filed: Decided
OPINION Judge. COLE, Circuit case, Coger opinion prior In our 296, 307 F.3d Regents, 154
v. Board of in- Congress
Cir.1998), concluded we Eleventh states’ abrogate the
tended by its en- immunity from suit
Amendment amendments the 1974
actment Act in Employment
Age Discrimination et seq., § 621
(“ADEA”), 29 U.S.C. pursuant so authority do it had Amend- Fourteenth 5 of Section Court, plurality in a Supreme
ment. although determined now has
opinion, statement a clear contain does ADEA states’ abrogate intent Congress’ Con- exceeded abrogation
immunity, the *8 his sched- 1994, only days before
March first his execution, filed uled pursu- corpus habeas a writ of for petition District The U.S. § 2254. to 28 U.S.C. ant of Ohio District Southern for the AFFIRM We now petition. denied denial. Background I.
A. Facts Monte April evening of theOn as the working alone Tewksbury was B. convenience King Kwik at the clerk night Hamilton Road Pippin store and married was Monte County, Ohio. three children. the father was- rob- two p.m., 11:00 approximately At masks; one entered store bers a five-inch knife with carried bowie them Porter, J. Vickers Richard L. Randall all of $133.97 removed The robbers blade. briefed), Defender’s Public (argued addition, they register. the cash from Commission, Defender Office, Public Ohio watch, wedding ring, Pulsar Monte’s took Columbus, (briefed), Brown M. Steven cash, credit contained which his wallet Petitioner-Appellant. Ohio, for slip. registration cards, and automobile Attor- Assistant (argued), A. Cole with his hands Stuart Then, stood as Monte Columbus, Ohio, N. Claude General, robbers, Peti- ney to the and his back raised General, Attorney Crowe, Office to the hilt knife his bowie plunged tioner Ohio, Harris Cincinnati, W. Stuart side, puncture in a resulting Monte’s General, Attorney (briefed), Office massive liver caused wound Ohio, Columbus, Section, Crimes Capital ripped bleeding. The two robbers internal Respondent-Appellee. the wall and telephone out inside Robert p.m., 11:10 approximately At fled. INRICH, JONES, SUHRHE Before: Pip- driving northbound Shephard BATCHELDER, Judges. Circuit run from two men observed He pin Road. van red large and enter King Kwik INRICH, J., delivered SUHRHE Pippin Berth- corner at the parked court, in which opinion of the off. van then drove brook. BATCHELDER, J., joined. man- injured, Monte severely Although 542-52), JONES, (pp. J. R. NATHANIEL get store and aged to exit dissenting opinion. separate delivered wife, He called telephone. outside her he been Tewksbury, told Sharon *9 OPINION call hurt, she should and and robbed SUHRHEINRICH, Judge. Circuit At an ambulance. and police the customer, prospective time, Conley, a Cecil of Common the Court August In Conley found King Kwik. at the Ohio, arrived sentenced County, in Hamilton Pleas and building the standing outside Jr., for Monte to death Petitioner, Byrd, W. John tele- next to the wall against leaning Tewks- Monte murder aggravated side. bleeding from his was Monte phone. repeatedly state courts The Ohio bury. store, went into the helped Monte Conley In relief. claims for rejected telephone back to the which was still off looked outside and observed people two hook, spoke briefly to Sharon. getting large a into van parked red in the Conley also advised Sharon call to an am- U-Totem lot. The van had a defective tail bulance, and he police. himself called the light.1 die,” Conley going Monte told “I’m Shortly after 1:00 a.m. on April
that he had been robbed and cut with a two police officers from Forest Park in knife. Monte desсribed the robbers as County Hamilton were seated in a marked two white men wearing stocking masks. police cruiser eating their lunch. The offi- Sharon arrived at the scene and held her cers were in a lot, parking K-Mart which dying husband her arms as repeated he was located containing area princi- his statements. Police and help medical pally commercial establishments, some came, then and Monte transported was to which had recently been burglarized. The a hospital. route, While en Monte made officers had been advised approximately several statements to the effect that he did forty-five minutes earlier their supervi- why stabbed, understand he had been sor about the incident at the King Kwik. because he had cooperative been and had As the watched, officers a red cargo van given robbers everything they request- drove at a slow rate of speed. The van ed. Monte also amade statement pulled lot, into the K-Mart and its head- effect of “Thank God I didn’t see it com- lights were turned off. A few minutes ing,” which supports later, the conclusion that the van’s on, headlights came back his back towas his assailants when he was and the van left However, the lot. the van stabbed. Almost immediately after he was returned minutes, within five again at low room, taken emergency speed, Monte’s from the direction opposite to that stopped. heart Despite heroic efforts to in which it gone moments before. life, save a.m., his Monte April died 1:15 police officers became suspicious, 18, 1983, from exsanguination resulting van, and, followed the upon inquiry of the from his stab wound. police dispatcher, learned identity night, That a short time King after the its owner. The van pulled into a parking robbery, Kwik Jim Henneberry, a clerk at lot adjacent to a closed Dairy- United store, nearby U-Totem was standing at Farmers store. The pulled officers behind register. the cash customer, A Dennis the van after summoning back-up assis- Nitz, playing was game video near the tance. of the passengers, One later identi- front door when two robbers entered the Brewer, fied as John Eastle exited the van store wearing masks. Henneberry real- approached the police car. Brewer ized what was occurring and fled ato room identified himself as “David Urey” and in the rear the store. One rob- police told the he had no identification. bers after Henneberry chased with a knife. Brewer provided inconsistent about stories The robber tried unsuccessfully why force he inwas the area. One of offi- open door to Meanwhile, the room. cers asked Brewer to remain in the cruiser the other pushed robber Nitz when back while he approached the van. The van’s leave; he attempted however, driver, Nitz was Woodall, Danny William and Peti- dodge able to him get out. The rob- tioner provided the officer with identifica- bers were unable open tion, regis- cash which was called in to the dispatcher. ter, so they took it Robin them. Although there were no current warrants Hannon, apartment resident of an locat- Woodall, either Petitioner or the dis- ed U-Totem, near the by patcher disturbed reported that prior both had felo- the noise from a loud muffler. ny Hannon convictions. The officer flash- shined a subsequent the course of police inves- she saw *10 night outside the U-Totem on the tigation, van, Hannon identified the which question. police had custody, remained in as the one Armstead Monte’s murder. robbery and on the coins saw and van the inside light weeks three that, approximately a and testified stocking masks were There floor. Petitioner, was with robbery, he the the dashboard. after tray on in a located knife when P.M. Woodall, and others Brewer, was name in Sharon’s card credit A Shell aired featur- program television Magazine passenger the under the floor on lying family. The Tewksbury of the footage to be appeared ing what also was There seat. by Monte’s singing .of the included footage, which side interior on the blood fresh Monte day the before regis- taped was daughter, cash from A drawer seat. driver’s Armstead, According the van. . murdered. of was in the back was ter the telecast during Petitioner stated Trial Indictment and, B. or then either die deserved Monte to Armstead time, admitted Petitioner, at another evidence, this the basis of On Monte Monte because killed had In he arrested. were Brewer, Woodall also way.” Armstead in the “gotten May had on returned indictment from sought advice that Petitioner aggravated with testified charged were three the prosecution aggravated regarding whether of him counts and three murder if a knife blade on stains charged with blood detect also was could robbery. Petitioner i.e., that cleaned.3 it had been specifications; penalty death two who com- offender” “principal he was twenty-six of a total called State The Monte of murder aggravated mitted Petitioner, stage. guilt at the witnesses attempt- committing Tewksbury while witness, hand, only one cálled the other on robbery of aggravated to commit ing of some who identified officer police aggravated Kwik, well as King Closing arguments clothing. Woodall’s himself.2 Tewksbury of Monte robbery 1983, after August on presented were all as to entered were guilty of not Pleas evening, the Late that trial. days of ten Petitioner’s May 1983. charges on have Armstead’s the court jury asked motions, pre-trial of a series filed counsel objection, read back. Over testimony of suppression seeking the including one Arm- entirety of reporter read court The Hamil- van. from the taken evidence open jury testimony stead’s denied Pleas of Common County Court ton thereafter, jury re- Shortly court. selec- July Í983. motion on Jury guilty Petitioner finding verdict its turned August began on trial Petitioner’s tion counts and two murder aggravated days. five 1,1983, and lasted found jury robbery.4 The also aggravated trial to introduced The main penalty death of the two guilty of- principal Petitioner was prove specifications. actually i.e., who fender, the individual began the trial sentencing phase Monte, came from murdered stabbed called one trial, August 1983. the time Armstead, who at Ronald Ray. Mrs. mother, Mary Lou witness, his at the Cincinnati serving a sentence to Peti- gave birth she Ray testified (Cincinnati Insti- Correctional Workhouse old and years sixteen she was when tioner recalled tute). he testified Armstead ended father marriage to her arriv- Brewer’s, Petitioner’s, and Woodall’s that Peti- She testified shortly thereafter. that, practically at the Workhouse al shortly after jail went arrival, tioner’s father they had their the date from not seen and she son was born their King Kwik committing bragged about in the the count severed 4.The Ohio, offender” means “principal 2. aggravat- Penix, charging Petitioner 32 Ohio indictment State killer.” "the actual 1987). (Ohio robbery U-Totem. 513 N.E.2d ed St.3d greater testimony is set forth Armstead's II-A, detail in Part infra. *11 her in eighteen years. ex-husband She The trial court issued a opinion written also discussed her subsequent on August failed mar- explaining that it had riages men, beyond two both found of whom abused reasonable doubt that the instance, aggravating Petitioner. For Ray Mrs. testi- circumstances outweighed the mitigating factors in fied that she married Ed Petitioner’s Ryan, case. and the court The. noted that jury marriage found years. lasted three two She stated statutory aggravating circumstances; i.e., that Ryan “was mean to Johnny [Petition- the murder occurred in er], connection Johnny older, When got he blacked with two different aggravated robberies. eyes.... his couldn’t do [Petitioner] noth- The court concluded “that defendant’s kill- ing right please him.” Tr. at 1762. ing of the victim was completely unneces- Ray Mrs. also described learning disabil- sary and cold blooded since the victim had ity from which Petitioner suffered submitted peacefully and turned over his throughout schooling. his According personal possessions and money. This Mrs. Ray, Petitioner was extremely frus- killing ... evidenced the particularly mali- trated the ridiculing he received from cious outlook of this defendant.” JA at other Finally, children. Mrs. Ray recount- 1130. The court further stated: “The ed age how at eleven Petitioner assisted proved facts of the aggravating circum- another young child who had fallen into a stances pattern reveal a willful, cold- frozen creek.5 On cross-examination, Mrs. disregard blooded for human life and val- Ray admitted that she had filed several ues beyond well what this judge has seen petitions juvenile with the alleging court in other cases.” JA at 1132. her inability to maintain control hеr son. The court then reviewed the mitigating She also conceded that she had never re- factors in Petitioner’s case. The court ported any abuse of Petitioner to the au- specifically rejected youth Petitioner’s as a thorities. consideration, noting that Petitioner was permitted As law, under Ohio “the oldest year old this Judge has ever then made an unsworn statement seen.”6 JA at 1131. The court also con- jury. expressed He remorse for hap- what sidered the nature and circumstances of pened to Monte and family, offense, his noted that listed under Ohio possi- law as he only years old, was ble a plea mitigating However, made factors. the court for his life. The State noted the presented unnecessary no wit- and brutal nature of nesses at the murder sentencing Later commented as to the evi- hearing. dence of day, same the incident at jury found that U-Totem store as well. aggravating outweighed circumstances mitigating factors and impo- recommended The only mitigation evidence sition of the death penalty. August On court worthy believed of consideration was 1988, the trial adopted the jury’s the evidence of Petitioner’s child- unhappy recommendation and sentenced Petitioner hood, lack of paternal affection, love and
to death principal as the offender degree some of abuse. The court felony murder charge and to consecutive that there nothing stated introduced jail terms of seven twenty-five years on at trial which showed the two aggravated robbery counts. experiences childhood resulted emo- opinion 5. setting In an forth its reasons for 6. Similarly, a concurring opinion in the Ohio imposing the penalty, death Supreme the trial court Court remarked that "the evidence being only concluded: "This socially re- in this Byrd's record demonstrates that chro- deeming act of the defendant's life nological age offered or accurately does not nineteen otherwise shown the evidence it does maturity.” reflect Byrd, State 32 Ohio rise to mitigating the level of a (Ohio JA at 1987) factor.” St.3d 512 N.E.2d (Brown, J., concurring). *12 498 up was penalty death the which cases manifest itself could scarring
tional
Supreme
U.S.
626. The
at
Id.
on
held.”
the
behavior
his
explain
in life
later
for certiorari.
petition
a
concluded:
denied
court
Court
The
qúestion.
night in
763,
1037, 108 S.Ct.
Ohio,
miti-
suggested
v.
Byrd
to this
credence
give
“To
(1988).
sensitivi-
to the
780
affront
L.Ed.2d
98
be
would
gation
law-abiding, hard-
of
thousands
the
ties'of
pending,
still
appeal was
his direct
While
a
who
state
of this
citizens
working
trial.
a
for
new
a motion
filed
Petitioner
to an
matured
and have
childhood
similar
December
filed on
was
Although it
JA
existence.”
exemplary
of
adulthood
almost
upon
ruled
for
was not
motion
the
Petition-
disregarded
also
court
The
1134.
1989,
19,
the
September
On
years.
six
phase
penalty
during the
statement
er’s
Hamil-
The
the motion.
denied
trial court
on
using drugs
drinking and
concerning
subsequently
Appeals
of
County Court
ton
being “self-serv-
as
night
question
the
Byrd, No.
v.
State
denial.
this
affirmed
respect
With
under oath.”
“not
ing” and
(Ohio
1
Ct.App.
C-890659,
17781
1991 WL
disability,
learning
alleged
Petitioner’s
to
13,1991).
Dist., Feb.
should
that “[i]t
held
expressly
court
the
low
person
a
to even
fairly obvious
of.
appeals,
be
direct
Following Petitioner’s
knife to
bury a bowie
you
that if
mentality
a new trial
for
.was
his motion
while
and
someone, the victim
of
the chest
hilt in
its
post-conviction
a
filed
Petitioner
pending,
result, thereof,
that the
and
as a
may die
County
the Hamilton
with
petition
relief
full punishment
the
suffer
will
perpetrator
de-
The court
Pleas.
Common
of
Court
Based,on
1134.
law.” JA at
provided
consolidate
Petitioner
request
a
nied
mitigating evi-
that this
its determination
motion
his
petition
post-conviction
his
the
counteract
insufficient
was
dence
post-
the
denied
then
trial and
a new
circumstances, the court held
aggravating
hearing on
without
petition
conviction
appropriate sentence
the
was
death
1991,
13,
February
2,
On
October
that Petitioner
case,
it directed
Appeals
of
County Court
Hamilton
the
27,1984.
January
on
executed
Byrd,
v.
State
and remanded.
reversed
(Ohio Ct.
17783
C-890699,
WL
1991
No.
Appeals
C.
1991).
court of
13,
Dist.,
1
Feb.
App.
ap
sentencing,
After
pleas
common
the
appeals stated
him
represent
new counsel
pointed
it had
did not recite
court’s decisiоn
brief, Petitioner
appellate
In his
appeal.
record before
totality of the
reviewed
of er
assignments
separate
twenty
raised
Despite
at *2.
petition.
Id.
denying the
1986,
5,
Court
February
Ohio
On
ror.
ap-
court
from
obtaining a remand
District
Appellate
First
for the
Appeals
judgment of
appealed
peals, Petitioner
(hereinafter
referred
(Hamilton County)
Supreme
court
appellate
the.Ohio
Appeals),
County Court
the Hamilton
199Í,
20,
the state su-
May
On
Court.
conviction
both
affirmed
motion
the State’s
granted
preme court
C-830676,
No.
Byrd,
v.
State
sentence.
15,
May
as of
appeal, effective
dismiss
Dist., Feb.
1
(Ohio Ct.App.
1986 WL
705,
St.3d
60 Ohio
Byrd,
v.
1991. State
1987,
12,
the Ohio
1986).
August
On
1991).
(Ohio
N.E.2d
essentially the'
rejected
Court
Supreme
pleas
common
April
On
St.3d
32 Ohio
Byrd,
State
same claims.
re-
post-conviction
denied
again
court
(Ohio
state
1987). The
512 N.E.2d
The trial
hearing.
without
petition
lief
this case
concluded
court
supreme
Appeals
“The Court
explained:
victim
compliant
completely
“involve[s]
Court
that this
erroneously concluded
has
him.
to stab
We
reason
Byrd no
gave
who
when
record
entire
did not review
inappro
penalty
the death
find that
This
case....
ruling on this
previously
nature of
considering
senseless
priate
entire rec-
review
previously
did
Court
to other
similarity
the murder
now,
ord,
Then,
pursuant
on March
only eight days
decision,
execution,
again
has
reviewed the
before his scheduled
Appeals
petition
filed a
for a writ of
corpus
No. B-
Byrd,
entire record.” State
habeas-
*13
pursuant
(Hamilton
§
to 28
831662,
1512,
U.S.C.
2254. “That for-
1986 WL
at.*l
filing
midable
1991).
included 29 claims for relief
C.P.,
1,
County
Apr.
Hamilton
The
and filled almost
pages.”
300
Collins v.
County
Appeals
affirmed
Court
1185, 1186,
Byrd,
1288,
26,
judgment
February
on
1992. State v.
(1994) (Scalia, J.,
stead’s (indicating). stabbed him tioner] were And what Q [by prosecution]: court, the district 1547-52. In the Tr. they questions the other some of sub- County Office Hamilton Prosecutor’s you about? talked to you and asked that Armstead asserting mitted affidavits Well, doing they was [by Armstead]: A with details the prosecutors had provided know, their about you bragging, lot only to were known the murder that about (indicating) and case, Byrd period. provided had not been and that police *14 Byrd’s in Brewer, them I talked to to the media. me telling was [Petitioner] cell.... He gentle- that he had stabbed about how Challenges B. Petitioner’s Kwik, King you there at the man out Testimony Armstead’s know, to be sure that he wanted chal- posits Petitioner several appeal, On any blood didn’t, to find wasn’t able they First, testimony. to Armstead’s lenges knife, He want- know. you stains on fol- that either of Petitioner contends know, to, much information you ed (1) Armstead and the true: That lowing is my standpoint, get could from that he time prior to the had prosecution agreed any find blood they be how would able that Armstead Armstead that testified they it. knife if cleaned on the in an favorable consideration receive would he was hearing parole revocation
upcoming testimony his exchange in facing Did question. you me ask this Q: Let falsely that no Armstead testified that you that tell Byrd specifically Defendant made7; if even had been such deal Monte Tewks- one that stabbed he’s the Arm- had been reached between no deal bury? nev- Armstead prosecution, and the stead Yes, A: he did. he stated falsely when testified ertheless that? say did he Q: How charges facing that he additional he, See, worrying, Second, on Okay. kept he A: trial. at the time of Petitioner’s know, worrying about kept you he Armstead’s testimo- alleges that Petitioner knife, got some so like he had that was false confession ny about talking with I cell stamps, so was of his respects. support in all material in and and then came affidavits him first Brewer position, presented Petitioner started, they just just started incar- then individuals who were we from several said, “Yeah, he questions, me and Petitioner asking with cerated Armstead know, him, him, you Spring I in the I killed Workhouse killed Cincinnati affida- my motherfu_king that was in Petitioner these he 1983. asserts because f_k in- him,” and another you know. That’s that Armstead way, vits show Jordan, in a mate, were involved Virgil the whole time they whole attitude took care, against there, you testify falsely Petitioner they don’t scheme they were (indi- their own causes in order to further don’t care [Petitioner] know. He County Prosecutor’s Office.8 the Hamilton cating). Randolph’s 8. affidavit claimed asked Marvin was never 7. We note Armstead help originator plan of a was the Jordan any received consid- directly whether he had Armstead, himself, mate, Randolph, in- and another exchange for his from the State eration concocting story Sargent, by Paul Presumably, testimony. refer- Petitioner is confessed, using details Petitioner prosecutor’s question on ring re-direct gleaned news ac- robbery from and murder examination, Armstead to "tell which asked affidavit Robert Jones’s stated counts. testify- Judge why you are Jury and here discussing and Jordan he Armstead overheard ing?” at Tr. Jones, Jr., both plan. claimed Elwood theories, opposition of these County Under the Hamilton right Office, that the State violated his contends Prosecutor’s which had maintained presented when it testimo- process to due disposition Armstead showed a key it knew was ny from a witness which commit violent crimes. Approximately it nor false and which neither corrected’ later, 17, 1982, three months on December disclosed to Petitioner’s counsel. See Bra- Armstead was arrested and charged with . dy Maryland, 373 U.S. S.Ct. robbery. The Ohio Adult Parole Authori- (1963). Thus, L.Ed.2d 215 (APA) ty arrest, and, was notified of his argues capital that we should reversе his by January Armstead waived a conviction and vacate his death sentence. probable hearing cause on the issue of parole whether he was a given violator argument
Petitioner’s third is an alter- recent arrest and was notified that he native one. He contends that the state would parole receive full revocation him discovery courts denied and an eviden- hearing at a later date. On Therefore, February tiary hearing on these claims. us, parole Armstead was declared a minimum, vio- Petitioner asks at a to vacate lator, placed and the APA a detainer on judgment the district court’s and remand *15 him which in would result Petitioner’s case with instructions that arrest as Pe- he jail soon as was released from discovery titioner be allowed to conduct on this 15, 1983, most recent granted evidentiary charge. an On March hearing. and be fully, pleaded guilty evaluate Armstead to a order to Petitioner’s claims reduced charge attempted we must review Armstead’s criminal of assault and petty status trial, at the time of Petitioner’s as well as theft and received a days sentence of 180 testimony that at in provided Armstead pre- Workhouse. His Cincinnati trial. sumptive September release date was 1983. at C. Armstead’s Status serving day While his 180 sentence at the Time of Trial Workhouse, Armstead met Petitioner
(1) Possible Parole Revocation and witnessed Petitioner’s confession to 4, 1980, stabbing. Monte’s Armstead testified to began On December Armstead this effect at sentence, Petitioner’s trial. Petitioner serving year prison a 3-15 which 12, 1983, August was convicted on and imposed by County the Hamilton August sentenced to death on following Court of Pleas his con- Common 29, 1983, August victions for felonious assault and traffick- On Armstead was re- sent, in ing drugs. September pur- On leased from the Workhouse and warrant, paroled, notwithstanding Armstead was suant to a parole violator However, sign had overheard he Jordan and Armstead Jordan refused to an affidavit putting story together, their and that Arm- to that effect. stead later admitted to him that had Armstead State, hand, The on the other submitted during lied Petitioner’s trial and made a had response. affidavits in These affidavits denied prosecutor deal with the would Armstead any type the existence of of deal between prison be released from if he testified. El- County Armstead and Hamilton Prosecu- produced allegedly wood Jones also a letter Office, affirmatively and tor's also asserted by written Armstead recants Armstead's provided prosecutors that Armstead testimony. handwriting A examiner in state with details about the murder that were court concluded that the letter had not been only police known that had not by written Armstead and that there were Moreover, provided been to the media. things suggested about the letter which provided Randolph State letters from Finally, Elwood Jones had written it himself. court, Sargent, written before Armstead, contact had been in the district an submitted they made in which volunteered post-conviction affidavit from one of his coun- against they testify and in which sel. The letter claimed that Jordan had told agreed her that he and Armstead stated that Petitioner had admitted to various to fabricate story concerning jail a Petitioner’s at had killed confession. inmates he Monte. (3) on; had used previously that he further Facility for Columbus Correctional from escaped he after for alias “Ronald Scott” was scheduled Armstead proceedings. period during prior hearing on Octo- the Workhouse review parole an informal Chicago; and fled to incarceration 20,1983. ber some “trou- got he into Chicago, while released to Armstead was day On the (i.e. he had robbery), but ble” arrested APA, Breyer, the Daniel custody of the every- up “good work record there trial, ato spoke in Petitioner’s prosecutor went to court [he] so when thing, him the APA and advised supervisor Tr. at probation.” some Judge gave [him] following cooperation. of Armstead’s out that defense point also 1552-56. We writing. Breyer confirmed day, testimony from Armstead counsel elicited testi- that Armstead Breyer’s letter stated by the Ohio permitted to that in addition inducement, by the State. fied without Evidence Rule Ohio Rules of Evidence. that, it although explаined The letter admission of authorizes the generally the Hamil- parole, would recommend years ten of a conviction within nonetheless Prosecutor’s Office County ton introduc- evidence’s to the date such prior a decision to opposed to would not be sought punishable if the crime tion is parole. on Prior to Armstead continue year. Ohio in excess of one imprisonment alleg- Armstead parole hearing, date of his 609(A)-(B). At R. Evid. from other and assaults edly faced threats that he had Armstead admitted Fa- Columbus inmates at the Correctional Moreover, al- from 1972. “escape charge” father John including Petitioner’s cility, restricted counsel was though defense result, trans- Armstead was Byrd, Sr. As nature of pursuing the point one from County Jail Hamilton *16 ferred to the preceding the Armstead’s conviction within Then, approximately on 1983. October successfully ob- year period, ten counsel 20,1983, APA that determined October (i.e., a to rob- tained the reference answer parole. to would returned Armstead in his cross-examina- bery) point at a later at cooperation Petitioner’s Armstead’s tion. mitigating circumstance be- was cited as Armstead to to return hind the decision At of the cross-examina- the conclusion 26, 1983, Armstead parole. tion, colloquy On October occurred be- following moved to parole he was reinstated and and Armstead: Petitioner’s counsel tween approximate- Diego, After San California. any charges pending have Q: you Do Diego, in supervision of San ly year one now? his final on No- release Armstead received [prosecution]: Ob- MR. VOLLMAN 1,1984. vember over jection, Judge. We have been that. (2) Testimony Armstead’s THE Overruled. COURT: outset, we note the extensive At the No, I sir. A: don’t Arm- from impeachment evidence elicited at you charges pending have Q: Did counsel on by Petitioner’s defense stead you police the time talked conceded, Armstead cross-examination. prosecutor? and on following facts among things, other didn’t, in No, got my I time A: I sir. (1) That he had been cross-examination: I have no time March the 15 don’t and in Block A of the Cincinnati incarcerated nothing pending. else pending or (i.e., security “the maximum Workhouse examination, the Workhouse) Tr. 1569. re-direct approxi- at On since part” he was 1982; when prosecution Armstead that he also asked mately December stated: “I subject Armstead previous ten for release. within the had been convicted my time two more weeks before carrying got about years of a federal offense state prosecutor then up.” in Tr. 1570. year pris- than is at a sentence of more one trial, by asking why doing, Armstead he was a new and so made concluded several testifying. Amstead stated: findings of fact. On October and you again April is not what
Because what he did
the court denied
say
hip,
hip,
and he think it
would
request
evidentiary
Petitioner’s
for an
it,
buddies,
brags about
him and his
he
hearing
petition
post-
and denied his
for
they
it
bragged
and Woodall
about
conjunction
conviction relief.
In
day
they
from the
come
denial,
each
the court made a number of
they
day
left. And
Workhouse until
factual findings.
County
The Hamilton
nothing
care
...
he don’t
about
and he Court
Appeals ultimately
affirmed the
that man
for no rea-
[Monte]
killed
denials of both the motion for a new trial
son,
money,
they
’cause he had the
petition
and the
post-conviction
relief.
left,
could have
and I don’t have no more Petitioner
subsequently
petition
filed a
pending,
testify
and I come to
cases
for a writ of
corpus pursuant
habeas
wrong.
him
against
because he was
review,
§
28 U.S.C.
habeas
On
Tr. at 1570.
district court deferred to the state courts’
findings
factual
in rejecting Petitioner’s
appeal,
argues
On
Arm-
prosecution
stead
knew he
On appeal,
lied—and
claims.
Petitioner contends
yet failed
lying
respond according-
findings
these
were not entitled to
ly
Armstead
that he did
testified
correctness,
presumption
because
—when
any charges pending
not have
time
post-conviction
the state
proceedings did
trial.
points
out
not afford Petitioner
the opportunity to
facing
upcoming
that Armstead was
discovery
conduct
develop
the record.
parole
hearing
revocation
as a result of his
disagree.
study
We
After careful
guilty plea
charges
March 1983 to
record,
that,
appears
entire
it
prior to
attempted
assault and
petty theft.
Pe-
claims,
ruling on his
the state courts af-
view,
ques-
titioner’s
his defense counsel’s
significant opportunity
forded Petitioner a
simply
tion was not limited
criminal
discovery necessary
conduct
charges
might
facing
Armstead
have been
support
evidentiary
his demand for an
time,
necessarily encompassed
at the
but
Thus,
hearing.
assuming
even
*17
something
parole
hearing
like a
revocation
actually
information Petitioner now seeks
as well.
exists, we must defer to the state courts’
In
state post-conviction pro-
Petitioner’s
factual findings, because Petitioner had
ceedings,
pleas
rejected
the common
court
adequate
in
opportunity
the state
Brady
Petitioner’s
claims and denied his
develop
courts to
the record to the extent
motion for a
trial. The
new
court also set
necessary
evidentiary
to warrant an
hear-
findings
forth its factual
to
respect
ing,
Keeney
but he failed to do so. See
Brady
pre-
claims. The district court
1, 9,
Tamayo-Reyes,
S.Ct.
findings
sumed these
to
correct.
While
(1992).
1715,
were, purport- letter among things, other *18 fact not to deference. are entitled that he by implying Armstead edly written pleas the common On December to deal with the pursuant had testified hearing concerning Petition- court held prosecu- the and a letter from prosecutor victim-impact copies of request Armstead er’s for indicating APA that tor to the statements, alleged were which Petitioner any deal but part not as testified prosecu- concerning Armstead the claims copy order is the 9. A of this contained opinion. As dis- Appendix alleged perjury. the end of the tor’s subornation below, were in- Petitioner's documents cussed petition, his claims 10. In habeas trigger review of the an in camera sufficient to through sought all records that he available any respect of Peti- prosecutor's with files to motion; however, he relates the use of this claims, post- appears the and it that tioner's attempts regard to specifics only with his to a re- conducted such conviction never impact copy statement. obtain a of a victim however, found, that the view. The court any suppress evidence fa- prosecutor not did supported Brady with claim 11. Petitioner support vorable to to his other Petitioner. the same used documents (hereinaf- jury the impermissibly given to room records which has not been heard. ter referred to as “the December 2nd time, prosecutor At the hearing”). that only Court: I’m going to hear what’s 5th August asked the court to revoke before me. that, entirety order
order in its again, Vickers: Yes sir. Once if this future, if Petitioner wanted further “dis- just Court will allow me material, can a motion covery type he file Breyer’s address Mr. com- with this Court and this Court can consid- ments. Mr. Breyer asked this application er each on its own merits.” JA Court limit revoke or its During at 3992. Petitioner’s response, citing any order without case following colloquy place: took law or statutory authority for it to do so. try through
Court: Let’s to cut a lot of I’m not Court: to revoke the going I things that don’t think are re- entire order. I think revoca- you ally important. What do tion of the order would cause Specifically, want? what do too much contact Mr. between you want? your Vickers and his staff and Honor, Vickers: Your there’s no case office, particular [sic] and this statutory authority. or law regard discovery Spe- my question. Court: Just answer future, regards in the cifically you what do want? may necessary which copies Vickers: We would like post-conviction their relief. victim impact statement. going deny por- I’mSo purpose? Court: For what tion of it. I going am not allow the release of understanding Vickers: It’s our that the materials which the Probation impact victim went statement Department may may not jury. to the have, because, one, jury The victim impact Court: statement did didn’t have that material and togo jury. There was Court, neither I did the and find no requested PSI the defen- absolutely it has no rele- dant. part proba- That is regard post- vance with to the report, tion is it not? You have conviction relief. a complete record of what went added). (emphases JA at 3393-96 In re- there, jury. It’s not Vickers, sponse question to a the court it? revoking reiterated that it was not Vickers: No sir. August 5th order. you go I can assure it didn’t Court: requested post-con- The State then I jury. you can assure clarify allega- viction counsel copy Court didn’t even have a concerning alleged tions deal between it, if in fact there was one. Is prosecutor and Armstead. In re- you’re requesting? that all sponse, petition counsel stated *19 Honor, I may Vickers: Your if be was clear: Petitioner had attached the Au- heard? 30, 1983, gust prosecutor’s letter from the you’re requesting? all Court: Is this stating prosecu- APA office to the that the time, opposed continuing Vickers: At this we have another tor would not be to emergency pending parole.12 responded motion Armstead’s- State that, that, testimony, despite 12. The letter stated the absence tion and because of his Arm- promise, . . testimony at Peti- Armstead's safety danger. was now in stead’s prosecu- greatly trial had the tioner's assisted the court any steps to have Petitioner took explain writ- that counsel request with a request. the enforce the was what the consideration ing Armstead. gave to allegedly prosecutor in the participating to above- prior Just colloquy followed: This 29, 1988, on November hearing, described Honor, glad I to Your would Vickers: requested from the Hamilton Petitioner Breyer, we to Mr. but respond pertaining records County Office Sheriffs 22 situa sort of Catch have County Hamilton visitation at the only supply can tion here. We Arm- of inmates and the Workhouse Jail we have. the documents Jordan, stead, Randolph, Marvin Virgil grants an evi- Court Until the Jones, Sargent. E. and Thomas Robert dentiary hearing we cannot 23, 1988, pursuant to Ohio December On discovery the kind conduct 149.43, § filed with Petitioner Rev.Code conduct in or that we need to County Appeals Hamilton fully Brey answer Mr. to der seeking action to enforce his mandamus question. [13] er’s Leis, No. request. records State public allegation. made an Court: You’ve (Ohio Dist., Ct.App. June C-880792 certainly some basis There’s 1989). Petitioner filed the Sometime after allegation, sir. for the action, appeals the court mandamus Sir, the context of the within Vickers: proceedings stayed post-conviction the docu- petition, I believe trial court. there was ments show Armstead contact between for the January counsel On office. Also prosecutor’s wrote Petitioner’s Department Sheriffs cause of action does him that he could and informed counsel alone. There are other stand to records con- have access visitation action to indicate. causes of the Hamilton tacting Milt Casias at Coun- put that in Is it so difficult to Court: Petitioner’s counsel did ty Sheriffs Office. Mr. and send it to letter form April these records until not examine Breyer? time, permitted At that counsel was review, of, my respond, copies visita- given I will best and was Vickers: do yes, sir. records cards for each inmate whose tion for these rec- requested. he The search extent, if to what at 3999. It is unclear JA in late 1988when ords had been conducted through with the any, counsel followed request, first made his respond writing court’s directive provided Peti- Department of Corrections ap- than an prosecutor’s office. Other requested all of visitation tioner with investiga- request for the Sheriff’s parent However, not that it could locate. records records, eventually tory which particu- were found. In all of the records received, nothing find in the record to we lar, to locate was unable Department requested indicate that Petitioner ever attorney log book for the re- general prosecutorial mate- product view non-work Milt averred rials, or, quested period, but Casias request if such a but he did make that, knowledge, log opposition, that to the best prosecutorial met with here, although may not have preconceived covery; counsel appears had a 13. It that counsel that, depositions or serve § been able to Ohio Rev.Code 2953.21 conduct notion since interrogatories a further from petitioner discovery, order he without does not entitle court, certainly could have obtained precluded pursuing he from dis- was somehow documentary Counsel made a sim- August materials. covery under the 5th order that "we-need-an-evidentiary-hearing-to-do- response to his motion. ilar court had issued in is, however, discovery” earlier at the December important statement distinction There *20 sup- hearing in discovery 2nd and in his memorandum having between no entitlement port 27th motion. undertaking of the second October being precluded from dis- action, the destroyed.14 Appeals Petition- dismissed mandamus had not been book show, stating Petitioner “has failed to agreed and Casias requested, er’s counsel 26(B), pursuant relevancy R. the Civil conduct, for the rec- a further search destroyed the or lost records as to the 7, 1989, April On Casi- question. in ords Postconviction- Relief Petition.” JA at large a counsel that office informed as’s The court also overruled the 3283. motion fact, had, in de- records been number оf an evidentiary hearing, for and dissolved 8, The Sheriffs on March 1989. stroyed stay protective previously the orders with a list of de- counsel provided Office entered. items; any did not include this list stroyed attorney log the book. records or visitation nothing We find the record to indicate counsel office informed prosecutor’s The counsel utilized Petitioner’s otherwise for the they August would continue to look 5th or order Ohio Rev.Code § pursue discovery. 149.43 to further log book. that, claims on an Counsel undisclosed pros- apparently also asked Counsel date, employee he met of the Ohio with provide to the sheriffs ecutor to access Auditor of State to discuss a “Furtherance files, substantially request investigatory of Justice Account” and was informed that two Octo- to the first of Petitioner’s similar County the Hamilton Office Auditor’s 1988, 10, 1989, May motions. On ber oversight would have responsibility audit counsel prosecutor’s office informed for prosecutor’s disbursements from that, man- expedite in order to Petitioner’s such an account. There is no indication action, prosecutor’s office damus had that, receiving after such infor- whatsoever make to [Petitioner] “decided to available mation, attempted counsel either obtain request- records [Petitioner had] all the County from Hamilton these records prosecutor provid- The ed.”15 JA 564. action. pursue public records with a contact at the Hamilton ed counsel coun- County’s Office from whom Sheriffs Findings C. State Court requested information. sel could obtain the reviewing In the motion for new' addition, through discovery process, trial, pleas court the common considered January counsel obtained Petition- attached the affidavits and other evidence er’s Court records. Juvenile post-conviction petition. The court motion, 7, 1989, finding: denied the April after Sometime (1) Ap- El- County moved the Hamilton The affidavits and statements of Jones, of Marvin evidentiary hearing hold an re- affidavits peals to wood Jones, Randolph, Robert and Thomas the lost visitation records. garding merely impeaching na- Sargent are Department moved to dismiss Sheriffs ture. opposed evidentiary hear- action and Jones, Randolph, other docu-
ing, providing affidavits and Elwood Marvin Jones, Sargent it are showing complied and Thomas ments Robert felons, credibility is all convicted whose request. mandamus On June Petitioner’s thereby The affidavits County Hamilton Court of diminished. kept only normally are for one spoke with coun- cards 14. When Casias Petitioner’s visitation 4, 1989, April informed counsel that Despite foregoing, sel on he year. Department regularly destroyed Sheriff’s the records that counsel, to obtain visitation cards was able years were than five old. more requested,.- inmate each case, sought were In Petitioner’s the records 1983; spring and summer of from April According to the State's request made this shortly on November discov- opposition to motion for Petitioner's Moreover, past five-year mark. court, request ery covered in the district noted, surprising it is visita- the State investigation into the entire file of the sheriff’s were found: visitation records tion records murder. Monte’s supposed are to be maintained on a three- cycle, year retention and individual inmate *21 sentence, pleas the common court Sargent contradicted er’s Randolph and are found, things, other that: prose- among by their own letters cutor. [16] (1) Marvin Randolph and Thomas Sar- (3) by gent prosecu- initiated contact with the signed Ron- purportedly The note Petitioner, Armstead, testify against office to attached to the affidavits tor’s ald Jones, by not called the State. by not written but were of Elwood was (2) Armstead.[17] Ronald has no credible submitted Arm- (4) suggesting that Ronald evidence before There is no credible lied, would result in the stead or that lied in that Ronald Armstead the Court a outcome at a probability of different testimony. his trial second trial. (5) given any not Armstead was Ronald (3) did not have Ronald Armstead his testi- by the State for consideration tri- charges pending at the time of this Byrd, mony against Jr.[18] John was the ination at trial. (6) The subject credibility of extensive Ronald Armstead cross-exam- ny. from the State al, [19] and received no return for bargain his testimo- deal discrepan- There are no fundamental judica- gave res JA at 4201-02. The Ronald testimony cies between the findings ta effect to these of fact when testimony trial Armstead at this and his raised identical claims in his at the trial of the co-defendants. It that all post-conviction petition. found (5) No evidence favorable to the defen- of fact could be resolved without an issues by suppressed dant State. evidentiary hearing granted summary 1874,1878,1896. judgment to the JA at State. addition, County denying Appeals in its order The Hamilton Court of petition Byrd, to vacate Petition- affirmed the lower court. Ohio v.
post-conviction
Sargent
Randolph
danger
requesting
and Marvin
was now in
and was
16. Thomas
prosecutor’s help.
correspondence
prosecutor’s
All
from
each contacted the
office via
prosecutor's
office to the APA was also
affirmatively
asserted
handwritten letters
subsequent
written
to Petitioner's conviction.
they frequently
talked with Petitioner and
advised, among
correspondence
other
This
they
his co-defendants and that
had informa
things,
tance,
provided
that Armstead had
assis-
regarding
“Recanting
tion
Monte’s murder.
appeared
Armstead's life
to be in dan-
with ex
affidavits and witnesses are viewed
assistance,
ger
prose-
because of this
and the
suspicion by
Spence
treme
the courts.”
continuing
oppose
would
cutor's office
Johnson,
(5th Cir.1996)
80 F.3d
Breyer
parole.
also
Armstead's
Prosecutor
Collins,
(quoting May v.
given
was not
deal in
averred that Armstead
a
1992)).
Cir.
exchange
testimony
for
and that Armstead
his
being
served his local time in full before
by
presented
report
State
a
a
hand-
parole
transferred to the State as
violator.
writing expert that concluded:
found
"I have
only
The inmate affidavits are the
submissions
believing
no basis for
that the 'Ronald Arm-
tending
support
Petitioner’s contention that
signature
implying
stead’
on the
[letter
exchange
Armstead made a deal in
for his
exchange
Armstead cut a deal in
testi-
testimony.
by
mony] was written
Ronald Armstead.
I
original
am confident examination of the
19.Although
pleas
the common
court did not
would result in
definite determination that
explicitly state that "Armstead did not
lie
it was not written
him.”
JA at 3165.
charges”
discussing
about his
claim,
when
definitively
concluding,
While not
so
the re-
import
findings.
this is the clear
of its
port
question
also indicated that the letter in
explicitly
The court
found that Armstead
may
have been written
Elwood Jones.
charges pending at
no criminal
the time of
his six month sen-
that he served
18. Other than the letter that
the common
to the
tence and was transferred
State as
pleas
forged,
court determined was
all corre-
parole
The court concluded that
violator.
spondence
prosecutor's
from
Armstead
entitled
because
Petitioner was not
to relief
underlying
premise
office was written after Petitioner’s conviction
factual
his claim is
"the
only
and stated
life
JA at 1878-79.
Armstead felt that his
false.”
*22
(Ohio
that,
in
issue of fact
if resolved
Petitioner’s
C-910340,
CL
ry before petition, from the hearing to determine to the state The district court deferred affidavits, and the supporting findings,20 record courts’ factual but not until af- grounds are substantive there it considered Petitioner’s several dis- whether ter it found particular, covery requests Id at *2. and ordered further dis- relief.” properly covery court refused to in that the lower two areas.21 evidentiary hearing on Petitioner’s hold an Among things, other Petitioner’s docu- (substantive lying) be- of action first cause (1) “All requests ment included: docu- any “the record is devoid cause prepared by ments ... received or any knowledge prosecution that County or Hamilton Prosecutor’s Office testimony was fallacious. that Armstead’s County Department the Hamilton Sheriffs Instead, Petitioner offered evidence authorizing, requestingf,] directing or iden- credibility of only challenge the served Armstead, Jordan, Virgil tifying Ronald Id a witness for the state.” Armstead as Jones, Leroy Robert Randolph, Marvin that, respect court held with Similarly, the Tunstall, questioned investi- be and/or deal, no of a there was question in gated connection with the murder оf required hearing. fact that issue Tewksbury, regardless of whether Monte (1) assuming the even court reasoned (2) trial”; at all such individuals testified authentic, it was inher- “forged letter” was containing by Shar- dochments statements contradictory it stated ently because concerning Tewksbury on the murder of a “only” because (3) Armstead testified Tewksbury; Monte all Prosecutor’s Of- deal, later stated that he testified and then County fice and Hamilton Auditor’s Office truth to he wanted the “only” because payments from a concerning documents (2) out; Account,” the letter written come alleged- “Furtherance of Justice Breyer any Office, did not recommend Prosecutor the Prosecutor’s ly maintained clearly stated that Armstead, action and particular Jordan, any or Virgil Ronald with- cooperation was attained designated by prosecutor Armstead’s person other (3) inducement; or Elwood promise out assistance the inves- having provided any not claim first- or affidavit did murder tigation Johnson’s of Monte’s (4) (4) deal; trial; knowledge Department, of a and all capital hand Sheriffs of a and Prose- Department, contained no other evidence Police record Cincinnati Thus, relating to Arm- evidentiary hearing was documents an cutor’s Office deal. arrest, and his failed stead’s December because Petitioner required, (5) APA, all Pro- subsequent prosecution; create an present sufficient evidence to Nonetheless, appar- the court presumed to that issue. The district court that the state 20. respect testimony findings with ently courts’ were correct that Armstead’s concluded any arrangement advance misleading the "absence such that the not false or prosecutor it; for le- between Armstead required prosecutor be to correct would any evidence that niency, and the absence of failing defense counsel for it faulted instead prosecution was aware that Armstead's concerning questions Armstead’s ask obvious testimony Byrd’s confession was false.” about supervised release status. C-l-94-167, Collins, Byrd No. 26, 1995). (S.D.Ohio Dec. It is unclear 11, 1994, hearing April and subse- After whether, "pending dismissing Petitioner’s briefing, denied with- quent the district court claim, charges” the district relied original discovery prejudice Petitioner’s out findings that Arm- courts' various state motion, filing of made before because it was charges pend- have stead did not ing criminal Respondent's of writ or Petition- return either himself, peijure whether it did not er’s traverse. findings respect factual relied on its own (1) whether, assuming addressing and Prosecutor’s Of- briefs Department, bation impact to Armstead’s the victim statement went to pertaining fice records (6) revocation; jury, all was harmless such submission pending parole error; Prosecutor’s Department and Of- whether an inference could Sheriffs to the use of Arm- relating fice records parole drawn from the records that *23 jailhouse informants. stead or Jordan as falsely concerning his Armstead testified incarceration, and, so, future if whether an deposition requests includ- prosecu- inference could be drawn that the (1) ed, Breyer among others: Prosecutors testimony. tor was aware of such false Vollman, “regarding investigation, and its on the ma- The court deferred decision files and internal including the review of requested terials in the balance of the by prosecutor’s maintained documents discovery provided motion. The State Armstead, as pertaining office to Ronald statement, copy of the and on November Armstead, well as interviews of Ronald 28, 1995, deposed Nancy Rankin Jordan, Virgil Randolph Marvin and Rob- Hitz. and Andrew by investigators” ert Jones from the Sher- Office, and Department iffs Prosecutor’s records, reviewing After these the dis- preparation and “interviews and Ronald opinion trict court addressed in its third Breyer, Armstead Daniel J. Carl Voll- parole issue. the facts relevant to the We man and all other Assistant Hamilton already these. supra have recounted See County Prosecuting Attorney’s that led to” pp. 501-02. The district court found (2) testimony; Nancy Armstead’s Rankin presumption ap- of correctness Hitz, regarding and Andrew the victim plied findings. to the state courts’ factual (3) statements; impact and Res- Anderson The court first noted that the common nick,22regarding prоsecu- the name of the juris- court a court of pleas competent prosecuted tor who Armstead relation to diction, par- were the State his December 1982 arrest. post-conviction proceedings, ties to the written, findings factual were made. See On the district court October 2254(d). § Citing 28 U.S.C. Sumner v. supplement ordered State to the rec- Mata, 66 S.Ct. ord with all records from the APA that (1981), Perini, L.Ed.2d 722 and Nichols v. were related to the revocation of Arm- Cir.1987), F.2d n. parole stead’s 1983 and the release of flatly rejected Petitioner’s contention parole Armstead either from or from the that, unless the state court held an eviden- which began upon sentence he to serve tiary hearing, “hearing” there had been no parole revocation. complied The State purposes determining whether the request by providing its entire Armstead, findings state courts’ factual are entitled to file on which of 147 consisted 2254(d). § deference under 28 U.S.C. comprising pages. indexed exhibits The district court court further concluded that none of the also ordered the State to 2254(d) § produce copy impact eight exceptions listed in were the victim state- party applicable.23 Using ment. Each was then to courts’ factu- submit state (2) paralegal factfinding procedure employed 22. Anderson Resnik was a em- adequate ployed by the State court was to afford a the Ohio not Public Defender’s Com- hearing; full and fair attempted mission who to find out the name (3) adequately facts material were not prosecutor. of Armstead’s developed hearing; at the State court jurisdiction the State court lacked of the 23. The district court must defer to the factual subject person matter or over the findings of the state courts unless one applicant (5) proceeding; in the State court following exceptions applies: applicant indigent was an and the (1)the court, dispute deprivation merits of the factual were State of his constitu- hearing; right, appoint not resolved in the State court tional failed to counsel to
5H
investigat-
authorities who
that the
enforcement
court held
the district
findings,
al
copied
incorporat-
ed his case to be
knowingly
per-
suborn
did
prosecutor
that,
County
Hamilton
because
ed into the files of
court also held
jury. The
prose-
binding, fur-
Prosecutor’s Office and that the
findings are
courts’
the state
copied
was not
cutor’s files be
and filed with the
discovery
these issues
ther
warranted,
investiga-
to an evi-
trial court. The files of the
it would not lead
prosecutor
have
independent
or other
tors
would
been
dentiary hearing
Byrd’s
claims of
invaluable
assess
fact-finding.'
Brady
perjured testimony and
viola-
grant
tions. The trial court refused to
Analysis of the State Courts’
E.
Byrd’s
hear
motions.
Findings
or even
Factual
*24
ap
trial or
presume a state
Thus,
“[W]e
Br. at 44-45.25
Petition-
Petitioner’s
to facts are
conclusions as
pellate court’s
excep-
the
argues,
er
he has established
petitioner
the
demonstrates
2254(d)(1), (2),
correct unless
§
tions listed in 28 U.S.C.
that the facts are
convincing
(6).
evidence
disagree.
We
eight
under one of the
condi
erroneous
cannot show that “the merits
Petitioner
in
28 U.S.C.
tions
enumerated
in
dispute
of the factual
were not resolved
2254(d)(1-8).” McQueen
Scroggy, 99
§
2254(d)(1).
§
hearing.”
court
In
the State
Cir.1996)
(6th
(citing Sum
F.3d
fact,
contrary
contention is
to Petition
Mata,
ner v.
came to
er’s assertion
the state courts
curiam)).
(1982)
(per
L.Ed.2d 480
wrong
on the merits.
conclusions
no evidence to es
provided
has
Petitioner
Jago,
Fowler v.
No sion, that, at the time of trial court asking motions filed trial, pending Armstead did not have files of the law investigative order fairly supported by rec- is proceed- minaüon not represent in the State court him ord. ing; 2254(d). full, fair, § 28 U.S.C. (6) applicant did not receive hearing adequate in the State court course, forgets conveniently 24. Of proceeding; or August order. to mention the 5th (7) denied due applicant was otherwise proceed- process law in the State court discov- argues that this further 25. Petitioner ing; permitted to show that ery have him would part record of or unless false; why prosecu- testimony was Armstead's proceeding in which deter- Armstead, State court rather than only tors chose have made, Jordan, of such factual issue testify against mination Pe- Randolph and also titioner; of the suffi- pertinent to a determination that Arm- prosecution knew that the support ciency parole such fac- pending of the evidence revocation hear- stead had a fact, determination, Armstead, provided produced as had cut ing; tual is and that below, hereinafter, testifying. prior court on a As discussed and the Federal deal appropri- fishing expedition was part of the record as Petitioner's consideration of such ately cut short. that such factual deter- a whole concludes specified findings file of fact and conclusions of charges. The court also criminal Thus, upon respect which it relied. law with to such the evidence dismissal. 2254(d)(1) Similarly, apply. § does show either that Petitioner has failed to (E) petition Unless the and the files and factfinding procedure employed “the records of the case show the petitioner adequate to afford court was not State relief, the court not entitled shall hearing” appli- a full and fair or that “the proceed prompt hearing to a on the fair, full, and ade- cant did not receive a issues, hearing, hold the and make and proceed- quate hearing the State findings written file of fact and conclu- (6). 2254(d)(2), §
ing.” simply upon judgment. law entering sions of provide quantum a sufficient failed investiga- cogent evidence to warrant an (Anderson § Rev.Code Ann. 2953.21 Ohio prosecutor’s product tion of the work 1987). files. preparation other trial that, law, It is true under Ohio statute in ef- post-conviction The Ohio evidentiary required courts are not to hold pursuing
fect at the time Petitioner was hearings in all post-conviction cases. See provid- post-conviction his state remedies Cuyahoga County Sherrills v. Court of ed: Pleas, Common Ohio St.3d *25 (A) Any person who has been convicted (Ohio 1995). 899, N.E.2d 900 Where a claiming of a criminal offense ... which, if petition alleges proved, facts infringement there was such a denial or relief, petitioner would entitle the but rights judgment of his as to render the negate the files and records of the case the void or voidable under the Consti- Ohio existence of facts sufficient to entitle tution or the Constitution of the United relief, petitioner may the trial so court States, may petition file a at time in summarily find petition; dismiss the sentence, imposed stating the court that however, doing, in so should grounds upon, for relief relied specify portions of the and rec files asking the court to vacate or set aside negate peti ords that the existence of the judgment grant or sentence or to alleged tioner’s v. Perry, facts. See State other appropriate petitioner relief. The (Ohio 1967) 104, (syllabus 226 N.E.2d 105 may a supporting file affidavit and other 3).26 para. evidentiary To merit an hear documentary in support ing, a petitioner evidentiary must submit claim for relief. containing cogent documents sufficient
operative facts demonstrate substan (C) granting hearing, grounds Before the court tive for relief. See State v. Combs, 90, shall determine whether App.3d there are sub- 100 Ohio 652 N.E.2d (Ohio 205, grounds making stantive for relief. Ct.App.1994); 210 State v. determination, Smith, 138, such a the court shall 30 Ohio App.3d N.E.2d 506 (Ohio consider, 1205, in addition petition Ct.App.1986). to the 1208 And it is affidavits, that, caselaw, supporting all the files and according post- true Ohio records pertaining proceedings statutorily cоnviction courts are not re against petitioner, including, quired discovery but not to compel peti so that a to, indictment, limited may gather the court’s tioner prove evidence to that a entries, journal journalized Smith, hearing records is warranted. See court, Nonetheless, of the clerk of the and the court if N.E.2d at 1208. discover reporter’s transcript.... If the court able supportive materials of Petitioner’s petition, exist, dismisses the actually it shall make and claims fault do for failure to 175, post-conviction petition may 26. A Perry, dis- also be State v. 10 Ohio St.2d 226 N.E.2d hearing 104, (Ohio 1967) 9). missed without a where claims (syllabus para. judicata. raised therein are barred res See provided post-conviction tioner’s trial court certainly lies not them almost obtain significant opportuni- other Petitioner with system, but relief post-conviction Ohio’s 5, 1988, discovery. August From post-convic- own ties rather with Petitioner’s was a court until there October counsel. tion him to obtain permitting order of record the Ohio Su October On any organization any and all records from defen that a criminal held preme Court public private, or “which con- person, appeals his direct who has exhausted dant p. at Byrd.” supra See cern John W. himself of the may avail who “person” is a broad, language quite Pe- Although this law Ohio Rev. public records State’s appar- use of this order titioner’s counsel’s support peti § 149.43 in order to Code primarily obtaining ently focused Ohio relief. See post-conviction tion for etc At the Decem- impact statement. victim Toledo, 54 Ohio St.3d City rel. Clark 2, 1988, hearing, repeatedly the court ber (Ohio 1990).27 N.E.2d counsel, you do want?” asked “What include law en public records Obtainable the vic- only response concerned Counsel’s ex files. See Ohio investigatory forcement and a brief mention impact tim statement Cleveland, 65 Ohio City rel. Johnson Nothing else emergency room records. (Ohio 1012-13 603 N.E.2d St.3d Notably, very this requested. 1992). Thus, pro statutory procedure this explicitly the court refused to re- hearing, access to most of Petitioner with vided discovery order, although urged voke that Obviously, what Peti sought. he records prosecutor. to do so pursuant Ohio could not access tioner opportuni- Despite the above-mentioned ma product § work 149.43 was Rev.Code ties, produce any reli- Petitioner failed However, did use terial. support his claim. able evidence that would obtain visitation successfully to procedure *26 explicit limit points only to one Department. records from Sheriffs to the discovery pursuant on his placed Moreover, that prosecutor represented order; i.e., access August 5th Petitioner’s access to all of gave Petitioner office The com- impact statement. to the victim But investigatory files. even the sheriffs Petitioner access court denied pleas mon case, set process if this were not (1) absolutely it, was no there because provided § Rev.Code 149.43 forth Ohio copy a of it jury received evidence that the ability to obtain such with the (as to the con- significant evidence well as and, that the State has given records had no other trary), and the státement ex public records .providing burden of proceed- post-conviction relevance any appear there does ception, foregoing, the Notwithstanding the ings. not have re Petitioner could reason why discovery in this permitted district information prosecutor from the quested Rankin, area, the custodian Nancy in rea compiled specifically that was not statement, confirmed victim-impact his trial or other anticipation of sonable went to the statement never that the Similarly, it materials. product non-work jury. court or the could have ob that appears .Petitioner concerning the Furtherance records tained requests for to Petitioner’s respect With However, appears it Account. of Justice records, demon- the record the sheriffs requests simply record that such from the provided was that Petitioner strates made. were never excep- with the sought he the documents missing attorney log book. tion of the Moreover, notwithstanding the lack of essentially du- was' so, information to do Peti- visitation statutory requirement However, 6). (Ohio 1994) para. (syllabus Supreme recognize that the Ohio 27. We Sep impact upon Peti subsequently obviously Clark overruled had no Steckman ex rel. Steckman v. See Ohio tember 1994. case. tioner’s Jackson, 639 N.E.2d 70 Ohio St.3d 1991) Dist., plicative pro- Ct.App. of that which Petitioner was Feb. (affirming trial). denial of the motion for a new copies Petitioner received of each vided. card; individual inmate’s visitation at- really What Petitioner wants is access to torney log and other visitation records prosecutor’s product work and trial only
would
confirm that the information on preparation
Unfortunately
files.
for Peti-
those cards
accurate. Holding
an evi-
tioner,
provide
he failed to
the state courts
dentiary hearing on the matter would have with a sufficient reason to force the Prose-
pointless,
been
Sheriffs Office had
cutor’s Office to turn over its files and
conduct an in camera
conducted a search in
pro-
December
review. Such
warranted,
might
review
have been
for
copies
vided Petitioner with
of those docu-
instance, if
supplied
Petitioner had
Fur-
found, fully explained
ments
its document
therance of Justice Account records show-
retention and
process,
pro-
destruction
ing
money
had received
Armstead
vided
proof
missing
documents
State,
showing
from the
or at least
among
destroyed
were not
those
on March
money
testifying
Jordan had received
Moreover, assuming
missing
co-defendant,
at the trial of Petitioner’s
were,
fact,
destroyed
documents
at some
However,
Brewer.
attempt
Petitioner’s
time,
evidentiary hearing
other
neither an
obtain
during
such documents
the state
discovery
nor further
would have resur-
post-conviction proceedings appears
addition,
rected them.
it
noteworthy
is
have been
Despite
feeble
best.
the fact
that Petitioner’s failure to obtain these
post-conviction
counsel
they
records
destroyed
before
were either
County
knew that the Hamilton
Auditor’s
due,
misplaced
in large part,
to his
prosecu-
Office would have
records of
them,
delay
seeking
own
since he waited
account,
tor’s disbursements from such an
years
more than five
attempt
even to
appears
it
attempt
he made no
obtain them.
Department
The Sheriffs
obtain
through
public
these documents
records pertaining to the murder investi-
records action.
gation
were made available
the Prose-
Similarly, such a court
might
review
in May
cutor’s Office
1989. This more
have been warranted had Petitioner ob-
than fulfilled the first of Petitioner’s two
tained an affidavit from Jordan stating
October 27th motions.
that he
conspired
with Armstead to
*27
When Petitioner still failed to sustain his
story
fabricate a
and had conveyed that
initial
proof
burden of
year
more than a
prosecutor,
information to the
or that Jor-
order,28
after obtaining
August
5th
personal
dan had
knowledge that Arm-
pleas
properly
common
court
followed stead received payment or some other sort
evidentiary
Ohio law and denied an
hear-
in exchange
testimony.
of deal
for his
Pe-
ing.
County
The Hamilton
Ap-
Court of
attempt
titioner’s
provide
information
peals affirmed the trial court’s conclusion about Jordan via the affidavit of Jane Per-
evidentiary hearing
no
was warranted
ry
affidavits,
is insufficient: like the other
under the statute.
Byrd,
See State v.
No.
it is nothing
hearsay.
more than
More-
C-890659,
(Ohio
17781,
over,
1991 WL
at *2
given that Perry’s alleged eonversa-
Although
contrary,
he claims to the
tablish that no deal existed. The "Armstead”
presented
one affidavit Petitioner
any
inconsistent,
contained
internally
letter was
was deter-
personal
evidence within the affiant's
handwriting expert
mined
to be a for-
knowledge. Each affiant's statement —wheth-
gery,
supported by any
and was not
alleged
er it
alleged
concerned the
deal or the
authenticating it. The letters from the Prose-
nothing
concocted confession—was
more
Office,
prosecutor’s
cutor’s
as well as the
own
hearsay.
than
All of the admissible “evi-
affidavit, all
indicated
Armstead's testi-
submitted, e.g.,
"forged”
dence”
letter
mony
any promise
was obtained without
Armstead,
allegedly
post-trial
written
State,
expressed
inducement from the
APA,
prosecutor
letters from the
to the
physical safety.
concern for Armstead's
affidavit,
prosecutor's
own
tended to es-
place
respects.
appellate
tion with Jordan took
in October
trial court in all
opinion
specific
court's
included
factual
in the midst of Petitioner's
state
findings
evidentiary
post-conviction proceedings,
and concluded that an
the fact that
hearing
required,
Perry's
presented
was not
because Peti-
affidavit was never
present
post-conviction courts,
tioner had failed to
evidence that
the state
and was
ground
not even made until October
would he had a substantive
for relief.
Byrd,
C-910340,
cause most courts to raise at least one See State v.
No.
1992 WL
(Ohio Ct.App. Dist.,
eyebrow.
at *5
Feb.
1992).
determined,
As the district court
it
review,
On habeas
the district
was not unreasonable for Ohio to forbid
findings
access,
court concluded that the factual
Petitioner's
even via in camera
pre
review,
prosecutor's
product
the state courts were entitled to the
work
sumption
correctness,
notes of conversations with informants
because Petition
eight
when Petitioner had made no credible
er had failed to establish
of the
exceptions
showing
contained
28 U.s.c.
that those documents would con
2254(d).
§
The essence of Petitioner's
indicating
tain information
Armstead had
appeal
prosecutor.
claim on
is that the record in the
lied or cut a deal with the
To
proceedings,
hold otherwise would iii effect mandate
state court
and therefore in
court,
inadequately
every
petitioner
the district
devel
time a
makes an un
oped
discovery
allegation
and that he is entitled to
substantiated
constitutionally infirm,
that his trial was
evidentiary hearing
post-conviction and an
in federal court
provide
evidentiary hearing
in order to
substance to the claims
court must conduct an
petition. However,
prosecution's
raised in his habeas
and order
files to be
inescapable that,
opened.29
the conclusion is
if the
Given the fact that Petitioner
inadequately
present any
state court record was
devel
failed to
admissible evidence
oped,
supporting
position, despite opportuni
it was so because Petitioner failed to
pursue
discovery,
say
the avenues that were available to
ties for
we cannot
that the
develop
factflnding procedures
him to
it.
state court's
were
unfair or that Petitioner was not afforded
petitioner
If a habeas
has
hearing.
a fair
develop
failed to
the factual basis of a
court, petitioner
considering
post-conviction pe-
claim in the state trial
After
tition,
prejudice
the affidavits Petitioner submitted must show cause and
or a funda
miscarriage
justice
support
petition,
entirety mental
before relit-
of the
and the
igating
Keeney Tamayo-
record,
pleas
the facts. See
the common
Reyes,
1, 11-12,
specific findings
made
of fact and conclu-
(1992);
Rees,
law,
evidentiary hearing,
517
record that
obvious from his
have been
recently sum-
(1995),
Court
Supreme
parole
on
form of
Armstead was
some
Brady
viola-
law
the relevant
marized
1982,
in
was
December
when he
arrested
the rule that
The
reaffirmed
tions.
“
questioned Arm-
defense counsel never
by
knowing
use
obtained
‘a conviction
parole
whether his
status
regarding
stead
fundamentally un-
testimony is
perjured
adversely
affected
the six-
would be
any
if there is
fair,
set aside
must be
and
received March 1983
month sentence he
false testi-
that the
likelihood
reasonable
to assault and
following
plea
guilty
his
judgment
mony could have affected
”
has
7,
petty theft. This Circuit
attempted
115
1555
n.
S.Ct.
Id. at
jury.’
433
Brady
occurs
that
violation
“[n]o
427
held
Agurs,
U.S.
States v.
(quoting United
have
defendant knew or should
2392,
342 ‘where a
103,
49 L.Ed.2d
97,
96 S.Ct.
him
permitting
facts
no known
essential
(1976)).
that there exists
It is settled
any
infor
advantage
exculpatory
im-
to take
exculpatory between
difference
mation,
is available
or where the evidence
Brady purposes.
evidence
peachment
”
v.
course,
See Workman
our
from another source.’
433,
Of
519 eross-examination, that disclosed, because counsel the outcome hearing been role in a represented Armstead previously had have been differ- trial would Petitioner’s (3) matter; the failure of criminal and 433-34, 115 at Kyles, 514 U.S. ent. See object alleged prose- counsel to defense 1555; Bagley, United States S.Ct. cutorial misconduct. 87 L.Ed.2d 105 S.Ct. U.S. 109, 96 (1985); 427 U.S. at Agurs, cf. arguments several with posits Petitioner (“The an that possibility mere S.Ct. at the performance to counsel’s respect might have information outset,
item of undisclosed
of his trial. At the
penalty phase
defense, might
affected
or
have
helped
that defense counsel
Petitioner contends
trial,
does not establish
outcome of
failure to
were ineffective due to their
sense.”).
in the constitutional
‘materiality’
investigate possible mitigating factors.
say
short,
simply cannot
failed to
In
we
Petitioner asserts
counsel
put
reasonably
independent
be taken to
mental health ex-
“could
obtain an
light as
authorized coun-
pert
in such a different
after the trial court
the whole case
so,
request,
verdict.”
do
failed to
in the
sel to
confidence
to undermine
mitigation
appointment
independent
1555.
of an
115 S.Ct.
514 U.S.
Kyle's,
maintains that
specialist. Petitioner
reasons,
reject
we
foregoing
For the
failure of defense counsel to obtain
alleged
Brady
violations
claims
Petitioner’s
expert prevented Petition-
psychological
this case.
mitigation evidence
presenting
er from
and how factors
background
about his
Related to
Issues
V. Procedural
background affected his behavior.
from his
Ineffective Assistance
addition,
a miti-
argues
Petitioner
Claims
Counsel
counsel
specialist
helped
would have
gation
alleges
further
Petitioner
present informa-
investigate, prepare, and
ineffective in violation
counsel were
family
history,
regarding Petitioner’s
tion
to counsel. To
right
Amendment
his Sixth
and formative environment.
background,
only that
must show not
prevail, Petitioner
ar-
presents several additional
Petitioner
but
of counsel was deficient
performance
that de-
well. He contends
guments as
performance preju
that this deficient
also
at the
opening
counsel’s
statement
fense
Washing
the defense. Strickland
diced
was deficient and revealed
penalty phase
ton,
the law
“thorough familiarity” with
lack of
(1984).
L.Ed.2d 674
Petitioner
presented.
the evidence
of the defense’s
challenges the extent
also
Ineffective Assistance of
A.
case,
of testimo-
which consisted
mitigation
Trial
Claims
Counsel
un-
mother and an
ny from Petitioner’s
ineffective
Petitioner raises
Petitioner. Peti-
appeal,
On
from
sworn statement
challenges
brevity
counsel
of trial
argues,
“[t]he
assistance
tioner
provided
his defense
case
provided
of the defense
representation
sparseness
under-
jurors
no real
guilt
penalty phases.33
at the
counsel
the Petitioner
why
counsel
standing
that defense
of how
Petitioner contends
capital
of a
wrong
as a
end
guilt stage
up
at the
on the
ineffective
wound
were
(1)
Finally, Petition-
at 237.
present
failure to
indictment.” JA
their
result
were in-
statement;
counsel
that one of
contends that defense
the fact
er
opening
failing to
for
penalty phase
in the
partici-
effective
counsel refused to
the two defense
alleged
object
numerous instances
of Armstead’s
preparation
in the
pate
that his
court,
ly,
contends
nonetheless
alleged that
Petitioner
In the district
pre-
appeal were ineffective
were ineffective at the
on direct
defense counsel
counsel
However,
stages
well.
voir dire
failing
trial and
claim of misconduct
to raise the
particular
these
in-
does not assert
during
attorneys
dire.
voir
State’s
appeal.
arguments on
Curious-
effectiveness
*32
closing argu-
misconduct at
prosecutorial
B. Procedural Default of
ment,
Trial Counsel Claims
allegedly improper
as well as certain
from the trial court.
instructions
not
a
Federal courts “will
review
question
by
law
a
federal
decided
state
great
The district court found that
if
court
the decision of that court rests on
bulk of Petitioner’s ineffective assistance
ground
independent
that
state law
is
procedurally
claims were
of trial counsel
question
adequate
sup
the federal
to
defaulted,
they
because
had not been
port
judgment.”
Thomp
Coleman v.
in
properly
raised
the Ohio state courts.
son,
2546,
501 U.S.
111 S.Ct.
115
only
The district court found that
the fol-
(1991).
1967,
In
L.Ed.2d 640
the Ohio
(1)
lowing
preserved:
properly
issues were
“[cjonstitutional
Supreme Court held that
That
for breaching
counsel
ineffective
cannot
in post-eonvie
issues
be considered
pre-trial duty
investigate
their
to
and thus
proceedings
tion
under Section 2953.21 et
failing
that
to determine
Armstead’s testi-
Code,
they
seq., Revised
where
have al
mony was
and that
ready
fully litigat
false
Armstead
been or could have been
by
prisoner
represented by
ed
while
prosecutors
reached a deal with the
counsel,
judgment
either before his
of con
(2)
exchange
testimony;
for his
that coun-
viction
appeal
judg
or on direct
from that
failing
object
sel was ineffective for
to
ment,
adjudicated
and thus have been
jury
the trial court’s instruction to the
at
against him.”
v. Perry,
State
10 Ohio
penalty phase
it could not be
(Ohio
175,
104,
St.2d
226 N.E.2d
105-06
by
governed
sympathy;
considerations of
1967)
7).
Cole,
(syllabus
2
para.
In State v.
(3) that
counsel was ineffective for
(Ohio
112,
Ohio St.3d
443. N.E.2d 169
object
failing
per-
when the trial court
1982),
supreme
the state
court articulated
prosecutor
argue
mitted the
procedural
apply
how this
rule would
jury should sentence Petitioner to
death
respect
to ineffective assistance of trial
duty
satisfy society’s
outrage.
moral
counsel claims. The court explained:
view,
In our
it also appears that the Ham-
defendant,
represented by
“Where
new
County
Appeals
ilton
ap-
Court
did not
upon
appeal,
counsel
direct
fails to raise
ply a
bar and
procedural
decided on the
competent
therein the issue of
trial counsel
merits Petitioner’s claim that defense
fairly
and said issue 'could
have been deter
counsel
penalty
were ineffective at
mined without resort
dehors
phase due to
present
their failure
addi-
[i.e.,
record,
judicata
res
is a
outside]
mitigation
tional
evidence. Petitioner does proper
dismissing
pe
for
defendant’s
basis
argue
the remaining ineffective
post-conviction
tition
relief.” Id. at 170
assistance claims were considered
(syllabus).
Indeed,
state courts on their merits.
Peti-
applying
proce
Before
a state
acknowledges
tioner
that he raised his in-
bar, the
court
dural
federal
must deter
effective
assistance
trial counsel claims
(1)
actually
whether
the state courts
mine
post-conviction petition
to vacate
rule,
procedural
enforced their-state’s
see
pursuant
sentence
to Ohio Rev.Code
(6th
Reynolds Berry,
146 F.3d
2953.21,
§
and both
pleas
the common
Cir.1998);
Smith,
Maupin v.
County
and the Hamilton
Court of
Cir.1986);
the rule
merits,
Appeals declined to reach the
find- question
“firmly
regu
established and
ing
the claims were
barred
followed,”
larly
Georgia,
Ford v.
498 U.S.
judicata. Thus,
doctrine of res
toas
these
411, 423-24,
850, 112
L.Ed.2d 935
S.Ct.
claims,
defaulted
we must consider wheth-
(1991);
Kentucky,
James v.
466 U.S.
applicable
procedural
er the
Ohio
rule con- 348-51,
were not
re
History
Appellate
D. Procedural
of
Murnahan,
petitions.
lief
584 N.E.2d at
Counsel Claims
1).
(syllabus para.
1205
The court ex
in
plained: “[t]o allow such claims could
Petitioner
his ineffective assis-
raised
second-guess
permit
effect
courts to
appellate
tance of
counsel claims in his
superior appellate courts.” Id.
at 1208.
2,
post-conviction petition. On October
meth
proper
The court concluded that the
1989,
common
held: “A
pleas
court
a motion for
raising
od for
such claims was
appellate
of
of
claim ineffective assistance
in
a
appeals
reconsideration
the court of
cannot
raised in a
2953.21
counsel
R.C.
supreme
court.
appeal
direct
the state
Rone, C-820640,1983
v.
State
proceeding.
id. at 1208-09.
See
(Ohio
31,
App.
Aug.
WL 5172
1st Dist.
1983).”
after
County
Approximately
The Hamilton
of
months
Court
four
Rone,
decision,
supreme
Appeals had held in
which was de-
state
court’s
(i.e.,
filed a Mumahan
petition
a
August
finally
cided on
that ineffective
reconsideration) with
delayed
motion for
appellate
assistance of
counsel
could
claims
Appeals.
County
in
the Hamilton
Court of
pursued
post-conviction
not be
state
Rone,
v.
consider
proceedings. See State
appeals
No.
The court of
refused to
C-
(Ohio
820640,
5172,
Ct.App.
petition, finding
at *4
that there
“been
1983WL
1983).
Dist.,
31,
good
justify
Aug.
ap-
showing
The court of
no
of
cause
remedy of
that,
considering that the
re-
peals
among
delay,
stated
other alternative
remedies,
in
claims of inef-
in which consideration
relation to
appellate
“the
counsel has
appellate
been
could fective assistance of
alleged
counsel has
ineffective
repeatedly
upon
consider the issue
a motion for recon-
been discussed
this Court
C830676,
Byrd,
v.
Id. On since 1983.” State
No.
judgment.”
sideration of its own
to a
(Ohio
Dist,
counsel claims
appellate
of
Ct.App. 1
assistance
at *1
1986 WL
error.36
analysis was
1992).
procedural default
Supreme Court
The Ohio
Oct.
of
court held
Carpenter,
panel
In
a
in
appeals
sepa
subsequent
two
rejected
of appellate
an
assistance
ineffective
No. 92-
Byrd,
v.
rate orders. See State
for a
can establish cause
counsel сlaim
N.E.2d 407
67 Ohio St.3d
independent
claim
default of
(Ohio
27, 1993);
procedural
No.
Byrd,
v.
State
Oct.
subjected
proce
itself be
N.E.2d 409
need not
86-512,
67 Ohio St.3d
inef
analysis
long
as
as the
(Ohio
dural default
27, 1993).
Oct.
appellate
counsel
assistance
fective
Carpenter
.
E.
Mohr
state
presented
claim
been
has
exhausted. See id.
courts and
presented his ineffec
When
Supreme
Court
panel
“[t]he
stated
claims
appellate counsel
tive assistance of
procedural
implemented]
...
[has]
habeas,
court determined
the district
requirement for claims
default
asserted
procedurally defaulted.
they
had been
cause,
does,
it
see no reason
until
we
view,
relevant
court’s
the district
requirement
on our
engraft
such
County
rule was the Hamilton
procedural
own.” Id.
Rone. The
Appeals’s
decision in
Court
that, while no statewide
court concluded
Supreme
recognize that
We
raising
assistance
procedure
ineffective
to review this
granted
has
certiorari
counsel claims existed Ohio
of appellate
also
aspect
Carpenter.
See
Stewart
Mumahan,
the rule
the Hamilton
until
LaGrand,
115, 120, 119
S.Ct.
Appeals
had been well
County Court
curiam)
(per
L.Ed.2d 196
in Rone
since the decision
established
(finding- that an ineffective assistance
“it was
August 1983. The court stated:
not be considered as
counsel claim could
expect
a defendant
not unreasonable
a procedurally
cause to excuse
defaulted
*36
County to
in Hamilton
follow
convicted
because, among
things,
other
claim
of
County’s
rule
Court
established
claim
as cause had itself been
asserted
Collins,
Appeals.” Byrd v.
C-1-94-
No.
defaulted,1'and
petitioner
had failed
(S.D.Ohio
1995).
167,
2,
17
Nov.
prejudice
cause
for
demonstrate
default). However,
Carpen
of
opinion
regardless
in
On the basis of this Circuit’s
ter,
Mohr,
underlying merits of
our
of the
Carpenter v.
Cir.
review
938
1998),
nom,
appel
v. Petitioner’s ineffective assistance of
granted
cert.
sub
Edwards
VTI,
-,
in Parts VI and
late
claims
Carpenter,
U.S.
counsel
—(cid:127)
(1999),
do
infra, convinces us that
these claims
mance at the
was consti-
“completely incompatible
require-
with the
tutionally ineffective.
ment that the defendant
spe-
must have a
cific intent to cause a certain result —the
Jury
C.
Instructions
death of
person.”
another
JA at 247. We
next
ap
Petitioner
claims that his
are unpersuaded.
In his immediately pre-
pellate
constitutionally
counsel were
inef
instruction,
ceding
the trial court informed
failing
challenge
fective for
several of
jury
person may
“[n]o
convict-
trial judge’s
jury
.instructions
ed
aggravated
murder
spe-
unless he is
guilt
penalty phases
both the
of Peti
cifically found to have intended to cause
apply
tioner’s trial. The standard
on
we
the death of
Tr.
another.”
at 1697.
In
highly demanding.
habeas review is
In
view,
our
the causation instruction did not
deed, “the fact that
the instruction was
requirement
specific
undermine the
in-
allegedly incorrect under state law is not a
short,
tent.
it was not even an errone-
basis
Estelle v.
habeas
relief.”
instruction,
ous
much less an unconstitu-
McGuire,
62, 71-72,
502 U.S.
112 S.Ct.
tional one.
(1991).
Rather,
counsel
dying
rooted,
of Monte’s
factors
and the admission
mitigating
against the
cumstances
not
Petitioner’s
judge
dis
did
violate
since
declarations
especially
proper,
Clause.
argu
Confrontation
rights
evidence and
under the
tinguished between
pro
previously
of counsel and
ments
that
contends
Petitioner next
of
arguments
that
instruction
vided an
allowing
improperly
court acted
the trial
The instruc
evidence.
not
counsel were
“death-qualified,”
jury to be
recommending a
jury verdict
that a
tion
allowing
improper evidence and
admitting
was a
unanimous
must
life sentence
be
prosecutor.
arguments
improper
law,
see
of Ohio
State
statement
proper
First, it is
claims.
reject
We
Petitioner’s
148, 661 N.E.2d
Brooks,
St.3d
75 Ohio
death-quali
jurors to be
for
improper
not
(Ohio 1996), and was constitu
1030, 1042
they could
fied, i.e.,
whether
to be asked
Finally, Petitioner
tionally permissible.
warranted,
if
capital punishment,
impose
judge’s instruction
that the
contends
opposition
any personal
of
regardless
by feelings
be motivated
jury
must not
McCree, 476
Lockhart v.
might have.
they
a fair and
render
but must
sympathy
of
1758,
173,
L.Ed.2d
162,
106 S.Ct.
90
U.S.
This ar
improper.
impartial verdict was
(1986). Second,
find
the evi
we
merit, as such an
utterly without
gument is
of were
complained
and arguments
dence
‘
appropriate and
perfectly
ais
instruction
therefore,
and,
was- not
it
not improper,
sum,
of the
none
wise one.
In
indeed
them at trial.
judge
to allow
error for
uncon
jury was
judge’s instructions
event,
role on
surely not our
any
it
stitutional,
his
Petitioner’s claim that
a state
review to decide whether
habeas
constitutionally inef
appellate counsel was
evi
whether to admit
judge’s
decision
nec
failing
raise them must
for
fective
evidentiary rules
to state
pursuant
dence
fail.
essarily
is to
Our sole task
proper
was a
one.
viola
whether
constitutional
decide
federal
Claims
D. Miscellaneous
v. Lon-
Marshall
have
See
occurred.
tions
that Pe
remaining
The
claims
6,
n.
103 S.Ct.
berger,
his ineffec
basis for
titioner asserts
(“[T]he
Due
843,
529 ing prosecutorial to raise certain of cess claims violation unless the conduct was ‘so alleges misconduct. Petitioner vari egregious so as to render the entire trial ” of prosecu- ous instances unconstitutional fundamentally Pritchett, unfair.’ 117 torial misconduct during occurred the F.3d at 964 (quoting Cook v. Bordenkirch- they course of his trial and that warrant a er, (6th 117, Cir.1979)); 602 F.2d 119 see longstanding reversal of his conviction and Darden, 181, 477 2464; U.S. at death sentence. burden on Serra, 1355; 4 F.3d at Angel v. Overberg, quite habeas review is a substantial one. (6th 605, Cir.1982) (en banc). 682 F.2d 608 granted, For relief the misconduct Indeed, our case law demonstrates “ must have ‘so infected the with un trial “extreme nature of prosecutorial miscon- resulting fairness as to make convic required duct for a federal to issue ” tion a denial of process.’ due Darden v. the writ.” Angel, 682 F.2d at (quoting 609 168, 181, Wainwright, 477 U.S. 106 S.Ct. Cook, 120). 602 F.2d at 2464, 91 144 (quoting L.Ed.2d Don The factors to consider in de 637, nelly DeChristoforo, 643, v. termining stringent whether this standard (1974)). 1868, 94 40 S.Ct. 431 L.Ed.2d We has been met in a habeas case have been possess supervisory powers do not over consistently by articulated this circuit as Bordenkircher, state court trials. Cook v. follows:37 (6th Cir.1979) (“it 117, 602 F.2d 119 n. 6 is responsibility of [state courts] degree [W]e consider the to which the
police
prosecutors;
their
we have no such
complained
remarks
tendency
of have a
Therefore,
authority.”).
review,
on habeas
jury
to mislead the
and to prejudice the
“
our standard of review is limited to ‘the
accused;
they
whether
are isolated or
” Darden,
one of
process.’
narrow
due
477
extensive;
they
whether
were deliber-
181,
U.S. at
106
2464 (quoting
S.Ct.
Don
ately or accidentally placed before the
nelly DeChristoforo,
416
at
94
U.S.
jury,
strength
and the
of
competent
1868).
S.Ct.
proof
guilt
to establish the
of the ac-
cused.
determination,
In making this
“
Pritchett,
we must bear in
mind
‘the touch
(quotations
530 1770, L.Ed.2d 20 88 S.Ct. omitted). forth U.S. reasons set For the tions However, (1968). prohibit instead of 776 that Petitioner’s below, conclude we must ju prospеctive into whether inquiry ing stan- demanding meet do not this claims if the penalty the death impose could ror dard. merited, principles “demand these so case prosecutorial of allegations Petitioner’s prospec of the views into whether inquiry five cate- into grouped can be misconduct penalty would death jurors on the tive pros- that the contends Petitioner gories. Morgan, sitting.” disqualify them from (1) “death-qualified” the improperly ecutor 731, 112 2222. at S.Ct. 504 U.S. (2) in- dire; improperly voir jury during argu- indi- impact evidence in case victim the record jected A review of trial; (3) com- improperly was well within prosecutor into the ment that the cates testify; failure in principles Petitioner’s governing mented on scope of these the inflamma- (4) improper jurors. The various prospective made of questioning closing arguments; during jurors the wheth- tory arguments merely asked prosecutor jury’s the if appealed penalty improperly impose the death they could er death impose the duty guilty of of societal sense was they believed that in these each'of beyond We will address a reasonable penalty. aggravated murder circum- aggravating turn. the doubt mitigating factors. outweighed stances “Death-Qualification” Jury A. example the cites as brief Petitioner’s feel, you based following question: “[I]f the argues on you are everything that instructed upon improperly secured commit prosecutor life should this defendant’s by the law that juror could juror that the each ment from inci- chair the in the for electric Petitioner’s be taken penalty death impose the 17, 1983, you could do April McCree, he did U.S. dent v. 476 Lockhart case. In at Tr. saying?” are you it. that what 137 Is 162, 173, 90 L.Ed.2d S.Ct. into only question inquired 259. This held that “the (1986), Supreme Court juror follow could prospective whether the States prohibit does not Constitution weed out intended to law. It is not juries capital qualifying’ from ‘death about remove, any personal doubts those allowed The State is cases.” answer The capital punishment. use of cause, oppo jurors whose “prospective re- prosecutor’s juror gave, and strong so penalty is to the death sition The telling in this regard. impair sponse, are substantially or prevent it would “Yes, answered, war- if the evidence juror jurors.” duties as performance their [,]” prosecutor re- it to which 1758; Morgan accord rants 106 S.Ct. Id. at ground rules.... “That’s the 719, 733, sponded, Illinois, 112 S.Ct. if the you I talk to about (1992); Buchanan Whatever L.Ed.2d 492 The it.” Tr. at 260. warrants Kentucky, 483 U.S. only (1987). whether prosecutor inquiring was The Court L.Ed.2d 336 the law. Needless juror could follow juror may not be excluded held that a has The entirely permissible. objec say, this is they general merely voiced “because similar jurors of the other questioning expressed or penalty death tions to the Therefore, claim against religious scruples nature.38 conscientious Illinois, fail. 391 must Witherspoon v. its infliction.” "not sim- that it was penalty, and she stated pros- example, juror answered the one For these spite ple” at 958. impose for her. Tr. could question of she whether ecutor's the death views possible her doubts about law do- penalty merited where death challenge her did not penalty, prosecutor stating ing believe would so "I jury, she had (voir being on the because seated Juror duty dire my to do.” Tr. de- follow the law could Hall). that she her earlier indicated judge asked any personal This demonstrates spite doubts. fairly the death could consider whether she Impact Secondly, you Evidence I don’t know if will
B. Victim
be
Argument
by
bothered
this or not.
people
Some
and
by
are bothered
the method of death
that
argues
prosecu-
Petitioner also
dies,
and how a person
previ-
and as I
injected
impact
victim
evi-
improperly
tor
indicated,
ously
talking
we are
a
about
the trial.
In
arguments
and
into
dence
long (indicating),
knife this
a
about blade
alleges
pros-
that the
particular,
long being
that
stuck in a man and him
(1)
voir dire
during
ecutor made comments
liver,
bleeding through
bleeding
and
manner of the mur-
about the nature and
internally.
you
Do
have a
stomach
(2)
der,
introduced into evidence a video-
that,
testify
to listen to the coroner
a
interview with the vic-
tape of
television
about the method of death?
family,
emotionally
and
made
tim’s
response
Tr. at 804-05. In
to an affirma-
impact arguments during
victim
charged
answer,
asked,
tive
prosecutor
then
guilt phase.
at the
closing arguments
aside,
“You will be able to set that
however
are,
gruesome the
get
details
and
Upon
transcripts
review of the
are,
truth because that is what we
all here
questions
of the voir dire
and comments
juror
for?
to which the
answered
as illustrative of mis
cited
“[y]es.” Tr. at 805. This demonstrates
conduct, it is
that
the' context and
clear
that
prosecutor,
trying
far from
questions
of these
and comments
purpose
jurors
prospective
against
inflame
Peti-
pro
whether or not the
were to ascertain
tioner,
attempting
was
determine
juror could set aside his or her
spective
prospective jurors
whether the
could.re-
impartially.
the case
emotions
decide
objective regardless
main fair and
Indeed,
certainly proper.
This is
a trial
impact
emotional
of this
that
facts
judge
great
deciding
“retains
latitude
might
crime
have on them.39 This
brutal
questions
what
should be asked on voir
type
questioning
improper
is not
415,
Virginia,
Mu’Min v.
dire.”
certainly
not constitute prosecutorial
does
1899,
424,
114
L.Ed.2d 498
S.Ct.
misconduct.
(1991). Hence,
long as the court
“[s]o
prosecutor
into ev
introduced
that the defendant or defendants
ensured
videotape
trial a
of a
idence
panel
impartial,
‘a fair
a
family.
television interview with Monte’s
jurors,’
“indifferent”
reversal
is not man
daughter,
This
featured Monte’s
interview
Phibbs,
dated.” United States v.
singer.
day
who
It
filmed the
was
was
Irvin,
(6th Cir.1993)
1053,
(quoting
murder,
before the
and both Monte and
Dowd,
81 S.Ct.
U.S.
part
and were a
present
his wife were
(1961)).
L.Ed.2d 751
the interview. Petitioner contends
following question
“highly sympathetic
Petitioner cites the
and emo
portrayal of the victim and
tion-charged
evidence of misconduct:
attempting
prosecutor
was not
where a man was stabbed with a knife
that
screen from the
jury everyone
who had
the side and bled to death? I know it’s not
Rather,
capital punishment.
about
doubts
thing,
standpoint
pleasant
but from the
merely attempting
prosecutor was
to ensure
you
impartial juror?
couldn't be a fair and
juror
apply
would
able to
law
each
know,
A: I
I think it would bother
don't
to the facts
the case.
me.
Q:
Thompson,
suggesting
I’m
Mrs.
fact,
responded
juror
In
one
when
you.
you
it wouldn't bother
What I’m
might
emotionally,
evidence
affect her
saying
you,
would the
be such
bother
prosecutor
could
asked whether she
still be
you
impartial
couldn’t be a fair and
impartial,
she answered
fair
which
juror?
following
that she could. We note the
ex-
A: No.
change:
Q:
asking.
That’s all I’m
Q:
killing.
A knife was
in this
Would
used
(voir
Thompson).
Tr. at 623
dire of Juror
you
that bother
to see or hear evidence
argument.
impact
im
victim
evidence
family” and constitutes
the victim’s
Tennessee, 501
Payne
to in
U.S.
attempt by
prosecutor
See
proper
Peti
jury against
Petitioner.
C. Comments present failure to testimony during sworn prosecutor that the Petitioner contends penalty phase acknowledge the and to his right Fifth Amendment violated his guilt principal as the offender. We dis- against by making self-incrimination com- agree explained for the reasons below. to allegedly pertained ments that Petition- It is well established that a testify particu- failure to at trial. er’s prosecutor’s direct reference to a criminal lar, complains of comments testify defendant’s failure to is a violation during closing arguments at both the made of that Fifth priv defendant’s Amendment sentencing phases of his trial. guilt and ilege against compelled self-incrimination. During closing argument guilt the 609, California, v. 85 Griffin trial, phase prosecutor remarked (1965); 14 S.Ct. L.Ed.2d 106 Lent v. witness, key that the Ronald Arm- State’s (6th Wells, Cir.1988). 861 F.2d 975 stead, testimony credible “his was because However, indirect references on the failure uncontradicted, disputed no one has testify can Fifth also violate the Amend testimony.” Armstead’s Tr. at 1659. The privilege. ment in alleged When “[wjitnesses prosecutor also stated that references, fringements “a consist of such pay price testify.” Tr. at 1682. He reviewing court must look at all the sur that comment with a reference to followed rounding determining circumstances “you Armstead and the statement whether not there has been constitu something genuine know there’s real about Rose, tional violation.” Butler v. 686 F.2d them, preda- not all of not the people, our Cir.1982) (en banc). (6th 1163, 1170 The Tr. at Peti- [i.e. Petitioner].” tor 1682. “probing analysis court must undertake a tioner contends that these comments were of the context of the comment.” United attempt an intentional to draw his failure Robinson, v. 651 F.2d 1197 States testify jury’s During attention. (6th Cir.1981). “probing analysis” This in closing argument penalty phase, at the volves the consideration of four factors: Petitioner made unsworn statement (1) “manifestly in Were the comments jury which he stated that he was to reflect the accused’s silence “sorry happened,” “sorry for what tended” jury or of such character Tewksbury family.” Mr. and his Tr. at However, “naturally necessarily” take Petitioner also stated that would such; exactly not know was in them as he did what Peters, (7th
Tewksbury, only Rodriguez 565 Petitionér cites to a v. total 1995) (victim impact compris- pages transcript. closing argu- comments four Cir. closing argument prosecutor guilt phase ing pages tran- at the one of 35 ments unfair). transcript. script comprised pages over 30 did not render trial Cf. murder, testimony re- as well as his (2) or exten- remarks isolated Were comments garding Petitioner’s while sive; Magazine included watching P.M. both (3) guilt otherwise evidence of theWas having persons to other references been overwhelming; [and] (“they bragged to at 1560 present. Tr. giv- were curative instructions What in that everybody over there was en, and when. area”); (‘Well, at the time that Tr. at 1563 Moore, 215, 225 F.2d United States Magazine program] P.M. came [the Cir.1990) Foltz, (6th Spalla v. (quoting they doing everybody stopped what Cir.1986)). We will 404-05 F.2d just program”). watch the This circuit re- comments prosecutor’s with the begin to evi- “[g]eneral held references has testimony. garding Armstead’s uncontradicted, dence as while recom- that the state We convinced mended, on the may not reflect defen- are. were not man concerning ments Armstead testify where witnesses dant’s failure intended to reflect on ifestly could have con- other than the defendant trial, testify at nor would failure to Raper evidence.” tradicted jury (6th Cir.1983). have understood statements Mintzes, F.2d that we explained has This Circuit such. who only person not the Petitioner was intent” where some will not find “manifest fact called to refute the could have been prosecutor’s for the explanations other statements, and that Petitioner made such *45 equally possible. are United comments argue prosecutor legitimately the could (6th 1129, 1135 Ursery, 109 F.3d States a that Armstead should be deemed credi- Cir.1997). addition, have made In we witness, to the defense failed ble because whether the question clear that the not from the to call witnesses Workhouse or even would view jury possibly probably Hence, con- testimony.41 refute we his as the defen statements comments on the prosecutor’s comments did clude that the the testify, failure to “but whether dant’s indirect references to Peti- not constitute have Id. jury necessarily would done so.” testify.42 failure to While de- tioner’s this not met here. These standards have been dispositive, we also note termination is relatively were isolat- that these comments noted, the As the district ed, number, few in and were not were during closing a ar comments made were by objected to defense counsel. why the reasons gument that focused on informant, Armstead, During penalty phase, the Peti jailhouse a should completely tioner did not remain silent. by jury the as a credible have been viewed Instead, he made an to credibility clear unsworn statement witness. Armstead’s for issue, jury expressed the he remorse ly prosecutor legiti and the had a which directly not admit that to on the the but did attempting reason for focus incident mate actually testimony closing was the one who strengths during of his he stabbed Moreover, agree Monte. with the district court Armstead’s testimo We argument. prosecutor’s penalty phase that the com ny regarding “bragging” the that was done objects was Petitioner, Brewer, ment to which Petitioner now and Woodall about by quality permissible comment on the the Although prosecutor may not comment 41. presented. pro- of a on the failure criminal defendant evidence, prosecutor may the "summa- duce Furthermore, quanti- alluding the evidence and on its comment Pe- rize the comment qualitative significance.” United "predator” "genu- was not tative and titioner as a who Bond, (6th Cir. reasonably States v. 22 F.3d to be a ine” be said refer- cannot Drake, 1994) (citing testify. this United States v. 885 F.2d Nowhere in ence his failure (6th 1989)). prosecutor imply this Cir. In Petitioner’s the that 323-24 comment does case, description Arm- was the result of his prosecutor’s of Petitioner comment testify. testimony was a failure to was uncontradicted stead’s from to Petitioner’s unsworn ences the evidence.” States response fair United Collins, com- was not prosecutor The Cir. statement. 1996). present failure to menting prosecutor on Petitioner’s statements of Instead, prosecutor challenges testimony. specu- which Petitioner involve sworn jury that Petition- merely suggested regarding clothing to the lation that Petition- “shallow,” murder, of remorse was expression wearing night er was on the er’s accept more possible disposal Petitioner did of evidence that because obtained, responsibility possibility actions State never and the complete permits death. Case law com- recognized for Monte’s Monte because “to response that are made in had prior ments been the store strategy of defense coun- argument night the murder. 1172; Butler, 686 F.2d at see also sel.” In particular, prosecutor made the n Ohio, 586, 595,
Lockett v.
S.Ct.
following statements:
(holding
two sleeves
Pritchett,
evidence. defense [Armstead] me the face. He object or ask for a face. He looked in to these comments face, did, he sum, you in the Armstead we hold that looked curative instruction. attorneys in the face the defense egregious not “so so looked these comments were
537 said, ry power that man did was over the federal trial pro- and he “What man for no rea- wrong. however, He killed that ceeding. Even on direct appeal, I’m not sure there is honor son.” reversal is not automatic. Compare Unit- thieves, I believe Armstead among but Carroll, ed States v. 26 F.3d stand, and I he took believe when (6th Cir.1994) error), (finding reversible did, you too. Collins, (holding F.3d 1039-40 Tr. at 1658-59. improper vouching un- was harmless circumstances). der the by Byrd was told
Armstead said that he
I
Byrd
Tewksbury.
Monte
stabbed
case,
In Petitioner’s
we conclude that
heard
evidence to contradict
haven’t
demanding
standard for habeas relief
I
a lot of
that.
have seen
circumstantial
has
been met. Our
review
that.
I have
support
evidence to
heard
“totality of the circumstances” convinces
direct or circumstantial to
no evidence
First,
Angel,
us of this.
and the standard used federal dence. had a courts is whether error habeas evidence, injurious effect influ- you must con- weigh the “substantial
To
verdict.”)
determining
jury’s
who ence
credibility
of witnesses
sider
States,
v. United
apply
(quoting
You will
the tests
Kotteakos
testified.
have
1239,
each witness
final claim is that
testifying;
the reasonableness of
ner of
inconsistencies,
argued
jurors during
any,
prosecutor
if
testimony;
closing
phase
testimony;
opportunity
arguments
sentencing
the wit-
see,
they
impose the death penalty
hear and' know the
ness had
should
in order to fulfill their socie
concerning which that witness
things
*49
testified;
making
argument,
In
this
the
accuracy
memory;
duty.
of
frank-
tal
Georgia,
it;
Gregg
from
v.
intelligence,
prosecutor quoted
of
interest
ness or lack
2909,
bias,
For the we years ago, sixteen circumstances. Over prosecutorial each of Petitioner’s claims of recommended, jury misconduct. and the Ohio *50 that Petitioner’s is to ensure responsibility war- crime agreed, comport death sentence conviction and Over the sanction. this ultimate ranted our Constitution. decade, requirements re- with courts Ohio’s state following According- they do. are confident We Petitioner’s conviction affirmed peatedly deny- judgment of the district court ly, review task habeas Our sentence. corpus for a writ habeas ing petition propriety the wisdom question Instead, is AFFIRMED. our sole punishment. capital
APPENDIX require an counsel. These errors JONES, tance of R. Circuit
NATHANIEL *52 or, least, at a remand of the writ issuance dissenting. Judge, Anything less is discovery. for limited majori- compelled This dissent is miscarriage jus- of irrevocable gross and consti- unpardonable validation of ty’s tice, chilly choice here the stark and is as in rec- this present improprieties tutional death. Out of a process due or between is an validation effect of this ord. The com- option deeply held belief of substantive abandonment intolerable clear, I is now by the Constitution pelled in deeply rooted procedural principles my dissenting views. set forth American constitutional Anglo Saxon and simple in its most Stated jurisprudence. I. pro-
form,
designed
are
principles
these
from constitutional
rights
tect individual
A.
rather
I
here because
shortcuts.
dissent
sup-
courts
principles,
prosecutorial
upholding
than
these
It is well settled
do,
has
grievous
to an ac-
sworn to
breakdown
of evidence favorable
pression
are
the evi-
process
occurred.
“violates due
where
cused
guilt
or to
is material either
dence
penalty
The ultimate
—death—hovers
good
of the
faith
punishment, irrespective
case,
reality
and this
ominously over this
Brady
prosecution.”
faith of the
v.
or bad
postulates.
forth several
leads me to set
1194,
83 S.Ct.
Maryland, 373 U.S.
anarchy by
itself from
Democracy defends
(1963);
Kyles
see also
v.
be sufficient
reasonable
(6th Cir.1991),
provid-
deed, recently Supreme impris- he was impugned by evidence that responsibility prosecution’s ed: “[T]he at the rising the Cincinnati known, oned at Workhouse favorable disclosing trial, that he inеs- time of his admission importance is a material level carrying at prior crime had committed S.Ct. Kyles, 514 U.S. capable.” term, this one-year none of prison least a specific kind of testimony furnished the ex- that the Clark Perhaps recognizing testimony provided to fabricate motivation inapplicable to Brady is ception evidence of parole status. This that Arm- case, majority maintains testimony concoct rationale to particular nor neither false testimony was stead’s respect merely cumulative tes- Armstead’s material. notion credibility. Neither general Armstead’s simply implausible. false is timony was not majority dispute court nor the district Armstead, you “Do asked Byrd’s counsel testimony principally that Armstead’s Armstead re- charges pending?” have *54 Indeed, Byrd’s conviction. responsible or pending time “I don’t have no plied, only the testimony provided Armstead’s at 3863. On pending.” J.A. nothing else Byrd and distinction between meaningful redirect, prosecution asked Armstead the Brewer, who was not John co-defendant Byrd. Arm- testify against came to why he Tewksbury’s murder. charged with “I have no more don’t responded, stead Moreover, any present not the State did testify and I come pending, cases to corroborated Armstead’s who witnesses wrong.” him he was J.A. against because pa- testimony. ways, In these Armstead’s explain majority attempts The to at 3864. Kyles the certainly role evidence satisfies falsity these statements the undeniable materiality whether “the as definition have that Armstead must by hypothesizing un- suppression government’s evidentiary questions the referred thought the in the outcome of dermines confidence his im- opposed charges, “criminal” (internal trial.” Id. at hearings. See parole revocation pending omitted). and citation See also quotations First, asked Armstead was ante 517-18. Scheer, v. 168 F.3d United States charges pending.” “any he whether had (11th Cir.1999) (finding a Brady 452-53 “any.” Armstead was “Any” means re- evidentiary suppression when violation any whether he had “criminal” asked testimony); East v. key lated to a witness’ any or other kind of charges pending, Cir.1997) (5th Johnson, 123 F.3d simply He asked whether he charges. was evidence (holding that “when the withheld Moreover, “any” pending charges. testimony seriously would undermine “nothing that he had responded Armstead key a on an essential issue witness qualification There is no pending.” else corroboration, with- strong there no By testifying he had this statement. to mate- held has been found “nothing Armstead left pending,” else rial”). had no jury impression he testimony, and reason fabricate specific have the utmost imperative The that we was behind him. jail that all of his time jury paramount in a verdict is confidence untrue, and either patently This was punishment is death. We must when the known. prosecution or should have knew in dis- doubt not tolerate reasonable Here, disputes one charging duty. no Additionally, majority concludes conviction as testimony Byrd’s that the State secured pending that Armstead’s testimony. result of any parole since direct Armstead’s charges is immaterial jury unaware as We know that the was merely would serve records evidence evidence, years impris- up faced to fifteen impeachment Armstead cumulative onment, reception he depending im- on the substantially that Armstead had been hearing. This re- parole Arm- at his evidence. received peached other While if undoubtedly against be warmer the evidence would accused. See id. ception 1385, 1389; McFaul, himself with see also way ingratiate Olsen he found Cir.1988) 843 F.2d County (applying None of the Hamilton prosecutor. flagrancy scope factors to determine jury would facts dictate that these case). prosecutorial misconduct in habeas necessarily reached a different ver- have dict, confi- they certainly undermine but case, In this there is no doubt that the By failing to correct dence its verdict. prosecutor improperly vouched for Arm- testimony that it should have material credibility; only stead’s is wheth- issue false, committed re- known State vouching er During was harmless. constitutional error. versible closing arguments, prosecutor stated: I’m not sure there among is honor
B. thieves, I- but believe when Armstead he stand, prosecution’s Brady did, violations were took the I you believe by numerous other instances too.... I have exacerbated heard no evidence direct -notably or circumstantial improper prosecu- contradict what misconduct— Armstead said. I vouching credibility for Armstead’s believe him and sub- torial mit you should importing and the of facts not in evidence believe him.... pay price testify. Witnesses I into has nev- closing argument. This Court before, er met you Armstead know unambiguously stated its disdain of but prose- something there’s real genuine about vouching credibility. cutorial for witness people.... our Carroll, See United States *55 (6th Cir.1994) (“We
1389
cannot overstate
at
way
J.A.
3920. There is no more direct
disapprove
the extent to which we
of ...
to vouch
a
credibility
for witness’
than to
improper vouching by prosecutors.”). Our
“I
In
assert
believe him.”
United States v.
contempt
prosecutorial vouching
for
stems
(6th
Bess,
Cir.1979),
547
808,
2597,
501
111
U.S.
S.Ct.
115 L.Ed.2d
alternative evidence that carried
po-
less
(1991).
720,
Indeed, five of the six Jus-
tential to inflame and prejudice
jury.
Payne majority
tices
joined
wrote or
One can comprehend the relevance of this
concurrences,
separate
reiterating that the
kind of
during
material
the sentencing
Court’s holding applied only to the sen- phase where the sentencer needs to re-
tencing phase
capital
trials. See id. at
spond to
specific
“the
harm
caused
880,
(O’Connor, J.,
548 circum- In these deadly effects. its Armstead of informant jailhouse and felon ed transforms neglect stances, in judicial results credited; vouching be can to consti- up- accomplice as an an into system stead justice of Arm presentation “our prosecutor’s transgression. standing member tutional for allows speculation the factual people”; evidentiary imaginary of the creation II. testi- Armstead’s undergird to
predicate appel- and his trial claims that also Byrd pre- impact evidence the victim mony; and of violation in ineffective were counsel late every Armstead grant to jury disposes I note Initially, Amendment. Sixth understandably, it, the doubt of benefit defaulted procedurally has Byrd that the dam- pay for someone make to seeks appel- and of trial assistance ineffective his this family. In Tewksbury age done claims, those therefore and counsel late of outcome in the context, confidence review.1 for federal preserved are claims is, seriously un- be, and must trial Byrd’s claims, it Byrd’s of merits Turning cannot, con- good in One dermined. lack of them the bulk that apparent is constitu- science, such substantial blink at failure of However, given merit. comprehension full impropriety tional Decker, 28 State v. appeal. See on Ohio direct on primarily relies majority 1. 647, 3n. Cole, 649 & N.E.2d 502 2 v. Ohio St.3d State decision Supreme Court’s 1982) by the 1986). cited (Ohio cases (Ohio All of the 169 443 N.E.2d St.3d Ohio consistency supposed de- Byrd procedurally regarding the majority that its conclusion after 1990— of trial coun- Cole rule are clarity assistance of his ineffective faulted only proce- state sought to vindicate It settled Byrd after sel claims. well “adequate” post- rights are deemed state under dural bars support Amendment Sixth given ¶ force judgment are 203- state’s at See proceedings. Ante conviction Thompson, 2546, v. by See Coleman by courts. ambiguous federal statements 204. Given these 115 S.Ct. Court, 111 U.S. certainly 501 can we Supreme the Ohio (1991). adequacy determi- This 640 L.Ed.2d was suffi the Cole rule not conclude be procedural rule requires a state nation justify de and enforced ciently established "firmly established actually enforced ineffective assistance Byrd's claim of of fault Smith, 785 Maupin v. regularly followed.” event, extent trial counsel. of Cir.1986); Georgia, Ford F.2d defaulted, it is was claim counsel his trial 423-24, "cause[dj” by the the default clear that hand, (1991). the Ohio On one L.Ed.2d appellate counsel. Byrd’s ineffectiveness Cole that concluded Supreme Court Further, See, Gravley, e.g., judicata a defen- when res barred claim is recognized has itself given that counsel, dant, fails represented new procеdural frame of Ohio’s the murkiness of ineffective appeal claima direct raise as of ineffective presenting claims work for resolved counsel that can of assistance counsel, Manning v. appellate see sistance rec- outside Without reference (6th Cir. Alexander, 881-83 F.2d However, one at 170. ord. See N.E.2d 1990), the Murna- conclude we cannot Ohio Cooperrider, the year State later until clearly articulated han rule—not held: Supreme Court fol sufficiently established 1992—was the doc- fear that no Appellant have should Byrd’s in consideration to bar our lowed from prevent him judicata will trine of res Thus, ir counsel claims. appellate effective assistance raising the issue ineffective *58 resolution Supreme Court’s respective of the hearing. As postconviction in a counsel Cir.1998), (6th Mohr, F.3d 938 163 Carpenter taken, appeal was long as no direct nom, v. Car Edwards granted sub rt. ce not was incompetent counsel claim - 444, -, 145 120 S.Ct. penter, U.S. appeal, adjudicated on a direct raised 362, (1999), Byrd’s appellate ineffec L.Ed.2d adjudication of judicata does bar res "ade an not barred are claims tiveness proceedings. postconviction this issue bar, and therefore procedural quate” state 1983) (internal 452, (Ohio 454 448 N.E.2d any pur for as "cause” properly serve can omitted). Shortly af- and citation quotations ineffectiveness default ported ap- seemingly opinion Cooperrider, in an ter apparent from Finally, as should claims. Ohio principle, Cooperrider plying the of the merits following discussion an the merits of Supreme Court addressed claims, prejudiced clearly claim, he Byrd’s counsel of trial assistance ineffective assistance. to receive effective the failure raised was not the claim after it noted that
549 Byrd’s object trial counsel to to wide- outrageous prosecutorial speculation as to spread prosecutorial misconduct, swpra see a defendant’s purported motive alleged- I, Part Byrd’s failure of appellate ly committing murder, or the where- counsel to raise pertaining issues to prose- abouts of key unrecovered evidence. cutorial misconduct and the credibility of While the failure object to apparent testimony, Armstead’s it is clear Byrd prejudicial error may predicated often be was denied his Sixth right Amendment upon trial strategy, Strickland, see effective assistance of counsel. U.S. at 104 S.Ct. there is no acceptable justification tactical for silence
A. on these issues. If this case did not so indispensably depend on the testimony of apply We a two-part test to determine individual, one the substantial deference whether a criminal defendant was denied the Constitution affords criminal defense First, effective assistance of counsel. we lawyers might encompass the inaction of ascertain whether counsel’s performance Byrd’s However, counsel. in this case—on deficient; was professionally second, we these facts—the failure even to challenge determine whether perfor deficient such serious damaging prosecutorial prejudiced mance the defendant’s constitu misconduct falls far beyond the bounds of tional interests. See Strickland v. Wash effective representation. ington, 104 S.Ct. (1984);
In
rights.
ment
there
no objectively
rea-
professional
sonable
norm of capital de-
addition,
prejudice
since
analysis
fense practice
suggests
counsel
is essentially identical to the
mate
Brady
should remain mute while a prosecutor
riality determination,
Strickland,
see
engages in egregious prosecutorial vouch-
694, 104
2052;
U.S. at
S.Ct.
see also Tuck
ing and wild
speculation.
factual
See
Prelesnik,
er
754-55
Gravley,
550 has not the state relief and him to entitle claims explore his to hearing evidentiary fair evi- a full and the petitioner afforded falsely con- 1) testified Armstead that: v. Whit- (quoting Ward hearing.”) dentiary of murder the role in Byrd’s cerning Cir.1994)); (5th 1355, 1367 F.3d 21 ley, 2) in- prosecution the Tewksbury; Monte (9th 1180, 1187 5 F.3d Blodgett, v. testi- the false correct to tentionally failed Jeffries is Cir.1993) (“A evidentiary hearing federal actually sup- 3) prosecution the mony; and if (1) allegations, petitioner’s mandatory if to Armstead’s relevant evidence pressed relief, to right the establish would proven, has averred Byrd Since impeachment. not, has of trier fact (2) court the state violations Brady support to facts sufficient reliably found hearing, fair a full and after should have prosecution the because facts.”). the relevant falsely, he Armstead testified known that justi- to facts sufficient certainly raised has is exception an Moreover, even when sub- to further hearing evidentiary thereby an fy are not courts federal inapplicable, claims. discovery stantiate or con- ordering from prevented pre- The hearings. evidentiary ducting request by dismisses majority The that —a just is correctness of sumption unable to Byrd was that since concluding inexorable not an presumption, rebuttable presumption exception to an establish 2254(d) (pro- § 28 U.S.C. See court factual command. afforded state of correctness (West must “establish 2254(d) petitioner viding § U.S.C. 28 findings under deter- factual convincing evidence deferred properly court 1995), the district was erroneous” State and, by the consequently, fact mination findings of state to 2254(d) inapplica- exception is §a denying when its discretion abuse did not 1142, Davis, 1147 752 F.2d analysis ble); majority’s Brown v. discovery. further (“To presump- Cir.1985) (6th of overcome however, in its discussion flawed, both is correctness, must 2254(d), petitioner § its of tion of inapplicability convincing evidence discovery determina- establish consolidation the state court presumption of resolution determination its factual tion with erroneous.”). of operation Within issue. correctness discretion,” courts maintain district “sound to prior initiated proceedings In habeas to authority receive significant the Antiterrorism date the effective of federal legitimacy to pertaining 1996, 28 Act of Penalty Death Effective discovery to order This discretion claims. pre courts must 2254, § federal U.S.C. however, be- hearings, evidentiary or hold factual state court correctness sume the allega- “specific when obligation an comes the for under exception unless an findings to be- show reason court before the tions 2254(d) See applies.2 §of version mer may, if the facts petitioner that the lieve 326-27, 320, Murphy, v. Lindh able demonstrate developed, be fully are (1997); 481 138 L.Ed.2d v. Harris to relief.” is ... entitled (6th that he Mitchell, Gilliam 1082,22 286, 300, 89 S.Ct. Nelson, 394 U.S. Cir.1999). apply, exception does anWhen (1969). circum- In these L.Ed.2d allega factual petitioner’s habeas and the duty the court stanсes, “it is relief, him tions, entitle proved, if would proce- necessary facilities provide hold an required court district (em- inquiry.” Id. adequate an v. dures hearing. McMillan See evidentiary Gramley, 520 added); Bracy v. (6th see phasis Cir. 983-84 Barksdale, F.2d 1793, 138 908-09, S.Ct. U.S. Johnson, 120 F.3d 1987); Rector an (holding it is abuse Cir.1997) L.Ed.2d (“[A] federal habeas 562-63 specific discovery when deny discretion discovery and eviden- must allow developed, fully if allegations, factual dispute, factual hearing only where tiary relief); see also petitioner entitle would favor, would petitioner’s in the resolved if 2254(d)). §of former version statutory tors under (listing fac- n. 23 2. See Ante *60 (6th Lynott Story, 929 F.2d from the Hamilton County Sheriffs Office Cir.1991); McDaniel v. States United and the Hamilton County Prosecutor’s Of- Nev., Dist. Court the Dist. Byrd fice. contends that this information curiam). Cir.1997)(per would have detailed contacts in- between mates Armstead, Ronald Jordan, Virgil At least three exceptions to the Marvin Randolph, Robert Jones and the 2264(d) § presumption of ap- correctness prosecutor’s or sheriffs Byrd office. also (i) ply in this case: the fact-finding proce- requested discovery to why determine employed by dure the state court was not Armstead was chosen among jail- four adequate to afford a full hearing; and fair house informants who offered testimony (ii) the material facts were not adequately against him. Byrd asserts that the docu- developed at the state court hearing; and ments establish that the prosecutor’s office (iii) the factual findings made by the state knew Armstead was returning prison, to court were supported by the record. light and shed on any consideration Arm- 2254(d)(2), (8). §§ 28 U.S.C. & Even stead received for his testimony. Without the district court acknowledges Byrd’s adequate discovery in areas, these Byrd discovery requests were consistently re- has not been afforded a full and fair oppor- buffed by Indeed, Ohio courts. Byrd has tunity factually to develop his claims. never been afforded the opportunity to fully documents, discover relevant depose Even if Byrd has not established witnesses, or adequately 2254(d) develop his § exception, he has nevertheless claims. Additionally, several of the “facts” overcome presumption of correctness by found the state court appear to be by averring facts, sufficient which if fully unsupported by the namely that developed, would entitle him to It relief. record — credibility of Ronald Armstead was would be unjustifiably circular for this subject cross-examination, extensive Court to hold that a state court’s find- there no credible ings evidence that were binding, without providing the Ronald Armstead lied in testimony, his petitioner an opportunity to fully and ad- and that Ronald Armstead given was not equately develop evidence which may es- by consideration the State in return for his tablish that the findings were actually er- testimony. roneous. Such a ruling would defeat the entire purpose pre-AEDPA majority contends that August 2254(d) which, § again, presumes, rath- — 1988 discovery provided order Byrd requires, er than the correctness of state with sufficient opportunity develop his findings. appears this Yet exactly However, claims. a close read of the rec- what case, district did ord reveals this order had little effect seemingly determining that the state Byrd’s on ability to obtain the information court findings were binding, rather than he sought. For example, Byrd asserts ascertaining whether Byrd alleged that he filed a “Motion For Release of sufficient facts overcome the presump- in July 1988, Records” and the trial court tion. issued August 5 order in response to that motion. According to Byrd, “[de- The district court abused its discretion sought fense] counsel all available records not allowing discovery and an evidentia- through use of this motion.” J.A. at 279. ry hearing Byrd’s claims of false testi- Thus, despite majority’s claim the mony and suppression. Since record contrary, see ante Byrd at did indeed already supports number of Byrd’s attempt to utilize the August 5 order to claims of error, constitutional it is clear information, obtain but was has, least, thwarted that he alleged sufficient facts attempts. Byrd further asserts he require a full and fair evidentiary hear- filed motions, two additional prior ing Moreover, on his claims. the district July motion, requesting discovery court erred determining that the pre- *61 fore- necessarily correctness
sumption appli- hearing. The evidentiary an
closed of correctness presumption
cability of evidentiary hear- anof propriety
and interrelated, fundamentally yet
ing are two afford- yet to be Byrd has
distinct, issues. conduct opportunity meaningful
ed de- consistently been
discovery, and has hearing. evidentiary an
nied minimum, Byrd should
Accordingly, evidentiary discovery and granted evidentiary specific limited to
hearing before previously made he
requests perti- requests court, to those and
district testimony suppression false to his
nent already exists there Given
claims. Byrd’s conviction
significant consti- bedrock in violation of
was secured process due guarantees
tutional the least fairness, discovery is
fundamental pushes this court before required
that is execu- toward down road
him further
tion. GRAHAM-HUMPHREYS,
Gwendolyn T. tiff-Appellan
Plain t/Cross-Appellee, OF MUSEUM BROOKS
MEMPHIS Defendant-Appel- INC.,
ART,
lee/Cross-Appellant. 98-5971, 98-6098.
Nos. Appeals, States
United Circuit.
Sixth 22, 1999 Sept.
Argued: 6, 2000 April Filed:
Decided Rehearing Suggestion
Rehearing 16, 2000. May Bane Denied
En