Kenneth T. Richey v. Betty Mitchell, Warden

COLE, Circuit Judges. Instead, investigation. Cryer authorized opinion

COLE, J., delivered DAUGHTREY, J., court, joined. apart- to clean the building’s owners in which 688-92), SILER, J., damaged delivered a (pp. ment. owners discarded The opinion. separate dissenting living up which ended at a carpet, room garbage dump. local OPINION police investigation quickly focused COLE, Judge. Circuit Richey. morning of on On the June arrested, Richey was con- T. Kenneth fire, he within was inter- hours victed, to be sentenced executed July chief. On police viewed fire intentionally starting apartment gave arrested for arson and Cynthia two-year-old Collins. that killed tape-recorded police, interview to who maintain innocence. He continues to prosecutor. joined by Cryer and were appeals Following a series of unsuccessful that he Although acknowledging was intox- courts, Richey petitioned in the state icated therefore did remember for a writ of habeas the district court early day much of happened what corpus, request. and the court denied his starting Richey June denied the fire. Richey Be- appeals now decision. paint Because and were gasoline thinner cause errors have under- constitutional greenhouse stored an across unlocked in the reliability mined confidence our apartment building, the street from the sentence, RE- conviction and Richey that the State theorized had ob- VERSE the decision below. green- tained materials from that these However, green- house. the owner I. BACKGROUND house to determine whether was unable approximately at 4:15 On June any gasoline thinner was paint missing, a.m., in the a fire second-floor started Cryer of the and took none accelerants Collins, apartment else- Hope who was greenhouse compare from the with the two-year-old Her where at the time. materials at the fire scene. daughter, alone in Cynthia, apart- July 10, jury grand charged On ment, in the The Fire and she died fire. (1) Richey aggravated felony with: mur- the fire initially Chief blamed on an elec- (2) (3) der; arson; aggravated breaking fan, tric but then asked Assistant State (4) involuntary entering; manslaugh- and Cryer investigate Fire Marshal Robert of a during felony; at ter the commission and Cryer apartment further. arrived (5) day at most child The spent endangerment. ap- 6:30 a.m. and of the court day, Cryer next told investigating. pointed attorneys Richey The to defend two prosecutor’s office that he believed against charges, to which he not pled from the fire had resulted arson. guilty, by insanity, reason of guilty not competent by trial to stand reason Cryer solely his conclusion on his based insanity. Richey trial court The ordered belief that of the burn he patterns some examination, undergo psychiatric found apartment at the demonstrated eventually insanity plea he withdrew his presence of accelerants. He found adjudged competent stand trial. empty liquids. containers flammable In late Richey right waived to a Cryer nothing From apartment, took to be jury, agreed tried before Laboratory the Ohio Arson Crime (“State Lab”) Ohio three-judge panel, under Revised could Arson test for the accelerants, The heart presence nor order Code Section 2945.06. did he Richey was against charge at the end of 30 indictment scene secured his June murder, which, aggravated felony if Hope Collins testified that around 2:00 proven, eligible a.m., made him for the death party wane, as the began to Richey penalty. According to the statute in effect asked her if he could sleep on her sofa that time, aggravated felony at the murder- night, but she refused. Collins testified “specifically er must have intended to Richey offered to steal some flowers person cause the death of the killed[ ]the— for her from greenhouse located across prosecution prove specific must intent street, but’she gesture. declined his person have caused the death Shortly a.m., after 3:00 a friend of Collins proof beyond a reasonable doubt.” up drove to the building and asked Collins 2903.01(D). § The State Rev. Code Ann. go out with him night. Collins told presented concedes that no evidence him that she did not babysitter. have a Richey specifically intended kill Collins, According to Richey volunteered Cynthia Rather, Collins. hy- to “keep eye” Cynthia, as long as he pothesized Richey set fire to the Col- sleep could on Collins’s couch. Collins tes- apartment lins so that he could kill his ex- a.m.,- tified that at 3:30 Cynthia lover, Barchet, Candy boy- and her new care, she went out with her friend, Nichols, Mike who were spending friend. the night together apartment in the below. The fire started at about 4:15 a.m. Five testimony trial established that eyewitnesses testified that after Barchet moved building into the on June (1) emerged onto the scene: repeatedly 15, and that days within a few she and ' “[tjhere’s hollered that a baby in the Richey progressed to a sexual relationship. (2) house”; repeatedly he attempted to Apparently, Richey frequently told Bar- burning enter the apartment building to chet that he loved her and would kill any (3) life; Cynthia’s save proceeded he so far other men she dated. John Butler testi- into building that “he came back out fied that on June he had sex with (4) coughing spitting up”; and and Barchet, Richey and that when learned of police eventually had to restrain him from encounter, he confronted Butler while entering building. The Assistant Fire carrying a knife. Right after the confron- Chief stated that efforts to save tation, Richey by broke his hand punching Cynthia “constituted that of a person who a door. completely was disregarding his own safe- On Richey June party attended a ty.” Conversely, another tenant testified Villearreal, hosted Peggy who lived fire, that upon viewing the Richey boasted next door to Hope Collins. Barchet I “[i]t looks like did a good helluva brought party, Nichols to the kissed him in job, don’t it.” plain guests, view of the other Richey told part investigation, As of its Nichols, that she wanted to date and later n eventually retrieved samples took six of debris Nichols home with her. Several wit- remaining from the fire. nesses testified that Several of those Richey in- was —who samples came from night carpet toxicated that that had upset upon —became learning way first found its boyfriend. garbage dump. Bardlet’s new into the One Richey July witness testified that On the afternoon proclaimed nearly two of. [Barchet], I days out, can’t after the nobody “[i]f fire broke the Deputy else can.” Three other witnesses Sheriff retrieved the carpet testified from the A, Building dump. told them that piece carpet One was recovered resided, subsection which Barchet from atop garbage pile, “was and another going to night. burn” that partially was covered trash. Once re- to—“match” the have even been able

moved, placed in the sher- not carpet in the carpet stayed The thinner found on paint purportedly lot. parking iffs forty no more than purportedly lot—located thinner parking paint deck to three pumps away gasoline feet from the carpet. found on —for weeks, finally taken to the it was before scientific went Yet State’s Similarly, a testing. for Arson Lab State Richey’s forensic unchallenged at trial. from was not removed chip sample wood Gregory for trial L. DuBois expert July testing until apartment Collins’s Engineering. the firm CTL 17, nearly after the fire. three weeks acknowledged that DuBois analyzed by the These were samples by any civil de- “was recommended using gas chromato- Arson Lab State attorney.” In- attorney or other fense forensic which one of State’s grams, stead, DuBois’s trial counsel learned about chemists, Gelfius, at trial as Dan described re- through firm an advertisement that he that allows “scientific instrumentation Trial in the mail. counsel stated ceived migration components differential they that he CTL because adver- “called ... a give hydrocarbons separate experts in arson in- they tised [that] of fin- similar to the identification pattern the one vestigation, [DuBois] [that Basing his conclusions on gerprints.” DuBois, up.” sent CTL sent whose CTL] chromatograms analyzing method of to a formal education was limited bache- peer- published that has nor neither been degree metallurgical engineering lor’s reviewed, that both sam- testified Gelfius partially completed and a stint in business room carpet living from Collins’s ple Although accredited in Ohio as school. balcony her and a of wood from sample reconstructionist, primarily accident thinner, paint that another contained performed “vehicle accident reconstruc- room contained sample living carpet tions.” He had no accreditations arson no traces of detected gasoline. Moreover, although fire investigations. samples accelerants on the other three DuBois was a member the American apartment, clothing and boots from the Materials, Society for mem- Testing band- wore on June or the CTL; solely through DuBois bership was age that his broken hand. covered in the membership had individual carpet’s of the re- Gelfius was unaware and had attended no “seminars group, he garbage dump and then moval the local sponsored by other educational venues or to the lot until he arrived parking sheriffs Similarly, although the ASTM.” DuBois testify He has since acknowl- at trial. Associ- a member of the International that, these edged had he known about (“IAAI”), Investigators ation of Arson his detours, “very con- he would have been to receiving quar- involvement was limited work “probably cerned” and wouldn’t mail, in at the terly publications and missing done case.” been on this trial coun- time he was hired custody links in chain did carpet’s sel, had on he attended no IAAI seminars not disturb State Fire Marshal Assistant investigation. Finally, Du- although fire Cryer, he that the same because believed participated Bois had numerous arson paint living found on thinner was both CTL, in a investigations with he did so However, carpet balcony. room and the “[t]ypically, supporting role: would [he] this turned out to be false: Chief Gohar, investigations] Lab, [of review results the State Arson Mohammed analy- performed that with the chemist who acknowledged and Gelfius have since did would State Arson Lab not—and ses.” resume, chromatogram, DuBois’s which trial counsel had [DuBois] [Gohar] received, had that he worked as indicated show which he [him] standard used and engineer, ar- metallurgical and that his got, what result he which sample training only son-related consisted of two matched which chromatogram.” DuBois courses, two-day neither of which involved no independent testing conducted subject burn patterns. Both samples, nor Cryer did he interview or by personnel taught courses were from the attempt analyze otherwise growth Lab, con- inculpatory State Arson whose spread counsel, of the fire. Trial how- clusions DuBois hired to review. ever, “wasn’t aware that [DuBois] had not Moreover, DuBois admitted that he ad- done any [independent testing] until well mired Mohamed Gohar—Chief of the State after the trial.” trial Although counsel Lab, testing in Arson who oversaw the never asked DuBois perform any inde- case-—and believed that Gohar pendent testing, he “assumed [DuBois] stayed at of technology the forefront just would do more than look at [the] “quite authoritative his At field.” reports Cryer.” Furthermore, when hired, the time he was DuBois believed presented findings DuBois to trial the state fire marshal’s did a office counsel, counsel did not him ask what his job sample analysis better of fire than his DuBois, basis was for those findings. who employer own did. submitted no written report trial coun- Although Richey’s counsel been sel, confirmed that surpris- counsel “was 14, 1986, appointed July on and received ingly nonargumentative with me [and] reports August Arson Lab challenge didn’t me on' I thought what (or any he did meet with DuBois why thought I what I or anything.” did potential until expert) September other Nor DuBois did recall counsel ever asking meeting, 1986. At that Du- according to any problems him about with the' State’s Bois, trial told him that “he was evidence. minimum, interested in keeping costs to a Rather, counsel, admitted trial “once .... and he told that he wanted [DuBois] confirmed that everything Cryer [DuBois] investiga- about ten hours in the initial appeared had done was accurate and to be tion.” Trial counsel did not DuBois ask order, point decided at that not to type of work was necessary what to inves- lines, Reading use him.” between fire; DuBois, tigate according “the subpoenaed State then to testify DuBois given ten hours was to me coun- [trial against Richey. DuBois contacted trial budget, as an implied sel] this was help counsel and in resisting asked his he particular what could afford this subpoena, but he none. received Ac- . spent, to have the time and he wanted DuBois, by cording he was told know I do for ten worth what could hours just counsel that “I’ll have to do [DuBois] of time.” It not until November Consequently, what I have to do.” Rich- 1986 that trial counsel DuBois contacted ey’s forensic at expert testified Rich- sole again, interim and in the no DuBois did ey’s against him, acknowledging trial that By point, further work on the case. this nothing he found with the State’s wrong despite having had idea what conclu- Trial neither conclusions. counsel cross- draw, sions DuBois trial had would presented examined DuBois nor other already put his name on the witness list. evidence. scientific investigation finally began, When his ' informed, trial,' following DuBois contacted Gohar. two When about The went together, through carpet “work[ed] each the full extent to which the had pulled futed that the defendant arriving at prior to the State diverted been Lab, “I responded prior that from the hall to torch- DuBois the fire alarm Arson me told the en- apartment counsel] think and effec- ing [that don’t the decedent’s involving the car- events sequence tively Cynthia tire eliminated chance and before trial.” after fire peting her escape awaken and own Collins would this information asked whether When demise.” acquiescence his have affected would supporting The “unrefuted” evidence conclusions, DuBois scientific the State’s Richey pulled panel’s conclusion that: remarked fire alarm —which even did that at time know if I knew I don’t Cryer, testimony argue —was itAnd raises a investigation. I did this who that he saw the smoke detector noted evidence. problem spoilation wires, ceiling by eight from the its hanging you now having right telling I’m trouble ceiling, when he arrived inches below changes my opinion or not that whether morning after the apartment it. or affects (At trial, Hope fire. testified to Collins looking at this and I’m looked fire —I her belief smoke detector had things together in I at a lot of looked functioning in been connected and reaching my about this fire. conclusion fire.) hours to the prior piece of this you And if take out represent- appeal, Richey On direct I then re-evaluate puzzle, would ed counsel from the Ohio Public De- left about this fire. what’s fender Commission. After reviewed Richey guilty all panel The found record, appellate the trial counsel dis- (except involuntary manslaughter, counts appealable with his cussed the issues su- to aggravat- a lesser alternative

which was pervisor, expressed and his view murder), felony including aggravated ed “representation Richey counsel’s of Mr. felony-murder. penalty At the death sen- markedly had been deficient and hearing, Richey presented an ar- tencing severely prejudiced deficiencies had Mr. ray background of evidence about According appellate Richey’s defense.” He upbringing. had received his first counsel: thirteen, age and had mental evaluation at [My supervisor], personal who is a at mental institu- repeatedly been treated counsel], to my friend of listened [trial Richey A testified that psychologist tions. regarding the prejudicial views deficien- personality suffers from borderline dis- cies representation disorder, [trial counsel’s] personality order antisocial Richey, responded saying Mr. that he the emotional functions at level I eleven-year-old. job a ten- or A social that I should do the could best raising worker testified that suffers from without ineffective assistance “histrionic behavior disorder.” [My supervisor] of trial counsel issues. did not tell me that the ineffectiveness panel unanimously sentenced Rich- arguments I to make wanted lacked ey “Richey to death. It concluded simply not to merit. He told me make purposely specific and with intent caused them .... left me no [he] with doubt Cynthia the death of disa- Collins” and push to that if I were on the ineffective mitigation greed was warranted issues, assistance would Instead, Richey’s attempt her. to save job rating and pleased my be would opined that final panel contention “[t]his time immediately [my suffer. This was not the first disposed the defendant placed juxtaposition supervisor] when unre- had me and others directed

669 tics, in our not to raise I wrong.” office ineffectiveness Villearreal further issues a brief. On earlier occasion that during averred and party, after the I into had to sneak the office after hours ease, Richey “was at fun having enjoy- coun- put ineffective assistance of ing angry himself. He was not about any- argument sel in a back direct appellate thing[, expressed anger and] toward supervisor] it [my brief after had taken Barchet, Candy Mike or anybody Nichols out. else.” appellate Yet counsel averred that “[t]he Villearreal also Cynthia contended that errors made too [trial were counsel] always “was into everything, including egregious completely ignored. lighters. matches and Sometimes when Therefore, I raised ineffective assistance of I Hope drinking and would be coffee and trial appellate counsel as an issue ... but cigarettes, smoking Cynthia grab would relatively did so in a weak I fashion so that our lighters and run her into bedroom.” would not too severe a confrontation Villearreal detailed a number incidents Furthermore, [my supervisor].

with I did Cynthia’s which action failed to comport many not raise the specific instances of with fire safety, including basic one in trial I counsel’s ineffectiveness that Cynthia placed cigarette which a lit be- record, reviewing noted in and did not cushions, tween sofa and also averred that regarded poten- research what I as other according Hope, Cynthia had twice set tially meritorious ineffective assistance beds, using, fire to their respectively, a counsel arguments.” curling cigarette lighter. iron and a Vil- Appeals The Ohio Court affirmed learreal also declared ate that she dinner Richey’s conviction and sentence. v. State apartment night fire, Collins’s (Ohio Richey, Ct.App. 1989 156561 WL smoke alarm was “hanging Dec.28, 1989); Richey, v. WL 1989 Indeed; Villearreal, loose.” noted “Hope’s (Ohio 1989). Dec.28, 156562 Ct.App. By a always smoke detector was un- almost three, vote of four Supreme the Ohio It very hooked. sensitive would Court Richey, affirmed. State v. 64 Ohio go just off when we were smoking ciga- (1992), St.3d N.E.2d 915 595 rehear just rettes or even when oven was on. ing denied 65 St.3d 598 N.E.2d unbooked.” keep So used to Hope (table). Supreme Court U.S. Ohio, According Villearreal, denied certiorari. her knowledge U.S. mystery S.Ct. L.Ed.2d of these circumstances nowas (1993), denied, rehearing U.S. prosecutor Richey’s either or 2401, 124 L.Ed.2d 303. Specifically, counsel. Villearreal averred trial for arson “before point Richey At this retained coun- new murder, spoke lawyer ... [she] [his] sel, who uncovered new and re- Cynthia about Collins’ playing with fire.” experts. tained new scientific Counsel expressed surprise during Villearreal Villearreal, submitted an affidavit from trial, me any ques- “no one asked who trial testimony, claiming recanted her Cynthia’s playing tions about with fire.” that “I Kenny Richey say never heard prosecutor, As for the Villearreal stated anything burning Building’ about ‘A spoke .prosecuting that she “also with the using about Corps Marine tactics to burn [Riehey]’s attorney ... before trial. I building. I exactly don’t recall what I trial, Cynthia’s also him any- probably said at told about [Richey]’s but if I said thing [Richey] specifically about A fire I threatening playing to burn but don’t Building using or Corps about Marine tac- recall.” that the of alco- tographs presence both casti- showed experts new forensic and paraphernalia scientific conclusions

gated beverages smoking the State’s holic and to them DuBois’ accession fire, that evening surmised and the fact that on the incompetence. professional amounted had and some of her friends been Collins Custer, in fire recon- specialist Richard marijuana evening, that Custer con- using struction, that —even testified caused likely by that the fire was cluded samples— tested when the State that carelessly cigarette discarded “un- based on conclusions were Cryer’s smoldered, hours, for several between the First, Custer principles.” sound scientific couch. living room cushions also pattern the burn could opined that Ph.D., a Armstrong, chemist Andrew that occurred from fire resulted have scientist, and forensic echoed Custer’s con- theory that naturally, Cryer’s and Reviewing the State’s raw clusions. pattern and location pour accelerant’s applying also what believed data —and gallons use of ten required have would contemporaneous scientific stan- to be Second, that the testified of fuel. Custer Armstrong concluded “there deck— patterns on the irregular burn dards — ignitable is no evidence an identifiable that accel- Cryer which believed indicated any of from the liquid samples fire simply caused erants were used—were Indeed, The sample elaborated Cus- scene.” of wood obtained intense radiation. ter, or not accelerant had been balcony paint whether from the revealed thin- used, spread down- fire would have ner; sample from the chromatogram ward, accelerant evidence of pattern not “even look close” to the did by the destroyed gaps would have been thinner, paint with associated instead Third, discounted itself. Custer fire only turpentine, occurs revealed which nat- use was Cryer’s belief accelerant type in the used to urally of wood con- noting the fire’s speed, evinced patios. purportedly pattern struct re- fires common in res- spreading are rapidly vealing paint carpet, opined in the thinner furnishings and room with modern idences conclusively Armstrong, did not indicate Cryer’s Finally, Custer dismissed sizes. thinner, paint as it also consistent for the of the smoke state explanation common such as furni- products household dislodged prior had been detector-—that Moreover, polish ture insecticide. al- ignition- speculative. apartment’s —as though the State concluded both of high temperature noted that Custer samples aforementioned contained ceiling dis- easily around the could have thinner, paint Armstrong testified that the that was lodged even a smoke detector samples did reveal the two not even same mounted. substance. re- concluded that the fire scene Custer Armstrong also that the carpet testified accidentally experi- fire that flected an set which concluded sample con- collateral possible enced “flashover”—a gasoline peak tained the “five com- lacked radiated heat consequence of fire’s ponent” pattern gasoline. indicative of Al- objects additional to combust. causing though acknowledging that the ASTM had models computer three produced Custer yet adopt peak” standard in “five pro- detailing how fire would 1986, Armstrong that he and oth- testified accelerant-free, gressed spread had it experts employing gas chromatography er have oc- determined flashover would upon knew of relied standard at likely curred in the two scenarios. most Armstrong, “Many Noted Moreover, that time. car- knowledge Hope based time, smoking pho- samples exposed pet Collins’s habits at the have been fire

671 compounds ey’s petition. conditions contain identi- it Although [the refused to con- by the Arson Lab] fied State some duct an evidentiary hearing, the district Armstrong concentration.” stressed cited, court defense the State’s foren- only peak” the “five can standard eliminate conclusions, sic an extra-record article positives, false and that “the elimination of by written forensic Anthony scientist Cafe. positives importance.” false is of utmost Cafe has subsequently averred that carpet To the extent that the did reveal district court “miscited misunderstood gasoline, Armstrong, elaborated it would my published articles” and that “most of gasoline evaporated, have been that had the world’s leading forensic scientists in impossible and would have to de- been this field would be if they horrified saw the gasoline termine when the had reached the chromatograms used convict Kenny carpet. Armstrong agreed carpet that the Richey.” Cafe warned that Kenny “[i]f gasoline could have absorbed from the Richey were on the executed basis of this recall, which, parking was located lot— evidence, scientific then these chromato- gasoline near pumps carpet which the —on grams will documents, become historical had Finally, rested for three weeks. Arm- by examined all over scientists the world strong problem touched on a broader and used to just show how wrong forensic methodology State’s that undermined evidence can be.” its samples conclusions: no control The district court appellate certified for compared been with the tainted ones. eight grounds review of Richey’s for relief. 1994, Richey In April moved to reopen Richey timely appealed, and we added his appeal, arguing that he lacked the ef three claims to the certificate of appeala- fective appellate assistance of counsel. bility. Included in the certificate of ap- by His motion was denied the court of pealability is the question whether there appeals, by which was affirmed the Ohio was insufficient Richey evidence convict Supreme Court. See State v. Richey, 73 of the crimes with which he was charged (1995). 523, Ohio St.3d N.E.2d 344 653 tried, or as well as whether he suffered Richey’s petition postconviction relief ineffective counsel. assistance of by was denied and appellate the trial courts, State v. 1997 Richey, WL 722782 II. ANALYSIS (Ohio 1997), Ct.App. 18, Nov. and denied by Court, review Supreme the Ohio We apply the familiar habeas rules. Be- 1467, Richey, 81 Ohio St.3d N.E.2d cause petition was filed after (Ohio 1998) (table). Mar. Rich 24, 1996, April it falls under the restric- ey’s second postconviction petition state imposed tions by the Antiterrorism and similarly by ap denied the trial and (“AEDPA”). Penalty Effective Death Act courts, pellate Richey, State v. 2000 WL 320, 326, v. Murphy, Lindh 521 U.S. (Ohio May 2000), Ct.App. (1997). 138 L.Ed.2d AED- further again by review was denied requires respect any PA that we determi- Supreme Court, Richey, State v. by nation made court the state unless it: (Ohio Ohio St.3d 736 N.E.2d 25 Oct. (1) contrary to, “was or involved an unrea- 2000) (table). of, application clearly sonable established law, Federal as determined court, Su-

Advancing to district federal Court,” (2) preme “was based on an petition filed a for a writ of habeas corpus, unreasonable determination of the facts in alleging that both his conviction light and sentence were tainted presented constitution- al errors. court The district denied Rich- court proceedings.” U.S.C. 2254(d)(l)-(2); required prove, to v. whether the State was also Williams

§§ see crime, Richey U.S. of the that Taylor, 529 as element (2000). these con- Within L.Ed.2d kill the victim. intended to straints, le- the district court’s we review novo, may we upset de but

gal conclusions Felony Aggravated a. Elements only they if were determinations its factual Murder Coyle, v. 261 F.3d clearly erroneous. Lott fire, At of the the statute at the time (6th Cir.2001). 594, 606 issue provided: (B) shall cause the person purposely No Sufficiency Evidence of the A. committing death of another while or prosecution The heart commit, fleeing to or while attempting the basis for his against —and committing after or immediately at- that he committed death sentence —was aggravated commit ... ar- tempting to murder, felony pro which is aggravated .... son arson § Code 2903.01. by Ohio Revised hibited ment the claim has been kill ute, but actually died aggravated Richey argues that to convict defendant Cynthia. the State that on the here, intended to felony (in merits, is Richey actually this required murder procedurally case, and also kill the disputes Cynthia under introduced no prove person intended to urges this defaulted. person the stat Collins), that the argu who that a found to gravated (D) death of another.... aggravated murder case is instructed (B) commit of this section No person person murder any ^[*] who commits or offense shall be convicted intended unless may ^[*] listed in If a he is be ^[*] to cause the inferred ... jury in specifically attempts division ag- have intended cause death of procedural a discussion of the de Because during is person who killed com- in an understand requires fault of, commit, attempt to or flight mission merits, discuss the mer ing of the we will attempt from the commission of or of the claim first. its offense, jury also commit the shall 1. Merits be inference is instructed non- conclusive, rejected Richey’s may

The district court inference statutory argument, ruling intent, “this claim determining in considered that it cognizable habeas court is a federal all to consider evidence introduced it is one on state law.” touching purely person’s prosecution indicate the holding, the court In so district misunder person indicate intent and According stood claim. to Fiore determining lack of intent whether White, 121 S.Ct. U.S. the person specifically intended to cause (2001), L.Ed.2d 629 the federal constitu killed, person death tion’s Due “forbids a State Process Clause the prosecution prove specific must person a crime to convict without person intent of the to have caused the crime proving beyond the elements of that by proof beyond a death reasonable 228-29, 121 a reasonable doubt.” Id. at doubt. Therefore, ques S.Ct. 712. the state law 2903.01(law § prior O.R.C. effective regarding tion the elements the crime 1996) added). July (emphasis predicates the enforcement B, Although felony subsection mur- Thus, right. federal constitutional statute, look law to der of the mandates no must first to state determine section children") specific of the Mil nexus between the intent order to (emphasis victim, identity added); arsonist and the Jago, see also Clark v. 676 F.2d D, re- (6th (“Ohio subsection which informs the intent 1099, Cir.1982) 1102 has left B, quired under that subsection mandates company jurisdictions of those which jury to be instructed consider whether have ‘felony traditional murder’ of- “specifically the defendant to intended [ujnder - fenses Ohio ... purpose law killed, cause the person the death of and to Mil anis essential element the crime prosecution prove specif- that the must murder.”).1 aggravated ic person intent of the to have caused however, The argues, State that subsec- by proof beyond death a reasonable tion D no bearing has on the elements 2903.01(D) § (emphasis doubt.” O.R.C. aggravated felony murder, and “does not added). plain meaning is unmistak- require anything to do con- —it text, according statutory able: to the jury cerns argument instructions.” This is defendant have killed person must that curious, say First, to the least. it is clear he actually intended to kill. from statute law that Indeed, Ohio courts have interpreted required State is something: to do it is D subsection of the statute this exact required to prove the of specific element Maurer, way. In State v. St.3d Second, intent. there no meaningful is 239, (1984), up- N.E.2d the court difference between requiring the State to held an aggravated felony murder convic- something do requiring that jury tion under D judge subsection because the be informed that the is required State jury instructed the that it had find something. do While the second formula- beyond a only reasonable doubt that not articulate, tion requires more words to its did the Mil the defendant victim in the practical effect is identical. Nor it fath- (a course of a felony Mdnapping), also but omable, as the State suggests, Ohio’s present that “there was the mind Assembly General to require spe- intended a specific defendant intention to Mil Dawn cific when intent the defendant was tried Hendershot,” Marie the person whom the by jury, but not when the defendant was charged killing. defendant was Id. at by panel tried of judges. reading Such a 779; Brewer, see State v. 1984 WL 6695 would mean the elements the crime (Ohio 1984) Ct.App. July *3 (affirming can change depending upon who the fact- jury conviction where the was instructed dichotomy finder is.2 Because such a specifi- determine “whether defendant irrational, would unconstitutionally be cally Tewksbury’s intended to cause are to embrace interpre- unable the State’s death,” Tewksbury person where was the tation. I.N.S. v. Cyr, See St. U.S. killed); Grant, State v. 67 Ohio St.3d 299-300, (1993) 150 L.Ed.2d 347 620 N.E.2d (upholding (2001) (noting that should in- aggravated felony statutes be murder conviction terpreted where the to avoid defendant down an unconstitutional re- “burn[ed] sults). home, children, occupied known to contain Consequently, in order convict a noteworthy sepa- correctly 1. It is Richey argues Ohio also has a 2. that were there tru- ly felony rate a distinction in Ohio law between the ele- statute defen- murder under which proven jury must ments that before a eligible dants penalty are not for a death proven panel those that must be before a specification. See Ohio Rev. Code Ann. judges, trial counsel would been obvi- 2903.02(B). § Richey was not convicted un- ously Richey bypass advising ineffective in der this statute. jury, and with it the extra element that the satisfy. State could to kill specifically felo- intended aggravated crime defendant Ohio, prove must Cynthia.3 State ny murder in intended specifically that the defendant in the nothing language Because kill the victim. supports § the idea O.R.C. 2903.01 D for only provide affirmatively Not does subsection Assembly the Ohio General provides requirement, specific intent apply for intended transferred intent more can way the one murder, felony sole aggravated the State’s requirement. The stat- easily satisfy this of be that the doctrine argument would permissive possibility of a ute creates the intent, derived the com- transferred from jury can by jury, whereby the inference a law, all crimes. mon to intent applies felony, of the from the circumstances infer However, O.R.C. plain text of cause the intended to that the defendant 2903.01(D) § that not indicates the statute actually of killed. person death affirmatively trans- only permit fails to 2903.01(D). § The statute Rev. Code Ann. intent, actually precludes it. ferred it however, inference clear, that this makes First, stated, D previously subsection conclusive, jury must is not already specifies single way which sides, all the evidence on both consider more permitted is to utilize a State by the presented including any evidence approach proving intent: specific flexible to his lack of intent in defendant “to indicate permissible inference. Thus would spe- determining the [defendant] whether for this to read into overreaching Court of the cifically to cause the death intended such approach, the statute another flexible the statute Id. person Although killed...” Second, gener intent. as a as transferred which details onerous means less construction, every statutory al rule of intent of a specific can prove State meaning, has a courts should word victim, the actual even in defendant to kill statutory language superfluous. not render circumstance, does not this the statute —Winn, —, Hibbs v. U.S. change the what State substance (2004); 2276, 2286, 159 L.Ed.2d 172 intended prove: must that the defendant D.A.B.E., Bd. County Inc. v. Toledo-Lucas actually kill the who died. very person Health, St.3d 773 N.E.2d 96 Ohio Brewer, at *3 State v. See WL (2002). case, In this the State (Ohio Ct.App.). phrase

urges us construe “intended Intent b. Transferred person of the killed” to to cause death to cause of an mean “intended the death case, presented In in meaning pro other.” The difference specifically evidence that he intended found, and that the Ohio noting it is worth Collins, Cynthia kill fact conceded Assembly actually General has used argument point during this oral before another” stat phrase “death of in another Instead, the presented state court. felony its ute: traditional murder statute. had a motive to kill 2903.02(B) § Nichols, Candy and See Barchet Mike Ohio Rev. Code Ann. and/or thus, (stating person cause the “[n]o the State assumed that the doctrine shall proximate could intent be used find death another as result transferred that, solely theory purpose "[t]he 3. The State on this the death of relied cause another, statutory to meet bur- Cynthia transferred intent its arises from to-wit: Collins den, dates approach death the intent of the Defendant to cause the Particulars, to the its stat- back Bill of where Candy Mike Nichols.” Barchet and/or ed, regarding Count One indictment of the der, committing attempting aggravated felony not. the offender’s murder. See is a commit offence violence that suggests id. This the doctrine of felony”). language The fact similar apply intent did not transferred to subsec- appears pur not used in this statute D, least, very tion and at the makes clear poseful, suggesting that Ohio chose to use doctrine of transferred intent is here, heightened requirement intent over-arching so as to be automatically felony aggravated deserving make murder applicable in proving all intent crimes. penalty. death gone One Ohio court has further to state that:

Fortunately, go we need not so as to lan interpret statutory far Ohio’s The doctrine [of transferred has intent] per whether guage determine the law applied many years been in Ohio intent in aggravated mitted transferred apparently but has been removed felony murder cases. Ohio courts the legislature application from in ag- insight on issue. themselves offered this gravated murder cases. In revising outset, assumption At the the the that 2903.01(D), R.C. the legislature [enacted broadly doctrine of transferred intent ov at legislature the text The issue]... did erlays all intent crimes is incorrect. “Ohio not remove the of doctrine transferred legislature courts have noted that the state application intent from in determining aware of is the of doctrine transferred or presence purpose absence of to at applying intent times the doctrine and murder, kill in opposed aggravat- as to other refusing apply times the doctrine murder, ed The convictions. limitation A.C.T., statute.” re In 158 Ohio legislative to aggravat- reference 473, (2004). 1098, App.3d 816 N.E.2d 1100 implies point ed murder to a that judi Although there not been many legislature intended for doctrine of pronouncements cial on the issue narrow transferred intent to have applicability applying transferred intent to aggravat in involving situations lesser crimes felony murder, ed all the cases that direct such as murder. ly upon suggest touch it that the doctrine Mullins, State v. App.3d 76 Ohio Sowell, In inapplicable here. State v. (1992) (upholding N.E.2d a mur- (1988), Ohio St.3d 530 N.E.2d 1294 der conviction based on transferred intent defendant relied on Ohio Rev. Code Ann. defendant, though where the initially 2903.1(D) § that in argue transferred aggravated on a charge indicted mur- tent could not his for support conviction der, actually guilty jury found (non-felony) aggravated murder under murder).4 charge non-aggravated on a 2903.1(A). § rejecting In his argument, preceding The state case law—and it is the Supreme Ohio Court drew a distinction only that square- Ohio law at the time between the two subsections’ treatment ly issuq-Hbndicates addressed this intent; transferred D such subsection apply transferred intent does not to sub- incorpo could not be to vitiate read aggravated felony section D of the murder ration of intent in transferred subsection Accordingly, determining statute. what A. id. at In so doing, See 1305. the court aggravated explicitly application required felony limited its of trans elements of ferred intent mur- aggravated to cases murder under were Rev. Ohio Code Ann. broad, quite 4. court's statement this distinction was not relevant for the Mul- seeming not to pri- make distinction between lins Court's decision it focused because aggravated felony aggravated marily murder on difference between murder and However, aggravated murder that the Sowell Court did. murder. Richey, ist. St.3d 2903.1, State Ohio compelled are adhere § (1992). Although sec- the time N.E.2d pronouncements specific Ohio’s issues, many tion the court stat- and state addressed appeals. conviction that, victim ed “The fact the intended Therefore, the State chose because harm, child, innocent felony escaped and that an aggravated for Richey prosecute D) Collins, instead, (subsection Cynthia B and of the stat- was killed does murder aggravated Richey’s legal respon- mur- moral ute, straight not alter rather than (subsection A), pro- prove, sibility.” Id. at 925. The court then der crime, Richey is firmly of the that “transferred intent an element claimed Collins. it Cynthia Critically, to kill law.” cited intended rooted Ohio A only addressing subsection of the eases not address the afore- does The State dealing aggravated mur- statute-cases Instead, case law head-on. mentioned murder, aggravated felony der the case law was ad- claims that which was convicted. byof Ohio Su- disposed dressed Thus, the State turns Court. preme However, assuming even at the eye to the status law blind Supreme brief Rich- Court’s statement filing and the time of conviction ey’s interpret ag- case was meant to relies the Ohio appeal;5 instead statute,6 gravated felony murder in Rich- Supreme pronouncement Court’s court, it has although the ultimate authori- interpretation of its ey’s support law, ty in interpreting state would have prove. elements it needed what novel, a offering been or at least unfore- seen, First, interpretation the statute. Prior if the issue trans- it is unclear case, in holding Richey’s to the both the applied intent as to subsection D of ferred by and truly text of the statute its treatment the statute was decided the Ohio the points strongly Court. The State Ohio courts indicated trans- Supreme applied intent could not opinion ag- of the court’s entitled “Suf- ferred portion Evidence,” gravated felony the where the murder. have not ficiency of We why single there was found a Ohio case explains Court where transferred Supreme applied was arson- intent and where proof upheld the was the sufficient position, support garding unnecessary. its the the inference was Id. 5. In affirmative Phillips, intent, point v. 74 Ohio State does to State and Phillips is not about transferred 72, (1995), 656 N.E.2d 643 and State v. St.3d Coleman, simply speak does not to whether transferred 286, 525 792 37 Ohio St.3d N.E.2d aggravated felony intent can be used in mur- (1988) only ap- D to show that subsection Coleman, der same cases. The is true in judge jury, plicable when a instructs and jury where the court determined that instruc- case, where there that therefore in comported with D tions subsection because jury, applica- intent was no transferred was they jury conveyed any to the inference of support These cases do not the State’s ble. specific intent that was drawn from na- proposition. Phillips, the issue wheth- In ture the crime was nonconclusive. 525 jury proper in an er the received instructions at The N.E.2d 796. cases cited aggravated felony case. murder The defen- impact any do in not the decision before us jury claimed that the should have been dant way, they simply expound upon permis- instructed that inference that it made D, sive in which inference subsection neither permissive, regarding specific intent party suggests even was used in case. at 668. conclusive. 656 N.E.2d The court general determined its more instructions It be noted we certified sufficient, should opted 6. were because never statutory question regarding transferred in- permissive to use D, inference subsection Court, Supreme which tent to the Ohio de- jury was that it never told could make inference, question. an re- and therefore instruction clined to answer

677 judicial charged aggravated prior fairly decision has defendant dis- murder, felony language scope. whereas the closed be within its contrary. suggests Sowell Mullins (internal 266,117 Id. at S.Ct. 1219 citations Thus, interpretation of under the State’s omitted). quotations See Gall v. Par opinion, Court’s Supreme the Ohio (6th ker, Cir.2001) 231 F.3d 305-06 expanding court would have been what (granting corpus writ of upon habeas hold scope time was the known stat- ing that elimination of element of a ute, raising what the United States Su- crime, altering necessary proof by seri- preme Court has described as most supreme the state court violated Due Pro process ous due concern: “that a statute when plain cess Clause both the text of the unforeseeably on its has been precise face prior statute and state court decisions in retroactively judicial con- expanded by otherwise); structed see also Rabe v. Columbia, City struction.” Bouie v. 378 313, 316, Washington, 405 U.S. 92 S.Ct. 347, 351, U.S. S.Ct. L.Ed.2d (1972) 31 L.Ed.2d (reversing (1964). of the Due violative Process Clause a state law conviction rested unforeseeable government It is well settled that judicial interpretation aof criminal stat sufficiency cannot establish of the evi- ute). by resorting dence to an unforeseeable judicial construction of a criminal statute. Accordingly, if the Ohio Supreme Supreme Court United States on, Court deliberated and decided the is Lanier, U.S. now, presented sue before us it would have (1997),7 L.Ed.2d 432 stated what it deemed statute, interpretation been a novel to be the three fair manifestations of the the plain meaning because and the court warning requirement: pronouncements in Sowell Mullins in

First, vagueness opposite doctrine bars en- dicated the what State now urges. Richey’s appeal forcement of a statute which for- Prior to either before the Court, in requires doing Supreme bids or of an act appeals Ohio an Ohio (.Mullins) vague terms so that men actually of common court cited to subsec intelligence necessarily guess aggravated felony must its tion D of the murder meaning and differ as to its an instance application. example statute as of an where Assembly ... of strict General Second the canon construc- the Ohio read out of a statutes, of tion criminal or rule of leni- statute the transferred intent doctrine. Furthermore, ty, warning by resolving ensures fair so to the that the stat extent ambiguity lenity in as to of a criminal statute ute is the rule ensures ambiguous, apply only requirement it to fair clearly warning conduct covered. that is Third, in although clarity by resolving at the met favor of requisite doubts Bass, may by judicial gloss level v. supplied be defendant. United States statute, 348, 515, an due on otherwise uncertain U.S. 92 S.Ct. 30 L.Ed.2d 488 (1971). process Supreme bars from applying Although courts a nov- the Ohio Court laws, a el construction of criminal to is ultimate arbiter the State’s statute conduct that neither the the law to final prior statute nor the fact that However, case, Richey's The noted 7. Lanier Court that in order to 117 S.Ct. 1219. in satisfy warning certainly requirement, although there no fair there was Ohio case pronouncement definitively reading a intent applying need court transferred into D, "fundamentally strong the rule in a with facts subsection there were indications to bar. was to similar” the one at 520 U.S. at that it be read out subsection D. 2. interpretation Procedural Default an appeal points state intent rais- transferred the statute without merits, Aside from concerns retroac- process es serious due this argues Richey that has defaulted It this must be said that tivity notice. press argu claim because failed law what Ohio should cannot decide Court all during appeal. his “In ment direct be, Supreme Ohio Court could and that the a prisoner in which state has default cases certainly transferred intent decide pursu ed federal claims in state court D apply subsection was meant independent adequate ant state statute, in a to be made were its decision rule, procedural habeas review federal However, there was not because vacuum. prisoner the claims is barred unless the judicial pronouncement suggesting single a can cause for default demonstrate be used un- intent could transferred alleged prejudice actual as a result D, prior der subsection and because law, violation of federal or demonstrate affirmatively to the con- case law indicates failure to consider claims will Supreme would have trary, Court the Ohio jus miscarriage result in a fundamental constitutional concern of raised federal Thompson, U.S. tice.” Coleman v. it retroactivity, had authori- impermissible 750, 111 S.Ct. L.Ed.2d tatively transferred intent into sub- read (1991). Richey he did not concedes Therefore, accept D. if we section appeal, the claim at trial or on direct raise Supreme of the Ohio interpretation State’s required as to Ohio this, he was rules. done having opinion Court’s a retroactive novel would have been problem The first would have application of statute which de argument State’s claim was Richey’s clearly rights established violated question faulted is the the state whether Process under the Due Clause. actually independent courts relied law, point The could Ohio deny ground relief on this claim. case, own that stands for prior if the ground independent “only ap- proposition transferred intent rendering judgment court in the case state felony murder plies aggravated cases. expressly judg clearly and stated that its Thus, law, compliance with procedural ment rested on a bar.” apply that the State could not must find Simpson Sparkman, F.3d satisfy intent order to transferred (6th Cir.1996). words, lapsed In other requirement in an specific aggravat- intent claim if survives the state court overlooked felony ed murder case. or not Whether anyway. the default decided claim Court reached issue Supreme Ohio 294, See v. Hayden, 387 U.S. 297 Warden intent to applied of transferred as subsec- (1967). 1642, n. 87 S.Ct. 18 L.Ed.2d 782 D, did tion not meet its burden State if, Thus, contends, the Ohio proving required all the elements Supreme claim Richey’s Court did decide aggravated felony Based murder. on intent, regarding transferred this Court actions, state of at the law the time of his free claim to review the without concern only way Richey that could have been regarding procedural bar. we While constitutionally aggravated convicted of express regarding doubt the Ohio whether felony upon murder would have been Supreme truly Court considered trans showing Richey to intended kill D applied ferred intent as subsection person actually died. Because it is statute, it is clear the Ohio Su undisputed that there was no effect, preme Court considered the of trans Richey’s necessarily this issue conviction support generally regards lacked the intent with sufficient evidence. ferred court case. The stated that “the evidence. To convince us his counsel of a culpability designed imple- scheme ineffective, Richey must demonstrate ment kill the calculated decision to is not (1) that: performance counsel’s was defi- altered the fact the scheme is (2) cient; and that the deficiency produced directed at someone other than the actual prejudice. Strickland Washington, v. (inter- victim.” Richey, 595 N.E.2d at 925 668, 687, U.S. 104 S.Ct. 80 L.Ed.2d omitted). Moreover, nal quotations no at (1984). point Supreme hold, did the Ohio Court Richey encounters a threshold intimate, Richey even had forfeited in asserting hurdle the ineffectiveness of sufficiency chance contest of the his appellate may counsel: rely he evidence supporting his conviction. Be- ineffective assistance as cause to excuse cause United Supreme States Court “ the procedural default of his transferred requires ‘plain statement’ that a [state intent/sufficiency claim, of the evidence if upon adequate decision rests court] the ineffectiveness assistance claim is itself independent ],” ground[ Michigan state v. procedurally defaulted. Ohio 1032, 1042, Ap Rule Long, 463 U.S. 103 S.Ct. 26(B) (1983), pellate 77 L.Ed.2d 1201 Procedure interpret provides must that “[a] ambiguity to mean that the Ohio Su- defendant a criminal may for apply preme Court reached the issue of trans- reopening appeal judgment from the Therefore, ferred intent. there sentence, of conviction and based on a independent ground barring state our re- claim of ineffective appellate assistance of view. application counsel. An for reopening shall be filed ... within ninety days from Additionally, Richey argues journalization the appellate judgment that the ineffective assistance his trial unless the applicant good shows cause for and appellate supplies counsel the cause at filing later time.” needed motion to procedural to excuse his default. Indeed, reopen his appeal “[i]neffeetive assistance of the Ohio courts—in that, supply together can the cause which asserted that appellate coun prejudice, would a procedural excuse de sel was untimely, deficient —was and the Yukins, fault.” v. McFarland 356 F.3d Supreme Court denied the motion as Cir.2004). (6th To demonstrate untimely. Richey, See N.E.2d 345. default, cause the procedural Richey question remains, however, whether must show that both his trial appellate the rule was an “adequate” pre basis counsel were ineffective. must He demon clude federal adequate relief. rule is “[A] strate that counsel was ineffective for regularly if it is or consistently applied failing challenge sufficiency Schotten, the state court[.]” White evidence, and he must establish that appel (6th Cir.2000). F.3d ar late counsel was failing ineffective for gues that the rule does not fall within this argue trial that counsel was ineffective for criterion it provides because no definition failing challenge sufficiency the of the of what constitutes “good cause” for an evidence. appellate Whether counsel was untimely filing because the Ohio for failing ineffective to raise the ineffec meaningful courts neither articulated trial (predicated tiveness of counsel on tri consistently standards nor applied al counsel’s challenge failure to the suffi type of criteria. evidence) ciency turns, course, of the on district court held that Rich whether below appellate counsel would have been ineffective, below, ey had not absent the default defaulted his assis for ineffective failing challenge sufficiency claim “certainly tance because as of the

680 26(B) stead, 277, 74 658 N.E.2d 722 his Rule Ohio St.3d Richey filed [that]

date (1996) (finding good filing cause for a rule had not no ‘good cause’ application, late, day one and that had re regularity neces that was with the yet applied been overnight adequate and inde “because the courier sulted sary to constitute had used failed de appellant’s rule.” See also counsel procedural pendent state General, Attorney application F.3d liver the before the deadline v. 342 Anderson Cir.2003) (“[SJtate cases, (10th filing expired”). In other procedural for good significant cause for vi ineffective courts found rules that bar assistance explanation no what yriien further olations even claims are reviewed counsel (internal solely provided litigant, was healthy degree skepticism.”) soever Frank, omitted); litigant proceeding pro v. was Page 343 because quotations (7th Cir.2003) (same). See, Nitenson, e.g., v. 901, se. State WL F.3d (Ohio 1994) *2 Ct.App. 69894 at Feb. court below. agree with the district We (finding good cause “in the interests of 26(B) Rule measure whether We justice” though “application even was filed regularly “firmly followed established year journalized more than one after we by the of which to be [was] time as his our affirmation of conviction and he applied.” Georgia, Ford v. 498 U.S. gives sworn statements whatsoever 423-24, 850, 112 L.Ed.2d 935 111 S.Ct. application”). his Nor were these incon omitted). (1991) Although we (quotations cases outliers in an con sistent otherwise question directly did decide 26(B). application Compare, sistent White, did “the state we observe McCarter, e.g., State v. WL courts have not achieved consensus (Ohio 12, 1993); Ct.App. Aug. State v. cause’ to excuse ‘good what constitutes (Ohio Klein, Ct.App. No. 49260 March 26(B).” with Rule Id. non-compliance 1994); Wright, with State v. 1994 WL at, certainly true and even 751. This (Ohio 29, 1994); Ct.App. July after, required time when (Ohio Fields, v. No. 95 CA-08-048 26(B). reopen under to file his motion 21, 1994). Thus, Ct.App. April we find Mason, v. 325 F.3d Mitchell Cf. (6th Richey’s challenge to the effective Cir.2003) (“[I]t is the Warden’s bur of his appellate pres ness counsel rule was al den demonstrate erved.8 firmly regularly ready established and time the in Richey’s as of the state court We now turn to the merits of followed rule.”). instances, In some ineffective assistance of counsel claim as voked to excuse most mi procedural courts failed an excuse his default. The deficiency Richey’s appellate caused circumstances nor of violations control of beyond litigant shortcoming: both counsel stems from same See, lawyer. e.g., they grasp State v. failed to Win the State did not, 26(B) constitutionally we that Rule did entitled 8. Because find to counsel'—such that case, adequate appellate constitute state ineffective assistance of counsel ground deny noncompliance his claims ineffective assis- could serve cause excuse counsel, 26(B). appellate Although tance of do not reach with Rule our decision in Wilson, question (6th Lopez whether ineffective assistance of 355 F.3d 937-38 Cir.2004), appellate could itself serve as cast doubt on whether White’s comply holding "cause” to would excuse failure survive the more deferential Schotten, AEDPA, 26(B). required by Lopez In White v. 201 of with Rule standard review Cir.2000), (6th we held that been en F.3d 752-53 has since vacated and banc review is Wilson, 26(B) proceedings pending. Lopez part constituted the 366 the of still See v. F.3d (6th Cir.2004). appeal during a direct which defendant is 430 — Cir.2000) (and, indeed, prove (resolving had not even at- split circuit in defen- prove) Richey specifically to tempted favor, dant’s holding then coun- Cynthia to the death intended cause of objection sel’s to failure raise the was defi- Collins, as required by aggravated the cient because he “should have realized that felony murder statute. [practice at atwas least issue] consti- tutionally suspect” result, a “[c]oun- —as to failure understand the ele sel’s objected point failure have at any of the charged ments offenses and hold the is inexplicable, and can perceive we proving State to those elements is among possible strategic reason for such fail- a basic responsibilities compe most of ure”); Bass, see also United v. States least, tent counsel. “At the defense coun (5th Cir.2002) F.3d 327-30 (finding sel in criminal a case should understand that appellate counsel was for ineffective elements the offenses with which his failing challenge sufficiency on direct charged client display is and should some appeal when defendant’s conduct fell out- appreciation of recognized defenses statute). side DuBois, It Scarpa follows with even thereto.” 38 F.3d (1st Cir.1994). greater force that both The circumstances Rich when text and ey’s magnified obligation precedent compelled conclusion, counsel’s elements, understand the because his con the conclusion would have gutted, as a aggravated felony viction of murder sub law, matter of primary charge jected just imprisonment, him not but to sentence, death counsel was for deficient execution. failing to it. raise thing It would be if one counsel had Having established both trial grasp question failed to a subtle of statuto- and appellate deficient, Rich were ry interpretation or had failed to raise an ey must also prejudice, demonstrate issue that would have been uncovered showing which is straightforward in this only jurists. However, the most astute ease. already Because we have deter above, as we explained the time Rich- specific clearly mined that intent was ey’s appeal trial and the time —not requirement and the State failed to meet Supreme ruling Court’s —both requirement, Richey has demonstrat plain judicial text the Ohio Code and the necessary ed prejudice from the interpreting ag- decisions indicated that claimed By failing violation of federal law. gravated felony required specific murder challenge sufficiency of the evi intent, and that the doctrine of transferred dence, trial counsel allowed the intent was unavailable to the State. See convict and sentence him to death States, (1st Prou v. United F.3d satisfy for a in which it crime had failed to Cir.1999) (“Where, here, attorney as Although one of the elements. the State fails to raise an important, obvious defense may have been able to apply doctrine any imaginable strategic without or tacti- crimes, of transferred intent for other such omission, perform- cal reason felony manslaughter or perhaps even ance falls below the standard of proficient murder, aggravated the State chose representation Constitution de- charge Richey felony mands.”). aggravated Indeed, held that coun- fire, murder. At the time of the sel even failing can be ineffective for aggravated could not legal convict someone raise claim that turns on unre- law, felony question proving solved so murder without long as counsel that an specifically aware unresolved issue defendant intended to kill the exists. (6th v. Coyle, See Combs person actually F.3d who was killed. Had Rich- appearing [trial] chal not record proper a on facts attorneys presented ey’s in post of transferred con- application through of should be reviewed lenge statute, Richey D of the Coleman, tent to subsection State v. viction remedies.” con constitutionally been could not have (1999). 476, 483 707 N.E.2d Ohio St.3d murder, felony be aggravated victed of Collins, Byrd v. 209 F.3d See also Richey’s prove not the State did cause Cir.2000). (6th analysis our below will As kill the victim. Fiore intent to specific Richey’s detail, regard- claims illustrate 228-29, 121 White, 531 U.S. handling his of the ing counsel’s ineffective (2001). by failing And L.Ed.2d 629 depend entirely almost scientific (and this trial counsel’s ineffective raise trial outside the record: on evidence ness) again appeal, appellate counsel on (1) testimony DuBois, namely, who relief. deprived Richey dispositive oversight, trial counsel’s limited explained by clearly his attor Richey prejudiced was (2) supervision, engagement; and the testi- Thus, procedural ney’s deficiencies. counsel, mony which illustrated the of trial default of transferred intent/suffi thereof) (or lack which he de- process ciency claim is excused because DuBois, as over- cided to hire well his his trial and ineffective assistance both thereof) (or lack the course of sight over appellate counsel. (3) investigation; scientific and DuBois’s con- Supreme Court Because the Ohio testimony Armstrong, of Custer and general regarding claim trans- sidered sci- explained type quality who and intent, rule did procedural the state ferred analysis reasonably compe- entific unreview- independent, constitute an performed at the expert tent would however, if it even ground; able state law Thus, Richey trial. time did, appellate trial defaults were and raising from claims on prohibited these (the of ineffective excused cause result appeal. direct counsel) appellate of trial and assistance (inherent in the fact that we prejudice Instead, to raise Richey required meritorious). In ei- find the claim be postconviction during the claims his chal case, Richey’s was preserved ther claim lenge. During postconvic He did so. for review. proceedings, Richey argued tion “wrongfully convicted on basis B. Ineffective Assistance Counsel testimony trial false scientific because challenge implicates his In DuBois, unreasonably upon relied charges, Richey con convictions on all also adequate investigation failed to conduct an trial counsel was constitu tends to call an competent expert and failed tionally way he handled ineffective rebut the false expert to State’s scientific his forensic and his failure to chal expert these testimony,” supported claims evidence of arson. lenge scientific counsel, Du with the statements argues pro that this claim has been Custer, Bois, Armstrong. The state cedurally disputes defaulted and the claim courts evaluated and decided the claim on the merits. Richey, the merits. See 1997 WL 722782 may *3. therefore do same. We 1. Default has argues The State claim 2. Merits Richey been neglected defaulted because noted, previously requires As Strickland As appeal. raise on direct the Ohio Supreme however, demonstrate both deficient explained, Court has resulting “[a]ny allegations performance prejudice. of ineffectiveness based First, DuBois, a. Deficient Performance trial counsel hired based solely promotional on a flier that hap he In performance, order show deficient pened to come across. DuBois un was that counsel’s rep- defendant must show qualified job for the because he worked objective resentation “fell below an stan- field, primarily in another training lacked Strickland, dard of reasonableness.” to do job, into litigation came 688, 104 A U.S. at S.Ct. 2052. “court believing that experts State’s were deciding an actual claim ineffectiveness Moreover, more than reliable he was. judge must the reasonableness of counsel’s minimal training he had received came challenged par- conduct on the facts of the very from people whose conclusions he case, ticular viewed as the time coun- being hired to review. The dissent sel’s conduct.” Id. at S.Ct. 2052. DuBois, about the simply struct or ask DuBois to with months meet another two analysis he had hired investigation in the interim. who no work did Moreover, perform. counsel did him to thoroughly in Third, failed to counsel a from report not ask for written DuBois problem a critical with form DuBois about conclusions, his did counsel explaining nor scientific evidence—that State’s his conclu- ask DuBois about bases dump in garbage housed a carpet had been sions, even if the State’s conclusions or gasoline near parking lot located and on a any gaps. Despite from flaws suffered or (“[D]e- Glenn, 71 at 1210 F.3d pumps. See foren- DuBois’s endorsement the State’s obviously have should fense counsel findings seriously damaged sic anyone a closely retained as worked with —-which counsel, words, in DuBois’s expert insure that expert defense case— might fully surprisingly nonargumentative of all facts was aware “was defendant.”); see also I helpful to me on challenge me didn’t what [and] Affin (3d Hendricks, ito 366 F.3d v. I or thought why thought or I what did Cir.2004) (“When key in a crimi issue anything.” nal the defendant suffered case is whether was a though Even trial counsel not capacity, can think from diminished a scientist, this not him of his should relieve ensuring critical than nothing more to understand the evidence responsibility has as com psychiatric expert the defense’ being used to convict and execute his description a of the plete and accurate Furthermore, .pres- from client. aside surrounding and circumstances facts testimony own expert, entation from his provide possible.... [Failure crime as sufficiently have to be would informed was not a expert information] with this the Stated See experts. cross-examine tactic, gross incompetence.”); trial was (8th Caspiri, 904 F.2d Dees Bloom, (finding at 1273 deficient 132 F.3d Cir.1990) (“[C]ounsel duty to garner performance possessed counsel infor when necessary cross examine expertise that defendant had suffered exten mation expert].”). responsibility This [the State’s child, as but counsel sive abuse “failed here, heightened given that was Kling provide the to Dr. or to information only experts to the not its own called stand who physician [defen other examined Glenn, at but also DuBois. See 71 F.3d dant]”). Although DuBois does not re (“We only can assume defense trial counsel precisely what told member counsel, homework, having not done their him, acknowledge “I he did don’t interrogate prepared [their were me the counsel] think- told entire [that court-appointed experts] about the basis sequence involving carpeting of events very damaging they for the conclusions after the fire before trial.” stated.”). lawyer, That counsel was Fourth, kept trial counsel himself in the scientist, rather than should not have left expert’s all anal- aspects dark about his comprehend him even unable the basics DuBois, ysis. counsel had no idea that particularly science at issue. This is performing rather than his scientific tests custody, so the chain of which is a when analysis conducting or even his own issue, reliability critical legal to the results, being test essentially spoon- the scientific evidence. (who fed the results Gohar was the Fifth, prematurely trial lab). placed counsel Only Arson chief of after on and then failed DuBois his witness list did counsel learn that DuBois trial testing mitigate this mistake. Because performed independent anal- ysis; never in- his dragged hiring counsel had bothered to counsel feet DuBois, Instead, debriefing put he had to DuBois adopted defense witness before he was aware Richey list a sitting rendered duck. Given testify. Skaggs, how DuBois would See testimony witnesses that time-pressure (rejecting F.3d upset at his ex-girlfriend and had performance excuse for counsel’s when the comments, threatening made trial coun- pressure by time was itself caused coun- theory sel’s fire intentional- —that “waitfing] sel’s until the eleventh hour to ly by started someone else—was doomed prepare penalty phase for the and to line Lockhart, to fail. See Foster v. 9 F.3d expert testify aup psychiatric to on [de- (8th Cir.1993) 722, 726 (presentation of behalf’). prob- fendant’s] This became a alibi defense did not excuse counsel’s fail- lem, against using as once decided counsel possibility ure to investigate that defen- DuBois, subpoenaed him to testi- in dant rape impotent, case was given Nor, fy point, on its behalf. at this did alibi “[defendant’s] defense was vulnera- quash or attempt subpoena counsel vulnerability “[t]he of the alibi de- ble”-— testimony, otherwise contest or even fense shows the unreasonableness of the cross-examine DuBois when he testified. attorney’s failure to investigate further Finally, any failed counsel to offer com defense”). present impotency course, peting scientific evidence. Of it reasonably And even if counsel had be- always not the case that “counsel must merit, lieved that this defense had just looking experts continue because not could have made an informed choice he has gave one consulted unfavora reasonably investigating without the alter- Dees, opinion.” ble 904 F.2d at 454. Soffar, natives. See 368 F.3d at However, testimony of Custer and (“[A]n actual failure to investigate cannot that, Armstrong it in makes clear even by hypothetical be excused a decision reasonably diligent a attorney would results.”). to use its unknown have found to attack the witnesses State’s screen, super Trial counsel’s failure “[w]here conclusions. And there is sub vise, engage left Richey DuBois stantial contradiction in a given area “a body little more than warm awith expertise, may vital in affording effec name,” prefix attached to his Skaggs, 235 tive to a a representation defendant at (quoting F.3d 273 n. 3 Ramdass criminal case for counsel to elicit expert (4th Angelone, 187 F.3d 411 n. 1 Cir. testimony rebutting expert the state’s tes 1999) J., In (Murnaghan, dissenting)). a timony.” Mabry, Knott v. 671 F.2d evidence, case anchored scientific (8th Cir.1982). Nor was this a case subject failure to meaning evidence to which counsel would have had to uncover testing ful adversarial defi woefully science, an expert willing spew junk Moreover, we cient. are unable to articu Armstrong because and Custer both professional why late sound reason agreed that the scientific standards pre argues did not do so. The counsel dissent vailing seriously 1986would have under obligated provide that counsel was Du- results, mined the State’s and both testi potential witness, Bois’s name as they fied that would have been available to prosecution’s that the use of the defense’s apply such standards. See v. Dret Soffar expert does not violate defendant’s ke, (5th Cir.2004) (“As F.3d rights. agree While we during was made evident state habeas rights were simply not violated because proceedings, ... defense counsel would witness, the State used DuBois as its own not have had to far look to find ballistics given expert provided testimony who have we believe that context here— could defense.”). to aid single expert where defendant had highlighted independent Armstrong State’s conducted who witness —the accepted methodology, the witness for use use and then became failure to analysis any cross-examina expla- side without groups, other and eliminate other control failure a massive tion—there was nations, likely a few—would name handling expert wit in his the defense’s adopt led the factfinder conclude that Accordingly, we must ness. understanding the science. was “outside the performance counsel’s Armstrong similarly ex- Custer competent as range of professionally

wide refutation, that the scien- plained, without Strickland, U.S. sistance.” they upon tific standards which relied were conclusion 2052. The state court’s 1986, leaving accepted in little widely contrary was unreasonable. that counsel would have been able doubt competent expert had he bothered find a Prejudice b. Alabama, Horsley to look for one. See prejudice. proceed measure We (11th Cir.1995) (“[T]o 45 1495 F.3d a defendant prejudice, In to show order investigate failure to prove prejudice ais reason that “there must demonstrate failure a certain kind of produce and that, er but for counsel’s probability able witness, petitioner a habeas must expert had rors, would have a rea the factfinder demonstrate a reasonable likelihood Combs, guilt.” doubt about sonable ordinarily competent attorney conduct- probability at 290. “A reasonable F.3d investigation ing a reasonable would have to undermine probability is a sufficient expert one found an similar to the eventu- Foster, outcome.” in the trial’s confidence Indeed, ally produced.”). both Custer and determining at In whether F.3d 726. Armstrong they have averred would consider the prejudice, was we “must there time, they at experts served as the had judge the or totality of the evidence before Strickland, by counsel. jury.” 104 been contacted U.S. is com prejudice inquiry 2052. The experts’ on the These attacks State’s this trial plicated slightly in case because all the more evidence would been twofold: deficiencies counsel’s errors were powerful given the absence of corroborat- of hiring handling and plagued both his ing physical Richey’s evidence. Neither scenario, however, DuBois. Under either boots, clothing, bandage revealed overwhelming. prejudice evidence of empty presence accelerants. No canis- to find a counsel made effort Had liquids ters of flammable were found at or blindly qualified expert, hiring rather than And around the scene. the owner of DuBois, the would have had the expert neighboring greenhouse' which the —-from undermine expertise and wherewithal State theorized stole acceler- fire was State’s evidence whether ants —was unable determine Armstrong caused arson. Custer anything missing. was litany in the highlighted irregularities Furthermore, if initial even counsel’s de- First, Custer State’s scientific evidence. in DuBois coun- hiring proper, cision was explanations for the revealed alternative handling DuBois sel’s ineffective result- finger Cryer circumstances that led ar- First, Richey. ed prejudice in counsel’s son as the and surmised that the culprit, DuBois, arbitrarily delays hiring and his fire was more consistent with accidental limiting the hours DuBois could work Second, Armstrong opined that

outbreak. understanding type what of work without of an “there is evidence identifiable case, Du- needed to be done made ignitable liquid samples from Moreover, legwork more on dependent fire the blunders Bois scenes.” whose conclusions he The record indicates that experts, competent State’s Moreover, expert fully arson already accept. super informed and predisposed — vised, using the him available to dis- methods procrastination counsel’s forced him at the time have all trial —would but potential before close DuBois as witness evidence, demolished the State’s scientific doing he knew whether so would benefit large part against with it a his client. The result was that the State Foster, Richey. See F.3d at (finding only testimony present able to prejudice attorney because “[i]f scientists, use its own but also further, investigated he would have discov Bloom, own him. expert against Cf. objective ered medical casting (finding prejudice F.3d at 1278 when “[ex- substantial story”). doubt the victim’s pert]^ report, acknowledges which he now evidence, presented other inaccurate, permitted prosecution course, which demonstrated mo Kling’s testimony against to turn [de- tive, means, opportunity. But fendant]”). prejudice inquiry is not the same as the Second, super- trial counsel’s failure to sufficiency analysis of the evidence or the him vise DuBois left unaware DuBois analysis might that a court perform when being from spoon-fed results deciding a for summary judgment. motion State, rather than conducting indepen- As the Fifth Circuit explained, has analysis dent of the data. Counsel’s fail- need not jury find “that reasonable could engage possible ure to DuBois meant not have reached the same if coun verdict in the deficiencies State’s evidence were sel had performed effectively.” Johnson explored, wholly never and also him left Scott, (5th v. 68 F.3d 109 n. Cir. unprepared challenge State’s evi- 1995). Richey “need not show he dence or to cross examine own expert his Instead, could not been have convicted. as necessary. later became See Skaggs, only he need undermine our confidence in (prejudice 235 F.3d at 274 when “defense Foster, the trial’s outcome.” 9 F.3d at 726. to prepare present any counsel failed Witnesses, moreover, always are not be other meaningful mitigation evidence that an alleged lieved. Just victim’s as testimo might compensated have their for use of ny that raped the defendant had her be unqualified expert]”). [an persuasive came given far less evidence Finally, fully trial counsel’s failure to impotent the defendant was and thus inform about carpet samples’ DuBois her, id, of see physically incapable raping garbage dump excursions at the and park- Richey’s acquaintances testimony ing deprived lot DuBois of all informa- Collins, and Hope who had a motive to conclusions, tion he to draw needed and for downplay responsibility her own her likely made him more with agree death, daughter’s would have been far Indeed, conclusions of the State. DuBois impeachment skep more vulnerable subsequently has indicated that his conclu- ticism absent evidence that the fire likely changed sions would had Combs, he stemmed from arson. See also fully been informed chain of about from (finding prejudice F.3d at 290 de Bloom, custody problems. 132 F.3d at mishandling fense counsel’s of scientific ev 1276 (finding from prejudice capacity failure dis- idence of defendant’s mental intent,” expert close information to given “had acting “purpose with even he been provided though presented this information at other evi “the State evaluation, his original purpose prior time of dence of [defendant]^ conclusions”). Estelle, design”); would Baylor have altered his calculation and (9th Cir.1996) (find intent, procedurally default- transferred 1324-25 F.3d states, Richey majority opinion fail ed. As the from defense counsel’s ing prejudice not raise this that semen found has that he did pursue evidence conceded ure to rapes appeal. of a series did claim trial or on direct of the first at scene defendant, though correctly even de that this is- from district court found not come had made detailed confession As procedurally fendant sue was defaulted. Tarri insufficiency United States v. rapes); “Richey said: did raise an cf. (2d Cir.1993) cone, Court, 996 F.2d Supreme claim to the Ohio from defense counsel’s (finding prejudice only that claim that his although asserted handwriting pursue exculpatory failure to circumstantial solely conviction rested evidence, there was cir though even other dis- Supreme evidence.” The Ohio Court guilt). of defendant’s cumstantial evidence only a sub- cussed transferred intent issue the issue of circumstantial evi- under in- Accordingly, we find counsel’s v. Richey, dence. See State 64 Ohio St.3d of the sole forensic competent handling (1992). N.E.2d Trans- fell far below the wide expert in not one listed ferred intent is of the issues standards, acceptable range professional appealability. in the To the certificate mistakes, grave that absent counsel’s a certifi- contrary, the district court denied probability there is a reasonable issue, and we appealability cate of on this panel have at three-judge would least Therefore, question did same. as to whether a reasonable doubt approached intent can only transferred ultimately the fire that caused the set subpart the certified this court as Cynthia death Collins. appeal

issue on assistance ineffective III. CONCLUSION appellate by of counsel the failure of either appellate question counsel to on raise the holdings our above Rich- Because entitle appeal, appellate direct or the failure of he has ey sought, to all the relief that question counsel to raise the of ineffective not consider or decide his other claims. do of trial failure to assistance counsel for his judgment district court’s is RE- The argue of intent be- the issue transferred VERSED, case is REMANDED and the fore trial court. that a conditional with instructions writ corpus, giving habeas the State of Ohio found, As correctly the district court ninety days attempt retry Richey or faulty assertion is in the of a indict- nature custody, release him from be GRANTED. claim, prior ment which must raised be Rule of Proce- under Ohio Criminal SILER, Judge, dissenting. Circuit course, Richey gets dure 12. Of around majori- respectfully I dissent from the by that asserting barrier that the Ohio ty’s conclusions there was insufficient that Supreme Court reached the issue of trans- against Richey on the charge evidence intent, part ruling ferred but it was of its murder, aggravated felony that this issue evidence, sufficiency on the not as a defaulted, procedurally was not and that Nevertheless, majori- separate issue. handling in his trial counsel ineffective was ty accepted Richey’s argument of has witness, expert of his DuBois. skirting procedural by finding default failing issue, that trial counsel was for insufficiency ineffective The first of the evi- dence, to challenge sufficiency of the evidence due the fact that could issue, under this transferred intent not have been sentenced to death for the for aggravated felony murder under counsel was ineffective charge appellate failing § through Ohio Revised Code 2903.01 to raise ineffectiveness of trial However, point. majority correctly counsel issue The states that defaulted, procedurally was also because of scope of review under AEDPA requires by Richey timely reopen the failure that we uphold the decision of the Ohio in the under appeal Ohio courts Ohio Rule (1) Supreme Court unless it: “was con- 26(B), as the Appellate Procedure Ohio to, trary or ap- involved unreasonable the motion Supreme Court held that was plication of, clearly established Federal untimely. Nevertheless, assuming that it law, as determined the Supreme untimely application was not barred (2) Court,” or based on an “was unreason- 26(B), under Rule as the district court able determination the facts in light found, I would still find there was no the presented in the State court appellate ineffective assistance of 2254(d). proceeding.” § am 28 U.S.C. I failing for ineffective raise the assis- not certain on of these prongs which point of trial tance counsel on this trans- majority decision, has anchored its it but for my ferred intent. The reason conclu- seems to contrary is simple. Supreme sion The Court Ohio involved an application unreasonable found that the transferred in- doctrine clearly law, established Federal as deter- applied tent “ when it this case said mined by the Supreme Court. It cites doctrine of transferred intent ‘[t]he White, 225, 228-29, Fiore v. 531 U.S. ” firmly rooted in Richey, Ohio law.’ (2001), 148 L.Ed.2d 629 which Sowell, at 925 (quoting N.E.2d held that a criminal state conviction vio- St.3d Ohio 530 N.E.2d lates the Due Process clause of the Four- (1988)). It held that the doctrine of trans- teenth person Amendment when a is con- intent applicable ferred under Ohio victed of a crime when the elements of 2903.01(B). Therefore, § Revised Code proven beyond crime have not been a rea- had counsel raised issue before the Fiore, sonable In doubt. the crime for trial court and it on preserved appeal, the which the defendant was convicted issue would have before the been lost failure possess permit opera- Supreme Court. tion of a facility. hazardous waste The majority admits that the Ohio Su- agreed Commonwealth it had not preme Court ruled that transferred intent proven that basic element. To con- the charge in applicable is under the this case. bar, trary, in this case at the its State met However, essentially it has eviscerated the prove through burden to intent the doc- of power Supreme the Ohio Court to inter- intent, trine of which the transferred pret upon its own It relies statutes. crime, law in time Ohio at the of this as Mullins, language from State v. 76 Ohio interpreted by Supreme Ohio Court. (1992). 633, 769, App.3d 602 N.E.2d 771 majority upon The relies v. also Bouie However, the from language quoted Mul- Columbia, 347, City 351, 378 U.S. 84 of dictum, holding lins is for the was that the 1697, (1964), S.Ct. 12 L.Ed.2d 894 for doctrine of applied transferred intent in a proposition that Supreme the Ohio Court where the was charged case defendant un- retroactively expand could not the criminal 2903.02(A). § der Ohio Revised Code Ob- However, act prohibited Ohio law. under viously, the Ohio Court Supreme did not Supreme Ohio held that its deci- Court it, only feel bound not because it was in sion this followed the law which but it dictum came from lower court. many years preceding had been in Ohio for Instead, Supreme Ohio Court inter- Therefore, Richey’s conviction. the Ohio preted the Sowell case found that in- always Supreme ruling on applied transferred intent had in Court’s transferred contrary cases. tent similar was neither to nor involved 690 19, 25, 357, 279 154 L.Ed.2d clearly es- S.Ct. application of

an unreasonable curiam). (2002)(per as law determined tablished Federal v. From Supreme Williams Court. majority this agree I with the issue 1495, S.Ct. Taylor, U.S. defaulted, procedurally due to the is not (2000), “unrea- L.Ed.2d under of ruled Appeals fact that the Ohio Court clause, application” sonable it and of this claim the circumstances may court not issue a federal habeas trial rec depend on outside the simply that court concludes because writ However, majori disagree I with the ord. judgment independent in its ty performance, on the issue of deficient so applied decision relevant state-court question prejudice not I do discuss errone- clearly federal law established mi except for one as alternative basis Rather, incorrectly. appli- ously or majority er point. The finds nor several unreasonable. cation must also be assistance on amounting rors ineffective did Supreme Court suggest I that the Ohio witness, of the expert the selection and use unreasonable application not make that Du- majority DuBois. The concludes here, nor law clearly established Federal unqualified Bois was for several reasons. It is it to Fiore or Bouie. contrary Parker, However, Skaggs v. 235 F.3d Supreme leave it Ohio up best to (6th Cir.2000), 261, 272 noted that a its own application Court decide “that to a petitioner claim is entitled laws, not unconsti- long it does do so so defense,” has nev competent expert his Esparza, v. tutionally. Mitchell Cf. “explicitly adopted by er been this Court.” 12, 17, 157 L.Ed.2d 124 S.Ct. U.S. Coyle, Campbell Accord v. 260 F.3d (“A (2003) may court not overrule federal (6th Cir.2001). 550-51 The record does holding a view dif- simply state court for support Richey’s allegation not that coun own, precedent ferent from when the its performing sel retained DuBois without best, is, ambiguous.”). from this Court adequate background check. Thus, ineffective appellate counsel was not inexper makes much of DuBois’s academic of tri- assistance raising ineffective ience in the science fields forensic al counsel on issue. investigation, fire appears but the ma- respectfully disagree I also training in-class consisted courses fire Richey was jority on its conclusion that investigation taught by members assistance deprived the effective Office, very entity Fire Marshal’s of his trial. guilt phase counsel at the critique. he was hired There that counsel Appeals Ohio Court of found suggestion in the record that counsel was under was not ineffective Strickland in put on that DuBois either notice 668, 104 Washington, 466 U.S. competent unqualified or as Rich serve (1984). Richey, L.Ed.2d State v. expert. majority that ey’s The infers it (Ohio Ct.App.1997). 1997WL at *3 wrong pro him through to find Therefore, correctly identified because flier, that disqualify motional but does not gov- authoritative Strickland as the counsel Du expert. After contacted claim, erning we must decide Bois and discussed some the facts the its of the application whether Strickland case, follow-up DuBois sent a letter ex “objectively standard was unreasonable.” employer the he plaining services and his Williams, 1495. at 529 U.S. S.Ct. provide. The included would letter It is that “burden show “investigate that fact his business would court the facts applied state Strickland to origin apartment the cause and of a fatal objectively of his case in an unreasonable Visciotti, It “include a to the manner.” 537 U.S. fire.” would visit fire Woodford scene, review of information of hindsight available and delay that counsel’s could preliminary report reports, our have been The Supreme harmful. Court findings.” He also that he estimated could “every has warned that effort [must] in do it ten hours. DuBois listed com his made to distorting eliminate the effects services, pany’s which included fire and hindsight, to reconstruct the circumstances investigations. Nothing in explosions his of challenged conduct, counsel’s and to company profile or indicated resume evaluate the conduct from per- counsel’s either incompetent unqualified he was spective Strickland, at the time.” 466 U.S. Moreover, as an expert. serve DuBois Moreover, 2052. Dr. company indicated his was involved in Armstrong testified that his review of the approximately investigations 400-500 fire data suggests that there were no extracts prior played 1987 and he some role in available to following be tested the State’s alone, all almost of them. In 1986 DuBois is, initial test. That original State’s in was involved 10-30 investigations. arson tests used up Thus, all the extracts. re- on Based it cannot foregoing, be said gardless of how soon could have that the decision to hire DuBois was “ob tests, insisted that conduct DuBois his own jectively pursuant unreasonable” to Strick no tests performed. could have been Although training land. his classroom in Richey alleged has not the State vio- science investigation forensic and fire any lated in conducting laws the course of limited, fairly not counsel could have been Furthermore, the tests. the fact ex- limitations, on notice such aca tracts were not available in did this case inadequacies demic seemed to have been prevent not Armstrong Dr. from later ren- compensated for practical expe with field dering an opinion accuracy Obviously, may rience. there have been validity of the State’s tests. experts out there somewhere who were qualified, better but the law does not re The limitation of ten hours for the work quire throughout counsel to search expert nothing. Richey shows has expert world to find the in best the field not prejudice shown under Strickland. Delo, hire him. See Sidebottom v. spent DuBois testified he more than (8th Cir.1995). F.3d ten hours on case and biggest his majority The fault in also finds counsel’s being limitation was not able to see delay meeting with DuBois and limiting fire carpeting, scene which was investigation the initial to ten hours. alleged result of counsel’s ineffectiveness. However, these sub-claims were never majority also criticizes counsel’s court, they raised were proce- so failure to inform DuBois about the fact durally if defaulted. Even these sub-is- carpet dump- removed from a defaulted, were not procedurally sues ster on a parking gasoline lot located near prevail claims cannot merits. Al- pumps. ambiguous But DuBois was about though delay providing counsel’s DuBois this. In deposition, proba- said he report State’s scientific and data bly knew it. He said: also prevented conducting DuBois from an in- I recall told do me that [counsel] extracts, dependent test has carpeting had thrown out been and—I argued not knew of or counsel should probably he misstated whether or not lifespan have known the short of the sampled told me it had been and then compounds. extracted This is not a situa- dumpster thrown in or in the the thrown attorney tion where an was aware of a it; dumpster sampled. But I did particular rather, risk then ignored this only questionable is a situation where with the benefit know that was some there 692 fire, “impartial” expert a new after failure to obtain carpeting the

handling the upset objectively rather about it. See was not unreasonable. will be [counsel] (4th 1106, 1112 Murray, 947 F.2d Jones v. at this trial. There- also raised Counsel Cir.1991). DuBois the results reviewed counsel fore, withheld it is unclear whether expert the the tests from State’s Thus, from DuBois. information this to nothing agreed with them. There was burden to show Richey has not carried the counsel that the results were indicate to objectively to unreasonable this conduct Supreme has indi not correct. The Court behavior. claims of ineffec post-AFDPA cated that Next, the majority the criticizes fact only of counsel succeed tive assistance will placed DuBois on counsel his witness Cone, In Bell v. limited circumstances. mitigate then the mistake. failed to list 152 L.Ed.2d U.S. not have DuBois’s Although counsel did (2002), the Court stated: obligated he disclose the report, was the name of this witness under Ohio Crimi- however, succeed, [petitioner] For Rules. had a tactical reason for nal He he he do more than show that must disclosing expert, he name of so if test would have satisfied Strickland’s making a not ineffective such dis- being in the analyzed his claim were Moreover, counsel not inef- closure. instance, under first because subpoena for or quash fective failure to 2254(d)(1), § enough it is not to convince testimony. otherwise his The Ohio contest that, in inde- a habeas court its federal Supreme underlying Court discussed pendent deci- judgment, state-court Richey, merits issue. See incorrectly. sion applied Strickland at It indicated that N.E.2d 922-23. Rather, ... must he show prosecution’s expert of a defense does use to the applied Court ... Strickland accused, rights not violate unless objectively in an unrea- facts of his case there is a disclosure of confidential com- sonable manner. attorney munications and the between case, In client. there were no such (internal 698-99, cita- Id. S.Ct. 1843 Therefore, any objection at- problems. or omitted). Richey tions not done that has tempt quash subpoena have would Therefore, I would find that the here. not If counsel think- been unsuccessful. contrary decisions of Ohio courts were ing possibility calling DuBois as a applications or Federal unreasonable witness, name, had list even when interpreted by Supreme law as Court. yet report. not he did have DuBois’s Oth- Thus, I would affirm the decision of erwise, report DuBois filed favorable denying for a petition district court Richey, may counsel been able corpus. writ of habeas to use DuBois. Finally, the majority criticizes counsel failing any competing

for offer scientific screen, or to supervise, engage However, does

DuBois. not have duty just looking experts “continue gave

because the has consulted one he opinion.”

unfavorable Dees v. Caspiri, curiam). (8th Cir.1990)(per

F.2d attorney has

Unless defense reason to objectivity

doubt the of an expert, notes suggestion that “There is no in the making determination, “In the court record put that counsel notice that keep in should mind that counsel’s func- incompetent DuBois either unquali tion, prevailing as elaborated in profession- fied to as Richey’s expert.” serve Howev norms, al is to make adversarial test- er, we have held that the deficiencies ing process particular work in case.” expert imputed can be when counsel Id. counsel adequately has research failed outset, State, At the and the and screen expert witness. See Glenn opinion, argue dissent to this Tate, (6th v. 71 F.3d 1210 n. 5 Cir. right has no constitutional to the “effective 1995) (finding performance deficient be expert.” assistance of an The district cause prepared “we are not to assume that court noted it also that was not unreason Drs. Ramani and Siddal would have been able trial counsel con [to “decline the experts by retained ... defense if expert-shopping duct] further once homework”). counsel had done their expert opinion.” might rendered his Both Thus, counsel owes more his client than be every true if counsel had done passive duty flags to watch for red done, thing supposed he was to have and— incompetence. through no fault of trial counsel—the ex pert simply Moreover, up come short. See trial counsel two waited (6th Parker, Skaggs retained, v. 235 F.3d months after he was a full Cir.2000) (defense expert’s erratic and in month after received the State’s scienti testimony during results, coherent trial was not fic to contact and meet Du- failings to the given attributable counsel Bois. their meeting, After first he limited expert investigation had been recommended initial DuBois’s ten colleagues two and that counsel had doing used hours—-without basis for so. before). But expert Richey argues, Skaggs, See 235 F.3d at 270 defi (finding reflects, and the record handling the failures of cient expert excused “sim Richey’s expert largely were ply caused because counsel believed would not failures of counsel. See Bloom v. worth request their time to additional (9th Calderon, court”); 132 F.3d money Loyd Cir. from the Whitley, 1997) (“[Counsel's (5th Cir.1992) adequately failure to (finding 977 F.2d prepare expert present and then him performance deficient when counsel as a trial witness constitution “wrongly [amounts to] assumed that funds were un ally performance.”). deficient As available and he abandoned what he knew observes, “[i]ncompetence cannot to be an Du important pursuit”). After incompetence.” excuse investigation, Bois’s stunted counsel waited

Case Details

Case Name: Kenneth T. Richey v. Betty Mitchell, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 25, 2005

Citation: 395 F.3d 660

Docket Number: 01-3477

Court Abbreviation: 6th Cir.