*1 to what explanation “any 3553(a) §in the district court listed
factors considered, or these fac- how should have have made a difference tors would received”). he sentence
III. reasons, we affirm. For these OH, Columbus, Spiert, R.
Kenneth Petitioner-Appellant. Ginger MANNING, A. Petitioner- General, Criss, Atty. M. Scott Asst. Of- Appellant, Attorney General Corrections fice of Section, Columbus, OH, for Re- Litigation spondent-Appellee. Shirley ROGERS, Respondent-Appellee. RYAN, CLAY, GILMAN, Before
No. 04-4019. Judges. Circuit of Appeals, United States Court RYAN, Judge. Circuit Sixth Circuit. appeals a district Ginger Manning A.
May denying her 28 court’s decision U.S.C. corpus petition. Because 2254 habeas not “con- state court’s decision was trary application to” or “an unreasonable prece- of’ 2254(d), dent, we AF- see 28 U.S.C. judgment. court’s FIRM district I. Manning’s crime petitioner
The facts of early morning In the dispute. are 8, 1990, Manning shot her hours of March husband, Manning, Todd the head with day he or pistol a small caliber died so later. *2 Todd, 2903.02(A))
Two shooting specifi- § months before Man- Ann. awith firearm Ohio, ning by (Ohio 2929.71). was County, § told Loraine cation Ann. Rev.Code Todd sexually Children Services that 3,1990, July Manning On was sentenced to Todd, molesting daughter. her who was years incarceration for a term fifteen to father, not the biological child’s was forced life for the murder conviction and three to move from the trailer where he was years specification. for the firearm living Manning with and the child. Man- appeal her direct Court ning later became Todd convinced that had Appeals, Manning brought assign- eleven child, permitted molested and she error, ments of of which were con- none later, him to return. But several weeks 8, 1991, vincing to the court. On May Manning Todd admitted that indeed he Manning’s court affirmed conviction and had attempt- molested child. Manning The Supreme sentence. Court of Ohio police, ed call the but Todd threatened her, appeal denied a motion for leave to and saying he kill a would her and her daughter rehearing. motion May if she did went for On Manning so. with eventually got up, bed the child. Supreme She denied a beer, opened a certiorari, and sat down to watch petition thereby for completing asleep television with Todd. After he fell appeal. direct couch, on the room living Manning re- later, years Fours on September bedroom, gun it, trieved a from the loaded 1996, Manning sought re- returned to sleeping where Todd was alleging lief the Ohio trial him in expired shot the head. He 36 hours her conviction and sentence should be set Shortly later. after shooting, Manning alia, because, aside inter she was denied called the police report hap- what had counsel, effective assistance of violation arrived, pened. police Manning When of the Sixth Amendment of the United thought told them she Todd burglar was a States Constitution. The trial court de- who had broken into the house and fallen motion, nied the its decision was affirmed asleep on the couch. him an Thinking and an intruder, Manning shot Todd the head. to the Ohio however, say, She would later that she dismissed. After additional unsuccessful really shot Todd because she had recalled proceedings, Manning petition state abuse, filed past instances which made her seeking the federal district court daughter’s safety. fear for habeas relief under 28 alleged U.S.C. She Manning State of Ohio indicted relief, grounds four including claims murder aggravated with firearm. At the that her counsel was ineffective trial, Manning raised Battered Woman process she was denied due of law and a (BWS) Syndrome pre- as a defense and fundamentally fair trial. The district court expert testimony Lynne sented the petition grounds denied the on all Rosewater, clinical psychologist who had appealabili- and then issued certificate of Manning. interviewed The court ruled ty for the ineffective assistance qualified testify that Dr. Rosewater was (IAC) only. Manning sought claim a cer- witness, an expert as was State’s appealability tificate of from this court as witness, Resnick, Phillip who likewise claims, request to her other but her Manning. had a five- interviewed After Therefore, only question denied. be- day jury Manning guilty found fore us federal aggravated guilty murder of the is whether the district court but (Ohio denying Manning’s erred in ineffective as- lesser offense murder Rev.Code to the facts of claim, principle plies which the district sistance Id. [petitioner’s] case.” as follows: characterized guides our The AEDPA standard right of her deprived Petitioner was claim, the substan- Manning’s IAC but of counsel the effective assistance *3 in is found underlying her claim tive law expert incompe- use of an who counsel’s 668, Washington, 466 v. U.S. Strickland tently presented the “bat- prepared (1984). 2052, 674 104 80 L.Ed.2d S.Ct. in syndrome” evidence tered woman Strickland, that a Supreme held Court support of self-defense. defense assis- alleging
defendant denial of effective Sixth counsel in violation tance of II. Amendment, things: show two must of a reviewing the habeas decision When First, must show that the defendant legal district conclusions we performance was deficient. counsel’s findings novo for clear error. de fact showing made requires This that counsel (6th 585, 414 590 Jamrog, Jones v. F.3d serious that counsel was errors so Cir.2005). De does not ex- novo review guaranteed functioning the “counsel” as tend, however, ad- underlying to the state by the Sixth Amendment. defendant judication. the Antiterrorism Under Second, the must show that defendant Penalty Death Act 1996 Effective prejudiced the performance the deficient (AEDPA), may grant a federal court habe- requires showing that defense. This only proceedings relief if as the state court errors were so serious as counsel’s “(1) ... in a resulted decision that a fair deprive the defendant of to, contrary or involved an unreasonable is trial whose result reliable. of, application clearly established Federal 687, Id. at 104 2052. The Court S.Ct. law, Supreme as determined Court scrutiny “[¡judicial of coun stressed “(2) or ... United States” based performance highly must deferen sel’s be facts an unreasonable determination indulge strong presump tial” and “must presented of the evidence tion that counsel’s conduct falls within State 28 U.S.C. proceeding.” as range professional wide of reasonable 2254(d) (West § Supp.2005). 689, 104 Id. at sistance.” S.Ct. The clari III. 2254(d)(1) fied the standard Williams of the Manning alleges the decision 362, 120 1495, 146 Taylor, 529 U.S. S.Ct. contrary Ohio Court while that, (2000), holding pur L.Ed.2d 389 to the statement of law in Supreme Court’s 2254(d)(1), adjudi poses of state court Strickland, objectively unreason- contrary “clearly cation is established purposes able of Strickland for application “if ar Federal law” state court 2254(d)(1). §of opposite rives a conclusion to that at question argument this on a of law Her initial is that reached application of differently Appeals’ ... a case than this Court of Strickland or decides materially indistin was because it mischaracter- Court has on set unreasonable validity facts.” Id. ized her attack on “the guishable at adjudication (Manning’s expert’s) is [ ] 1495. The state court’s Rosewater’s “if ... attack on trial unreasonable the state court identifies evaluation as mere utilizing from Dr. Rosewa- governing legal principle strategy” the correct counsel’s unreasonably ap- (Emphasis as add- this Court’s decisions but ter witness. 524
ed.)
argument
This
rather plainly
fully
reveals
testified at trial
should be
included
petitioner
appreciate
does not
assessment
whether counsel was
contrary,
the Strickland
is
effective at trial. On
standard
concerned with
Strick-
counsel,
land instructs that
fair
performance
“[a]
not the
assessment
“validi
attorney performance
every
requires that
ty” of the
of an
expert witness.
distorting
effort be
made
eliminate the
petitioner’s
burden is to “show that
hindsight,
effects of
cir-
reconstruct the
performance
deficient,”
counsel’s
challenged
cumstances of counsel’s
con-
466
U.S.
duct, and to evaluate the conduct from
added),
(emphasis
not a witness’s. While
perspective
at the time.” Strick-
it,
“validity,”
Manning puts
of an
land,
U.S.
S.Ct. 2052.
performance may
witness’s
be rele
*4
Obviously, it was not an
ap-
unreasonable
claim,
vant
an
to
IAC
it is
relevant
plication of Strickland for the Ohio Court
insofar as it
upon
question
bears
the
fail
Appeals
of
to
the
adopt
post-convic-
attorney’s
whether the
performance was
tion conclusions of Dr.
about
“va-
Bley
the
Poyner Murray,
deficient.
v.
964 F.2d
lidity”
opinion
Rosewater’s
(4th Cir.1992).
1404, 1419
The Ohio Court
deciding
strategies Manning’s
what
Appeals
did not
Man
mischaracterize
reasonably
pursued.
have
should
ning’s claim when it
that
observed
her
Third, Manning
argues
argument
her
also
that
the
regarding
expert witness’s
Appeals
Ohio Court of
applied Strickland
disappointing
did not make out
since,
view,
unreasonably
in her
argument
“[t]he
a Strickland
because it did not
court’s
betrays
decision
no
that
indication
relate to her attorney’s
rely
decision to
inquired
the
into
reasonableness of coun
expert.
that
purported strategic
sel’s
prior
decision”
Second, Manning argues
the
that
Ohio
finding
challenged attorney
that the
con
Appeals
unreasonably applied
strategic
duct was a
choice. To the extent
Strickland because it
considered
attor-
Manning’s argument,
we understand
ney’s action at trial
be a strategic
choice
it seems to be that the
simply
Ohio courts
present
not to
“childhood abuse” evidence
assumed
a
Manning’s
counsel made
along with the
Manning
BWS evidence.
strategic
rely
upon
choice
Dr. Rosewa
that the
claims
“court could not have read
protocol,
ter’s
which did not include evi
material and still have
abuse,
dence of child
first evaluat
without
characterized
as a
the issue
matter
stra-
ing
attorney actually
whether
a
made
tegic
“post-conviction
choice” since the
af-
go
choice to
Dr.
“proto
with
Rosewater’s
Bley
fidavit”
Dr. Jill
established that
opposed
protocol
col”
to a
like that
“the childhood
PTSD
were
BWS”
Bley’s
Dr.
post-verdict opinion. She cites
inseparable for
purposes
understanding
Smith,
Wiggins
U.S.
terms,
Manning’s
practical
actions.
(2003),
S.Ct.
156 L.Ed.2d
for the
Manning argues that
Ohio
a
proposition that
state court must consid
Appeals
meaningfully
consider the
strategy
er
reasonableness of counsel’s
post-conviction documents since it reached
finding
before
that a
decision constitutes
not comport
conclusion that did
with the
strategic
But Wiggins
choice.
dealt with
opinion expressed
Bley, Manning’s
attorneys
presented mitigation
who
no
evi
post-conviction expert.
sentencing phase
dence at the
of a capital
assumption
because,
long-
The mistaken
is that an
despite
here
case
evidence of
abuse,
expert critiques
sexual,
which
physical,
affidavit
term
and emotional
analysis
they
present
of an
who
argument
conclusions
chose to
factual
district court committed
“life
the federal
their client’s
investigate
and did not
analysis
in its
523-24,
errors”
2527. “fundamental
history.”
Id. at
this “alone” constitutes
court,
claim and that
in what
The state
however,
This
applica
grounds for reversal.
to be an unreasonable
Court found
legal merits of
“merely
reviewed the
assumed that
has
tion
novo, and, taking them in
de
adequate” and deter
habeas claims
investigation
them,
presents
in which
she
mined that the decision of counsel not
the best
merit in the con-
found
without
investigate
strategic
further
choice has
them
under AEDPA.
considering
the reasonableness of
text of
without
527, 123
it. Id. at
Second,
per-
Manning argues
inef-
was in fact
formance of her counsel
Wiggins and
The differences between
however,
liberty,
fective. We are not at
case
present
telling. Wiggins
are
sweep
finding
aside the
penalty phase
capital
dealt with
conduct a de novo review
practice
Appeals and
case
the standard
was to
where
of our
524, Manning’s
claim. The limits
history report.”
Id. at
IAC
include “social
however,
sharply
wording
are
defined
Manning,
essary part
Accordingly,
of
the rea-
BWS.
attorney’s investigation
of her
sonableness
of
conclude
the
We
not
compiled
is
determined
whether he
unreasonably apply
the
Appeals
whether,
history
a “social
but
report,”
of
standard
decision
Strickland.
him,
light of the
then
he
evidence
before
denying Manning’s
district
court
the
inquiry
conducted a sufficient
into a BWS
is,
relief
there-
petition
habeas
526,
id.
defense. See
at
noted that Circuit defense; expert chosen BWS that the I with the conclusion that agree While present qualified; that defense was reaches, majority separately I write the the expert’s actual contra- compe- expert that an witness’ emphasize theory guilt. dicted the state’s Consid- tency may relevant to an assessment be factors, all ering of these court deter- the performance under Strickland. pursue mined that counsel’s decision to In order to determine whether counsel’s defense with Dr. Rosewater BWS particular employ expert decision expert witness could be considered prevailing professional reasonable under this, In strategy. unsound trial we 689, norms, see 466 U.S. Appeals cannot hold court must ask whether omission as was found guilty is same knew, have learned after counsel or would Wiggins, applica- not find its we do expert investigation, reasonable tion of Strickland unreasonable. incompetent properly either or not case, Finally, requirements of see Manning devotes the remainder suited for the inquiry id. 2052. This arguments beyond of her brief to that lie First, necessarily court to consider scope requires of our review. she claims or, ableness.”). cases, whether counsel knew exercise such investiga- some known, diligence reasonable should have competency experts tions into re- may expert’s incompetency; however, it quire counsel to recognize existence may require also consider conflicting expert opinions. Counsel’s fail- expert competent. whether See ure properly investigate experts’ Parker, (6th Skaggs v. 235 F.3d background qualifications cannot later Cir.2000) (holding performed that counsel presentation shield counsel from deficiently where counsel ex- witnessed expert conflicting opinions post-convic- pert’s incompetence firsthand at trial and case, however, proceedings. tion In this nonetheless recalled the to the tes- Bley’s Dr. affidavit irrelevant is because tify penalty at the phase). does not establish that counsel failed to adequate investigation, conduct an or that case, In this Plaintiffs ineffective assis- Dr. Rosewater testify was unsuited tance of counsel claim fails because she case, this but only expert, that one Dr. knew, cannot demonstrate that Bley, would have differently. testified or would have learned after reasonable investigation, that Dr. Rosewater’s testi-
mony was either below standard
professional care or unsuited for Plaintiffs The fact
case. that the state’s took approach a different than Rosewater put was insufficient to counsel on notice may that Dr. Rosewater have been appropriate expert witness under the cir-
cumstances. Similarly, Bley’s affidavit
evidences experts disagree Syndrome, Battered Woman’s and not that Dr. Rosewater’s was incorrect. America, UNITED STATES Nonetheless, Dr. Bley’s affidavit is not Plaintiff-Appellee, irrelevant to performance simply counsel’s presented because was BARNES, Defendant-Appellant. Claude
proceedings. While counsel could not have Bley’s opinion been aware No. 05-1072. counsel had an obligation conduct States United investigation reasonable into the ex- Sixth Circuit. perts’ qualifications. Skaggs, 235 F.3d Cf. (“[Counsel] expert] [the located May 24, 2006. retained his in much services the same way many trial obtain attorneys expert:
through from colleagues recommendations general familiarity within legal
community considering ... gen- familiarity expert]
eral with [the expert] utilization of [counsel]’s [the past, we hold that counsel’s failure to con-
duct a ... investigation full blown objective fall below standard of reason-