Maurice A. Mason v. Betty Mitchell

tion the statute of limitations could legally events are simul- day, the two same taneous). by not as a matter of law have been tolled by injury caused the disability a mental only authority by the The cited district litigation. This is not to giving rise contrary in a conclusion is reaching court her say that Powell has met burden of Executor, Ky. Fox v. Hudson’s in fact that she was of unsound proving stands for the 150 S.W. 49 Fox prove But if can that she mind. Powell begins a once statute proposition that immediately mentally un- was rendered run, disability stop does not subsequent head, her by sound the blow to her then Although 52. we agree it. 150 S.W.2d purview Ken- action would be within the of Fox, principle enunciated legal with 413.170(1). § tucky She Revised Statutes application it has we conclude that no complied therefore have with the would Fox, plaintiff the instant case. Kentucky long as statute of limitations so legal alleged that she was under the dis- year the summons was within one issued woman. The ability being of a married disability from the date that the is deemed rejected tolling argument, court her how- ever, at the time to be lifted. single because she was the cause action accrued did not of III. CONCLUSION A marry nearly year for thereafter. Id. subsequent disability unrelated to the we have Because determined action, Fox, easily of as in is cause distin- Kentucky statute was tolled of limitations instantaneously guishable disability from a by pending petition, IFP that it by very giving created incident rise to will be tolled if Powell can establish also the cause of action. alleged disability that her mental was by injury question, we RE- caused A question closer is whether Powell judgment of the district court VERSE proof establishing met her burden of pro- and REMAND the case for further mind that she in fact of unsound with was opinion. ceedings consistent with Revised meaning Kentucky in the Stat 413.170(1). § utes Powell submitted virtu support claim.

ally no evidence to her The however, opinion,

district court’s relied al exclusively misapprehen the legal

most mental

sion discussed above that a disabili ty giving caused the incident rise to the MASON, A. Maurice Petitioner- cause of cannot action be basis Appellant, tolling filing pro Powell’s statute. only complaint cited se is Betty MITCHELL, Respondent- to indicate that she not Appellee. key question unsound mind. But the No. 00-3765. whether was of unsound mind Powell accrued, the time the cause of action not of Appeals, States Court United when she filed her subsequently lawsuit. Sixth Circuit. may may fact that she have Argued 2001. Oct. mind she been unsound when filed her Feb. Decided Filed pro complaint nearly year se later is therefore irrelevant. above,

For the reasons stated we dis-

agree the district court’s determina-

MOORE, Judge, opinion delivered the court, CLAY, Judge, joined. in which BOGGS, (рp. 642-646), Judge delivered a separate dissenting opinion.

OPINION MOORE, Judge. Circuit Petitioner-Appellant Allen Ma- Maurice (“Mason”) son was convicted an Ohio murder, of aggravated felony rape, weapon and having while under disabili- ty; he guilty was found also of the death- penalty specification of committing murder rape specifi- course of and further firearms, cations that prior felony, involved prior offense violence. Mason was sentenced appeals to death. Mason now the district denial petition court’s of his for corpus writ of request habeas and his an evidentiary hearing. We carefully have eight considered all of the claims Ma- son raises and AFFIRM the district court’s to deny corpus decision habeas re- lief, important but exception. with one contends he denied effective assistance of counsel at sen- tencing phase. Because the record as it now stands is insufficient for us to deter- merit, mine this claim whether has REMAND case to the district evidentiary for an hearing on this one is- sue.

I. BACKGROUND 8, 1993, February On Dennis Robin (“Robin”), nineteen-year-old wife of briefed), (argued David C. Stebbins and (“Chris”), Chris disappeared. Dennis Ear- (briefed), Columbus, Ohio, Carol Wright lier that Robin had day, and Chris social- for Appellant. friends, ized with and other and Mason (argued Matthew C. Heilman and Chris and trading Mason discussed briefed), (briefed), L. Charles Wille Attor- .22 Chris’s Colt Scout caliber Frontier re- Ohio, ney Capital General’s Office of volver for Mason’s television. The next Section, Columbus, Ohio, Crimes for Ap- day, reported missing Robin was as pellee. Union County Department; Sheriffs BOGGS, MOORE, CLAY, report per- Before stated that Mason last was the Judges. Circuit son seen with Robin. was keys jacket, under her which Deputy Sheriff car were February

On body re from with Lautenslager (“Lautenslager”) eight feet her burrs found Jack an car apparent about abandoned it. The murder report ceived a and debris on County. days Two rural Marion pro- a area of with weapon, a board blood-stained earlier, through Lautenslager had driven nails, twenty truding was found feet from walking, a black man that area and seen piece wood found at body. Another her later identified as Mason.1 whom he had strands of hair matched the scene impressions, Chevron-style shoe similar 15, 1993, February de- Robin’s hair. On Rob by shoes that Mason and those made piece tectives found a small blood-stained owned, of the were found on outside scene, at which a fire- of metal the crime the passenger’s door and on passenger was examiner later concluded identi- arms blood, Type-B dash. Robin’s side from grip-frame cal to a a .22 caliber Colt was found on the type, blood inside revolver and was consistent Frontier Scout including keys, A set of passenger door.2 from the handle of such having with come keys Chrysler fit a owned car a revolver. wife, pas was on the car’s front Mason’s 14, 1993, Dr. February pathologist On senger seat. (“Norton”) Norton conducted an au- Keith Dennis discovery, A few hours after this topsy and concluded that Robin had died (“Potts”) County of Marion Sher- Potts causing trauma a result of blunt force as questioned Mason about Department iffs de- multiple skull fractures. Dr. Norton This- disappearance. interview Robin’s termined that blood-stained board place took detective’s office of a found the scene the butt revolv- Department eigh- and lasted for Sheriffs injuries. Dr. could have caused er Robin’s February On fol- teen minutes. sperm vagina found in Robin’s Norton also inter- lowing on information from other up DNA matched to Ma- experts later views, The questioned again. Mason Potts from Robin’s son’s DNA. DNA material place interview took a basement second underwear also matched Mason’s DNA. lasted, pauses room and with interrogation experts any- not DNA from did find Mason in the for four hours. questioning, one other than Robin and Mason. have he was appears to understood that 30, 1993, September Mason was On not arrest at this time. After under (1) interview, murder, parole charged aggravated officer with second parole a viola- custody took him into penalty specification a death that the mur tion. during der occurred the commission of (2) aggravated rape; rape, prior with a 13, 1993, February body was On Robin’s (3) felony specification; having building found inside abandoned weapon disability, under with an of while eighteen walking minutes’ dis- within specification.3 fense violence tance where car had found. from her been pleaded guilty. October down, lying wearing only face She was indigent and bra; court found Mason to be jeans pulled and underwear her were (“Wink- A. appointed Lawrence Winkfield down to her ankles. Robin’s T-shirt 21, 1993, person was rein- seeing witness 3.On December 1. Another testified description walking charges, who fit Mason's in the with a fire- dicted on the same but general area at that time. specification each of the three arm added to counts. Type-B 2. blood found on the side of was later wearing a on tennis shoe that Mason 12, February 1993.

field”) Columbus, Ohio, 21, 1996, as lead counsel ber of the court relief denied with- Marion, Ohio, and Ted I. Coulter of as co- out holding an evidentiаry hearing. Id. counsel. appealed Mason post- the dismissal his of petition conviction of Appeals the Court attorneys pre-

Mason’s filed numerous Appellate District, for the Third motions, which af- including request trial a for ex- firmed the pert suppress, judgment and a assistance motion Court Com- 6, both of which the trial court denied after mon Pleas on June 1997. Id. at *7. argument. The hearing oral week before Mason timely then filed a appeal to the trial, counsel for a continu- defense moved Court, Supreme Ohio which dismissed the ance, claiming they needed more time 15, 1997, appeal on October as not involv- pages the 411 documents review ing any substantial constitutional question. prosecutor had delivered to them on 15, 1999, July On petition Mason filed a 20, May The trial court refused to for a writ corpus pursuant of habeas to 28 grant a continuance and threatened to re- 2254, § raising twenty-five U.S.C. chal- paying move counsel without any lenges to his conviction and sentence. On 31, 1994, May proceeded fees. On Mason 9, 2000, May the district court Ma- denied trial; to a three-week-long jury he was son’s petition habeas an his motion for found on all guilty three counts. evidentiary hearing on various claims. 27, 1994, On June the trial entered the Mitchell, Mason v. 95 F.Supp.2d phase. sentencing mitigation Mason’s case (N.D.Ohio 2000). The district subse- court testimony consisted of the of seven wit- quently granted appealabili- a certificate of nesses and Mason’s unsworn statement. ty timely appeal as to all claims. This 29, 1994, On June recommended followed. death, be sentenced to which adopted. recommendation the trial court 9, 1994, II. August

On ANALYSIS the trial heard argument oral denied and then legal de We review novo the con a motion for new trial. clusions of a district court in a habeas appeal Mason then timely filed Tate, proceeding. Mitzel v. 267 F.3d Appeals Court of for Third Appellate (6th Cir.2001). Because Mason filed District, asserting twenty-four assign- 15, 1999, petition on July habeas after 9, 1996, ments of error. On December the Antiterrorism and Effective Death Appeals Court of affirmed court’s (“AEDPA”) Penalty Act of 1996 became Mason, judgment. State v. 1996 WL effective, is governed by this case AEDPA. (Ohio 1996). Dec.9, at *33 Ct.App. provisions, Id. may Under AEDPA’s appeal Mason thereafter filed a notice of grant corpus writ habeas Supreme and a brief the Ohio Court. adjudicated claim that was on merits in 17,1998, On June the Ohio Court adjudication: state court unless the affirmed Mason’s conviction death sen- (1) resulted in a decision that was con- Masоn, appeal. tence on direct State to, trary or involved unreasonable Ohio St.3d 694 N.E.2d of, application clearly established appeal While his direct was pending, law, Federal as determined filed state collateral attack in the States; Supreme Court of the United County, of Common Pleas of Marion asserting assignments seven of error. (2) State v. resulted in decision that was based WL at *1 (Ohio 1997). Ct.App. June On Novem- on an unreasonable determination of

614 2254(d)(1) a be- § as distinction pre- requiring light

the of the evidence facts “contrary to” and tween that are decisions proceeding. in the State court sented appli- involve “unreasonable those that an 2254(d)(l)-(2). addition, In § U.S.C. Supreme clearly cation of’ established state findings by fact made a court the of at precedent. Id. S.Ct. Court and can be presumed to be correct are “contrary 1495. A state court decision is petitioner if the only habeas contravened “if the state Supreme precedent to” Court convincing evidence by can show clear to opposite at court arrives a conclusion findings factual were that the state court’s Supreme] on a by [the Court reached 2254(e)(1). § This pre erroneous. Id. law,” “if the court question of or state applies the also sumption of correctness materially facts that are indistin- confronts by appellate findings made a state factual Supreme Court guishable from relevant the court on state record. based at a re- precedent” and arrives different Mata, 539, 546-47, 101 v. Sumner also sult. A court is Id. state decision 66 L.Ed.2d S.Ct. if Supreme “contrary precedent to” Court following the standard provides AEDPA a rule that contra- “applies the state court petitioner determining whether in that dicts law set forth” governing the evidentiary hearing: entitled an precedent. Id.

(e)(2) applicant If failed to devel- has A decision state court involves op factual of a claim in basis application clearly of’ es “unreasonable proceedings, the court State court precedent “if the Supreme tablished Court evidentiary hold an hear- shall not governing state court identifies the correct ing appli: the claim unless the on legal Supreme] rule from Court’s [the that— cant shows unreasonably applies it to the cases but particular ... at facts case.” Id.

(A) of the claim relies on— 407, 409, 413, may S.Ct. We (i) law, a new rule of constitutional simply because overturn state decision cases on col- made retrоactive to the state court incorrect conclude Supreme review lateral ly Supreme precedent. The applied Court Court, that un- previously applied state court must the relevant have available; or Supreme precedent objectively in an Court (ii) predicate that could not factual Id. unreasonable manner. at previously been discovered have S.Ct. 1495. through the exercise due dili- In a state decision reviewing gence; and AEDPA, only under we must look (B) underlying the facts claim Supreme holdings Court that existed would be sufficient establish Id. court’s decision. time state convincing clear may We not base 120 S.Ct. 1495. error, but for constitutional Supreme our Court dicta decision no reasonable factfinder would appeals. See decisions the courts applicant guilty have found the id.; Mitzel, 267 at 530-31. F.3d underlying offense. Expert Assistance A. Denial of 2254(e)(2). § 28 U.S.C. 1. Trial Phase Taylor, Williams argues that Mason first 146 L.Ed.2d 389 applied (2000), unreasonably Court interpreted Supreme Ohio

615 Mason, prece- clearly Supreme present to an adequate established Court defense.” “[premising indigent in defen- [an dent 694 N.E.2d at 943. This is consistent with right expert to and dant]^ constitutional in Ake principle summarized that: investigative solely on the dis- assistance Meaningful justice access to has been cretion of trial court further without the consistent theme of these cases. We Indigent review.” Br. at Petitioner’s recognized long ago that mere access to prisoners constitutionally are entitled to courthouse doors not does itself an adequate “the basic tools of defense or proper a functioning assure of the ad- appeal, when those tools are available for a versary process, and that criminal trial Britt v. North price prisoners.” to other fundamentally is unfair if the pro- State Carolina, 226, 227, 431, 404 92 S.Ct. against ceeds an indigent defendant (1971) 30 L.Ed.2d (citing 400 Griffin making without certain he that has ac- Illinois, 351 U.S. S.Ct. integral cess to the raw materials (1956)). Both Britt and Griffin L.Ed. 891 building Thus, of an effective defense. transcripts requests involved for free while the Court has not that a held State Britt, See proceedings. 404 U.S. at purchase must for indigent defen- 431; Griffin, at S.Ct. 351 U.S. dant all the assistance that his wealthier Supreme The S.Ct. 585. Court has also counterpart might buy, it has often reaf- psychiatric held that assistance basic firmed that fundamental fairness enti- general tool of an defense in adequate two (1) indigent tles “an adequate defendants to “when a circumstances: defendant has preliminary sanity opportunity present made a his showing fairly to their claims n withinthe adversary system.” To im- at the time to be a likely of the offense is (2) trial,” significant “in factor and plement principle, we have focused capital sentencing proceeding, context of a identifying the “basic tools of an ade- presents psychiatric when' the evi- State quate defense appeal,” and we have dangerous- dence of the defendant’s future required provided that such tools be to Oklahoma, 68, 74, ness.” Ake v. those defendants who cannot afford to 84 L.Ed.2d 53 pay for them. Mason claims that Ake re- appeal, On Ake, (inter- 470 U.S. at quired him provide Ohio to with the follow- omitted). Supreme nal citations Ohio (1) types expert ing assistance: a soil nonpsychiatric expert Court then held that expert and debris to the soil examine provided “only assistance should be where Robin, clothing found on the and shoes of finds, the trial court in the exercise of a (2) Chris; expert a shoe-print and discretion, sound defendant has identify compare prints in found (1) particularized showing made of a Robin’s car with those made the shoes probability requested reasonable that the Mason, Robin, (3) Chris; mitiga- (2) defense, expert would aid expert tion-investigation to examine Ma- expert requested denial assis- background potential mitigation son’s an unfair trial.” Id. evidence; (4) tance would result independent, compe- “an tent expert” help forensic mental health at 944. phase. at the sentencing counsel persuaded We are the Ohio

Petitioner’s Br. 28-33. Ake in an Supreme applied objec- Court Ake, tively unreasonable manner. case, Supreme In this the Ohio weighed Court three factors Ake “require understood that a determining competent whether provided [nonpsy criminal be access defendant (1) expert necessary psychiatric required: chiatric] assistance when assistance was However, we inadequate. provide that will affected was be private interest “the State”; (2) gov- narrowly, Ake hold- previously “the read the have by the action of if will that be affected interest that the is whether a defendant ing ernmental issue (3) provided”; and is to be in safeguard competent psychiatrist “access to a or of additional probable defense,” value “the 235 Skaggs, preparation of his safeguards that are procedural (internal substitute quotation 2 marks at 267 n. F.3d depri- an and the risk of erroneous sought, omitted), expert was and not whether the interest if those safe- affected vation did competent. Id. at 272. in fact We Ake, 470 U.S. are not guards provided.” in that the failure of defense Skaggs note case, 77, this 105 S.Ct. 1087. at competent psychiatrist to a engage counsel that Supreme simply stated Court Ohio determining in whether would be relevant evaluating in courts" have discretion trial ineffective assistance a defendant received do that third factor. We not believe respect n. 2. to of counsel. Id. at 267 With un- objectively Ake was application of this claim, however, Ake we conclude Therefore, are as we bound reasonable. precedent not Supreme has that Court AEDPA, that we hold by the dictates of right to clearly established defendant’s on not relief Mason is entitled habeas psy- competent than mere access to more claim. chiatric assistance. Sentencing Phase B. Ineffective Assistance of Counsel not a sanity if his were Even argues Mason that the Ohio trial, an indi during significant issue unreasonably applied Supreme Court for has the defendant his life gent clearly established federal law conclud psychological assis psychiatric right deprived that he of his consti ing was sentencing phase “when during tance right tutional to effective assistance psychiatric evidence presents the State To that afford establish counsel counsel.4 future dangerousness.” the defendant’s assistance, a petitioner ineffective must ed 1087; Ake, 83, 105 470 at S.Ct. U.S. attorney’s performance that was show his (6th Parker, F.3d 272 Skaggs v. 235 deficient, objective an stan falling below denied, Cir.2000), 943, 122 534 cert. U.S. reasonableness, and that such defi dard (2001). 241 The 151 L.Ed.2d S.Ct. ciency prejudiced his defense. Strickland present evi of Ohio did not such State 668, 687, 104 Washington, Therefore, did in this dence case. L.Ed.2d 674 The 80 S.Ct. right clearly not have established objective of reasonableness is standard sentencing. at Re psychiatric assistance “a one and includes highly deferential that he not enti gardless of fact was conduct assistance, strong presumption counsel’s alleges tled to such range did falls within the wide of reasonable psychiatrist the trial court appeal pending. sub- direct was Because the trial 4. The State contends that various of Ohio claim found Mason's ineffective assistance parts of Mason’s ineffective assistance judicata be res before appeal and thus claims to barred were not raised on direct appeal, decided direct procedurally Respondent’s Ohio courts had his were defaulted. Supreme Court eventu- reрlies raised these and because the Ohio Br. 25. Mason he ineffec- ally addressed the merits of Mason's to the brief. issues Ohio his claims, 12; proce- find Reply assistance do not Final see also J.A. at 1517-18 tive Br. at assistance), (continuance), whether the (expert and will review 1598 dural default selection). contrary motion), to or adjudication courts’ (suppression (jury state application of unreasonable problem because arises Mason filed involved progeny. petition post-conviction while his Strickland and its relief evidence”; (4) Id. professional patory assistance.” behaved an overly Pierce, 2052; (5) United States v. manner; aggressive object failed to (6th Cir.1995) (placing F.3d prosecutor’s blatant misconduct. burden on the defendant demonstrate Br.-at Petitioner’s 67-68. violation), denied, constitutional cert. We first observe that Mason’s 133 L.Ed.2d 886 attorneys had eight close to months to (1996). satisfy prejudice require the To trial, prepare for the during which time ment, a defendant “must show that there they pretrial filed more than fifty motions that, probability is a but reasonable for argued pretrial and at several hearings. errors, unprofessional counsel’s the result Mason, 694 N.E.2d at 947. Mason’s inef of the would proceeding have been differ fective assistance claim therefore relates to A probability proba ent. reasonable is a defense counsel’s failure to achieve ‍​‌​‌‌‌​​‌​​‌‌​‌​​​​​‌​​‌‌‌‌‌​​​​​‌‌​​‌‌‌​‌‌‌​‌​​‍sub bility sufficient to undermine confidence stantive results rather than a failure to file Williams, the outcome.” procedural Cf., e.g., motions. Olden v. Strickland, (quoting 120 S.Ct. 1495 States, (6th United 224 F.3d 566-67 2052). U.S. at 104 S.Ct. “The essence Cir.2000). However, objec Strickland’s of an ineffective-assistance claim is that tive of standard reasonableness does not unprofessional upset counsel’s errors so require lawyers perfect. to be Because the adversarial balance between defense defense counsel with vigor advocated prosecution and the trial was ren behalf, Mason’s we hold that Mason did dered unfair the and verdict rendered sus not receive ineffective assistance with pect.” Morrison, re Kimmelman v. spect the filing procedural to of various 91 L.Ed.2d 305 motions. As for the fact that Winkfield parts selection, of during absent 1. Trial Phase agree we with the district that this argument is not provid- compelling Mason claims that his because attorneys Mason ed ineffective assistance before trial the consented to the absences “and co-counsel (1) following areas: counsel failed to obtain conducted voir during effective dire” assistance; certain expert investigative and that time. F.Supp.2d at 788. (2) counsel to failed obtain the suppression argument defense of Mason’s statements to police during prepare counsel failed to adequately for (3) interviews; February 10 and stronger, the trial somewhat but the continuance; counsel failed to obtain and does not a great record contain deal of (4) lead counsel was absent during parts of information on this issue. Lead counsel jury selection. He also claims that he apparently acknowledged Winkfield as late received during ineffective assistance as a or two week before trial that he trial due to defense counsel’s failure to personally any had not interviewed of the prepare adequately. he ar- Specifically, phase witnesses either the trial. (1) gues that “fail[ed] defense counsel to ¶ (Head 9). J.A. at 1849 Aff. at He also provide any guidance or direction to the less than declared a week before the trial jury in opening [his] statement” and that “it great started would be error for object to to inflammatory portions “fail[ed] continue,” J.A. at because he [him] (2) statement”; opening the state’s prepared go was not forward and develop “failed to communicate theo- do ry good “[could not] so conscience and theory defense and how such a relat- (3) professional mitigation”; ed to under the effectively “failed to standards of the litigate the state’s failure to reveal exeul- responsibility code of client.” [his] J.A. evincing lack of rea- that he had identifies as stated at 679. Co-counsel in fact vio- professional judgment but that he sonable part the case prepared his professional Winkfield. lated norms. We prevailing not forward without go could court, distrusting opening have statements of both point, At this read motives, prosecution asked Winkfield and dis- defense counsel’s to withdraw. When characterizations of agree whether he wanted with Mason’s care any “d[id]n’t that he “inflamma- identify Winkfield answered them. We cannot withdraw,” trial court stated its tory portions” prosecutor’s state- im- 67; willingness ment, conversely, to remove Winkfield Petitioner’s Br. at paying fees. pose sanctions provided defense counsel conclude thirty-minute confer- at 679. After J.A. adequate jury by clearly guidance to co-counsel, Winkfield ence rather articulating theory that Chris stay trial court that he would informed the than on trial for Robin’s Mason should be 700. the case. Tr. at on Brady-derived claim of murder. sum- simply ineffective assistance too Although acknowledge that attor we mary de- for us to review. As for the may neys’ compensation about concerns piction defense as and of counsel abusive their of adversely representation affect argumentative, recognize that the rec- clients, persuaded that we are not Wink- be- animosity ord reveals considerable in performance case so field’s was counsel, prosecutor tween and the defense objectively as to be unreasonable. deficient advocacy but fail to see the Bell, 1150, how latter’s Rickman v. 131 F.3d 1157 Cf. (6th Cir.1997) prejudiced Finally, any Mason’s defense. (holding defense coun sel, object prosecutorial miscon- trial failure to preparation whose consisted hours duct not assis- solely of sixteen of interviews with did constitute ineffective because, defendant, “totally] actively the tance counsel as be- fail[ed] of discussed cause”); low, client’s Groseclose v. not that the prosecutor advocate his we do believe (6th Cir.1997) Bell, 1161, 130 ha- improperly. deny F.3d 1169-70 acted We therefore (describing defense counsel’s “failure to respect beas to this claim. relief any theory have defense whatsoever” and Sentencing 2. Phase any meaningful “failure to conduct adver- challenge” “especially appalling”), as sarial Amendment, Eighth Under the denied, U.S. cert. in a be jury capital may case “not (1998). First, despite L.Ed.2d precluded considering, mitigat- from as a protestations, totality of Winkfield’s ing factor, any aspect of defendant’s suggest does not circumstances any and of the circum- character record unprepared for the defense counsel stances of offense the defendant phase. “complete lack Unlike of than proffers as a basis for a sentence less pretrial preparation” that the Kimmelman Ohio, 586, 604, Lockett v. death.” decried, 477 U.S. S.Ct. Ohio 57 L.Ed.2d 973 nu Winkfield and co-counsel filed that, provides prosecu- law once the thus pretrial motions argued merous and sever statutory more proven tion has one or Although attorneys pretrial hearings. al beyond a rea- aggravating circumstances always more in for a preparation can do doubt, weigh must sonable trial, we cannot conclude that Mason’s at circumstance(s) against aggravating torneys did prepare enough. mitigation imposing before evidence

Sеcond, persuaded death we are not that the sentence. Ann. Ohio Rev.Code 2929.04(B). mit- may § consider as acts and counsel that Juries omissions defense character, history, through Appeals “the igating evidence Courts.” J.A. at offender,” certain background questioned Defense counsel factors, specified “[a]ny other factors about drawings his and then rested. The of whether are relevant issue prosecutor rebuttal, offered no sentenced the offender should be but emphasized during closing argu- his Moreover, death.” Id. a defendant is enti- ment that present- defense counsel had not “great presenting tled to latitude” in evi- any ed mitigating evidence about Mason’s dence of and all factors. mitigating character, history, or background. 2929.04(C). §Id. aggravating The sole circumstance Investigate a. Failure to or to Pre- rape. this case was See Ohio Rev. pare Witnesses 2929.04(A)(7). § Code Akn. When the tri Mason argues that defense counsel ren- phase penalty al court convened the dered ineffective failing assistance Mason’s trial June independent conduct an thorough in- testimony counsel offered the seven wit nesses, vestigation history psycho- as well as Mason’s unsworn testi life mony, inquire but did not into mitigating logical background family when his mem- evidence. The first two witnesses were interviews, bers were available for thereby deputy from County sheriffs the Marion foreclosing discovery of potential miti- Jail, who stated that Mason had not been gating He evidence. also contends that problem prisoner.5 Defense counsel performance defense in prepar- counsel’s then called four members of Mason’s fami ing family Mason’s calling members before ly. speak Given no more direction than to mitigation them as was witnesses constitu- behalf, mother, on Mason’s Mason’s broth tionally deficient. er, sister, and cousin asked simply the examining In Mason’s claim of ineffec- jury penalty. not to recommend death tive at sentencing stage, assistance direct Defense counsel’s examination of Ohio inferred from the (“Terri”) Terri was Mason’s wife almost as record “that defense counsel had volumi- perfunctory. Asked she had any- whether history nous about records [Mason’s] thing the jury, to tell Terri made an emo- background” and “[c]ounsel noted that plea mercy. tional Counsel then asked prepared documenting twelve exhibits as- identify Terri that pictures to few childhood, pects reports of as such cross-examination, her. drawn for On by he was beaten his father аnd re- prosecutor questioned Terri about Ma- parents juvenile leased his to authori- day son’s art his activities Redirect-, ties, recross-, early disappeared. psychological Robin as well as evalua- tions, and further redirect-examination con- present but them did police. Mason, cerned Terri’s interview with the jury.” 694 at N.E.2d 956. The Defense counsel did not Terri question similarly district court deemed meritless again mitigating about evidence. Mason’s claim “that his trial counsel im- properly possible to investigate psy- failed spoke mitigat-

Mason himself as the last chosocial could mitigating factors that have statement, In ing witness. his unsworn he spared penalty.” him the death 95 requested declared innocence and me to “give F.Supp.2d the chance take it at 793. notes, attempted As Mason defense counsel did not a fellow from suicide. inmate inquire saving about Mason's involvement in 620 proper in this cal to a assessment counsel’s has been made

Much investigation that defense decisions. case the twelve exhibits conjunction with prepared in counsel Strickland, 690-91, 104 U.S. S.Ct. 466 T. Joseph Dr. deposition of videotaped previously have held that the 2052. We psychiatrist appointed Spare (“Spare”), the complete investigate mitigating failure to assist the trial to constitutes ineffective assistance phase. The mere existence mitigation Bell, Austin v. 126 F.3d of counsel. See however, exhibits, not con- is mitigation (6th Cir.1997), denied, cert. 523 clusive, Strick- question under because 118 S.Ct. 140 L.Ed.2d U.S. counsel’s investi- land whether defense 1547, 140 mitigation evidence gation potential into (1998); Mitchell, L.Ed.2d 695 Scott cf. constitutionally adequate: (6th (“Without Cir.) ef 209 F.3d thorough after [Strategic choices made mitigat- research into the available fective facts to of law and relevant investigation course, im testimony, of it would be ing options unchal- plausible virtually are lawyers have an possible for the made made strategic choices lengeable; way.”), de informed decision either cert. investigation complete after than less nied, to the extent precisely are reasonable empha L.Ed.2d have also We professional judgments that reasonable independent importance sized investigation. the limitations on support investigation: mitigat “The sole source of words, duty has a In counsel other ing properly factors be infor cannot investigations or make reasonable volunteer; may mation which defendant [a] makes make a decision that reasonable eopnsel indepen make must some effort unnecessary. particular investigations make rea investigation dent order to case, particular de- any ineffectiveness soned, informed decision as to their utili directly investigate must cision not be (6th Bell, ty.” Carter v. 218 F.3d all the for reasonableness in assessed .2000). Cir circumstances, mea- applying heavy us is The record before inade- judg- sure of deference counsel’s meaningful for a review of Mason’s quate ments. claim of ineffective assistance of counsel. recognize that We Strickland Court investigation decisions are rea- [W]hat analyze state courts directed “to effective depends critically infor- [the sonable then prevailing ness based on the norms supplies]. mation that the defendant time,” perspective at and counsel’s example, sup- For when the facts (6th Coyle, 260 F.3d Williams port potential line defense a certain Cir.2001), “highly which entails a deferen because generally are known to counsel Strickland, 466 tial” standard. said, the has what defendant 689, 104 However, in S.Ct. 2052. order investigation may be need for further to evaluate whether defense us counsel considerably or eliminated diminished constitutionally rendered ineffective assis has when a defendant altogether. And know sentencing, tance at we must more given to believe counsel reason investigation of counsel’s about extent be pursuing investigations certain would preparation mitigating evidence. and harmful, fail- counsel’s fruitless or even that de significant There is likelihood may pursue investigations ure to those unreasonably in failing counsel acted fense challenged be as unreasonable. later independent thorough conduct an short, into counsel’s conver- inquiry Be- background. may investigation be criti- sations with defendant it cause the record as now stands assignment reflects was limited to interviewing disputes perfor about defense counsel’s witnesses and taking measurements at the respect mance with sentencing crime scene. Tr. at 35-39. Because the trial, phase of Mason’s we remand the case against case Mason was based on circum to the district court for an evidentiary- evidence, stantial we infer from the record hearing on this issue.6 that the witness interviews were primarily about the facts surrounding disap Robin’s begin analysis We our of Mason’s inef pearance and murder. Defense counsel fective claim by reviewing assistance indicated as much when the trial court investigation appаrently did take why asked mitigation expert was neces place. In the fall of soon after Ma sary given appointment of an investi charged son was rape aggra gator. Furthermore, Tr. at 452. Robin, vated murder of the trial court averred that his conversations with de issued an order appointing investigator fense counsel and the investigator “were for the defense authorizing indepen almost exclusively about phase dent testing. DNA J.A. at is 1954-55.7 Ac witnesses, concerning cording my to the Ohio Court: where sues-— abouts, Chris Dennis and other theories of The defense team of two lawyers and an who had killed Robin Dennis.” Maurice A. investigator looked fully into Mason’s ¶ Mason Aff. at family 5. Mason’s Moreover, background. members the state had were also not interviewed collected and about Mason’s released to the (Terri background. January J.A. at 1992 1994 voluminous A. Mason records con- ¶ 14); (James Mason, Aff. at cerning J.A. at 1997 including records about Michael ¶ 9); (Mioshi years last nine Aff. at prison and out of J.A. at 2006 ¶¶ 13-14).8 as well as juvenile school records and Mason Aff. at incarcerations. As for the documents obtained during record, 694 N.E.2d at 945. The discovery, the trial court found that de- however, suggests that the investigator’s fense counsel “had in possession their 6.Judge Boggs suggests that Mason does not law.” Id. at 120 S.Ct. 1479. Mason requirements (and meet evidentiary denied) for an requested hearing in state hearing 2254(e)(2). as laid § out in 28 U.S.C. actively sought expand and has (e)(2)'s Although are, subsection diligence, conditions record. We see no lack of so we do indeed, onerous, 2254(e)(2). "only prisoner apply § not who has neglected rights his in satisfy state court need these conditions.” Tay- Michael v. Williams 7. The independent trial court later authorized lor, 420, 435, 1479, laboratory testing sample on a of the fetus L.Ed.2d determining In carrying whether that Robin was at the time of her 2254(e)(2) applies, § question the is independent not murder and testing blood petitioner whether the has succeeded de- in blood found on Mason’s shoe. J.A. at 1955. record, veloping the but petition- whether the diligently attempted er has to do so. See M. acknowledged 8. Lead counsel less than a Williams, 529 U.S. at 120 S.Ct. 1479 began week before the trial "that he had not ("[A] develop failure to the factual personally basis of a interviewed of the witnesses claim is not established phase unless there is lack of for either of the trial.” J.A. at fault, diligence, ¶¶ greater (Head 9). Moreover, some attributable Aff. at coun- prisoner counsel.”). prisoner’s or the apparently sel "psy- never studied Mason's n Mason sufficiently diligent; here has been chological as history” or environmental and explained, "Diligence will prepare failed to history” the "social require in prisoner, the usual case that the at would have humanized Mason before the minimum, evidentiary hearing (Schumacher seek an jury. J.A. at 1856 Aff. at ¶¶ prescribed 24C, 24E). state court by in the manner state counsel, choosing defense 3,000 trial, conclude reviewed, over prior to mitigating evi- whatever present not to and docu records comprehensive of pages known, strategic deci- made a [Masonj’s history, was dence social regarding ments introducing from the state City to foreclose the Marion sion from including records Mason, 694 Center, in rebuttal. Counseling negative evidence Schools, Area Marion Strickland, howev- Services, Mar at Under 956. County N.E.2d Children’s Marion whether determine Department, er, must first Probation courts County Adult ion decisions Dept, investigation and counsel’s Authority, Ohio defense Parole Adult may they re- Only then State and Corrections.” reasonable. were Rehabilitation 93-CR-0153, any decision slip op. challenge at 9-10 ject No. a defendant’s 1996). None of coun- (Ohio strategic defense Nov. as Ct.Com.Pl. characterized us. record before documents these sel. adequate case went before this May

In conducted Had trial counsel Spare Dr. appointed trial, have heard the trial would investigation, to assist pathologist drug use a forensic about how substantial Spare then 1955. Dr. at back J.A. pervaded defense. Mason’s and violence five-page prepared a Mason the record history. examined From and life ground 1952. On J.A. report. Mason’s psychiatric us,11 have learned before trial, defense during the marijuana heavy June parents were alcoholic videotape, Spare Dr. on deposed counsel Ma the time drug dealers from users These mitigation Indeed, exhibits. using twelve years old. four or five was son it as exhibits, to the record according ma for the admitted “that mother Mason’s largely stands, have been based appear to [Masonj’s family home life the jority ” prosecu discovery provided (Crates on the ‘drug house.’ J.A. at above, noted counsel.9 to defense As ¶ tion 20S). later, Mason years Four Aff. at inter apparently never counsel drugs, stealing with experiment began himself, including Mason anyone, viewed sup parents’ pills from his marijuana and Ma aspects of mitigating possible about eleven, use; he had by age his own ply for though various even background, son’s About user himself. significant become ready willing were family members father time, accompanied his Mason history.10 his discuss life By age buy drugs. trips out-of-state to fourteen, drugs to use began did Supreme Court the Ohio Although away from home. also ran parents; he finding about explicit make an not overran drugs, violence addition to in- independent counsel’s of defense extent parents strug- household. evidence, it did mitigating vestigation below, childhood, as described troubled the reten- Although court ordered sentencing record, have aided him which would part as tion of these exhibits give prosecutor the it did not because us. record are in the before exhibits that evidence opportunity for rebuttal same poten- good from Mar- character rehabilitation distinguishes this case about fact 10. This Mitchell, WL tial could have. 280 F.3d v. tin Cir.2002), (6th recently de- where (1) by James were submitted 11.Affidavits claim because on a similar nied habeas relief ("Crates”), mitigation spe- Crates potential Frederick petitioner not what shown the by post-conviction to, retained who was cialist testified mitigating "would have witnesses mother Mason’s and who interviewed counsel aided him testimony could have such or how death, (2) Jeffrey Smalldon L. *11; Dr. her before Buell sentencing.” Id. at at cf. (3) fa- Mason's Cir.2001). ("Smalldon”), psychologist, Mitchell, (6th F.3d (4) ther, sister. and Mason’s Mason’s testimony in this case concerned gled through repeated cops bouts of domestic ... [W]e didn’t want them around.” children; (Crates violence in front they ¶2(®). of their J.A. at 1871 atAff. Ma- also Mason a regular beat basis for son’s mother also did go not to the hospi- stealing tal, their drugs and for the miscon- where social may services have inter- duct of siblings, for which he was vened and documented the family’s blamed. plight.

Having Therefore, received official documents from provided documents by prosecution during discovery, prosecution to defense counsel could appears counsel to have been aware of not have contained anything close to the some of Mitigation this evidence. Exhibit amount of mitigating evidence that could example, apparently for concerned Ma- have been and later was obtained in an drug teenager, son’s use as a independent see and thorough investigation.12 93-CR-0153, op. No. slip Indeed, but not his we find it particularly telling that significant use at a age. much earlier We not even the trial court referred to any emphasize that discovery documents knowledge on part of trial counsel very only their nature concerned the about Mason’s troubled childhood or the family’s limited contacts with the extent to which drugs and violence rav authorities. example, For a record aged from Mason and his family. We believe Marion County Children’s Services indi- just evidence, it was which did cates that charged Mason’s father was not enter the record post-convic until the with assault beating Mason. tion stage, that was Mason’s hope. best (Crates ¶20W). J.A. 1874-75 Aff. at As we observed in Mapes v. Coyle, 171 however, (6th This charge, Cir.), stemmed from a denied, F.3d 408 cert. person missing report Mason’s father (1999), 145 L.Ed.2d 284 police; himself filed with the Mason had the information about background away run being disciplined. while J.A. at may amount to little than more “slim evi (James 2000-01 Michael Mason Aff. at dence mitigation, but it is something. ¶ 31). The do appear authorities not to And what is most it important, was [his] have been regular aware of the whippings only shield from a death sentence.” Id. at Furthermore, that Mason suffered. Ma- 426. Yet trial appear counsel does not to reported son’s mother episodes never of have any independent made effort to in domestic police, abuse to the because it vestigate particulars of Mason’s histo was “a family character, no-no our ... ry, to call the or background.13 The al- Contrary analysis, including the dissent's mitigation "a expert Psy- team of problem here is Worker, not that defense chologist, counsel had Mitigation Social Ex- knowledge no background, of Mason’s but pert.” Tr. at 412. Defense counsel called that, receiving after a limited amount of that ("Baich”), Dale A. Baich then an assistant provided by information in materials Ohio, public defender for the State of to testi- prosecution, may defense counsel not have fy mitigation about defendant’s need for adequately investigated the matter further experts. mitigation Baich described ex- themselves. Our concern is that the limited pert’s responsibilities as follows: information obtained counsel did significant mitigation One role of the ex- discharge duty investigate, counsel's pert is to interview Mr. Mason about his triggered but duty investigate. background go out to interview then members, friends, family inexplicable acquaintances. 13. We apparent find failure addition, important investigate mitigation of trial counsel it's mitigating for the evi- trial, expert dence gather in this case. may Four months before to records that be exist- argument the trial court ing heard oral on de- related to Mr. Mason. I have no idea request fense experts, counsel's for various background, about Mr. Mason’s but there court with the district case to remand the prepare to counsel of defense failure leged evidentiary hear- hold an their testimo- instruction to for family members that assis- further demonstrates of ineffective sentencing Mason’s claim ny ing at on investiga- an inadequate his trial. sentencing phase counsel conducted at the tance mitigating evidence. tion of Mitigating to Present b. Failure in- an to conduct failure Trial counsel’s Evidence may investigation thorough dependent and Next, coun- challenges defense Mason ability to make stra- their hampered have mitiga- present a limited to sel’s decision also may it sentencing; at tegic decisions it case, as stands the record when tion compe- ability give to have their affected up in grew that Mason us indicates before meaning of to about advice Mason tent repeatedly family and was dysfunctional availability of and evidence mitigation from Indeed, and use drug ac- to exposed violence strategies. possible mitigation childhood, psy- not and did to emotional leading trial counsel cording to advice: noted offer such We have chological problems. to does not explained of this evidence my lawyers ever that much Neither of above it is or what to trial coun- mitigation what the known me to been appear have knowl- had no prove. I was intended to conduct sel, failure alleged due to their intended mitigation was edge that thorough investigation independent and an life, was to be or that this my save Mason evidence. potential mitigating me to demonstrate only opportunity however, contends, not have that he would given I not be jury why should to the any jury penalty from the death received penalty. the death was mitigating evidence heard what that ¶ Aff. at 7. The A. Mason Maurice available. available readily that was so mitigation sentencing, defense time of By the reasonable arguably an in this case offered Spare pre deposed Dr. counsel before “humaniz[ing Mason] probability of exhibits. mitigation pared the twelve juror could at least one that such mitigat as planned to offer They originally the death not have he did deserve found Spare, Dr. testimony of evidence the ing Carter, Be- at 592. 218 F.3d penalty.” concluded, past con on Mason’s who based from the rec- cause we determine cannot duct, unlikely to be was Mason the Ohio before us whether ord counsel offender. Defense violent repeat unreasonably applied Strickland evi present ultimately decided not trial counsel’s examining extent of dence, which, according prosecutor, evidence, we mitigating into investigation argued that de- prosecutor 423-25. at related may governmental records be some provided all counsel had been fense the defense. helpful to would be him that fully may available records work records records and His school 442-43, defense. assist in his Tr. able to mitigation phase. important be for the understanding counsel’s sense, Given defense expert 446. mitigation So in a investigation, we need for further complete goes one out conducts may afford- counsel have strongly believe that investiga- personal background family and by unreason- assistance ed Mason ineffective on accused. tion investigate. We it deciding leave ably not to understood Trial counsel Tr. first instance to court in the to the district by the relying produced the documents evidentiary holding hear- after inter- determine inadequate, because prosecution was coun- performance of defense ing whether the and the had to be taken of views still constitution- life,” case failed to meet in this prose- sel "significant others in his al minimum. Tr. records. have missed some cution could was omitted in order foreclose rebuttal prejudice; [Mason] shown on this rec- history evidence about ord, Mason’s violent Mason cannot show a reasonable conduct, allegedly including rape, brand- any juror likelihood that who ap- arrest, ishing gun, resisting burgla- and prised of complete psychoso- [Mason]’s ry. Lead counsel informed the trial court cial history including prior criminal — present that the decision not mitigation record—would not have voted for the strategic: evidence was penalty. death

We have the consideration of Maurice (internal omitted). Id. at 793 citation life, know, you today, here strategies some that we calculated and In rejecting Mason’s claim of ineffective designed procurfe] and achieve a life assistance at sentencing, the district court verdict even with the decision that was Scott, relied on in which we’ held that by rendered the jury. We are not inter- defense counsel’s present decision not to in bringing up ested things certain or mitigating evidence was reasonable in light opening the door for certain things that petitioner’s extensive criminal histo- evidence, the Prosecution has a great ry, which included “commission of robbery, bring desire to jury. bеfore assault, kidnaping, and other violent acts J.A. at 1209. upon Scott, innocent citizens.” F.3d Supreme

The Ohio Court held that de- potential 880. The mitigating evidence in performance fense counsel’s at the sen- case, as found the state court after tencing stage was not deficient because a post-conviction evidentiary hearing, con- “the prior records [showed] involvements sisted of testimony petitioner’s about the with the juvenile criminal justice sys- “personal loyalty to his siblings, girlfriend, tems, and other unfavorable matters. Ma- children, and an exceedingly violent son could not presented have evidence as environment throughout his upbringing.” good to his character and rehabilitation Id. Instead of pressing points, those de- potential without risking the introduction fense counsel strategy chose a of residual negative the state in rebut- only presented doubt and petitioner’s tal”; it also concluded that Mason had not unsworn statement. Id. prejudice. shown 694 N.E.2d at recognize We the factual similarities be- 956. The district court focused more di- However, tween Scott and this case. after rectly on “possible mitigating effects of Williams, Court decided childhood,” Mason, [Mason’s] unfortunate questioned whether holding Scott F.Supp.2d but reached the same should be limited “to the narrow facts of a conclusion: federal court contemplating a peti- habeas [Mason] has not suggested the exis- tion after a state court has conducted an tence mitigating factor that evidentiary hearing finding and made a negated overwhelmingly by his his- fact that mitigating evidence been in- tory conduct, of violent criminal includ- troduced, the defendant’s recent criminal ing prior rape offenses, and firearms history would presented have multiple parole violations, been multiple Carter, jury rebuttal.” drug stretching offenses F.3d at 600 as far back as n. above, 2. As we elementary school. have noted no state or [Mason]’s counsel’s strategy federal court of not has held an presenting mitigating evidentiary hear- [Masonjs testimony in ing keep order Mason’s ineffective assistance claim. extensive criminal history from We therefore believe Scott is less was objectively Nor reasonable. has relevant might than it otherwise be. introduced, was considered us, have been agree we record before Based on the Mason, No. 93-CR- that defense Counsel.” Defense Supreme Court with the Ohio then court professional at The trial slip op. reasonable 5. counsel exercised miti- present pros- to deciding not following in evidence judgment listed char- “good Mason’s about in rebuttal: gating evidence introduced could have ecution Mason, potential,” and rehabilitation acter juvenile multiple had A. That [Mason] we reiterate but N.E.2d at to and was committed offenses as- ineffective have rendered may counsel juve- as a Youth Commission Ohio (and thus failing investigate to in sistance 4, 11); (Mitigation nile Exhibits mitigat- present) potential unable to being in and been an adult he had B. That as background. about Mason’s ing evidence pa- on while prison and that out of previous- noting that have begin by We role, multiple parole he committed present mitigating failure to ly deemed the 6, 7, Exhibits (Mitigation violations “an to be when it was available evidence 11,12); a stra- than advocacy” rather abdication user drug had That been [Mason] C. Austin, F.3d at 849. tegic decision. drug 14 and also age was since however, necessarily requires holding, This 10); Exhibit (Mitigation dealer mitigating evidence inquiry an into vio- engaged other Mason] D. [That of sentenc- at time that was available conduct, threatening including lent ing. (Mitiga- gun with a his ex-girlfriend above, prep- trial counsel’s As discussed 11, 12, Deposition of Exhibits tion have appears to sentencing for aration Spare;); Dr. the documents reviewing limited to been at to help [Mason] offered E. That them and disclosed prosecution that the counseling, including early age, tried “to deter- Spare, Dr. who deposing participate refused in which he attempt to deter- and “to mitigation” mine 3); (Mitigation Exhibit being of [Mason] likelihood mine the Miller raped That Danielle F. he potential his offender repeat violent and/or (Dr. deposi- Spare October Aff. Smalldon for rehabilitation.” tion); ¶¶ report Spare concluded 10—11. Dr. prior during years the ten That G. Mason’s by predicting to defense counsel Robin Den- raping murdering the available “Based on future behavior: nis, all but 19 spent [Mason] to be a evidence, likely Mason is Mr. included his prison, which months cir- ordinary offender under repeat violent sepa- violated on four parole being that of pattern is ... [His] cumstances. Dr. (deposition of rate occasions opposed to away as running avoidance and Spare). Aff. Smalldon violence.” aggressive ¶ Therefore, de- mitigating evidence at 5-6. The Ohio Id. sentencing reasonably counsel at to defense defense counsel available termined interactions with Mason’s evidence present mitigating concerned not to chose of Ma- assessment Spare’s and Dr. reha- state “good character Mason’s about character. did not they son’s because potential” bilitation negative rebut- of this to run the risk want post- petition dismissing at 956. 694 N.E.2d tal evidence. relief, referred conviction explicitly did not supreme court The state finding mitigation twelve exhibits counsel’s about its conclusion base [Mason’s] regarding “[t]he law state on whether strategic motivations should now he contends background which prosecutor would have allowed the to use because he had claimed insanity as a de- all of the negative evidence listed above. fense at trial. Id. at 264. Mason’s de- Henness, Cf., e.g., State v. 79 Ohio St.3d fense rested on residual doubt and the (1997) 679 698 (limiting N.E.2d argument that Robin; Chris had murdered prosecutor’s right to “rebut false or incom therefore, Mason was not to psy- entitled plete regarding statements the defendant’s chiatric assistance during the sentencing criminal ... record to those instances phase Moreover, under Ake. the two cases where the specific defense offers a asser can be distinguished because defense coun- tion, by a mitigation witness or defen sel present did not any expert psychiatric dant, that misrepresents the defendant’s (hold- this case. id. at 267 Cf. prior history”). criminal state Because ing that defense counsel rendered constitu- law governs scope evidence, of rebuttal tionally ineffective assistance “fail[ing] aas federal habeas court accept will to investigate present meaningful miti- the Ohio interpretation Court’s of gating evidence” and an “us[ing] incompe- Mitchell, state law. Greer v. See 264 F.3d tent and fraudulent ‘psychologist’ as the (6th Cir.2001), denied, 675 cert. 535 witness”). central mitigation U.S. 122 S.Ct. 152 L.Ed.2d 231 (2002). However, we again observe once However, according to the record before that this reasoning does not apply to miti us, a competent psychiatric expert would gating evidence background about Mason’s have “conduct[ed] wide-ranging, very and life history, which trial counsel did not thorough inquiry into Mr. psycho- investigate thus had no opportunity to ¶ background.” social Aff. at 12. Smalldon present at sentencing. Testimony that sim an inquiry Such would no doubt have ame- ply put Mason’s childhood into context prejudicial liorated the effects of defense without it misrepresenting would not have counsel’s alleged failure to investigate Ma- subject been prosecutor’s rebuttal history. son’s life Therefore, although Ma- evidence, mostly which concerned Mason’s son wаs not entitled to psychiatric assis- character. Ake, tance under may he still have Inadequate Psychiatric c. Assis- ineffective assistance claim for the defi-

tance performance cient of defense counsel in argues that he apparently relying received ineffec- on Dr. Spare for an tive assistance of counsel at sentencing independent investigation mitigating into because his attorneys acceded to inade- evidence. quate psychiatric assistance. Specifically, pursued his ineffective assistance argues he Dr. Spare, psychiatrist claim diligence, with raising counsel it in

who him for examined the sentencing all of his pleadings. yet He has to receive phase, failed develop mitigating evi- his request for an evidentiary hearing. dence and should have been disqualified We therefore remand this case the dis- due to a conflict of interest that stemmed trict court with instructions to hold an from his treatment of Mason’s wife. Peti- evidentiary determine, hearing and to tioner’s ‍​‌​‌‌‌​​‌​​‌‌​‌​​​​​‌​​‌‌‌‌‌​​​​​‌‌​​‌‌‌​‌‌‌​‌​​‍Br. at 33-34 n.8. In Skaggs, we light discussed, of the factors that we held that have counsel’s of an use incompetent whether defense psychiatric counsel rendered consti- expert at sentencing constitut- ed tutionally assistance ineffective ineffective of counsel. assistance re- Skaggs, However, spect 235 F.3d 273-74. to the sentencing phase of Mason’s defendant in Skaggs protected by Ake trial.

62 Mitchell, v. Coleman Brady

C. Violation (6th Cir.2001), we F.3d 417 reiterated Maryland, Brady After v. judicata application res under Ohio 1194, 10 L.Ed.2d adequate independent law state “is an (1963), suppresses evi- prosecutor who ground justifying foreclosure constitu both favorable to defendant dence that is (citing tional claims in Id. habeas.” punish- or to guilt and “material either (6th Cir.1994) Zent, Rust v. F.3d “irrespective process, due ment” violates McMackin, Riggins 935 F.2d 790 prosecu- good or bad faith of faith (6th Cir.1991)). However, federal habeas 87, Brady tion.” Id. at 83 S.Ct. 1194. claims relief is available for constitutional exculpatory both and im- encompasses rule petitioner if defaulted in state court a dem v. peachment evidence. United States prejudice. Gray cause v. onstrates 667, 3375, 676, 105 S.Ct. Bagley, 473 U.S. 162, Netherland, 152, 518 U.S. 116 S.Ct. (1985). Favorable L.Ed.2d 481 evi- 87 (1996). 2074, 135 L.Ed.2d 457 Brady “only if dence is material under that, probability there is a reasonable to the attempts dispute defense, the

the evidence been to disclosed finding Brady district court’s would proceeding the result of have defaulted, procedurally were but his claims 682, Id. at different.” 105 S.Ct. 3375. been arguments essentially point cause. probability A reasonable is onе that is First, Zant, 214, citing Amadeo v. 486 U.S. “sufficient to undermine confidence 1771, (1988), trial. 108 100 L.Ed.2d 249 question outcome” of the Id. “The S.Ct. act suggests very not whether the defendant would more Mason that “the [state’s] have likely withholding than not received different the first evidence, verdict with the but whether in place for any alleged establishes ‘cause’ trial, received a fair its absence he under- procedural default.” Petitioner’s Br. at 88. in a resulting stood as a trial verdict wor- Second, argues he that “the fact that the Kyles thy Whitley, of confidence.” v. 514 were available until state documents not 419, 434, 1555, 131 L.Ed.2d post-conviction again adequate establishes (1995). 490 any alleged petition- default. A ‘cause’ required appeal er is not raise on direct Brady not raise a claim on did fact, for which lacks a claims he basis direct but he did raise one appeal, as his especially actually has con- where the state ground for relief in post- third his state cealed the facts.” Petitioner’s Br. at 88 petition. conviction The state (internal omitted). However, citation as Brady found that the claim was barred noted, the district court Mason has not judicata. The of Appeals res Ohio Court why Brady shown basis for claim “nearly [Brady all of ] held claims appeal. available not on direct Con- were, petition forth in [Mason’s] set state clusory statements about conceal- been[,] appeal should direct have raised on support finding ment will not of cause. conviction,” from his and then ruled Amadeo, 222, 486 U.S. at 1771 Mason, S.Ct. against Mason on merits. (“[T]he procedural existence of cause for 1997 WL at *6. The district court ordinarily default must turn on whether procedural found that Mason was in de- prisoner objective can some claims, show that Brady fault on the had not shown impeded to the defense prejudice, cause or factor external could make out Mason, comply with the Brady a true counsel’s efforts State’s violation. rule.”) F.Supp.2d procedural (quoting Murray at 758. v. Car- rier, 477 U.S. 91 ing pills. S.Ct. arrest, Soon after making the (1986)). L.Ed.2d 397 police transported Rodeffer to Marion Hospital General for a medical evaluation. assuming Even that Mason did examined, While being Rodeffer indicated for failing Brady have cause to raise his arresting officer that he had infor- arguments appeal, on direct we are not death, mation about Robin’s which he inti- persuaded that prejudice. he can show To mated was “satanic related.” J.A. at 1915. relief, obtain Mason “must convince us Rodeffer stated that Robin had beеn or- probability’ that ‘there is a reasonable get car, dered to out of her hit in the back the result of the trial would have been head, and then “hung by her neck different if the suppressed documents had with a large log chain.” J.A. at 1923. been disclosed to the As defense.” Strickler Greene, noted, the district court this description 144 L.Ed.2d injuries examin Robin’s was inconsistent with her ing suppressed evidence, we must ask injuries. actual F.Supp.2d “whether the favorable evidence could rea sonably put be taken to whole case After reviewing Rodeffer’s statements light such a different as to undermine con circumstances, and the surrounding 290, fidence in the verdict.” Id. at district court concluded that “it strains omitted). 1936 (quotation We con credibility past the breaking point sug- to clude that we cannot question answer this gest that there ais reasonable probability in the affirmative. Rodeffer’s produced evidence would have general catego- describes three Mason, different verdict.” F.Supp.2d ries of allegedly evidence that was with- at 758. Mason contends that the district (1) from held his defense: statements court’s dismissal of Rodeffer’s statements (“Rodeffer”) made Robert Rodeffer amounted impermissible to “an credibility police personnel and medical that he had determination that is not supported by the (2) present murder; been at Robin’s excul- and[,] importantly, more is not a patory statements made Michael and factor properly considered in analyzing a Carolyn Young, Dennises, friends of the Brady violation.” Petitioner’s Br. at 89. Captain A1Hayden (“Hayden”), who inter- disagree. Bagley We instructs courts to days

viewed them three before the remedy Brady only violation if the undis- (3) impaneled; was pretrial state- presents closed evidence a reasonable ments of various witnesses that were alleg- probability of a different result at trial. edly inconsistent testimony with their at Bagley, 473 at 105 S.Ct. 3375. It trial. The district court reviewed the rec- proper was thus for the district court to ord and determined that there was no consider the circumstances of Rodeffer’s reasonable probability that the disclosure statements. of these produced statements would have different result trial. Mason also asserts that he suffered F.Supp.2d at agree. prejudice 758-60. We due to the nondisclosure of notes Hayden that took conducting while tele- Rodeffer was arrested on February phone Youngs interviews of the shortly days four after discovery of Rob- began. before Mason’s trial The district body, in’s for stealing whiskey frоm a con- court summarized these notes as follows: arrest, venience store. At the time of his suicidal; During Hayden’s Rodeffer was both conversations with intoxicated and apparently he had three-quar- Youngs, Carolyn consumed both Michael and ters of a fifth of whiskey sleep- and seven Young they indicated that had moved Moreover, counsel her. found Carolina because

from Ohio South Young about Michael threatening letters cross-examined receiving were they testi- peo- Carolyn Young also from threats. telephone calls unknown Chris’s trial. with the Michael about in connection direct and cross-examination ple fied on that when Hayden Young Captain told shirts. As for Harley-Davidson Robin’s eve- up late woke Dennis night Chris of her of Robin on the sighting angry he February was ning on Carolyn Young testified disappearance, there, and was not Robin Dennis had seen Robin that she that she believed found kill her when he would said he p.m., and 10 but stated 9:30 between thought Young said she Carolyn her. and could not glasses her not worn she had seen, after Dennis hours several she actually she had certain about whether be alive, Harley-Davidson last seen was himself testi- in the car. Chris seen Robin time wearing at the Dennis T-shirt cross-examination direct and fied on both she Carolyn Young said the murder. beneficiary of Robin’s life being the about rid- Dennis had seen Robin thought she direct and light of the policy. insurance February evening ing in a car Youngs, agree cross-examination prosecu- hours after the several court’s conclusion that district killed Dennis. argued [Mason] tion present a reason- notes do not Hayden’s expressed concerns Youngs Both of a different result probability able killed his wife might have Dennis Chris trial. life proceeds of her gain in order claims that he suffered Finally, Mason insurance. prosecution’s of the prejudice as result Mason, con- F.Supp.2d at 759. Mason 95 of pretrial statements failure to disclose neces- statements were that these tends witnesses, Youngs including the seven mur- theory Chris sary to his defense Mason, all of these According Chris. court’s review wife. The district his dered day of on the had seen Robin witnesses however, transcript, resulted trial of the given “had dif disappearance and her all record demonstrates finding that “the facts surrounding versions of the ferent only ac- conclusively that not had [Mason] were [that] of Robin Dennis the death to, attempted proffer actually cess but exculpatory as well as impeaching trial, exculpatory evi- every piece of at to bе disclosed the required were unfairly de- alleges he now he was dence at We Petitioner’s Br. are state.” failure to prived by the state’s disclose any such unable to find the existence telephone conversations Captain Hayden’s agree also the record. We documents at Carolyn Young.” Id. Michael and observation that with the district court’s the direct and cross-exami- 760. Because each of defense counsel “cross-examined imparted the substance nation witnesses detail, frequent witnesses in the listed conversations, the district of these from those wit pretrial statements ly used followed, the interrogation that Potts de- Williams, 409, able.” 529 U.S. at 120 cooperative” scribed Mason as “real and presume S.Ct. 1495. We must testified that Mason told him “to come state court’s factual findings are correct if by” back he needed anything else. J.A. unless Mason offers clear and convincing at 460. Mason agreed that he made a presumption. to rebut this 28 “voluntary choice” to answer ques- Potts’s 2254(e)(1). § U.S.C. tions about Robin. J.A. at 506. The Miranda Court defined cus interrogation second took todial interrogation as “questioning initi 12, 1993, place February in an interro ated law enforcement officers after a gation room located in the basement of person been custody has taken into City Hall. This interview was also record deprived otherwise of his freedom of action ed, but it lasted for almost four hours. Miranda, in any significant way.” 384 Mason was not formally arrested or told at U.S. 86 S.Ct. 1602. A suspect is “in that he could not leave. He asked wheth custody” purposes for of receiving Mi er he was under arrest sometime after 4:03 protection randa if there has been a “for p.m. mal and was told that he was arrest or restraint on not. Mason freedom of Mathiason, Oregon mobility movement.” v. later testified that his ham was 492, 495, U.S. pered by being S.Ct. questioned L.Ed.2d in the base (1977). “[T]he initial determination of cus- ment. He also testified he asked the transported for in which Mason was mode and to termi back home to take him police However, irrelevant, he ac Ma because interview.14 to be questioning nate the that he on cross-examination knowledged “voluntarily admits that he himself son interrogation out gotten could have Peti police twice.” station came interview, pa room. After this that Mason Br. at 113. The fact tioner’s custody into for Mason officer took role in a “coercive environ questioned was parole. of his the conditions violating does not police such as a station ment” warn Mason his Miranda gave Potts then interroga necessarily constitute custodial Mason ended when ings. The interview Mathiason, 429 at 97 S.Ct. tion. rights his Miranda refused to waive Salvo, 711; 133 F.3d States United lawyer. requested denied, (6th Cir.), cert. custody in that he was argues Mason 1805, 140 L.Ed.2d 943 February 10 and during the interviews deprivation requires significant Miranda police statements to the 12 and that his possibility that Mason freedom. The admit not have been consequently should of the conse have been aware may not following points to ted at trial. Mason participation the inter of his quences (1) in the suspect the sole he factors: was in custo not mean that he was views does (2) transported by he investigation; Beheler, 1125 n. 463 U.S. at dy. See questioning,15 police station car to the repeatedly told that 3517. Mason was ability his to leave without “precluding when wished. The was free leave he he willingness to permission officers!’] was not concluded Mason state courts (3) home”; questioned he was him drive questioning time of be custody at the “interrogated for police station arrest and he was not under cause he (in increasingly set hours hostile four police’s voluntarily agreed to answer (4) “lied to the officers he was ting)”; placing has demonstrated eyewitnesses[’] regarding questions. (5) scene”; he was “repeatedly crime an unreason determination was though under arrest even he was not told constitutional application able federal ready to immedi parole officer stood deny thus facts of his case. We law the interroga ately arrest him as soon as corpus respect relief with Mason habeas (6) ceased”; for a he was arrested tion this claim. 12 in Febniary parole violation after freely and volun- “Any given statement Br. at 95-96. terrogation. Petitioner’s is, influences tarily any compelling without However, State agree with the course, Mi- admissible evidence.” do not that circumstances of Ohio these 478, randa, The at 86 1602. 384 U.S. S.Ct. of equivalent functional demonstrate the státements found that Mason’s Ohio courts una argument first is an arrest. Mason’s at voluntary. 694 N.E.2d were 319, Stansbury, 511 U.S. vailing. See presented not Mason has 946. Because (“[A]n subjective 1526 officer’s S.Ct. to the con- convincing and clear concerning undisclosed view whether factual to the courts’ trary, we defer state suspect being interrogated is person application of hold that their finding and whether the is irrelevant to the assessment unreasonable. objectively not the Miranda person custody.”). is in We deem him from his that Potts drove 15. Mason notes he to leave 14. Mason also indicated in an unmarked Office home the Sheriffs to pay utility order to bill. un- be police car with doors could by passengers. locked Right E. to Confront Witnesses to to assure both reliability fairness and

Present a Defense guilt ascertainment of and innocence.” Id. Mason argue does not that the Ohio argues that the trial court barring rule prior evidence of bad acts is right prosecu violated his to confront the Instead, unfair or unreliable. Mason con- present a tion’s witnesses and to defense tends that protection this rule’s should ex- Chris, by restricting cross-examination of tend to defendants but not to witnesses. had a history who of violent assaults on persuaded We are not prop- such Robin and others. Mason asserts that the clearly osition is established federal Supreme to law as uphold Ohio Court’s decision Supreme Court, determined the trial court’s exclusion this evidence application grant was an therefore decline to unreasonable of the fol habeas relief on lowing principles Washington ground. from v. Tex as, 14, 1920, 388 U.S. 18 L.Ed.2d S.Ct. argues also that evi (1967): dence of Chris’s violent tendencies was right testimony to offer the admissible to show his bias or motive in witnesses, compel and to their attend- testifying prosecution. for the The Su ance, necessary, plain if is in terms the preme Court has recognized a defendant’s defense, right present to right right constitutional to test credibility present the defendant’s version through witnesses cross-examination. prosecution’s facts well as as the Alaska, 308, 315-16, See Davis v. 415 U.S. may so it decide where the truth 1105, (1974); 94 S.Ct. 39 L.Ed.2d 347 see lies. Just as an accused right has the Chambers, 295, also U.S. 93 S.Ct. prosecution’s confront the witnesses for Forbidding inquiry into a witness’s purpose challenging their testimo- bias can violate the Confrontation Clause. ny, right present he has the his own Arsdall, 673, Delaware v. Van 475 U.S. witnesses to establish a defense. This 679-80, 1431, 106 S.Ct. 89 L.Ed.2d 674 right is a fundamental element of due (1986). However, a trial court retains dis process of law. scope cretion to limit the of cross-examina Id. at 87 S.Ct. 1920. The State of Ohio tion, based on concerns as such “harass dispute may does not that a defendant ment, prejudice, issues, confusion of the party offer evidence to show that a third safety, interrogation or witnesses] crime, committed the but it contends that repetitive only marginally relevant.” procedure rules of and evidence constrain short, Id. at 106 S.Ct. 1431. In right present evidence. Mason guarantees only Confrontation Clause “an claims that right to a fair trial should opportunity for effective cross-examina control. tion, not cross-examination that is effective In Chambers v. Mississippi, extent, way, whatever to whatever 35 L.Ed.2d 297 the might wish.” Delaware (1973), proclaimed that Fensterer, “[f|ew rights are more fundamental than 88 L.Ed.2d 15 that of an present accused to in witnesses case, In this defense at Mason’s his own at defense.” Id. 93 S.Ct. trial was that Chris had murdered Robin. witnesses, right present 1038. The to however, It was in thus Mason’s interest to demon is not absolute. “In the exercise accused, strate Chris’s bias and right, testify of this motive for required as is of State, ing against comply must Mason. Mason to established was allowed procedure of present rules designed evidence evidence of and to cross-examine con- propensity prove to bars the use of heavy drinking and Chris’s Chris about first re- tendencies, including Supreme two incidents Court duct. The Ohio violent Mason, F.Supp.2d that Rule 404 wife-beating. argument of See jected Mason’s permitted trial court also at 779. because he was apply to Chris should present evidence of defense counsel than a defendant on trial. rather witness alleged about to cross-examine Chris at 950. It then ob- 694 N.E.2d day on the that she kill Robin threat trial court had allowed that served jury also learned disappeared. The that present “to some evidence Mason of Chris and cross-examination direct both propensity criminal of to show the tended beneficiary him the had made that Robin Dennis,” including testimony about Chris However, policy. life insurance her in when Chris struck Robin two incidents about ruled that evidence trial court Id. the face. was inadmissible history Chris’s of assaults recently considered Confronta We only for proffered by Mason because it was Collins, F.3d Boggs in tion Clause in that acted showing Chris purpose denied, (6th Cir.2000), cert. prior acts and was conformity with the L.Ed.2d 152 likely to have murdered Robin. therefore that was decided Although case argu- Clause Mason’s first Confrontation standards, it is still pre-AEDPA under that the evi- appears to have been ment Boggs court noted that instructive. The prove admitted to identi- dence should be had found Confrontation Clause vio courts alleged that Chris ty. Defense counsel had advanced lations when defense counsel person and “left previously beaten theory that a witness had “an articulated field,” for dead in a J.A. person] [that at 741. The to fabricate.” Id. motive in an just as Robin was left aban- case, extent record in this However, ar- rural area. he also doned the defense on attorneys based violent gued in the alternative that Chris’s doubt, barely suggests that only residual specific be admitted “not as acts should at trial. The they pursued theory a bias impeach credibility, but instances to consistently ques trial court framed the motive, intent, possibility [and] show propensity, tion as one of operand!” at 758-59. similar modus J.A. otherwise. We suggest counsel did not im- counsel wanted to Finally, defense has failed to thus conclude Mason “other peach credibility by showing Chris’s Supreme unrea that the Ohio Court show and what we believe to be inconsistencies clearly Su sonably applied established 759; lies.” J.A. at see untruths and/or precedent upholding in preme Court during open- (contending at 785 also J.A. trial court’s exclusion of certain Dennis has lied ing argument “Chris of Chris’s violence. case from the aspects about certain of this at 1593 very beginning”). But see J.A. Misconduct F. Prosecutorial to the Ohio Su- (arguing, Mason’s brief Court, jury was not be- preme that “[t]he argues “[through as im- ing asked to consider this evidence penalty phases, prose out the trial and peaching”). misconduct de engaged egregious cutor and to inflame signed prejudice nor the

Neither the Ohio jury, depriving thus passions of the court examined Mason’s Confron- district trial.” and a fair process Mason of due such, in- holding tation claim ‍​‌​‌‌‌​​‌​​‌‌​‌​​​​​‌​​‌‌‌‌‌​​​​​‌‌​​‌‌‌​‌‌‌​‌​​‍Clause as ques The relevant Br. Petitioner’s that the evidence was not admissible stead 404(A), prosecutorial mis- alleged Evidence which tion cases under Ohio Rule of

635 prosecutors’ “whether the presume conduct is com state courts and that later courts ‘so infected the trial with ments unfairness enforced the bar instead of rejecting the the resulting as to make conviction a deni defaulted claim on its merits.” Id. (citing ” process.’ of due Nunnemaker, al Darden Wainw 797, 803, Ylst v. 168, 181, right, 477 106 S.Ct. (1991)). 111 S.Ct. 115 L.Ed.2d 706 (1986)(quoting 91 L.Ed.2d 144 Donnelly v. presented numerous claims 637, 643, DeChristoforo, 416 U.S. prosecutorial misconduct to the district (1974)). 1868, 40 L.Ed.2d 431 “[T]he mis court, which found them to be procedurally pronounced persis conduct must be so Mason, barred. F.Supp.2d at 779-85. permeates tent it the entire atmo Defense counsel failed to contempo make sphere of the trial gross probably or so as objections raneous to most of the alleged prejudice the defendant.” Simpson v. instances of prosecutorial misconduct. Jones, (6th Cir.2000) 238 F.3d Therefore, in the opinion last reasoned (internal quotation marks and citation claims, a state reviewing these omitted). A claimant must establish that Supreme Ohio Court expressly enforced the challenged improp statement was both contemporaneous objection Ohio’s rule and flagrant er and so require as to reversal. Mason, plain reviewed for error. Million, (6th Boyle v. 201 F.3d N.E.2d at 951. Cir.2000). previously We have identified object Defense counsel did question to a four factors that are in analyzing relevant about DNA testing. Addressing this claim prosecutorial claim of misconduct: merits, on the Ohio case, In every we consider degree prosecutor held that had not acted which complained the remarks of have a improperly. 694 N.E.2d at 951. tendency to mislead the and to Mason has thus right waived the to federal accused; prejudice the they whether are prose- habeas review on all but one of his extensive, isolated or they whether were cutorial misconduct claims unless he can deliberately or accidentally placed be- prejudice demonstrate cause and or make jury[;] fore the strength of the “a showing of a fundamental miscarriage competent proof to guilt establish the Hinkle, justice.” (quot- 271 F.3d at 245 the accused. 406). ing Simpson, 238 F.3d at (6th Hill v. Brigano, 199 F.3d Cir.1999) omitted). (quotation We review argues prosecu that “the prosecutorial misconduct claim for harm- engaged tor in ongoing during misconduct” less error. Id. cross-examination “attacking counsel’s defense strategies[,] over which Mason had previous

We first note our no control.” Petitioner’s Br. at 110. One holding “that contemporaneous Ohio’s ob prosecutor’s questions of the concerned jection rule an adequate constitutes Mason’s extramarital relationship with independent ground state that bars federal Robin: “Is that the same reason when habeas review absent a showing of cause started, Randle, this case order to contest the prejudice.” Hinkle v. (6th results, Cir.2001). you your DNA “Moreover, attorneys F.3d do independent testing we view a to see if our appellate state court’s review DNA plain right?” error results were proce as the enforcement of a J.A. at 1092. De objection, dural default.” Id. “In fense counsel raised an determining which whether state pro agree courts have relied on a court overruled. We claim, cedural rule to bar review of a question the district court that look to the last opinion improper. reasoned credibility of a criminal 636 admissible, a rule is not jury deliberations may impeached be testifies

defendant who Greer, theory that general 264 keeping other witness. with that of like about Mason’s question The of their incompetent F.3d at 683. witnesses jurors are DNA independent cоnducting testify reason juror may A misconduct. own testimony about his testing followed prejudicial information” “extraneous about in which he denied police statement to recently Id. We “outside influence.” being alone Robin or ever knowing application courts’ the Ohio held impeaching thus prosecutor was her. The jury dispose of biased this statute to showing inconsistencies between Mason clearly Su- violated established claims police and his pretrial his statement precedent recognizes preme Court trial. testimony at importance defendant’s fundamental that another appeal argues a fair trial. Doan v. right to constitutional pro- to his failure question, pertaining Cir.2001). (6th 722, F.3d 732 Brigano, 237 employment his that showed duce records Doan, juror’s pre- that a In we concluded Robin, he met where at the local festival experiment to of an out-of-court sentation misconduct, prose- do the as demonstrates error, but jurors was constitutional other each of the defense “ridiculing] cutor’s Id. at 739. was harmless. that this error argument for during closing his theories” 111, case, alleges juror Br. at liability phase, Petitioner’s argument penalty for the closing resulted when various or misconduct bias counsel note that defense phase. (2) We first (1) slurs, presumed made racial jurors objections. contemporaneous no made (4) (3) trial, slept during guilt, reviewed for The Ohio presented an out-of- conducted and then 951, error, 694 N.E.2d at plain in investigation. The first three court review barring federal habeas absent thus influences, Tan and under volve internal prejudice. are showing of cause We States, 107, 107 483 U.S. ner v. United that Mason has shown persuaded (1987), testimony L.Ed.2d 90 97 S.Ct. proce- to excuse the prejudice cause and subjects should have been barred on those deny therefore habeas dural default and prohibiting juror evidentiary rule by the respect to this claim. relief with Id. at impeachment of a verdict. 2739; v. Lo United States 107 S.Ct. cf. Juror G. Bias/Misconduct (6th Cir.) n. 2 F.3d 380 gan, 250 and Fourteenth Sixth in how the the difference (recognizing guaran Amendments to Constitution issue), panels framed the Logan Doan and to an right defendant the tee a criminal denied, 895, 122 534 U.S. S.Ct. cert. Illinois, 504 jury. Morgan v. impartial (2001). However, under L.Ed.2d 154 719, 726, L.Ed.2d U.S. Doan, re is whether Mason question clearly established Su Under did have an a fair trial. Mason ceived who precedent, a defendant preme Court prove actual bias when the opportunity to a alleges implied juror bias is entitled arguments on his heard oral trial court opportunity hearing in which he has “thе trial. The trial for a new motion Phillips, prove actual bias.” Smith motion, jurors’ finding that the denied 209, 215, 102 S.Ct. ability to impair Mason’s did not conduct (1982); v. United L.Ed.2d 78 Dennis presume that must a fair trial. We receive States, 162, 171-72, are determinations trial court’s factual (1950). However, pursuant 94 L.Ed. presump Mason rebuts unless 606(B), correct Rule of to Ohio Evidence evidence. convincing with clear during the course of tion of statements made Presumption 2. 1.Racial Slurs of Guilt alleges juror Mason that Russell L. argues that he was denied expressed Dennis in belief guilt prejudice the racial a fair trial because of began. before formal deliberations When jury, an which manifested itself all-white statement, questioned about such a through generalizations about race16 and juror acknowledged saying, “Maybe he’s jurors slang.17 the use of black Individual pleading guilty,” at J.A. but testified were disturbed the racist comments but “really that he ... opin- hadn’t formed an apparently they did not understand that just ion. It was thinking wishful because it. After anything could do about review it was late in the day everybody ing jurors18 the affidavits of all twelve and tired.” at J.A. 1380. The trial court found “no juror substantial evidence that bailiff, any testimony hearing from court any during made comment the trial which jurors, juror, three and an alternate demonstrated that he or she had failed to found that no during “[a]t time keep open mind so as to be able any jurors participate the trial did of the in fairly decide the this case.” any acts of racism which could have im J.A. at 1487. Absent clear and convincing paired ability [Mason’s] to receive a fair evidence to contrary, we must defer to trial.” J.A. at 1487. the state finding, court’s factual and there- deny fore respect habeas relief with to this question on habeas is whether Ma- claim. presumption son can rebut state court’s factual are findings correct. Sleeping During 3. Trial (“Beck- juror Mary Alternate Beckholt alleges juror Wanda Straub holt”) comments, testified that the racist (“Straub”) asleep fell during the trial. The opinion, her could have violated Mason’s juror record is unclear as to whether the right to a fair trial: “I felt it was unfair. I slept during proceedings in the courtroom felt it was and I felt that wrong, people during or breaks in the room. How- making they judging

were were —if —mak- ever, Straub averred that she “was awake sort, ing judgmental comments of how attentive all during proceedings they fairly judge could the case?” at J.A. ¶ (Straub 2). trial.” J.A. at 1479 Aff. at Beckholt, however, partici- 1401. did not The trial finding court made the same pate in jury’s deliberations. Because respect jurors. to all twelve Absent clear Mason does not offer evidence other convincing contrary, evidence to the than which the trial court had at the we must defer to the state court’s factual it finding, deny time made its factual finding, deny and therefore relief habeas respect respect habeas relief with to this claim. with to this claim. juror Mary juror go get rag,

16. Alternate Beckholt testified to had "said he had to his dew jurors’ during hat; comments the trial that "all just cause he doesn't have a he has a people party black did was drink and and do However, rag.” dew J.A. at 1407-08. Ma- beer runs.” J.A. 1384. haffey did not characterize comment as "racial.” J.A. at 1407. apparently rag” 17. Mason wears "dew daily on a bandana basis. J.A. 773. Juror prosecutor 18.The and defense counsel ob- Kathy Haney juror testified that a made "rac- consulting tained these affidavits without jive ist remarks and in a [talked] manner” joint appendix trial court. The contains the rags,” "dew about as well as ridiculed Ma- participat- jurors of ten who denied affidavits speech. son’s J.A. at 1412-13. Juror Jason ing observing any in or racism. Mahaffey ("Mahaffey”) testified that the same Extrinsic Evidence deny We habeas with re- therefore relief spect to claim. This involves an case out-of-court Doan, to the one in investigation similar Sentencing H. Phase Instructions juror put on her lipstick which a arm to Mason claims that the trial a and then determined simulate bruise court’s “an jury instructions led to could be in a that such bruise seen sentencing Pe- unreliable determination.” Doan, room. 237 F.3d at 727. darkened Specifically, Br. at 135. he ar- titioner’s (“Downs”) case, juror Mary In this Downs gues that the trial court committed con- disassembled her husband’s revolver to see (1) failing define stitutional error grip the like the whether looked one shown (2) factor,” “mitigation” “mitigating or re- juror that in court. The stated she con- fusing the jury to instruct on residual experiment ducted this and informed other (3) doubt, failing to death remove the jury the returned jurors guilty after allegedly sentence an deadlocked from However, Beckholt, who verdict. did not jury. review, habeas errors on in “On deliberations, jury’s in the participate tes- they structions are not renewable unless reported that her tified Downs results dur- deprive a defendant of due constitutional ing the trial. The trial court found that Parker, 265, process.” v. Gall 231 F.3d actions “did not influence the ver- Downs’s (6th Cir.2000), denied, 321 cert. 533 U.S. such, in this case and as was [Mason] dict 941, 2677, 121 150 739. S.Ct. L.Ed.2d prejudiced by this conduct.” J.A. at question us the before is “whether 1487-88. ailing instruction itself so infected the We review constitutional er- entire the resulting trial that conviction at trial rors such as Sixth Amendment process.” violates v. due Estelle violations under a harmless error stan- 62, 72, McGuire, 475, 502 U.S. 112 S.Ct. Abrahamson, Brecht dard. v. 507 U.S. (1991) 116 (quoting Cupp L.Ed.2d 385 v. 637, 619, 1710, S.Ct. L.Ed.2d 353 141, 396, Naughten, 147, 414 U.S. 94 S.Ct. Doan, (1993); (1973)). 237 F.3d at 736. The habe- 38 L.Ed.2d 368 petitioner that the as must show trial error Mitigation 1. Define Failure to injurious “had substantial and effect or jury’s determining influence ver- complains court the trial Doan, dict.” at 736 (quoting 237 F.3d explain failed to the meaning “mitiga 1710). Brecht, 507 U.S. at factor,” tion” or “mitigating leaving the Although presentation of out- Downs’s her jury speculate throughout “to the trial as findings may of-court have been constitu- they supposed to what it was were to be error, tional Mason cannot demonstrate considering.” Petitioner’s Br. at 135. We that it substantially that, affected or influenced contrary note as initial matter jury’s claims, verdict. The evidence at trial Supreme prece Mason’s Court gun grip was more than the prior extensive dent convic that existed Mason’s subject experiment; clearly of Downs’s tion did not establish a defendant’s fact, alleged weapon process jury right murder was the due instruction on board reli- mitigation.19 wooden with nails attached to it. definition of Angelone, jury applied Under Buchanan v. 522 U.S. that the has the chal- lilcelihood (1998), way lenged prevents S.Ct. 139 L.Ed.2d 702 instruction in reviewing jury constitutionally relevant evi- the standard for instructions consideration of (quoting phase capital from the selection of a dence.’’ Id. at S.Ct. 757 sentenc- ing process Boyde California, is “whether is a 494 U.S. there reasonable 584, 97 Georgia, aggravating against anee on Coker v. circumstances mitigat- (1977), factors, ing L.Ed.2d 982 is una- “including, the latter but not to, in that vailing. Although the limited the nature and circumstances of “mitigating did define circumstances” character, case history, offense and the justifi- constituting as “circumstances not Defendant, background oth- ques- cation or excuse for the offense in er factors that are relevant to the issue of tion, which, mercy, may but fairness and whether the Defendant should be sen- extenuating reducing be considered as or tenced to agree death.” at 1288. J.A. We degree culpability punish- of moral with the Ohio “the (inter- ment,” 590-91, id. at 97 S.Ct. 2861 instructions, whole, considered as a ade- omitted), quotation question nal marks quately guided and did not re- Supreme the whether a before Court was strict mitigating its consideration of evi- rape sentence of death for the crime of dence.” 694 N.E.2d at 953. We punishment prohib- was cruel and unusual deny respect therefore habeas relief with Eighth Amendment. Id. at ited to this claim.

586, Indeed, 97 S.Ct. 2861. the trial court 2. Failure to Instruct on Residual

gave pursuant the instruсtion to state stat- 589, Doubt ute. Id. at 97 S.Ct. 2861. Coker provides support no therefore for the due argues that he was denied process claim that Mason must successful- process due by the trial court’s refusal to ly jury make for us to review a challenged give proposed a instruction on residual instruction. doubt. In Franklin v. Lynaugh, 487 U.S. 164, 2320, 108 101 S.Ct. L.Ed.2d 155 Mason also contends that “the (1988), majority Supreme a Court jury’s not sufficiently guid discretion was agreed capital defendants do not have 153, Gregg Georgia, ed under v. 428 U.S. a right jury constitutional to demand con (1976).” 2909, L.Ed.2d 96 S.Ct. 49 859 Pe sideration of residual doubt during the however, Gregg, titioner’s Br. at 137. sim 6, sentencing phase. Id. at n. 173 & 108 juries in ply pen recommended that death (plurality opinion); S.Ct. 2320 id. at 187- alty “apprised cases be of the information 88, (O’Connor, J., 108 2320 S.Ct. concur imposition relevant of [the death] in ring judgment); Penry see also v. provided sentence and with standards to 302, 320, Lynaugh, 492 U.S. 109 S.Ct. guide Gregg, its use of the information.” (1989). 2934, 195, 256 L.Ed.2d Because U.S. 96 S.Ct. 2909. The trial ease; Supreme precedent provided guidance clearly such in Court estab it instructed the jury duty weigh support of its lishes that Mason cannot his resid- 1190, (1990)). lone, 225, 232, S.Ct. 108 L.Ed.2d 316 The 120 S.Ct. Supreme Eighth Court has thus held that the L.Ed.2d 727 require and Fourteenth Amendments do not a challenged We note the instruction in give specific

trial court to a instruction on complied this case with the Buchanan man- evidence, mitigating much less define what it date that a trial court should not restrict a (holding means. Id. at S.Ct. 757 jury's mitigating consideration of evidence. jury that a instruction base the decision on However, controlling Buchanan is not be- constitutionally "all the evidence” was suffi- years it decided a cause was three and half jurors opportu- cient because it "afforded conviction, AEDPA, and, after Mason’s under evidence”). nity mitigating to consider The Supreme precedent Court must be in exis- only requirement constitutional is that prior tence to a conviction to control a habeas preclude capital jury instructions do not Williams, analysis. considering mitigating from court’s See 260 F.3d at evidence. Id. at 757; Ange- 118 S.Ct. see also Weeks v. imprisonment serving twenty years deny habeas relief argument, we ual doubt af- parole eligibility with a life sentence claim. respect to this with imprison- serving thirty years ter the Death Remove Sen- 3. Failure to ment. Jury tence from The trial court then read at 1290. J.A. States, 164 In Allen v. United jury would three verdict forms (1896), 41 L.Ed. 528 U.S. consider, express instruction with held that the trial significance attach or- not supplemental giving in court did err The forms were read. der which the jury. Id. at to a deadlocked instruction a death verdict form recommеnded first constitutionality The 17 S.Ct. 154. sentence, recommended life the second referred to as charge, an Allen sometimes after twen- parole eligibility with sentence turns on whether the “dynamite” charge, recommended a life ‍​‌​‌‌‌​​‌​​‌‌​‌​​​​​‌​​‌‌‌‌‌​​​​​‌‌​​‌‌‌​‌‌‌​‌​​‍ty years, and the third Low question was “coercive.” charge thirty parole eligibility after sentence 231, 241, Phelps, years. jury began its deliberation enfield (1988).20 An 98 L.Ed.2d 568 p.m. penalty phase of the trial 3:50 “in charge must be reviewed its con Allen 27, 1994, Monday, and broke for June Id. under all the circumstances.” text and p.m. jury returned evening the at 5:05 The (quoting Jenkins 108 S.Ct. to continue deliberations to the courthouse States, 445, 446, 85 United Tuesday, 1994. at 8:45 a.m. on June curiam)). (1965) (per 13 L.Ed.2d 957 After a lunch break from 12:00 noon supple that the trial court’s argues jury the trial court p.m., 1:30 the informed jury during its instruction to the mental a unanimous that it was “unable to reach penalty phase at the of the deliberations sentencing op- decision on one of the charge. improper trial was an Allen jury After the giving tions.” J.A. at 1311. the trial court gave following pre- charge, trial court the a standard Allen

The jury: following colloquy in the with the liminary engaged instruction to the jury foreman: recommend the sentence of You shall unanimously, ju- all twelve you possibility, death if The Is there a Mr. Court: rors, beyond McGuire, a reasonable by proof find an additional that after aggravating that the circum- period you may doubt reach an of time factors. outweigh mitigating the stances And this instruction agreement? find, given you, that I have and consid- you If shall unani- you do not so the in- twelve, ering that with the rest of all recommend either a mously, after structions? parole eligibility with life sentence original question. Lowenfield, requested had misunderstood his Id. jury addition- the jurors polled court the individual unable to reach The trial al instructions after it became "any again, they felt that day but asked whether on the of deliberations. decision second you deliberations will enable to arrive 546. The trial further 484 U.S. at responded jurors Id. jurors to an- at a verdict?” Eleven then asked the individual S.Ct. 546. affirmative. Id. at writing "further delibera- the swer in whether jury gave an Allen obtaining The trial court then the helpful a verdict.” tions would be later, jury charge. Thirty Id. minutes Eight jurors responded in the affirmative. Id. Su- of death. Id. The denying a mis- returned sentence After a defense motion for Id. trial, jury polling of the preme held that the jury to return the trial court directed the supplemental were not instruction Id. and to the courtroom for further instructions. time, petitioner's constitu- gave coercive as to violate jury the trial court a At this rights. 108 S.Ct. 546. jurors tiоnal Id. new note that stated some No exact line can be drawn Mr. McGuire: No. as to how long jury penal- must deliberate in the to return to you The Would wish Court: it, ty phase a trial in- before court should jury room and discuss instruction, jury limit jurors struct the itself to the life with respond options then return and sentence or take the case away question? jury, from in Springer. as done Each upon case must be decided based Mr. McGuire: Yes. Here, particular circumstances. af- jury, please. The Take the Court: only ter four and one-half hours of delib- objected Defense counsel J.A. at 1313-14. erations, the trial appropri- court acted supplemental jury instruction. The ately by giving a modified Howard p.m., continued to deliberate until 5:15 charge Allen charge]. [itself modified jury evening. when it broke for jury The circumstances show that at 8:35 a.m. on returned to its deliberations deadlocked, irreconcilably was not Wednesday, 1994. After fifteen June the modified charge Howard did not minutes, jury returned a unanimous coerce a death verdict. that Mason be sentenced recommendation polled the Mason, to death. The trial court then 694 N.E.2d at 955.21 The Ohio jury, juror agreement each indicated Supreme.Court approv then reiterated its sentence. supplemental al “using urg instructions ing jurors try to continue deliberations to trial court’s Allen argues that the penalty to reach a unanimous verdict” and forced a deadlocked to contin- charge specifically stated that deliberation, such instructions in violation of his constitu- ue penalty a death case would not violate due rights contrary tional to Ohio law. process. (citing Lowenfield). Noting Id. The State of Ohio claims the Allen “expressly approved the charge unduly was not coercive. Further- Lowenfield cases,” more, charges capital of Allen in the law did not use it contends Ohio court concluded that the trial court preclude supplemental the district instruction any giving single violation of law could not did not err in “a Allen state properly petition. F.Supp.2d be in a habeas at 772. charge.” raised AEDPA, scope the of our review Under evaluating charge, the Allen the Ohio determining is limited to whether state Supreme Court first turned to State v. to, “contrary in- court’s decisions are -or N.E.2d 96 Springer, 63 Ohio St.3d of, application volved an unreasonable (1992), im- requires which a trial court to law.” clearly established Federal in pose appropriate life sentence 2254(d)(1). § violations of U.S.C. Because “irreconcilably event of an deadlocked” purview, law are not within our we supreme state jury. Id. 100. The state only will review Mason’s Allen claim explained: Howard, proposed supplemental In State v. 42 Ohio St.3d thus instruction (1989), Supreme Ohio Court it believed would result in the N.E.2d “even-handed strongly jurors.” Much of criticized the ''traditional” Allen treatment of all Id. at 194. charge placing emphasis supplemental in this case fol- for such on the instruction reaching proposed charge jury’s Id. at 192. Ac- lows the Howard verbatim. decision. court, Indeed, cording scrupulously main- to the Howard a traditional the trial court addressing jurors charge essentially pressures dissenting neutrality by Allen tained its change "subtly "jurors,” J.A. at rather than distin- jurors to their minds and thus as "[jjurors acquittal” changes requirement jury guishing between for that the verdict conviction,” closely resembling "jurors the Howard court unanimous to one more as be Howard, Supreme at 195. majority rule.” Id. Ohio Court had done. 537 N.E.2d respect supple- deny the trial court’s therefore habeas relief with determine whether “in mental instruction was coercive its con- to this claim.

text and under all the circumstances.”

Jenkins, III. 85 S.Ct. 1059. CONCLUSION charge that the was not so hold Allen We reasons, AFFIRM foregoing For the we process deny coercive as to Mason his due peti- the district court’s denial of Mason’s rights. corpus tion for a writ of habeas with re- matter, REMAND the preliminary agree spect As a to his conviction but Supreme jury that the with the Ohio Court evidentiary hearing regarding for an case “irreconcilably was not deadlocked.” Ma the claim of coun- of ineffective assistance son, jurors 694 N.E.2d at 955. The in this sentencing proceed- sel at and for further simply they stated that were “unable case ings opinion. consistent with this to reach a unanimous decision on one options,” sentencing BOGGS,

of the J.A. at Judge, dissenting Circuit gave and the trial court then the Allen part. Although foreperson initially charge. largely analysis I agree with court’s possibility of a unanimous dismissed I arguments of Mason’s this case. can- subsequent we note that agreement, however, agree, with the court’s deci- supplemental instruction discussion to remand this action to the district sion jury with the was followed almost four evidentiary hearing court for an on the jury more hours of deliberation instead of adequacy investiga- of Mason’s counsel’s his return to the trial court with a confir presentation tion and of evidence miti- jury’s inability mation of the to reach a gation during sentencing phase of Ma- persuades fact unanimous decision. This trial. ignores son’s The court’s action both giving us that the trial court did not еrr in precedent the clear estab- charge. an Allen lishing evaluating the standards for jury We also believe that the constitutionally required effectiveness of into returning not coerced unanimous defense counsel and contravenes the statu- First, death sentence. the trial court’s tory limitations on our review of state require instructions did not corpus pro- through convictions habeas reject penalty unanimously the death be ceedings. Accordingly, respectfully I dis- considering fore the In life sentences. sent from the court’s decision to reverse deed, jury’s the content of the note—which peti- the district court’s denial of Mason’s indicated lack of unanimity “on one of corpus tion for a writ of habeas and to sentencing options,” the at 1311— J.A. evidentiary hearing remand for an on fur- strongly suggests jury that the discussed mitigatory ther evidence that defense possible the three verdicts at the same counsel could have offered. Moreover,

time. not the trial court did capital This court has reversed sen deliberations, jury instruct the to continue present or tences for failure to to investi but to it could do so. discuss whether no fewer than gate mitigatory evidence on Finally, jury the than deliberated for more See, e.g., v. seven occasions. Coleman gave three hours after the trial court (6th Mitchell, Cir.2001); 268 F.3d 438 charge. jury Allen The delib Lowenfield (6th Mitchell, 663 Greer v. 264 F.3d Cir. thirty only erated for more minutes. Giv (6th Bell, 2001); v. 243 F.3d 961 Cone circumstances, en these we conclude that Cir.2001), rev’d, 685, 122 S.Ct. supplemental the trial court’s instruction (2002); impermissibly Skaggs was not 152 L.Ed.2d 914 v. coercive. We

643 (6th Cir.2001); Parker, professional Rick able assistance it F.3d 261 because is 235 (6th Cir.1997); Bell, 1150 v. 131 F.3d easy particular man all too to conclude that the (6th Cir.1997); Bell, F.3d 843 Austin v. 126 act or omission of counsel was unreason- Cir.1995). (6th Tate, 71 v. F.3d Glenn in the harsh light hindsight.” able Id. at Court, in the course of re Supreme The Strickland, 1854. See also U.S. court, has versing one such decision this 669, 104 S.Ct. 2052. abundantly extremely high clear the made case, In presented defense counsel that must be met for standard counsel’s significantly mitigatory more fobust case penalty phase in the to be representation than the counsel in Cone. Defense counsel constitutionally inadequate. considered depart- called two members of the sheriffs Cone, Supreme in Bell v. ment to comment on good behav- 685, 152 L.Ed.2d 914 U.S. S.Ct. prisoner. as a Ma- ior Counsel also called (2002), iteration of this reversed one mother, brothers, cousin, son’s his two his inadequacy of counsel finding court’s finally testify his wife to regarding phase. In our during penalty Cone meaningful hоw Mason had been in their decision, that counsel’s this court observed spare lives to ask the jury only poor, a com- presentation was not but Finally, defendant’s life. Mason himself attorney’s plete abdication of the defense indisputable poetry role: “It is that Cone’s testified about the artwork and he attorney presented mitigating no composed prison. Unlike defense argument; all and made no final he did Cone, counsel in Mason’s counsel delivered spare not even ask the his client’s closing an extensive statement. (6th Bell, life.” v. 243 F.3d Cone presentation Defense counsel’s Cir.2001) J.). Cone, (Ryan, penalty phase principal is not the thrust of single counsel failed to call witness regarding adequa- the court’s concern present mitigatory evidence and offered no Instead, cy representation. of Mason’s statement, closing although defense coun- court contends that defense counsel did briefly did cross-examine some of the sel sufficiently investigate Mason’s “histo- Cone, witnesses. 122 S.Ct. at 1848. state’s character, ry, background.” According Nevertheless, Court, with court, any investigation would have dissent, only one held that defense coun- childhood, revealed Mason’s traumatic representation penalty during sel’s living parents drug who were dealers unconstitutionally phase was not inade- users, regular beatings he quate under its standard in Strickland father, resulting received from his Washington, 466 himself drug addiction devel- oped age from the of eleven. The court Determining penal- the best tactic for present failure to suggests counsel’s presentation extremely difficult ty-phase jury this tale of was not the woe in jury’s finding the wake of a the defen- in the heat of strategic result of a choice act, guilty horribly dant of a brutal ac- knowledge regard- a lack of litigation, but Cone, cording to the Court. ing background. Mason’s The court ar- that a 1852. This court’s determination that, trial counsel conducted gues “[h]ad present any defense counsel’s failure to adequate investigation, would in mitigation pen- affirmative case for have heard substantial evidence about how alty phase was unconstitutional ineffective drug pervaded use and violence Mason’s representation indulge failed to “ history.” Slip op. and life background ‘strong presumption’ that con- counsel’s added). Indeed, range (emphasis duct falls within the wide of reason- the court n dur- post-conviction testimony parents. present The defendant was notes Mason’s P.M., ing deposition, that he not recаll defense counsel ever id. at 5:51 did regarding him his back- interviewing have been able to advise thus would his any family that of of his ground, much less attorney any of additional material Slip op. at 621-622. event, members. In might have been relevant. deposition Spare that Dr. was shows The record in this case contra existing counsel, of, fully related to aware finding that coun dicts the court’s gist of the material on Mason’s back- knowledge particularly sel had no of these appears as to which the court now ground tragic background. of features Mason’s uncertain. to be indicated, As the court defense counsel Dr. provided was the services of short, Spare’s deposition explicitly Spare, psychologist T. who ex Robert all the information to which de- covers of determine, defendant amined the allegedly exposed fense counsel was among things, dangerous other his future shoddy investigation mitigating due to into Spare relatively ness. also took an exten in- Accordingly, evidence. this case seems history from sive oral Mason. Under de prior distinguishable from cases which counsel, position questioning by defense we have denied claims of ineffective assis- Spare essentially recounted all of the facts alleged tance failure to investi- based court, that, according to this were not dis gate mitigating Specifically, evidence. Spare covered defense counsel.1 testi evidence of defendant has identified no family fied that told him that his already which defense counsel was not unusual,” parents life was “rather with his penalty phase at the time of the aware “drug long involved in related activities as Mitchell, proceedings. See Buell v. Videotape as he could remember.” See (6th Cir.2001). F.3d Deposition Spare at of Dr. Robert T. 5:57 question the one that relevant According Spare, began P.M. answer, today this court declines wheth- parents’ drug extensive involvement his pres- er defense counsel’s decision not to elementary business in “the middle drug-related ent certain evidence of the grades” using regularly and started drugs parents, of of activities Mason’s Mason’s “about the same time.” Id. at 5:58 P.M. use, long history drug physi- and of the Spare testified that also Mason said subjected, cal abuse to which Mason was regularly he had been his fa beaten strategic was a reasonable choice of coun- ther. Ibid. range sel or was within the wide of deci- Spare further testified as to several “ex- constitutionally sions that constitute effec- mitigation purposes” hibits offered for representation. tive he had reviewed in the treat- course I believe that counsel’s decision not to ment of Mason. These exhibits were present childhood evidence Mason’s was deposition the record of the included least, that, very at the reasonable reports several from agen- social services Ohio Court’s denial of Mason’s cies that included extensive records of do- application claim not an mestic and child in Mason’s home was unreasonable abuse drug-seeking Washington, and the activities of Strickland court, deposition during entry 1. The referenced as conducted 43 in district guilt phase anticipation Appendix writ of the trial in of Dr. Vol. 14 to the return of Spare's potential penal- respondent, entry possible absence for a record 29. The volume ty phase. assigned tape deposi- appears The actual to be that in the video number record, Spare tion of Dr. is our as record state trial court. (1984), regarding this duce evidence Mason’s it must be for rebuttal as violent, extensive, contemporaneous and decision. See overturn its court 2254(d)(1). activity. history assumes of criminal The court’s § The court U.S.C. nothing would not claim here more than an asser- counsel who is past simply put of Mason’s presented “Testimony the details tion: Mason’s have either indiffer- would have been childhood into context without misinter- jury to the incompetent. As subject chent’s fate it not have been the preting ent to his would evidence, trial counsel con- states: “Had prosecutor’s the court rebuttal ducted, investigation, the adequate an concerned charac- mostly which Mason’s substantial evidence have heard Slip cursory would The court’s op. ter.” pervaded and violence drug how use about opinion narrowly evidence law con- Ohio history.” and life background Mason’s explicit ruling trial court’s strues the Slip op. at 622. Tr. at 4211. trial this matter. See extremely damaging indicated that me, clear that defense

To the record is have been introduced “had evidence could only was aware of Mason’s not counsel proceed the Defense elected to with a also made a reasonable background, but expansive mitigation strategy.” more JA at present not to evidence strategic decision concedes that “[t]he 1761. Mason jury. De- background to the of Mason’s evidence,” referring court ruled that such addresses counsel’s decision fense past tо evidence of Mason’s criminal be- penalty-phase dilemma for fundamental havior, Mason’s “would be admissible.” some, recounting a To presentations. undoubtedly Br. at 13. Defense counsel and crime drug filled use childhood notwith- presented could have the evidence provide and sympathy arouse would determination, the trial court’s standing heinously vio- for otherwise explanation inviting prior introduction of Mason’s crimes, it tell a but to others would lent prosecution, criminal record waste, turpitude, lifelong moral story of admit appealed a district court decision to evidence incorrigibility. The omitted history as rebuttal evi- negative the rele- mitigating far less than here is never held that de- dence. Yet we have Cone, in Bell v. vant constitutionally obligated fense counsel is during traumatized defendant had been risk, especially when the to take such country, military to his honorable service clearly far from ruling trial court’s is Supreme Court the omission of which the required that would be of discretion abuse unconstitutionally to be determined not evidentiary determination. to overturn its omit- The evidence ineffective assistance. in the potentially aggravating ted here Indeed, makes ruling the trial court’s probable jurors, and its minds of some By raising ques- the factual ample sense. call counsel judgment is a effect activities, prior background tion of understanding of the of his the context back- makes his entire the defendant Defense counsel’s jury’s composition. all, mitigation After ground relevant. it background, and choice to omit Mason’s would have been case with this evidence choice, strategic quintessential is a parents’ a victim of his that Mason was form the basis of decision that cannot that this drug activities and violence and challenge. Strickland led an otherwise inno- sorrowful childhood ulti- personal drug use and boy cent into flatly suggests that this This court also crime. horribly violent mately to commit evidence, of Mason’s troubled particular record would use, The evidence of his criminal early drug would childhood rebut directly relevant to intro- have been prosecution permitted have man, young today step far from inno- is to omit some so that our story, showing cent, in a consistent cam- engaged who has court will later find counsel was not “effec- crime, paign including rape of violent tive.” can Creative habeas counsel con- just eerily to that for which he had similar jure possible in up myriad scenarios which been convicted. a claim can now be made that some infor- surely would mation have convinced a infirmity

Finally, given the of this murderer, spare the life of a heinous regarding court’s determination having without to face the actual conse- ineffectiveness, potential there is counsel’s quence easily that such information could legal even less foundation its decision ineffective, fact, if have been or worse. evidentiary to' remand this case for an hearing on his ineffectiveness claim. The trial counsel were to use the “kitchen sink” Anti-Terrorism and Effective Death Pen- approach seemingly by respon- advanced (“AEDPA”) alty explicitly Act lim- of 1996 counsel, and every scrap dent’s introduce its the circumstances under which an evi- helpful of information now claimed to be dentiary hearing may granted be in habeas in (including becoming his “certified Heat- §'2254(e)(2). proceedings. See 28 U.S.C. ing Conditioning,” and Air Br. see Mason’s develop If Mason failed to a sufficient “fac- n.28), probably at 72 one could find that in pro- tual of a claim State court basis approach depriving “ineffective” for ceedings,” court must dismiss argument prov- defendant of the that has evidentiary claim and cannot order an en, least, in this circuit at to be the most hearing unless the claim relies on a “new in achieving efficacious goal defendant’s rule of constitutional law made retroactive- continued life. ly applicable to cases on collateral review The fact that a trial strategy did not Court, Supreme previously that was work does not make the ex ante decision to unavailable; predicate or a factual it, employ under circumstances where previously could not have been discovered hardly any strategies at- would seem the exercise of through diligence.” due tractive, 2254(e)(2). constitutionally lawyer- defective § U.S.C. Neither of these con- ing. Given Court’s admon- ditions obtain this case. court This against ishments using penalty phase makes clear that Mason raised argu- these ments in Ohio state courts. Mason also and the Amendment Sixth as a lever in cases, opportunity had an to introduce penalty extensive death and the sound strate- evidence, of which he somewhat gic availed reasons for the omission of Mason’s himself, regarding counsel, what defense counsel background by respectfully I Any deficiency could have done. factual dissent. prevents

Mason’s claim that us from ac-

cepting may it not be cured a federal proceedings habeas when there is

no evidence in the record Ohio courts

prevented making Mason from a sufficient

factual record. This court’s current reme-

dy of ordering evidentiary hearing is 2254(e)(2)

invalid under Section of AED-

PA. if

Ironically, true aim to counsel’s see spared,

that his client’s life is the most

effective tactic under cases such as the one notes disclosure of concluded that the the purposes.” Ma impeachment nesses a rea- would not have created themselves son, Mason F.Supp.2d at 760. Because of a different probability verdict. sonable location the indicate existence failed to Id. statements, we conclude he of these with the district court agree We prejudice from unable to show has been prejudiced by the nondis- was he has failed their nondisclosure Hayden’s notes. Both closure default, pre procedural to overcome his that, Youngs testified at asserting Brady viola him from cluding disappearance, night of Chris Robin’s us. kill if he tion before her stated his intention D. Miranda Violation tody depends objective on the circum- stances of the interrogation, not on the Arizona, 436, v. Since Miranda 384 U.S. subjective views harbored either the 1602, (1966), 86 S.Ct. 16 L.Ed.2d 694 interrogating officers or person being protected privi- courts have a defendant’s questioned.” Stansbury v. California, 511 lege against by sup- self-incrimination 318, 323, 1526, 114 S.Ct. 128 L.Ed.2d pressing any “stemming statement from (1994) curiam). (per Miranda warn- interrogation custodial of the defendant” if ings required are not “simply because the police comply failed to with certain questioning place takes in the station 444, procedural safeguards. Id. house, or questioned person because the trial, is prosecution S.Ct. 1602. At intro- police suspect.” one whom the duced statements that Mason had made to California Beheler, 1121, 463 U.S. police during February interviews on 103 S.Ct. (1983) curiam) (per 10 and 1993. Mason contends that L.Ed.2d 1275 Mathiason, suppressed trial court should have (quoting these 429 U.S. at 711). they statements because were made while only inquiry “[T]he relevant he was in custody and before he received how a reasonable man in suspect’s warnings. Miranda ‍​‌​‌‌‌​​‌​​‌‌​‌​​​​​‌​​‌‌‌‌‌​​​​​‌‌​​‌‌‌​‌‌‌​‌​​‍The Ohio Su- position would have understood his situa- preme disagreed, concluding from tion.” McCarty, Berkemer v. the circumstances of February inter- 82 L.Ed.2d 317 views that Mason in custody was not dur- case, In this questioned Potts ing interrogation and that he had made twice about disappearance. Robin’s voluntarily. statements interrogation, first place which took in the N.E.2d at 946. Because the state court early 10, 1993, afternoon of February case, correctly invoked Miranda in this Office, the Sheriffs was recorded on audio- review its decision under the “unreason- tape and lasted eighteen minutes. At the application” 2254(d)(1), § able prong of hearing on suppress Mason’s motion to specifically whether application its statements made at this interrogation and legal principles “objectively unreason-

Case Details

Case Name: Maurice A. Mason v. Betty Mitchell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 6, 2003

Citation: 320 F.3d 604

Docket Number: 00-3765

Court Abbreviation: 6th Cir.