Post v. Bradshaw

406 (2002)).

tative or immigration reasons. See Sanu any event, In this court lacks si, 347; jurisdiction 474 F.3d at Al-Najar, 515 consider F.3d at factual issues on But, Barakat’s discussed, petition 716. for as review. is not the See 8 case 1252(a)(2)(C)-(D). § U.S.C. We therefore here. the BIA Because improperly placed deny judicial Barakat’s motion to take no- Barakat, proof burden of on and be tice.2 The BIA should consider the first cause the did carry Government its instance whether to take administrative in spite error, burden of the BIA’s we notice of Barakat’s motion to withdraw his grant petition Barakat’s for review and guilty plea, § see 8 C.F.R. 1003.1(d)(3)(iv), remand to BIA for consideration of his and whether remand to the is appropri- IJ motion to terminate removal proceedings ate. using the proof.1 correct burden of See grant We petition review, Barakat’s Tran, 447 F.3d at 943-44. below, vacate the decision and remand to As to Barakat’s motion to take the BIA for proceedings further consistent judicial notice his “Motion Set Aside with opinion. remand, this On the BIA Guilty Trial,” Plea and for New allegedly may also consider whether court, filed in state statutorily court is Court’s decision Padilla v. Kentucky, required to petition “decide the re — [for U.S.-, 1473, 130 S.Ct. 176 L.Ed.2d only view] on the administrative on record (2010), 284 any has effect on the outcome which the order of removal is based.” 8 of this case. 1252(b)(4)(A). § U.S.C. if Even this court judicial

could take notice of Barakat’s mo

tion to withdraw guilty his plea, “the prop

er inquiry is whether we take should such notice in the first instance.” Khora v. POST, Ronald Petitioner-Appellant, Gonzales, (6th 634, 172 Fed.Appx. 639 Cir. v. 2006) added). (emphasis question The Margaret BRADSHAW, that ultimately Warden, drives this case—whether Respondent-Appellee. the state court vacated Barakat’s convic tion for rehabilitative or immigration rea No. 03-4085. sons—involves least an element of fact. United States Court of Appeals, It would be improper for this court to Sixth Circuit. consider the effect of Barakat’s motion to Argued: 15, June 2010. guilty withdraw his plea on his removabili Decided 13, and Filed: Sept. ty without “allowing] the oppor BIA ‘the tunity to address matter Rehearing first and Rehearing En Bane ” instance in light of its expertise.’ own Denied Nov. 2010.* Id. (quoting Ventura, INS v. Orlando

U.S. 1. To the extent Barakat raised as an issue 2. The Government moved to strike Barakat’s petition on for review the reply BIA's failure to brief argument “to extent the there decide his case panel, three-member in relies on” motion to guilty withdraw argument has waived failing plea. to devel- light case, disposition of our of this op it further. “Issues per- adverted to in a we need not address the Government’s mo manner, functory strike; unaccompanied by some tion to deny ef- we therefore that motion developed fort argumentation, Co., Campbell are as Ry. deemed moot. See v. BNSF Holder, (6th waived.” El-Moussa v. F.3d Cir.2010). 7n. * (6th Cir.2009) (quoting Judge McPherson Kel- grant rehearing Cole would for the rea- sey, Cir.1997)). F.3d 995-96 sons stated in his dissent.

ulan, Office, Ohio Public Defender’s Co- lumbus, Ohio, Wilhelm, E. Joseph Federal Office, Cleveland, Ohio, Public Defender’s LeClair, Holly Appellant. E. Charles Wille, Attorney L. Office of the Ohio Gen- eral, Columbus, Ohio, for Appellee. BATCHELDER, C.J., delivered the court, SILER, J., opinion of the in which COLE, joined. 428-33), (pp. J. delivered a separate dissenting opinion. BATCHELDER, Before Judge; Chief COLE, Judges. SILER and Circuit OPINION BATCHELDER, M. ALICE Chief Judge. Post, inmate,

Ronald an Ohio death-row appeals from the district court’s denial of petition his for a writ of corpus habeas pursuant § filed to 28 U.S.C. 2254. For follow, the reasons that we affirm the dis- petition trict court’s denial of the for a writ of corpus. habeas I.

During early morning hours of De- 15, 1983, cember an Elyria, robbed Ohio, hotel and murdered the clerk on Troutman, ARGUED: Rachel Ohio Pub- duty, Helen Vantz. State v. 32 Ohio Office, Columbus, Ohio, lic Defender’s for (1987). St.3d 513 N.E.2d He LeClair, Appellant. Holly E. Office of the subsequently General, admitted his involvement in Attorney Columbus, Ohio, Appellee. ON BRIEF: Rachel Trout- the crimes to persons,1 including numerous case, Through argument oral transcripts, in this it was ord to include the which do not believed that one of the individuals to whom express include an confession of the murder Thacker, police Post had confessed was a informant partic- Post to but do detail Post’s transcripts crimes, named David Thacker. The of ipation generally. expand- in the In Thacker, record, conversations between Post and ing misapplied the district court however, part had never been 10(e), made R.App. Fed. P. which is intended to record, proceedings either in state court or in appellate allow the record to be corrected to 2, 2010, proceedings. Post's habeas On June accurately reflect the record considered court, Post filed a motion in the district court to the district not to introduce new evi- expand the record to include those tran- dence which was not before the district court. docket, however, scripts. Barrow, Our does not re- United States v. 487-88 any attempt by notify flect (6th Cir.1997). Post to this court Even if the contents of of the motion filed in the district court. transcripts were material to the issues on 13, 2010, therefore, August appeal, inappropriate On the district court be granted However, expanded Post's motion and the rec- for us to consider them. our re- details Post’s a fellow Slusher’s letter confes- detectives and While Elyria police two sion, it contains no reference to Holmok. Id. Several of Richard Slusher. prisoner, in the had had no involvement people these subpoenaed appear The State Holmok to planning. their See id. crimes or 1, 1984, grand jury August on before bring him to all documents and ordered County, by a Lorain Post was indicted relating to interviews he had with Post. 17, 1984, Ohio, jury April on one grand on quash, Post moved to and the State with- robbery with a fire- aggravated count subpoena, filing instead a motion drew (count one), and two specification arm Holmok limine to determine whether murder, each with aggravated counts testify regarding pre-polygraph could specification, a firearm specifications: two interview with Post. Post moved to exclude prin- specification that Post was testimony. Holmok’s robbery aggravated offender cipal matter, hearing At a on the pre-trial murder, and that he com- that led to witness; State called Slusher as a Slusher prior murder with calculation mitted the (1) August testified that: Post told him in three). (counts Id. at design two signed that he had written confession for pleaded guilty. 756-57. He Holmok; and Post had admitted to trial, Post’s counsel retained Before Slusher that the confession was true. On Robert M. Holmok as examiner polygraph November the trial court ruled poly- expert. addition a defense that the written confession and Holmok’s business, Holmok was graph examination testimony were admissible because Post’s Depart- for the Lakewood Police detective any attorney- to Slusher waived disclosure 21, ment, May adjacent county. in an On privilege. client 1984, in the Lo- interviewed Post Holmok following day, plea hearing The a County jail, preparing give while to rain Earlier, the had offered a held. State Post No one else was polygraph him a test. which, in in plea agreement return for his interview, Post con- During this present. plea guilty, given of Post would be a life murder, robbery and fessed to the counsel, light His in of the evi- sentence. following “The state- signed a statement: dence that Post had confessed to several only given my attorney to ment is to be individuals, him urged different had to ac- in Hume & is not to be admitted Ernie deal, cept that but Post had refused to robbery I of the against me. did the Post, plead guilty. State v. 1997 WL clerk, Inn & shot Helen.” Slumber (Ohio 1997) 10141, 3, *1-2 Ct.App. at Jan. plea hearing, At the (unpublished). called Holmok some prosecutor The trial, jury a to right agreed waived his time after this interview and asked if Post proceed three-judge panel, before a confessed, but Holmok refused to di- had contest, changed plea pursuant to no 16, 1984, July vulge that information. On with the that he would agreement State list. the State added Holmok to its witness permitted change previously be sub- informant, jailhouse July prevent On mitted motion limine—to Slusher, prosecution prosecution using Richard wrote the from the Holmok evi- Post, day, suppress. that on that Post had confessed to dence—to motion to that, hoped in the murder. N.E.2d 757. Post’s counsel Slusher his involvement any alleged they here on confession transcripts makes it clear that decision view of the immaterial, completely and we men- are also Post to Thacker. only to note that we do not base our tion them statutory miti- as there were no 513 N.E.2d 757. The conviction inasmuch present could and sentence were left gating factors Post undisturbed di- court, might at least consider the appeal post-conviction pro- the court rect and state mitigation. plea ceedings. no contest beginning hearing At the of the before sought federal habeas re- in- three-judge panel, the State noted its (1) lief, raising thirteen claims: his counsel of facts to present tention to statement guilt rendered ineffective assistance in the offenses, af- establish the elements (2) phase; his counsel’s ineffectiveness plea accepted. ter Post’s had been De- plea involuntary; rendered his no-contest counsel, previously fense who had read the (3) an jury invalid waiver rendered the no- facts, of said that it prosecutor’s statement (4) plea involuntary; contest someone on fact that the court had ruled omitted the privileged the defense team leaked infor- testimony Holmok’s admissible. Defense State, mation to violating thus omission, objected to the describ- counsel rights trial, to due process, fair and the ing as “a crucial element involved (5) counsel; effective assistance of entering of the plea,” and “evidence which jailhouse State’s use of a informant to elicit up we intend to take on The appeal.” incriminating statements from Post violat- in- prosecutor responded that he did not counsel, right ed his in violation of tend to include the Holmok confession in States, Massiah v. United his statement of facts. The court made no (6) (1964); L.Ed.2d 246 specific ruling objection. on the evidence, State failed to disclose favorable court, The after interviewing Post to in violation Brady Maryland, determine whether his knowing, U.S. intelligent, voluntary, accepted the no- (1963); (7) his counsel were ineffective in plea. prosecutor contest The then read (8) penalty phase; his counsel were statement facts to which Post’s failing prepare ineffective for an ade- again objected, reiterating counsel their quate history social psychological for the importance view of the of the Holmok con- Post; expert to use in evaluating guilty fession. The court found Post on all trial court improperly admitted victim-im- counts. (10) pact penalty statements in the phase; three-judge errors, On March pan- due to various the trial court’s sen- (11) aggravating el heard evidence of the tencing determination was improper; mitigating imposed factors and sentence. the trial court erred in failing to hear panel The proved found the State had evidence to determine whether circumstance, aggravating (12) one existed; that Post charged aggravator Ohio’s was the principal offender and had com- capital scheme is unconstitutional on its (13) a mitted murder while committing ag- face and as applied; and the Ohio gravated robbery possession and in appellate perform of a courts failed to a mean- firearm. It ingful considered Post’s no-contest proportionality review. The district plea and found that it failed as an act of court petition denied the habeas and dis- Finding contrition. there prejudice, were no missed it with granted but a circumstances, mitigating (“COA”) other the court appealability certificate of on sev- imposed claims, 1, 2, 5, 7, 9, 10, the death sentence. It also im- namely en claims posed year a aggra- timely 10-25 sentence for the and 11. appealed, asking robbery year vated offense and a expand three court to the COA to include claims specification. sentence for the firearm 4 and and moved this court to remand

413 adjudication ‘contrary to’ federal law court for resolution when to the district the ease opposite at a conclusion it ‘arrives to that discovery issues. We denied of some Bradshaw, a by Supreme ques reached Court on motion, 422 F.3d 419 Post v. a (6th Cir.2005), differently tion of law’ or ‘decides case withdrew but Warden has Supreme than the Court on set of expand motion to opposition her ” indistinguishable facts.’ materially Biros this court to set and asked COA (6th Cir.2005) 422 Bagley, v. F.3d certified briefing schedule on the issues Williams, 412-13, (quoting on those that Post court and the district 1495) (internal omitted). brackets in the COA. S.Ct. this court to include had asked schedule, may grant habeas relief under the thus We briefing set a This court application unreasonable clause if the state expand the motion to impliedly granting (1) court decision identifies the correct claims 4 and 6. the COA to include governing legal principle from the Su II. unreasonably decision preme ap Court but (2) facts; plies unreasonably it to the or denial We review district court’s unreasonably extends or refuses to extend corpus of a for writ of habeas de petition a legal principle Supreme prec from Court Sheets, v. 594 F.3d novo. Tolliver Williams, edent new context. Cir.2010). (6th But because Post filed his 407-08, U.S. at 120 S.Ct. 1495. order the effective date of petition federal after application to violate the unreasonable the Antiterrorism and Effective Death clause, state application court of Su (“AEDPA”), AED- Penalty Act of 1996 preme precedent have must been govern. PA See Lindh v. Mur standards incorrect; simply more than or erroneous 320, 326-27, phy, 521 U.S. “objectively it must have been unreason (1997). AEDPA, a Under 409-11, 120 able.” Id. at S.Ct. 1495. may unless the state granted writ not be (1) adjudication of the claim: re court’s analysis ap This AEDPA does not to, contrary in a decision that was sulted that the court resolved ply to claims state of, application or involved an unreasonable deciding without the federal constitutional law, Federal as deter clearly established merits, issues on the as such claims are Court; or re mined Instead, if procedurally held to be barred. in a based on an sulted decision claims, we reach the merits of such we the facts in unreasonable determination of under law. Ma pre-AEDPA review them presented of the evidence the State light Stegall, 436-37 ples 2254(d)(1)- § proceedings. U.S.C. Cir.2003). (2). by the Factual determinations made presumed to be correct state courts are III. convincing

unless rebutted clear and 2254(e)(1). § Id. at evidence. appeal, On Post has renumbered his However, analyzing In the state claims and blended two claims. whether to, consistency, an unrea for the sake of we will adhere contrary court decision is or of, system. clearly numbering established to the district court’s application sonable Further, 10, Post has failed to brief claim Supreme precedent, may we look Court, abandoning it. See Robinson v. only holdings of the thus (6th Cir.1998) Jones, 905, 142 F.3d 906 Taylor, not the dicta. Williams v. 529 (“Issues 362, 1495, in the 412, 146 L.Ed.2d which were raised district 120 S.Ct. U.S. (2000). court, yet appeal, an not raised on are consid- “A state court renders 389 (2010) (“To and not ap- ered abandoned reviewable on establish ineffective assis- 9, counsel, peal.”). merges He claim that the trial tance of a defendant ‘must show in admitting victim-impact performance court erred both deficient preju- and ” statements, 7, (internal omitted)). claim with that his counsel dice.’ citations they placed were ineffective because guilt phase, In the when defen victim-impact evidence before the court. contest, pleads dant the result to be Accordingly, we will address this matter as analyzed is it reasonably proba whether is we address claim 7. that, error, ble absent the the defendant “would have insisted on going to trial.” A. Lockhart, 52, 59, Hill v. 474 U.S. 106 S.Ct. Ineffective Assistance of Counsel (1985). 366, argues Claims Post that his trial counsel was ineffective at stages proceedings. various To es Claim 1: Counsel Rendered Ineffective counsel, tablish the ineffectiveness of trial Assistance of Counsel the Guilt (1) Post must demonstrate that his coun Phase deficient, is, performance sel’s argues Post that his trial counsel ren- objectively prevailing unreasonable under dered ineffective assistance in guilt (2) norms, professional prejudiced (1) phase they: when employ failed to the defense. Strickland v. Washington, independent polygraphist, rather than Hol- 668, 687-88, mok, allegedly who was conducting poly- (1984). L.Ed.2d 674 “The burden is on the graphs Elyria for the Department Police defendant to make showing by such a iden (2) case; on the permitted Post to enter a tifying the acts or omissions of counsel plea no contest without a commitment alleged that are not to have been the result judges from the trial pre- this would professional reasonable judgment,” (3) death; vent a sentence of permitted Bradshaw,

Phillips plead Post to no contest without gaining (6th Cir.2010) (internal quotation marks any plea; concession for the failed omitted), and “a court indulge must adequately preserve the no-contest strong presumption that counsel’s conduct by allowing the State’s statement of facts falls within the wide range of reasonable to omit the statement of Post to Holmok. professional assistance,” Strickland, 466 organized has these deficiencies into U.S. 104 S.Ct. 2052. The test for two categories: regarding ineffectiveness prejudice is whether there is a reasonable Holmok, and ineffectiveness in advising that, probability but for unpro counsel’s plead that Post no contest. errors, fessional proceed the result of the ings would have been different. Id. at a. Holmok 2052. Finally, if the defendant does not demonstrate that his counsel’s argues first that his trial performance deficient, we do not need counsel were ineffective in hiring Holmok to consider the prejudice. (1) issue of part Simi as of the defense team because larly, if the defendant (2) cannot they officer; establish knew he was a police they prejudice, we need not consider whether knew he had an ongoing conflict with one performance counsel’s was deficient. See of Post’s trial stemming counsel from an — Berghuis -, v. Thompkins, U.S. unrelated in case which Holmok—in his -, capacity L.Ed.2d a police as officer—had obtained a trial by professionally unethical unreasonable of counsel the defendant from confession Luck, means, v. 15 Ohio St.3d his services. see State to use (1984); 1097, 1102-03 N.E.2d that counsel argues Post next were inef- contact prosecutor had they knew failing adequately preserve fective in give polygraph him to Holmok to ask ed However, appeal. the Holmok issue for against Post. of the witnesses tests to two issue, on as has argument this Post not ad arguments first two were The presented appeal, significantly it on has court, we in the district and thus vanced argument present- from the changed Post them. Brown v. may not consider See ed to the district court. Before the dis- Cir.1983) (6th Marshall, 704 F.2d court, trict Post contended that counsel courts do not consider issues (“appellate they were ineffective because allowed the court.”). to the district presented statement of facts to omit Post’s State’s However, argument third coun —that course, statement to Holmok. Of Post’s hiring in Holmok be sel were ineffective prose- counsel had no control over how the had a conflict of they cause knew facts, cutor to draft his statement of chose to work for being interest due to his asked beyond objecting statement— in the same case—was raised the State certainly wholly as Post’s counsel did—it is During post-conviction pro Post below. unclear “what more defense counsel could ceedings, Appeals the Ohio Court of found appeal, or should have done.” On howev- portion that this of the claim was barred er, argument has morphed into judicata because it could have been res totally different creature. He argues now appeal. raised on direct State that, soon as “[a]s counsel realized (Ohio 10141, at *2 n. 1997 WL *4-5 statement of facts omitted reference to 1997) Ct.App. (unpublished). Dur- Jan. Holmok, counsel should have advised Post proceedings, the district ing federal habeas against entering plea.” his no contest that this of the claim portion court held assignment Post Br. at 34. The of error defaulted, proce- was not because the state has thus shifted from counsel’s failure to question firmly rule in was not es- dural prosecutor’s control the choice of facts at relevant time and was tablished give failure to proper counsel’s inadequate to bar federal review. therefore response prosecutor’s advice in 276-77 Coyle, See Combs v. surely statement of facts. this is a While Cir.2000). The believes that Warden argument, better it is not the one ad- in respect. the district court erred this court, may in the vanced district and we of the merit of the Regardless Warden’s Brown, not consider it.2 See 704 F.2d at procedural arguments, default we conclude argument that Post’s substantive has no

merit, if it even we review de novo. He Advising b. Ineffectiveness agreed that Holmok has failed establish the No Plea Contest polygraph to—or did—conduct tests for argues Post also that counsel case, were opposed the State as to mere- they him ineffective because advised ly being to do so. Post therefore asked any any plead conflict of on no contest but failed to secure fails to establish interest specifically that would have made it for him in return. He part Holmok’s benefit mitigator sentencing argu- 2. Even if we were to consider this new be considered later, ment, explain avoiding fail. As we there give pen- the death chance strategy maintaining reasonable alty. plea, namely hope no-contest that it would refers to the American Bar In basing holding only Association’s its on these two counsel, guidelines capital-defense however, for pre- grounds, the Ohio Supreme sumably arguing that unreasonably counsel were ineffec- Court applied Strickland. failing tive for to follow them. See ABA Neither the two rationales Appointment Guidelines for the and Per- relied on establishes that Post obtained formance of Penalty any contest, Counsel Death pleading benefit from (“1989 Guidelines”) hence, ABA Cases 11.6.2 cmt. that counsel’s recommendation that (stating “counsel should insist plea he enter that was the result of reason- plea that no to an offense for which the professional judgment. able The first— penalty imposed death can be will be con- virtually Post was certain to be found guarantee, sidered without a written guilty proceeded bind- if he to trial-—is no doubt ing sentencer, true, on the court or other final but treats a trial and a no-contest (internal that death will not imposed.”) be plea equivalent, as ignores one of the omitted). quotation marks ap- On direct detriments resulting from a no-contest peal, the Ohio Supreme Court addressed plea: Post’s loss of the constitutional right merits, this claim on the and held that to have his by case decided trial. by And strategy professional- Post’s counsel’s was focusing exclusively on a guilt-phase issue ly Post, (the reasonable. See 513 N.E.2d at inevitability conviction), the Ohio Strickland, (citing 762-63 466 U.S. at Supreme Court ignored a far impor- more 2052). (at 104 S.Ct. And when Post again tant question least under the circum- case): raised this subclaim in post-conviction pro- stances of this penalty phase, ceedings, the trial court and the court of was Post likely more to be sentenced to appeals judicata held that res barred the death judges jurors? three or twelve subclaim. Hence, 1997WL at *2 n. cannot, itself, this rationale es- *4-5. tablish that performance counsel’s was ob- jectively reasonable. The claim properly is before us. See The second rationale —that pleading no —Bell, U.S.-, --, Cone v. part contest was of a strategy designed to (2009) (“When preserve the Holmok issue appeal— a state court declines to review the merits establishes no benefit to Post either. The petitioner’s of a claim ground on the that it post-conviction attorney expert for Post has done so it already, creates no bar to major identified a flaw that reasoning: review”). federal habeas And AEDPA’s Petitioner any did not receive concession unreasonable-application clause controls from the State of Ohio when counsel for analysis, because the Supreme Ohio the Petitioner permitted to re-title Court relied on in holding Strickland pretrial its motion to exclude the testi- professionally reasonable for Post’s mony of polygraph examiner from a counsel to recommend a plea. no-contest “Motion in Limine” to a “Motion Sup- The pointed press!)”] If trial, gone Petitioner had hopelessness trial, of Post’s proceeding to he would have still had appel- the same noting that “defense counsel was faced late issue long objected as as counsel with overwhelming evidence of in- guilt, the testimony during the actual trial. confessions,” cluding several and that a no- contest Thus, benefitted by “pre- any benefit ability from the to re- serving], review, for appellate the trial pre-trial title the illusory motion was if the ruling court’s on the motion in limine.” State sought would have to use the Hol- Post, 513 N.E.2d at 762-63. mok evidence gone had Post to trial. Of it, in course, might mony produced not have used that would be at trial.” the State ABA the issue would indeed have Standards for Criminal Justice 4-6.1 which case (2d 1980) (“The case, But in that Post would lost. cmt. ed. Defense Func- been tion”) added). “strategy” gained exactly what his (emphasis way, have And this exclusion of the Holmok allegedly sought: perhaps mitigating have another evidence. arguing against imposition factor if penalty. judges death Even the three an even more fundamental

This raises panel plea on the found the no contest non- Preservation of the Holmok issue point. (as did), they in fact mitigating Post would nothing; appeal if on Post had gained mitigation phase, be no worse off having the Holmok evidence succeeded regard present- least with evidence excluded, he would have obtained no con- panel. ed to the Rather, stitutionally cognizable benefit. right back where he

he would have been course, a plea, Of with no-contest started, three difficult facing same by jurors, judges, would be sentenced virtually hopeless guilt phase choices: a persons and three rather than twelve. trial, guilty plea. a plea, a no contest or requires Ohio unanimous death sentences. 2929.03(D)(2)-(3). § Ohio Rev.Code cited the Ohio Su- The rationales Hence, contest, by pleading no Post was support finding do not a preme Court voters, any giving up nine one of whom plead that Post no contest counsel’s advice could prevent death sentence. objectively court was reasonable. The governing legal prin- correct identified the professional But judgment counsel’s is Strickland, unreasonably but ciple from strongly presumed to have been reason- analysis applied it to the facts. The there- able, and it is the defendant who must unreasonable, objectively and we fore was Strickland, that presumption. overcome must review this subclaim de novo. Cf. 689-90, Here, U.S. S.Ct. 2052. Bowlen, Dyer F.3d mitigation evidence was weak. See Cir.2006) (de if applies novo review the Post, (mentioning 513 N.E.2d at 767-68 clause). contrary-to state court violated the (24); age juvenile then his lack of convic- tions; asking But Post’s claim of ineffective assistance his unsworn statement regard forgiveness; testimony counsel with to the no-contest from relatives indi- follower, leader, cating The he was a not a plea does not survive de novo review. and loving, person caring Court did not address non-violent and sickly rationale of Post’s counsel for advis- father with children who needed third him; namely hope ing plea, psychological that the and evaluation deter- mitigating mining marginally adjusted would be considered a fac- that he was a coped problems tor. See 1997 WL at *2. man who with life’s inef- guilty, fectively maturity and plead Because Post refused de- who lacked Counsel, meanwhile, judgment). the State’s offer of a life sentence in sound spite juries guilty plea, strategy presumably return for a knew their local professionally probable reasonable. Post would be their reaction to evidence of the convicted, certainly any but he would almost death of Helen Yantz. Even without evidence, if trial. gone victim-impact have been convicted he had Vantz was ex- contest, By tremely sympathetic he would victim: an unarmed pleading “avoid[] woman, at work alone in the middle of the guilt phase the ordeal” of have his days ten night, sentence “determined without the sentenc- killed before Christmas. may nonstatutory aggravators, ing hearing all the adverse testi- These be Finally, points to they legitimate are still considerations Post the 1989 but ABA that indicate it per Guidelines is se evaluating strategy. when counsel’s See plead ineffective assistance of counsel to Strickland, 695, 699, 104 466 U.S. at guarantee a of a no contest without life Indeed, any trial counsel who did sentence. But ABA Guidelines are not likely consider them would have his not commands”; rather, they “inexorable are judgment questioned. After professional “ ‘only guides’ to what reasonableness circumstances, consideration of all the we means, Bobby not its definition.” v. Van determination that think that counsel’s —Hook, -, -, U.S. 130 S.Ct. Post stood a better chance with three less 17, 175 (quoting L.Ed.2d Strick- judges ju- than he did with 12 emotional land, 2052) at U.S. professionally reasonable. At the rors was (internal omitted). quotations As the least, very pre- Post has not overcome the Court explained, particu- Strickland “[n]o sumption that was. lar set of detailed rules for counsel’s con- argues Post trial counsel did duct can satisfactorily take account of the strategy. a points have reasonable He out variety of circumstances faced defense that, pleaded sometime before he no con- range legitimate counsel or the deci- test, Lynette one regarding represent sions how best to a counsel— McGough informally polled the three criminal Any defendant. such set of rules — judges. according testimony And to her at constitutionally would interfere with the the post-conviction hearing, protected independence she did recall of counsel and re- strict the judges that, one of the three wide latitude counsel must have indicating in making tactical decisions.” Id. 688- religion, because of his of a consideration 89, 104 S.Ct. 2052. Post’s counsel were require death sentence would a moral between a rock place and hard deter- Nonetheless, struggle. away she came mining way spare the best him a death and, indeed, convinced that all of the he— sentence, given the overwhelming evidence judges impose be able to the death —would guilt, confessions, of his his numerous penalty. Br. at argues Post 29. Post plead guilty. refusal Counsel’s circumstances, that under these counsel’s strategy professionally reasonable un- performance recommending a no-con- der the circumstances. plea “knowing test receive noth- would it,” ing for was deficient. Id. at 30. But argues he is least concedes, as Post attorney McGough while an evidentiary hearing regard entitled to did not know judge whether the third ing whether he received the effective assis plea mitigat- would consider no-contest during phase. tance of counsel the trial ing, she did know that he religious had We review for abuse of discretion the dis reservations about the death penalty. And trict deny court’s decision to an evidentia co-counsel, Duff, her Michael after hearing ry hearing. Brigano, Vroman v. summary her of the conversation with the (6th Cir.2003). AEDPA, Under judge, judge third did not think that (e)(2) If the applicant has failed to de- vote for death. Considering Ohio’s re- velop the factual basis of a claim in State quirement unanimous, that the sentence be proceedings, the court shall not plead guilty, Post’s refusal to and the diffi- evidentiary hold an on hearing the claim reasonably culties to be expected at trial applicant unless the that- shows (in phases), both no-contest was a (A) reasonable tactic. the claim relies on— law, (i) on strong appeal. constitutional issue combined a new rule of appeal. claim claim 1 on to cases on collateral with See made retroactive Court, brief, Br. at appellate that Post 22-37. His review however, unavailable; entirely or deals almost with claim previously Indeed, argu- 1. he has abandoned the first (ii) predicate a factual that could appeal, waiving ment on thus it. And previously discovered have been argu- while his brief alludes to the second diligence; exercise of due through the ment, attempt it makes no it. develop and argument Post has therefore waived this (B) underlying the claim the facts v. Sandridge, as well. See United States would be sufficient establish (6th Cir.2004) (an ap- convincing clear and evidence but pellate gives cursory mere treat- brief error, constitutional no reasonable claims, appeal ment of certain forfeits appli- found the factfinder would have claims). argument those The third guilty underlying cant of the offense. dealt under claim with and is meritless 2254(e). petitioner § If the has 28 U.S.C. for all previously of the reasons articulat- factual of a develop not failed to basis ed. And because Post has articulated no court, may the federal court claim state that, if allegations proven, factual petitioner’s if factual hearing hold a claim, him entitle to relief on this he is not if would entitle him to allegations, proved, to an evidentiary hearing entitled on it. The district court did not abuse relief. Id. denying evidentiary an its discretion 3. First, post-conviction the state hearing. evidentiary hearing that en- court held Claim 7: Counsel Rendered Ineffective compassed argued much of what Post has Assistance of in the Counsel Further, give any here. Post does not Penalty Phase

indication of what evidence he would offer argues Post also that his counsel given evidentiary hearing, if a new and the penalty phase were ineffective in the presents, factual he even if allegations proceedings they placed because victim- not entitle him to relief. proven, would

impact prejudicial in evidence and other presen formation before the court via the (“PSR”) investigation tence report and a 2: Claim Ineffective Assistance statement from the victim’s son. He con of Counsel Rendered Plea requested tends that counsel PSR for Involuntary sentencing purposes they because failed to court, argued In the district Post independent mitigation conduct an investi counsel’s ineffectiveness rendered his no gation. He also contends that counsel re plea involuntary. contest For the most quested impact the victim statement out of below, part, developing argument his ignorance capital sentencing of Ohio’s stat (1) prom- Post contended that: his counsel utes. See Rev.Code pleaded him a life if he no ised sentence (victim 2929.03(D)(1),2929.12, §§ 2947.051 (2) contest; him by his counsel confused impact required). statements are not arguing type between themselves over the entered, claim reviewing ap- to be and thus rendered When on direct plea unknowing unintelligent; peal, the Ohio Court focused pleaded upon solely performance, no based on counsel’s found it contest constitutionally adequate, counsel’s advice that the Holmok issue was and therefore during years the last several prejudice. drugs See not discuss did that, her, living court held while with he had earned at 762-63. The district N.E.2d money drug man for meritless. The War- extra as middle that this claim was reasonably It is not performance that counsel’s sellers and users. den contends prejudicial. probable nor that the absence of this informa- was neither deficient changed tion would have the outcome of that we should review this argues penalty phase. do, if But even we claim de novo. simply fails. Post has suffered claim Finally, argues that admis categories two of evi- prejudice. He cites prosecutor sion of the PSR allowed the al- by trial counsel that dence allowed penalty-phase make these comments in his victim-impact harmed him: evi- legedly an closing argument: Post had “not been (almost briefing all of his dence upstanding community. citizen of the He’s this) prejudi- other claim is devoted to and steady job. problems, caused never held a (alluded information para- to in one cial you presen You have all that before in the brief). graph of the See Post Br. at 75. report, part tence which is of the consider Appellee’s ation for the sentence.” Br. at prejudice alleg- No could flow from the 75. To the extent this is an allusion to edly impact improper victim evidence. convictions, Post’s misdemeanor it is not Any error was cured when the Ohio Su- PSR; Court, dependent on preme considering prosecutor without the vic- the the evidence, could tim-impact independently presented re- have this information weighed aggravating mitigating the and without the PSR. To the extent this is arguably attempt rely factors and affirmed the sentence of death. on non-statu Post, 767-68; tory aggravators, any See 513 N.E.2d Clemons error was cured 738, 748-50, Mississippi, 494 110 U.S. through appellate reweighing. Lund See (1990). It Mitchell, S.Ct. is gren v. reasonably probable Cir.2006) Clemons).

therefore not that the (citing any And oth proceedings result of the would have been that might er harm have resulted from prevented different counsel had the evi- clearly enough those comments is not being by dence from considered the three- prejudice constitute under Strickland. judge panel. separately While he does not brief claim 9 on appeal, argued specifically more argues

Post also of because rights by below that his were violated PSR, misdemeanors listed improper impact admission of victim state- trial panel assign mitigating weight did not mitigation. ments at He contended that felony to his lack of a But record. as the the admission of the statements was un- suggests, prosecutor Warden Maryland, constitutional under Booth v. have had access to Post’s criminal record and U.S. 96 L.Ed.2d so could have introduced this rebuttal (1987) (holding evidence even that the Constitution Appel without the PSR. See prohibits jury lee’s Br. at a from argues considering 66-67. Post that the victim prosecutor impact from the during sentencing obtained PSR the ma statements trial). jority phase capital of his material for his cross-examina of a murder The Ohio of Supreme rejected tion Post’s common-law wife. Post does Court this claim on the to, specify not the information he refers on direct review. 513 N.E.2d merits pages but does cite It transcript two of 758-59. determined that Post suf- prosecutor where the Mrs. Post if prejudice, presump- asks she fered as there is relevant, using illegal only that Post that judges knew had admitted tion will consider omission.”). at the time of its material, competent during evidence meritorious no indica- claim original and that there was 9 therefore fails as a sentencing, judge panel was influ- that the three matter of law. tion Fur- impact victim evidence. enced case,

ther, found analyzed the Booth B. constitutional there was no federal violation, significant differ- as there was Privileged 4: Leak Claim of case, and Post’s name- ence between Booth Information victim ly presenting that Booth involved complains rights that his jury, to a three impact evidence trial, process, due fair and the effective at 759. The district court judges. Id. assistance of counsel were violated when analysis, that the recognizing affirmed this the confession he made to Holmok was applied the correct allegedly somehow leaked to prosecu law, finding that this distinction case tion member his defense team. He application not an unreasonable argues testimony regarding Holmok’s Booth. the confession involved communications agree Supreme we that the Ohio While protected by attorney-client privilege, and Booth, reasonably applied we need Court ruling the trial court erred in that testimo far That is because in go as here. ny argues And he that admissible. this Tennessee, 808, 501 111 Payne v. U.S. prejudiced by causing him change him to 2597, (1991), L.Ed.2d 720 the S.Ct. 115 plea to no contest because this evi Booth, holding Supreme Court overruled damaging dence was more to his than case Eighth per that “the Amendment erects no any incriminating other statement —the impact to “the admission of victim se bar” signed, writing, confession was and Hol prosecutorial argument on evidence mok made a much more credible witness 827, subject.” that Id. than or Slusher others. not favor criminal Payne Because does defendants, Post, applies though post- Post first raised this claim in even petition, trial it was issued after his convictions and sen- conviction but the court held final, Taylor, became see Gilmore v. that the claim had been raised and decided tences 333, 341-42, 2112, appeal3, 124 on direct and was therefore 113 S.Ct. (1993); Fretwell, alternative, by judicata. In L.Ed.2d 306 Lockhart v. barred res the trial the court held it meritless. The Ohio U.S. (1993) (O’Connor, J., judicata Appeals concur- Court of affirmed the res L.Ed.2d 180 (“the Post, holding. ring) making prejudice de- 1997 WL *4-5. may proceedings, the effect of In habeas the district court termination not consider wholly claim objection it knows to be merit- held the meritless. The Warden law, default, argue procedural if does not governing less under current even instead relying on lack of merit. objection might have been considered appeal, argued slightly Supreme 3. On direct Post at 759. The Ohio Court held that he error, though certainly attorney-client privilege, of it is had waived and thus different source There, ruling argued related. that the State's use the trial court did not commit error Id. at 761. In to Holmok violated “his the confession admissible. of his confession here, proceedings, attorney-client privilege, right against post-conviction as well as self-in- crimination, right argues of that there was somehow a leak of to effective assistance State, counsel, right meaningful and that the leak access to the the confession courts, of process.” 513 N.E.2d is the source error. and due him Despite previous holdings pretrial hearing of Post had told courts, Holmok, that, we believe the claim has the state about the confession to When, here, as a state preserved. fact, been a defense team leak was the source court declines to review the merits of of information. Br. at See Post that it has done so grounds (“Slusher’s claim on the testimony did not account for already, re procedural bar to habeas the details the State knew about Holmok’s Cone, is raised. 129 S.Ct. at 1781. view Post.”). interview with ar- While counsel governs analysis AEDPA our deference gues vigorously, pre- this idea Post has claim, regardless this of whether we are it; sented no to support evidence this sort discussing holding the alternative speculation of mere is not sufficient merits, trial court on the see Brooks v. that it demonstrate was unreasonable for Bagley, 513 F.3d 624-25 Cir. trial court to believe Slusher’s version 2008), reviewing holding or 2254(e)(1) (fac- § of events. See 28 U.S.C. Supreme ap direct Ohio Court made on tual determinations made the state very peal reviewing when similar claim. presumed courts are to be correct unless 2254(d). § See 28 U.S.C. rebutted clear convincing evi- that, alternative, dence). holding in the meritless, particular claim was the state Second, argues that the Ohio Su- post-conviction trial court relied almost preme legally in holding erred wholly Supreme analy- on Court’s Post’s “disclosure to a party third appeal. sis on direct The Ohio pursuant communications made to the at- Court found the claim meritless because: torney-client privilege breaches confi- (1) attorney-client privi- Post waived his dentiality underlying the privilege, and lege respect with to the confession when Post, constitutes a waiver thereof.” 513 (2) Slusher; he it revealed to and the State that, N.E.2d at prior 761. He contends rely did not on the in Holmok evidence its Post, holding in its this was not the facts, statement of the and “the statement Miles, points law. He to Swetland v. 101 of facts that appellant revealed confessed 501, (1920), 22 Ohio St. 130 N.E. in which persons to several that he murdered Supreme specified only Ohio Court objection Vantz” and he “made no ways privilege: two for a client to waive inclusion of these in admissions the record (1) consents, if the client if or verity nor did he contest of those voluntarily client testifies on the same Post, statements.” 513 N.E.2d at 761. subject. Id. at 23. argues He also that Supreme The Ohio Court also found that Supreme the Ohio Court realized its er- prejudiced by he was not the disclosure.4 case, McDermott, ror in a later State v. holding, scrutiny, This if it survives defeats 570, (1995), 72 Ohio St.3d 651 N.E.2d 985 because, Post’s claim even assuming that portion and modified a prior of its hold- allegations that a defense team Therefore, ing. See at id. Post ar- true, member leaked information are there gues, the Supreme holding Court’s prejudice, was no as Post forfeited his in argu- Post was unreasonable. This right confidentiality in the matter. ment is without merit. Supreme Post attacks the Ohio Court’s First, holding ways. in two speculates Supreme explained As the Ohio Court Post, held, lying that Slusher was when he testified at it previously had in Travelers Packer, holding upon Early 4. Because this was based state clause. See v. 537 U.S. 123 law, (2002). contrary-to we review it under AEDPA’s L.Ed.2d 263 154 Cochrane, Co. v. 155 Ohio St. Indemnity C. (1951), attorney- 98 N.E.2d 840 5: Claim Massiah Violation voluntary privilege by client was waivable Post claims that the use State’s of (privilege See id. is disclosure. Slusher elicit incriminating statements voluntary ... “destroyed disclosure from him after his indictment violated his

to others the content of the state- Massiah, right to counsel. See 377 U.S. at ment.”). change And McDermott did not 206, 84 requests S.Ct. 1199. He also applied this as it to Post. See analysis evidentiary hearing on the matter. McDermott, (recogniz- 651 N.E.2d In post-conviction proceedings, state ing judicially the difference between a cre- Appeals Ohio Court of held that this claim “where, attorney-client privilege, ated Post, judicata. was barred res presence attorney, without the of the 10141, at (holding WL *4-5 that Post had [Post communications between Hol- claim established could not mok], attorney’s agent, were deemed have been raised on appeal). direct The statutory attorney-client privileged,” and a district court found this claim meritless privilege where the communications were a hearing. denied The argues Warden client, attorney directly between which that proeedurally this claim is both de- subject “judicially is not to a created waiv- faulted and meritless. er.”). The rule announced McDermott While federal courts typically are apply therefore would not even if hearing barred from claim pro that was retroactively applied. any were court, cedurally defaulted in state see event, supreme is a matter state 86-87, Wainwright Sykes, interpreting law. Post state has (1977), when pointed clearly to no established United a state erroneously upon relies its own rule Supreme precedent States which procedural default, the claim is not holding the Ohio Court’s Mitchell, barred. v.Hill contrary. Thus, assuming runs even (6th Cir.2005) Mitchell, (citing v. Greer 264 allegations that a team defense (6th Cir.2001)). 663, F.3d 675 findWe true, member leaked information are there that the Ohio Court in Appeals of erred was prejudice, because Post forfeited raising a to procedural bar Post’s claim right confidentiality his to in the matter as post-conviction proceedings. a matter of state law when he disclosed the procedural normally Ohio rules contents to Slusher. raising bar defendant from for the first that We find the post-conviction time in proceedings a claim correctly determined that Post’s claim was that fully litigated fully or could have without merit. Consequently, the district litigated trial appeal. or on direct State deny- court did not abuse its discretion 175, v. Perry, 10 Ohio St.2d 226 N.E.2d ing an evidentiary hearing. has set Post (1967). 104, 108-09 If, however, defen that, out allegations proven, no factual if dant “had no means asserting of the con entitle him only to relief because the stitutional claim there asserted until his allegations factual pres- that he to wishes discovery, judgment after the of convic ent on claim are in relation tion, to whether asserting of factual basis that of privi- member his defense team leaked claim[,] ... the ... ... claim was not one information, leged not whether that that could have been raised ... before privilege by conviction, later forfeited judgment was Post. and hence could

424 words, agents ... which had deliber- ting ... reasonably be to have been said he had ately v. elicited from him after been (citing at 107 McMullen Id. waived.” Maxwell, 160, and in the of his counsel.” 209 N.E.2d indicted absence 3 Ohio St.2d 206, (1965)). 1199. Massiah’s 377 U.S. S.Ct. interroga- ... secret “primary concern is have as- that could not appears It investigatory techniques that are tion post-conviction this claim until his serted police interroga- equivalent direct that indicating discovery of evidence Wilson, Kuhlmann tion.” v. agreement an with the State had Slusher (1986). incriminating from evidence to elicit here, therefore, that the key The is tech- confession. jailhouse time of Post’s at the be to have been the niques must shown certainly Post was aware of Slusher While interrogation. equivalent police of direct stage, no evidence pre-trial in the he had is no violation when There constitutional agent acting was as that Slusher “happenstance obtains in- the State [] In- to him. when Post confessed State criminating statements from the accused deed, evidentiary hearing on Post’s at the right has after counsel attached.” evidence, suppress the Holmok motion Thus, “a not make out a Id. defendant does confession, regarding testified Slusher simply [the Amendment] violation of Sixth information supplied noted that he reported ... by showing an informant But that he was to the State. he denied incriminating police.” to the statements prose- any consideration from offered Instead, a “must Id. defendant demon return, that it was “not adding cution took strate that ... informant some prosecutor.” for going motive [his] action, beyond merely listening, that was It not until Post was convicted after designed deliberately to elicit incrimina Tul- that his counsel learned from Michael Id.; ting remarks.” see also United States attorneys, that at the ly, one of Slusher’s Henry, 447 U.S. him, Post confessed time Slusher (holding L.Ed.2d government informant who was directed a gov is a when there Massiah violation the information in return for the elicit “deliberately used ernment informant charges pending dismissal of prosecution’s position incriminating to secure informa Counsel also discovered against Slusher. tion from when [the defendant] counsel two letters —from December 1983 and Jan- failed present”). was not Post has uary by prosecutors, 1985—written showing. make this government indicated Slusher’s role as informant in the case. Post thus Post points July Post to a letter to could not have added this evidence prosecution from to as Slusher evi- appeal, properly record on direct and he “merely that he did more than dence lis- brought post-conviction pro- the claim in ten” to Post. notes that the letter He ceedings. And because the state that “No states more than 20 minutes judicata the res defense and misapplied got story I [ago], finally complete from merits, it on the claim is did not decide to on the happened night Ron Post as what barred, and we it de novo. not must review the murder.” contends that use He Maples, 340 F.3d at 436-37. See that he “finally” of the word indicates must continually sought past, a defen- in the with-

Massiah held it violates have success, to counsel to elicit a confession from right Sixth Amendment out dant’s Post, against unwilling coop- trial to when the State uses at but Post was along defendant, long incrimina- erate “until he coaxed Post “evidence of his own had enough gain Reply develop to Post Br. this claim not trust.” were pre- available However, trial. 14. The of the letter this does not entitle language at does Post evidentiary hearing. to an good For nothing of the sort. The mere use of the cause shown, the district court has the give any us discretion “finally” word does not indica- to permit discovery proceed- habeas only passively of whether tion Slusher ing, 6(a), § see 28 2254 Rule “pro- U.S.C. actively listening asking to Post or was petitioner vided that the presents habeas substantively questions conversing. specific showing allegations reason to be- fact, says the letter later that “Post facts, fully lieve that the if developed, may scared, to ‘Rick I’m came me and said I lead the district court to believe that feder- might fire Duff tomorrow and hire Smith al appropriate,” habeas relief is Lott v. got get my story straight I ... so to will ” Coyle, Cir.2001). 261 F.3d help me?’ then you Slusher details But case, in a penalty “[e]ven death bald makes no Post’s confession and mention of conclusory assertions allegations do asking any questions offering any or en- provide ground ... sufficient to re- Further, couragement to him. Slusher quire an evidentiary hearing.” Stanford pre-trial hearing testified with re- Parker, (6th Cir.2001) that “I gard to the confession didn’t initi- (internal omitted). quotation marks it. “He told me [Post] ate did.” he had to Thus, discovery petitioner allows the get something talk. He had to off his find that extra evidence he still needs to mind, my opinion.” and he wanted This is prove strengthen or his case. A hearing is wholly insufficient to demonstrate that for the petitioner who has already amassed any designed took Slusher action to elicit enough relief, evidence to him entitle if confession, beyond merely listening true, proven evidence is and who now Post. needs a hearing prove that his evidence Finally, points to the affidavit of will scrutiny. indeed withstand Post has attorney, Tully, that Slusher’s Mr. stated showing. not made that that Slusher worked “as informant in The full story discovery at the district exchange sentencing consideration” court is also telling. Post’s counsel asked to “intentionally under direction for and got leave in the district court to elicit statements from Ronald Post about pursue discovery, inexplicably—they but— argues this case.” He that this also dem- pursue did not it. See 422 F.3d at as an onstrates Slusher’s role active infor- Then, years after with six no discov- It mant. is true that this affidavit shows ery (despite on the issue the district government Slusher’s role as a informant court’s having specifically set a ninety-day confession; however, the time of discovery window within which was to oc- Slusher, fact, does not indicate that did cur), the finally district court ruled on the deliberately confession, elicit the rather petition, habeas after which Post filed merely it. listening than 60(b) styled what he as a Rule motion Nevertheless, argues directed at having opportunity to do that —at a is minimum—he entitled to a discovery that had neglected he to do remand to the district court for an eviden during years. previous six Id. We held claim, tiary hearing on this because he did that the motion not in fact a was Rule have a full opportunity 60(b) not and fair motion, to was a instead successive develop the claim pre facts of this in his petition prohibited by habeas that is AED- discussed, hearing. previously trial As we Consequently, PA. Id. at 424. in order is further, it true that the facts Post for Post claim pursue needed to to he following capital procedure the State’s only requested his out have not need to

would discovery evi- hearing, present but also the evidentiary requiring prosecutor And as pursue. failed to his counsel that exis- charged aggravator’s of the dence held, has forfeited previously we prosecutor presented tence. Because meet the re- thus fails to discovery. He contends, evidence, conviction his Post this claim hearing, quirements supported charge is capital-murder will be denied. constitutionally insufficient evidence. by without merit. This claim is D. Supreme the Ohio appeal, direct On Brady Violation Claim 6: cases, that, in state agreed capital Court unconstitu- the State argues Post Post described required procedure law impeachment evi-

tionally failed to disclose law, but, held that Post had applying Ohio offered dence, namely that Slusher a state- proffering to the State’s agreed exchange for his efforts consideration and he facts in lieu of evidence ment of post-convic- against Post. gain evidence Post, 513 agreement. was bound Ap- of proceedings, the Ohio Court tion review, the at 766-67. On habeas N.E.2d procedurally claim that this peals held to in- defaulted, expanded held that the record and the district court district and merit- both defaulted the claim was of Post’s a new affidavit from one clude hearing. less, evidentiary and denied counsel, that he mistak- trial who indicates disagrees. Post state- enly prosecutor’s believed that the law satisfy of the facts would Ohio ment proce not address the We need right to a and that Post did waive however, issue, as the claim dural default aggravator’s to determine the trial de novo de novo review. “[T]he fails even under existence, agree- nor did he enter into an the Govern require does not Constitution that a statement of impeachment material ev ment with State ment to disclose agreement prior entering place idence of evidence. facts could be used United States with a criminal defendant.” court denied relief because The district Ruiz, 536 U.S. S.Ct. issue that did not rise this was state-law (2002). Because Ruiz 153 L.Ed.2d due-process of a violation. to the level defendants, ap favor criminal does not apparently believes that AEDPA’s though it was issued plies to even unreasonable-application applies clause became after convictions and sentences Br. at of state law. See Post applications 341-42, final, Gilmore, see 508 U.S. (not 2112; Lockhart, challenging application 113 94-95 fails as a The claim therefore In actual- any Supreme precedent). S.Ct. 838. Court result, request matter of law. As a ity, Supreme application Court’s Ohio evidentiary hearing is denied be for an analysis only means that our is state law cause, allegations if all of his factual even contrary-to clause. And controlled proven, he not be entitled to were nei- that clause was not violated because relief. reasoning of the ther the result nor the contrary Supreme opinion was Court

E. prec- clearly established to Hear 11: State Court Failed Claim edent. Charged Aggravator Evidence of contest, Post By pleading no

Finally, that the trial court argues objection sufficiency of any waived accepting plea in no-contest with- erred his

427 Freed, evidence, counsel, knowingly, voluntarily, the United States v. see intelli- 24, Cir.1982), says so he gently 688 F.2d 25-26 we does not contest. argu- cannot reach the merits of Post’s Nor the reasoning was state court’s con- contrary

ment that the result was to clear- trary clearly Supreme established Court ly Supreme precedent. Court established precedent. Supreme The Ohio fares argument Post’s other no better. found that “the parties agreed that the fact, he there is no constitutional concedes by of facts proffered statement the [S]tate the requirement prove guilt that State would constitute the sole evidence of ag- of a pleads defendant who no contest. See court,” gravating circumstances before the 107, Tunning, 111 United States v. 766, 513 N.E.2d at Post was (6th Cir.1995) (“The that a requirement by agreement, bound id. 767. He sentencing satisfy must that a itself points clearly to no Supreme established supports guilty sufficient factual basis Court precedent implying even that it is plea requirement is not a of the Constitu- a improper represented hold defendant tion”); Edwards, Carpenter see also v. knowingly, voluntarily, to his and intelli- (6th Cir.2004) 672, (Merritt, Fed.Appx. gently made agreement. J., (writing, guilty- in an concurring) case, capital prosecu- “the state argues that the state-court decision tor than himself rather sworn witnesses “constitutes an unreasonable determina- a basis for entry stated factual law,” tion of the facts and Post Br. at 94- no plea. There is federal constitutional 95, but fails to specify factual which find- prohibition forbidding a state trial court ings challenges. He does not mention from establishing factual this basis the trial-counsel filed in affidavit the dis- way”). court, trict so he any has abandoned claims arise from might that affidavit’s factu-

To the extent there a vio was Robinson, al allegations. See F.3d at lation, it have been a violation of Regardless, the trial counsel affidavit law, cognizable state cor not a habeas presented Supreme not to the Ohio Harris, pus proceeding. Pulley See v. 465 Court, hardly the court so could have been 871, U.S. it, considering unreasonable not see 28 (1984). 2254(d)(2). extent petitioner To the that a § U.S.C. And that leaves Post alleged facts, claims that an debating significance. state-law violation only their issue, result, raises federal constitutional we challenge As a “unreason- general review it due-process findings collapses under able” of fact into his standard: whether the de challenge application defendant was the “unreasonable” fundamentally nied a fair trial. Don law. See law—state To the extent he at- nelly DeChristoforo, 643- Ohio Supreme applica- tacks the Court’s (in L.Ed.2d 431 tion of state law there finding could be facts), (holding may only that federal courts over an agreement under these argu- turn resulting may convictions from state trials ment only through be viewed alleged when the error contrary-to “violated some restrictive lens of the clause. right guaranteed which points clearly defen Because to no estab- Amendment.”). by dant Fourteenth lished Court precedent contra- nothing law, There fundamentally application is unfair dicted of state we about requiring prove the State to find in the no error district court’s denial defendant, case that represented of relief on this claim. States, 377 U.S. United

IY. (1964). reasons, AFFIRM we foregoing For majori- from the respectfully I dissent denying judgment of the district I that Post’s ty’s opinion because believe for habeas relief. petition in constitutionally infirm both was counsel and at the plead him to no-contest advising Further, I we sentencing stage. believe DISSENT court to hold remand to the district should COLE, dissenting. Judge, Circuit evidentiary hearing on Post’s Massiah an claim. possible death Ronald Post faced As robbery charges aggravated

sentence on I. murder, ad- his counsel aggravated analyzing Post’s claim that he re rights trial forego him all of his vised assistance of counsel ceived ineffective contest, any indica- plead no without contest, plead no when he was advised or the prosecution tion from either the that the Ohio Su majority concludes this sentencing panel three-judge unreasonably Strick preme applied life. help spare his anything would do 668, 104 Washington, land leading plea, no-contest Following his (1984). The 80 L.Ed.2d attorneys sentencing hearing, his up to his majority justification that neither of finds in- independent an then failed to conduct inevitably by that court—that Post fered might vestigation into circumstances guilty gone had he would have been found against imposition mitigate al pleading no contest to trial and Further, sentencing at the penalty. regarding death preserve him to the issue lowed Holmok’s testi admissibility of Robert itself, that a requested counsel hearing constitutionally cogniza mony provided family permit- the victim’s be member of — analysis. agree ble benefit. I with of this choice speak. ted to Because novo, However, reviewing the issue de testimony heard attorney, the last that Post’s trial majority then concludes him to three-judge panel which sentenced was plead counsel’s advice to no contest discussing how death was the victim’s son there was objectively reasonable because just murdered ten his mother had been be considered a “hope that the first Christ- days before Christmas —the I mitigating disagree. factor.” I While had off work thir- mas she would have attorneys acknowledge that Post’s were only years teen his belief that “the —and strong position unenviable —there just for execution is execu- punishment guilt, but he had evidence of their client’s 913-14.) (J.A., 4, at Additional- tion.” vol. that the plead guilty refused to believe —I sentencing, new evi- ly, following Post’s attorneys to make requires Constitution light indicating that Richard judgments something dence came based on strategic hope, concrete than unsubstantiated more jailhouse informant whose Slusher —the hangs when their client’s life especially testimony Post’s confession pretrial about the balance. go the decision not to large loomed over intentionally trial —had elicited the confes- contest, he pleaded At time Post the direction of the sion from Post attorneys: Mi- represented by two McGough. Al- Lynett chael Duff and in violation of Massiah v. prosecutors,

429 Guidelines”) “ABA though McGough initially both Duff and advise that attorneys guilty, once he plead Post to re- representing facing advised defendants the death fused, plead to Duff advised him no contest penalty that plea “should insist no to an preserve admissibility the to Holmok issue offense for penalty which the death can be Duff did not think appeal and because imposed will be without considered a writ- Post would be sentenced to death if that guarantee, binding ten on the court or pleaded no Prior to sen- contest. the sentencer, other final that death will not McGough tencing hearing, polled the three be imposed.” ABA Guidelines 11.62 cmt. judges sitting on to see if panel they the Further, they recommend that no “[i]f plea a mitigat- would consider no-contest guarantee written can be obtained that factor if ing they opposed were moral- imposed death will not following plea be the ly penalty. judges to death Two of the of guilty, be extremely counsel should re- McGough they told explicitly would luctant to in a participate waiver of the plea consider a as a mitigat- not no-contest client’s trial rights,” that “counsel judge factor. The ing third indicated some must strive a ... prevent client from imposing moral concern about the death pleading guilty where there is a likelihood beliefs, religious based on his but penalty a plea such will result in a death he, McGough concluded that as well as the sentence.” Id. 11. cmt. 6.3 The 2003 ver- two be judges, willing other would to im- sion of the guidelines these offer similar pose penalty. the death Based on these guidance. See ABA Guidelines 10.9.2 cmt. conversations, McGough stated that her (rev. ed.2003). Indeed, citing the 2003 if “feeling was we entered the no contest Guidelines, ABA Supreme the Court has plea Judges impose then the the stated: 4, 995.) penalty.” (J.A., vol. at death [Pjleading guilty a capital [to offense] Therefore, she continued to advise Post to without guarantee prosecution that the change plea plea a guilty even after will recommend a life sentence holds the no-contest been entered. In had little if any for the benefit defendant. contrast, Duff plead advised Pleading only guilty relinquishes tri- apparent, contest. As is Post followed al rights, it increase the likelihood that Duffs advice and entered no-contest the State aggressive will introduce evi- plea. during dence of guilt sentencing the I believe that counsel was Post’s ineffec- phase, gruesome so that the details of plead in advising tive him to no contest jurors’ the in crime are fresh minds any guarantee that it without would help they as on deliberate the sentence. spare his life. The ABA 1989 Guidelines Nixon, Appointment for the Florida Performance of 191 n. (the (2004).1 Penalty Death 125 Counsel Cases S.Ct. L.Ed.2d 565 Nixon, Supreme rights 1. Court held that it dant "retained the accorded a defen- per capital was not se unreasonable for a dant in a forcing criminal trial” and guilt during prosecution aggressive defendant’s counsel concede present evidence of express guilt during phase, without the guilt trial consent of an un- this evidence was defendant, cooperative “separated penalty phase, order to enabling focus on from the Nixon, mitigation phase. penalty at the portion defense to concentrate 191-92, mitigating U.S. 551. This trial on S.Ct. case factors.” Id. at First, Second, important regards. key differs in two as the factor undermin- noted, ing Nixon defense Strickland claim Nixon was that strategy guilt counsel's strategic concession was not defense counsel conceded as a equivalent guilty plea mitigation help presentation of a because the choice to defen- (reaffirming undoubtedly found attorneys as ABA should serve that the Guidelines position. “Attor- in a difficult themselves analyzing courts the constitu- guides for face capital defendants neys representing tional-deficiency prong of Strickland trial developing in challenges daunting claims). situation, ABA In this the Guide- defen- not least because strategies, In follow- is clear. lines’ recommendation In such clear.... is often guilt dant’s not, major- we as the ing guidance their do [may cases, ‘avoiding be] execution ” adopt to them ity suggest, seems to need possible.’ only realistic result best and Rather, as both this per as se rules. ABA Guidelines 10.9.1 (quoting Id. at 191 has stated ed.2003)). and the Court (rev. However, Court I believe cmt. guidance look to them for repeatedly, we required Post’s coun- that the Constitution determining repre- in whether counsel’s strategic judgments a based sel to make constitutionally inadequate. sentation was an un- more concrete than something on that his no-contest hope substantiated plea “A or no-contest involves guilty fac- mitigating considered a plea would be many waiver of substantial constitutional tor, life because their client’s particularly Mitchell, v. rights Fautenberry ....” majority Curiously, the was on the line. (6th Cir.2008). Here, 614, F.3d 636-37 why pleading no- explains never opinion rights in Post was advised to waive those mitigating considered a contest would be hope than a exchange nothing more Indeed, majority points out as the factor. plea that his no-eontest would be consid- that, must penalty death verdicts because may I mitigating. imagine that Post ered law, unanimous under Ohio Post essen- be knowing in that gained have some comfort tially potential lost nine “no” votes attorney hoped plea his no-contest jury. over a choosing three-judge panel mitigating factor. would be treated as Further, negative possible there are other But comfort was short-lived. Post’s this implications plea might that a no-contest duty foremost that situation counsel’s three-judge pan- carry. example, For alive, keep hope keep not to but to Post’s no-contest el could have viewed light, it certain- Post alive. Viewed acknowledgment from Post as plead him to ly was unreasonable to advise Vantz, refusal killed but stubborn rights all trial no contest and waive of his accept responsibility for his crime. guarantee, without a or least some con- indication, doing might help so crete

Further, majority provides expla no spare his life. ABA recom why nation for Guidelines’ disregarded. Follow mendation should be For Post to succeed on this claim he precedent, this Court ing Supreme course, would, of still have to demonstrate that the ABA Guide specifically has held Post’s claim is based prejudice. Because guide contest, lines should used as a to deter be plead on his counsel’s advice repre mining the standards of reasonable satisfy ‘prejudice’ require- “in order to cases, ment, penalty sentation in death even a rea- must show that there is [he] that, predate adoption. their See but for counsel’s probability cases sonable Mitchell, 482, errors, pleaded guilty v. 354 F.3d 486-88 he would not have Hamblin Kentucky, (6th Cir.2003); going to trial.” v. and would have insisted on see also Padilla — Lockhart, U.S.-,-, v. 106 S.Ct. Hill case, inadequate. phase penalty phase. In this as discussed likewise below, representation penalty Post's (1985); immediately also Rai a group, L.Ed.2d 203 see as before the hear- Webb, 415-16 ley ing. Cir.2008). At post-conviction the state Further, the district court concluded hearing, Post testified that he wanted a performed that McGough deficiently at the that, a trial and had he re

jury believed hearing itself sentencing calling the ceiving penalty possibility, the death awas Vantz, son, William testify victim’s when not have no contest. pleaded he would have she “should known that [the son’s] Further, plead already had refused damaging statement would be to her client adding propo more credence guilty, and that law did not require son] [the going that he on sition would have insisted given opportunity to be an to make but for try to his counsel’s ineffective ad (Id. 151.) statement.” at William Vantz plead vice to no contest. stated that his mother a caring, “was lov- ing who woman would do anything II. anyone. anyone; never hurt She she would also claims that ineffec he received never, anyone.” (J.A., ever hurt at vol. penal of during tive assistance counsel 912-13.) He also described how his moth- ty of his state-court phase proceedings. er, who murdered days ten before Below, the district court concluded that Christmas, scheduled to work on unreasonably ap the Ohio Christmas for first time in her thirteen Strickland in claim plied rejecting this be years working at the Slumber Inn and how Post’s did not “[d]efense cause counsel to plans spend day she had her with to strategic present make decision not only grandson. son and He stated further evidence in or an in mitigation certain that full of enjoyed “she was life----She decision not to certain investigate formed fullest, her life to the and for it to be taken Instead, Mr. Duff and Ms. facts. (Id. just in such a isway inexcusable.” at McGough in any independent failed to do 913.) He concluded: background into Mr. vestigation Post’s executed, only and I She was feel the hearing.” for the preparation mitigation just punishment for execution is execu- (Dist.Ct.Op.143.) conducting Rather than My family my tion. feels that way, independent possible investigation into cousins, brothers, wives, my our friends evidence, com mitigation Post’s counsel family. pletely upon presentence relied investi gation report prepared by probation woman, everyone We loved as did department. example, leading up For to that came touch with her. A of part sentencing hearing, lawyers Post’s left, my life left when she and that will to family failed interview his members and never come back. background order to obtain in

friends him, formation on leads failed follow I’m to leave it in going your hands witnesses, potential about character right, just. do what’s what’s I’m not to obtain in failed records and collateral law, yet in my versed in but heart to adequately formation research his back only thing I feel the give do is to Indeed, ground. family who witnesses what he Mr. Post deserves. testify sentencing did on his behalf at the (Id. 913-14.) (his mother, hearing and com stepmother, wife, respectively), majority despite mon-law affi The concludes that this submitted stating spent performance his counsel at the penalty davits defense counsel only preparing testify, phase, ten minutes claim fails because them he cannot pretrial At a prosecution. tion requirement. prejudice

meet Strickland’s that the at- the trial court ruled hearing, Strickland, U.S. at See protect did not torney-client privilege However, a client faces the “when Holmok be- with Post’s communications unless coun being put to death prospect of those communi- cause Post’s disclosure in miti something presents sel obtains acted as a waiver of cations to Slusher require some minimal gation, standards Thus, called to Holmok could be privilege. Coyle, 171 F.3d Mapes v. investigation.” trial. testify Post’s confession about Cir.1999). Mopes, from of Holmok—who aside prospect The had been the defendant Court held was em- polygraph examiner also being failure to con by his counsel’s prejudiced testifying police as a ployed because mitigation investigation duct a detective— played have appears against unpre that went though the evidence even coun- factor in Post’s and Post’s significant was, at phase during penalty sented likelihood of success evaluation of his sel’s ... best, mitigation, “slim evidence at trial. im is most something. And what [was] only

portant, defendant’s] it was [the testified pretrial hearing, At the Slusher Id. Post’s a death sentence.” shield from Post’s confession to that he did not reveal mitigating presented counsel has habeas in gain in order to favor rela- prosecutors describing inadequate parent Further, evidence pending own cases. tion child, inappropri ing he received as not initiate the he testified that he did received, inadequate discipline he Post re- ate and conversation with Post where being ov to Holmok. Howev- self-consciousness about vealed his confession er, only after this pills. to abuse of diet evidence discovered erweight, which led claims. hearing undermined both of these certainly Mopes, although in is As First, evidence, prosecutors are letters from there mitigating dramatic the most in fact receive indicating that Slusher did I that had this evi something. is believe exchange consideration from the State family presented, been had Post’s dence confession, revealing his role in Post’s for testify adequately been witnesses who did namely, charges the dismissal of two not called and had Post’s counsel prepared, him decision not to against and the State’s son the final wit the murder victim’s as request proba- Slusher’s for shock oppose testify, prob “there is a reasonable ness to Second, from tion. there is affidavit proceed ability that ... the result of the attorney, Tully, stating Slusher’s Michael different,” Strickland, ing have been “it the Lorain was determined is, one S.Ct. that Richard County Prosecutor’s Office voted not judges of the three would have intentionally elicit state- Slusher would penalty. impose death concerning his ments from Ronald Post III. (J.A., vol. Aggravated Murder case.” 2513.) Finally, disagree majority’s I with claim.

treatment of Post’s Massiah While “Generally, petitioner is enti habeas being jail pretrial, held in evidentiary hearing in federal tled to an inmate, confessed to a fellow Richard sufficient petition alleges if the release, Specifically, told Slusher relevant facts are grounds Slusher. to Robert courts did not hold previously dispute, that he had confessed and the state Holmok, evidentiary hearing.” examiner hired full and fair Stan polygraph Parker, 442, 459 attorneys, and that his confession Post’s ford Cir.2001). Massiah, agents state Under relayed this informa- was true. Slusher prohibited intentionally from eliciting are suspects they

confessions from after have indicted in the

been absence their coun Massiah,

sel. See 377 U.S. at 1199; see also United States v. Hen 264, 272-75,

ry, 447 U.S. (1980) (holding

L.Ed.2d 115 that Massiah

applies jailhouse involving cases infor

mants). Thus, if actively Slusher elicited confession, rather than having pas it,

sively received Post would have a viable Here,

Massiah claim. the evidence re pretrial hearing

vealed since the indicates dispute there is a factual as to wheth actively

er Slusher elicited Post’s confes Indeed,

sion. it is uncontested that Slush-

er passing received consideration for

Post’s confession along prosecution

and, affidavit, by way Tully’s there is prosecutors

evidence that him asked

elicit such statements from Post. Under circumstances,

these I would find that the

district court abused its discretion in deny

ing Post an evidentiary hearing to develop

his Massiah claim further.

IV. reasons,

Based on the foregoing I dis-

sent. America,

UNITED STATES of

Plaintiff-Appellee, HOWARD,

Willard Defendant-

Appellant.

No. 08-6143.

United States of Appeals,

Sixth Circuit.

Argued: July 2010. Sept.

Decided and Filed: 2010.

Rehearing and Rehearing En Banc

Denied Oct.

Case Details

Case Name: Post v. Bradshaw

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 13, 2010

Citation: 621 F.3d 406

Docket Number: 03-4085

Court Abbreviation: 6th Cir.