Stumpf v. Robinson

(9th Cir.2012); King, In re 697 F.3d Cir.2012) (5th curiam); (per Hare v. (7th States, 878, 879, 688 F.3d

United Perez,

Cir.2012); In re 682 F.3d 933- (11th Cir.2012) curiam). (per proposed

Liddell also asserts that his

§ motion should be considered

successive because the district court failed him give proper warnings rechar-

acterizing his 2004 motion as an initial However,

§ 2255 motion. this argument is record,

belied which indicates that

Liddell himself characterized the motion as § pursuant

a motion filed 2255.

Accordingly, motion Liddell’s for this

court’s authorization to file a second or §

successive 2255 motion is All denied.

other outstanding motions are likewise de-

nied. STUMPF,

John David Petitioner-

Appellant, ROBINSON, Warden,

Norm

Respondent-Appellee.

No. 01-3613. Appeals,

United States Court of

Sixth Circuit.

Argued: June 2012. July

Decided and Filed: State, wholly sepa- Freedman, gues, because Midwest Alan M. ARGUED: following his conviction proceeding rate Ltd., Evanston, Justice, Illi- For Center evidence, sentence, new presented T. Alexandra Schim- nois, Appellant. for after his which arose General, Attorney Ohio mer, Office of actually fired the fatal shots. may have Ohio, Appellee. ON Columbus, for Freedman, R. Carol Alan M. BRIEF: Because all of the available evidence Justice, Ltd., For Center Heise, to all of the courts presented Midwest at all times courts, Illinois, Alex- Evanston, Appellant. involved, for the Ohio and because Madden, Schimmer, independently appellate, Thomas Of- both trial and andra T. General, all of the available evidence weighed Attorney Colum- Ohio fice of the sentence, no proper death to be the found bus, Ohio, Appellee. occurred. We now due-process violation BATCHELDER, Judge; Chief Before: court. affirm the district DAUGHTREY, BOGGS, MARTIN, I COLE, CLAY, GIBBONS, MOORE, SUTTON, COOK, ROGERS, Clyde Daniel May Stumpf, On KETHLEDGE, GRIFFIN, McKEAGUE, Leroy Edmonds Wesley, and Norman DONALD, WHITE, STRANCH, and Washing- along Interstate 70 near drove Judges. Circuit ton, Pennsylvania. The three had been nearby continued to drinking at a bar and J., BOGGS, opinion delivered they had in supply from a of beer drink BATCHELDER, C.J., court, in which hand- the car. Also in the car were three COOK, ROGERS, SUTTON, GIBBONS, belonged a nine-millimeter that guns: GRIFFIN, McKEAGUE, and Edmonds, chrome-plated .25-caliber a JJ„ KETHLEDGE, joined. Edmonds, belonged that also and Raven 754-63), DAUGHTREY, (pp. delivered a J. belonged to a .25-caliber Armi that Wes- MARTIN, dissent, in which separate ley. STRANCH, COLE, CLAY, MOORE, dusk, Stumpf, Wesley, and Ed- Around WHITE, DONALD, JJ., (pp. J. joined. Guernsey County, pulled monds over 763-67), separate a dissent. delivered Wesley a Stumpf Ohio. walked to yards away from the home some hundred OPINION rang road and the doorbell. Both were BOGGS, Judge. Circuit wife, Mary and his armed. Norman Stout Jane, for a Stumpf petition filed were seated at their kitchen table. John David Stumpf the door. in federal district Mr. Stout answered corpus writ of habeas to let Wesley convinced Mr. Stout them unsuccessful state attacks following court house, claiming they needed to and death sentence for on his conviction Robbery, though, was their phone. use the that he committed with Daniel murder Stumpf phone used the aim. After Wesley. pe- court denied the The district —and a handkerchief —he and Wes- wiped with that judgment, reversed but tition. We and told the Stouts ley guns drew their unanimously reversed Court robbery Stumpf in progress. that a Stumpf, us. Bradshaw into a bed- herded Stouts 2398, 162 L.Ed.2d 143 room, gunpoint them at Stumpf where held could con- remanded so we The court the house. while scoured Stumpf primary argu- is now s sider what moved toward rights eventually were Mr. due-process ment: that his Stout so, him between the Stumpf. Stumpf ar- shot violated at This is he sentencing. Undeterred, eyes Raven. Mr. Investigators with the found by tracing Edmonds grappled Stumpf, pushed phone Stout with who call that he made from gas him into a second bedroom across the hall. arrest, station. After his impli- Edmonds Although Mr. Stout not remember does Stumpf cated and Wesley. police is- when, again, he was shot time in this sued arrest warrants for both. When he top of the Mr. head. Stout also suffered arrest, learned of the warrant for his being bruise consistent with struck surrendered, denying any involve- gun. thing butt end of a The next that ment in the crimes. After he found out hearing Mr. Stout remembers is two male survived, however, that Mr. Stout tone, voices conversing a normal fol- participated admitted that he in the rob- gunshots. again lowed four Mr. Stout bery and that he shot Mr. Stout in the consciousness; lost next recollection Still, head. he claimed that he went being way the ambulance on the straight to Mrs. Stout’s car after shooting the hospital. Stout, Mr. and thus was not in the house when Mrs. Stout was killed.

The four shots that Mr. Stout heard wife, Mary were the shots that killed his Prosecutors charges indicted Jane. Three went into the left side of her murder, aggravated attempted aggra- face, one through went her left wrist. All murder, aggravated vated robbery, and four bullets came from gun, the same grand two counts of theft —one of an auto- did the bullets used to shoot Mr. Stout.1 mobile and the other of a firearm. Includ- Stumpf Wesley drove off in Mrs. ed with aggravated-murder charge proceeds Stout’s car with the of their were four specifications, three of which crime. Stumpf threw the Raven out the Stumpf eligible made for the penal- death window. ty. Stumpf right waived his be tried

Edmonds, waiting who had been in the jury, proceeded a and the case in front of a road, car on the side saw Mrs. three-judge panel. began, Before trial pull Stout’s car out garage. Fright- Stumpf decided plead guilty. plea The ened, away. stopped gas he drove He for bargain provided plead would Concord, Ohio, in New phone made a call murder, guilty aggravated aggravated Texas, family to his in and left without murder, attempted specification and the him, paying gas. for his Two men chased using a firearm committing felony. while a quit their pursuit but when Edmonds fired capi- He also admitted to one of the three his pistol nine-millimeter at them. Ed- specifications tal charged committing — Washington, monds went back to Pennsyl- purpose escaping murder for the detec- vania. tion, apprehension, or punishment for attempted robbery and attempted aggra- day, Stumpf Wesley

The next aban- return, vated murder. In the State doned would wiping Mrs. Stout’s car after it drop remaining charges. The three- fingerprints. They clean of reunited with Edmonds, judge panel evidentiary conducted an hear- pis- and sold the nine-millimeter they ing tol and a to determine whether there was a fac- Magnum .357 stole was, tual money. Wesley Mr. Stout for travel basis. Satisfied that there Texas; colloquy accepted Edmonds drove back to conducted a in Stumpf stayed Pennsylvania. Stumpf plea. s

1. The Raven never recovered. It was bullets found at the scene were fired from the clear, however, that the .25-caliber Armi fired gun. same round, only one and that all of the other addressing wife. In that killed his eligible for the shots Stumpf was

Because directly, argument principal-offender plea, after his even prosecutor said: hear- held three-judge panel that he There, leitmotif was Stumpf s ing. necessary this I it is for don’t believe influence. He Wesley’s acted under [Stumpf] was the court to conclude being a for propensity that his claimed is, offender, that the actual principal leader, con- follower, his rather than ample I think there is evi- shooter. alcohol, and his youth,2 his sumption at all. I conceding dence—I’m him extraor- made mental abilities limited rec- ample evidence this think there’s influence. susceptible to dinarily fired the four ord that this defendant respect his suggested that Stumpf also Mary body into the Jane Stout. shots signifi- lack of a and his generally women to inconsis- pointed then claim history reinforced the criminal cant given in accounts that tencies Wesley’s lead. following simply that he was “So, points and continued: at various his own argued Finally, Stumpf —based rec- ample, ample evidence this there’s drawn and inferences statement unsworn make the reasonable inference ord to partici- he was from the evidence—that defendant shot both those individuals.” this murder, but not the in Mrs. Stout’s pant Still, again emphasized, the State claimed that he He principal offender.3 if penalty even impose could the death during struggle Raven dropped the Mrs. did not believe that had killed and ran out of the house with Mr. Stout after delibera- panel, Stout himself. The of the house outside panic, then remained tion, “beyond a reasonable doubt found him instructed to drive Mrs. until of- the defendant was car, fired the shots Stout’s and im- fender” Mrs. Stout’s murder that killed Mrs. Stout. posed penalty. the death Meanwhile, in Wesley It arrested story. a different been The State told Ohio, being After extradited to he Stumpf that “did most of the Texas. emphasized a cell with James Eastman. East- ... the one that used shared talking was] [and he, Wesley that told him that Wesley and first man claimed Stumpf when telephone” home, Stumpf, that not fired the shots that killed Mrs. the Stouts’ noted approached trial in front of a fingerprints Wesley off of the Stout. stood wiped his Stumpf it, jury. judge presided who over using he finished The same receiver after judges Stumpf three-judge panel presided that Mr. Stout did s over reminded the Wesley’s prosecutor trial. The tried Stumpf dropping gun his and did same not recall time, presenting after conversing voices at a nor- the case. This hear two male evidence,4 prosecutor ar- hearing gun- the four Eastman’s mal volume before twenty-three "witness it Stumpf at the time of the 4.Justice Souter does use term was Eastman, had vouched for” in reference to crime. 175, 189, Stumpf, Bradshaw (2005) (Souter, 760-62, 162 L.Ed.2d 143 Judge Daughtrey pages seems 3. At J., perhaps concurring), and that is the source original sentencing Stumpf's that distressed Daughtrey’s repeated Judge use of that hearing "without the benefit was conducted Dissent, 757-58, Daughtrey term. See J. testimony proving eyewitness that any 759-60, However, course, course, it 761-62. trigger Stumpf man....” Of was proba- improper and indeed eyewitness, would have been percipient Mrs. Stout the most herself, (for bly the state to have reversible error for unfortunately deceased rea- presented. the witness it See prosecution). "vouched for” sons not the fault of the was, principal fact, that Wesley that was the offend- he in an aider gued and abet- put tor, therefore to be er and deserved that may very well have had an Wesley, in death. who took stand his upon effect this Court’s determination of defense, Stumpf that shot own claimed whether the death should follow. Wesley’s Stout. counsel also noted Mrs. would, I’m not saying possible. but it’s prosecutor position had taken prosecutor The agreed, suggesting that in that was the offender “the first decision this Court would have to trial, Stumpfs had been make is whether or this additional sentenced death for the crime. The information changes picture as to that aggravated found jury guilty finding previously that was made.” The and, trial, murder after a rec- judge persisted, asking whether there was that he in ommended be sentenced life that, evidence the record so far “[i]n prison, possibility parole with the fact, Wesley trigger man.” twenty years. Stumpfs pointed counsel to Eastman’s tes- ended, Wesley’s Stumpf, When timony at Wesley’s trial. judge case on pending whose was still direct right asked: “don’t we some have to read appeal, three-judge panel. went back to the is, fact, that and determine whether He asked that either him allow testimony?” credible an- counsel guilty plea to withdraw his vacate his in the judge swered affirmative. The then sentence. Eastman’s the parties: told “I haven’t read it [East- presenting the State’s testimony]. certainly man’s I’m going to Stumpf argued, cast doubt privilege take the so.... I’m going do conviction and sentence. The read both Eastman and because again represented the same State — I didn’t privilege hearing have the prosecutor who tried both testimony.”5 Wesley disagreed. hearing At a conduct- — Stumpfs original panel denied relief ed two of the judges three who heard order, summary stating that “the court (the judge case having other died [Stumpfs took under motions] advisement interim), prosecutor argued same, having and after considered does first must determine whether testimony changed overrule Motion to Withdraw Former its earlier principal-offender determination. If Plea and the Alternative Motion to Set changed, determination Imposed.” Aside the Sentence The case the suggested, court should consider Appeals. returned to the Ohio Court of penalty whether the death was still appro- There, a Stumpf assigned number of er- priate. rors, including panel a claim that the in light should have vacated his sentence of

Nevertheless, prosecutor urged the that testimony. Ap- Eastman’s The Court of Wesley’s testimony ballistics evidence and First, disagreed. it peals addressed the suggested Stumpf, Wesley, that not directly, flatly panel’s rejecting decision principal the of the judges offender. One proposition the responded: trying the that State’s Wesley as a principal offender after secur- we had [I]f not been satisfied that was, fact, man, Stumpf a Stumpf trigger ing against conviction made ei- the the offender, Stumpfs imposition and we were satisfied ther or the conviction Reid, (6th course, judge, United States v. The other 625 F.3d 5. of heard Wes- ley's testimony, Cir.2010). pre- and Eastman’s since he Wesley's at sided trial. First, Then, error-. it that neither decision was inappropriate. of the correctly that decided panel Ohio the do under Re- concluded obligated to it was as to 2929.05, Ap- of was not entitled withdraw § the Court that vised Code Then, “the the court considered weighed guilty plea. facts his independently peals testimony in the record direct- impact disclosed the Eastman’s other evidence 2929.05(A), case,” including noting argument § East- ly, the id. “independently testimony. It have tended to “testimony man’s would (1) questions: ... Do ... and mitigating two a factor there- examinefd] ... establish satisfy in the record hearing necessary and evidence is sentencing the facts a new fore circumstances of aggravating the us that to allow to consider it.” panel in order guilty outweigh was found Stumpf, which Ohio St.3d State (2) and, Is the sen- mitigating factors? first analogized It N.E.2d The court appropriate?” of death tence request “a motion for new trial to independently “We must be emphasized: evidence,”6 upon newly based discovered to both of these answer persuaded ibid., that the and therefore held abuse-of- the death sen- ‘yes’ is to affirm questions applied. The court discretion standard The court answered first tence.” is specified that defendant not “[a] then Addressing in the affirmative. question sentencing hearing a new entitled to mere- second, specifically it found “the by coming with some additional ly forward supports the conclusion evidence initial hear- evidence Wesley, pulled who Stumpf, suggested panel “apparently ing,” that the propelled the four bullets into trigger that that Eastman’s add- determined The court af- body of victim.” weight to affect mitigating ed insufficient firmed. balancing mitigating factors its circumstance,” against aggravating appellate pursue continued to and found “no error in that determina- Supreme relief, time in the Ohio this explained: at It tion.” Id. 609. “East- Appeals, Like Ohio Court Court. and, in the hearsay man’s face Stumpfs claim that court first considered appellant’s the evidence sen- erred, by refusing adduced either to hearing, weight. tencing of minimal As plea by refusing to let him withdraw his such, too a The court it is attenuated warrant his death sentence. held vacate law, including interpretation Judge of state one an- White faults the Ohio Court reality appeal challenged disregarding alleged nounced on direct for conviction, judges sitting court proceeding two who refused binds a federal before the corpus.”). Stumpf presented Stumpf's this vacate sentence amounted habeas court, question supreme resentencing, opposed to a motion state which that, Ohio, Dissent, at 763. determined under the laws of new trial. J. White Accord- a new ingly, posits Stumpf's motion was akin to a motion for she sentence must requires adjudication law and thus amenable to two be invalid because Ohio panel. jury three-judge three-judge Stumpf, vote or a members unanimous if we were to impose death. Ohio Rev. 512 N.E.2d 608-09. Even in order 2929.03(D)(2). arguendo Supreme pre- the Ohio § has not assume Code court, (a misinterpreted highly argument own law and Court its sented this to this for assumption), question error could not present a dubious such an good reason: it does not of relief. legal Stumpf's as a basis habeas See law. The nature of serve for federal federal 67, law, 62, McGuire, v. 112 purely a Ohio Estelle 502 U.S. S.Ct. question is over motion 475, (1991) ("We have 116 L.Ed.2d 385 stated Supreme the Ohio Court is the ultimate which 74, corpus Richey, many times habeas relief v. 546 U.S. that federal arbiter. See Bradshaw (internal 602, (2005) lie for law.” 407 does not errors of state S.Ct. 163 L.Ed.2d 126 omitted)). ("We quotation marks repeatedly have held that state court’s sentence new appellant’s Supreme granted vacation of and a Court certiorari unanimously Ibid. sentencing hearing.” part, and in reversed vacated in part, erred, and remanded.7 We considering Stumpfs assignments After held, by Court finding first that Stumpfs error, indepen- the Ohio Court plea unknowing was involuntary. and dently ag- considered whether crime’s Stumpf, 175, 182-86, Bradshaw any gravating outweighed circumstances L.Ed.2d factors, mitigating required too was holding Also in error was our “that prose § under Ohio Code to do Revised 2929.05. cutorial inconsistencies between affirmative, making It answered in the Stumpf Wesley required and cases voiding “finding] of a special Stumpfs plea,” guilty precise since “the during Clyde Wesley’s cellmate trial is of identity triggerman was immaterial credibility.” Stumpf, minimal 512 N.E.2d to Stumpfs conviction for aggravated mur at 610. The court then moved to its “final der. ... provided never [and] has ... task to determine whether the sen- explanation prosecution’s an of how the It appropriate.” tence death is Ibid. postplea use of arguments inconsistent held: knowing, could have affected the volun- imposition the death in tary, intelligent plea.” and nature his cause is judice sub neither excessive 186-87, Court, Id. at 125 S.Ct. 2398. The Further, nor disproportionate. fact however, suggested prosecu- that “[t]he appellant’s co-defendant re- allegedly tor’s use of inconsistent theories parole eligi- ceived a life sentence with may have a more direct on Stumpfs effect bility years twenty part for his for it arguable sentence ... is at least Mrs. Stout’s murder is not an impedi- panel’s conclusion about ment to the death affirming sentence role in the offense was giv- the instant life case. The sentence material its sentencing determination.” en to verdict jury of a Id. at It noted that separate 2398. trial. clearly did distinguish 611. Id. at Stumpfs challenge between to his convic- unsuccessfully pursuing After post- state challenge tion his sentence. remedies, Stumpf conviction a peti- filed Thus, no “expressed opinion the Court on corpus tion writ of habeas federal prosecutor’s whether the actions amounted relief, court. The district but court denied violation, a due whether or granted a of appealability certificate such prejudi- violation would have been (1) Stumpfs guilty four claims: plea cial,” respect with to Stumpfs sentencing (2) not knowing voluntary; Instead, claim. gave Ibid. the Court us presenting, first casting state’s then doubt consider, in opportunity “the the first on, Eastman’s evidence violated his due- instance, question of how Eastman’s (3) process rights; that he inef- received prosecutor’s and the conduct in sentencing; fective assistance of counsel Wesley eases relate to (4) that the death-penalty Ohio statute particular.” death sentence in unconstitutional, facially as-ap- 187-88,125 Id. at S.Ct. 2398. Mitchell, plied. Stumpf v. 367 F.3d (6th Cir.2004). remand, again judge With dis- On judge one with one dis- senting, we senting, reversed on “either or both” we held that the State violated first two grounds. Stumpfs due-process Ibid. rights presenting, separate concurring opin- Justices Two filed ions.

748 Const, XIV, amend. of law.” U.S. on, process Eastman’s testimo- casting doubt then from this prejudice Stumpf suffered ny. 1. § “[bjecause reasoned, all indi- violation, we of a criminal denial applied As three-judge panel that cations are the failure to observe process due not have Stumpf to death would sentenced fairness essential fundamental in” persisted the state so had done justice. In order to of very concept of- Stumpf was arguing that must find that a denial of we declare 426, Houk, v. 653 F.3d fender. in- fatally of that fairness the absence Cir.2011). (6th rehearing granted We 439 trial; complained the acts fected at opinion. Id. vacated that en banc necessarily quality such as must be of 426. a fair trial. prevents 219, 236, California, 314 U.S. Lisenba v. II (1941).8 “In 280, 86 L.Ed. 166 62 S.Ct. filed his habeas “Because law, Court criminal [the field of the Antiter enactment of before petition infractions category defined has] Penalty Act of Death and Effective rorism fairness’ ‘fundamental that violate (AEDPA), under his claims we review 1996 that, recognition narrowly based on habeas pre-AEDPA the standards guarantees enumerat- beyond specific 182, 125 Stumpf, 545 U.S. statute.” the Due Process Rights, in the Bill of ed “Thus, the cor presume we 2398. S.Ct. v. operation.” limited Medina Clause has findings, factual court rectness of state 437, 443, 112 S.Ct. California, 505 U.S. only clear are rebuttable which (internal (1992) 2572, 120 quo L.Ed.2d 353 evidence,” v. Abdur’Rahman convincing omitted). (6th 468, Cir.2011), marks and alterations Colson, 472 tation F.3d 649 Thus, subject pro law and action “is not questions review of federal state but and fact de questions of federal law the Due Process Clause scription mixed under 783, Anderson, 663 F.3d justice v. principle novo. Sowell unless ‘it offends some Cir.2011). (6th therefore consider We 789 and conscience so rooted in the traditions claim, pres due-process which ranked as funda people of our be ” fact, law and de question a mixed ents York, v. New 432 U.S. mental.’ Patterson novo. 2319, 197, 201-02, 281 97 S.Ct. 53 L.Ed.2d (1977) Massachusetts, Snyder (quoting v.

III 97, 105, 54 78 L.Ed. 674 291 U.S. S.Ct. Medina, (1934) J.)); (Cardozo, 505 see also A 443, 112 S.Ct. 2572. U.S. prohib The Due Process Clause any such To determine whether any person “depriving] its the state here, thing happened we must consider life, liberty, property, without due omitted). Neither marks and alterations species due-process claims axe two There opinions, that "shocks Stumpf, prior cases. State action nor even the in criminal nor our violates the Due Process the conscience” majority, specifies which kind Supreme Court component. Rochin v. We, substantive Clause's allegedly like occurred here. of violation 165, 172, California, 342 U.S. Souter, Stumpf to claim Justice "understand (1952) (Frankfurter, J.). State ac- L.Ed. 183 standard, due that it violates the basic deprives a defendant of a fundamen- tion that fundamentally procedure, barring unfair Due Process tally fair trial violates Stumpf, to stand.” allow his death sentence component. procedural Medina Clause’s J., (Souter, S.Ct. 545 U.S. at 437, 443, California, concurring). (1992) (internal quotation L.Ed.2d 353 749 Stumpfs trials.”) (em- nature of claim. precise flicting evidence at the two argue knowingly not added), does State phasis vacated on other grounds, Pate, evidence, misrepresented v. Miller 538, 1489, 523 U.S. 118 S.Ct. 140 L.Ed.2d 1, 785, 17 386 U.S. 87 S.Ct. L.Ed.2d 690 (1998). (and 728 It not did offer different (1967), presented misleading false or testi- contradictory) testimony from the same Holohan, 103, mony, Mooney v. 294 U.S. trial, Wesley’s witness in without acknowl- 340, (1935), 55 S.Ct. 79 L.Ed. 791 failed edging the contradiction. Smith v. Cf. testimony, Napue Illinois, correct false v. Groose, 1045, (8th Cir.2000) 205 F.3d 1051 264, 1173, 360 79 U.S. 3 L.Ed.2d 1217 (“[T]he prosecutor chose at Smith’s trial to (1959), or materially exculpatory withheld Lytle’s 2,1983, use December statement to evidence, 83, Brady Maryland, 373 U.S. later, secure Smith’s conviction then (1963). 1194, 83 S.Ct. 10 L.Ed.2d 215 Nor Cunningham’s Lytle’s elected to use does he claim that evidence suggests new 30, 1983, November statement to secure innocent, actually that he is Herrera v. Cunningham’s Lytle’s conviction. testimo- Collins, 390, 853, 506 U.S. 122 113 S.Ct. ny constituted the only evidence of when (1993), L.Ed.2d 203 nor that the state the murders occurred and was the sole materially withheld exculpatory evidence basis for two different convictions on two that it discovered sentencing, Dist. cf. theories.”). contradictory And it did not Attorney’s the Third Judicial Office for omit evidence of or Stumpfs guilt Osborne, 52, Dist. v. or innocence from presentation. its InCf. 2308, Instead, 174 L.Ed.2d 38 Sakarias, re Cal.Rptr.3d Cal.4th argument claims that the State’s (2005) (discuss- 106 P.3d 936-37 about hearing at the ing prosecutor’s key omission of evidence post-sentencing retroactively his motion in each of prosecutions two of co-defen- rendered his sentence—which was the re- dants, both). leading to conviction of sult of proceedings earlier that he does Eastman’s evidence did not during exist challenge- -fundamentally unfair because — Stumpfs original sentencing proceeding. argument State’s about Eastman’s tes- presented After the State Eastman’s hear- timony at post-sentencing hearing dif- say statement in Wesley’s trial and Stumpf argument fered the State’s about the relief, moved for the State stipulated to testimony Wesley’s same trial. This is Then, admissibility. evidence’s three so, Stumpf urges, though even his sentenc- panels in Stumpfs case were able to con- ing panel, the two appellate panels con- issue, sider the mitigating evidence at ducting mandatory independent review, Eastman’s claim that had admitted jury and the in the other case were able to firing body consider the same shots killed Mrs. Stout. evidence and argument opportunity hear from the Each had the weigh State and the defendant about the evidence in against both evidence all of the other evidence cases. Despite the record. Eastman’s testimo- ny, each concluded that the death

To state claim is to refute it. appropriate. All that the prosecution Nothing misleading or happened deceitful argue did was to- for two different infer- prosecution here. The present did not same, unquestionably ences from the com- incomplete different and set of facts plete, evidentiary record. It the fact- left support of different culpability theories of in Wesley’s finder trial and the factfinders for the same crime. Thompson v. Cal Cf. deron, (9th Cir.1997) post-sentencing proceedings F.3d (en banc) (“The (plurality This, more, find the opinion) prosecu facts. without does presented markedly tor different and con- not offend the Due Process Clause. 1173, 269, at 79 fol- paean prosecu pue, to the 360 U.S. S.Ct.

Stumpf s suit, due-process this conclusion. duty change confirming not lowed that a tor’s does that, may State, prosecutor] although [a “while It is true violation occurs “when the blows, liberty he is not at to evidence, go strike hard it to not false allows soliciting United, States, Berger v. strike foul ones.” And, appears.” it of uncorrected when 629, 78, 88, L.Ed. 1314 55 S.Ct. 295 U.S. course, 87, Brady, 373 U.S. at 83 S.Ct. (1935). indeed, a is enti And defendant 1194, may held that a state not withhold a “com prosecutor’s tled to relief when materially exculpatory evidence the trial with unfairness ments so infect[ ] case, trial. In each possesses before resulting a deni to make the conviction factfin- prevented action prosecutor’s Darden Wain process.” al due decision; fully from a making der informed 2464, 181, 106 S.Ct. wright, 477 U.S. prosecutor’s in each action violat- case the (1986) (internal quotation 91 L.Ed.2d 144 guarantee ed the Due Process Clause’s omitted). nothing But marks there is foul fundamentally proceedings. fair conduct here. prosecutor’s about Here, contrast, pre- prosecution arguments, prosecutor’s Each of the two all evidence that it had. The sented alone, proper. was Each rested on a taken op- factfinders then had—and took—the instance, evidentiary record. In full each portunity consider entire record. responded to the opposing counsel State’s Stumpfs original sentencing First was argument by pointing out the inconsisten- There, panel. very judge spec- who theory. cy in The mere fact the State’s that, ulated were an aider and argued for different infer- State abettor, panel’s sentencing determina- ences does not make different cases may par- tion have been told the different either so unfair that it violates argument “I open ties court: haven’t read it Due Process Clause. testimony]. certainly go- I’m [Eastman’s is a stark contrast to This ing privilege to take the to do so.... I’m prosecutor’s Court cases where a conduct going to read both Eastman and In violated the Due Clause. each Process I because have the of hear- privilege didn’t cases, prosecutor those did some testimony.” ing judge other thing to foundation of the subvert panel presided at something kept the factfinder and thus heard Eastman’s live. making fully a informed decision. considering testimony, After Thus, Miller, 6-7, U.S. Wesley’s testimony, and the evidence that 785, the held a prosecutor’s Court heard, already it had declined repeated misrepresenta “consistent and its revisit earlier determination that a [reinforced tion from state appropriate. death Two more paint-stained pair chemist] that un [a followed; independent twice reviews more was, indeed, garment heavily ‘a derwear] ” argue that the incon- was able stained blood’ the Due Pro with violated sistency prosecutor’s argument in the Likewise, Mooney, cess Clause. meant he should be sentenced to U.S. 55 S.Ct. the Court ex indepen- required before plained “depriving defendant lib dently to weigh aggravating factors and erty through deception a deliberate mitigating factors and whether determine jury by presentation court and of testi known, the death penalty was warranted. Twice mony perjured” be was a due- violation, more the Ohio courts held that the death added); process (emphasis see States, That Giglio 150, penalty appropriate. also v. United lost neither that the factfinders 31 L.Ed.2d 104 Na- means event, argument, failed to consider his nor that it is inconceivable that prosecu- used to affirm his death sen- argument tion’s subsequent before the A fundamentally tence was unfair. crimi- panel of judges analogous presen- right pro- nal defendant has the to a fair perjured tation of testimony or the misrep- ceeding impartial in front of an factfinder resentation of Making evidence. legal ar- based on reliable evidence. He does not (which guments from the record contained right prevent have the testimony of Eastman and much evi- justifiable from arguing inference from a contradiction, dence in including testimony record, complete evidentiary even if the himself) from hardly can be called argued has for a different infer- “chicanery,” an “affirmative effort to de- then-complete evidentiary ence from the court,” ceive the or “a refusal to correct prosecutor’s record in another case. The known error.” See ibid. allegedly arguments inconsistent do not violate the Due Process Clause. To the extent that the Ohio courts drew the conclusion that Stumpf princi- was the B crime, pal offender in this it is hardly arguments Judge The made in Daugh- obvious the record that this conclu- trey’s rely dissent on an alternate inter- “less-than-accurate,” sion was and it is ob- pretation record, one colored vious that the conclusion go did not “un- dissent’s condemnation of the “utter disre- checked.” See ibid. The state introduced gard displayed by both the Ohio courts evidence that thought would be ... and the for the crux of impression check that and for which it had Stumpfs habeas claim.” Daughtrey J. argument answer its before the Ohio added). Dissent, at 759 (emphasis courts. It appear would that what accuracy dissent does not differ with the of dissent is charging as constitutional error record, quotations our from the nor we nothing more nor less than the crime with its. But the Ohio courts had before charged against that Socrates: he “made every them of speck testimony available appear the worse the better cause.” See trials, both which were presided over and Plato, (Benjamin trans.), Apology Jowett jurists reviewed who fully capable were (Charles in 2 Harvard Classics W. of assessing lawyer’s the merits of a argu- 1909). ed., reject Eliot We this contention. ment. The instant presenta- case involves the legal

tion of C arguments to a of judges, presentation not the perjured of But if even there were a constitu testimony to a jury, as referenced id. at violation, not, tional which there was that Judge Daughtrey’s charges dissent only granting violation would warrant prosecution with “misrepresenting the if injurious writ it had a “substantial and (otherwise strength motion” effect or in determining” influence the out it), known arguing against “refusing proceeding. come of the Rosencrantz v. to admit to egregious mistake made (6th Cir.2009) Lafler, 568 F.3d during Stumpfs original trial.” Ibid. As to Abrahamson, (quoting Brecht v. point, the latter it is not clear if the mis- 619, 637, 123 L.Ed.2d 353 wholly Eastman, take is not believing (1993)); Erwin, Stewart v. 503 F.3d in not “admitting]” jail- that Eastman’s (6th Cir.2007) 501 n. 5 (noting that testimony house Brecht completely somehow retroactively applies standard concededly subverts the fair to a chal originally that occurred. In either lenge). that supports asks us invent evidence the conclusion it

Because right, we have never due-process new Stumpf, Wesley, pulled who right that would whether be determined trigger propelled four bullets into analysis. But subject to harmless-error body of the victim.” It reached that concluding have no trouble it we argument conclusion in spite Rosencrantz, In we considered would. testimony cast doubt on knowing presenta a prosecutor’s whether his principal-offender designation. The subject tion of false panel, Court, second the Ohio analysis. We held Brecht’s harmless-error testimony directly, addressed Eastman’s was, noting presentation “findfing] specifically false evidence was “trial error —it oc during Clyde Wesley’s a cellmate trial is of during presentation case curred credibility,” minimal course of its may is one jury, which be independent aggrava- consideration assessed in the context of quantitatively ting and mitigating Stumpf, factors. 512 in order to deter presented other evidence N.E.2d at 610. mine its admission was harmless.” whether (internal Rosencrantz, F.3d at 589 held, As these Ohio courts neither omitted). quotation marks and alterations testimony Eastman’s nor prosecutor’s alleged too an error Here we consider argument concerning it significant had a presentation involves a prosecutor’s impact, inju- much less a and “substantial anything, factfinder. If the case for harm influence,” Brecht, rious effect or 507 U.S. here, analysis stronger is less-error where 637, 1710, 113 S.Ct. on the outcome of able all the factfinders were to consider Stumpfs sentencing proceedings. The evidence, only alleged and the violation ample record contained to sup- evidence hinges prosecutor’s argument, not port the that Stumpf, conclusion not Wes- any suppression or falsification evi Further, ley, pulled trigger. after Mitchell, dence. Broom See F.3d testimony light, Eastman’s came (6th Cir.2006) 392, (holding 412-13 Stumpf more opportunities had two ar- applied harmless-error standard to claim in gue, panels front of required consid- involving prosecutor’s improper com ments). the propriety penalty er of the death in- dependently, that Eastman’s Thus, we grant before could changed calculus. The writ, we have to conclude that would only thing Stumpf get did is injuri alleged error had “substantial and something that he is not entitled to: con- in determining” ous effect influence aggravating sideration of mitigating Stumpfs sentencing proceed outcome of factors with the evidence construed his Brecht, 637, ing. 507 U.S. at 113 S.Ct. specifically, assumption with the government 1710. The has burden of favor— that he Rosencrantz, was not the analysis. offender. proof this F.3d at 589. This is but one view of evidence. The panels independently weighed panels Three Ohio considered whether Thus, claim took the other. even if Stumpf deserved the death pro- suffered a violation of due Eastman in Wesley’s testified trial. Each cess, say that we cannot the violation had “yes.” held the answer Two injurious a “substantial and effect or influ- independently weighed the three panels testimony. determining” ence the outcome The first of those two, the Appeals, Stumpfs sentencing Ohio Court of held: proceeding. “the Ibid.

IV probability that it would have returned sentence”). with a different argues also that he re ceived ineffective assistance of counsel. gravamen of Stumpfs ineffective- claim, (1) To establish this he must show: assistance claim is that counsel failed to (2) performance; deficient prejudice. present three types of evidence at his miti- Washington, Strickland v. (1) gation hearing: testimony from an in- 687-96, 80 L.Ed.2d 674 dependent psychologist about low level of intelligence and his tendency to be follower, (2) leader; rather than a testi- strongly pre “[C]ounsel mony jail officers that Stumpf was a sumed to have adequate rendered assis (3) prisoner; model live tance significant and made all decisions from a family number of members and the exercise of professional reasonable friends about Stumpfs background. judgment.” Id. at 104 S.Ct. 2052. Thus, our performance review counsel’s At Stumpfs sentencing hearing, defense deferential,” highly “must be “every counsel presented evidence that effort [must] be made to eliminate the intelligent, was not follower, tended to abe ” distorting hindsight. effects of Id. at significant had no history, criminal re- performs Counsel defi spected women, did not lose his temper, ciently when he makes “errors so serious and was not a troublemaker. was not functioning [he] as the ‘coun counsel also elicited live testimony from guaranteed sel’ by the defendant the Sixth Stumpfs mother, sister, Stumpfs and nine 687,

Amendment.” Id. at 104 S.Ct. 2052. longtime friends, family gave the pan- “When a convicted complains defendant el an sixty additional “questionnaires,” assistance, the ineffectiveness of counsel’s filled out Stumpfs family, friends and the defendant must show that counsel’s tending to show that Stumpf gentle was a representation objective fell an below stan person temper without a respected who 687-88, dard of reasonableness.” Id. at women. 104 S.Ct. 2052. Perhaps counsel could have presented a counsel, But “[a]n error if even more mitigation vivid case had he followed unreasonable, professionally does not war path that Stumpf now.suggests. Per- rant setting judgment aside the a crimi Counsel, haps extensive, not. through of- nal if the proceeding error had no effect on ten-overlapping testimony, made the 691, the judgment.” Id. at 104 S.Ct. 2052. points Stumpf alleges that an independent Therefore, to succeed on his ineffective- psychiatrist would have made. Counsel claim, assistance Stumpf “must show that presented more than ten character wit- that, there is a reasonable probability but sixty “questionnaires” nesses and give unprofessional errors, for counsel’s the re image factfinders vivid of Stumpfs proceeding sult of the would have been background And, personality. al- A probability different. reasonable is a though it is true counsel did not call probability sufficient to undermine confi prison testify officers to about in- Stumpfs dence in the outcome.” Id. at behavior, prison a prison- about 2052; Smith, Wiggins S.Ct. see also v. er’s committing is, behavior murder 510, 535, U.S. 123 S.Ct. 156 L.Ed.2d best, at (2003) minimally probative of that, general (noting at sentencing, the temperament committing relevant the crime. prejudice inquiry is whether “had before jury In light been confronted ... of the extensive with this character testimo- evidence, mitigating there is a ny reasonable produced, counsel it was reason- Nothing enormity crime. Stumpfs prison guards as call not to able suggests representation Stumpf evidence that Counsel’s about the witnesses. within the unreasonable objectively was so presented should have counsel meaning of Strickland. proba- striking that there is a reasonable have bility chosen would remiss in if counsel were But even ineffective- sentence. different high three areas one of the claim fails. assistance shown “a reasonable has not lights, Stumpf that, unpro for counsel’s but probability errors, proceed result of the

fessional V different.” Strick been ing would have extraordinary an Stumpf has had land, 2052. The 466 U.S. certainly all of process amount of —and miti it evidence of each before panel had that he was due. He was counsel claims gating factor separate of three argue able to front heard presented. should have obligation of which had an panels, two particularly intelli was not weigh propriety of the death of a follower than a gent was more different independently, State’s leader, that he had no criminal it heard proceedings at different about arguments record, respected heard that he and it fully fundamentally al- presented evidence women, temper, lose his and was did not sentencing “The calculus. That he not a troublemaker. tered his acquainted’ thus ‘well with [panel] was un- lost does not mean that he suffered hu background potential [Stumpfs] fairness, much less the kind of fundamen- Additional evidence on manizing features. our set- tal unfairness that would warrant insig offered an points would have these ting aside his sentence under the rubric benefit, all.” Wong if nificant judgment the Due Process Clause. The Belmontes, 383, 388, the district court is AFFIRMED. 175 L.Ed.2d 328 counterargument unpersua- is DAUGHTREY, MARTHA CRAIG that, suggests because the sen- sive. He Judge, dissenting. Circuit only mitigating found two tencing panel Because I believe that John David of a criminal youth and lack histo- factors— a fair Stumpf did not receive probability reasonable that ry is a —there is, rather, hearing prose- but the victim of different, have been his sentence would enough to gamesmanship cutorial serious more or different presented had counsel right process, to due I am com- violate argument This suffers from evidence.9 majority’s opin- to dissent from the pelled that a quantity fatal of evidence flaw: my judgment opinion In that com- ion. necessarily lawyer is not deter- produces recognize to address pletely fails and presentation. of his quality minative of the arbitrary, aspects of unreliable Here, picture a vivid of painted counsel sentence, resorting instead to a through factfinders witness Stumpf for the that are legal platitudes pre- recitation of officer, Stumpfs probation certitude, yet wholly in their teachers, sumptuous family, and friends. That former support in the record. strong enough to blot out without picture was not offender; factors, (3) argued mitigat- pal and other relevant Stumpf's for other counsel factors, (1) including: unlikely ing being it was that including fact that was also occurred without Wes- the offense would have prosecuted for the murder. influence; (2) ley's princi- Stumpf was not the

755 opinion speaks in terms of But take majority rather than these admonitions truths, noting, heart, jurisprudential majority glibly broad asserts that Due Clause example, “[t]he that Process the actions undertaken and arguments any state from prohibits ‘depriving] espoused by prosecution throughout life, liberty, or without person property, of Stumpfs and trials did not risk Const, law[,]’ amend. process due U.S. “arbitrary capricious action” because XIV, proposition § That dis- beyond 1.” decisions contentions of the State Similarly, opinion correctly rec- pute. at all Ohio were times “consistent and Supreme holding ognizes precedent Court fact, In appropriate.” the majority goes applied to a denial criminal “[a]s so far as to make such explicit statements observe of due is the failure to as: “all of the available evidence all was at that fundamental fairness essential presented times to all of the in- courts concept justice.” See v. Lisenba volved”; “[njothing misleading happened 219, 236, California, 314 U.S. “[tjhe here”; deceitful”; “[njothing prose- 86 L.Ed. 166 Where the present cution did not a different in- however, goes astray, is in the application complete of facts in support set of differ- legal principles to the facts these settled ent culpability theories of for the same in its failure before us and to concede crime”; nothing “there is foul about permeated arbitrariness prosecutor’s conduct Apparent- here.” proceedings necessari- statements, ly by to itself repeating such ly denied fundamental fairness. able to majority is reach its fanciful years In the 40 since the “[tjhe prosecutor’s conclusion alleged- Court’s landmark decision in v. Furman ly' arguments inconsistent do not violate U.S. Georgia, 408 S.Ct. the Due Process Clause.” (Emphasis (1972), accepted L.Ed.2d 346 courts have mine.) “that as axiomatic of death is reader, It must to the appear as it did punish- different in kind from other me, appellate that I received an record imposed system ment under our crimi- radically different from the one reviewed justice.” Gregg Georgia, nal fact, majority. In my reading 153, 188, L.Ed.2d the record me to the inescapable led con- (1976). Furthermore, we ad- have been clusion, “[njothing hap- not that misleading “permit penal- not to this unique monished but, pened contrary, here” ty wantonly freakishly ... and ... be prosecution proceedings in these continual- Furman, 309-10, imposed.” 408 U.S. at factfinders; ly prosecu- misled the (Stewart, J., concurring). 92 S.Ct. 2726 To deceitful, was, tion if to willing not at least contrary, considering the when matter “a play fast loose with and whatever facts the grave so determination of whether it purposes; would best serve its and that human should be taken or we spared,” life “a definitely presented most different and necessary steps are to take all “to directed incomplete support of facts in of set differ- wholly arbitrary risk of minimize the culpability ent of for theories the same 189, Gregg, at capricious action.” end, however, crime.” In the it became Mississip- 96 S.Ct. 2909. See Caldwell v. actually clear that record I the reviewed 320, 323, 2633, 472 pi U.S. 86 the record conformed to before the United (1985) “height- (recognizing L.Ed.2d States Court in v. Bradshaw for in reliability ened need the determina- Stumpf, 545 U.S. appropriate tion that death is the punish- (internal Indeed, in specific L.Ed.2d 143 his concur- quotation ment in a case” omitted)). ring joined by citation opinion, marks and which was Justice trial and Wesley’s at the had vouched Breyer summarized Ginsburg, Justice by Stumpfs court reference that death sentence this maintained now before issues underlying facts interpretation all of the rea- to an stand for some or should in the propounded that with wholly at odds argued imposi- for its originally it sons ex- That concurrence majority opinion. day, end the the State tion. At the plained: maintaining that on record as that it to claim Stumpf I understand be exe- Wesley should both Stumpf standard, due violates the basic each was the ground on the that cuted fundamentally procedure, unfair barring undisputed when it was triggerman, in sentence stand to allow his have been. only one them could positions taken of three the aftermath 188-89, (emphasis at 125 S.Ct. 2398 Id. (1) Stumpfs sentencing at by the State: omitted). added) (citations (2) Stumpfs trial of hearing; Yet, Breyer’s light in of Justice even (3) eodefendant, Wesley; and in Clyde recapitulation prosecution’s of the succinct Stumpfs motion with- response continues legerdemain, light in plea guilty draw his necessary perform gymnastics the mental Wesley trial. At position State’s itself that death sen- to convince sentence, the hearing fundamentally fair and was not tence was trigger- he was the argued that State arbitrarily. Try might, as I how- imposed man, urged consideration ever, straightforward I cannot contort the impose a death sen- reason to as a fact in matter to reach sequence of events this court found that The trial tence. majority. by conclusion reached trigger and did Stumpf pulled had death, though him it did not sentence sentencing hearing, Stumpfs original At Stumpf to be the finding state knowledge to the of Ohio’s prior held State determining in dispositive shooter was Eastman, confession to James sentencing pro- sentence. After judges of three state-court con- over, the State tried the ceeding was Stumpf put cluded that should be to death Wesley, on the basis codefendant, “beyond determined because [,] argued a new witness [Stumpf] reasonable doubt that was the triggerman fact Mary murder of [the offender to death. The and should be sentenced added.) Indeed, (Emphasis Jane Stout].” unconvinc- apparently new witness was denying as noted the district court event was ing jury, which Stumpfs request for issuance of a writ of already been informed that its corpus, habeas “the trial court cited crime; for the sentenced to death the actual finding petitioner was specification jury rejected reason, as a and a shooter substantial triggerman, and it named as the reason, why circumstance aggravating life, a sentence of recommended outweighed mitigating factors.” challenged then his death. Anderson, C-1-96-668, No. (along with convic- death sentence 2001). (S.D.Ohio at *48 Feb. WL tion) prosecution’s on the basis of the sentencing panel a conclusion Such Wesley in the case. In re- position light in of judges of was understandable repudiate did not the sponse, the State Al panel. then before that the evidence had taken in the position it codefen- consistently though Stumpf it is true that case, explain that it had made dant’s or maintained, early stage of the even at that Instead, merely dis- there. it mistake trigger- the that he was not proceedings, the witness it missed the of n Thus, ultimately responsible Wesley’s for the murder der. even after trial man had concluded, Stout, Mary three-judge panel Stumpf had no valid claim that of Jane process by forced to determine whether to credit which he was sentenced to was with the die had been Stumpfs protestations agree by any procedural or to tainted then prosecution’s view of the evidence unfairness.1 Thus, very pos- real despite available. However, debating we are still the le- not, fact, did fire the sibility Stumpf gality constitutionality of Stumpfs Stout, that killed Ms. no due shots

fatal Stumpf lawyers sentence because and his process violation can be said to have oc- recognized the now-demonstrably false curred at that time. prosecution theory under which he first prosecution Nor can the be faulted for had been condemned to death. Stumpf arguing during Wesley’s sought resentencing that was thus from the three- actually Wesley, judge panel that it that presided punish- then convinced was over the Stumpf, triggerman not ment phase who was of his trial. It was at that It not until post-sentencing hearing the murder. of State sentencing, prior initial Ohio undertook tactics that reasonable trial, Wesley’s person by the State of Ohio would now conclude were unfair Wesley learned from Eastman that con- and violative of even the most basic con- to him that the of ceptions fessed fateful events of due of law. day actually of the murder unfolded exact- Having jailhouse Wesley’s learned of ly Stumpf prosecu- as claimed. The had Eastman, confession to supporting cannot, therefore, tion be condemned for facts which Eastman would have had no

bringing jury’s reason to know absent information from attention. himself, Wesley prosecution —indeed time, jury At the same Wesley prosecutor also the same who obtained concluding argued cannot be faulted for in sup- Wes- conviction-—had of, ley for, triggerman. Despite port was not the and vouched Eastman’s credi- Then, prosecution’s arguments during Wesley’s bility during Wesley’s trial. when recently trial that Stumpf subsequently sought discovered evidence now to overturn pointed finger Wesley of guilt at as the his death sentence on the basis person responsible firing gun position for taken State Ohio Stout, Mary jurors killed Jane were the same once by Wesley’s argued also informed defense team that Stumpf more deserved execu- judges that a previously de- tion at the hands of the state because was, fact, termined that it Stumpf triggerman. Again, who was the triggerman Breyer, was the who had noted Justice “the State did been sentenced to death for the mur- repudiate position Stout it had taken in course, Eastman, highlights major 1. Of that fact alone details of his crime if East- with legal problem pen- brought and moral with the death man had not that information to the tried, authorities, alty. Wesley Even before the State attention of the there have would possession way verily of Ohio had in its evidence estab- been no the truthfulness of lishing capital punishment appro- Stumpf’s Consequently, that if were account. the State of all, priate might it was and not Ohio have executed an who individual evidence, who should be That executed. otherwise would not have been sentenced to however, indeed, prosecution’s posses- came into the have who would not even death — only through eligible penalty. sion the fortuitous circumstance been Because Wesley conversing majority’s intransigence, possibility with a cellmate about wrongful murder. If had not shared the execution continues to exist. testimony nor Eastman’s “neither case, explain that it had or

[Wesley’s] it had a argument concerning Bradshaw prosecutor’s there.” a mistake made 189, 125 at much less a ‘substantial Stumpf, significant impact, (Souter, J., concurring). influence,’ on the injurious effect or Stumpfs sentencing proceed- outcome of its decision to bolster baffling

In effort justifications ring hollow. ings.” These of Ohio’s eye to the State a blind to turn Indeed, majority’s very formulation that no intimates majority duplicity, argument regard occurred because in this demonstrates violation its process due argue alter- to permitted are is- prosecutors to the true constitutional its blindness juries judges. before native theories challenge. by Stumpfs presented sues made arguments were No such alternative panels” fact that Ohio “[t]hree The case, prosecutor The did however. in this of mini- to be found that Wesley’s trial either argue at not credibility completely irrelevant mal is the other —was Stumpf or —one process due the issue of whether Instead, as an offi- triggerman. actual The ma- rights compromised. have been court, elicited cer of jority emphasize seeks to determinations that was the post-trial weight of the trial and, such, deserving offender what completely ignores but Later, evidence as an offi- operating still execution. court, integri- true issue here: the prosecutor, the same should be the cer of any explanation repudiation arguments for which con- ty without of the original to his prior position, returned were cerning Stumpfs death-worthiness sought portray Stumpf argument that panels. those three As stat- placed before flip- convenient triggerman. as the Such that surprise it comes as no previously, ed by government official sworn flopping not to jury Wesley’s trial chose justice simply reeks of unfairness. uphold all, testimony. After credit Eastman’s fact, only In rationale I can envision testimony in proffering of Ohio was State (and majori- now the prosecution’s for the directly that that contradicted proceeding legitimacy of ty’s) of the such acceptance findings legal factual determina- to a unwavering tactics an commitment is already made three tions members directly win-at-any-eost callousness judiciary. that determina- the state Given preserve oath to at odds with our solemn tion, surprising would not be also of the the Constitution United and defend not alter its panel judges of state did States. upon conclusion based the introduction majority attempts legitimize also The testimony only. jailhouse opportunism in prosecution’s blatant ruling In to that and its regard judicial by attributing this matter resentencing, I marvel Stumpfs motion for upon Stumpfs that ruled motion the cavalier attitude with which resentencing assumption Eastman of the importance minimizes the not have been a credible witness must only original three fact that two jury given the fact that the Wesley’s judges who sentenced were able spared Wesley penalty. the death knowledge state shaky this claim are the bases for would might triggerman not have been the pan- majority’s Ohio “[t]hree assertion that he was have altered their belief els whether deserved considered As condemned to be executed. properly testified the death after Eastman panel opin- in our now-vacated trial,” that was noted and its conclusion 759 by fered Stumpfs appeal prosecution Stumpfs ion in from the denial trial. Rather, his for habeas relief: petition what is most relevant is whether it blatantly unfair for prosecutor in hearing Stumpfs on motion [Djuring the Wesley’s guilty plea following his his case to vouch for the credibility withdraw sentencing, conviction and one of the of Eastman and then intimate at the hear- judges three who sentenced to ing Stumpfs on post-sentencing motion noted, we had not been satis- “[I]f very by same information elicited was, fact, trigger fied that in Wesley’s became, the State of Ohio at man, offender, and in- [if without intervening contrary informa- was, that he in we were satisfied stead] tion, completely unworthy of belief. fact, abettor, very an that may aider and majority quick is to dismiss an upon well have had effect this Court’s unfairness, Stumpfs patent claims of stat- pen- determination of whether the death ing cursorily that Supreme Court cases I’m alty saying should follow. prosecutor which a found have vio- ”2 would, possible.’ but it’s lated the Due Process Clause were distin- Houk, (6th 426, Stumpf v. 653 F.3d because, guishable cases, in those “the Cir.2011). likely Just how such a reversal prosecutor something did to subvert original might sentence have been trial, very foundation of the something that known, will never be one of the because kept the factfinder from making fully sentencing judges three died prior informed decision.” Interestingly, hearing Stumpfs on motion for withdrawal thoughtful examination of habeas guilty plea resentencing. of his Ad- claim making reveals that he is an identical mittedly, ruling the trial court’s on the argument prosecutor did something —“the might changed motion not have even if the to subvert the foundation of the judge pause third had survived and found something that kept factfinder from panel’s the fact that the basis for the making fully informed decision.” More- original sentencing decision had been se- over, Pate, 1, Miller v. 386 U.S. 87 S.Ct. Nevertheless,

verely undercut. for the 785, (1967), Mooney L.Ed.2d 690 v. majority of this court to discount com- so Holohan, 103, 340, 294 U.S. 55 S.Ct. pletely possible effect of Eastman’s (1935), Illinois, Napue L.Ed. 791 v. testimony sentencing judge on the third 1173, 79 S.Ct. 3 L.Ed.2d 1217 disingenuous. (1959), upon majority the cases which the surprising What is even more and dis- relies, exactly type prose- condemn is, turbing again, disregard once the utter cutorial misconduct that occurred in this by displayed both the Ohio courts and the case. here for the crux of majority, in- As noted Miller claim. is most relevant habeas What knowing misrepresentation volved a of evi- this court’s review is not whether East- case, In dence the state. man’s trial was more than suppositions represented jury, believable of- judge undoubtedly imposition Ohio This had in mind of the death on one such felony Court’s admonition in Enmund as Enmund who aids and abets a Florida, U.S. the course of which a murder is committed (1982): kill, 73 L.Ed.2d 1140 by others but who does not himself kill, attempt killing or intend that a take Although judgments legislatures, ju- ries, place employed. prosecutors weigh heavily or that lethal force will be in the balance, concluded, along legis- ultimately judge We with most it is for us have Eighth juries, permits whether the that it not. Amendment latures does not, however, if he expert Wesley jury. of an wit- Even did

through the hearing given arguments during ness, matching the vic- stains that blood motion, Stumpfs post-sentencing pros- the an of were found on item type tim’s blood by failing that court to em- ecutor misled a mile from the crime clothing recovered fact that information phasize the new Miller, 3-4, at 87 S.Ct. scene. effectively light come to exonerated discovered, however, later As was 785. in the as the offender was aware at the time of prosecution the Mary murder of Jane Stout. the Whether the stains were remnants Miller’s trial that chicanery prosecutor of the involved affir- 5-6, at blood. Id. 87 S.Ct. paint, of the court or sim- mative efforts deceive process principles that due Holding 785. passive a refusal to correct known ply criminal convic- “tolerate state will not instance, error is In either acts irrelevant. knowing the use of false tion obtained perpetrated by were the state that left evidence,” Supreme the Court reversed Stumpfs sentencing panel with a less- of a of court’s denial writ habeas the lower impression than-accurate of the extent of at 87 S.Ct. 785. corpus. Id. Stumpfs role in the murder at issue. Stumpfs Wesley’s The prosecutor Thus, by knowingly allowing impres- the guilty type of proceedings was same triggerman go sion that was the perjury Either he malfeasance. suborned unchecked, Stumpfs prosecutor also inten- by presenting tionally the court and the misled subverted testimony being confessed to very underpinnings justice of our criminal prosecutor or else the la- triggerman, the system. strength the of misrepresented ter Finally, majority asserts that the set aside Stumpfs motion to his sentence' Supreme Napue Court’s decision in is not by refusing egregious to admit mis- presented relevant to the issues in this during Stumpfs original trial. take made appeal habeas instance in which —another withholding from By thus the reconstitut- simply is off the mark. Na- regarding ed information pue proposition stands for the that due veracity the state’s belief in East- is denied criminal defendant testimony, prosecution in this man’s prosecution when the “allows testi- [false just egre- evidence as misrepresented case mony] to it go appears.” uncorrected when giously prosecution in Miller. as did Napue, 1173. U.S. presented In Mooney, the state testimo- According majority, to the no because ny perjured. Mooney, it knew to be testimony” presented during “false Disapproving U.S. Stumpfs proceedings, Napue cannot serve tactics, noted that such Court Stumpfs due-pro- to buttress claims of a liberty “safeguarding the of the citizen But, majority’s reading cess denial. through the action against deprivation of Supreme precedent is far too nar- Court state, embodies the fundamental con- Obviously, prosecutor’s row. failure to justice which lie at the ceptions of base of correct to a criminal false denies political our civil and institutions.” Id. right defendant the to a fair trial conduct- Thus, Mooney, prose- the actions of the ed in established tenets of accordance with cutor were found undermine the basic fairness, But, integrity. honesty, process. tenets of due rely upon allow a court to continue to prosecutor actions information without unfounded correction no Stumpfs only by case did less. One can prosecution, prosecutor when the prosecutor did not hope knows that the basis for the court’s deci- by subsequent sion has been undermined knowingly present false revelations, prosecutor is In either equally egregious. vouched the truth of instance, standing idly by argued Eastman’s account that Wes- truth, prosecution, ley known should be as the triggerman while executed I well. ignored. impossi- Wesley’s jxxry find The fact that is obfuscated re- justice jected perversion theory to reconcile such a state’s did not deter ble Rather, prosecution, conception with civilized fairness however. despite process. having lately due become convinced that Wes- and, indeed, ley fired the fatal having shots can Nor the result of state- law, claimed so in a prosecutor court of the by proceedings justified empty court be by position refused to stand that when to determina- obeisance the state courts’ possibility faced with the that Stumpf regarding given to weight tions East- would then be removed death row. Wesley’s during man’s trial. As Instead, deliberately failed in previously, surprising discussed it is impression to clear the mistaken that two least that Wesley’s juxy chose not to of the three original sentencing judges testimony regarding credit Eastman’s regarding held Stumpfs culpability. Mary role in of the murder Jane all, jurors After were Stout. informed inherent and fundamental unfair- during Stumpf previous- that trial that had of such duplicity recognized ness overt was guilty ly pleaded Supreme to the murder and that a in dissent from the Court’s judges already of three to of deny stay had deter- decision execution and a Scott, that be Stumpf mined sentenced to writ of certiorari in should Jacobs 513 death, principal 712, presumably as the offend- U.S. 130 L.Ed.2d (1995). Writing joined er. and separately, by Ginsburg, Justice Justice Stevens event, any given In consideration forcefully: claimed weight testimony against of Eastman’s sovereign represented by [F]or State (not Wesley ultimately Stumpf) is irrele- lawyer flatly the same to take inconsis- to a legitimacy vant determination of the positions tent in different two cases— process by of the which sentence imposition and to insist on the of the by judges, state-court ratified — penalty repudiating death the fac- litigation, district court this habeas surely tual basis for that rais- sentence — concept court on appeal. this No fair question prosecutorial es a serious justice I am play with which familiar my misconduct. In it opinion, would be gamesman- would countenance the blatant fundamentally per- unfair execute a majority. now ship condoned Sim- on the basis factual determina- son of a ply again describe—once actions —the formally tion that the State has disa- prosecution throughout taken vowed. Stumpf is proceedings against to demon- Clearly, their unfairness. strate manifest At the conduct of State of Ohio Stumpfs original sentencing hearing, eerily in this matter similar. What Ohio, any present without the benefit of made the state’s in the State conduct eyewitness testimony that proving Stumpf egregious case even more and more funda- triggerman, argued forcefully mentally was the that unfair than occurred in what Ja- cobs, however, Stumpf put juxtaposition should be because he death was the the fatal Mary fired shots that killed Jane of Ohio’s refusal to adhere to the State Later, during Wesley’s informed that it having position Stout. been advanced Wesley by Stumpfs sentencing that it confessed to Eastman statement life, satisfied that indeed who took victim’s “had not been [it] fact, 738 N.E.2d man ... Ohio St.3d was, trigger (2000) (citation omitted). upon had an effect have may well whether determination this Court’s Similarly, been I concur follow.” should death testimony down- together, tried statement fully in Stevens’s Justice Mary role in Jane Stout’s playing and cannot dissent principle his Jacobs placed have before the murder would been actions in prosecution’s help but find evidence, conjunction That with jury. every antithetical Stumpfs proceedings each co-defendant’s denial of his process that we justice concept due again in the offense would have made role uphold. have sworn to fact unlikely any rational trier of should could have concluded adhered, past at least for the haveWe have been sentenced to death. principle and moral years, legal punishment ultimate as the death Gregg, the United States Since imposed under “not be should Court, appeal, well as federal courts of a substantial risk procedures ereate[ ] struggled to ensure that have arbitrary in an be inflicted that it would imposed arbitrary not for rea- sentence is Gregg, manner.” capricious but, rather, and only after measured de- sons yet There another 2909. is consideration of relevant liberations and in appeal situation this why help identify persons those reason factors responsible depraved arbitrariness offends for the most epitomizes the most against human nature and very process: Stumpfs against of due crimes idea norms, society and “the worst of the a result of the its death sentence was direct abundantly It clear to me that individuals, worst.” is Stumpf order in which the two John David was sentenced to be Wesley, apprehended were by the of Ohio he executed State because brought by to trial the state. Without apprehended before his co-defendant Wesley been tried before question, and, thus, Wesley. was tried before Be- around, way of the other Stumpf, instead cause I am convinced that the same result testimony regarding princi- if Wesley would not have inured had been re- pal played by role would have tried, if the first of the two men to be Wesley receiving jury-imposed a sulted in together, tried it is the two men had been Moreover, a subse- sentence of death. in obvious that the sentence of death this would have included quent any compelling not upon case was based triggerman was the objective escapes evidence or criterion. It and, spree possibly, infor- the criminal why apparently me here is capital punishment imposed mation about imposition blind to the fact that Wesley, greatly reducing any thus upon penalty happenstance based on such Stumpf would also have been chance that the antithesis of fairness and due pro- Indeed, to under Ohio sentenced death. Indeed, mind, my it is the cess. law, is a being not offender caprice. definition arbitrariness factor,” “powerful mitigating such that “[v]ery ap- sentences have been citizens of the last industrialized few death As punish- proved against persons capital who were not the Western nation to maintain Green, ment,3 recognize we that decisions con- principal offender.” State v. purposefully Amnesty lowing governing when it According International's bodies report during Death March 2012 Sentences cal- executed some of its own citizens joined 'Executions in the United States Bangladesh, year Afghanistan, endar 2011: fraternity composed only the the select fol- left, resentencing must be motion for violated cerning penalty the death to our state and national part, the most process complete due because eviden- left to the legislative bodies. What then is tiary might record that have made the responsibility judiciary is solemn proceedings fundamentally pre- fair was imposition pen- in the of a ensure fairness a two-judge, sented to rather than the out, that, once carried can- alty so drastic required three-judge, panel.1 The Ohio hoped my be undone. I had Supreme Court concluded that the matter colleagues on this court would be able to two-judge panel by could be decided through sleight see of hand which characterizing the motion presenting as justify attempted the State of Ohio has law, question of not involving guilt or inno- that resulted process the violation of due v. Stumpf, cence.2 State 32 Ohio St.3d arbitrary imposed punishment 512 N.E.2d This charac- concerned, Unfortunately for all this case. proceedings simply terization of the especially Stumpf, they for John David but motion to decide whether the new evidence have not. I therefore from the DISSENT warranted a new which majority’s upholding decision the death denied, prem- motion was undermines the in this case. majority opinion ise of the a com- —that plete evidentiary presented record was WHITE, Judge, HELENE N. Circuit the factfinder —and leads dissent’s dissenting. ultimate conclusion that was de- agree procedural All that there was no nied due because fundamental in Stumpf original sentencing unfairness s requires fairness that evidence that one proceeding or at trial. The ma- triggerman, defendant was the which is re- jority proceedings that fol- concludes the garded by sufficiently the state as reliable lowing Wesley’s fundamentally trial were support penalty the death for that de- because, although prosecu- fair as well the fendant, body presented must be the positions regarding tor took inconsistent determining degree participation Stout, pre- who shot Mrs. he nevertheless pen- a co-defendant and whether the death sented all the information to the sentenc- alty for the co-defendant. appropriate is ing court and the court made its decision evidentiary complete based on a record I. that included and Eastman’s tes- death-penalty provides Ohio’s scheme judges I that timony. agree the two effec- finds, jury unanimously the trial “[i]f tively in a engaged resentencing re- doubt, conclude, proof beyond a reasonable that the all I evaluating the evidence. nevertheless, proceedings aggravating that circumstances the offender Belarus, China, Iran, noted, Egypt, Iraq, Malaysia, preme "death is differ- Court has often Korea, See, Authority, e.g., Gregg Georgia, 428 U.S. North the Palestinian Saudi ent." Sudan, 2909, Arabia, Somalia, Sudan, Syria, South 49 L.Ed.2d 859 Taiwan, Emirates, Nam, Viet Counsel's failure to continue to raise the United Arab http://www.amnesty.org/en/ justify ignoring it and Yemen. See a meritorious issue cannot library/asset/ACT5 penalty a a8301-05 in death case. 0/001/2012/en/241 b4-41 c0-bfd9-2fe72899cda4/act500012012 Stumpf’s sought withdraw en.pdf, at last March 2013. 2. motion leave to visited guilty plea, alternatively, an order set- ordering acknowledge ting a I that this issue was not aside his death sentence However, 372.) (J.A. sentencing hearing. There present appeal. new briefed in the plea. At is two-judge panel's authority questioned was no basis to withdraw his issue was resentencing. throughout appeal. Su- the motion for the direct As the imposition penalty of the death is the committing outweigh for guilty found

was factors, jury shall “degree participation the trial of the offender’s mitigating court the sentence that recommend that led to the victim’s death.” the acts offender,” on the Ohio imposed 2929.04(B)(6).3 be of death § Ohio Rev.Code 2929.03(D)(2), § and that Rev.Code initially did not take the prosecutor jury’s if, receiving ... of fact position penalty-phase trier that the sentence of recommendation testimony. Eastman’s need not consider finds, by imposed, the court death be Rather, prosecutor argued that doubt, or if beyond a reasonable proof subject penalty to the death without unanimously judges three pulled trigger; he regard to whether finds, beyond a by proof reasonable mer- mercy for did not dictate doubt, aggravating circum- cy Stumpf; and that guilty of the offender was found stances accept required court is not [t]he fac- committing outweigh mitigating admit- Eastman’s statement tors, of death on impose it shall sentence actually being ted the one who fired the the offender. so, gun which killed Mrs. Stout. Even (D)(3). Thus, where, here, Id. at above, finding unneces- as noted question put jury, to a penalty death is not sary imposition penalty. the death circum- aggravating the decision that the Moreover, judge panel the three which outweigh mitigating factors be- stances up made the court this case remains yond reasonable doubt must be made available to determine whether unanimously by judges. of three penalty imposed would have been For all the reasons discussed even if defendant were found not dissent, had the death in this case ... actually pulled trigger to have imposed by jury, been Only if the court determines that East- constitutionally argued could not have testimony might man’s warrant a differ- testimony Wesley’s trial sentence, hearing ent would a further import not new evidence of sufficient necessary. take Eastman’s be reliability to warrant a new tri- deleting finding Even That, indeed, al. prose- would have been pri[n]cipal actually was the offender and gamesmanship cutorial violation due Stout, remaining findings shot Mrs. the clearly it process because would have been amply court the support the determi- disingenuous prose- dishonest and for the aggravating nation that the circum- position cution to take the that Eastman’s outweigh mitigating stances factors. testimony unworthy of that it was so belief (J.A. 376.)4 prosecu- at The crux of the impact hypothetical have no on the would argument tor’s in its brief was that sentencing jury’s determination whether three-judge panel did not have to believe And, Stumpf or shot Mrs. Stout. Eastman, did, Stumpf but even if it still triggerman the issue who was the is unde- niably penalty; to the deci- deserved the death and that the penalty relevant death given statutory that one consideration court live testimo- sion did not have hear controlling prosecution consideration is not on its 4. The have confined itself This should jury three-judge panel argument own. A or could con- to the it did not matter who that, pulled trigger honestly that the other factors are such that an admitted clude presented Wesley’s given testimony did not fire the fatal still it at offender who shot trial, penalty. death Rev. be certain who shot Mrs. deserves the See Ohio it could not 2929.04(C) § Code Stout. changed that Eastman’s ny majority “determine[d] unless it his mind. The finds it testimony might warrant a different sen- significant that Judge Bettis was to- able 376.) (J.A. hearing, at At the tence.” transcripts Judge read the and that judge the third light when it came to Wesley’s Henderson heard and Eastman’s died, prosecutor position had took the testimony given. live at the time it was remaining judges that the two could deter- Indeed, this, along with the fact that two testimony mine “whether or not Eastman’s appellate panels also concluded the death credibility is of sufficient to warrant fur- penalty appropriate, provides the core .... whether or ther consideration not a support majority’s for the decision.5 new trial is warranted on the basis of that is, however, There a fundamental flaw in (J.A. 2604.) evidence.” at this reasoning proceedings fol- To prosecutor’s argument the extent the lowing Wesley’s trial. The fair- asserted three-judge panel left it to the to look at proceedings ness of the prem- rests on the all the evidence and decide whether and to legal body ise that that sentenced testimony what extent Eastman’s affected pursuant to death to the stat- Ohio impose penalty, its decision to the death ute considered the evidence came to prosecutor’s improper. conduct was not light Wesley’s together with all the prosecutor To the extent dismissed evidence, other and nevertheless concluded testimony as insufficient penalty appropriate that the death was an death-pen- warrant reconsideration of the for Stumpf. premise sentence But this decision, alty regard without out- Only judges incorrect. two of the who reconsideration, of that come violated initially imposed the penalty reeval- due and fundamental fairness be- light uated that decision in of the evidence previously cause the had taken trial; judge the other position was suffi- view, This, in my cient to died. undermines the support penalty the death for Wes- ley. majority’s warden’s and the It position. contended, fairly cannot be majority implicitly regards both the throughout opinion, its all asserts prosecutor’s argument two-judge and the presented impartial evidence was panel’s advocating conduct as and follow- factfinder for a decision on the entire rec- ing hearing the first course. At the ord, because under the Ohio death motion, Judge expressed Bettis jury is a scheme factfinder testimony might the view that the make a judges, difference, three factfinder must and he therefore needed to unanimously aggravating find that the cir- transcripts read the of Eastman’s and Wesley’s testimony if outweigh mitigating to see cumstances fac- heard, majority already panel 5. The states: it had the de- clined to revisit its earlier determination prosecution presented [T]he all of the evi- penalty appropriate.... that the death was dence that it had. The factfinders then right A criminal defendant has the to a fair opportunity had —and to consider took—the proceeding impartial in front of an factfin- First, Stumpf's orig- the entire record. was der based on reliable evidence. He does sentencing panel. judge inal There [one right prevent prosecutor a not have the gong said] ... "I’m to read both Eastman justifiable arguing a inference a from Wesley[’s testimony] ...” The other record, complete evidentiary even if the judge panel presided Wesley's on the argued has for a different infer- testimony trial and heard thus Eastman’s then-complete evidentiary ence from the considering live. After Eastman's testimo- record in another case. 750-51.) Wesley's ny, testimony, (Majority Op. and the evidence .... find no error in that judges stance We tors; decision of two the unanimous is determination. is insufficient. and, in evidence hearsay the face by to death sentenced Had been hear- appellant’s sentencing adduced at attempting to reconvene jury upon a such, it is ing, weight. of minimal As of the that one jury it was discovered to warrant a vacation of too attenuated interim, in the it seems jurors had died appellant’s sentence and a new sentenc- juror have to be re- clear that the would ing hearing. We therefore find law, in the under Ohio placed, because its discretion in panel did not abuse contrary, the request of a absence denying appellant’s motion. a unanimous right has a to have defendant occurred jurors.6 of twelve What decision different; Stumpf entitled here is no was error for [Stumpf] maintains that was a new determination only judges post- to consider his two including the entire record East- based on motions, sentence inasmuch R.C. testimony; and he was entitled to a man’s requires three-judge pan- a 2945.06 jury than unless a or sentence other death expressly provides el.... R.C. 2945.06 unanimously judges of three them judges or a “[t]he record that the agreed complete on that may all of fact and law questions decide outweighed circumstances aggravating ** upon (Emphasis arising mitigating beyond factors a reasonable added.) Unanimity only mandated Further, independent review doubt. guilty finds a defendant when cannot by appellate afforded courts guilty. appellant or not Whether two-judge panel’s save the decision sentencing hearing entitled to ... a new

more than it could save a non-unanimous law, question properly deter- [was a] jury recommending recommendation of a by majority panel. mined an vote. eleven-to-one Stumpf, 512 N.E.2d at 609.

II. First, pro- § Ohio Rev.Code 2945.06 also proce- vides that the court “shall follow rejected Supreme The Ohio Court dures contained sections 2929.03 that it Stumpf argument appeal s on direct 2929.04 of the Revised in all cases Code two-judge panel was error for the to con- charged which the accused is with an of- sentencing: sider his motion for death,” punishable by fense which includes [two-judge] panel, consider- upon unanimity provision finding for motion, appellant’s apparently ation of aggravating outweigh circumstances determined that Eastman’s Second, mitigating factors. the Ohio mitigating weight added insufficient qualifi- accurately Court used the balancing mitigating affect fac- its have no idea against aggravating “apparently” tors circum- er because we (“If imposed §§ the of- 6. Ohio Rev.Code the number the sentence of death be 2938.06 jurors fender.”); sworn in a case is not stated in (providing procedure be 2945.29 claim, to be sworn shall be number replacing juror juror, and with an alternate twelve, stipulate may for a but accused alternate, requiring that in the absence of an six”); 2929.03(D)(2) ("If jury jury the trial juror may a new the court either swear finds, unanimously beyond proof a reason- anew, discharge begin the current the trial doubt, aggravating able circum- jury impanel jury); R. a new Ohio Crim. guilty of stances the offender was found com- 24(G) (providing process seating for alternate factors, mitting outweigh mitigating the cases). jurors capital jury shall recommend to the court that sum, notwithstanding the In Ohio Su- panel denied two-judge what basis characterizations of the mo- simply preme court stated: Court’s motion. The sentencing question for new as a tion 7, 1985 filed June of Defendant Motion two-judge panel’s decision as law and Henderson and Judge was heard before in- that the evidence was a determination 1985. De- on October Judge Bettis sentencing a new of- sufficient to warrant Exhibits and 3 were fendant’s seemed to hearing, two-judge Plaintiff stated in evidence. fered No. 1 and no of the objection recognize given no the relevance it had being statutory 2 and No. 3 as objection testimony mandatory to No. con- Wesley. transcripts of Eastman the offender’s of the extent of sideration for Defendant and State Ohio Counsel obliged it was reconsider participation, on record. The Court made statements propriety of the death sentence advisement and took the matter under testimo- light Eastman’s same, does having considered penalty the death based ny, did reconsider For- the Motion to Withdraw overrule record, and came to the on the entire the Alternative Motion mer Plea and the evidence did not conclusion that Imposed. Set Aside the Sentence This reconsideration change its sentence. 379.) (J.A. Third, properly the Ohio could not be appropriate was but conclusions to the two- imputes panel. then Alterna- by two-judge Court conducted conjectural, both that judge panel that are accepted the tively, two-judge panel if the insuffi- found the evidence added secondary argument prosecutor’s weight to affect its balanc- mitigating cient testimony was insufficient against the ing mitigating of the factors death-pen- warrant reconsideration circumstance, East- and that aggravating decision, regard to the out- alty without hearsay and “too atten- testimony man’s reconsideration, Stumpf was come of that appellant’s vacation of uated to warrant a fair- and fundamental denied due hearing.” a new sentence and previous- because the ness to made The former decision had be ly position taken know panel. We do not three-judge support sufficiently reliable was two-judge panel concluded whether Wesley. penalty Stumpf was the finding that its earlier up- decision I dissent despite to be sound triggerman continued grant and would holding the death if testimony, or that even the new subject providing the writ to Ohio mitigating triggerman, not the sentencing hearing. a new outweigh aggravating cir- fact did not But, three- way, a cumstances. .either to make one of

judge panel required beyond unanimously,

those determinations charac- If the latter

a reasonable doubt. two-judge and the

terization is correct testimony so atten-

panel simply found the' unworthy of serious con-

uated that it was not warrant resentenc-

sideration and did import of the

ing, potential prosecu- have been conceded

should import being left to

tor with the actual fact.

trier of

Case Details

Case Name: Stumpf v. Robinson

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 3, 2013

Citation: 722 F.3d 739

Docket Number: 01-3613

Court Abbreviation: 6th Cir.