*1 376 “(1) aby preponderance plies
triсt court found where the defendant actually responsible constructively ‘possessed’ weapon, that Brown was the evidence possession such kilograms during fourteen the com- an additional offense.” United States v. mission of the based on evidence that powder cocaine Bender, (6th Cir.2001). quantity from an 265 F.3d purchased Brown FBI informant in 1992. Be- We review a district court’s factual deter- confidential mination underlying sentencing conduct and the that a cause both the defendant involving “possessed” weapon a for clear offense were transactions co- error. Hill, court did not err in United States v. caine, 79 F.3d the district (6th Cir.1996). finding Simpson the conduct relevant. Donnell testified Courtney
at trial that he saw in the base- ment of a crack wearing house a bullet- B. the Cocaine Base Whether Was proof vest and in possession of firearm Crack kilograms and five of cocaine. Sondra Brown was sentenced for crack Jackson, co-conspirator, and Ronald argues cocaine. He there was not Simpson Courtney also testified that car- to show that the sufficient evidence cocaine facts, gun. light ried a In of these conspiracy base involved in the was crack district court’s factual determination was sentencing, question cocaine. At clearly erroneous. a particular whether substance is crack or reasons, forgoing For the we AFFIRM form of cocaine is a fact question another jury’s conviction and district court’s to be determined the district court and sentencing of Defendants Brown and United only. clear reviewed for error Courtney. Jones, v. States F.3d Cir.1998). Because Brown did not raise below,
objection plain we review for error
only. plain There was no error in this trial, Throughout key
case. witnesses Simpson Simpson
Donnell and Ronald re practice cooking ferred to their into Tony POWELL, M. Petitioner- crack the cocaine they purchаsed Appellant, including from sources Brown. A DEA drugs forensic chemist testified that Terry seized from co-conspirators COLLINS, Warden, Richard Simpson Respondent-Appellee. and Michael crack Moore were Thus, cocaine. there was evidence in the No. 98-4053. record establishing that the cocaine base Appeals, was crack cocaine. United States Court of Sixth Circuit.
C. Sentence Enhancement for Pos- Argued Nov. 2000. Dangerous Weapon session of a 7,May Decided and Filed 2003. Sentencing Guidelines Supplemental Order Filed June provide two-point for a enhancement for possession dangerous weapon during of a
drug trafficking offense. U.S.S.G. 2D1.1(b)(1). only This ap- enhancement *4 (briefed), Taft,
James V. Schuster Stet- *5 Hollister, Cincinnati, OH, tinius & Mark A. briefed), (argued Laan and Dins- Vander Shohl, Cincinnati, OH, more & William S. (briefed), Lazarow Public Defender’s Of- fice, Com’n, Ohio Public Defender for Peti- tioner-Appellant. Bachman, L.
Michael Office of Attor- General, Section, ney Litigation Federal Crowe, Attorney Claude N. Office General, Cincinnati, OH, L. Charles Wille briefed), (argued Attorney and General’s Ohio, Section, Capital Office of Crimes Columbus, OH, Respondent-Appellee. for DAUGHTREY, CLAY, Before GILMAN, Judges. Circuit CLAY, J., opinion delivered of the court, GILMAN, J., joined. in which DAUGHTREY, 402-405), (pp. J. delivered separate opinion concurring in part and dissenting part.
OPINION CLAY, Judge. Circuit Petitioner, Powell, Tony appeals M. denying from the district court’s order his motion for reconsideration of the court’s judgment denying motion for Petitioner’s discovery pertinent leading as evidentiary hearing ag- facts habeas gravated for a writ of murder conviction as follows: petition well as his pursuant to 28 U.S.C. corpus brought 29, 1986, Dukes, July On Trina age was convicted on two § 2254. Petitioner seven, playing with her cousin Mar- murder, among other aggravated counts corsha Dukes another child front counts, and was sentenced to death. On family’s of the Dukes home Cincinna- reviеw, appeal and collateral both direct Powell, ti. Appellant, Tony ap- M. Petitioner’s con- the Ohio courts affirmed proached the three children and asked viction. The United States District Court they Trina and if Marcorsha knew how District of Ohio denied the Southern Trina replied, ride bike. “Yes.” The corpus, for a writ of habeas petition three children followed Powell around of prob- and thereafter issued certificate Liberty the corner to 214 West Street. pursuant cause to 28 U.S.C. able Powell Trina to upstairs asked come numerous appeal, On Petitioner raises with him and told the other two to leave. error, including whether he assignments He led Trina to the fourth floor and told process by being deprived due was denied (He her to take off her clothes. later psychological assistance rec- police admitted to that he had intended ognized United States Trina.) to “fuck” Trina cried and said Oklahoma, in Ake v. 470 U.S. Court go she wanted to home. (1985), L.Ed.2d 53 105 S.Ct. Meanwhile, had told her Marcorsha deprived of the effective whether he was (known grandfather, Robert Dukes and sen- guilt assistance of counsel at the “Big grandchildren), Duke” to his where tencing phases Although of his trial. gone. Trina had Dukes and Marcor- *6 agree with the district court that Petition- sha’s brother Marvin went to investi- challenges guilt phase to the of his er’s gate. Marcorsha led them to the build- relief, trial not merit habeas we con- do ing where Powell had taken Trina. right that Petitioner was denied his clude building Dukes went behind the and psychological assistance and effective back, called Trina’s name. Trina called sentencing during assistance of counsel Duke, trial, “Big Big grabbed Duke.” Powell phase of his and that the state quiet her mouth to her cries. Dukes mo- improperly denied Petitioner’s building upstairs, ran entered the and prior for a continuance to the sentenc- tion by followed Marchorsha and Marvin. Accordingly, ing phase. we REVERSE Hearing approach, picked Powell their the district court’s denial of the writ on did, bases, up Trina. As he she defecated on these we REMAND to the dis- and him. He threw her out the window. trict court with instructions to issue a writ corpus vacating death of habeas Powell’s reached When Dukes and the children sentence unless the State of Ohio conducts landing, they the third-floor heard days penalty proceeding a new within 180 shirt, Powell, wearing crash. Then no of remand. them, past saying ran downstairs beating up. someone had been him
I. BACKGROUND proceeded Dukeses to the fourth floor. window, 29, 1986, July Looking they Petitioner out a saw Trina’s On was arrest- Cincinnati, Ohio, body lying garbage in in ed connection with nude next to some seven-year-old po- Dukeses summoned the the death Trina Dukes. cans. The Trina explained paramedics. Although The Ohio Court lice (Count § the victim violation of 2905.01 breathing paramedics when the was still Three); day. kidnapping by removing the vic- arrived, dead the next she was she was found place tim from the where Meanwhile, leaving the Powell was (Count Four); § violation of 2905.01 out, way encoun- his he building. On (Count Five). of 2907.02 rape violation Lee, lived there. He Shirley who tered adjudged indigent and was mumbled, “I did her aside and pushed County appointed counsel the Hamilton do to that I intended to bitch.” what guilty to plea He entered a of not Court. ran the street. Police Then he down charges. hiding found Powell behind later apartment. in his mother’s refrigerator 17, 1986, Petitioner’s trial September On per- Ross Zumwalt Deputy appoint- Coroner a written motion for counsel filed body. autopsy an on Trina’s He psychiatrist psychologist formed ment of a or or small he- petechia, numerous presid- found assist in Petitioner’s defense. The He on Trina’s face. also morrhages, ing judge orally Sep- denied the motion on Later, on the inner found bruises and abrasions on December tember and six small scratch- lips surface of the the trial court to re- counsel asked Zumwalt, According denying psychological es on the neck. consider its decision Trina injuries time, indicated that had these At that psychiatric assistance. by a hand partially asphyxiated been Petitioner’s defense counsel noted that clamped recently ju- over her mouth. they had received Petitioner’s psychological venile court records a 5.7-inch lacera-
Zumwalt also found evaluations and that those documents re- along Trina’s chest and numerous tion fur- vealed mental deficiencies. Counsel bruises, lacerations, and abrasions other ther deficiencies war- claimed these body, Trina’s head and consistent appointment ranted the Tri- concluded that with a fall. Zumwalt of its presentation assist the defense impact from “blunt na’s death resulted argued that case. Defense counsel these head, trunk, with multi- [and] “neurological suggested evaluations also injuries smothering.” ple acting component underlying some Powell, 255, 552 State v. 49 Ohio St.3d again out behavior.” But the motion was (1990) (alteration in origi- N.E.2d *7 denied. nal). agrees with the recitation Petitioner however, that Petitioner’s opinion Recognizing, in this and does not of facts found placed had been in is- deny competency that he committed the acts mental appeal on sue, judge the trial death. on December which led to Trina’s undergo psycho- ordered that Petitioner Proceedings Trial logical testing psychiatric at the court’s Nancy Dr. a Schmidtgoessling, a Hamilton center. September On Ohio, center, jury ap- a clinical at the County, grand psychologist returned five- a court” and charging pointed Petitioner with “friend count indictment following performed psycholog- violations of the Ohio Revised about a week later during January a kid- ical evaluation of On aggravated Code: murder Petitioner. 5, 1987, orally §of with a defense counsel renewed napping in violation 2903.01 (Count One); ag- request appointment their for the kidnapping specification Dr. during reviewing in violation to assist them gravated rape murder Sehmidtgoessling’s report “so rape specification [coun- 2903.02 with (Count it Two); exactly can understand what kidnapping by restraining sel] 922.) at But means.” the trial court or to restrain himself from doing a certain (JA 932.) again once denied the oral motion “for a act.” psychiatrist psychologist or be [their] After Dr. Schmidtgoessling testified re- during trial, elbow[s] course or garding Petitioner’s competency to stand a Court-appointed psychiatrist have trial, counsel again once requested psycho- psychologist Psychi- to discuss this Central assistance, logical claiming ignorance toas (J.A.-at 922-23.) report you.” atric certain psychological terms and an inabili- ty comprehend Dr. Schmidtgoessling’s Defense counsel then filed a suggestion report question or to her on it. The trial 6, 1987, incompetency. January ap- On judge again denied the motion and found trial, proximately one week before Dr. competent to stand trial. Schmidtgoessling testified a hearing Petitioner’s trial January commenced on concerning competency the results of her 12, 1987. Defense counsel called Dr. evaluation of Powell. stated that She she Schmidtgoessling as a defense witness approximately examined Powell for two during guilt phase trial, at which alert, and one-half hours and found him repeated time she much of the information communicate, able to compre- able to previously provided she had pretrial only hend not charges against him but competency hearing. Specifically, Dr. also the dire consequences guilty of a ver- Schmidtgoessling noted that Petitioner did that, dict. psycho- She also noted due to a enjoy a nurturing environment as a deficit, logical Petitioner had “a conduct child and that he was administered Thora- disorder, unsociably aggressive, or to use zine and other anti-psychotic medications term, the adult he has an anti-social per- anxiety and behavior control. She ex- sonality.” In explanation, Dr. Schmidt- plained that performance goessling defined an personality antisocial IQ standardized tests showed that he fluct- as follows: uated between the mild and borderline person It is a who essentially acts out ranges of mental Finally, retardation. she the problems instead of psychologically explained that Petitioner expressed antiso- acting They it out. act them out be- behavior, cial that he psychologi- had “true guilt cause of and anxiety, they lack deficits,” cal that he did not appreciate the empathy, they so do not appreciate the others, feelings of poor impulse had con- feelings people of other they when are trol, and overreacted to situations. doing something. convicted Petitioner on the They tend to pushed pulled first four counts as well as the in- lesser goals want short-term long- rather than cluded of attempted rape. offense Counsel goals. They term impulsive are rather then moved to neuropsychiatrist hire a acts, meaning they their subject don’t *8 assist Petitioner at the mitigation phase. their acts to critical [thinking]. They Although the trial granted court the mo- just sort of do something they because tion, it again engaged once Dr. Schmidt- want to or feel like it. goessling psychiatric from the court clinic. (J.A. 929.) Finally, that, at she testified The trial court to grant refused a continu- although Petitioner has a mild mental de- ance of the sentencing hearing to for allow fect, his condition did not meet legal Petitioner, the additional testing of even insanity definition of because that though defect is Dr. Schmidtgoessling admitted severity not “of sufficient to cause him to that she was not equipped to conduct the incapable be knowing right wrong necessary from testing phase for this of Peti- did, however, in- The this accepted court Two. trial court recom- The case.
tioner’s opinion give request explain- mendation and issued an it would counsel’s dicate that by if the clini- its as Ohio Re- ing judgment required court’s consideration additional 2929.03(F).1 “they have the do not vised Code cian indicated evaluate Petitioner. properly to facilities” Appeal Direct sentencing to on proceeded The trial convictions, Following his Petitioner called 1987. Defense counsel January to First appeal Appellate took direct the only its witness Schmidtgoessling Dr. as Ohio, rep- he District Court where Dr. sentencing hearing. during by resented one of his trial co-counsel as explained that she Schmidtgoessling There, as a new second counsel. he well to time conduct given not sufficient following assignments raised eleven into investigation appropriate error: necessary makeup, to interview mental (1) court to preju- The trial erred family acquaintances, or members and defendant-appellant by dice of the fact, diagnostic In she run tests. needed instructing jury on both counts during testimony her that she admitted aggravated murder indict- time to interview had not even taken the entering ment and for convictions competency initial since the Petitioner murder aggravated both counts of Al- prior two weeks to trial. evaluation the indictment. though Schmidtgoessling indicated Dr. (2) court likely preju- from some The trial erred suffered
organic dysfunction defendant-appellant and that such a dice of the only acquittal denying be tests motion for defect could detected yet performed on Peti- count V of the indictment made that had not been tioner, defendant-appellant also reinforced her trial testi- at the she mony perform of all the that Petitioner was able to close evidence. acts, intentional, basically purposeful (3) trial court preju- The erred gath- had repeated information she defendant-appellant by dice of the her evaluation. Dr. competency ered from denying the for acquittal motions she was Schmidtgoessling admitted that on III counts and IV the indict- “definitely equipped” conduct ment made defendant-appellant. neuropsychological testing necessary (4) The trial court erred to preju- (J.A. of Petitioner’s phase case. defendant-appellant dice of the 1013.) had also claimed that if she She denying defendant-appellant’s Petition- properly more time she could test (2) acquittal motion for on the two contacting makeup by er’s “psychological kidnapping. counts of family people.” members and other preju- The trial court erred 1012.) defendant-appellant dice of mitigation hearing denying the defendant-appellant’s After the phase, mitigation recommended that Peti- motion to continue the put hearing. tioner death Counts One imposed eight years’ sen- a term concurrent death to fifteen incarceration *9 One and Two. Petitioner tences on Counts The on Count Five. sentences on Counts sentenced to a term of ten to further through Five the Three ran concurrent with years’ twenty-five incarceration on Counts death sentences on Counts One and Two. Four, merged; were and to Three and which in (6) preju- alty the similar imposed The trial court erred to cases and the in defendant-appellant appropriate penalty. the dice of jury the failing properly instruct sought leave to appeal with regarding mitigation phase at the Court, the Ohio the presenting aggravating merger the issue of of following issues: seven circumstances. (1) grant The failure to a short contin- (7) the death The recommendation of mitigation of the ef- hearing uance jury the and the find- sentence fectively denies in great the latitude ing by aggravating the court that of preparation the evidence of the mitigat- outweighed circumstances mitigating guaranteed by factors the mani- ing against factors were § Ohio Revised Code 2929.024 and weight fest of the evidence. 2929.03(D)(1). § Ohio Revised Code (8) preju- The trial court the erred to (2) overruling trial court in The erred dice of the defendant-appellant appellant’s pre-trial the motions the defen- denying the motion of psychiatrist hire a assist dant-appellant for a motion have of the preparation defense after the the defendant referred for further appellant demonstrated to the court psychiatric testing. sanity the time of the (9) The court of prejudice erred was to a significant offense be fac- denying defendant-appellant trial. tor at defendant-appellant motion of the (3) Reasonable assistance is de- psychia- appointment of appellant when nied the court trist psychologist pursuant to follow the fails recommendations Code, Section Ohio Revised appointed own expert. of its 2929.024. (4) finding guilt of of jury The (10) The trial court the sub- erred to rape, in attempted violation of Ohio defendant- prejudice stantial of the 2907.02, § Code against Revised is appellant by into evi- admitting weight of the manifest the evidence. inflammatory photographs dence of the victim. (5) finding of guilty by jury The of (11) attempted rape and kidnapping, preju- The trial court erred to aggravated which are cir- both of
dice defendant-appellant of the cumstances, inis violation of Ohio denying defendant-appellant’s 2941.25(A), Code Revised since motion to dismiss at the close attempted kidnap- rape and both state’s case. crimes of ping import are similar 17.) (1) only for which one conviction 17, 1988, August, Court of On Ohio can obtained. Appeals judg- affirmed the trial court’s (6) finding guilty by of Specifically, appeals ment. the court (2) counts kidnapping two assignments found these error against weight of the evidence. meritorious; aggrava- were ting outweighed mitigat- circumstances The trial court and the court doubt; ag- ing beyond incorrectly weighed factors a reasonable appeals gravating and that the death sentence was neither circumstances and the factors, nor disproportionate pen- mitigating excessive and therefore *10 19.) against Supreme death The Court denied of -is the sentence a application for writ of certio- weight of the evidence. manifest rari. 18.) (J.A. at Proceedings State Post-Conviction 14, 1990, Supreme the Ohio
On March
deci-
appeal’s
the court of
affirmed
Court
1991,
6,
peti-
June
Petitioner filed a
On
date as
and set Petitioner’s execution
sion
post-conviction
tion for
relief in an Ohio
27, 1990,
12,
Peti-
On March
June
1990.
court,
thirty-five claims
presenting
state
for reconsideration
tioner filed a motion
review. The trial court held an eviden-
for
court,
he raised
wherein
supreme
with the
1,
tiary hearing
April
on March 31 and
issue:
following single
solely
claim
Petitioner
on the
organic
damage.
from
brain
The
suffered
denied due
Appellant
Whether
did
trial court determined
Petitioner
by
failing
of law
Court
process
organic
damage.
not suffer from
hear-
a
grant
continuаnce
The court therefore found that Petitioner
evidence related
ing to secure additional
post-conviction
relief
was not entitled
mitigating
to a
factor.
and,
petition
denied
on
his
June
244.)
(J.A. at
Petitioner
this
to the
appealed
decision
Supreme
The Ohio
Court denied
presenting
ten as-
Appeals,
Ohio Court
on
1990. Petitioner was
April
motion
signments, of
Before
court ren-
error.
stay
granted a motion for
of the execution
decision, however,
its
Petitioner
dered
petition
for a writ
pending review of
application
delayed
for
filed
reconsider-
Supreme
certiorari
in the United States
in which
claimed
had
ation
he
that he
been
sought
of two
review
Court.
denied the effective
of counsel
assistance
Su-
the United States
questions before
ninety-
appeal.
alleged
on his direct
He
preme Court:
five issues that his counsel should have
pursued
appeal.
on direct
Oklahoma,
470 U.S.
Is Ake v.
1087,
105 S.Ct. 11, 1993, August appeals On court Sixth, (1985), Eighth denying a for petition issued decision Fourteenth Amendments relief, post-conviction that none of finding Constitution satisfied United States assignments of error were well taken. appointing the Trial Court appealed Petitioner then the Ohio Su- the defense expert sole assist Court, preme presenting ten issues. The phase sentencing psycholo- supreme court overruled the motion. gist admits that further who Peti- appeals then denied necessary assistance is to render delayed application tioner’s for reconsider- competent opinion? February finding ation on that he (2) May preclude capital de- a state good filing had failed to show cause presenting mitigating
fendant from days than after application ninety more penalty phase in the evidence judgment journalized the court’s had been denying a continuance de- yeаrs which more than three after the Ohio has fense counsel demonstrated ap- Court had decided his direct testimony through psychological peal. Petitioner filed motion for rehear- necessary develop appeals in order to ing, which the court denied 14,1994. April mitigating evidence? *11 (3)The 24, 1994, five and May Petitioner raised failure refusal of the state
On petitioner Ohio court the grant of law before the Su- a continu- propositions ap- regarding opportunity the court of ance an Court and conduct addi- preme delayed application psychiatric testing investiga- denial of his for tional peals’ court af- supreme The tion in presentation reconsideration. connection with of judgment ap- the of of the court at the mitigation hearing firmed defense filed a August on 1994. Petitioner of peals was a violation Petitioner’s un- rights reconsideration, Fifth, Sixth, for which su- Eighth, motion der the and Four- September court denied on preme teenth Amendments to the United set Peti- supreme court then 1994. States Constitution. 5,1995. January execution for
tioner’s Corpus (6) Habeas Petition from organic Petitioner suffers brain damage and borderline or mild mental 21,1994, filed a December Petitioner On Imposition retardation. of the death petition stay for of execution motion Petition of [sic] sentence on is a violation of habeas to 28 corpus pursuant for writ Fifth, rights the Petitioner’s under the 2254 the United States District U.S.C. Sixth, Eighth, and Fourteenth Amend- of A for the Southern Ohio. Court District ments to the United States Constitution. hearing was held on motion for Petitioner’s stay, and the thereafter district court * * * the motion on granted December (11) provided with inef- his return Respondent was ordered to file fective of trial assistance counsel petition March of writ 1995. In his respects: following petitioner writ of habeas corpus, for a (a) of relief, object Failure trial counsel to grounds thirteen those raised instructions during penal- erroneous for purposes appeal being relevant of this ty phase of the trial. as follows: (b) to secure a or psychiatrist Failure (1) The failure and refusal of the state neuropsychologist sufficient time Petitioner, provide indigent, court to an of present organic evidence Petitioner’s an expert psychiatrist psycholo- with or damage. pre- to assist in gist preparation and/or (c) object to improper argu- Failure during guilt sentation defense prosecution. ment phase the case was a violation Fifth, rights Petitioner’s under The lack of effective assistance of trial Sixth, Eighth, and Fourteenth Amend- counsel violation of the Petition- to the United Sixth, ments States Constitution. Fifth, rights er’s under Eighth, Fourteenth Amendments (2) The failure and refusal of state States Constitution. United Petitioner, provide indigent, court to an appellate Petitioner’s counsel was expert psychiatrist psycholo- failing ineffective in to raise the follow- pre- to assist in gist preparation and/or ing appeal: on direct issues during pen- sentation the defense (a) alty phase of the case was a violation The trial court’s erroneous instruc- Fifth, rights jury in the phase under tions to the Sixth, Eighth, trial, Amend- set forth in the Fourteenth Fifth Claim ments the United States Constitution. above. un-
(b) then motion court’s. refusal to instruct denied Petitioner’s The trial 59(e) offenses Federal Rule of Civil Procedure the lesser included der *12 judgment. Sep- to alter or amend its On murder. aggravated 8, 1998, of Petitioner filed a notice tember (c) of the The court’s dismissal trial to this appeal Court. of an alternate substitution foreman and in the during the deliberations of trial.
phase
AND
II. STANDARD
SCOPE
(d)
the Ohio
unconstitutionality
The
of
REVIEW
OF
penalty scheme.
death
The Antiterrorism and Effective
(e)
The
assistance of
ineffective
1996,
Act of
No.
Penalty
Death
Pub.L.
counsel,
Eleven
forth in
as set
Claim
(codified
104-132, 110
1214
at 28
Stat.
above.
(“AEDPA”)
2244,
seq.)
§
U.S.C.
et
(f)
imposition
unconstitutionality
The
of
24,
April
into
on
1996. The
signed
law
upon
person
a
of the death sentence
significantly
the na
AEDPA
transformed
organic
damage
bor-
and/or
corpus proceedings,
ture of federal habeas
derline mental retardation.
limiting the
relief for
possible avenues of
(g)
misconduct.
Prosecutorial
However,
persons.2
the AEDPA
convicted
(h)
The
all errors
cumulative effect of
petitions pending
not
to habeas
apply
does
trial.
Lindh
statute’s effective date. See
appel-
The lack
effective assistance of
of
320, 321-23,
Murphy, 521
117 S.Ct.
v.
U.S.
late
a violation of the Peti-
counsel was
2059,
(1997);
v.
deprived the
history
possible
made,
ing
mental
must
concerning his
states
his
damage
violation of
organic brain
minimum,
ac-
at a
assure
defendant
The district court
process rights.
due
competent psychiatrist
who
cess to
will
process
no due
violation because
found
an appropriate
conduct
examination and
mandate
of Ake
state
adhered
evaluation, preparation,
assist
Oklahoma,
470 U.S.
105 S.Ct.
presentation of the defense. This is not
(1985), by appointing a neu-
sion on how to
Requirements
1. Constitutional
Id.
appropriate,
Ake also held that when
right
expert
the
to
extends
assistance
to
Oklahoma,
68, 83, 105
In Ake v.
470 U.S.
sentencing
capital
the
of
phase
proceed-
1087,
(1985),
L.Ed.2d
84
53
the Su
S.Ct.
86,
ings.5 Id. at
5. This circuit and others have extended Ake's dant an to an expert to instances effective defense when the trial court command of assistance denied request independent beyond pathologist those where a defendant’s mental his an to trial, government’s beyond challenge position is at issue at as to the condition See, death); Roberts, e.g., capital cases. v. of the v. those Glenn cause victim’s Dunn 1204, 308, Tate, (6th Cir.1995) (10th Cir.1992) (finding 71 1211 963 F.2d 313 F.3d Ake, (holding capital preju expert defendant under denial of wit- that the that an thereby petitioner’s diced and denied the effective assis ness to determine whether the by by spouse counsel's to state affected tance counsel failure mental battered testimony sentencing syndrome expert regarding preclud- at the seek time offense organic problem); petitioner presenting defendant's Starr ed the from an effective Armontrout, Lockhart, 1280, (8th defense); F.3d Little F.2d v. 23 1289 Cir. v. 835 (8th Cir.1987) 1994) (noting explains (finding that Ake that "due 1243 that the rule of expert experts beyond access to in areas that process requires to an who will Ake extends conduct, any, appropriate just psychiatry but an ex instances the death not to where amination,” involved, finding petitioner’s holding not that the "the expert hypnosis inappropriate state-provided because it not of a on "exam was did denial mitigating questions indigent [the] into the essential assist rendered delve defendant Rees, petitioner]"); Terry fundamentally thereby v. 985 F.2d trial re- [the unfair” aside). (6th 1993) quiring (holding to be set 284 Cir. that a defen- conviction
391
Texas,
interpreted
Ake to Granviel v.
U.S.
Several circuits have
110 S.Ct.
is not
un
process
mean that due
satisfied
(Marshall, J.,
L.Ed.2d 758
indepen
an
provided
less
defendant is
dissenting).
opined
Justice Marshall
i.e.,
in his
psychiatrist to aid
dent
the Fifth
“[b]ecause
Circuit’s misinterpre-
defense —
appointment
psychi
of a neutral court
tation
substantially
of Ake
undermines an
atrist,
hand,
matter at
such as
does
indigent
ability
present
defendant’s
See,
satisfy
process.
e.g.,
not
due
Starr v.
defense,
grant
effective
I
peti-
would
Lockhart,
(8th
A.L.
23 F.3d
tion
holding
to reaffirm our
in Ake.” Id. at
Cir.1994) (“[T]he
finding,
court’s ...
966,
thought pattern.” The further stat IQ guarantees ed Petitioner’s full-scale score was Ake an criminal de- indigent that only 64, mentally court-appointed tool placing him in the “mild fendant the basic
393
States,
750,
appropriate
776,
exami- United
to “conduct an
328
U.S.
66 S.Ct.
evaluation,
1239,
prepara-
(1946),
nation and assist
what
in
intentionally
22, 1991;
he
it
indicating that
March
thereby
Petitioner until
inju
ultimately fatal
testify
Trina
necessary
flicted
for him to
sev
therefore
Powell, 552
at 193.
v.
N.E.2d
ry. See State
years
proceeding
the
con
eral
after
addition,
Peti
being apprehended,
after
In
cerning
condition at
Petitioner’s mental
taken
police that he had
admitted to
tioner
Tanley
time of
crime. Dr.
testi
the
the
her,
intended to “fuck”
he
Trina because
opinion,
that
Petitioner’s al
fied
his
predicate
to the
felonies
thereby admitting
leged organic
damage together with
rape. See id. Under
kidnapping and
of
IQ
compromised
his low and other factors
facts,
the error as harmless.
we view
these
ability to
cognitively,
think
had
independent psychiatrist
if an
Even
had significant
that Petitioner
diffi
such
changed
not
it would
have
appointed,
been
culty
conforming
his actions to the re
admission, Peti
own
fact that
his
the law at the time of
quirements of
rape
intending
Trina
kidnapped
tioner
Although
recognize
we
this testi
offense.
her,
Trina
purposefully
and then
threw
mony,
recognizing
while also
do so
him
protect
in order to
ultimate death
her
testimony
as
Schmidtgoessling,
of Dr.
well
of the
“had” to throw her out
self—he
own
and state
as Petitioner’s
actions
re
he heard individuals
because
window
Moreover,
ments,
contrary.
Dr.
Peti
help.
to Trina’s cries for
sponding
that
Tanley’s testimony
Petitioner “had
provide
basis
own
tioner’s
admissions
conforming
...
significant difficulty
his
he
of
capable
that
for a
find
requirements
conduct to the
of the law”
acts,
and that he
purposeful
performing
1131)
falls short of Ohio’s stan
Tri
acts which led to
committed the
fact
time
insanity applicable
for
at the
dard
Starr, 23
at 1292-93
See
F.3d
na’s death.
murder; namely,
Trina’s
Petition
whether
trial court’s failure
(holding
lacked
his
capacity
er
conform
con
psychiatrist
Ake
appoint
independent
law.
requirements
duct to
of the
See
indi
where the facts
was harmless error
Staten,
v.
18
247
State
Ohio St.2d
intentionally
had
cated that the defendant
(1969) (providing, in
N.E.2d
299
rele
the vic
injury
which led to
inflicted
part,
pre-1990 definition
vant
Ohio’s
in connection with the defen
tim’s death
insanity
being
one
where
accused
capital
felony mur
dant’s conviction
criminal conduct
not have
“does
der,
using
higher
“harmless
even when
...
conform
capacity
his conduct
standard).
doubt”
beyond
reasonable
law”);
requirements
Luff,
State
prosecution
case where the
This was
Ohio
App.3d
N.E.2d
498-
and delibera
prove premeditation
had to
(holding
application
defendant
prove
tion in order to
regarding
Ohio’s
amendments
insani
Rather,
to murder
victim.
intended
ty to a defendant’s mental state before
law,
prosecution had to
under Ohio
post
the ex
facto clauses
1990 violated
only
prove
purposefully
that Petitioner
Constitutions).
*18
the United States
Ohio
death,
him
and Petitioner
caused Trina’s
words, Dr. Tanley’s
In other
after-the-fact
he did
because he
self admitted that
so
testimony
nothing
does
to
post-conviction
“had” to.
change
of the trial
the harmlessness
error
the fact that one has
persuaded
are not
oth
court’s
because
We
testimony
difficulty conforming his
by
of Dr. James
conduct
erwise
the
enough
Pe
the law not
to
Tanley,
requirements
a
of
‘is
psychologist whose servicеs
one must
the
prove insanity;’
demonstrate
The trial court’s denial of an
do
Ake
capacity
expert
lack of
to
so.
this case cannot be consid
as,
ered harmless error
by
inasmuch
her
Thus,
review of all of the evi-
upon our
admission,
own
Dr. Schmidtgoessling was
prism
the
through
dence
of a harmless
to
equipped
conduct
appropriate
the
standard,
“grave
error
we are not left in
required
examination
to
for her
set forth
doubt” as to
harmlessness of the trial
the
all of the facts or
jury
information the
believe
court’s error because
do not
mitigation.
should have considered at
Dr.
appoint
independent
that the failure to
an
Schmidtgoessling began by acknowledging
injurious
psychiatrist had substantial and
“mitigation
that
is a
ques
much broader
jury’s
effect on the
verdict when consider-
tion than addressed to
...
date
and if the
ing the
a whole.
therefore
record as
We
understanding,
Court
a full
I
wants
feel it
hold that
claim on
issue
important
techniques
to use the
to an
phase
relation to
of his trial must
guilt
1026.)
questions.”
swer those
However,
fail.
the same cannot
said
be
explain
She then went on to
that neither
to
respect
with
to error
relation
any
she nor
other staff member at the
penalty
sentencing phase
or
of Petitioner’s
court’s psychiatric
qualified
clinic were
to
Circuit,
trial.
Eighth
As found
“the
type
testing
conduct the
of
and evaluation
...
from
mitigation
issue of
is different
required
that was
to diagnose Petitioner
Stair,
guilt.”
that of
tioner on issue. 437, 115 a egregious S.Ct. show that trial error was so deprive him a fair fundamentally if have we were to that even We add adjudication, violating thus constitutional a rationale that the Fifth Circuit’s followed principles process. Cooper of due See to meet sufficient psychiatrist neutral (6th Cir.1988). Sawders, 837 F.2d 286 command, pre- Ake’s Petitioner would still petitioner A also show that denial must the the connection with vail on issuе prejudice of his in actual request resulted trial. Dr. phase of his Sehmidt- defense. See United States v. More quali- was not goessling testified she Cir.1991). (6th no, F.2d Actu 933 372 type conduct the of examination fied to prejudice may by al be demonstrated result, a Pe- necessary mitigation. for As showing that additional time would have very type the of assis- titioner was denied made relevant witnesses available or oth provides appro- tance for which Ake —“an erwise benefited the defense. See United if we were to priate examination” —even Martin, States v. 740 F.2d Schmidtgoessling’s have that Dr. agreed Cir.1984). assignment Petitioner’s case was enough. Among factors to the reasons, hold For the we above-stated by in determining considered the court process rights that while Petitioner’s due properly whether a continuance was de the trial court’s failure to
were violated
length
requested delay;
nied are the
appoint
independent
an
as re-
psychiatrist
whether other continuances had
re
been
Petitioner,
error
con-
quested
was
quested
granted;
or
convenience
stitutionally
guilt phase
harmless at the
witnesses,
parties,
inconvenience to the
however,
trial;
Petitioner’s
error
court;
delay
counsel
whether the
penalty phase
Petition-
relation
legitimate
was for
or
it
reasons
whether
reversal,
mandating
thus
requires
er’s trial
contrived;”
“dilatory, purposeful
was
death sentence be vacated
Petitioner’s
whether
defendant contributed to the
mitigation hearing
conducted.
a new
giving
circumstances
to the request;
rise
denying
whether
the continuance
re
Motion
will
B. Denial of
for Continu-
sult
prejudice
identifiable
ance
defendant’s
case;
the complexity
of the
See
case.
trial,
guilt
of the
Peti-
phase
After
Burton,
United States v.
584 F.2d
sought
for
tioner’s counsel
a continuance
(D.C.Cir.1978).
490-91
obtaining
psy-
purpose
additional
presentation
for
chiatric examination
Applying
balancing test set forth in
mitigation hearing,
which the trial Burton, the district court
determined
Because we believe that
denied.
although
request
justifi-
Petitioner’s
granted
have
court should
weighed
able and
some of the factors
continuance,
also
grant
motion for
favor,
in his
there was no abuse of discre-
writ
this basis.
part
tion on the
of the state trial court.
The court also took issue with the fact that
The decision whether
length
counsel
not specify
did
grant
a motion
continuance is within
judge.
requested.
continuance
The court further
of the trial
See Un
discretion
575, 589-90,
Sarafite,
testing
84 found that additional
nec-
gar v.
U.S.
(1964).
essary
upon
S.Ct.
L.Ed.2d
Absent
based
the rationale that Dr.
proof
specific
already
of a violation of
constitu
had
Schmidtgoessling
testified
*20
would have a whether
organic
damage
that
brain
the death
should
im-
be
Burton,
impact
thought
on Petitioner’s
posed.
minimal
See
as relief Ake court con- We therefore hold that the district court that Petitioner no cluded suffered actual erred in upholding the trial court’s denial by the trial court’s refusal prejudice to of continuance, Petitioner’s for request a continuance of grant purposes obtain- grant and on the writ this basis as well. ing psychological an additional evaluation. C. Ineffective Assistance of Trial appeal, On Petitioner contends Counsel incorrectly weighed the district court Although factors of the Burton the relevant test. Petitioner waived or defaulted upon our that the most of his holding Based sentenc ineffective assistance of counsel claims, petitioner’s of he ing phase properly presented following trial was funda unfair, (1) mentally agree. claims in we must Dr. Ohio state courts: trial coun- testimony failed Schmidtgoessling’s fully properly investigate did not sel and intro- duce questions sought mitigating answer the evidence during penal- given ty if phase; answer he had been additional and counsel failed to obtain expert testimony proper time. While district focused on time to present Schmidtgoessling’s testimony Dr. evidence of brain organic damage that sub would organic damage guilt penalty phases tle brain have little and of the trial. The individual, impact rejected claims, it failed to district court these finding consid Schmidtgoessling er the fact that Dr. “diligently was Petitioner’s counsel pur- qualified much diagnose, appointment psychological even less sued or measure, the extent alleged psychiatric expert by of Petitioner’s as found the state organic damage. explained courts” reasonably She and relied on Dr. by specialists necessary present evaluation Schmidtgoessling the back- diagnose type ground question. and understand the evidence in ex 859-61.) organic alleged impair appeal, tent of Petitioner’s On Petitioner argues that ment, particularly for purposes Petition his trial counsel were ineffective two mitigation hearing. ways: by investigate er’s failing to his back- ground evidence, for mitigating Accordingly, request consequently failing to introduce at the contrived, dilatory neither nor he did not sentencing hearing the mitigating evidence request, contribute to the all ap- proрer investigation which would have dis- pearances request would not have in- covered. Petitioner asserts that the trial convenienced Dr. Schmidtgoessling any court’s denial repeated of counsel’s re- other witness. Although court found quests for a defense caused him to delay that further have disrupted would deprived of the effective assistance jury lives, members’ we believe that counsel. any inconvenience to this re- gard pales when compared gravity To establish a violation the Sixth magnitude i.e., counsel, right the issue Amendment a defendant involved—
398
1. Guilt Phase of Petitioner’s Trial
represen
that counsel’s
must demonstrate
actually
and that
it
deficient
tation was
repre
that his
Petitioner contends
Strickland, Washing
v.
him.
prejudiced
guilt
the
was ineffective
phase
sentation at
687-88,
ton,
104 S.Ct.
466 U.S.
to
failed
retain
because defense counsel
(1984). Representation is
674
L.Ed.2d
80
necessary
to evaluate
expert
defense
objective
it
below an
when
falls
deficient
lim
testify that,
Petitioners’s mental
given
prevail
under
of reasonableness
standard
have
problems,
itations
he should not
Bell,
F.3d
v.
ing
See Carter
norms.
murder.
guilty
aggravated
been found
Cir.2000).
claimant
rely
counsel for
Petitioner faults defense
errors so
that “counsel made
must show
However,
solely
ing
expert.
on a neutral
functioning
not
serious that counsel
reflects that Petitioner’s
record
guaranteed the defendant
the ‘counsel’
repeated motions for the
counsel made
Strickland, 466
Amendment.”
the Sixth
provide partisan expert psycholog
court to
687, 104
considering
2052. In
S.Ct.
U.S. at
ical assistance. Petitioner contends
factor,
Court
“prejudice”
at
regardless of whether
trial counsel
unrea
professionally
has
that even
held
tempted
qualified expert,
to secure
justify setting
do
aside
sonable errors
fact
trial counsel’s “failure” was
proceeding “if
of a criminal
judgment
does not mean that his
“court-induced”
judg
had
effect on the
no
error[s]
counsel’s
met or exceeded
performance
691, 104
2052. A
Id. at
S.Ct.
ment.”
objective
Pe
standard
reasonableness.
is a rea
must
that “there
petitioner
show
titioner’s
his bald-faced
support
failure
that, but
counsel’s
for
probability
sonable
legal authority is not sur
assertions with
errors,
the result of the
unprofessional
prising;
repeated requests
his counsel’s
have been different.”
proceeding would
were
independent
assistance
693-94,
2052. A reason
Id. at
S.Ct.
standard,
objective
under an
reasonable
sufficient
probability
able
is “a
probability
any
grant
failure of the court to
such
in the outcome.”
to undermine confidence
at
repeated requests
counsel’s
cannot be
of the collective
Id. The ultimate focus
Furthermore,
tributed to that counsel.
fairness of the
inquiry is the fundamental
if
could show some defi
even
Petitioner
vein,
In
we must deter
proceeding.
at
ciency
performance
his trial counsel’s
proceeding
mine
result
whether
guilt
he
failed
demon
phase,
has
of a breakdown in
“because
unreliable
prejudiced
he was
his coun
strate that
system
that our
process
the adversarial
attempts
failed
to secure
defense
sel’s
Id.
produce just
results.”
counts on
A.2.,
expert.
supra.
Part
See
This Court has
sel
failed
also
actually
We
find that Petitioner was
investigation.
limited
make even
prejudiced by his counsel’s
per-
deficient
formance. Respondent asserts that Peti-
Parker,
Skaggs
Our decision
presented
tioner’s trial counsel
evidence of
(6th Cir.2000), is also instructive.
F.3d 261
background
testimony
via the
Petitioner’s
trial counsel’s use of an
Skaggs involved
Dr. Schmidtgoessling. Respondent
of
ar-
at
inept
guilt
witness
both the
expert
gues that
background
evidence Peti-
capital
penalty
of
criminal trial.
phases
tioner alleges he would have received had
in that
The
case was both
“psychologist”
a proper invеstigation
counsel made
fraudulent, having
deliv-
incompetent
provided
was
information
cumulative of the
testimony
and eccentric
dur-
ered bizarre
Schmidtgoessling’s mitigation
via Dr.
testi-
ing
phase. We
that
guilt
determined
mony.
disagree.
We
not
“it was
unreasonable to have
although
during
guilt phase
of
expert]
used [the
The additional
information Peti
trial,
counsel’s decision to use [the
sought
tioner
to adduce was
contained
expert] again
penalty
pres-
at the
phase
several affidavits from friends and family
entirely
ques-
ents
an
different
us with
members. The
district
determined
at 269.
found
counsel
tion.” Id.
We
that
that while much of the information con
found a
psychiatric
should have
different
pertinent
tained
mitigating
therein was
ev
expert
penalty phase,
trial of the
idence,
present
counsel
able
performance
that
resulted in
this deficient
jury through
information to the
Dr.
essentially
presentation
mitigating
of
no
Schmidtgoessling and
per
counsel’s
all, especially on
topic
the one
evidence
formance
range
fell within
“wide
may
convinced
which
have
reasonable
assistance.”
professional
But if
justified
de-
death sentence
—the
counsel
actually
had
conducted an investi
mild mental
fendant’s
retardation and his gation
pertinent witnesses,
produced
capacity.
mental
Id.
diminished
jurors would have heard first-hand ac
bar,
Similarly,
in the case at
Dr.
counts from those who knew Petitioner
expressed
lack
Schmidtgoessling
personal
her own
best. We
that such
believe
testi
inability
mony
or
competence
provide
significant
evi-
would have been of
bene
during
phase.
that Petitioner suffered from a di-
fit
dence
Further
more,
capacity
organic
mental
due to
Schmidtgoessling
minished
Dr.
never met
damage. Although
perfor-
family
counsel’s
members or
miti-
friends,
any
dard-
Presentation of Dr. Fisher’s
as to have considered
so
рrovid-
testimony
perhaps
is
the most
they may have
devastat-
information
gating
ing error.
testimony
the sole
ed:
Combs,
although
in-
defense
then further
Q You have discussed
toxicated,
pur-
nevertheless acted with
necessary
or-
tests that would be
pose
obviously damag-
and intent was
Tony
or not
to ascertain whether
der
Furthermore,
ing to the
Dr.
defense.
organic impairment;
has
Powell
testimony provided
Fisher’s
the State
that correct.
powerful
pur-
with its most
evidence of
Yes,
A
that is correct.
pose.
Doctor,
you feel that these tests
Q
do
added).
(emphasis
Similarly,
Id. at 290
complete
a mental
necessary
are
case,
Dr. Schmidtgoessling
instant
tes-
get
examination of Mr. Powell
good thing
tified
it “was a
[Petitioner]
him?
picture
accurate
heavier,
smarter,
bigger,
is not
or he
Yes, I do.
A
just
dangerous.”
would be
that much
you
anything
there is
else
Q Do
feel
444.) Incredibly,
prosecution
even
which
your
needed for
examination
large portion
cited a
of Dr. Schmidtgoess-
to do
you were not able
because
*24
ling’s
testimony in
mitigation
support of its
the time constraints?
closing argument at the penalty phase.
analysis particularly
We find the above
because,
significant
point
at one
in its sen-
testing
I
some-
Ordinarily
A
would feel
deliberations,
tencing
jury
informed
by con-
psychological makeup
one’s
court that it
“at a
was
stalemate” and
tacting family members and other
could not
a
agree
impose
whether
death
well,
people
person
know that
who
jury’s
in
apparent difficulty
sentence. The
teachers, employers.
I did not have
reaching
regarding
appro-
a decision
time to do that over
weekend.
impose
under
priate
these facts
1011-12.)
if
leads us to believe that
counsel had
proper investigation
and had
conducted
Moreover,
Schmidtgoessling pre-
Dr.
presented competent proof mitigation,
jury.
damaging
sented
information to the
probability
that the
“there is
reasonable
recently
Coyle,
in
v.
As we
held Combs
different.” See
result would have been
Cir.2000), presenting such
F.3d 269
(citing
at 271
Skaggs, 235 F.3d
Williams
information, especially when
damaging
1495, 1519,
Taylor, 529 U.S.
120 S.Ct.
having
proper
failed to conduct a
first
(2000)).
fails under explicitly held: penalty phase a new free to conduct [Wjhen a defendant demonstrates to the if it chooses to do so. proceeding sanity at the time of judge that his significant the offense is to be a factor at DAUGHTREY, concurring part trial, must, minimum, at a the State part. dissenting compe- the defendant access to a assure majority’s Although agree I psychiatrist who conduct an tent will requires a constitutional error view that appropriate examination and assist sentencing evaluation, case for a new in this preparation, presenta- remand *25 conclusion agree with its hearing, I cannot tion defense. in connec- error is harmless
that the same
added).
83,
(emphasis
105
1087
Id.
S.Ct.
jury’s determination of the
tion with
us,
record
it is obvious
Based on the
before
guilt.
defendant’s
decisions,
in
courts and
that
their
the Ohio
in
misapplied
the district court have
Ake
that
question
no
en-
There can be
this case.
process require
of due
principles
trenched
indigent capital de-
for
in
greater protections
Supreme
explicit
The
Ake
Court
other,
defect or
suffering from mental
prior
pro-
fendants
and in
decisions that due
assistance allowed
disease than the limited
tools
provision
cess mandates
“basic
Oklahoma,
In Ake v.
indigent
in his trial.
adequate
Powell
of an
defense”
defen-
1087,
68,
See,
Carolina,
L.Ed.2d 53
105 S.Ct.
84
e.g.,
470 U.S.
Britt v. North
dants.
(1985),
States
Court
the United
404 U.S.
92 S.Ct.
30 L.Ed.2d
(1971).
indigency
duty
that a defendant’s
a trial court
confirmed
The
thus
in a
constitutionally
“whether,
result
lesser
determining
cannot
and under
involves
justice
conditions,”
than that accorded to
requested expert
standard of
assis-
what
Ake,
greater
financial means. As
defendants
tance must be offеred. See
U.S.
so,
in Ake:
doing
noted
In
courts
under Ohio the district Accordingly, we REVERSE (Ohio 776 N.E.2d 1114-16 St.3d bases, of the writ on these court’s denial 2002) (Resnick, J., concurring part REMAND to the district court and we dissenting part). instructions to issue a writ of habe- right argue Powell’s this issue of state corpus vacating Powell’s death sen- law in the courts is not foreclosed Ohio of Ohio initiates a tence unless the State opinion. any our To remove doubt on this days penalty proceeding new within 180 however, point, opinion we amend our of remand. *28 in striking concluding paragraph its amendments, foregoing light In in entirety substituting following find no reason to have this case re- lieu thereof: we 406 review). Thus, this should quent to rehear Court petition
heard.
Powell’s
retroactivity
not
issue
consider Petitioner’s
DENIED.
therefore
time,
a
by issuing
supple-
at this
whether
CLAY,
dissenting.
I
Judge,
Furthermore,
Circuit
mental order or otherwise.
from the issuance of
dissent
respectfully
there is no reason to address the retroac-
in this matter.
supplemental order
tivity
part
issue as
of the remand order
original
in the
nothing
opin-
since there is
§
Although
2929.06 of the Ohio Revised
prevent
ion’s remand order to
the state
in
Petitioner never
Code was enacted
entertain,
not
deciding
court from
to the district court or to this
argued
entertain,
retroactivity
issue.
appeal that this section does not
Court on
him
retroactively
preclude
issue,
so as to
apply
retroactivity
§
As to the
2929.06
subjected
mitiga-
being
to a second
distinguishable
from
from
Petitioner’s case is
fact,
upon remand.
In
Peti-
hearing
tion
petitioner’s
case
in DePew v.
(6th Cir.2002).
sought
guilt phase Anderson,
a new
specifically
tioner
In
Ohio elects Eliseo days within 180 of the district ceedings court’s order. case, Thus, unlike in this
Id. at 754. UNITED STATES IMMIGRATION & retroactivity issue was raised DePew SERVICE, NATURALIZATION by instance and addressed the first Respondent. district court. No. 02-3230. though even the issue of Significantly, lawfully De Pew could be resen- whether Appeals, United Court of States addressed, raised and tenced to death was Sixth Circuit. much remand order did not so this Court’s court should consid- imply that the state Submitted March 2003. proceeding issue with the er the before Depew’s rather, case was resentencing; Decided and Filed June “with instructions to conditional- remanded of Ohio
ly grant the writ unless State resentencing proceedings
elects to initiate days of the district court’s or-
within 180 Thus, Id. where this Court De-
der.” that the state court suggest
Pew did not retroactivity or should consider the
could had
issue on remand when the issue been petitioner, we should not do
raised not
so in this case where the issue was
previously raised. course, Petitioner is free to raise the
Of
retroactivity issue before the state
court, any as he is free to raise other subject why
defense as to he should not be however, penalty; the death where this up
issue was never raised point,
until this this Court should not use heavy urge
its hand to the state court to Indeed,
consider it now. the state interpret supplemental not or-
should suggesting
der as that it should or should retroactivity consider Petitioner’s
claim. summary, supplemental
In because the issuing improp- on an appears
order procedurally substantively
er basis and is
unnecessary, I respectfully dissent.