Wickline v. MitchellWickline v. Mitchell
- Reporters:
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- Before:
- Martin, Siler, Daughtrey
Appeal from the United States District Court for the Southern District of Ohio at
COUNSEL
OPINION
SILER, Circuit Judge. Petitioner William D. Wickline, an Ohio death row inmate, appeals the denial of his
I. BACKGROUND
Wickline was convicted by a three-judge court of two counts of aggravated murder, for the deaths of Christopher and Peggy Lerch. The panel sentenced Wickline to life imprisonment on one count and to death on the other. After unsuccessful direct appeals and state post-conviction proceedings, Wickline filed a petition for a writ of habeas corpus pursuant to
II. STANDARD OF REVIEW
A. AEDPA
In a habeas proceeding, this court reviews a district court’s legal conclusions de novo and its factual findings for clear error. Lucas v. O‘Dea, 179 F.3d 412, 416 (6th Cir. 1999). Because Wickline filed his habeas petition on May 31, 1996, after the effective date of AEDPA, this cоurt reviews the petition under the standards set forth in AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir. 1999) (“[A] federal habeas corpus case is filed or pending for the purposes of Lindh and the AEDPA only when the petition for the writ is filed.“).1 As amended,
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable аpplication of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
B. Procedural Default
The district court concluded that many of Wickline’s claims are procedurally defaulted for failure to raise them at the earliest opportunity. When a petitioner defaults on his “federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice . . . or dеmonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), this court set forth a four-step analysis for determining whether a petitioner’s federal constitutional claims are barred by the petitioner’s failure to follow a state procedural rule.2
“Whether a state court rested its holding on procedural default so as to bar federal habeas review is a question of law,” reviewed de novo. Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). This court looks to the last explained state-court judgment when answering that question. Id.
III. DISCUSSION
A. Ineffective Assistance of Counsel
While Wickline asserts a number of grounds fоr relief in his petition, the parties focused primarily on one issue at oral argument—alleged ineffective assistance of trial counsel. We will therefore address that issue first. Wickline claims that his trial counsel was ineffective in several areas, most notably in the alleged failure to investigate or present mitigating evidence. Under Strickland v. Washington, 466 U.S. 668 (1984), a violation of the right to effective assistance of counsel has two components:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. Review of
Wickline argues that his trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase. According to Wickline, his counsel should have investigated his mental health history and presented expert testimony on his psychological condition. Wickline also asserts that counsel should have investigated and presented evidence of his history, character, and background as mitigating evidence. The Ohio Supreme Court rejected Wickline’s argument, noting that, unlike most cases, the record contained a statement of counsel’s strategy, which led the court to conclude that “the manner in which appellant was represented at the mitigation phase was the result of an informed and tactical strategy.” State v. Wickline, 552 N.E.2d 913, 925 (Ohio 1990). The court did not find that the sentencing decision would have differed, even assuming counsel’s performance was deficient.
Under the Ohio death penalty scheme,
a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent) mitigating circumstances, and recommend death.
Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir. 1999) (emphasis in original). “[W]hen a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation.” Id. (emphasis in original). Consequently, this court has held that failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel. See Coleman v. Mitchell (Coleman II), 268 F.3d 417, 445-53 (6th Cir. 2001), cert. denied, 535 U.S. 1012 (2002); Skaggs v. Parker, 235 F.3d 261, 269, 271 (6th Cir. 2000), cert. denied, 534 U.S. 943 (2001); Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000).
After the three-judge panel returned a guilty verdict, Wickline’s counsel turned to the mitigation statute and the section of the Ohio Public Defender’s manual dealing with the mitigation hearing. Counsel went through each mitigating factor with Wickline. Counsel advisеd Wickline that he could have a psychiatric report, but counsel chose not to have one for two reasons. First, Wickline “wanted nothing to do with psychiatrists or psychologists.” Second, counsel felt that a psychiatric report would reflect negatively on Wickline. Counsel also advised Wickline that a presentence report delving into his background could be prepared. Again, Wickline “wanted nothing to do with the probation officer.” Counsel requested to speak with Wickline’s family. According to Hunt, Wickline “was very strong on this, he did not wаnt to drag his family into this thing, and basically told us no as far as his family was involved.” Counsel was also concerned that if they put witnesses on the stand testifying to Wickline’s good character, it would open the door for the prosecution to bring in evidence of bad acts committed by him and that such evidence would greatly damage any mitigating factors they presented. Counsel reviewed Wickline’s prison files but chose not to present them to avoid highlighting his numerous incarcerations.
After two or three meetings to discuss their strategy, Wickline and his counsel decided tо argue that Christopher and Peggy Lerch facilitated the murders by attempting a drug rip-off. The three-judge panel had already rejected Wickline’s primary defense — that no murders had taken place. Counsel felt that it would be best to focus on their strongest mitigating factor, avoid the danger of opening the door to harmful information, and not “cloud it up with stuff we couldn‘t prove.” Hunt testified that Wickline made the final decision to proceed as they did.
In Strickland, the Supreme Court noted that “[t]he reasonableness of counsel’s actions may be determinеd or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland, 466 U.S. at 691. Furthermore, “[a]n attorney’s conduct is not deficient simply for following his client’s instructions.” Coleman v. Mitchell (Coleman I), 244 F.3d 533, 545 (6th Cir. 2001), cert. denied, 534 U.S. 977 (2001), and cert. denied, 535 U.S. 1031 (2002).
Here, Wickline’s counsel investigated prior to trial, hiring a private investigator to interview persons with
Even if counsel were deficient in investigating and presenting mitigating evidence, Wickline fails to satisfy the prejudice prong of Strickland. Wickline argues that his trial counsel could have presented mental health evidence. The mental health evidence submitted with his petition for post-conviction relief indicates that Wickline did not suffer from any mental condition relevаnt to the murders of the Lerches. The record states that “[t]here is no evidence of a thought disorder or psychotic reaction,” that “[p]sychological testing reveals that he is functioning in the superior range of general intelligence,” and that he has an IQ of 124. The mental health evidence indicates that Wickline suffered from depression; however, there is no evidence that his depression affected his conduct here. See State v. White, 709 N.E.2d 140, 161 (Ohio 1999) (“In contrast, defendant’s mild depression was undisputed, but it is unclear what role (if any) it played in these crimes. This is, аt best, a weak mitigating factor.“). Wickline also argues that his trial counsel should have introduced evidence of his good behavior during prior incarcerations. Counsel reviewed Wickline’s prison records and decided not to present them because they would highlight Wickline’s extensive criminal history. Finally, Wickline claims that his trial counsel erred in not presenting any evidence regarding his allegedly troubled upbringing. He vaguely states that his relationship with his father “was crucial to his development and the way he handled frustration and rage.” Wickline also assеrts that the death of his mother “devastated him.” The State contends that Wickline’s family experiences do not provide a justification or explanation for this crime. See State v. Dickerson, 543 N.E.2d 1250, 1261 (Ohio 1989) (“While these experiences are unfortunate, they are not uncommon. It takes no citation of authority to state that many other people have endured similar experiences without resort to lawlessness.“).
Wickline has failed to demonstrate that there is a “reasonable probability” that, but for his trial counsel’s failure to present this evidence, the rеsult of the penalty phase would have been different. Therefore
B. Other Arguments
Wickline’s allegations that his trial counsel wаs ineffective in other areas are likewise without merit. He contends that his counsel was unable to prepare for trial or to properly advise him on the issue of jury waiver due to the state’s discovery violations. The Ohio Supreme Court rejected this argument, finding that Wickline was not prejudiced by the alleged discovery violations, and, therefore, he was not prejudiced by any ineffectiveness of counsel resulting from those alleged discovery violations. This implied conclusion was not contrary to or an unreasonable apрlication of Strickland.4 Wickline also asserts that there were many deficiencies in the trial phase caused by his counsel’s allegedly substandard performance. This assertion is without merit, in that (1) the record demonstrates that trial counsel did not concede the element of prior calculation and design; (2) Wickline has failed to present any evidence to overcome the presumption that the three-judge panel ignored any improper evidence counsel failed to redact from his Brady motion; and (3) Wickline has not shown that his counsel’s conduct fell below a standard of objective reasonableness regarding his decision to call Jay McCarty as a witness. Wickline’s argument that his trial counsel was ineffective in failing to request a change of venue is procedurally defaulted; even if it were not, however, this claim fails because Wickline was tried by a three-judge panel, rather than a jury, and he has failed to present any evidence that the panel was prejudiced by pretrial publicity. Likewise, the argument that Wickline was denied effective assistance оf counsel in the failure to obtain expert and investigative assistance for the trial phase is also procedurally defaulted, because he never presented the claim on direct appeal, raising it for the first time in his state post-conviction proceedings. Even if this
Wickline further asserts that he received ineffective assistance of appellate counsel (“IAAC“). His claims in this regard are procedurally defaulted due to his failure to comply with the rule set forth in State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992), and codified in
Finally, Wickline raises a host of other claims on appеal, all of which are unavailing. His claims of prosecutorial misconduct are procedurally defaulted and, in the alternative, fail on the merits.5 Specifically, Wickline asserts that during the penalty phase, the prosecutor (1) inflamed the passions and prejudices of the three-judge panel, (2) created nonstatutory aggravating circumstances, and (3) improperly commented on his right to remain silent. The first argument fails because the prosecutor’s statements are not likely to have misled the three-judge panel or prejudiced Wickline. With regard to the second assertion, even assuming that the prosecutor’s arguments were improper, the panel did not list Wickline’s extensive criminal history, the absence of mitigating factors, or behavior in prison as aggravating circumstances. Wickline’s third assertion fails because the prosecutor’s reference to the unsworn nature of his testimony was isolated, is not likely to have misled the three-judge panel or prejudiced him, and did not render the entire trial and sentencing fundamentally unfair. Further, the
Wickline claims that even if no single error is sufficient to merit granting the writ, the cumulative effect of the errors rendered his trial fundamentally unfair. According to Wickline, the cumulative effect is most pervasive with respect to the discovery and Brady violations. The Ohio Supreme Court rejected Wickline’s Brady claims, as did the district court. Both the district court and this court declined to grant a certificate of appealability as to the Brady claims, demonstrating that Wickline has failed to make “a substantial showing of the denial of a constitutional right.”
Wickline’s various arguments that the Ohio death penalty scheme is unconstitutional likewise fail. His assertions that the statute creates a mandatory death penalty and allows trial courts to apply the death penalty in an arbitrary, capricious, and discriminatory manner were rejected in Buell v. Mitchell, 274 F.3d 337, 367-68 (6th Cir. 2001). With regard to Wickline’s argument that the statute grants prosecutors broad discretion as to whether to seek capital indictments, thereby allowing arbitrary charging decisions, the Supreme Court held in Gregg v. Georgia, 428 U.S. 153, 199 (1976), that these “discretionary stages” do not implicate the concerns expressed in Furman v. Georgia, 408 U.S. 238 (1972). Wickline’s contention that Ohio’s death penalty scheme encourages capitally charged defendants to waive their right to a jury trial and to plead guilty is procedurally defaulted, and, in the alternative, fails because (1) Wickline did not plеad guilty, and (2) the Supreme Court has found that pleas are not invalid simply because of the possibility of the death penalty. See Brady v. United States, 397 U.S. 742, 751 (1970).
Wickline’s arguments that the trial court improperly considered duplicative aggravating circumstances and that Ohio’s appellate review did not cure any error are unavailing. Both Supreme Court precedent and Ohio law allow reweighing by the appellate courts when the sentencer has considered an invalid aggravating circumstance. Here, the Ohio Supreme Court assumed that the three-judgе panel did not “artificially inflate” the aggravating circumstances, implicitly concluding that the trial court did not improperly weigh the aggravating circumstances. In addition, the supreme court merged the duplicative aggravating circumstances and independently weighed the merged aggravating circumstance against the mitigating factors. Accordingly, no constitutional violation is stated. Fox v. Coyle, 271 F.3d 658, 667 (6th Cir. 2001), cert. denied, 70 U.S.L.W. 3758 (U.S. Oct. 7, 2002) (No. 01-1754). Wickline’s claim that the Ohio Supreme Court failed to grant him meaningful proportionality review of his death sentence also fails. Because “propоrtionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison.” Buell, 274 F.3d at 369. In limiting proportionality review to previous cases in which the death penalty has been imposed, the Ohio Supreme Court has acted within the wide latitude allowed. See id. Therefore, the Ohio Supreme Court did not err in failing to compare
AFFIRMED.