*1 Before: SILER, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL ARGUED: Mаtthew C. Hellman, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, for Appellee. ON BRIEF: Heather L. Gosselin, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, Daniel R. Ranke, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellant. Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, John B. Gibbons, Cleveland, Ohio, for Appellee.
CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. SILER, J. (pp. 23-24), delivered a separate concurring opinion.
_________________
OPINION _________________ CLAY, Circuit Judge. Respondent, Carl S. Anderson, a warden in the State of Ohio, appeals a judgment of the United States District Court for the Northern District of Ohio, granting Petitioner, Donald Williams, a conditional writ of habeas corpus and vacating Petitioner’s death sentence. Petitioner cross-appeals the district court judgment, arguing that the district court should have vacated not only his sentence, but also his conviction. For the reasons set forth below, we AFFIRM
1
the order of the district court, vacating Petitioner’s death sentence, but upholding his conviction for aggravated murder.
I.
BACKGROUND On July 21, 1984, Petitioner was convicted of hiring James Earl Darby to murder Archie Moore in violation of Ohio Revised Code §§ 2903.01(A) and 2929.04(A)(2). The syllabus to the Supreme Court of Ohio’s decision accurately summarizes the facts that came forth at trial as follows:
Shortly before December 1982, three men broke into the apartment of Merle A. Berry in order to commit a robbery. One of Berry’s young daughters jumped from the apartment’s second-story window to find Berry and tell her about the robbery. The daughter identified Moore as one of the robbers. Berry later told some friends that she was “going to kill that damn Archie for making my baby jump out the window.” Later, in December, a gunman robbed Berry of some money and the drugs she was selling for [Petitioner], Donald Williams. [Petitioner] learned that Moore and another man had sent the gunman to rob Berry. Shortly before Christmas, [Petitioner] and Berry were driving in his car when they saw Moore on the street corner. [Petitioner] shot at Moore with a pistol, but missed. That day, one of Moore’s brothers received a phone call in which [Petitioner] threatened Moore. [Petitioner] also told another of Moore’s brothers that he had a contract out on Moore. Thereafter, Moore kept a low profile by staying inside his mother’s house. James Earl Darby testified that [Petitioner] approached a group of people on the street one day and asked whether anyone wanted to make $500. Understanding that this was a solicitation for someone to kill Moore, Darby accepted the offer. [Petitioner] then provided Darby with the murder weapon and a down payment consisting of $200 and some drugs. Later, Darby asked for, and [Petitioner] agreed to give him, more money because of the time and risk involved in getting Moore out of his mother’s house. Darby informed [Petitioner] that because Moore trusted Darby, he would be able to coax Moore out of the house. On Christmas Eve, Darby went to see Moore and managed to convince him to leave the house by promising that he would act as Moore’s protector. As they walked through a vacant lot, Darby spun around and shot Moore in the head, causing Moore to fall to the ground. Darby then shot Moore four more times in the face, killing him. Afterward, Darby threw the gun away and went to Berry’s apartment to hide and to wait for [Petitioner]. When [Petitioner] arrived, Darby told him the job was done. [Petitioner] told Darby that he would have to confirm the killing before he paid Darby the rest of the money. Witnesses at the apartment heard [Petitioner] state he had Moore killed as a Christmas present for Berry. The next day, [Petitioner] confirmed Moore’s death and paid Darby with more drugs and money.
State v. Williams
,
On July 23, 1984, two days after the jury convicted Petitioner of murdering Moore, the Ohio trial court conducted a brief sentencing hearing. There, Petitioner’s attorney, Thomas Shaughnessy, waived his opening statement, and declined to offer any mitigating evidence. Instead, Petitioner *3 made a brief statement to the jury, whereafter Shaughnessy proceeded to give a long, rambling closing, in which he arguably presented a case for residual doubt. The jury sentenced Petitioner to death that same day.
Petitioner appealed his conviction and sentence to Ohio’s Eighth District Court of Appeals. The Eighth District Court affirmed his conviction. Thereafter, Petitioner obtained new counsel, and appealed his conviction and sentence to the Ohio Supreme Court. A divided Ohio Supreme Court affirmed Petitioner’s conviction and sentence. Three of the four justices would have vacated Petitioner’s sentence based on the cumulative effect of numerous evidentiary errors on Petitioner’s sentence, including the admission of prosecution witness Kim Berry’s testimony. Kim Berry, the twelve year old daughter of Merle Berry testified that she had participated in some of Petitioner’s drug sales. Although all seven justices determined that the admission of Kim Berry’s testimony violated Ohio’s Rules of Evidence, the majority determined that its admission was harmless and issued a decision denying Petitioner’s appeal.
After the Supreme Court of Ohio issued its decision denying Petitioner’s appeal, Petitioner moved for rehearing. The Supreme Court of Ohio denied the motion, and Petitioner filed a petition for a writ of certiorari with the United States Supreme Court. The Supreme Court denied certiorari.
Following the conclusion of his direct appeals process, Petitioner filed two state post-
conviction actions and a
Muraham
action. The first post-conviction action raised forty-five grounds
for relief, including ineffective assistance of counsel, the cumulative effect of numerous evidentiary
errors, and the constitutionality of the trial court’s jury instruction on Ohio’s death penalty law.
After the trial court denied Petitioner relief, Petitioner filed a
Muraham
action, seeking to reopen
his direct appeal on the ground that his appellate counsel was ineffective. That too was denied, and
the Ohio Supreme Court declined to review either action.
State v. Williams
, No. 79-448, slip op. at
1 (Ohio April 27, 1994);
State v. Williams
,
On July 10, 1998, Petitioner filed the instant petition under 28 U.S.C. § 2254, seeking habeas relief from his conviction and sentence. The petition listed thirty-two grounds for relief. On March 31, 2004, the district court granted the petition in part and denied it in part, vacating Petitioner’s sentence of death but affirming his conviction for aggravated murder. The district court granted relief from the sentence of death on the grounds that Petitioner’s trial counsel was ineffective for failing to investigate and present mitigation evidence during the penalty phase of trial and that the trial court’s admission of prosecution witness Kim Berry’s testimony violated the Due Process Clause of the Fourteenth Amendment. Because these errors affected only the sentencing phase of the trial and because the district court found Petitioner’s remaining claims meritless, the district court affirmed Petitioner’s conviction for aggravated murder.
Respondent now appeals the district court’s decision, arguing that the district court erred in holding that: (1) trial counsel rendered ineffective assistance during the mitigation phase of his trial; and (2) the admission of Kim Berry’s testimony violated the Due Process Clause of the Fourteenth Amendment. Petitioner cross-appeals arguing that the district court erred in holding that: (1) the trial court’s jury instructions did not violate the Eighth or Fourteenth Amendments; (2) Petitioner’s *4 trial judge was not biased in violation of the Due Process Clause of the Fourteenth Amendment; (3) the prosecution did not withhold exculpatory evidence in violation of the Due Process Clause of the Fourteenth Amendment; and (4) combined evidentiary error is not a basis for habeas relief under AEDPA. We address each argument separately below.
II. DISCUSSION A. Standard of Review
The Anti-terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, governs
our review of the instant case. Under AEDPA, we review the legal conclusions of the district court
de novo
, but apply a more deferential standard of review to the underlying state court decision. We
may only reverse the state court holding if the holding resulted in a decision that is: (1) “contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under
§ 2254(d)(1) a state court decision is contrary to clearly established federal law if “the state court
arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if
the state court decides a case differently than [the Supreme Court] on a set of materially
indistinguishable facts.”
Williams v. Taylor
,
Furthermore, the state court’s failure to articulate reasons to support its decision is not
grounds for reversal under AEDPA.
Harris v. Stovall,
Where the state court fails to adjudicate a claim on the merits, however, AEDPA’s
deferential standard of review does not apply.
Maples v. Stegall
,
B. Ineffective Assistance of Counsel
Respondent argues that the district court erred in granting Petitioner habeas relief based on
defense counsel’s ineffective assistance during the mitigation phase of trial. In particular,
Respondent challenges the district court’s factual finding that defense counsel failed to investigate
potential mitigating evidence. To challenge the district court’s factual finding, Respondent relies
on a brief exchange between the Court, defense counsel, and Petitioner at the beginning of the
mitigation phase of trial and negative inferences Respondent draws from the affidavits of
Petitioner’s trial counsel and wife. According to Respondent, because defense counsel did conduct
an investigation, his “strategic choice” to argue residual doubt at the mitigation phase is protected
under
Strickland v. Washington
,
The penalty phase of Petitioner’s trial began on July 23, 1984, only two days after the jury returned a verdict convicting Defendant of aggravated murder. At the hearing, defense counsel waived his opening statement and offered only one piece of mitigating evidence: Petitioner’s testimony. Petitioner made the following brief statement.
Well, first of all, what I have to say is going to be very brief, ladies and gentlemen. This crime happened and you reached a decision. I am not going to argue with that decision. First of all, I can say that I never intended for Archie to be killed. I didn’t want Archie killed. I was angry, true enough; and if Darby took it on his own to do that, then I’m sorry for that, but it happened. All I can say is to the attorneys and every one of you to look inside yourselves and see if I deserve to die. That’s all I have to say. (J.A. at 4327-28.)
After Petitioner testified, defense counsel gave an incomprehensible closing argument, in which, upon very close reading, he seemed to argue residual doubt. First, defense counsel informed the jury that Petitioner was in a “Catch 22” because Petitioner maintained his innocence at trial and offering mitigation evidence would be inconsistent with innocence. Thereafter, defense counsel informed the jury that they cоuld consider evidence presented at trial, pointed to witness testimony that was favorable to Petitioner, reminded the jury of the fact that a government witness admittedly had lied on the stand, and implied that Petitioner’s co-defendants lied to escape the death penalty. Defense counsel further informed the jury that he should have done a better fact investigation and that nobody would ever really know what happened to Archie Moore.
In addition to making a weak and arguably incomprehensible case for residual doubt, defense counsel made the following prejudicial statements. First, he stated that he was not going to “quarrel with the verdict or quibble with might have happened,” undermining any residual doubt argument. (J.A. at 4333.) Second, defense counsel indicated on at least two occasions that he believed our justice system “works,” validating the jury’s confidence in the verdict in this case. Third, he described bloody photos of Moore, emphasizing the horrific nature of the crime. Fourth, he seemingly stated that no mitigating circumstances existed. ( Id . (“There are pictures before the blood is removed. There are pictures after, well, I suppose that you can [sic] what mitigating facts could there ever be? Well there is another side to the story and we hope that you will remember everything you heard.”)) Fifth, defense counsel indicated that the death penalty was an appropriate punishment, stating:
I am certainly not going to try and scare you into not recommending the death penalty by electrocution, it’s no more horrible than death on a Christmas Eve, on that cold, cold night behind the Post Offiсe. An eye for an eye is no lesser, no lesser or more humane, there’s no question about that, but the thing that makes the difference is that we are compassionate people.
Finally, defense counsel listed off potential mitigating factors and then stated that the factors may or may not exist in this case.
After defense counsel’s closing statement, the prosecutor gave a closing statement. The prosecutor essentially argued that defense counsel had not presented any mitigating evidence at the *6 hearing, and thus that the jury was obligated to find that the aggravating factors outweighed the mitigating factors. At 3:30 p.m. that same day, the jury returned a verdict recommending the death sentence. The trial court accepted the jury’s recommendation and sentenced Defendant to death. Threshold Legal Issues
Before addressing the merits of Petitioner’s claim, we must first determine which state court
decision AEDPA requires this Court to review, and what evidence we may consider in reviewing
that decision. Two Ohio courts issued opinions addressing the merits of Petitioner’s claim that trial
counsel rendered ineffective assistance by failing to investigate or present mitigation evidence: the
Supreme Court of Ohio and the Ohio post-conviction trial court
. Williams
,
After the conclusion of direct review, Petitioner raised the same claim in post-conviction proceedings. This time, however, Petitioner supported his claim with evidence outside the trial court record. This evidence included 1) an affidavit from Petitioner stating that trial counsel never discussed the mitigation phase of trial with him, 2) several affidavits from friends and family members stating that trial counsel never contacted them, and 3) the affidavit of Dr. Nancy Schmitgoessling, which recounted Petitioner’s troubled childhood and psychological problems. The Ohio post-conviction trial court denied Petitioner’s claim on the merits, finding that trial counsel committed no error in failing to investigate or present mitigation evidence, and that such conduct did not prejudice Petitioner. Williams , No. CR 190615, slip. op. at 2 (Ct. Com. Pl. July 1, 1992). On appeal, Ohio’s Eighth District Court of Appeals affirmed the post-conviction trial court’s denial of relief. State v. Williams , No. CR-190615, slip. op. at 2 (Ohio Ct. App. November 24, 1993). The Eighth District Court, however, held that because Petitioner raised the claim on direct review, Ohio’s doctrine of res judicata precluded post-conviction courts from considering its merits. Id.
Because, under Ohio law, the post-conviction trial court did not have the authority to consider the merits of Petitioner’s claim, the parties conclude, and we agree, that this Court must review the decision of the Ohio Supreme Court. Nonetheless, we believe it is proper to consider the evidence Petitioner submitted to the post-conviction trial court when reviewing the Supreme Court of Ohio’s decision. Althоugh normally this Court would not consider evidence not before the court whose decision it is reviewing, here we find cause to do so. Petitioner’s failure to properly support his claim with evidence before the Ohio courts was a direct result of his appellate counsel’s ineffective assistance. Inasmuch as appellate counsel’s ineffective assistance prejudiced Petitioner by rendering him unable to support his meritorious claim with the evidence presented in the post- conviction proceedings, Petitioner’s error should be excused.
Ohio law requires criminal defendants to bring ineffective assistance of counsel claims on
direct review if the defendant has new counsel on appeal, and the trial court record contains
sufficient evidence to support the claim.
State v. Cole
,
In the instant case, Petitioner chose to bring his ineffective assistance of counsel claim on
direct review, thereby foregoing the opportunity to present evidence outside the trial court record
to support his claim. Ohio has finality and judicial economy interests in enforcing its prohibition
on re-litigation of ineffective assistance of counsel claims in post-conviction proceedings.
State v.
Saxon
, — N.E.2d — ,
Here, however, we find that comity is an insufficient reason to decline to consider
Petitioner’s evidence because there is cause for Petitioner’s mistake and prejudice resulting
therefrom. The Supreme Court has given us some guidance on when comity should give way to
justice in the form of the doctrine of procedural default.
See id.
Federal courts normally decline to
consider procedurally defaulted claims for comity reasons.
Id.
at 730 (“In the habeas context, the
application of [procedural default doctrine] is grounded in concerns of comity and federalism.”)
Nonetheless, where a petitioner demonstrates cause and prejudice for the default a federal court will
excuse it.
Id.
at 750. We believe that the same principles should apply to a Petitioner’s error in the
instant case. Because, as in the procedural default context, we would normally decline to consider
Petitioner’s evidence for comity reasons, here too cause and prejudice should excuse Petitioner’s
error.
appellate counsel.
[1]
As this court has held in the procedural default context, ineffective assistance
Petitioner has cause for his error because it was a direct result of ineffective assistance of
of appellate counsel constitutes cause for failing to properly present a claim before a state court.
See
Lundgren v. Mitchell
,
Here, Petitioner’s appellate counsel performed below an objective standard of reasonableness
by raising Petitioner’s ineffective assistance of trial counsel claim on direct appeal despite the
absence of evidence in support of the claim in the record. It is well-established in Ohio law that
where an ineffective assistance of counsel claim cannot be supported solely on the trial court record,
it should not be brought on direct appeal.
See Cooperrider
,
Additionally, counsel’s unreasonable decision to raise this claim on direct appeal prejudiced
Petitioner. By raising the claim on direct appeal, counsel rendered Petitioner unable to raise this
claim in post-conviction proceedings supported by the necessary evidence.
Williams
, No. CR-
190615, slip. op. at 2 (Ohio Ct. App. November 24, 1993);
see also Cooperrider
, 44
Because appellate counsel’s decision to raise Petitioner’s claim on direct review was
unreasonable and prejudicial, Petitioner has established that appellate counsel was ineffective and
thus that he has cause for raising this claim on direct review in state court. Normally, after
determining a petitioner has cause for failing to raise a claim in accordance with state law, the court
must make a separate inquiry into prejudice. Where the cause is ineffective assistance of counsel,
however, an additional showing of prejudice is unnecessary. This is because a showing of prejudice
is necessary to establish ineffective assistance of counsel. If petitioner’s counsel was
constitutionally ineffective, the petitioner was necessarily prejudiced. Thus, we now address the
merits of Petitioner’s claim.
The Ohio Supreme Court Decision
assistance of counsel in violation of the Sixth Amendment.
[2]
Williams
,
a Petitioner has been denied effective assistance of counsel. Applying this test, we find that
[Petitioner] received the assistance of counsel to which he was entitled. The first prong of the
Strickland
test requires [Petitioner] to show that his counsel’s performance was deficient. Here,
defense counsel made no errors serious enough to deprive [Petitioner] of the ‘counsel’ guaranteed by
the Sixth Amendment. While defense counsel’s trial and appellate strategy might have been
debatable, they fell within the wide range of reasonable professional assistance. Thеrefore, we need
not proceed to the second prong of the
Strickland
test, which requires that [Petitioner] show that
counsel’s deficient performance prejudiced his defense. These propositions of law are not well-taken.
Williams
,
4. Clearly Established Federal Law
The Supreme Court first articulated the now familiar two part test for determining whether
counsel is ineffective in
Strickland v. Washington
,
In
Strickland
, the Court dealt specifically with the claim that counsel’s failure to investigate
and present mitigation evidence constituted deficient performance.
Strickland
,
are virtually unchallengeable; . . . strategic choices made after a less than complete investigation are reasonably precise to the extent that reasonable professional judgments support the limitations on investigation. In оther words, counsel has a duty to make reasonable investigation or to make a reasonable decision that a particular investigation is unnecessary. Id. at 690-91. Thus, it follows that any decision to forgo mitigation evidence is unreasonable if not made after a reasonable decision not to investigate further. See id.
The Supreme Court has now applied
Strickland
in the AEDPA context at least three times
to hold that a defense attorney’s failure to adequately investigate and present mitigating evidence
at the sentencing phase of a death penalty trial constitutes ineffective assistance of counsel.
See
Rompilla v. Beard
, — U.S. —
Defense counsel’s complete failure to investigate before deciding not to present mitigating evidence is deficient performance as a matter of law under Strickland , and thus, the Ohio Supreme Court’s determination that counsel did not err is contrary to federal law as articulated in Strickland.
a. Defense Counsel Conducted No Investigation The district court correctly found that defense counsel failed to conduct any investigation into mitigating evidence. Petitioner submitted five affidavits from friends and family members all stating that defense counsel failed to contact them. Additionаlly, the following exchange after the jury rendered its guilty verdict supports the conclusion that defense counsel failed to discuss the mitigation phase with Petitioner prior to trial.
Mr. Nugent: And it is also my understanding, number two, at this time, the defense has chosen not to have the defendant referred either for a psychiatric report pending the sentencing phase or a *10 probation presentence report, they have opted not to consider either or both of those reports. Mr. Shaughnessy: Your Honor, this isn’t precisely what I said. I said it might be possible, assuming that was what we were going to do, but I should sit down here with him [Petitioner] and talk with him, and I will have that answer very quickly – – Mr. Nugent: You indicated – –
Mr. Shaughnessy: Excuse me, sir. If I can just have ten seconds.
The Court: Go right ahead, Mr. Shaughnessy.
Mr. Shaughnessy: Well, your Honor, its seems we have disposed of that very quickly. The defendant is in agreement with my position and what Mr. Nugent said is entirely correct. We are not going to ask for a psychiatric report or psychological report or any other report. We are ready to proceed on Monday morning at the pleasure of the Court.
(J.A. at 418-19.) This exchange took place only two days prior to the mitigation hearing. If defense counsel failed to discuss court ordered psychiatric and pre-sentence reports with Petitioner before that time, it is highly unlikely that defense counsel discussed mitigation with Petitioner. It is unlikely that defense counsel could have conducted a mitigation investigation without consulting Petitioner inasmuch as an obvious starting point for any investigation into Petitioner’s life history would be Petitioner. In any case, this exchange most certainly does not, as Rеspondent contends, prove that defense counsel conducted a mitigation investigation.
Respondent’s remaining arguments that defense counsel did conduct an investigation rest on faulty logic. First, Respondent argues that defense counsel’s own affidavit demonstrates that defense counsel conducted a mitigation investigation. According to Respondent, because the affidavit does not expressly state that defense counsel did not conduct an investigation, defense counsel must have conducted an investigation. Respondent reaches this conclusion by assuming that defense counsel was on good terms with Petitioner and therefore would have helped him establish an ineffective assistance of counsel claim if at all possible. Defense counsel’s affidavits, however, do not address the mitigation phase of trial but are narrowly focused on other issues. Thus, it is not at all clear that defense counsel would have stated that he had not conducted a mitigation investigation in his affidavits. Now that defense counsel has passed away, Petitioner cannot obtain a new affidavit from defense counsel expressly stating that he failed to conduct an investigation. Moreover, we find Respondent’s proposed negative inference inappropriate and unpersuasive in light of the affirmative evidence that defense counsel failed to interview Petitioner’s friends and family members.
Respondent next argues that the affidavit of Petitioner’s wife, Michelle, evidences that defense counsel conducted an investigation. In contrast to five other affidavits from Petitioner’s friends and family members, Michelle’s affidavit does not state that defense counsel failed to contact her. Therefore, according to Respondent, defense counsel must have contacted her about mitigation evidence. Although defense counsel in all likelihood had some contact with Michelle, there is no indication of whether of this contact had anything to do with the mitigation phase of trial. Therefore, Michelle’s affidavit does not support the proposition that defense counsel conducted a mitigation investigation.
b. Failure to Investigate And Present Mitigation Evidence Constituted Deficient Performance
Defense counsel’s complete failure to investigate and present mitigation constituted deficient
performance under
Strickland,
and the Ohio Supreme Court’s decision finding that counsel did not
render deficient performance was contrary to clearly established federal law. The Supreme Court
has now stated on at least three occasions that
Strickland
requires defense counsel to make
reasonable investigations into mitigation evidence.
[3]
Rompilla,
– U.S. – ,
Because the Ohio Supreme Court held that defense counsel’s performance was not deficient, it failed to reach the issue of prejudice. Thus, pursuant to the Supreme Court’s instructions in Wiggins , we address de novo whether defense counsel’s error prejudiced Petitioner . Wiggins , 539 U.S. at 534. In making this assessment, we must reweigh the mitigation evidence against the evidence of aggravation. Id. Additionally, we must consider all the mitigation evidence, including evidence presented in habeas proceedings.
We find that defense counsel’s complete failure to investigate and present mitigation
evidence prejudiced Defendant because a reasonable probability exists that, but for counsel’s error,
one juror would have voted against death. As discussed above, prejudice exists where there is a
reasonable probability that but for counsel’s error a petitioner would not have been sentenced to
death. In Ohio, a sentence of death may only be imposed by the unanimous vote of a jury.
State v.
Robb
,
In this case, Petitioner has established prejudice. Petitioner submitted affidavits from six friends and family members stating that they would have testified at a mitigation hearing, as well as the affidavit of Dr. Nancy Schmitgoessling, a psychologist licensed in the State of Ohio. (J.A. at 5219-37.) The affidavits contain the follоwing mitigating evidence:
•
Petitioner’s mother was an alcoholic, who neglected him and “hit [him]
upside the head with whatever she could get her hands on,” (J.A. at 5220,
5226, 5228);
3
This Court has noted that this standard of conduct applied in the 1980s as well as today.
See Hamblin v.
Mitchell
,
v. McGuire
,
• Petitioner’s father left his mother when Petitioner was young, (J.A. at 5220); • Petitioner’s Uncle Lindy, who was his primary male role model, was a career criminal, (J.A. at 5230, 5232.)
• Petitioner grew up in an environment, in which “there was an expectation that violence can and sometimes needs to be used, that people are constantly attempting to exploit others, and that illegal activities are often to be admired,” (J.A. at 5221); • Petitioner was dependant on cocaine at the time he had Darby killed, and the cocaine induced paranoid fears that Petitioner could not distinguish from reality, (J.A. at 5221); • Petitioner suffers from Dyssocial Reaction, Mixed Personality Disorder with Anti-social and Narcissistic Features, (J.A. at 5222); • Petitioner was at one time committed to the Afro-Set, a black Nationalist organization, (J.A. at 5230);
• Petitioner treated his wife’s autistic son like his own, (J.A. at 5236-37). In addition to presenting the jury with mitigating evidence, the testimony of Petitioner’s family and friends would have humanized Petitioner. Thus, the evidence listed above creates a reasonable probability that one juror would have voted against death, and we hold that Petitioner was prejudiced by counsel’s ineffective assistance.
In summary, we find that Petitioner is entitled to relief under AEDPA based on defense counsel’s ineffective assistance of counsel during the mitigation phase of trial. The Ohio Supreme Court’s decision finding that defense counsel’s conduct did not constitute deficient performance is contrary to clearly established federal law as set forth by the Supreme Court in Strickland . Moreover, defense counsel’s conduct prejudiced Petitioner, rendering the sentence of death unreliable and thus in violation of the Sixth Amendment. Accordingly, we affirm the district court’s grant of a conditional writ of habeas relief as to Petitioner’s sentence on this ground.
C. Kim Berry’s Testimony
Respondent next argues that the district court erred in holding that the admission of Kim
Berry’s testimony prejudiced Defendant’s due process rights. During the guilt phase of trial, the
prosecution presented the testimony of Kim Berry in order to rebut Petitioner’s statement that he did
not use children in his drug trade. Kim Berry, the thirteen year old daughter of Merle Berry,
testified that she had sold drugs for Petitioner on at least one occasion and that Petitioner had used
her to hide drugs from the police. The Ohio Supreme Court held that the admission of Kim Berry’s
testimony violated Ohio Rule of Evidence 608(B), which prohibits the admission of extrinsic
evidence of specific acts to impeach a witness.
Williams
,
Federal courts will not consider the merits of procedurally defaulted claims, unless the
petitioner demonstrates cause for the default and prejudice resulting therefrom, or that failing to
review the claim would result in a fundamental miscarriage of justice.
Lundgren v. Mitchell
, 440
F.3d 754, 763 (6th Cir. 2006) (citing
Wainwright v. Sykes
,
Second, a petitioner may procedurally default a claim by failing to raise a claim in state
court, and pursue that claim through the state’s “ordinary appellate review procedures.”
O’Sullivan
v. Boerckel
,
A claim is adequately raised on direct appeal if it was “fairly presented” to the state court.
To fairly present a claim to a state court a petitioner must assert both the
legal
and factual basis for
his or her claim.
McMeans v. Brigano
, 228 F.3d 674, 681 (6th Cir. 2000). Accordingly, a
“petitioner must present his claim to the state courts as a federal constitutional issue – not merely
as an issue arising under state law.”
Koontz v. Glossa
,
In this case, Petitioner procedurally defaulted his claim that the admission of Kim Berry’s
testimony violated his federal due process rights. Although Petitioner raised the issue in his appeal
to the Eighth District Court of Appeals, he failed to raise the issue to the Ohio Supreme Court in
pursuing direct review.
O’Sullivan
,
Petitioner nonetheless argues that this claim is not procedurally defaulted. He relies on the
Ohio Supreme Court’s citation to
Delaware v. VanArsdall
,
We disagree. Ohio, like most states, applies harmless error analysis to state evidentiary errors. The citation to VanArsdall , which contains an extensive analysis of what constitutes harmless error, read in the context of the Ohio Supreme Court’s entire opinion, simply supports the proposition that evidentiary errors are not reversible if harmless. It does not indicate that the Ohio Supreme Court applied a due process analysis. Our conclusion is further supported by the fact that VanArsdall is not a due process case, the Ohio Supreme Court never once refers to due process, and Petitioner’s brief did not raise due process. Because Petitioner failed to fairly present this issue to the Ohio Supreme Court, the claim is procedurally defaulted. As Petitioner failed to argue cause and prejudice to excuse the default, we hold that the default is not excused and decline to reach the merits of Petitioner’s due process claim. Accordingly, we reverse the order of the district court granting relief on this ground. D. Jury Instructions
As his first argument on cross-appeal, Petitioner raises two distinct objections to the jury
instructions given during the sentencing phase of his trial. First, Petitioner objects to the trial court’s
instruction that a sentence of life must be unanimous (“unanimous-life instruction”). According to
the Petitioner, the unanimous-life instruction is contrary to Ohio law, codifiеd at Ohio Revised Code
§ 2929.03(D)(2), and thus is unconstitutional under the Supreme Court’s decision in
Caldwell v.
Mississippi
, 472 U.S. 320 (1985). Second, Petitioner objects to the trial court’s instruction
prohibiting the jury from considering a life sentence until after the jury unanimously agreed that
death would be inappropriate (“acquittal first instruction”). According to Petitioner, acquittal first
instructions violate the Eighth Amendment as interpreted in
Mills v. Maryland
,
We reject both of Petitioner’s arguments and affirm the district court’s denial of relief on this ground. As will be further explained below, the unanimous-life instruction is not contrary to Ohio law and thus cannot violate the principles set forth in Caldwell . Additionally, Petitioner procedurally defaulted his acquittal first claim by failing to argue that the acquittal first instruction was unconstitutional in state court. Therefore, although acquittal first instructions are unconstitutional, as will be explained below, we do not grant relief on this ground. Procedural Default
Although Petitioner’s challenge to the unanimous-life instruction is preserved for this
Court’s review, Petitioner’s challenge to the acquittal first instruction is not preserved for this
Court’s review. Petitioner’s challenge to the acquittal first instruction is not preserved for this
Court’s review because Petitioner to failed fairly present this issue to the Supreme Court of Ohio
on direct review. As discussed with regard to Kim Berry’s testimony, a petitioner must raise both
the legal and factual basis for a claim in order to have fairly presented the claim to the state court.
McMeans
,
The trial court’s instruction to the jury stating that any verdict recommending life would have
to be unanimous did not violate the Eighth Amendment as set forth in
Caldwell
because it properly
reflected Ohio law. In
Caldwell v. Mississippi
, the Supreme Court “held . . . that the jury must not
be misled regarding the role it plays in the sentencing decision.”
Romano v. Oklahoma
, 512 U.S.
1, 8 (1994) (citing
Caldwell
,
The unanimous-life instruction did not violate Ohio law. Under Ohio law, a jury verdict
recommending a sentence of life in a death penalty case must be unanimous. As this Court has
recognized on numerous occasions, “[i]n
Brooks
, the Ohio Supreme Court reaffirmed that the jury’s
determination that a life sentence is appropriate must be unanimous and that a jury should be
instructed of that fact.”
Buell v. Mitchell
,
R.C. 2929.03(D)(2) facially seems to require the jury to recommend a life sentence
even if only one juror finds the death penalty inappropriate. There is some dispute
in the case law, however, as to how much power a solitary juror has to nullify a death
sentence. In
State v. Jenkins
. . . this court held that in returning a sentence of life
imprisonment under JR.C. 2929.03(D), the jury’s verdict must be unanimous. In
State v. Springer
, . . . this court held that “when a jury becomes irreconcilably
deadlocked during its sentencing deliberations in the penalty phase of a capital
murder trial and is unable to reach a unanimous verdict to recommend any sentence
authorized by R.C. 2929.03(C)(2), the trial court is required to sentence the offender
to life imprisonment. Thus, practically speaking a lone juror could prevent the
imposition of the death penalty.
Jenkins defines what the jury’s job is – to render a unanimous verdict.
Springer
simply explains what a trial court must do if a jury is deadlocked, that is when the
jury does not properly do its job. We believe that
Jenkins
and
Springer
may be
harmonized, and made consistent with the policy behind R.C. 2929.03(D), through
a jury instruction which requires the jury, when it cannot unanimously agree on the
5
Unanimous-life claims must also be distinguished from unanimous -mitigating factor claims. A unanimous
life claim is based on a jury instruction stating that a
verdict imposing life
must be unanimous. A unanimous-mitigating
factor claim is based on a jury instruction stating that
mitigating factors
must be unanimously found in order to be
considered. In case law, both are sometimes referred to as unanimity claims. Petitioner is not arguing that the trial court
erroneously instructed the jury that mitigating factors had to be unanimously found in order to be considered. Moreover,
even if Petitioner made this argument, there would be no support in the record for sustaining it. The instructions did not
state that mitigating factors had to be unanimously found. In this Circuit, failing to expressly state that mitigating factors
need not be unanimously found does not improperly imply that mitigating factors must be unanimously found.
Coe v.
Bell,
death sentence, to move on in their deliberations to a consideration of which life
sentence is appropriate, with that determination to be unanimous.
Brooks
,
Moreover, to the extent Petitioner is arguing that the jury instruction on unanimity was
misleading because it failed to inform the jury of the consequences of deadlock – that practically
speaking a lone juror can impose a sentence of life – this Court must reject Petitioner’s claim. The
Supreme Court rejected just such a challenge to instructions under the Federal Death Penalty Act
in
Jones v. United States
,
The truth of the matter is that the proposed instruction has no bearing on the jury’s
role in the sentencing process. Rather, it speaks to what happens in the event that the
jury is unable to fulfill its role – when deliberations break down and the jury is
unable to produce a unanimous sentence recommendation. Petitioner’s argument . . .
appears to be that a death sentence is arbitrary within the meaning of the Eighth
Amendment if the jury is not given any bit of information that might possibly
influence an individual juror’s voting behavior. That contention has no merit. We
have never suggested, for example, that the Eighth Amendment requires a jury to be
instructed on the consequences of a breakdown in the deliberative process. On the
contrary, we have long been of the view that the very object of a jury system is to
secure unanimity by comparison of views, and by arguments among the jurors
themselves.
(internal citation omitted);
see also Buell
, 274 F.3d at 357. Therefore, the instructions on
unanimity in this case did not violate the Eighth Amendment.
Acquittal First Instruction
Although we hold that Petitioner’s acquittal first claim is procedurally defaulted, we
nonetheless address acquittal first jury instructions. We do this because the state of this Circuit’s
law on acquittal first instructions is less than clear, as evidenced by certain district courts’ improper
refusal to follow
Mapes v. Coyle,
Under the doctrine established in
Mapes,
Acquittal first jury instructions may also violate the Fourteenth Amendment’s Due Process
Clause by denying petitioners the right to a fair trial.
See, e.g.
,
Mapes
,
Despite the clear unconstitutionality of acquittal first jury instructions, there is some case law
in this Circuit questioning the validity of
Mapes
and
Davis
. In
Scott v. Mitchell
,
A reading of
Mapes
, however, makes very clear that its holding on acquittal first instructions
was not dicta. In Section 1.e. of the
Mapes
decision this Court concluded that the petitioner’s claim
that the trial court improperly gave acquittal first instructions was procedurally defaulted.
Mapes
,
171 F.3d at 419. Nonetheless, the Court proceeded to consider the legality of acquittal first
instructions because the legality of such instructions was dispositive of one of petitioner’s
ineffective assistance of appellate counsel claims, which was not procedurally defaulted. at 416-
17, 427-28. Accordingly, the Court’s language on acquittal first instructions is not dicta. Ironically,
the language addressing
Mapes
in
Scott
is dicta because the claim in
Scott
was procedurally
defaulted.
See Roe v. Baker,
Similarly, this Court’s decision in Henderson , 262 F.3d at 621, does not irreconcilably conflict with Davis . As the dissent in Davis correctly notes, the instructions at issue in Davis were implicitly approved in this Court’s decision in Henderson . 318 F.3d at 693-94 (Boggs, J., dissenting). This conflict is of no real consequence, however, because the part of Henderson approving of the instructions is dicta. In Henderson , this Court addressed the constitutionality of an Allen charge and not the constitutionality of preliminary instructions that included an acquittal first instruction. In fact, the Henderson court expressly held that the legality of preliminary instructions is not dispositive of the constitutionality of an Allen charge. Id. (“We read Jenkins as authorizing a review of the ‘facts and circumstances’ surrounding the Allen charge itself and not a *18 carte blanche invitation to bootstrap every preliminary instruction into the inquiry.”) Moreover, the discussion of the merits of the Allen charge claim, in which the discussion of the acquittal first instruction arose, was dicta. This Court noted that the petitioner had failed to exhaust his state court remedies regarding the legality of the preliminary instructions. Id. (“[T]he record reveals that counsel for Petitioner did not advance thаt argument to the Ohio Courts.”) Therefore, any language in Henderson addressing acquittal first instructions was not necessary to the Court’s holding. Accordingly, it does not bind this Court and render Davis in conflict with this Court’s prior binding precedent.
Finally, Mapes and Davis do not conflict with Coe . Coe and its progeny do not even address acquittal first jury instructions. In Coe , this Court held that the following jury instruction did not violate the Eighth Amendment as interpreted in Mills v. Maryland .
If you unanimously determine that at least one statutory aggravating circumstance
or . . . circumstances have been proved by the State, beyond a reasonable doubt, and
said circumstances or circumstances are not outweighed by any mitigating
circumstances, the sentence shall be death.
Coe
,
In
Davis
, however, a somewhat different jury instruction, and very different legal claim, were
at issue. In
Davis
, the petitioner challenged the following instruction on the ground that it
improperly foreclosed individual jurors from considering a life sentence until the entire jury
unanimously rejected the death sentence.
Davis
,
[Y]ou must find that the State has failed to prove beyond a reasonable dоubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors. In this event you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the Court.
Id. at 685. The Davis panel accepted the petitioner’s argument and found that this instruction violated the Eighth Amendment as interpreted in Mills v. Maryland . at 687. The error was not that the instruction failed to expressly state all mitigating factors need not be unanimously found, but rather that the instruction improperly implied that the jury must unanimously acquit the petitioner of death before considering a life sentence. See id. By foreclosing jurors from considering a life sentence before a unanimous jury acquittal of death, the instruction improperly prevented individual jurors from independently considering a life sentence and thereby giving full consideration to each mitigating factor. Id.
The specific linguistic problem in Davis was that a jury was first instructed that an acquittal from death “must” be unanimous, and then instructed that only thereafter could it consider a life sentence. See id. at 698. The key language in the Davis instruction was the phrase “ In this event you will then proceed to determine which of the two possible life imprisonment sentences to *19 recommend,” which followed an instruction on acquittal. at 685, 698. The fact that the phrase “In this event” followed an instruction on acquittal improperly implied that only in “in [the] event” of acquittal, which had to be unanimous, could the jurors consider life. Id. Accordingly, the jury instruction violated the Eighth Amendment as interpreted in Mills v. Maryland .
In contrast, the instruction in Coe stated only that the jury must impose death if it unanimously agrees that the aggravating factors outweigh the mitigating factors. Coe , 161 F.3d at 336. It did not expressly instruct the jury that, in the event there was a unanimous acquittal of death, it could proceed to consider life. Id. Therefore, the instruction in Coe was not an acquittal first instruction, and would have been upheld even if the petitioner had articulated an acquittal first claim.
Both the language of the jury instruction and the legal claim at issue in this case are more like Davis than like Coe . Just as in Davis , the trial court instructed the jury that an acquittal from death “must” be unanimous, and only “in [that] event” could the jury consider life. The trial court stated:
That is, you must unanimously find that the State has failed to prove beyond a reasonable doubt that aggravating circumstances of which the defendant was found guilty of committing outweigh the mitigating factors. In this event , you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the Court. (J.A. at 4382 (emphasis added).) Furthermore, Petitioner contends that the problem with the instruction in the instant case is not that it implies that mitigating factors must be unanimously found before being considered, but rather that the instruction requires a unanimous acquittal from death before an individual juror may consider the imposition of life. By foreclosing an individual juror’s consideration of a life sentence, the instruction prevents jurors from giving full effect to the mitigating factors. Accordingly, as in Davis , the jury instruction violates the Eighth Amendment. E. Impartial Trial Judge
Petitioner next claims that his due process rights were violated because his trial judge, Frederick Coleman, was biased and/or appeared biased against Petitioner. Petitioner argues that Coleman was biased because in the 1970s Coleman received investigative reports on the Afro-Set and Petitioner, a member of the Afro-Set, in Coleman’s capacity as United States Attorney for the Northern District of Ohio. Because the Due Process Clause did not require Judge Coleman to recuse himself, we affirm the decision of the district court denying habeas relief on this claim. Clearly Established Federal Law
The Due Process Clause of the Fourteenth Amendment prohibits a defendant from being
tried before a judge whose “substantial” and “direct” interests may be furthered by the outcome of
the trial.
See Aetna Life Ins. Co v. Lavoie
, 475 U.S. 813, 824 (1986) (citations omitted)
(disqualifying a judge who did not have a pecuniary interest in the outcome of the particular case
but whose interests in another case were directly furthered by his holding);
In re Murchison
, 349
U.S. 133 (1931) (disqualifying a judge with non-pecuniary interest in the outcome of trial). An
interest is sufficiently substantial and direct to implicate the Due Process Clause where “the
‘situation would offer a possible temptation to the average . . . judge to . . . lead him not to hold the
balance nice, clear and true.’”
Aetna Life Ins. Co
.,
“[N]ot ‘all questions of judicial qualification [, however,] involve constitutional validity.’”
Aetna Life Ins. Co.
,
Although the Constitution generally does not require disqualification on the basis of bias and
prejudice, federal and state statutes may require a judge to recuse him or herself. Section 455 of
Title 28 of the United States Code requires a federal judge to disqualify himself “in any proceeding
in which his impartiality might reasonably be questioned” or “[w]here he has a personal bias or
prejudice concerning a party. . . .” Prejudice or bias in this context means “a favorable or
unfavorable disposition or opinion that is somehow
wrongful
or
inappropriate
, either because it rests
upon knowledge that the subject ought not possess . . . , or because it is excessive in degree . . . .”
Liteky v. United States
,
2. The Ohio Court Decision
Ohio’s Eighth District Court of Appeals denied Petitioner’s due process claim based on
Judge Coleman’s alleged bias and/or appearance of bias. For the purposes of its decision, the court
assumed that Judge Coleman had in fact received FBI documents relating to Petitioner’s
involvement with the Afro-Set. The court relied on the Ohio Supreme Court’s decision in
Maloney
v. Maxwell
,
Petitioner is not entitled to habeas relief based on Judge Coleman’s actual and/or appearance of bias. Although the Ohio court’s analysis was inadequate in that it failed to identify or apply the relevant federal law, its decision was not contrary to clearly established federal law because it arrived at the conclusion compelled by federal law. See Aetna Life Ins. Co., 475 U.S. at 824. Petitioner has not identified any interest, pecuniary or otherwise, that would tempt the average man with Judge Coleman’s potential knowledge of Petitioner to improperly rule against Petitioner. Id. Therefore, the Due Process Clause did not require Judge Coleman to recuse himself.
Furthermore, even if bias or prejudice were grounds for a due process claim, there is no
evidence that Judge Coleman was biased or prejudiced against Petitioner.
Corbett v. Bordenkircher
,
Similarly, Judge Coleman’s evidentiary trial rulings against Petitioner do not evidence bias. As the Supreme Court explained in Liteky , “[j]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves . . . they cannot possibly show reliance on any extrajudicial source; and can only in the rarest circumstance evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal.” 510 U.S. at 555 (interpreting 28 U.S.C. § 455(a), which requires federal judges to recuse themselves for personal bias and prejudice). Therefore, we affirm the decision of the district court denying Petitioner habeas relief on this claim. F. Brady Violation
Petitioner argues that the State of Ohio withheld the following exculpatory evidence in
violation of
Brady v. Maryland
,
1. Ricky Moore, the brother of Archie Moore, informed the police that he received a telephone call from a woman residing across the street from the murder scene, who stated that she saw “a mail truck pull into the field, dump something, and shoot it.” 2. Larry Moore, the brother of Archie Moore, informed the police that he had heard three men “chased his brother behind the post office and killed him, after one of the males shot him once in front of Swansons.” According to Petitioner, these statements could have been used to impeach the Moore brothers and bolster his claim of innocence. The Eighth District Court of Appeals determined that there was no reasonable probability that the above information would have changed the outcome of the trial, and thus there was no Brady violation. The Eighth District Court’s determination that the State’s withhоlding of the Moore brothers’ statements did not prejudice Petitioner was not an unreasonable application of Brady . Therefore, we affirm the decision of the district court, denying Petitioner habeas relief on his Brady claim.
1. Clearly Established Federal Law
“
Brady v. Maryland
requires disclosure only of evidence that is both favorable to the accused
and ‘material either to guilt or innocence.’”
United States v. Bagley
,
The Eighth District Court of Appeals denied Petitioner’s Brady claim, holding that the information allegedly withheld was neither exculpatory nor sufficiently material to cause Petitioner prejudice.
We conclude that the trial court was correct in its determination that the attached exhibits were not exculpatory, thus Williams’ Brady claims were meritless. First, Williams relies on Shaughnessy’s affidavit stating the state did not disclose to him a portion of the exhibits attached to the petition. It does not matter that Shaughnessy was not privy to those documents, if they are not exculpatory. Secondly, the exhibits at issue were obtained from the FBI and the Cleveland Police Department. They consist of police reports, investigative interviews, depositions, etc. The content of these documents does not reveal how, if at all, the result of the trial would have been different, had the state provided them to Williams. Williams’ second assignment of error is overruled.
(J.A. at 5848.) Not Grounds For Habeas
The district court did not err in denying Petitioner habeas relief on his Brady claim. Assuming that the Moore brothers’ statements were favorable to the accused, Petitioner’s claim still fails because the statements were not material. In light of the substantial evidence of Petitioner’s guilt – in particular the testimony of Darby and Berry – there is no reasonable probability that the jury would have found Petitioner innocent of murder for hire. G. Cumulative Trial Error
Finally, Petitioner alleges that the cumulative effect of the errors at trial rendered his trial
fundamentally unfair in violation of due process. If this were an issue of first impression in this
Circuit, we might be inclined to agree. The Supreme Court has repeatedly stated that fundamentally
unfair trials violate due process,
see, e.g., Riggins v. Nevada
,
In summary, we find that Petitioner’s death sentence was imposed in violation of the United States Constitution. Petitioner’s trial attorney rendered constitutionally ineffective assistance of counsel by failing to investigate and present mitigation evidence. We reject Petitioner’s remaining contentions, however, and hold that his conviction was not imposed in violation of the United States Constitution.
CONCLUSION
For the reasons set forth above, we AFFIRM the decision of the district court granting Petitioner a conditional writ of habeas corpus and vacating his sentence of death but denying Petitioner the writ as to his conviction.
______________________ CONCURRENCE ______________________ SILER, Circuit Judge, concurring. I concur in the majority opinion’s conclusion to affirm the decision of the district court in granting Williams a conditional writ of habeas corpus on his sentence only and denying the writ on the conviction. However, because I think that it is unnecessary to rule on other issues which have been raised, I file this separate concurring opinion.
In order to get to the sentencing issues, it is appropriate for this court to rule on the issues
which affect the conviction itself. Thus, I concur specifically on the grounds that Williams is not
entitled to habeas corpus relief based on his claims that the trial judge was biased and that the
prosecution withheld exculpatory evidence in violation of
Brady v. Maryland
,
Then, I further agree with the majority that trial counsel was ineffective during the
sentencing phase of the trial. Counsel essentially did nothing during the mitigation portion of the
trial, except to make a brief closing argument and to allow Williams to make an unsworn statement.
It is regretful that this case has gone on so long that the original counsel is now dead, so the court
has no way of knowing why he failed to investigate certain matters or to interview certain witnesses.
His representation fell below the standards required in
Rompilla v. Beard
,
First, I would not make the determination that appellate counsel was ineffective at the state
level by raising the question of ineffective trial counsel on direct appeal. Truly, matters outside of
the record could not have been considered by the Ohio courts on direct appeal.
See State v.
Cooperrider
,
Second, on the issue of whether the combined evidentiary errors at trial could be cumulated
to violate due process, I feel it is unnecessary to make such a ruling, since we have already granted
the writ for ineffective assistance of counsel. As the majority correctly points out, there are several
cases from this court which state that the Supreme Court has not expressly held that cumulative
errors may violate due process.
See
,
e.g
.,
Moore v. Parker
,
Third, I also see no reason for this court to rule on the legality of the instructions in the case.
Even if we should get to this question, I concur with the majority that the unanimous-life instruction
did not violate the Eighth Amendment.
See Jones v. United States
,
In summation, although I concur in the district court’s granting of the writ of habeas corpus for ineffective assistance of counsel at the sentencing stage of the trial, and I would uphold the decision of the district court in affirming the conviction, I do not join the majority opinion on certain other issues which I deem unnecessary for the resolution of this matter.