Williams v. CoyleWilliams v. Coyle
OPINION
KENNEDY, Circuit Judge. Petitioner, Lewis Williams, Jr., was indicted and convicted of first degree murder, and sentenced to death. After unsuccessful direct appeals and several state post-conviction proceedings, Williams filed this petition for a writ of habeas corpus. After ruling that the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA), governed Williams‘s petition, the district court entered judgment dismissing the petition. The district court issued a certificate of appealability only on the question of whether Williams‘s petition was governed by the AEDPA. On Williams‘s appeal, we held that it was. See Williams v. Coyle, 167 F.3d 1036 (6th Cir. 1999). On his appeal of the denial of a certificate on the other issues he had raised in his petition, we issued a certificate of appealability on four issues. Those are, whether the district court erred by (1) denying Williams‘s request for an evidentiary hearing, (2) finding that the Ohio court‘s ruling on Williams‘s ineffective assistance of counsel at the sentencing stage claim was not contrary to or an unreasonable application of the law, (3) finding that the Ohio court‘s ruling on Williams‘s Brady violation claim as it related to the testimony of Anderson and Brooks was not contrary to or an unreasonable application of the law, and (4) finding that the Ohio court‘s ruling on Williams‘s Eighth Amendment claim--that the trial court incorrectly instructed the jury on the Ohio‘s death penalty statute--was not contrary to or an unreasonable application of the law. In response to the Eight Amendment and Brady claims, the Warden, acting on behalf of the State, argues that Williams procedurally defaulted these by failing to raise them at the earliest opportunity. And, moreover, on the whole, Williams‘s claims, including the ones the Warden claims Williams defaulted, are without merit.
A general description of the factual and procedural background precedes our analysis, which will include additional background as necessary.
I. Facts
On February 1, 1983, a Cuyahoga County Grand Jury indicted Williams for robbery, theft, aggravated robbery, aggravated burglary, and aggravated murder with specifications in connection with the robbery and murder of Leona Chmielewski.1 See Joint Appendix (J.A.) at 465-70. Williams pleaded not guilty and proceeded to trial where he was represented by Floyd Oliver and Arthur Lambros.
The prosecution also introduced evidence that (1) a partial shoe print on the nightgown Chmielewski was wearing at the time of her murder matched the print from the shoes Williams was wearing at the time of his arrest and (2) the jacket Williams was wearing at the time of his arrest contained a trace of lead powder, similar to that discharged from a gun. And, over Williams‘s objections, the prosecution called Michael Anderson and Brooks Navarro, two jail-house informants, to testify. They testified that, while in jail, Williams admitted to them he killed Chmielewski. According to Anderson, Williams told Anderson that he “stuck the gun in her mouth.” Brooks testified that Williams told Brooks he was worried about the blood on his shoes. Williams attorneys cross-examined Anderson and Brooks, inquiring whether they currently had a deal with prosecution to exchange testimony for more lenient sentences or hoped the State would later consider leniency on account of their testimony. Each answered that while he did not have a deal with the prosecution, he did hope the state would remember his cooperation. Likewise, the prosecutor stated that he would likely take Anderson‘s and Brooks‘s cooperation into account. On October 7, 1983, the jury found Williams guilty of aggravated murder and aggravated robbery, thereby making him eligible for the death penalty. The trial then proceeded to the sentencing stage.
At the close of the proceeding, the judge instructed the jury that under Ohio‘s Revised Code sections 2929.03 and .04, it could return one of three sentence recommendations--death or one of two life sentences--based upon whether it found that the aggravating circumstances outweighed the mitigating circumstances. Any of these recommendations, the judge instructed, must be based on a unanimous decision. See J.A. at 2143-44. Williams‘s counsel did not object to the instruction. After deliberating, the jury recommended a sentence of death, which the court accepted. On November 10, 1983, the court entered its judgment that Williams was sentenced to death. See J.A. at 471.
Williams, represented by Oliver, appealed the judgment and sentence. On October 25, 1984, an Ohio Court of Appeals affirmed the conviction and sentence. See State v. Williams, No. 47853, 1984 WL 5289 (Ohio Ct. App. Oct. 25, 1984) (unpublished journal entry and opinion). Williams then appealed to the Ohio Supreme Court where he was represented by Marilyn Damelio and Richard Gideon. Finding no merit, the Ohio Supreme Court affirmed his conviction and sentence on March 26, 1986. See State v. Williams, 490 N.E.2d 906 (Ohio 1986). Williams then
Having exhausted his direct appeals, Williams turned his attention to state post-conviction proceedings for relief. In all, Williams filed five state post-conviction relief (PCR) petitions and took appeals from four of the five dismissals. Additionally, Williams filed an application for delayed reconsideration of his ineffective assistance of counsel claim in his case--as is required under Ohio‘s Murnahan rule. See State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992).
Proceeding pro se, Williams filed his first petition for PCR on April 4, 1986. There, he alleged ineffective assistance of counsel and what he now argues was a Brady violation. The trial court dismissed without opinion and Williams did not appeal. He filed a second PCR, related to the robbery, which was also dismissed. Again, Williams did not appeal.
Instead, represented by Robert Ingersoll, he filed his third petition for PCR on November 20, 1987.2 In it he alleged, among other things, that he was deprived of effective counsel at the guilt and sentencing phases of his trial as well as on appeal. He did not allege a Brady violation. Again the trial court dismissed. The Ohio Court of Appeals affirmеd on July 1, 1991, see State v. Williams, 600 N.E.2d 298 (Ohio Ct. App. 1991), and the Ohio Supreme Court dismissed the appeal on November 20, 1991, finding that “no substantial constitutional question” was presented. State v. Williams, 580 N.E.2d 784 (Ohio 1991) (unpublished table decision).
On August 31, 1990, while his third petition was still on appeal, Williams filed his fourth petition for PCR. In it he alleged, among other things, that he received ineffective assistance of counsel and suffered a Brady violation. The trial court dismissed the Brady claim as procedurally barred by the
Undeterred by his lack of success, Williams filed a fifth petition for PCR on July 8, 1992. Again he asserted that his counsel were ineffective and that the prosecution violated his due process rights by failing to disclose exculpatory evidence. And again the trial court dismissed on the grounds of res judicata and the Court of Appeals affirmed, see State v. Williams, No. 68613, 1996 WL 17333 (Ohio Ct. App. Jan. 18, 1996) (unpublished opinion), and the Ohio Supreme Court dismissed without opinion, see State v. Williams, 663 N.E.2d 330 (Ohio 1996) (unpublished table opinion).
On June 30, 1993, while litigating his fifth PCR, Williams filed an Application for Delayed Reconsideration in the court of appeals on his ineffective assistance of appellate counsel claim, as is required by Ohio law. The court dismissed the application because Williams filed it in the wrong case. On October 27, 1994, Williams filed the application again, this time in the correct case. The court dismissed the application under
Coming to the realization that he was not going to obtain any state post-conviction relief, Williams filed a notice of intent to file a Petition for a Writ of Habeas Corpus on April 19, 1996. Then on November 1, 1996, Williams filed a Petition for a Writ of Habeas Corpus, challenging his conviction and sentence. Williams‘s petition raised thirty-two grounds for relief, including claims of (1) ineffective
The district court granted Williams‘s request for an evidentiary hearing. At the hearing, Williams introduced the testimony of a ballistics expert and a mitigation expert to support the ineffective assistance of counsel at the guilt and sentencing stages of his trial claim, and to support his Brady claim, an affidavit from Anderson stating that he testified against Williams as part of a deal with the prosecution. He did not call either Anderson or Brooks to testify. Williams also subpoenaed his former counsel but did not take former counsel‘s deposition or call him to testify. In response, the State called the prosecutors who tried Williams‘s case. Both denied making a deal with either Anderson or Brooks. After conducting the hearing, the district court found that although Williams filed his notice of intent to file a petition for habeas corpus before the effective date of the AEDPA, it nevertheless governed his case because he filed his petition after that date. And because Williams had failed to develop the record and could not make the showing required under
In ruling on the petition, the district court declined to address whether Williams procedurally defaulted on his Brady and Eighth Amendment claims and instead based its decision on the merits of those claims. It found both claims wanting merit, with or without the evidence presented at the evidentiary hearing. It also found that Williams‘s ineffective
Williams filed a motion to reconsider. Upon reconsideration, the court amended its order and issued a certificate of appealability on the question of whether Williams‘s petition was governed by the AEDPA. Williams appealed that issue to this court and requested a certificate of appealability on all issues raised in his petition. We held that the AEDPA governed Williams‘s case despite the fact that he filed his notice of intent to file a petition prior to its effective date. See Williams v. Coyle, 167 F.3d 1036 (6th Cir. 1999). We then issued a certificate on the four issues Williams raises here.
II. Procedural Default
Before we reach the merits of any of Williams‘s claims, we must address the Warden‘s argument that Williams procedurally defaulted his Brady and Eighth Amendment claims by failing to raise them at the earliest opportunity.
When a state prisoner defaults on his “federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991) (citations omitted). In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), we set forth a four-part test for determining whether a court is procedurally barred from reviewing a state prisoner‘s federal constitutional claims. First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner‘s claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction--that is, whether the state courts
A. Brady Claim
We do not believe we need go any further than the first factor of inquiry in determining whether Williams procedurally defaulted his Brady claim. Before we explain why, we provide a detailed procedural background. Williams claims to have alleged a Brady violation in his first petition for PCR. The petition alleged that Williams was denied his “constitutional right to a fair and impartial trial when the prosecutor used against him testimony [of Anderson and Brooks] which was know to be false . . . and which was produced by promises made by the prosecutor to [Anderson and Brooks].” J.A. at 525-26.3 The trial court dismissed this petition without opinion and Williams never appealed the dismissal.
In alleging the Brady violation in his fourth PCR petition, Williams pointed to several facts that led him to believe a deal existed between the prosecution and the witnesses--namely, that after their testimony each witness received a reduced sentence. The petition also included an affidavit from Jeff Layman, an investigator hired by Williams‘s counsel, which stated that while visiting Anderson at the Marion Correctional Facility, Anderson informed Layman that the prosecution promised to recommend a reduced sentence if he testified against Williams. See J.A. at 1313-14. Curiously, the petition did not include English‘s affidavit nor did it include an affidavit from Anderson. The trial court
Nevertheless, Williams raised the claim again in his fifth petition for PCR, this time including an affidavit from Anderson stаting that he made a deal with the prosecution. Again the trial court dismissed the Brady claim on the ground that it was barred by res judicata. It then went on to state, “[f]urther, these exhibits fail to present substantive grounds upon which relief can be granted.” In his appeal from that dismissal, Williams alleged that it was error for the trial court to dismiss the petition on the ground of res judicata because his claim was based upon evidence outside the record--an affidavit from Anderson--and Ohio law did not apply the doctrine to claims supported by evidence outside the record. Williams also stated that the trial court erred by failing to grant his petition as to the Brady claim. The court of appeals rejected Williams‘s contention that evidence outside the record prevents a court from applying res judicata to procedurally bar a claim. It stated,
Defendant‘s seventh assignment of error contends the prosecution presented false testimony from Michael Anderson and concealed a deal to obtain his testimony, thereby depriving defendant of effective counsel. . . . Defendant contends he is entitled to file successive PCR Petitions, despite the denial of prior PCR Petitions rasing the same grounds, whenever he presents new evidence to support the claims.
Contrary to defendant‘s argument, Ohio law does not grant carte blanche to file successive PCR Petitions endlessly. . . . Trial courts are not required to entertain successive petitions which allege the same grounds as earlier petitions. . . . Defendant has failed to show that the trial court abused its discretion by dismissing these claims in his fifth PCR.
. . . .
State v. Williams, No. 68613, 1996 WL 17333 at *2 (Ohio Ct. App. Jan. 18, 1996) (unpublished opinion) (internal citations omitted). The court did not go on to address the merits of the claim. The Supreme Court of Ohio affirmed without opinion.
Those dismissals, the Warden argues, establish a procedural bar to this cоurt hearing Williams‘s Brady claim. Pointing to our decisions in Wong v. Money, 142 F.3d 313 (6th Cir. 1998), and Norris v. Schotten, 146 F.3d 314 (6th Cir. 1998), the Warden asserts that the doctrine of res judicata is an adequate and independent state ground for barring federal review.
After reviewing Ohio‘s doctrine of res judicata, we conclude that while it seems likely that Williams did procedurally default his Brady claim, the Ohio courts have not provided us with enough analysis to hold that Williams defaulted his claim. Under Ohio law, the doctrine of res judicata will bar a party from raising issues that it had an opportunity to raise at an earlier proceeding. See State v. Roberts, 437 N.E.2d 598, 601 (Ohio 1982) (stating that “the petitioner is precluded by the doctrine of res judicata from asserting constitutional issues in this post conviction proceeding since she failed to raise these issues at the earliest possible time. . . .“); State v. Johnson, No. 55295, 55811, 55812, 2000 WL 1146809 at *1 (Ohio Ct. App. Aug. 8, 2000); State v. Resh, 707 N.E.2d 531, 538 (Ohio Ct. App. 1997). This doctrine applies equally: in post-conviction proceedings, barring claims for relief when the petitioner could have raised the issue on direct appeal but did not, see State v. Perry, 226 N.E.2d 104 (Ohio 1967); to claims raised in federal habeas proceedings that were not raised on appeal from a trial court‘s dismissal of a petition for post-conviction relief but could have been, see Brooks v. Edwards, No. 95-3775, 1996 WL 506505 at *5 (6th Cir. Sept. 5, 1996); and to claims that a successive petition for post-conviction relief raises that could have been raised in an earlier post-conviction proceeding but were not, see State v. Slagle, No. 76834, 2000 WL 1144947, at *10 (Ohio Ct. App. Aug. 10, 2000); State v. Mullins, No. 10499, 1982 WL 4956, at *1 (Ohio Ct. App. April 14, 1982). When the claim raised is based on evidence outside the record, the rules change a bit. But how the rules change appears to depend on which opinion you examine. For instance, some courts appear to suggest all that matters is whether the claim is based on evidence outside the record and could not have been appealed on the original record: “[E]vidence must show that the petitioner could not have appealed the constitutional claim based on the information in the original trial record.” State v. Combs, 652 N.E.2d 205, 209 (Ohio Ct. App. 1994). Thus, a narrow reading of those cases suggests that the question of whether the petitioner could have obtained the evidence earlier is of no consequence. Others find that question important, and require not only that the evidence is outside the record but also that the party presented the claim when the party could have reasonably obtained the evidence. See Maples v. Coyle, 171 F.3d 408, 421-22 (6th Cir. 1999); Slagle, at *3; Resh, 707 N.E.2d at 538 (“Res judicata does not apply because [the defendant] could not have reasonably discovered the attached evidentiary materials at or before trial.“). Still other sources have stated the issue as whether the party “could have known of the error in time to raise it at trial or on appeal.” 3 Baldwin‘s Ohio Prac. Crim. L. § 83.4 (West 1996).
Williams does not address the varying interpretations of the doctrine, choosing simply to adopt the one most favorable to him. Applying that interpretation, he argues that because his
B. Jury Instruction
The Warden argues that Williams procedurally defaulted his Eighth Amendment jury instruction claim by failing to make a contemporaneous objection to the instruction and failing to raise the issue on direct appeal. We disagree. It appears that Williams raised the issue of the court‘s jury instruction regarding the degree of agreement needed to return a life sentence recommendation on his direct appeal to the Ohio Supreme Court. That court, though it stated that the issue had not been briefed or raised below, went on to decide the case on the merits.
In his twelfth proposition, appellant argues that the jury should have been instructed that a life imprisonment sentence does not require a unanimous vote. Not only was this issue not briefed and decided below, but this alleged reading of
R.C. 2929.03(D)(2) ignores therequirement set forth in Crim. R. 31(A) that all verdicts in criminal proceedings be unanimous. Furthermore, we rejected this argument in Jenkins . . . and held that: “In returning a sentence of life imprisonment underR.C. 2929.03(D)(2) , the jury‘s verdict must be unanimous.”
Williams, 490 N.E.2d at 913 (citation omitted). We do not believe that we can read this decision as resting on a procedural bar as it simply says in passing that Williams failed to comply with the procedural rules.6 Accordingly, Williams is not barred from raising the issue now.
Because we find that we are not procedurally barred from reviewing either claim, we move to Williams‘s assignments of error.
III. Williams‘s Claims
A. Evidentiary Hearing
In his first assignment of error, Williams alleges the district court should have granted him an evidentiary hearing on his Brady and ineffective assistance of counsel claims. In point of fact, the district court did grant and proceed with an evidentiary hearing. At the hearing, Williams introduced thirty exhibits, including an affidavit from Anderson claiming that he lied at Williams‘s trial. Williams also called two witnesses, including a mitigation expert who testified that Williams‘s trial counsel were ineffective in preparing for the mitigation stage of the trial. Williams did not, however, call Anderson as a witness. His counsel informed the court at a pre-hearing conference that Anderson was unavailable in a psychiatric ward at Allen Correctional Institution. As it turned out, Anderson was not in a psychiatric ward but in the
After the hearing, the district court ruled that the AEDPA prohibited it from using the evidence in evaluating the merits of Williams‘s claims. Specifically, the court found that Williams had failed to develop the state record and did not meet one of the exceptions in
Despite the court‘s conclusion that it was prohibited from using the evidence presented at the evidentiary hearing, it proceeded to evaluate the evidence. It began in footnote twenty-six: “As a practical matter, whether the Court disregards the evidence receivеd at the hearing is of no consequence, for, as will shortly be discussed, Williams is not entitled to relief even upon consideration of such evidence.” J.A. 163. Giving Williams every possible advantage, the district court included the hearsay affidavit in its evaluation as well, stating, “Anderson‘s affidavit, even if it were not hearsay, must be viewed with extreme suspicion. . . . [Anderson‘s] inadmissible affidavit is insufficient to establish that the State had promised him a reduced sentence in exchange for testimony against Williams.” J.A. at 168-69 (footnotes omitted). In evaluating the ineffective assistance of counsel argument, the district court said, “Williams would fair (sic) no better even were the Court to consider the evidence presented at the evidentiary hearing.” J.A. at 185 n.57. It then went on to consider that evidence, finding that the mitigation expert‘s testimony did not support a finding of deficient performance by Williams‘s counsel or the prejudice required to overturn the sentence.
As the district court did in fact evaluate the evidence presented at the evidentiary hearing, what Williams is actually requesting is a second federal evidentiary hearing. The sole purpose of which--given that the district court already considered the affidavits and testimony of the mitigation expert--would be to introduce the testimony of Anderson rather than relying on his affidavit as Williams had previously done. In hope, we suppose, that the district court would look more favorably on Anderson‘s statement if he were there in person. But the district court‘s opinion suggests otherwise. It did not say that Anderson‘s statement was incredible because Andersоn was not before the court; rather it found the statement lacked credibility because Anderson waited nine
B. Standards of Review
Because the AEDPA applies to Williams‘s petition, see Williams v. Coyle, 167 F.3d 1036 (6th Cir. 1999), we review his petition under the standards set forth in
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 application 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 proceedings.
A decision can be contrary to such law in one of two ways. First, when the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent. See id. at 406-07. Second, when the state court “applies a rule that contradicts the governing law set forth in” Supreme Court cases. Id. at 406.
A decision is an unreasonable application of clearly established federal law if it identifies the correct principle of law but unreasonably applies it. See id. at 407. “[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under
We pause here to emphasize that the Court did not, contrary to some opinions from this and other circuits, hold that a
The Fourth Circuit‘s interpretation of the “unreasonable application” clause of
§ 2254(d)(1) is generally correct. That court held in Green that a state-court decision can involve an “unreasonable application” of this Court‘s clearly established precedent in two ways. . . . Second, a state-court decision also involves an unreasonable application of this Court‘s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.
Id. at 407 (citations omitted). But the Court then went on to emphasize that it was not ruling on the unreasonable extension principle.
The Fourth Circuit also held in Green [that] state-court decisions that unreasonably extended a legal principle from our precedent to a new context where it should not apply (or unreasonably refuse to extend a legal principle to a new context where it should apply) should be analyzed under
§ 2254(d)(1) ‘s “unreasonable application” clause. Although that holding may perhaps be correct, the classification does have some problems of precision. . . . Today‘s case does not require us to decide how such “extension of legal principle” cases should be treated under§ 2254(d)(1) . For now it is sufficient to hold that when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner‘s case, a federal court applying§ 2254(d)(1) may conclude that the state-court decision falls within that provision‘s “unreasonable application” clause.
Id. at 1521 (emphasis added) (internal citation omitted).
After reading the possible verdicts, the trial court instructed the jury as follows:
If all twelve of the jury find, by proof beyond a reasonable doubt, that the aggravating circumstances which Lewis Williams Jr. was found guilty of committing murder outweighs the mitigating factors, then you must return such finding to the Court. I instruct you as a mater of law that if you make such a finding, that you have no choice and must recommend to the Court that the sentence of death be imposed upon the defendant, Lewis Williams Jr.
. . .
On the other hand, if after considering all of the relevant evidence raised at the trial . . . you find that the State of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant . . . was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision.
. . .
That is, you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances of which the defendant was found guilty 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.
. . .
So you have three options, as I have indicated to you. Of course, whichever you choose, all twelve of the jurors have to agree and sign in ink.
J.A. at 2141-44 (emphasis added). That passage, Williams contends, violated his rights because (1) it erroneously instructed the jury on the level of agreement necessary to recommend a life sentence and (2) that this erroneous instruction violated his Eighth Amendment right.
The Ohio Supreme Court rejected that argument and so do we. The Ohio Supreme Court held that, in accord with its decision in State v. Jenkins, 473 N.E.2d 264, 306-07 (Ohio 1984), all verdicts must be unanimous under
In 1996, the Ohio Supreme Court, reached a decision contrary to Jenkins in State v. Brooks, 661 N.E.2d 1030, 1041 (Ohio 1996). A 1992 opinion by the Ohio Supreme court also suggests that a recommendation of life need not be unanimous. See State v. Springer, 586 N.E.2d 96 (Ohio 1992). The Brooks court did not mention Jenkins but nevertheless appears to overrule it. The Brooks decision was over a month after Williams‘s last PCR request was dismissed; and both Brooks and Springer were decided after Williams‘s conviction became final. Williams did not raise the jury instruction issue in his PCR proceedings, moreover,
The timing of these decisions requires us to find that the Ohio Supreme Court‘s decision was not an unreasonable application of nor was it contrary to clearly established law--in this case Caldwell-- at the time Williams‘s conviction became final. Caldwell prohibits the judge or prosecutors from making misleading statements to the jury. Thus, for the decision to have been contrary to or an unreasonable application of Caldwell, it would have had to affirm what was then an erroneous statement of the law by the judge that misled the jury. That is, the jury instruction would have to had been an erroneous statement of Ohio law at the time Williams‘s conviction became final. If it was not, then the instruction was not misleading, and therefore, not in violation of Caldwell. At the time Williams‘s conviction became final, Ohio‘s highest court read
Williams‘s second challenge fares no better. He alleges the instruction led the jury to believe that they must return a unanimous recommendation, thereby precluding them from considering any and all mitigating circumstances in violation of Mills v. Maryland, 486 U.S. 367 (1988).
The Ohio Supreme Court did not address Williams‘s second argument; however, it is easily disposed of. We first note that Mills was decided after the United States Supreme Court denied certiorari from Williams‘s direct appeal and therefore was not clearly established law at the time Williams‘s conviction became final. Even if the law were clearly established, the jury instruction did not run afoul of it or its principles. Mills stands for the proposition that a death penalty scheme cannot require unanimity as to the existence
D. Ineffective Assistance of Counsel
If his death sentence is not the result of judicial error, it must be the result of his counsel‘s error, Williams contends. That error, he argues, was his trial counsel‘s failure to fully investigate his background for information that they could have presented at the sentencing stage of his trial as mitigating circumstances. If they had, he maintains, they would have discovered additional information that supports Williams‘s claim that the death penalty should not have been imposed because of his troubled childhood. Specifically, Williams points to testimony that his school test revealed he has a low IQ and statements from family members that he was abused and his father was a homosexual who spent little time with Williams and brought other men around Williams‘s home. Counsel‘s failure to present such evidence, he alleges, was deficient performance. Had they presented that evidence, Williams argues, there is a reasonable probability that the jury‘s recommendation would have been different.
The Ohio courts saw things differently. Williams first raised the claim in his third PCR petition; the court of appeals was the last to provide an articulated decision. Applying Strickland v. Washington, 466 U.S. 668 (1984), it found that Williams could not show that his attorneys’ decision not to call certain witnesses was deficient performance. The witnesses Williams claims his counsel should have called to testify would have merely provided support for the theory of mitigation that his counsel presented and the jury rejected, the court reasoned. Accordingly, it concluded, counsel‘s strategic decision not to call these witnesses did not constitute deficient performance. Further, it stated, the failure to present the cumulative evidence did not prejudice Williams as the jury
We pause here to stress the import of the AEDPA‘s requirements on our analysis. The AEDPA requires us to review the Ohio court‘s decision based on clearly established Supreme Court precedent at the time Williams‘s conviction became final. We are not permitted tо rely on Supreme Court cases decided after the court‘s decision, nor are we permitted to rely on any decision by any court other than the Supreme Court in evaluating the Ohio court‘s decision. Thus, Williams‘s references to Supreme Court decisions after the time Williams‘s conviction became final are largely irrelevant. So too are Williams‘s references to federal circuit court decisions.
At the time Williams‘s conviction became final, Strickland v. Washington was three years old but still the most instructive Supreme Court case on his issue. Under Strickland, counsel is deemed ineffective if (1) his performance is deficient and (2) this deficient performance prejudiced the defense. 466 U.S. at 687. A counsel‘s performance is deficient if he committed errors so serious that he was not performing at a reasonable professional level. The burden is on the defendant to make such a showing by “identify[ing] the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690. The court warned against the type of hindsight and second-guessing in which Williams asks us to engage.
Judicial scrutiny of counsel‘s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every
. . . .
In making [its] determination, the court should keep in mind that counsel‘s function, as elaborated in prevailing professional norms, is to make the аdversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
Id. at 689-90 (citations omitted). And as to investigative decisions of counsel, the Court also instructed courts to act deferentially.
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgment.
. . . .
[W]hat investigation decisions are reasonable depends critically on [information supplied by the defendant]. For
Id. at 690-691. Assuming a defendant overcomes this high burden, he must still prevail on the second prong before he will receive relief.
To prevail on the second prong, the defendant must show “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Again, we note that it is important to bear in mind that we are not proceeding de novo; instead, we are assessing whether the Ohio court‘s application of the Strickland standard--and only the Strickland standard as it was described by the Supreme Court in 1984--was unreasonable or its decision contrary to the standard.
Applying Strickland through the lense of the AEDPA, we do not believe it was unreasonable for the Ohio court to determine that Williams failed to make the required showing.
(1) Whether the victim of the offense induced or facilitated it;
(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation;
(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender‘s conduct or to conform the offender‘s conduct to the requirements of the law;
(4) The youth of the offender;
(5) The offender‘s lack of a significant history of prior criminal convictions and delinquency adjudications;
(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender‘s participation in the offense and the degree of the offender‘s participation in the acts that led to the death of the victim;
(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.
The dissent focuses on this as well, reasoning that had counsel investigated further--that is, spoken to more of Williams‘s relatives--they could have easily determined that some of what Williams‘s father testified to was not true. This may well be true. The dissent‘s analysis, however, overlooks
Williams also complains that had his counsel investigated further, he would have discovered that Williams was tested as having a low IQ. Specifically, had counsel reviewed Williams‘s records from school--though there is no indication that counsel were not aware of their content--they would have discovered the test results. Such practice is common today, Williams‘s expert testified before the district court. This argument like much of Williams‘s argument goes to what is considered standard practice in mitigation hearings today. But as we have pointed out, that is not the question under Strickland nor is it the question under the AEDPA. Strickland directs the Ohio court to analyze effectiveness based on the then prevailing norms and counsel‘s perspective at the time. Id. at 689. The questiоn is whether Williams‘s counsel met the professional standards of the time; and Williams has provided no indication that they did not. See id. at 687. What counsel knew and why they acted as they did is
The same is true with respect to the prejudice prong. As the Ohio Court of Appeals noted, the evidence Williams claims should have been introduced goes to a theory of mitigation that the jury found did not outweigh the aggravating circumstances. Williams has made no showing, other than merely alleging, that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
E. Brady Violation
Our review of Williams‘s Brady claim will be under pre-AEDPA standards because no state court reviewed the merits of that claim. Under that standard, we review mixed questions of law and fact de novo. See Carter v. Bell, 218 F.3d 581, 591 (6th Cir. 2000). Allegations of Brady violations are mixed questions of law and fact, accordingly, we review the claim under that standard. See id. We review the district court‘s factual findings only for clear error. See id.
Under Brady v. Maryland, 373 U.S. 83, 87 (1963) and its progeny, a defendant‘s due process rights are violated when the prosecution suppresses exculpatory evidence. Exculpatory evidence includes evidence regarding the reliability of a witness. See United States v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 433 (1995); Giglio v. United States, 405 U.S. 150, 154 (1972); Bell, 218 F.3d at 602. Failure to disclose such evidence is material where the evidence creates a reasonable probability of a different result. See Bagley, 473 U.S. at 678. A reasonable probability of a different result exists when “the government‘s evidentiary suppression ‘undermines confidence in the outcome of the trial.‘” Kyles, 514 U.S. at 434 (quoting Bagley, supra).
According to Williаms, a deal to exchange lighter sentences for testimony against Williams existed between the prosecution and Anderson and Brooks prior to Williams‘s trial. That the prosecution did not disclose the existence of the deal, Williams asserts, violated his Fourteenth Amendment due process rights, as interpreted by Brady. To support this claim, Williams points to several post-trial events that he alleges raise doubt about the witnesses’ testimony that they were not promised a reduced sentence in exchange for
The district court disagreed and held there was no Brady violation. While it agreed with Williams that the prosecutor‘s failure to disclose evidence of a deal between the state and the witnesses would amount to a Brady violation, it rejected Williams‘s argument that the evidence he presented reveals that a deal between the prosecutor and the witnesses existed prior to the trial. The post trial events, it found, are not evidence that a deal existed prior to the witnesses testifying. And Anderson‘s affidavit, it ruled, was not credible. Further, there was no еvidence that Brooks ever recanted his testimony. Accordingly, it found no violation and dismissed the claim.
To convince us that the district court erred, Williams must show that the court‘s factual finding that no deal existed was clearly erroneous. He cannot make that showing. The mere fact that Anderson and Brook‘s sentences were later altered is not evidence that a deal existed prior to their testimony at trial. In fact, at Williams‘s trial Anderson testified he hoped
Even if we assume such a deal existed, we do not believe the prosecution‘s failure to disclose it would have been material. While the jury would not have been aware that a deal existed, it was fully aware of the witnesses’ motivation for testifying--the hope of getting favorable treatment from the prosecution in their own cases. Williams‘s counsel extensively cross-examined the witnesses. Anderson admitted that he hoped his testimony would benefit him in his case. And the prosecution stated it would consider the witnesses’ cooperation in determining how to dispose of their cases. Thus, the jury knew of this reason to question the veracity of their Anderson‘s and Brooks‘s testimony. We do not believe that knowledge of the existence of an actual deal prior to deliberation would have given the jury a greater rеason to question the veracity of Anderson‘s and Brooks‘s testimony. At least, not to the level that not knowing undermines confidence in the outcome. See Byrd v. Collins, 209 F.3d 486, 518-19 (6th Cir. 2000).
For the foregoing reasons, we affirm the district court‘s denial of the petition for a writ of habeas corpus.
KAREN NELSON MOORE, Circuit Judge, dissenting. Because I disagree with the majority‘s determination that Williams is not entitled to a writ of habeas corpus because of ineffective assistance of counsel during the sentencing phase of his trial, I respectfully dissent from the corresponding portion of the majority‘s opinion. Unlike the majority, I believe that the state courts’ decision on Williams‘s ineffective assistance of counsel claim involved an unreasonable application of clearly established Supreme Court precedent, specifically of the legal standards set forth in Strickland v. Washington, 466 U.S. 668 (1984).
We review de novo a district court‘s decision on a petition for writ of habeas corpus. See Carter v. Bell, 218 F.3d 581, 590 (6th Cir. 2000). As we previously noted in Williams v. Coyle, 167 F.3d 1036 (6th Cir. 1999), this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), and under
(1) resulted in a decision that was contrary to, or involved an unreasonable application 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.
“The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. The Supreme Court has recognized that “[a] capital sentencing proceeding like the one involved in this case . . . is sufficiently like a trial in its adversarial format and in the existence of standards for decision . . . that counsel‘s role in the proceeding is comparable to counsel‘s role at trial.” Id. at 686-87. As the majority notes, a defendant must satisfy the well-known, two-part test set forth in Strickland to prove a claim of ineffective assistance of counsel:
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.
With regard to the performance prong of the two-part test, a defendant must show that his counsel‘s representation fell below an objective standard of reasonableness. In reviewing the reasonableness of such counsel‘s performance, courts
I. BACKGROUND
In the state courts, Williams argued that he was denied effective assistance of counsel during the sentencing phase of his trial because his counsel failed to investigate possible mitigating factors adequately and failed to develop and present a coherent theory of mitigation to the jury. Specifically, Williams claimed that his attorneys failed to obtain pertinent background information on him by neglecting to interview family members other than his father and his sister Deborah and by neglecting to request school and juvenile facility records relevant to his psycho-social development; that his attorneys failed to prepare witnesses for the testimony they were to give during the sentencing phase of his trial; and that his attorneys failed to request the appointment of a psychological expert who could comment
The Eighth Amendment requires that a jury be permitted to consider evidence proffered by the defendant regarding the circumstances of the crime and the defendant‘s background and character during the sentencing phase of a capital trial. Lockett v. Ohio, 438 U.S. 586, 604 (1978). As the Supreme Court has repeatedly recognized, because the adversarial testing process “generally will not function properly unless defense counsel has done some investigation . . . ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.‘” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at 691); see also Williams, 529 U.S. at 397 (acknowledging that the defendant‘s trial counsel had an “obligation to conduct a thorough investigation of the defendant‘s background“).1 Therefore, if counsel‘s failure to investigate is not due to strategic concerns and is unreasonable considering аll the circumstances, such failure to investigate may constitute ineffective assistance of counsel. See Strickland, 466 U.S. at 688-89.
Under Ohio‘s death penalty statute, a sentencing jury must weigh the aggravating circumstances of a defendant‘s capital offense against the “nature and circumstances of the offense, [and] the history, character, and background of the offender” before recommending a death sentence.
(1) Whether the victim of the offense induced or facilitated it;
(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation;
(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law;
(4) The youth of the offender;
(5) The offender‘s lack of a significant history of prior criminal convictions and delinquency adjudications;
(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender‘s participation in the offense and the degree of the offender‘s participation in the acts that led to the death of the victim;
(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.
During the sentencing phase of Williams‘s trial, his attorneys presented the testimony of three persons: (1) Olivia Smith Packnett, the mother of one of Williams‘s childhood friends; (2) Deborah Williams, Williams‘s younger sister; and (3) Lewis Williams, Sr., Williams‘s birth father. Williams then gave unsworn testimony before the jury on his own behalf.
Deborah Williams was the second witness to testify. She testified that her parents separated when Williams was about six years old; that Williams had no stable home; and that he often slept over at friends’ homes or in her car. J.A. at 2093-96. According to Deborah Williams, her brother‘s attorneys were derelict in preparing her to give testimony before the jury, having only spoken to her for five minutes immediately before she testified and advising her only to “explain [Williams‘s] life” at the hearing. J.A. at 1066.
Lewis Williams, Sr. followed Deborah Williams at the sentencing hearing. He testified that he “wasn‘t with the family as much as maybe [he] should have been, but whenever [Williams] called [him] or anything, [he] was there. Whenever [he] could be with [him].” J.A. at 2099. Lewis Williams, Sr. also testified that he felt that Williams “cared more for his mother then[sic] he did himself, but times, as if he was being rejected by his mother for some reason.” J.A. at 2101. According to Lewis Williams, Sr., his son‘s attorneys “did not fully explain to [him] the purpose of [his] testimony or to what [he] would be testifying.” J.A. at 1061. On top of that, Lewis Williams, Sr. claimed that the attorneys interviewed him for twenty-five to thirty minutes only and asked him very few questions about Williams‘s background. J.A. at 1061.
Williams was the last person to take the stand and gave an unsworn statement to the jury. On the stand, Williams stated
The last state court to render a written decision on Williams‘s claim of ineffective assistance of counsel during the sentencing phase was the Ohio Court of Appeals in a post-conviction proceeding.2 The Ohio Court of Appeals denied this claim, stating that the additional evidence that Williams had presented in his post-conviction petition was merely cumulative to the testimony already given during the sentencing phase of his trial and that it did not demonstrate the required diminished responsibility. It then held that Williams‘s counsel performance was not deficient. It explained:
Here, Williams presented а variety of witnesses in the penalty phase. Olivia Packnett, the mother of one of Williams’ friends, testified that Williams has always been well-behaved and respectful at home. Debra Williams, defendant‘s sister, testified about the instability of defendant‘s home life. Lewis Williams, Sr., defendant‘s father, testified that he did not spend much time with defendant and that defendant‘s mother rejected him. Defendant himself proffered unsworn testimony of his criminal conduct that started at the age of nine which was designed to get his family‘s attention. He stated that he was blamed for all of the family‘s problems and spoke up about his troubled relationship with his mother.
State v. Williams, 600 N.E.2d 298, 304 (Ohio Ct. App. 1991) (citations omitted) (emphasis added).
The district court also concluded that Williams had not been denied effective assistance of counsel during the sentencing phase of his trial. Specifically, the district court determined that:
the information contained in [the post-conviction] affidavits [of family members, friends, and professionals was] simply additional evidence of Williams’ troubled childhood — a topic that counsel presented at the mitigation hearing. . . . That [counsel] chose to call as witnesses those persons directly involved in his upbringing (his father and sister) to establish the conditions of his childhood, rather than relying upon the testimony of more extended family and friends, was a reasonable tactical choice. . . . Even assuming that counsel‘s failure to interview more of Williams’ family members and friends was unreasonable, there is nothing in the record to suggest that had this additional information been presented to the jury their recommendation would have been different.
J.A. at 179-80. With regard to the allegations that Williams‘s attorneys failed to prepare witnessеs for their testimony, the district court held that “there is no minimum number of meetings between counsel and witnesses necessary to prepare
Finally, the district court held that the presentation of mitigating evidence by Williams‘s attorneys was not ineffective. In so doing, the district court noted that Williams‘s attorneys presented two theories of mitigation, that Williams‘s troubled childhood had led him to a life of crime and that the criminal justice system had let Williams down by not rehabilitating him. The district court further stated that “Williams himself thwarted the force of these arguments by refusing to disclose any relevant information.” J.A. at 184. The district court conceded the weaknesses of the pre-hearing investigation and the presentation of mitigating evidence, however, stating:
In the end, the Court agrees that the defense presented little (if any) relevant mitigating evidence to the jury at the hearing. However, this absence resulted more from the lack of such evidence than from the ineffectiveness of Williams’ counsel. To be sure, defense counsel could have been more thorough in the pre-hearing investigation and the presentation of evidence. The defense theories of mitigation could have been better developed. Nevertheless in light of the absence of any mitigating evidence, the Court concludes that even if counsel‘s performance ‘fell below an objective standard of reasonableness,’ there is not ‘a reasonable probability
that, but for counsel‘s unprofessional errors, the results of thе proceeding would have been different.‘”
J.A. at 185 (citing Strickland, 466 U.S. at 688, 694).
II. ANALYSIS
After careful review, I conclude that the Ohio Court of Appeals’ decision on Williams‘s claim of ineffective assistance of counsel during the sentencing phase constituted an unreasonable application of clearly established Supreme Court precedent. In my opinion, although the Ohio Court of Appeals correctly identified the governing legal principles in this case, it then unreasonably applied them to the facts. In concluding that the performance of Williams‘s attorneys was not deficient because the attorneys had a theory of mitigation and presented some (although very little) evidence in support of that theory to the jury, the Ohio Court of Appeals misunderstood the purpose of allowing a capital defendant to present mitigating evidence at his sentencing hearing. In capital cases, the outcome of a sentencing hearing turns upon the weight of the competing evidence presented by the parties. It is a simple matter of weighing aggravating factors against mitigating factors. Thus, Williams‘s attorneys were obligated to do more than simply think of a theory and present sparse evidence in support in order to provide effective assistance of counsel to Williams in his sentencing hearing; they also needed to investigate and gather facts to support that theory and to present the theory in a coherent manner. It was objectively unreasonable for the Ohio Court of Appeals to conclude, without any analysis whether Williams‘s attorneys were deficient in collecting readily available evidence of mitigating factors, that Williams‘s attorneys provided him effective assistance of counsel during the sentencing phase of his trial. In other words, the Ohio Court of Appeals was objectively unreasonable in failing to recognize that the affidavits introduced in the post-conviction proceedings revealed the failure by Williams‘s attorneys adequately to investigate his background for meaningful mitigating factors and to prepare mitigation witnesses for their testimony during
A. Analysis Of Pre-Hearing Investigation
First, I believe that the Ohio Court of Appeals unreasonably determined that Williams did not demonstrate that his attorneys’ pre-hearing investigation and preparation fell below an objective standard of reasonableness. At the outset, I note that the lack of investigatory actions by Williams‘s attorneys cannot reasonably be considered a “strategic choice[] made after thorough investigation of law and facts relevant to plausible options.” Strickland, 466 U.S. at 690 (emphasis added). The investigation by Williams‘s attorneys was anything but thorough, consisting solely of one thirty-minute interview with Williams‘s father before the sentencing hearing; one five-minute discussion with Williams‘s sister Deborah, just immediately before she gave her testimony at the hearing; an interview of unspecified time with the mother of one of Williams‘s childhood friends,3 and a request for “a very limited psychiatric evaluation from the Cleveland Court Clinic [in 1983] that did not meet the usual standards of investigation for a mitigation psychiatric/psychological evaluation.” J.A. at 674 (Aff. of Dr. Nancy Schmidt-Goessling). To conclude that such investigatory actions were constitutionally adequate is not only completely erroneous but objectively unreasonable. After all, the very core of a capital sentencing hearing is the jury‘s balancing of evidence of mitigating and aggravating factors. If only a minimal investigation is completed by defense counsel to gather evidence of mitigating factors, then there is nothing to place in the balance before the jury to the tip the scales in favor of a life sentence.
Furthermore, I do not believe that there is any basis for concluding that the attorneys’ decisions limiting which family members to interview or the attorneys’ failure to request pertinent records concerning Williams‘s psycho-social and intellectual development resulted from the exercise of reasonable professional judgment or sound strategy. Cf. Williams, 529 U.S. at 395-96 (noting the importance of the defendant‘s school and juvenile records). Dr. Nancy Schmidt-Goessling, a psychologist who was familiar with the type of preparation required in capital cases, asserted in her affidavit of January 1988 that, according to the standards at the time:
Any preparation for a capital case should involve obtaining extensive background of the defendant including the defendant‘s developmental experiences, the family of origin‘s functioning and dynamics, the parenting capacities of the defendant‘s parents, the defendant‘s intellectual functioning, including but not limited to academic and work performance, the defendant‘s work capacities and experiences, the defendant‘s ability to relate to others both in intimate and social situations, the defendant‘s sexual and marital history, the defendant‘s medical history, and the defendant‘s psychological functioning across his lifetime.
J.A. at 672-73 (Aff. of Dr. Nancy Schmidt-Goessling, ¶ 7). Dr. Schmidt-Goessling further explained that such information should be pursued through “extensive interviews of family members, including aunts and uncles, grandparents, cousins, etc. as well as the nuclear family” and that “records should be obtained from schools, treatment sites, courts and employers.” J.A. at 673 (Aff. of Dr. Nancy Schmidt-Goessling, ¶ 8). According to Dr. Schmidt-Goessling, in this case, defense counsel failed adequately to research Williams‘s background for possible mitigating information by failing to (1) make collateral contact with Williams‘s family, friends, teachers, employers, and significant others; (2) obtain records of prior treatment sites for Williams and Williams‘s school and work records; and (3) obtain an independent psychiatric/psychological evaluation of Williams. J.A. at 673-74; see also J.A. at 697-702 (1988 Aff. of Gerald G. Simmons, Esq.) (noting that the performance of Williams‘s attorneys at the sentencing phase constituted ineffective assistance of counsel because the attorneys failed to investigate Williams‘s family life and failed to hire a psychological expert to explain Williams‘s behavior in light of psycho-social development); J.A. at 1096-1100 (1987 Aff. of Dr. Susan D. Schorr) (asserting that Williams‘s attorneys failed to develop a complete life history of Williams through interviews, failed to collect necessary records or documentary evidence, and “further failed to present to this licensed
In light of all this evidence, the attorneys’ preparation was wholly inadequate. Williams‘s attorneys not only failed to speak with his core family members, who were willing to testify on his behalf, but also failed to make efforts to obtain records to learn and gather the background information necessary to support their own theories of mitigation. Indeed, the attorneys did not even attempt to contact Williams‘s mother, nor did they contact his other sister Pamela, or his mother‘s sister and his aunt Shirley Boykin, who had lived with Williams and his family at one point, all of whom asserted that they would have testified on Williams‘s behalf if asked.
Had Williams‘s attorneys simply discussed Williams‘s life with core family members such as his mother, his sister Pamela, and his aunt Shirley, and interviewed Williams‘s sister Deborah for more than a mere five minutes, they likely would have discovered the following possible mitigating information: (1) that Williams‘s mother often chose abusive partners, including Williams‘s stepfather, and that Williams witnessed some of this abuse, including at least one instance in which Williams‘s mother was hospitalized, see J.A. at 676 (Schmidt-Goessling Aff.), 1064 (Deborah Williams Aff.), 1129 (Shirley Boykin Aff.); (2) that Williams‘s father smoked marijuana and sold large quantities of marijuana in his store, see J.A. at 1065 (Deborah Williams Aff.), 1124 (Robert Thomas Aff.), 1129 (Shirley Boykin Aff.); (3) that Williams was using drugs as serious as cocaine by age thirteen, see J.A. at 1065 (Deborah Williams Aff.); (7) that only one of the five Williams children had graduated from high school, see J.A. at 1071 (Bonnie Williams Aff.), 1102 (Pamela Williams Aff.); and (8) that, as a child, Williams was whipped as often as three or four times a week by his father, including with a switch, belt, and extension cord, see J.A. at 1104 (Pamela Williams Aff.). The attorneys may have also obtained information from Williams‘s relatives that is in direct contradiction to the harmful testimony given by Lewis
Finally, had Williams‘s attorney taken the time to obtain Williams‘s school, juvenile, and treatment records,4 they would have discovered that Williams‘s mother had sought psychological treatment for him at the Child Diagnostic
In sum, had the attorneys met the minimal standards of investigation necessary to obtain relevant mitigating information, see Kimmelman, 477 U.S. at 384, they could have presented relevant mitigating information to the jury. The attorneys failed, however, to perform an adequate investigatiоn and instead unreasonably limited the number of persons they interviewed and neglected to prepare even those persons for their testimony at the sentencing hearing. Therefore, I would hold that Williams has sufficiently demonstrated that his attorneys’ inadequate investigation and preparation of mitigation evidence constituted deficient performance under the first prong of the Strickland test. See, e.g., Williams, 529 U.S. at 395 (concluding that the state supreme court‘s decision was contrary to and an unreasonable
B. Presentation Of Evidence During Sentencing Phase
I also believe that Williams has sufficiently demonstrated that his attorneys’ presentation of evidence during the sentencing phase was inadequate under the performance prong of the Strickland test. Specifically, I believe that, as a result of their poor investigation and preparation of mitigating evidence, Williams‘s attorneys gave an objectively unreasonable presentation of the mitigating evidence during the sentencing phase of Williams‘s trial.6
To begin, the opening statement of Williams‘s counsel was at best neutral, consisting in its entirety only of the following three sentences, in which counsel stated:
Ladies and gentlemen, there will be a number of witnesses who will be before you to give some testimony with reference to the background of Lewis Williams, Jr. I will ask you to listen to their testimony carefully. It is our view that it is extremely important that you do and that you weigh it as you do other evidence and follow the instruction that the Court will give you about Lewis Williams, Jr. Thank you.
J.A. at 2080. Inexplicably, counsel did not even begin the sentencing hearing with a request for mercy on Williams.
More importantly, I believe that, as a result of the attorneys’ failure to investigate Williams‘s background properly, they failed to present meaningful evidence to support their two theories of mitigation during the sentencing phase: (1) that Williams‘s troubled childhood had led him to a life of crime;
C. Prejudice
Finally, I believe that the Ohio Court of Appeals unreasonably applied the legal standards of Strickland when it determined that Williams failed to show that he was prejudiced by his counsel‘s performance during the sentencing phase. In my opinion, the performance of Williams‘s attorneys during the sentencing phase was so
As I previously noted, a jury must be permitted to consider mitigating evidence proffered by a defendant during the sentencing phase of a capital trial, and defense counsel must meet minimal standards of investigation to obtain such evidence for the jury. Lockett, 438 U.S. at 604; Kimmelman, 477 U.S. at 384 (relying on Strickland). In this case, Williams‘s attorneys failed to meet these minimal standards of investigation by unnecessarily limiting their investigation to two family members, one family friend, and one report from the court clinic. As I explained above, this, in effect, deprived Williams of the opportunity to present any valuable mitigating evidence, all of which was easily accessible, to the jury during the sentencing phase and left nothing for the jury to weigh against the prosecution‘s proof of aggravating factors. Given the wealth of information that the attorneys could have presented regarding Williams‘s troubled life, see supra, and the ease with which the attorneys could have obtained such information, it is difficult to imagine how the attorneys’ failure to conduct a proper investigation and then present meaningful mitigating evidence did not prejudice Williams. After all, the very reason for allowing a capital defendant to present mitigating evidence to a jury is so that the jury may consider and weigh these factors against the aggravating circumstances of the defendant‘s offense to determine whether the defendant‘s life should be spared. In this case, although defense counsel had two theories of mitigation, they failed to provide readily available factual support for both of their theories and, as a result, essentially left the jury with no choice but to recommend the death penalty.
Not only did Williams‘s attorneys fail to present any meaningful mitigating evidence at the sentencing phase, they also placed harmful and damaging evidence before the jury. For example, because the attorneys failed to explain the purpose of mitigating evidence to Williams‘s father, Lewis Sr. gave damaging testimony during the sentencing hearing
It was an objectively unreasonable conclusion to hold that the presentation of such theories of mitigation by defense counsel without any adequate investigation into, preparation of, and development of the factual foundation for the theories constituted effective assistance of counsel. As the Supreme Court noted in Strickland, “[t]hat a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command.” Strickland, 466 U.S. at 685. The lawyer must assist the defendant in his trial and be an advocate for his cause. Id. at 688.
In essence, in this case where counsel neglected to perform an adequate investigation of Williams‘s background to identify mitigating evidence and prepare witnesses, and, as a result, essentially presented no mitigating evidence to the jury for Williams, it was an unreasonable application of the law established in Strickland to hold that there was no reasonable probability that the jury would have arrived at a different outcome had counsel‘s performance not been deficient. In fact, I believe that this case is strikingly similar to Williams v. Taylor, in which the Supreme Court concluded that the Virginia Supreme Court‘s decision regarding defense counsel‘s performance during the sentencing phase and the
In Williams v. Taylor, Justice Stevens, writing for six Justices in Part IV of his opinion, held that the defendant Terry Williams had been prejudiced by his counsel‘s failure to investigate and uncover “extensive records graphically describing [Terry] Williams’ nightmarish childhood,” including the facts that “that [Terry] Williams was ‘borderline mentally retarded’ and did not advance beyond the sixth grade;” that “[Terry] Williams’ parents had been imprisoned for the criminal neglect of [Terry] Williams and his siblings, that [Terry] Williams had been severely beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents’ incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents’ custody“; that Terry Williams was commended for helping to crack a prison drug ring and for returning a guard‘s missing wallet; and that Terry Williams was considered by prison officials as the inmate “‘least likely to act in a violent, dangerous or provocative way.‘” Williams, 529 U.S. at 395-96 (citation omitted). Justice Stevens further wrote that such failure to investigate was not because of any stratеgic calculation and that the state supreme court unreasonably applied clearly established Supreme Court precedent to the facts of the case by failing to “evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding — in reweighing it against the evidence in aggravation.” Id. at 397-98. Finally, Justice Stevens concluded that “the graphic description of [Terry] Williams’ childhood, filled with abuse and privation, or the reality that he was ‘borderline mentally retarded,’ might well have influenced the jury‘s appraisal of his moral culpability.” Id. at 398. Likewise, Justice O‘Connor, who concurred on the Strickland analysis just described and who was also joined by Justice Kennedy in Part III of her opinion, also concluded that counsel for Terry Williams was constitutionally ineffective on similar grounds and that state supreme court‘s determination
In this case, the Ohio Court of Appeals displayed its failure to consider the totality of the mitigating evidence. Had Lewis Williams‘s attorneys conducted a proper investigation, they would have uncovered mitigating evidence that is quite similar to that noted in Williams v. Taylor, including molestation at five or six years old; Williams‘s witnessing the serious, physical abuse of his mother by his stepfather; the use of cocaine as early as thirteen years old; the regular sale of marijuana by Williams‘s father; frequent beatings of Williams with objects such as extension cords; Williams‘s failure to сomplete schooling higher than the ninth grade; and Williams‘s low IQ.7 Like the six-justice majority in Williams v. Taylor, I believe that a description of Lewis Williams‘s childhood, filled with sexual abuse and drug use and exposure to drugs at a young age, and parental neglect might well have influenced the jury‘s appraisal of Williams‘s moral culpability. In sum, I would hold that Williams was prejudiced by his counsel‘s deficient performance during the sentencing phase and that it was objectively unreasonable for the Ohio Court of Appeals to conclude under Strickland that there was no reasonable probability that the jury would have
III. CONCLUSION
I believe that the Ohio Court of Appeals unreasonably applied clearly established Supreme Court precedent when it held that Williams had not satisfied either the performance or the prejudice prongs of the two-part Strickland test. In my opinion, Williams satisfied these two prongs by demonstrating that his attorneys neglected to conduct a proper investigation into his background, failed to inform mitigation witnesses of the purpose of presenting mitigating evidence during the sentencing phase and to prepare such witnesses for their testimony, and gave a counterproductive presentation of mitigation theories at trial. Therefore, I would reverse the district court‘s decision to deny habeas corpus relief and would issue a writ of habeas corpus on the ground that Williams was denied effective assistance of counsel at the sentencing phase of his trial. I respectfully dissent.
Notes
Anderson told me after talking to the police that he knew about [Williams] because the police told him about the case. Anderson said that he might as well sink [Williams] for what [Williams] had done to him.
. . . .
Anderson told [Williams] that . . . the prosecutors were going to give him, Anderson, a bill, meaning lesser time. Anderson said [Williams] should nevеr have crossed him.
. . . .
After Anderson got back from court, [Williams] told Anderson that he had lied. Anderson said, “Better you than me.”
J.A. at 880. The majority contends that Williams presented no evidence that his counsel did not meet the professional standards of the time. See maj. op. ante at 31. As noted above, however, Williams presented a 1988 affidavit from Dr. Schmidt-Goessling, which indicated that, according to the standards of the time, “records should [have been] obtained from schools, treatment sites, courts, and employers” to prepare for Williams’ sentencing hearing. J.A. at 673 (Schmidt-Goessling Aff.) (emphasis added). See also Williams, 529 U.S. at 395-96 (noting in the review of a conviction that became final in 1988 that the defendant‘s school records contained mitigating evidence).The majority also notes that there is no evidence that Williams‘s attorneys failed to obtain Williams‘s school and juvenile records. However, even if Williams‘s attorneys had these records in their possession, there is no strategic reason for electing not to present at least Williams‘s school records, which consisted of information on his low IQ of 76, even in light of Williams‘s lack of cooperation and especially since such evidence may have been relevant to showing a mental defect or disease, one of the mitigating factors under
- the merits of the factual dispute were not resolved in the state hearing;
- the state factual determination is not fairly supported by the record as a whole;
- the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing;
- there is a substantial allegation of newly discovered evidence;
- the material facts were not adequately developed at the state-court hearing; or
- for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.
[A]lthough Williams alleges that his counsel were ineffective for not requesting the assistance of a ‘psychological expert necessary to explain [his] behavior in light of his psycho-social development,’ his own prior conduct likely cautioned counsel against such course. During a pre-trial competency hearing, Williams had refused to cooperate with psychologists. In light of this prior conduct, counsel may have reasonably determined not to request any additional (and perhaps futile) expert assistance; instead Williams himself could tell the jury about the conditions of his childhood and its effect upon him, thereby placing his own personal tragedy into consideration and perhaps evoking sympathy from jurors.
To overcome this hurdle, the dissent looks to our recent decision in Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000), a pre-AEDPA case. The AEDPA, however, prohibits us from relying on such cases--we are only permitted to rely on Supreme Court cases decided at the time Williams‘s conviction became final. Williams, 529 U.S. at 388-89. We cannot agree, moreover, that Williams‘s case approaches the facts in Williams v. Taylor, on which the dissent relies.