For the Week of: 12/28/2008 Tenth Circuit affirms denial of habeas relief to Oklahoma death row inmate. On December 31, 2008, the Tenth Circuit (Kelly with Tacha and Holmes) affirmed the denial of Richard Tandy Smith’s habeas petition. Smith v. Workman, ___ F.3d ___, 2008 WL 5412408 (10th Cir. Dec. 31, 2008). Smith’s first claim was that trial counsel was ineffective in failing to request a mental health evaluation pursuant to Ake v. Oklahoma, for purposes of the mitigation phase of the trial. Although the prosecutor in Smith’s case did not present psychiatric evidence in support of its future dangerousness allegation, Smith contended that Ake requires appointment of expert psychiatric assistance whenever any evidence of future dangerousness is introduced. The panel addressed the claim de novo because it had not been addressed on the merits by the state court. (The state court had ruled that the claim was procedurally barred because it was not raised on direct appeal. The panel adhered to circuit precedent finding the procedural rule at issue inadequate to preclude federal review where a claim required additional extra-record fact development.) The panel conceded that in 1991 the Tenth Circuit had interpreted Ake as extending to the situation in Smith’s case. But that ruling came after Smith was tried and sentenced to death. In addition, at the time of Smith’s trial Oklahoma courts had concluded that Ake was limited to cases where the prosecution put on expert psychiatric evidence to show future dangerousness. Although the Tenth Circuit had concluded in a separate case that a trial court erred when refusing to extend Ake to a defendant like Smith in the relevant time period, this did not resolve the question posed here – whether Smith’s attorney acted unreasonably in failing to argue for an extended interpretation of Ake given the unfavorable case law in existence at the time. Again adhering to circuit precedent, the panel ruled that while it would be ineffective assistance to not make a request for an Ake expert today even if the prosecution did not proffer psychiatric evidence, it was not ineffective assistance at the time of Smith’s trial. Smith raised a substantive Ake challenge concerning the denial of expert assistance at the guilt-innocence phase of the trial. The state court’s procedural bar of the claim due to Smith’s failure to raise it on direct appeal was deemed adequate to foreclose federal review. But because Smith alleged that appellate counsel was ineffective for not raising the claim, the panel nevertheless addressed it. Again, because the state court did not reach the merits, the claim was reviewed de novo. The district court had found that Smith had never in fact requested a mental health expert for trial purposes. Such a finding, according to the panel, was not clearly erroneous and required rejection of the ineffective assistance of appellate counsel claim. The panel then turned to Smith’s claim that trial counsel was ineffective in failing to adequately develop and present mitigating evidence. Although the mitigation presentation took only six pages of transcript, the panel nevertheless concluded that trial counsel had not performed deficiently. It noted that counsel interviewed Smith between 50 and 100 times and his family members 3 to 10 times. And “[a]lthough [trial counsel] asked specific, detailed questions about child abuse and addiction because he knew of the natural tendency to hide such information, neither [Smith] nor [Smith’s] family told [trial counsel] the information that [Smith] later provided to the [post-conviction] psychiatrists.” (Citation omitted.) Further, Smith never told trial counsel about hearing voices or that he had used methamphetamine and crank, including shortly before the capital offense. Indeed, Smith and his family had denied that Smith had used hard drugs. Nor was counsel alerted to any head injury. While records existed about Smith’s history of drug and alcohol use, counsel could not be faulted for failing to obtain them in the absence of a showing that he had reason to believe they might lead to mitigating evidence. (The panel also observed that had the records been used, they would have bolstered the prosecution’s future dangerousness argument.) Counsel was aware of information about Smith’s “reduced mental abilities,” and acted on this information by requesting a competency evaluation. Counsel also attempted to follow up on the fact that Smith had been treated for mental illness but was only able to obtain records from one facility regarding admittance and discharge. Counsel personally paid for two investigators, one of whom held a degree in psychology and who assisted with mitigation issues. On this record, the panel could not find trial counsel ineffective for failing to obtain the information Smith and his family provided to post-conviction experts given that Smith and his family failed to provide it to counsel. Finally, the panel declined to reach the merits of Smith’s Brady claim on the ground that it was procedurally defaulted. (The state court applied a procedural bar because the claim had not been raised on direct appeal.)

For the Week of: 12/21/2008 Fourth Circuit affirms denial of South Carolina death row inmate’s habeas petition. Last week, the Fourth Circuit (Agee with Niemeyer and Traxler) in an unpublished opinion affirmed the denial of Thomas Ivey’s habeas petition. Ivey v. Ozmint, 2008 WL 5262308 (4th Cir. Dec. 17, 2008). The first claim concerned the trial court’s refusal to excuse a juror Ivey alleged was biased in favor of a death sentence. The state court’s finding that the juror was impartial was entitled to a presumption of correctness that the panel concluded Ivey had failed to rebut by the requisite clear and convincing evidence. While Ivey pointed to a portion of the voir dire transcript where the juror expressed a preference for a death sentence, he ignored the segments where she indicated that she could adhere to the trial court’s instructions and could arrive at the appropriate sentence after considering all of the evidence. In the panel’s view, the state court’s rejection of the claim did not involve an unreasonable determination of the facts in light of the evidence presented. The next claim was that one of Ivey’s trial attorneys labored under a conflict of interest. The factual premise for the claim was a letter written by the attorney, uncovered after trial, in which the attorney successfully moved to withdraw from representing one of the co-defendants on conflict of interest grounds because of the attorney’s personal friendship with the victim. In state post-conviction proceedings, however, it was found that the letter was factually inaccurate and that there was no personal relationship between the attorney and the victim, a police officer. Because Ivey did little more than point to the letter to support his conflict of interest allegation, the panel ruled: “Ivey has fallen far short of rebutting by clear and convincing evidence the state court’s determination that [counsel] had no personal relationship with [the victim], and therefore no actual conflict of interest. The state habeas court’s determination was thus not ‘an unreasonable determination of the facts in light of the evidence presented.’” Finally, the panel found that § 2254(d) precluded relief on Ivey’s ineffective assistance of appellate counsel claim. Ivey had alleged that appellate counsel performed deficiently in failing to raise a confrontation clause violation based on the admission at the sentencing phase of prior testimony from a codefendant that had been given at Ivey’s sentencing proceeding in a separate capital murder case. The state court had rejected the claim on the ground that the testimony was not barred by the Ohio v. Roberts line of cases that was applicable at the time of the appeal.

For the Week of: 12/14/2008 Sixth Circuit affirms denial of relief to Tennessee death row inmate On December 18, 2008, the Sixth Circuit (Boggs with Norris; Moore dissenting in part) affirmed the denial of Stephen West’s habeas petition. West v. Bell, ___ F.3d ___, 2008 WL 5245683 (6th Cir. Dec. 18, 2008). Although the district court had denied a COA on any issue, the court of appeals issued a COA on the following: (1) Whether the state court was unreasonable in its determination of the facts or its application of the law when it dismissed petitioner’s claim that his counsel rendered ineffective assistance during the sentencing phase of trial; (2) Whether the trial court improperly excluded the proffered testimony of Libby Wood during the guilt/innocense phase of the trial; (3) Whether the trial court improperly excluded secretly taped conversations between co-defendant Martin and his cellmate; and (4) Whether the prosecutor engaged in various instances of misconduct that prejudiced the outcome of the trial In addressing the ineffective assistance of counsel claim, the panel majority first ruled that the district court did not abuse its discretion in refusing to expand the record to consider supplementary evidence that had not been presented in state post-conviction proceedings. Therefore, such evidence was not considered by the panel majority in addressing the merits of the claim. Because the state post-conviction court had applied an erroneous prejudice standard in finding no constitutional error, § 2254(d) was not an impediment to relief. The panel majority, however, concluded that West was not deprived of the effective assistance of counsel at the sentencing phase of his trial. The most significant error alleged by West was that counsel failed to investigate West’s past abuse. But, the panel majority noted, evidence on the issue of abuse was contested. While a sister claimed to have notified counsel about West’s history of abuse, both trial attorneys strongly denied this had occurred. Further, although the post-conviction expert found that abuse was suggested by his evaluation, the trial expert disagreed and also testified that West had expressly denied being abused when asked about it. The panel majority further found that counsel had engaged in a fair amount of mitigation investigation, including interviewing West’s family multiple times and meeting individually with a sister repeatedly. School records had been subpoenaed by counsel and his military records were obtained. In addition, counsel had investigated West’s mental state, hiring an expert to evaluate West’s competency and sanity. Notably to the panel majority, nothing in the resulting evaluation led counsel to suspect the alleged “long-term personality disorder” found by the post-conviction expert many years later. Also, trial counsel had attempted to secure funding for a second expert to assess whether there was a duress defense to the charged rape. The request was denied as a result of West’s earlier objection to the trial court’s sua sponte ordering of a psychological examination to determine competency. Thus, according to the panel majority, “West’s lack of cooperation is part of the reason why his counsel did not discover some potentially mitigating evidence.” The panel majority also found that West failed to establish prejudice, even assuming deficient performance by counsel. Life history records would not, in the majority’s view, have affected the verdict given the good character evidence that had been presented. And while evidence of West’s abusive background could have engendered pity and supported West’s claim that the co-defendant was the dominant actor, the panel majority observed that the evidence could have had the opposite effect, leading the jury to find that “West’s past abuse made him the kind of person who could have raped and tortured a fifteen year-old girl.” As for excluded evidence at the guilt-innocence phase, the panel majority ruled that the state court’s decision finding no constitutional error was not contrary to or an unreasonable application of Chambers v. Mississippi, 410 F.3d 284 (1973). As for repeated remarks by the prosecutor to the effect that the law determined the sentence to be imposed, the panel majority found: “[I]t was not unreasonable, under Caldwell and Brecht, for the Tennessee Supreme Court to conclude that the prosecutorial error in regard to minimizing the role of the jury did not have a ‘substantial and injurious effect or influence in determining the jury’s’ imposition of West’s capital sentence.” West’s complaint about other comments by the prosecutor were not, as argued by the warden, procedurally defaulted. Although West had failed to cite federal law in arguing that some of the remarks constituted misconduct, his contention that they were “highly prejudicial and improper” evoked language used by the Sixth Circuit when addressing federal claims of prosecutorial misconduct. Nevertheless, the panel majority concluded the contested remarks did not amount to a due process violation. Judge Moore dissented regarding the ineffective assistance of counsel at sentencing claim, finding that West established a constitutional violation under the Strickland standard as explained in Wiggins and Rompilla. As for West’s guilt-innocence related claims, Moore concurred only in the judgment.

Eleventh Circuit affirms denial of Georgia death row inmate’s habeas petition On December 18, 2008, the Eleventh Circuit (Pryor with Birch and Barkett) affirmed the denial of Mark McClain’s habeas petition. McClain v. Hall, ___ F.3d ___, 2008 WL 5247931 (11th Cir. Dec. 18, 2008). The panel found: “The issue in this appeal is whether the Superior Court of Butts County, Georgia, unreasonably applied clearly established federal law when it ruled that Mark Howard McClain failed to prove ineffective assistance of trial counsel in the investigation of mitigating evidence for the penalty phase of McClain’s trial. McClain was sentenced to death for a murder he committed during an armed robbery. Counsel met with McClain between twenty and thirty times before trial, interviewed McClain’s father and sister, and secured the help of a mental health expert. In his petition for a writ of habeas corpus, McClain alleged that his trial counsel was ineffective for failing to discover and present mitigating evidence regarding his criminal history, childhood abuse, substance abuse, neurological disorder, and good character. The Georgia court denied McClain’s petition because his experienced counsel knew of some of the evidence but reasonably did not pursue it further, counsel reasonably attempted but failed to obtain other evidence, and McClain failed to establish prejudice about any remaining issues. Because that ruling was not objectively unreasonable, we affirm the denial of McClain’s petition.” Among the specific findings by the panel were: (1) the presumption that trial counsel performed reasonably was “especially strong in this appeal because McClain’s lead counsel had practiced as a criminal defense lawyer for more than twenty years and had served as counsel in over one hundred murder cases, ten of which were capital cases.”; (2) McClain’s argument that his trial counsel was ineffective for failing to discover and present mitigating evidence that McClaim’s girlfriend instigated the robbery leading to the murder and that she and her nephew testified in exchange for a grant of immunity was outside the scope of the certificate of appealability”; (3) testimony by codefendants in prior robberies minimizing McClain’s role in those crimes would have been “outweighed heavily by the evidence of McClain’s culpability for those crimes”; (4) the state court reasonably concluded that trial counsel was not deficient in failing to uncover abuse given the failure of McClain and his father and sister to reveal that such abuse had occurred; (5) counsel could reasonably have relied on the report of the mental health expert that did not mention child abuse and acted reasonably in not questioning the expert about whether it was possible McClain had been abused; (6) “McClain’s counsel could have reasonably concluded that it would be better to argue at sentencing, as McClain’s counsel did, that the shooting was reflexive and unintentional, without presenting more evidence of McClain’s substance abuse”; (7) whether the absence of evidence of substance abuse was due to inattention rather than strategy was irrelevant under the Eleventh Circuit’s “objective” evaluation of counsel’s performance; (8) trial counsel reasonably relied on the retained expert’s opinion that McClain suffered from “Antisocial Personality Disorder” but did not suffer from a frontal lobe disorder or from any “significant emotional disorder”; (9) counsel’s failure to inform the expert about McClain’s childhood abuse and substance disorder did not result in the expert failing to diagnosis a frontal lobe disorder given that the expert was aware of both the substance and childhood abuse; (10) the state court did not unreasonably find no prejudice from trial counsel’s failure to present evidence about McClain’s good character “[i]n the light of the seriousness of McClain’s crime”; and (11) although the COA used broad language regarding counsel’s alleged failure to adequately investigate mitigating evidence, this did not mean that McClain could rely on evidence that McClain’s girlfriend instigated the robbery-murder or that she and a nephew received benefits in exchange for their testimony where McClain failed to reference such evidence as part of the sentencing ineffectiveness claim in state or federal district court, or in the COA requests. Judge Barkett authored a concurring opinion. She reiterated that trial counsel’s duty to investigate potential mitigation “is not limited by the amount of information that a defendant chooses to reveal.” She further observed that “a lawyer must explain what kind of evidence he or she is looking for or ask questions that would elicit such evidence. Simply asking a defendant for information about his or her life without any indication of what counsel is, or should be, looking for does not inform a defendant of the relevance of certain mitigating evidence that a defendant might not think of disclosing or want to disclose without having a reason to do so.” On the facts before her, however, Barkette was unable to find the state court’s ruling on the ineffectiveness claim to be unreasonable. She explained: “Counsel for McClain were extremely experienced and had many conversations with the defendant, his father, and his sister. Additionally, counsel hired a mental health expert to evaluate McClain and search for mitigating evidence. The mental health expert, who understood the relevance of evidence of abuse, conferred with counsel in preparation for his testimony and did not deem the abuse he discovered significant enough to be relevant to his testimony.”

Eleventh Circuit reverses grant of habeas relief to Florida death row inmate. On December 18, 2008, the Eleventh Circuit (per curiam - Carnes, Wilson, Pryor) reversed a grant of habeas relief to George Porter, Jr., on claims that he was constructively denied counsel at a competency hearing and that he was denied the effective assistance of counsel at the penalty phase of his capital trial. Porter v. Attorney General, State of Fla., ___ F.3d ___, 2008 WL 5250690 (11th Cir. Dec. 18, 2008). Porter was charged with killing his ex-girlfriend and her new boyfriend, as well as assaulting his ex-girlfriend’s daughter. Although there was not a transcript of the initial Faretta inquiry, it appeared that the trial court determined that Porter was competent to waive counsel. His previously appointed attorney was then designated standby counsel. Later, the State moved to have Porter evaluated for competence. Two court-appointed experts conducted evaluations and found Porter was competent. At the “hearing” to determine competency, Porter represented himself and stipulated that the reports would be received in lieu of live testimony. Porter was again found competent. Porter ultimately plead guilty to the charges and standby counsel became full counsel at the sentencing phase. The sole defense witness who appeared in person was Porter’s ex-wife and portions of a deposition of Porter’s invalid neighbor were read to the jury. Porter was sentenced to death for the murder of his ex-girlfriend and to life for the second killing. The panel first ruled that Porter’s claim that he was constructively denied counsel at the competency “proceeding” was unexhausted because in the state post-conviction court his argument had instead been that standby counsel had provided ineffective assistance by failing to advocate Porter’s incompetence. Even if, as found by the district court, Porter “effectively” raised the constructive denial argument in his brief to the state supreme court, this did not suffice to exhaust the claim. This was because Florida law precludes raising a claim for the first time in an appeal from the denial of post-conviction relief. But even assuming the claim was exhausted, the panel found error in the district court’s grant of relief given the absence of clearly established Supreme Court precedent entitling a defendant to counsel at a second competency hearing. “Porter has not, and cannot, point to any clearly established federal precedent existing on February 19, 1991, that specifically imposes a duty on standby counsel to advocate for a pro se criminal defendant who had been previously found competent to waive the right to counsel.” The panel noted, among other things, that the trial court revisted the competency issue only as a precautionary measure, distinguishing Porter’s situation from cases where a defendant was permitted to represent himself despite a court’s doubt about competence. As for the claim of ineffective assistance of counsel at sentencing, the panel first recounted the Florida Supreme Court’s findings regarding the mitigating evidence presented at trial and in post-conviction proceedings. The state court had found that evidence about Porter’s alleged alcohol abuse was “far from conclusion.” Regarding evidence about Porter’s abusive upbringing, the state court believed it would not have been given significant weight given that Porter was 54 years old at the time of trial. While Porter’s military service had many positive aspects, the state court found that the mitigating effect of evidence about his service would have been significantly reduced when his entire record was considered, which included several AWOL incidents and a court martial. Finally, expert testimony about Porter’s emotional and mental condition was largely rejected by the state court which credited instead testimony from the state’s expert. As for aggravating factors, there were three valid ones: (1) the murder was cold, calculated and premeditated; (2) the murder was in the course of a burglary, i.e., Porter had entered the victim’s home to kill her; and (3) Porter “was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” (The third factor referenced the multiple crimes that occurred during the course of the capital offense.) The Florida Supreme Court concluded that the aggravation outweighed the mitigating evidence. The panel then turned from the state decision to that of the district court. It found that the district court had erroneously relied on Justice Stevens’ interpretation of § 2254(d) which had failed to garner support from a majority of the Supreme Court justices. The panel also faulted the district court for overlooking that an “unreasonable” decision is not the same as an incorrect one. Next, the panel concluded that the district court had failed to “properly defer to the Florida Supreme Court’s adjudications and findings of fact.” For example, the district court should have deferred to the state court’s “reasonable” conclusion that evidence of Porter’s abusive childhood was entitled to little weight given his age at the time of the offense. Similarly, because not “unreasonable,” the panel found that the district court owed deference to the Florida Supreme Court’s finding that Porter’s periods of desertion would have diminished the mitigating effect of his military service. And, in light of the state court’s factual findings, it was not unreasonable for it to have concluded that counsel had no duty to further investigate Porter’s mental health. Because, in the panel’s view, “the district court erred by not giving proper AEDPA deference to the Florida Supreme Court’s adjudication and findings of fact relating to Porter’s penalty phase claim,” the grant of habeas relief was reversed.

Tenth Circuit affirms denial of habeas relief to Oklahoma death row inmate. On December 16, 2008, the Tenth Circuit (Briscoe with Lucero; Henry dissenting in part) affirmed the denial of Julius Young’s habeas petition. Young v. Sirmons, ___ F.3d ___, 2008 WL 5220520 (10th Cir. Dec. 16, 2008). Young was sentenced to death for the murders of his girlfriend’s daughter and six year old grandson. First, the panel found that § 2254(d) barred relief on Young’s claim that the victim impact statement read at the sentencing stage violated due process. Next, the panel addressed a claim of ineffective assistance of counsel at the sentencing phase. At trial, no mitigation witnesses were presented, purportedly at Young’s direction, but the prosecution stipulated to a number of mitigating facts: (1) Young was 42 and had been a life-long resident of Tulsa; (2) Young had family, relatives that loved him; (3) Young has been a minister for 11 years; and (4) Young was a veteran and was honorably discharged.. The panel found that de novo review of the ineffectiveness claim was required because the state court considered only a limited record when ruling on the claim on direct appeal and then did not necessarily apply the Strickland standard when it determined that new evidence presented in the rehearing request did not entitle Young to an evidentiary hearing. Further, the state court’s refusal to consider new mitigation evidence submitted with the post-conviction application was not “adequate” to bar federal review. The panel agreed with the district court’s finding that “the investigatory efforts of Young’s trial counsel fell far short of the prevailing standards for capital defense work outlined by the Supreme Court in Wiggins.” This was because “trial counsel spoke briefly with a few unnamed individuals who were presumably Young’s friends or family members. As a result, Young’s trial counsel completed the first-stage proceedings and began the secondstage proceedings generally unfamiliar with nearly all of the potential sources of mitigating evidence from Young’s background. In turn, it is not surprising that trial counsel’s second-stage ‘strategy’ focused simplistically on highlighting ‘the good things that [Young] ha[d] done’ in the past and the ‘belief[s]’ of Young’s friends and family members ‘that he [wa]s not a future danger to the community . . . .’” Turning to the question of prejudice, the panel rejected the warden’s argument that Schriro v. Landrigan governed the case, finding: “Young simply chose to forego the presentation of testimony from the handful of friends and family members that his trial counsel had lined up to testify.” Further, Young had not waived mitigation, but rather had opted to introduce it through stipulation. In light of these circumstances, the panel found it “impossible to predict with any degree of certainty what Young would have done had his trial counsel investigated and prepared to present all of the available mitigating evidence that Young now points to.” Nevertheless, the panel majority was convinced that prejudice was not established. In reaching this conclusion, it observed that the mitigating evidence did not undermine the existence of two or even three aggravating factors. (Rebuttal evidence that the prosecutor would have presented was likely to have supported the future dangerousness aggravator.) Finally, the panel majority found that Young’s mitigating evidence failed to “substantially reduce Young’s ‘moral culpability’ for the two murders.” In reaching this conclusion, the panel characterized Young’s mitigating circumstances as falling within “the realm of an average person” and noted that Young appeared to have had a generally normal and happy childhood. The panel majority was not impressed by an expert’s opinion that the murders were committed while Young was under severe emotional distress given that “the causes of Young’s emotional distress were not substantially out of the ordinary.” In addition, the panel majority believed that the jury could have viewed Young’s reaction to stress as a negative factor. As for another expert’s affidavit, the panel did not find it to provide “a compelling or sympathetic explanation for Young’s violent behavior.” The panel majority found that the dissent’s suggestion that the case be remanded for an evidentiary hearing on prejudice lacked both procedural and substantive support. Procedurally, Young had failed to request a COA on the issue of whether the district court abused its discretion in denying an evidentiary hearing. Substantively, the panel majority had already found that Young’s allegations failed to establish prejudice even when assumed to be true. It further concluded that prejudice was not shown even if the prosecution’s rebuttal evidence was not considered. The panel majority also criticized the dissent as improperly seeking to transform the Strickland analysis from a mixed question of law and fact to a factual issue by having the district court make binding factual findings about the evidence. Finally, regarding Young’s cumulative error claim, the panel found, inter alia, that it could not consider alleged errors raised in claims for which a COA had not issued. Nor could it consider state law errors identified by the state court on direct appeal.

Sixth Circuit affirms denial of habeas relief to Tennessee death row inmate Last week, on December 9, 2008, the Sixth Circuit (Boggs with Siler; Merritt dissenting) affirmed the denial of Gaile Owens’ habeas petition. Owens v. Guida, ___ F.3d ___, 2008 WL 5134955 (6th Cir. Dec. 9, 2008). Owens was sentenced to death for hiring someone to kill her husband. The panel majority ruled: (1) the Tennessee courts reasonably applied Strickland v. Washington by concluding that Owens sabotaged her own penalty phase defense and that counsel’s performance is not deficient when counsel follows a client’s instructions; (2) the Tennessee courts reasonably applied Brady because even if letters between Owens’s deceased husband and his paramour were favorable evidence, and were suppressed by the state, Owens was not prejudiced because she could have presented other evidence of the affair but chose not to do so; and (3) the Tennessee courts reasonably applied Lockett v. Ohio in refusing to admit testimony that Owens had wanted to plead guilty in exchange for a life sentence because no court, let alone the Supreme Court, has held that failed plea negotiations may be admitted at a penalty-phase hearing. Regarding the ineffective assistance of counsel at sentencing claim, the panel majority found that Owens had hamstrung her attorneys from pursuing the best sources of mitigating evidence in the following ways: (1) she refused to testify at either phase of the trial; (2) she refused to cooperate with state physicians who were examining her as a prerequisite for counsel receiving funds for an independent mental health examination that might show battered-wife-syndrome; and (3) she refused to let her attorneys interview her family members or call them to testify on her behalf. In addition, the panel majority agreed with the warden’s argument that evidence that had not been presented to the state court could not be considered in federal habeas proceedings under AEDPA. Noting that Owens’ claim that counsel was ineffective in failing to obtain an independent mental health evaluation had not been certified for appeal, the panel majority concluded that it could not consider the background evidence that was presented in state post-conviction proceedings only through a mental health expert in the panel’s assessment of the claim of ineffective assistance for failing to develop mitigation. The panel majority explained: “Owens must affirmatively prove that she was prejudiced. So, when arguing that certain evidence should have been presented, Owens must show that it could have been presented without the aid of a state-funded mental health expert. She cannot do this by pointing to evidence that is only part of the record because it was introduced through a state-funded mental health expert.” Even considering the mitigating evidence presented through the expert, however, the panel majority found that Owens could not prevail because her post-conviction expert was not “credible” in that his qualifications were “dubious, his sources suspicious, and his testimony subject to contradiction.” Further, according to the panel majority, “[e]ven if one accepts [the expert’s] unverified allegations of trauma, to the extent that those allegations rest on hearsay from Owens or her family, they are irrelevant to Owens’s IAC claim because Owens’s counsel wanted to present the substance of such evidence directly at trial through the testimony of Owens and her family, but Owens refused to cooperate.” Finally, the panel majority noted the multiple ways the expert’s testimony would have been subject to rebuttal. As for a subclaim that trial counsel were ineffective in failing to overcome a hearsay objection to testimony from a psychiatrist who had previously treated Owens for behavioral problems, the state court’s finding of no prejudice was not unreasonable. Although the psychiatrist’s “testimony would have related a harsh childhood,” the panel majority noted that “it would not have established the kind of extreme physical and sexual abuse that Owens later claimed to have experienced. Nor would it have established the kind of childhood that could have made Owens less culpable in the eyes of the jury.” Further, had the psychiatrist offered additional testimony about what Owens had told him, the prosecutor could have brought out unhelpful information such as: (1) Owens saw the psychiatrist because she had been charged with embezzlement; (2) Owens had a tendency to lie; and (3) Owens reported that everything was fine with her husband. Judge Merritt dissented as to all three certified claims, arguing: “The facts about Ryan Owens’ cruel and sadistic behavior toward his wife now make an overwhelming case of domestic violence and psychological abuse in mitigation of the murder case against Gaile Owens. From the beginning, Mrs. Owens’ counsel knew that this was her best — indeed, her only — defense. . . .Before trial, her counsel told the trial court that in his opinion: ‘This case has a meritorious defense in the battered-wife syndrome.’ (App. 120.) The Memphis district attorneys obviously knew that this was the defense theory. But this defense was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor and the complete failure of defense counsel to conduct a proper investigation of Ryan Owens’ sadistic behavior toward his wife.” Merritt went on to “discuss the Memphis prosecutor’s cover-up of exculpatory evidence first,” then “defense counsel’s failure to investigate and develop the defense,”and “finally the refusal of the Memphis trial court to allow in evidence one of [Owens’] best lines of mitigation testimony.”

For the Week of: 11/16/2008 Supreme Court dismisses cert petition in capital habeas case following argument On November 17, 2008, the Supreme Court dismissed Edward Bell´s certiorari petition as improvidently granted. Bell v. Kelly, 07-1223. Oral argument had been heard in the case last week. The question the Supreme Court had granted certiorari to decide was: Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims “adjudicated on the merits” in state court, to evaluate a claim predicated on evidence the state court refused to consider and that was received for the first time in a federal evidentiary hearing?

Sixth Circuit affirms denial of relief to Ohio death row inmate Last week the Sixth Circuit (Rogers with Cole concurring in a separate opinion and Merrick dissenting) affirmed the denial of Roderick Davie’s habeas petition. Davie v. Mitchell, ___ F.3d ___, 2008 WL 4862364 (6th Cir. Nov. 12, 2008). The propr disposition of a Miranda claim is what divided the panel. Although Judge Rogers first found that the claim had to be rejected under § 2254(d), he nevertheless reviewed the claim de novo and still found that relief had been properly denied. While Davie had earlier terminated conversations with the authorities, it was Davie who initiated the contact that ultimately led to the confession. And it was Davies, without influence by the authorities, who posited a question showing a willingness and desire to talk generally about the case. After Davie was re-advised of his Miranda rights, he made the inculpatory statements at issue. Judge Rogers found that Davie’s waiver of his rights was knowing and intelligent under the totality of circumstances. That Davie had repeatedly refused to initial the provisions on the Miranda form waiving his rights despite acknowledging his understanding of them did not create a requirement that Davie be informed that such a refusal would not in and of itself prevent statements from being used against him. In addition, the authorities in this case did attempt to clarify why Davie would not sign the waiver form even though he had indicated he was aware of his rights and was willing to speak. Davie’s response did not undermine the finding that his waiver of rights was knowing and intelligent. That authorities had initiated contact with Davie three times before the session that led to the confession did not render the confession inadmissible. Judge Rogers emphasized: “during each interaction, officers fully informed Davie of his Miranda rights at the outset, immediately ceased questioning after Davie expressed his desire to remain silent, . . .and there is no evidence in the record that the officers engaged in any other conduct to persuade Davie to change his mind.” That the questioning sessions did not involve wholly separate crimes was not dispositive of the constitutional issue. Davie’s challenge to a jury instruction that he alleged unconstitutionally required a unanimous acquittal of the death penalty before a lesser sentence could be considered was procedurally defaulted. (It had been raised in a second state post-conviction petition that was found by the state court not to meet the requirements for a successive petition.) That Davie had earlier sought to reopen state proceedings on the ground that appellate counsel had been ineffective in failing to raise the “acquittal first” issue did nothing to preserve the underlying substantive claim given that the state court denied the request to reopen the appeal. This was true even though Davie included the substantive issue in the application to reopen. Applying § 2254(d) to the appellate ineffectiveness claim that was rejected on the merits by the state court, the panel determined that Davie could not receive relief on that claim. Judge Rogers noted in particular that while the Mills v. Maryland decision existed at the time of Davie’s appeal, it was not until more recently that the analysis found in that case was extended to encompass an instruction like the one given in Davie’s case. Even assuming that the default of the substantive claim could be excused on the ground that the state court reached the merits of the claim when determining that appellate counsel was not ineffective, that would mean that § 2254(d) applied to the substantive claim. In Judge Rogers’s view, relief would be precluded under that statute’s provisions because the state court could not be found unreasonable in failing to extend the precedent existing at the time it refused to reopen the appeal to the facts of Davie’s case. Finally, Judge Rogers agreed with the district court’s conclusion that Davie’s prosecutorial misconduct claims lacked merit. (At issue were the prosecutor’s alleged denigration of defense counsel during argument, the prosecutor’s reference to the failure of a defense expert to testify, and other alleged improprieties in penalty phase argument.) Judge Cole wrote separately to explain why he ultimately agreed with Judge Rogers that Davie was not entitled to relief on the Miranda claim. Judge Cole stated: “Despite some misgivings surrounding the somewhat questionable police conduct at issue in the case, I join in the lead opinion’s conclusion that the trial court did not err in admitting Davie’s confession. Though the officers questioned Davie four separate times over the course of approximately six hours, the trial court correctly determined that they respected Davie’s rights under Miranda, Mosley, Edwards, and their progeny. Further, I agree with the lead opinion’s conclusion that Davie himself initiated the 2:00 p.m. interrogation during which he ultimately confessed.” In dissent, Judge Merritt asserted: “The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.”

Sixth Circuit reverses grant of habeas relief as to death sentence in Ohio case. On November 18, 2008, the Sixth Circuit (Batchelder with Gibbons and Rogers) reversed a grant of habeas relief to Shawn Hawkins on a claim of penalty phase ineffective assistance of counsel and affirmed the denial of other claims. Hawkins v. Coyle, ___ F.3d ___, 2008 WL 4911163 (6th Cir. Nov. 18, 2008). The case involved two homicides found to have been committed with prior calculation and during an aggravated robbery. Trial counsel had relied on residual doubt, believing that this case was “not a mitigation case.” Regarding the sentencing phase ineffectiveness claim, the panel resolved the issue on the prejudice prong of Strickland. Although acknowledging the numerous cases where prejudice has been found by the Supreme Court and the Sixth Circuit due to trial counsel’s failure to adequately investigate potential mitigation, the panel observed that findings of prejudice are “not made lightly, especially where the petitioner has not a victim of abuse and did not suffer from any mental disorders or difficulties.” The mitigating evidence that Hawkins presented in post-conviction proceedings concerned: (1) a history of alcohol use by Hawkins’ biological father; (2) discord in the marriage of Hawkins’ parents, including extramarital affairs by his father and eventual divorce; (3) a physical assault by Hawkins’ father on his mother, resulting in a broken nose; (4) favoritism shown towards Hawkins’ brother at school and at home which impacted Hawkins; (5) the death of Hawkins’ sister at age 3, which left Hawkins depressed; (6) Hawkins’ depression at a young age and at least two suicide attempts; and (7) Hawkins’ refusal to accept a plea bargain in this case because he allegedly could not admit to a crime he did not commit. The panel found such evidence “insufficient to establish prejudice under Strickland, and the result reached by the Ohio courts — the denial of Hawkins’s claim of ineffective assistance of counsel — was neither contrary to nor an unreasonable application of clearly established Federal law. Indeed, we would find that result correct even under a de novo review.” The panel then went on to affirm the denial of the following claims: (1) prosecutorial misconduct (consisting of numerous allegations); (2) Brady violations; and (3) denial of access to a prosecution witness’s juvenile records.

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