Opinion
Case No. 2:05-cv-193.
May 12, 2006
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR EVIDENTIARY HEARING
This case is before the Court on Petitioner's Second Motion for Evidentiary Hearing (Doc. No. 39). Respondent opposes the Motion (Doc. No. 44) and Plaintiff has filed a Reply Memorandum in Support (Doc. No. 45). The Court heard oral argument on the Motion on May 9, 2006. Petitioner's first Motion for Evidentiary Hearing was denied without prejudice (See Doc. Nos. 16, 22).
Petitioner seeks an evidentiary hearing on his first, second, third, fourth, and sixth grounds for relief which are pled as follows:
Ground 1. The errors and omissions of counsel during the penalty phase violated Petitioner's right to the effective assistance of counsel.
1. Counsel presented a penalty phase case that was grossly counter-productive.
1. Videotape — Defendant's Exhibit B.
2. Prison Records — Defendant's Exhibit C.
2. Failure to adequately prepare expert witness.
3. Failure to advise Petitioner of statutory right to make an unsworn statement.Ground 2. Petitioner's right to the effective assistance of counsel in the penalty phase was violated because trial counsel failed to present relevant mitigating evidence.
1. Mitigating evidence of the effects of long-term incarceration on Petitioner was not presented at trial.
2. Incomplete mitigation case presented.
Ground 3. Petitioner was prejudiced by his trial counsel's deficient performance during the trial phase.
1. Trial counsel tried the Ohio Revised Code § 2929.04(A)(5) specification to Petitioner's jury.
2. Trial counsel abandoned available trial defenses
1. Prior calculation and design.
2. Voluntary intoxication
3. Trial counsel presented an inadequate defense at trial.
4. Trial counsel failed to object to prosecutor misconduct.Ground 4. The errors and omission of counsel during voir dire violated Petitioner's right to the effective assistance of counsel.
1. Trial counsel were ineffective for filing to move for a change of venue.
2. Trial counsel unduly disparaged Petitioner and caused the jury to prejudge this case during voir dire.Ground 6. Petitioner's rights to a fair sentencing proceeding and individualized sentencing were denied when the trial court precluded him from pursuing and presenting relevant mitigating evidence.
Petitioner seeks a hearing on the second ground in his petition to develop his claim that trial counsel were ineffective because they failed to present relevant mitigating evidence in the penalty phase. On the second ground, he seeks to present the testimony of Dr. Clemens Bartollas, a sociologist who is to be presented as an expert on prison culture, and William Mooney, one of his trial attorneys. He seeks a hearing on the first, third, and fourth (sub-part 2) grounds in his petition to rebut a presumption, applied by the Ohio Supreme Court on direct review, that trial counsel proceeded according to a reasonable strategy throughout this capital case. On those grounds, he seeks to present Mr. Mooney's testimony.
Finally, he seeks a hearing on his sixth ground in which he alleges that relevant mitigating evidence of his diminished health was excluded from the jury. At his request, the Court appointed Dr. Dale Cowan, an oncologist at the Cleveland Clinic, to review his medical records and prepare an opinion which would have been offered in evidence. However, Dr. Cowan did not find the cancer which was expected, but "indications" of COPD. Petitioner would require a pulmonologist to testify on the sixth ground.
The Motion is supported by the deposition of trial attorney William Mooney, the post-conviction affidavit of Dr. Clemens Bartollas, Campbell's medical records obtained during discovery in this Court, and a letter from Dr. Cowan.
The guiding principles in a federal habeas corpus court's determination whether to grant a petitioner an evidentiary hearing are embodied in 28 U.S.C. § 2254(e)(2), which provides as follows:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the [United States] Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
In Michael Williams v. Taylor, 529 U.S. 420, 423, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000), the Supreme Court explained that "under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." The Court also observed that Congress intended to preserve that aspect of Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), requiring "prisoners who are at fault for the deficiency in the state-court record [to] . . . satisfy a heightened standard to obtain an evidentiary hearing."
A petitioner who is diligent in seeking a state evidentiary hearing but whose requests are denied by the state courts has not failed to develop the factual basis of his or her claim and the heightened standard of § 2254(e)2) therefore does not apply. McFarland v. Yukins, 356 F. 3d 688 (6th Cir. 2004), citing Greer v. Mitchell, 264 F. 3d 663, 681 (6th Cir. 2001). The decision to grant an evidentiary hearing is committed to the discretion of the trial court, reviewable for abuse. Sawyer v. Hofbauer, 299 F. 3d 605, 610 (6th Cir. 2002)
Prior to the AEDPA, the Sixth Circuit held that when a failure to investigate and call witnesses is the claimed ground of ineffective assistance, the habeas corpus trial court will usually have to hear what the omitted evidence would have been. United States ex rel. Cross v. DeRobertis, 811 F. 2d 1008 (6th Cir. 1987). On a claim of ineffective assistance of trial counsel for failure to present mitigating evidence, AEDPA requires the petitioner to have presented the factual bases of his claims during postconviction proceedings in state court. Frazier v. Huffman, 348 F. 3d 174 (6th Cir. 2003), citing Alley v. Bell, 307 F. 3d 380, 386 (6th Cir. 2002).
This Court has a preference for hearing contested evidence live when the statute permits it. When a district court decides a habeas petition without an evidentiary hearing, the court of appeals reviews the district court's factual findings de novo. Burton v. Renico, 391 F. 3d 764 (6th Cir. 2004), citing Bugh v. Mitchell, 329 F. 3d 496, 500 (6th Cir. 2003); Northrop v. Trippett, 265 F.3d 372 (6th Cir. 2001); Wolfe v. Brigano, 232 F. 3rd 499, 501 (6th Cir. 2000); Moore v. Carlton, 74 F. 3rd 689, 691 (6th Cir. 1996). But see Moss v. Hofbauer, 286 F. 3d 851, 858 (6th Cir. 2002); Greer v. Mitchell, 264 F. 3rd 663, 671 (6th Cir. 2001), citing Lucas v. O'Dea, 179 F. 3rd 412, 416 (6th Cir. 1999) (factual findings reviewed for clear error). Where the district court makes no independent findings of fact, its factual findings are reviewed de novo. White v. Mitchell, 431 F. 3d 517 (6th Cir. 2005), citing Bugh v. Mitchell, 329 F. 3d 496, 500 (6th Cir. 2003).
Petitioner offered an affidavit from Dr. Bartollas in support of his Petition for Post-Conviction relief, thereby demonstrating the diligence required by Keeney. With respect to Mr. Mooney, no affidavit was offered in post-conviction. Mr. Mooney has been deposed in this proceeding and Respondent allows that it would not be improper to consider that deposition. Without deciding at this point whether Petitioner was sufficiently diligent in attempting to present Mr. Mooney's testimony in support of his post-conviction petition, the Court will hear Mr. Mooney's live testimony on the questions for which Petitioner wishes to present him and subject also to examination on the diligence question.
However, the Court declines to permit an evidentiary hearing on the Sixth Ground for Relief. In seeking a hearing on this Ground, Petitioner's counsel wrote that
At the time of trial, Alva Campbell had a history of asthma, emphysema, and smoking. While examining x-rays of Campbell's chest, Dr. Jeffrey L. Bory found visible growths on Campbell's lung. Dr. Bory recommended that a chest CT be done to determine if these growths were malignant. Dr. Bory was not a defense expert, he was a prison physician treating Campbell.
Trial counsel moved for an order to transport Campbell to a local medical facility to have a chest CT performed. Trial counsel felt this test was relevant and necessary to Campbell's case at mitigation. Trial counsel argued that if Campbell was suffering from an illness that could "shorten his life," then his life expectancy could be an important mitigating factor.
* * *
Trial counsel sought to determine if the growths on Campbell's lungs were malignant because they believed that evidence of cancer, its accompanying physical deterioration, and a short life expectancy would be powerful mitigation evidence.
(Second Motion for Evidentiary Hearing, Doc. No. 39 at 22-25; record references omitted.)
However reasonable such an approach might have been at the time of trial, we now know that Mr. Campbell does not have lung cancer. Dr. Cowan, appointed by this Court, is prepared to testify that he does not, but rather does have "evidence of chronic obstructive pulmonary disease." Id. Emphysema, which is one of the chronic obstructive pulmonary disease (See Taber's Cyclopedic Medical Dictionary, 19th edition, at 584), was a known diagnosis of the Petitioner at the time of trial. If counsel had thought that an emphysema diagnosis would have a significant mitigating effect, they certainly could have presented that to the jury at trial. Dr. Cowan's letter notes that emphysema can lead to a shortened life expectancy, but hardly with the rapidity and certainty that lung cancer does. In other words, cancer and emphysema as possible mitigating factors are very different things and nothing the State did or omitted to do prevented presentation of emphysema for whatever mitigating effect it might have had.
Petitioner's Motion is granted in that the Court will hear the testimony of Dr. Bartollas and Mr. Mooney, but not that of Dr. Cowan or a substituted pulmonologist. The Court's judicial assistant will contact counsel to arrange a date for the hearing.