Opinion
Case No. C-1-92-547.
October 17, 2007
OPINION AND ORDER
Final judgment dismissing petitioner's death penalty habeas corpus action was entered on May 3, 2007. Petitioner filed a timely notice of appeal on June 1, 2007. This matter is before the Court upon petitioner's motion for a certificate of appealability, (doc. no. 157), and respondent's memorandum in opposition. (Doc. no. 158).
Petitioner raised a total of eighty-seven claims for relief in his Amended Petition. (Doc. no. 79). On May 2, 2000, this Court issued an Opinion and Order finding many of petitioner's claims to be procedurally barred, or not cognizable in federal habeas corpus. Specifically, the Court denied the following claims as procedurally barred: 1, 2 (in part), 3, 6 (in part), 7-11, 14, 15, 17-25, 27, 29-34, 36-42, 46, 48, 50-53, 55, 58-61, 65-69, and 74-87. The Court further denied claims 76-79 as not cognizable in federal habeas corpus. The Court's final Opinion and Order of May 3, 2007 dismissed the remainder of petitioner's claims on the merits.
This matter is now before the Court upon petitioner's motion to certify issues for appeal. Petitioner requests a certificate of appealability with respect to his claims of ineffective assistance of trial counsel (claims 4, 5, 6, and 56), his claims of prosecutorial misconduct (claims 12, 13, and 57), his claim that the trial court gave the jury an improper "Allen-type" instruction (claim 26), and his claim that the trial court unconstitutionally restricted defense counsel's voir dire questioning (claim 43). Petitioner also seeks a certificate of appealability as to the Court's decision denying his motion for an evidentiary hearing on his claims of penalty phase ineffective assistance of counsel. Respondent opposes petitioner's motion.
I. Standard of Review
An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir. 1997). He need not demonstrate that he will prevail on the merits; he need only demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4. "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir. 2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when the petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484.
II. Discussion
A. Prosecutorial Misconduct
Twelfth, Thirteenth, and Fifty-Seventh Grounds for Relief. Petitioner Bedford was denied his rights to due process, equal protection, an impartial jury, and freedom from cruel and unusual punishment, under the Fifth, Sixth, Eighth and Fourteenth Amendments due to prosecutorial misconduct during his capital trial.
Petitioner urges the Court to issue a certificate of appealability as to his claims of prosecutorial misconduct during both the guilt and penalty phases of his capital trial. In its Opinion and Order of May 3, 2007, the Court considered each alleged instance of misconduct by the prosecution against relevant decisions by the United States Supreme Court and the Sixth Circuit; that full discussion will not be recounted herein. It is sufficient for purposes of this Order to note that the prosecutors, according to petitioner, argued nonstatutory aggravating circumstances, argued that the nature and circumstances of the aggravated murder were aggravating factors, commented upon petitioner's failure to testify, misstated the law during closing arguments, appealed to the jurors' emotions and fears, and denigrated petitioner and defense counsel. This Court concluded that those instances of alleged misconduct, considered individually and as a whole, did not warrant relief.
In his motion for a certificate of appealability, petitioner references his argument that the prosecution misstated the law during voir dire, and invited the prospective jurors to consider the facts of the case as nonstatutory aggravating circumstances. (Doc. no. 157, at 23). That allegation, however, was not included in petitioner's twelfth, thirteenth or fifty-seventh grounds for relief, and it was not addressed on the merits by this Court. In his Amended Petition, petitioner set forth that argument as his thirty-eighth ground for relief. In its Opinion and Order of May 2, 2000, the Court determined that petitioner's thirty-eighth ground for relief was procedurally defaulted. (Doc. no. 130, at 79-80). Petitioner does not seek a certificate of appealability with respect to that ground for relief, and petitioner fails to set forth any arguments with respect to why this Court's procedural ruling dismissing that ground for relief could be considered debatable or wrong among jurists of reason. Accordingly, the Court will not consider whether a certificate of appealability should issue with respect to petitioner's argument that the prosecution misstated the law during voir dire.
The Court is more than satisfied, however, that this issue warrants further consideration on appeal. Claims of prosecutorial misconduct turn on the unique facts of each case, and only a full review of the proceedings will reveal whether a constitutional violation occurred. The Court concludes that reasonable jurists could disagree with its decision, given the number of comments asserted by petitioner and the considerable attention the Sixth Circuit has given to such claims. Ohio and federal courts alike have shown no reluctance to overturn death sentences, even in the face of a strong and compelling case against the defendant, when prosecutorial misconduct deprives the defendant of a fair trial. See, e.g., Boyle v. Million, 201 F.3d 711, 717-718 (6th Cir. 2000) (granting habeas corpus relief due to prosecutorial misconduct even though case against defendant was strong). Due to the fact intensive nature of this claim and the importance of the constitutional rights involved, this issue is deserving of further scrutiny. Accordingly, the Court certifies the following issue for appeal:
1. Did prosecutorial misconduct during both phases of petitioner's capital trial deprive him of due process, a fair trial, and a reliable sentence under the Sixth and Fourteenth Amendments to the United States Constitution?
B. Ineffective Assistance of Counsel Claims
Fourth, Fifth and Sixth Grounds for Relief: Petitioner Bedford was denied his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments because he was denied the effective assistance of counsel in the penalty phase of his capital trial.
In his fourth, fifth and sixth grounds for relief, petitioner argued that his trial counsel provided ineffective assistance of counsel during the penalty phase of his trial. In particular, petitioner alleged that his counsel violated their duty to investigate and prepare for the mitigation phase because counsel failed to interview most members of petitioner's family, failed to obtain the services of a mitigation specialist, failed to request a more comprehensive mitigation-specific evaluation of petitioner by Dr. Schmidtgoessling or to supply Dr. Schmidtgoessling with the social history necessary for such an evaluation, and failed to obtain a neuropsychological examination of petitioner. Petitioner argued that in lieu of conducting their own investigation, defense counsel relied on the presentence investigation report prepared by probation authorities who were neither trained nor inclined to conduct as comprehensive an evaluation as required for the preparation of a mitigation case on behalf of the defense, and who included in their report information that otherwise would have been inadmissible.
Petitioner argued that he was prejudiced by defense counsel's deficient performance because a wealth of relevant mitigating evidence was never presented to the jury, Dr. Schmidtgoessling was not prepared to offer meaningful mitigation testimony, and crucial psychological evidence was never presented to the jury to draw a nexus between petitioner's background and the events that led up to his commission of the offenses. As a result of defense counsel's unpreparedness, petitioner argued, his counsel failed to object to exhibits that were admitted during the mitigation phase, failed to object to improper remarks that the state made in closing arguments, and failed to object to certain improper jury instructions.
In denying petitioner claims of ineffective assistance of trial counsel, the Court concluded that petitioner's trial attorneys went into the mitigation hearing with a discernable mitigation strategy devised in advance of trial, and they presented testimony and evidence calculated to implement that strategy. The Court determined that the record did not support petitioner's contention that his counsel performed deficiently and to his prejudice.
The importance of effective representation during the mitigation phase of a capital trial cannot be understated, especially with respect to the duties of counsel to conduct an adequate investigation. See Williams v. Taylor, 529 U.S. 362 (2000); Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir. 1999); Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1996). The Court of Appeals for the Sixth Circuit, as well as numerous district courts within the Sixth Circuit, have paid particular attention to the adequacy of defense counsel performance during or in connection with the penalty phase of a capital trial. Although some of petitioner's allegations of ineffective assistance of counsel are more substantial than others, the majority of his allegations are legitimate accusations that have garnered substantial consideration by federal courts and have, in some cases, resulted in the reversal or setting aside of death sentences. For these reasons, as well as the fact-intensive nature of such inquiries and the constantly-evolving body of case law on the issue, the Court is persuaded that reasonable jurists could find its decision rejecting petitioner's claims of ineffective assistance of trial counsel to be debatable or wrong sufficient to warrant certification under 28 U.S.C. § 2253(c). The Court certifies the following issue for appeal:
2. Was petitioner denied the effective assistance of counsel during the penalty phase of his capital trial?
Fifty-Sixth Ground for Relief: Petitioner was denied his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments when he was denied the effective assistance of counsel in the guilt phase of his capital trial.
Petitioner requests a certificate of appealability for one subclaim of his fifty-sixth ground for relief. In that subclaim, petitioner argued that his counsel were ineffective for failing to object to several instances of prosecutorial misconduct that occurred during the closing arguments of the guilt phase of his trial. The instances of prosecutorial misconduct to which petitioner contends his counsel should have objected were set forth in petitioner's twelfth, thirteenth, and fifty-seventh grounds for relief. The Court has already determined that those allegations of prosecutorial misconduct are deserving of further scrutiny on appeal. Because the Court has certified petitioner's claims of prosecutorial misconduct for appeal, the Court will also certify petitioner's claim that his trial counsel were ineffective for failing to object to those instances of prosecutorial misconduct, because the correctness of this Court's ruling on petitioner's ineffective assistance of counsel claim necessarily depends on whether the Court properly resolved petitioner's claims of prosecutorial misconduct. The Court certifies the following issue for appeal:
3. Was petitioner denied the effective assistance of counsel during the guilt phase of his capital trial when his counsel failed to object to several instances of prosecutorial misconduct?
C. Allen Instruction
Twenty-Sixth Ground for Relief. The trial court denied Petitioner his rights to due process, equal protection, an impartial jury, and freedom from cruel and unusual punishment under the Fifth, Sixth, Eighth and Fourteenth Amendments when the trial court gave an unduly coercive "Allen-type" instruction to the jury during penalty phase deliberations.
In his twenty-sixth ground for relief, petitioner argued that the trial court erred when it gave an unduly coercive "Allen-type" instruction to the jury during the penalty phase deliberations, in violation of his rights to due process, equal protection, an impartial jury, and freedom from cruel and unusual punishment. Petitioner alleged that the court's instruction placed pressure on the jurors to come to a speedy resolution of his case, tipped the balance in favor of death, and placed undue pressure on the minority jurors who favored a life sentence or who were still unsure of their position.
In its Opinion and Order of May 3, 2007, this Court concluded that the supplemental charge was not unconstitutionally coercive. However, in reaching that decision, the Court noted that it was troubled by several aspects of the trial court's supplemental instruction. Specifically, the Court was troubled that the supplemental instruction emphasized the undesirability of a deadlocked jury without urging majority jurors to reconsider their position, and the instruction did not ask all jurors to reconsider their opinions in light of the fact that others did not agree. Given those considerations, the Court is convinced that the issue is deserving of further litigation on appeal, and the Court concludes that reasonable jurists could find its decision denying this claim to be debatable or wrong. Accordingly, the Court certifies the following issue for appeal:
4. Did the trial court err by giving the jury an unduly coercive "allen-type" instruction during the penalty phase deliberations?
D. Voir Dire Restrictions
Forty-Third Ground for Relief. The court's restrictions on defense counsel's voir dire questioning violated Petitioner's rights to due process, effective assistance of counsel, and a fair trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution.
In his forty-third ground for relief, Bedford argued that the trial court placed impermissible restrictions on the specific questions that defense counsel could ask during voir dire, as well as the general areas in which defense counsel could inquire. Specifically, petitioner alleged that the court limited the ability of defense counsel to ask the potential jurors about their feelings towards capital punishment in general, the factors they might consider mitigating, and the length of prison sentence they would consider serious in a homicide case. Petitioner claimed that the trial court's limitations on voir dire interfered with the ability of his counsel to intelligently prepare for and exercise their peremptory challenges, and therefore, denied him the right to a trial by a fair and impartial jury.
The Court rejected petitioner's claim on the merits, finding that the trial court's limitations on voir dire did not render petitioner's trial fundamentally unfair, and noting that petitioner's real challenge appeared to be that the trial court limited his tactical use of voir dire. In arguing for a certificate of appealability, petitioner contends that all parties in a capital case must be given wide latitude in voir dire questioning, and a criminal defendant must be permitted to fully inquire into a juror's views. Bedford maintains that the trial court's restrictions on voir dire questioning deprived him of due process, effective assistance of counsel, and a fair trial.
The Court concludes that reasonable jurists could find its assessment of petitioner's constitutional claims debatable or wrong, and could debate whether petitioner's claims should have been resolved in a different manner. Petitioner has satisfied the standard set forth in § 2253(c) for granting a certificate of appealability. Accordingly, the Court certifies the following issue for appeal:
5. Did the trial court's restrictions on voir dire questioning violate petitioner's rights to due process, effective assistance of counsel and a fair trial?
E. Evidentiary Hearing
Procedural Issue For Which a Certificate of Appealability Should be Granted. The District Court's Denial of Bedford's Motion for an Evidentiary Hearing.
Petitioner requests that a certificate of appealability issue with respect to the Court's September 24, 2002 decision denying his motion for an evidentiary hearing on his claims of ineffective assistance of trial counsel during mitigation. Petitioner asserts that he "submitted a wealth of material clearly demonstrating the need for an evidentiary hearing on these claims." (Doc. no. 157, at 41).
Initially, the Court notes some uncertainty regarding whether it is necessary to certify for appeal a procedural ruling such as one denying a motion for an evidentiary hearing. Out of an abundance of caution, the Court will assume that a certificate of appealability is required for petitioner to appeal the Court's decision denying his motion. The Court has already determined that petitioner's underlying claims of ineffective assistance of trial counsel warrant further litigation on appeal, due to the importance of the constitutional rights involved and the fact-intensive nature of the claims. Those reasons also militate in favor of certifying for appeal the Court's denial of his motion for an evidentiary hearing to further develop the factual basis of those claims. Accordingly, the Court finds that reasonable jurists could find the Court's decision denying petitioner's motion for an evidentiary hearing to be debatable or wrong, and the Court certifies the following issue for appeal:
6. Did the district court abuse its discretion in denying petitioner's motion for an evidentiary hearing?