Opinion
Case No. 1:98-cv-452.
September 25, 2006
OPINION AND ORDER
This is a death penalty habeas corpus action brought by petitioner, Genesis Hill, pursuant to 28 U.S.C. § 2254. This matter is before the Court upon respondent's second motion to dismiss procedurally defaulted claims, (Doc.# 142), petitioner's response in opposition, (Doc.# 144), and respondent's reply in support, (Doc.# 145).
I. Factual History
The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court's published opinion in State v. Hill, 75 Ohio St. 3d 195 (1996):
On May 31, 1991, defendant-appellant, Genesis Hill, crept into his girlfriend's apartment in Cincinnati and surreptitiously removed their six-month-old daughter, Domika Dudley. On June 2, police found Domika's body, wrapped in trash bags, in a vacant lot behind Hill's house.
Hill, age nineteen, and Teresa Dudley, age eighteen, lived near each other and had an on-going relationship. Their daughter, Domika Dudley, was born in November 1990. Around May 29, 1991, Barbara Janson, a neighbor, heard Teresa "making silly little comments" to Hill that she was going to take him to court for child support. Hill replied that "he'd kill that little bitch before he paid anything." Teresa recalled Hill saying, "I bet I don't pay," when she asked him about child support.
On May 31, in the late afternoon, Hill and Teresa were together in Hill's yard. Teresa became upset, they argued, and Teresa went home. That evening, Teresa went to sleep in her mother's second-floor apartment in the same room as Domika. Between 11:00 p.m. and midnight, Janson and another neighbor saw Hill enter the front yard of Teresa's apartment building, but they did not see Hill leave. That front entrance was the only entry way to her apartment except for the back yard, which was enclosed by a high wall. Ten to fifteen minutes after the neighbors saw Hill, Teresa came out and said Domika was missing.
Teresa went to Hill's home, but was told that Hill was not there and did not have the baby. Hill lived in the same building as did his uncle and two aunts. Just then, Hill appeared, but he denied knowing where his daughter was. A neighborhood search for Domika by police proved unsuccessful. Hill appeared unconcerned, did not participate in the search, and was "snickering" and "grinning" as Teresa talked to police about their missing baby.
Around 5:45 a.m., June 1, Teresa and one of Hill's aunts found a distinctive blue and pink barrette on the floor of Hill's garage. That barrette was identical to one used in Domika's hair before she went to sleep.
On the afternoon of June 2, police found a suspicious SMA(R) BABY FORMULA CARTON in an overgrown vacant lot behind Hill's garage. That box was not there on the day before when police searched the lot. Domika's body was inside the carton. A plastic shopping bag and three plastic trash bags had been successively wrapped around her body. Black electrical tape was wrapped around the outer trash bag.
A man's blue shirt, with white and red stripes, was tied around Domika's head. Teresa and Janson identified this shirt as one that "looks like" a shirt Hill owned.
Domika died as a result of three skull fractures, and she had been dead for more than twelve hours. Either a strong, blunt force had struck her head, or her head had been crushed. She might have been injured in a fall, but it seems only if another force had hit her during or after the fall. She was wearing only a diaper and two barrettes.
The baby formula box, in which Domika was found, was similar to one that Hill's aunt had placed in the trash pile next to Hill's garage. The box was in the trash on June 1, but not on June 2. Batch numbers on an SMA(R) can from the aunt's pantry matched batch numbers on the box in which Domika was found. Hill's uncle was unable to find the black electrical tape that he kept in a tool box.
A forensic expert testified that the last trash bag wrapped around Domika had once been directly attached to a trash bag found in Hill's kitchen. Microscopic grain, crease, and other distinctive marks made in the manufacturing process matched exactly on the two trash bags.
At Teresa's apartment, police found Hill's right thumb print on a hallway light bulb near where Teresa and Domika had slept. When Teresa went to sleep that night, the hallway door had been partly open and the light had been on. When she awoke and discovered Domika missing, the light bulb was unscrewed.
On the evening of June 2, the day Domika's body was found, a Cincinnati bus driver overheard a conversation on his bus. One young man, crying and upset, told another, "he could not believe what he had done to a little baby." The man further said, "he thought he might get the chair for it." After the bus driver heard the news about a dead baby, police were called. The bus driver picked Hill out of a photo array as the young man crying on the bus.
A grand jury indicted Hill on two felony-murder counts in violation of R.C. 2903.01: murder during an aggravated burglary (Count I) and during a kidnapping (Count II). Each aggravated murder count contained two death-penalty specifications under R.C. 2929.04(A)(7) (murder during an aggravated burglary and murder during a kidnapping). Count III charged aggravated burglary in violation in violation of R.C. 2911.11, and Count IV charged kidnapping in violation of R.C. 2905.01. Hill pled not guilty.
At trial, numerous friends and relatives testified for Hill and described his activities on the evening of May 31. Defense witnesses suggested that only two trash bags had been in the kitchen; that Teresa was not a good mother; that she had been aggressive towards Hill on May 31; that she had access to the trash bags in Hill's kitchen; and that she may have "planted" the barrette on the garage floor.
Hill testified as to his activities on May 31. He admitted he had been in the hallway, outside Teresa's door, around 11:00 p.m., and had unscrewed the light bulb. He claimed he only "whistled" to Teresa. When she did not answer, he left and went out the front, the same way he came in. He said he then "[w]ent on about [his] business" (drinking with friends). In his narrative testimony, Hill implicitly denied taking Domika, but he did not explicitly do so. Cross-examination revealed discrepancies between his testimony and his statements to police and two mental health professionals.
The jury found him guilty as charged.
Penalty Phase Evidence
Numerous relatives testified regarding Hill's character. One aunt described him as "kind," "sweet," and "gentle." Another aunt said he was a "loving, caring" person who was always helpful. Others described him as a "good person," a "very nice person," "very outgoing," and one who "treats people very well." His grandparents and other relatives described the difficult environment in which Hill was raised and expressed their love and understanding for him. His juvenile case worker described him as "likable" and "respectable," although easily "intimidated."
According to the record, Hill was born on June 7, 1971, and his mother suffered from serious depression and chronic emotional problems. Hill grew up in an extremely poor and drug-infested neighborhood, with a lot of "negative influences" and "temptations." His family was very poor. Hill's father, an exconvict, had only a distant relationship with him and contributed little to his support or upbringing. Hill left school after the eighth grade.
In his opening statement, trial counsel conceded Hill had a juvenile record for arson, burglary, resisting arrest, and tampering with a coin machine. Family members also disclosed that Hill had become involved with drugs and gangs as a youngster, and had "sold drugs to have things *** to survive" and to support himself.
Dr. Nancy Schmidtgoessling found Hill to be of average intelligence with the capacity to develop job skills and educate himself. However, Hill had always struggled academically. At fourteen, Hill started using drugs and alcohol. At sixteen, Hill had "problems with serious depression, and wrote suicide notes." At seventeen, a psychiatric evaluation found that he suffered from "major depression with psychotic features" and he reportedly experienced auditory hallucinations. But, in June 1991, Schmidtgoessling found that Hill was rational and intelligent, had no mental diseases or defect, and was not suffering from major depression.
In an unsworn statement, Hill said, "I feel hurt. Growing up was hard. A lot of things wasn't right for me," and he "struggled to survive." He was "sorry that you all have to be here," "sorry that the baby [was] gone," and "sorry for the family." He neither admitted nor denied killing Domika. After hearing the evidence, the jury recommended the death penalty.
After the jury recommended death, Hill appeared before the judge for sentencing. At that hearing, Hill told the court that he was "sorry you have to judge me. *** [I] just hope and pray that you can spare my life." His probation officer asserted that Hill told him that he "did not brutally nor intentionally kill that baby. He told me it was an accident." After explaining its reasons, the trial court then imposed the death penalty.Hill, 75 Ohio St. 3d at 195-98.
II. State Court Procedural History A. Trial and Direct Appeal
On June 7, 1991, the Hamilton County Grand Jury indicted petitioner on two counts of aggravated murder, each with two death penalty specifications, one count of aggravated burglary, and one count of kidnapping. On June 13, 1991, petitioner entered a not guilty plea and the trial court appointed attorneys Mark Krumbein and Myron Davis to represent petitioner. Following a period of pretrial discovery, defense counsel filed a suggestion of insanity on September 25, 1991 and requested the appointment of psychiatrists to evaluate petitioner. On September 26, 1991, defense counsel filed a formal plea of Not Guilty by Reason of Insanity, ("NGRI"). Psychiatric reports assessing petitioner's competency to stand trial and mental state at the time of the alleged offenses were filed on October 28, 1991. The guilt phase of petitioner's trial commenced on October 30, 1991 and, following nearly two weeks of testimony and argument, the jury returned verdicts on November 13, 1991 finding petitioner guilty on all counts and specifications. The mitigation hearing took place on November 20 and November 21. On November 22, 1991, the jury recommended that petitioner be sentenced to death. On December 6, 1991, the trial court accepted the jury's recommendation and entered judgment sentencing petitioner to death.
Represented by attorneys H. Fred Hoefle and Chuck R. Stidham, petitioner appealed to the Ohio Court of Appeals for the First Appellate District. On December 28, 1992, appellate counsel filed their brief raising the following assignments of error:
First Assignment of Error: The trial court erred in sentencing appellant to death following prejudicial prosecutorial misconduct during argument to the jury at the sentencing phase of the trial, consisting of arguing several nonstatutory aggravating factors and in arguing for death as an appropriate means of upholding law and order, and in other improper arguments, all of which, singly and cumulatively, constituting violations of appellant's rights under the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Art. I. Secs. 9, 10, and 16 of the Ohio Constitution, to-wit: (1) misstating the law and arguing that the death sentence "must be inflicted in order to maintain a civilized law and order society." (2) the brutality of the crime; (3) the status of the victim as a defenseless baby; (4) the murder itself; (5) the prior record of the defendant; (6) that appellant's youth was canceled out by the very young age of the victim; (7) that certain mitigating factors not raised by the defense did not exist, i.e., mental defect or disease [R.C. 2929.04(B)(3)] and lack of a prior record [R.C. 2929.04(B)(5)]; (8) excessive comment on the unsworn statement of the appellant.
Second Assignment of Error: The trial court erred to the prejudice of appellant, in violation of his constitutional rights under the Eighth and Fourteenth Amendments to the Constitution of the United States, and in violation of Art. I. Secs. 9 and 10 of the Ohio Constitution, in overruling the defense motion in limine to limit the prosecution's penalty phase argument to the aggravating factors proved at the guilt-or-innocence phase of the proceedings.
1. Egregious misconduct by the prosecutor in the penalty phase of capital proceedings requires reversal, and where the prosecutor's final argument for death of Defendant incorporates nonstatutory aggravating factors, and in addition, calls for a death sentence for the purpose of upholding law and order, a reversal of the death sentence later imposed is required by the United States and Ohio Constitutions.
2. Only the aggravating factor for which the accused has been indicted may support a decision for death; resort to nonstatutory aggravating factors requires reversal of the death sentence.
3. Arguments to a jury at the sentencing phase of a capital prosecution that the death sentence is required in order to maintain a "civilized law and order society" are grossly prejudicial and inflammatory, and require the reversal of the death sentence imposed after such arguments.
4. An argument to impose the death penalty which misstates the law is unlawful and prejudicial, and a death sentence imposed following such an argument must be reversed.
5. Arguments for the death sentence which focus on the nature and circumstances of the offenses, i.e., the brutality, gruesomeness, and heinousness of the murders, constitute prejudicial, reversible constitutional error, requiring reversal of the death sentence obtained thereby.
6. The status of the victim as a defenseless baby is a prejudicial, nonstatutory aggravating factor, and the argument that the accused should die for killing such a victim is contrary to law, prejudicial and unconstitutional, and compels reversal of the death sentence imposed following such arguments.
7. The murder itself is not a statutory aggravating factor under Ohio law, and an argument by the prosecution at the penalty phase of a capital proceeding to the jury to consider the killing itself as an aggravating factor into the weighing process, skewing the result, and rendering the result — a death verdict — a violation of the Eighth and Fourteenth Amendments to the Constitution of the United States, and Art. I. Sec. 9 of the Ohio Constitution.
8. It is reversible error for the prosecution to argue that the defendant's prior record is an aggravating factor, especially where the defense has not advanced lack of a prior record as a mitigating circumstance; any death sentence imposed following such prosecutorial misconduct must be reversed.
9. The youth of the defendant, proffered as a statutory mitigating factor, may not be canceled out by the younger age of the victim, which is not a statutory aggravating factor, and, where prosecutors are permitted to argue that the youth of the defendant is so canceled out by the fact that the victim is a six month old baby, violates the right of the defendant to meaningful consideration of a statutory mitigating factor, and his death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution, and Art. I. Sec. 9 of the Ohio Constitution.
10. It is the defendant who has the right to present and argue mitigating factors during the penalty phase of a capital trial, and if he does not do so, no comment on any factors not raised by him is permissible.
11. It is prejudicial, reversible error for a trial court to permit the prosecutor, at the penalty phase of a capital trial, to comment upon the unsworn statement of the accused, beyond the mere fact that the statement was unsworn, in violation of the rights of the accused under the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Art. I. Sees. 9 and 10 of the Ohio Constitution.
12. Where there are several instances of prosecutorial misconduct during argument at the penalty phase of a capital trial, their prejudicial effect upon the death verdict must be gauged not only individually, but for their collective and cumulative effect, and where the cumulative effect of all such instances is manifestly prejudicial, reversal of the death sentence is required by the United States and Ohio Constitutions.
Third Assignment of Error: The trial court erred to the prejudice of appellant in entering judgment and sentencing appellant to death, where the journal of the court states that the jury verdict for death was signed and entered on November 19, 1991, before the jury had heard the evidence and arguments at the penalty phase of the trial, which did not commence until November 20, 1991, in violation of appellant's rights under the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Art. I. Secs. 5, 9, and 16 of the Ohio Constitution.
1. A Court speaks through its journal, and where that journal indicates that the jury in a capital case has already determined that the accused should die for his crime, and a signed verdict to that effect is entered on the journal of the court even before the evidence is adduced at the penalty phase of the proceedings, which phase commences after the entry of the penalty verdict, the judgment and death sentence must be reversed as being in violation of the constitutional rights of the accused to due process, a fair and impartial jury, and to be free from cruel and unusual punishment.
Fourth Assignment of Error: The trial court erred to the prejudice of appellant, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments, and Art. I. Sec. 9, 10, and 16 of the Ohio Constitution, in failing to prepare and file in this Court and in the Supreme Court of Ohio the opinion required by R.C. 2929.03(F), justifying imposition of the death sentence on appellant.
1. The court, when it imposes the sentence of death, shall state in a separate opinion its specific findings as to the existence of any mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. The court shall file that opinion with the clerk of the court of appeals and with the clerk of the supreme court within fifteen days after the court imposes sentence, and the failure of the trial court to follow this mandatory statutory command requires reversal of the death sentence imposed, because such failure prevents counsel from effectively assisting the accused, in violation of the constitutional right to the effective assistance of counsel; it denies due process in preventing the accused from ascertaining the basis of his death sentence; and it renders the death sentence constitutionally unreliable, and hence constitutes cruel and unusual punishment. It further denies due process by rendering impossible the proportionality review required by Ohio law.
Fifth Assignment of Error: The trial court erred to the prejudice of appellant in denying his motion for mistrial after the mother of the victim became hysterical after the prosecutor displayed a picture of her baby's corpse to her as she was testifying, in violation of the right of the accused to the fundamentally fair trial before an impartial jury secured to him by the due process and right to jury clauses of the Sixth and Fourteenth Amendments to the Constitution of the United States and Art. I. Sec. 10 of the Ohio Constitution.
Sixth Assignment of Error: The trial court erred to the prejudice of appellant by permitting the prosecutor to display a photograph of the corpse of the child victim to the child's mother as the mother was testifying, on the pretext of having the mother identify barettes depicted in the hair of the child, when the barettes were present in court, identified by other witnesses as having been recovered from the corpse of the victim, and which could have been identified by the mother without displaying the photo of the corpse to her, denying the accused the right to due process and to a fair and impartial jury secured to him by the United States and Ohio Constitutions.
1. Where a prosecutor exhibits a photograph of the corpse of the child victim in a murder prosecution to the testifying mother of the child, the mother erupts in an emotional outburst which gives rise to a reasonable inference that the witness had not seen the photo before, and the prosecutor's stated reason for exhibiting the photo to the witness-mother was to have the mother identify, not her child, but two barettes depicted in the photo as being in the hair of the corpse, which barettes were recovered from the body and were moments before identified by the witness, the trial court errs in denying defense objections and motions for mistrial.
Seventh Assignment of Error: The trial court erred to the prejudice of appellant by permitting the prosecutor (1) to argue to the jury at the guilt-innocence phase of the trial his negative opinion of the appellant's credibility; (2) to indulge in improper physical conduct toward appellant, to-wit, throwing an exhibit at appellant during such argument; (3) to argue that confusing the jury goes hand in hand with defense counsel's duty to defend the client; and (4) that appellant's passive demeanor in court evinced a lack of remorse.
1. It is improper for an attorney to express his personal belief or opinion as to the credibility of the witness or as to the guilt of the accused.
2. It is prejudicial, reversible error, and a denial of due process for a prosecutor, during final argument to the jury at the guilt/innocence phase of a capital trial, to throw one of the state's exhibits at the defendant.
3. It is prejudicial prosecutorial misconduct for the prosecution in a capital trial, to argue to the jury that defense counsel's duty is to confuse the jury.
4. It is prejudicial error for a prosecutor to comment during his argument to the jury at the guilt phase of a capital case that the accused [who steadfastly has maintained his innocence] demonstrates no remorse for what the prosecutor says is his criminal act, and comments upon the contrast between the reaction of the accused to photos of his deceased child with the reaction of the child's young mother, who became hysterical during the trial when the prosecutor thrust a picture of her dead baby at her for the claimed purpose of having her identify, not the child, but barettes depicted in the child's hair, and when those barettes could be, and were, identified as having been in the baby's hair when her body was recovered.
Eighth Assignment of Error: The trial court erred in overruling objections to questions to witnesses by the prosecutors during the sentencing phase, which inquired as to whether appellant knew right from wrong, and in permitting the prosecution to ask such questions on occasions when no objections were interposed by defense counsel.
1. The defendant in a capital case has the option of raising any statutory mitigating factor he wishes, and, where it is clear from the outset of the penalty phase of the trial that the defendant is not going to raise the statutory factor of a mental disease or defect substantially preventing him from realizing the criminality of his conduct (though not amounting to an insanity defense), or from conforming his conduct to the requirements of the law, it is error for the trial court to permit the prosecution to inquire of defense psychologists whether the defendant had a mental disease or defect, and right from wrong when the offense was committed.
Ninth Assignment of Error: The trial court erred to the prejudice of appellant by using a jury verdict form indicating that the sentencing decision by the jury was a "recommendation," thereby diminishing the jury's sense of responsibility for their decision, in using the word "recommendation" throughout the penalty phase instructions, and denying a defense motion to prohibit references to the sentencing verdict as a recommendation, in violation of appellant's rights under the Eighth and Fourteenth Amendments to the Constitution of the United States, and Art. I. Sec. 9 of the Ohio Constitution.
1. It is constitutionally impermissible for the trial court to instruct the jury that their verdict is merely a recommendation, as such an instruction impermissibly attenuates the jury's sense of responsibility for its decision, and a death sentence imposed following such an instruction is constitutionally infirm.
Tenth Assignment of Error: Appellant was denied his right to the effective assistance of counsel secured to him by the Sixth and Fourteenth Amendments to the Constitution of the United States, and by Art. I. Sec. 10 of the Ohio Constitution, by the acts and omissions of his trial counsel during his trial.
1. Where the acts and omissions of counsel at a criminal trial fall below an objective standard of reasonableness to the prejudice of their client, then the client has been deprived of the effective assistance of counsel and his conviction and death sentence must be revoked.
A. Failure to object to the penalty phase arguments of the state.
B. Failure to object to the prosecutor's guilt phase arguments.
C. Failure to object to leading questions by the prosecutors.
D. Failure to object to the prosecution adducing evidence as to the nonexistence of a statutory mitigating factor. (R.C. § 2929.04(B)(3))
E. Failure to object to the use of the word "recommend" in the instructions and verdict form.
F. Failure to object to improper redirect questions.
Eleventh Assignment of Error: The combined, cumulative, and incremental effect of the errors committed at both phases of appellant's trial and the ineffectiveness of his counsel denied him a fair trial by an impartial jury, and his right to due process of law, in violation of his rights under the United States and Ohio Constitutions.
1. In assessing the claim that an appellant in a criminal case was denied a fair trial by various errors, some of which standing alone would be harmless, an appellate court is required to consider the errors not only for their individual effect, but must also consider the cumulative effect of all of the errors upon the right of the accused to a fair trial, and shall render judgment accordingly.
Twelfth Assignment of Error: The trial court committed plain error by failing to intervene, sua sponte, to protect the rights of appellant where his counsel failed to interpose an objection, move for mistrial, or otherwise call upon the court to protect their client from suffering violations of his rights sufficient to render his trial prejudicially unfair, in violation of his right to due process secured to him by the Constitutions of the United States and the State of Ohio.
1. A trial court has the duty to intervene in a criminal trial where the rights of the accused are, have, or are about to be violated, and the defense attorneys fail to raise the issue of such errors by appropriate means, and, where such occurs and the rights of the accused are prejudiced, such errors must be reviewed on their merits on appeal.
Thirteenth Assignment of Error: The trial court erred to the prejudice of appellant by restricting him to 6 peremptory challenges, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Art. I. Secs. 5, 9, and 16 of the Ohio Constitution.
1. The increased need for reliability required in capital cases by the Ohio and federal constitutions mandates the granting to the defense more than six peremptory challenges.
Fourteenth Assignment of Error: The trial court erred to the prejudice of appellant in denying his motion to suppress his statements, in violation of his constitutional privilege against self-incrimination and due process reserved to him by the Fifth and Fourteenth Amendments to the Constitution of the United States and Art. I. Sec. 10 of the Ohio Constitution.
1. If an interrogation occurs without the presence of an attorney and a statement is taken, a heavy burden rests upon the prosecution to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.
Fifteenth Assignment of Error: The trial court erred to the prejudice of appellant in denying his motion to suppress certain evidence taken from his residence, in violation of his constitutional right against unreasonable searches and seizures, from which he is protected by the Fourth and Fourteenth Amendments to the Constitution of the United States, and Art. I. Sec. 14 of the Ohio Constitution.
1. Where a warrantless search of the residence of a suspect, yielding incriminating evidence, is based upon an ineffective waiver purportedly executed by the accused, his constitutional rights have been violated by the illegal search and seizure, and all evidence seized pursuant to such waiver is inadmissible in evidence against him.
Sixteenth Assignment of Error: The trial court erred in imposing the death sentence because the state failed to prove beyond a reasonable doubt that the aggravating factors of which the appellant was convicted outweighed the mitigation evidence established by the evidence.
1. Where the state has failed to prove beyond a reasonable doubt that the aggravating factors of which the Appellant was convicted outweigh the mitigating factors established by the evidence, and/or that the sentence of death is appropriate, the appellate court reviewing the case must reverse the death sentence and either resentence the accused to life imprisonment, or remand for that purpose.
Seventeenth Assignment of Error: The death sentence visited upon appellant violates the Eighth and Fourteenth Amendments in that it is disproportionately severe when compared to sentences in similar cases.
1. The Eighth and Fourteenth Amendments to the Constitution of the United States prohibit sentences which are disproportionately severe in relation to the crime committed, sentences visited upon others for the same crime in the same and other jurisdictions.
Eighteenth Assignment of Error: The trial court erred to the prejudice of appellant in imposing the death sentence, for the Ohio death penalty statutes are unconstitutional, violating the Eighth Amendment proscription of cruel and unusual punishments, the Fourteenth Amendment guarantees to due process of law and to the equal protection of the laws, and also violating the concomitant provisions of the Ohio Constitution.
(A) The death penalty is so totally without penological justification that it results in the gratuitous infliction of suffering, and that consequently, there is no rational state interest served by the ultimate sanction.
(B) Both locally, statewide and nationally, the death penalty is inflicted disproportionately upon those who kill whites as opposed to those who kill blacks, and even within Hamilton County, the death penalty is selectively imposed, rendering the penalty as applied in Hamilton County arbitrary and capricious on the one hand, and the product of racial discrimination on the other.
(C) The use of the same operative fact to first elevate what would be "ordinary" murder to aggravated murder, and then to capital, death-eligible aggravated murder permits the state (1) to obtain a death sentence upon less proof in a felony murder case than in a case involving prior calculation and design, although both crimes are ostensibly equally culpable under the Revised Code, and (2) fails to narrow the capital class to those murderers for whom the death penalty is constitutionally appropriate.
(D) The requirement that a jury must recommend death upon proof beyond a reasonable doubt that the aggravating circumstances outweigh only to the slightest degree the mitigating circumstances renders the Ohio capital statutes quasi-mandatory and permits the execution of an offender even though the mitigating evidence falls just short of equipoise with the aggravating factors, with the result that the risk of putting someone to death when it is practically as likely as not that he deserves to live renders the Ohio capital process arbitrary and capricious, and, in the absence of a requirement that, before death may be imposed, aggravating factors must substantially outweigh mitigating factors, unconstitutional.
(E) The Ohio capital statutes are constitutionally infirm in that they do not permit the extension of mercy by the jury even though aggravating factors may only slightly outweigh mitigating factors.
1. The Ohio capital statutes are unconstitutional because they require the death sentence and fail to permit the jury to recommend mercy even though the aggravating factors only marginally outweigh the mitigating factors, and in spite of the fact that there may be factors strongly suggesting the appropriateness of a penalty less than death in a given case.
(F) The provisions of Crim.R. 11(C)(3) permitting a trial court to dismiss specifications upon a guilty plea only under the nebulous and undefined concept "in the interests of justice" (1) needlessly encourages guilty pleas and the concomitant waiver of the right to jury, to compulsory process, and to confrontation and (2) reintroduces the possibility that the death sentence will be imposed arbitrarily and capriciously.
1. The provisions of Crim.R. 11(C)(3) needlessly encourages the entry of guilty pleas and the concomitant waivers of the right to jury trial, confrontation, and compulsory process, and renders the death penalty statutes unconstitutional.
2. The possibility that some capitally-indicted capital defendants can avoid the death penalty by pleading guilty where the trial judge dismisses the capitally-necessary specifications on the undefined standard "in the interests of justice" reintroduces the element of arbitrariness and caprice into the Ohio capital sentencing scheme and renders the statutes unconstitutional.
(G) The Ohio capital sentencing scheme is unconstitutional because it provides no standards for sentencing or review at several significant stages of the process and consequently death sentences are imposed, and reviewed, without sufficient statutory guidance to juries, trial courts, and reviewing courts to prevent the unconstitutional arbitrary and capricious infliction of the death penalty.
1. To be constitutional, a state death penalty scheme must provide standards to guide the sentencer in the reasonable exercise of the awesome power entrusted to it, in order to avoid the influence of arbitrariness and caprice in the sentencing decision, and where the statutes provide no meaningful standards to guide the sentencer, and reviewing courts, no death sentence imposed under such a system may constitutionally stand.
2. There are no standards set forth for the guidance of juries, trial judges, or reviewing courts in the weighing of aggravating and mitigating factors sufficient to assure that any given death sentence has been constitutionally imposed, and therefore no death sentence may be constitutionally imposed.
Nineteenth Assignment of Error: The trial court erred to the prejudice [of appellant] in entering judgment of conviction for aggravated murder, for such judgment is contrary to law and to the due process clause of the Fourteenth Amendment to the Constitution of the United States and the Ohio Constitution in that there was insufficient evidence adduced to establish each and every element of the offense beyond a reasonable doubt.
Twentieth Assignment of Error: The judgment of conviction of aggravated murder is contrary to the manifest weight of the evidence.
1. The due process clause of the Fourteenth Amendment to the Constitution of the United States, and the Ohio Constitution guarantee to the due course of law require the prosecution prove each and every element of a criminal offense beyond a reasonable doubt, and in the absence of evidence sufficient to persuade a rational factfinder of each such element to that degree, a conviction is based upon insufficient evidence, offends due process, and must be reversed.
2. A conviction must be reversed, and a new trial granted, where the conviction is contrary to the manifest weight of the evidence.
3. Where there is insufficient evidence of the identity of the accused as the perpetrator of the offense, his conviction offends the constitution and must be reversed, and is also contrary to the manifest weight of the evidence, also requiring reversal.
4. Where the evidence fails to demonstrate beyond a reasonable doubt the essential element of purpose to kill, a conviction of aggravated murder must be reversed.
Twenty-First Assignment of Error: The trial court erred to the prejudice of the defendant-appellant in entering judgment of conviction on the kidnapping count and on the kidnapping specifications because there was insufficient evidence produced to support conviction for such offense and capital specifications.
1. The natural father of a child, custody of whom has not been the subject of a court order, cannot lawfully be convicted of kidnapping such child.
2. Where there is no evidence to establish that a victim was not killed prior to any asportation of her body, the accused may not lawfully be convicted of kidnapping, of aggravated murder based upon that evidence, or of the capital specifications pertaining thereto.
Twenty-Second Assignment of Error: The trial court erred to the prejudice of the defendant-appellant in entering judgment of conviction of the aggravated burglary count and on the aggravated burglary capital specifications because there was insufficient evidence produced to support conviction for such offense and capital specifications.
1. Where a person has permission to enter premises, he cannot be convicted of aggravated burglary for doing so, though he may commit a felony on the premises.
Twenty-Third Assignment: The trial court erred in entering judgments of convictions of aggravated murder, and in sentencing appellant to death, in violation of his due process rights and his right to be free from cruel and unusual punishment under the Ohio and United States Constitutions.
1. Where the felonies underlying a two count indictment of capital murder, and which furnish two capital specifications to each of the two counts of aggravated murder are not proved beyond a reasonable doubt, the aggravated felony murder convictions of which those felonies form an essential element must be reversed, as must the death sentence, not only because the murder is not capital, but because the jury's consideration of one or both unproved felony specifications unfairly skewed the statutory weighing process, rendering the sentence unconstitutionally unreliable.
Twenty-Fourth Assignment of Error: The trial court erred to the prejudice of the appellant and abused its discretion by "precharging" the jury and then failing to fully instruct the jury at the completion of closing arguments, in violation of appellant's due process rights under the Ohio and Federal Constitutions.
1. "Precharging" the jury and failing to fully instruct the jury at the completion of closing arguments is prejudicial to the defendant-appellant.
Twenty-Fifth Assignment of Error: The trial court erred in imposing the death sentence because the jury that convicted the appellant and recommended the death sentence was improperly constituted in violation of appellant's right to a fair and impartial jury under the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and under the Bill of Rights under the Ohio Constitution, in addition to constituting a violation of Ohio statutory law.
1. A death sentence recommended by a jury from service on which one or more veniremen were excused because of their views concerning capital punishment cannot stand unless it affirmatively appears on the record that each such venireman excused for cause unequivocally indicates that his scruples against capital punishment will automatically prevent him from recommending the death penalty and/or that such views will render him unable to return a verdict of guilty no matter what the evidence, and that he is prevented by his scruples from following the instructions of the court and considering fairly the imposition of the death sentence.
2. Even the unconstitutional exclusion from a jury of but one venireman contrary to law mandates reversal of the death sentence rendered by that jury, and the error is not cured by the totality of the circumstances, the failure of defense counsel to object to the improper exclusion, the failure to exercise peremptories, nor the opportunity of the trial judge to assess the credibility of the venireman.
Twenty-Sixth Assignment of Error: The trial court erred to the prejudice of defendant-appellant in overruling the defense objection to rebuttal testimony of court psychiatric personnel as to statements made to them by appellant after he was indicted, not in the presence of counsel, and in the absence of waivers of his privilege against self-incrimination, in violation of appellant's rights under the Fifth, Sixth, and Fourteenth Amendment rights, and the corollary rights under the Ohio Constitution, Art. I. Sec. 10.
1. Where a defendant in a criminal case has been interviewed by court psychiatric personnel with respect to competence or a possible plea of not guilty by reason of insanity, but is found competent and proceeds to trial on a plea of not guilty, and does not raise his mental status in his defense, statements made in an uncounseled interview with court psychiatric personnel is not admissible in the absence of evidence that the accused was advised of his Miranda rights and knowingly, voluntarily, and intelligently waived his right to counsel, and where the trial court, over objection, admits statements made to such personnel in rebuttal of the trial testimony, the constitutional rights of the accused to the privilege against self-incrimination and the right to counsel have been violated, requiring reversal.
Twenty-Seventh Assignment of Error: The trial court erred to the prejudice of appellant's constitutional right to reliability in the imposition of the sentence of death by filing its sentencing opinion sixteen months late, in inadequately delineating the mitigating factors raised by the appellant, and in failing to state the reasons why the aggravating factors outweighed the mitigating factors, rendering the death sentence imposed constitutionally unreliable in violation of the appellant's rights under the Eighth and Fourteenth Amendments to the United States Constitution, and under Art. I. Sec. 9 of the Ohio Constitution.
1. Whenever the death sentence is imposed, the trial court is required by R.C. 2929.03(F) to prepare a separate sentencing opinion stating its specific findings as to the existence of mitigating factors, the aggravating circumstances of which the offender was convicted, and the reasons why the aggravating circumstances the offender was convicted of outweigh beyond a reasonable doubt the mitigating factors. The opinion must be filed within 15 days of the imposition of the sentence.
2. Where a court which has imposed the death sentence does not prepare or file its sentencing opinion for almost sixteen months from the date of imposition of sentence; fails to find the existence of a clearly proven mitigating circumstance, misstates in its opinion the mitigating factors, and totally fails to state the reasons why aggravation outweighs mitigation beyond a reasonable doubt, the death sentence violates R.C. 2929.03, the Eighth Amendment, and the Ohio Constitution.
Twenty-Eighth Assignment of Error: The trial court erred to the prejudice of appellant in sentencing him to death after finding that two mitigating factors which require a life sentence were present: innocence, and that mercy should be granted in imposing sentence, in violation of appellant's rights under the Ohio and United States Constitutions.
1. Where the trial court finds that the mitigating circumstance of innocence is present, and further finds that mercy should be granted in imposing sentence, the imposition of the death sentence violates the Eighth Amendment and Art. I. Sec. 9 of the Ohio Constitution.
Seventh Assignment of Error The trial court erred to the prejudice of appellant by permitting the prosecutor (1) to argue to the jury at the guilt-innocence phase of the trial his negative opinion of the appellant's credibility; (2) to indulge in improper physical conduct toward appellant during such argument; (3) to argue that confusing the jury goes hand in hand with defense counsel's duty to defend the client; and (4) that appellant's passive demeanor in court evinced a lack of remorse.
1. It is improper for an attorney to express his personal belief or opinion as to the credibility of the witness or as to the guilt of the accused.
2. It is prejudicial, reversible error, and a denial of due process for a prosecutor, during final argument to the jury at the guilt/innocence phase of a capital trial, to throw one of the state's exhibits at the defendant.
3. It is prejudicial prosecutorial misconduct for the prosecution in a capital trial, to argue to the jury that defense counsel's duty is to confuse the jury.
4. It is prejudicial error for a prosecutor to comment during his argument to the jury at the guilt phase of a capital case that the accused [who steadfastly has maintained his innocence] demonstrates no remorse for what the prosecutor says is his criminal act, and comments upon the contrast between the reaction of the accused to photos of his deceased child with the reaction of the child's young mother, who became hysterical during the trial when the prosecutor thrust a picture of her dead baby at her for the claimed purpose of having her identify, not the child, but barettes depicted in the child's hair, and when those barettes could be, and were, identified as having been in the baby's hair when her body was recovered.
Twenty-Ninth Assignment of Error: The trial court erred to the prejudice of appellant, and in violation of his right to due process of law, and to be free from cruel and unusual punishments, to which rights he is secured by the Eighth and Fourteenth Amendments to the United States Constitution, and by Art. I. Secs. 9 and 16 of the Ohio Constitution.
1. It is a denial of due process of law and a violation of the proscription against cruel and unusual punishment embodied in the Ohio and United States Constitutions for a trial court to "correct" the record in a capital case to reflect that a jury verdict for death, journalized prior to the jury's consideration and weighing factors relevant to punishment, be deemed journalized after such consideration, where there is insufficient evidence in the record to justify the conclusion of the trial court that the death verdict was not signed and filed prior to the penalty trial, as the original record indicates.
2. The improper correction of the record by the trial court, if permitted to stand, deprives one convicted and sentenced to death of procedural and substantive due process of law, and inflicts cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and Art. I. Secs. 9 and 16 of the Ohio Constitution, in that the defendant is denied the opportunity to litigate a legitimate constitutional issue, since the trial court has thus improperly removed from the record the fundament for his claim.
Petitioner's twenty-seventh and twenty-eighth assignments of error were filed in a supplemental brief. J.A. Vol. IV, at 1042.
In a second supplemental brief filed on June 27, 1994, petitioner re-argued his seventh assignment of error and added the twenty-ninth assignment of error. J.A. Vol. IV, at 1090.
On December 21, 1994, the court of appeals issued a decision rejecting petitioner's assignments of error, and making an independent determination that petitioner's death sentence was appropriate and not disproportionate.
The decision issued by the court of appeals addressed two causes that had been consolidated for appeal. Petitioner's appeal of his convictions and death sentence were docketed as C-910916. Petitioner was also granted leave to pursue a delayed appeal from the judgment entered by the trial court on April 22, 1994 correcting and supplementing the record, which appeal was docketed as C-940487. Both cases were consolidated for appeal.
Represented by the same two attorneys who had represented him in the court of appeals below, petitioner perfected a timely appeal to the Supreme Court of Ohio on January 30, 1995. Counsel for petitioner raised the following propositions of law:
Proposition of Law No. 1: The death sentence cannot stand where imposed following prejudicial prosecutorial misconduct during argument to the jury at the sentencing phase of the trial, which arguments, individually and cumulatively, violated appellant's rights under the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Art. I. Secs. 9, 10, and 16 of the Ohio Constitution, to-wit: (1) misstatements of the law; (2) arguments that the death sentence "must be inflicted in order to maintain a civilized law and order society;" arguments stressing several nonstatutory aggravating factors, including (3) the brutality of the crime (4) the status of the victim as a defenseless baby, (5) the murder itself, (6) and the prior record of the defendant; arguments that (7) the mitigating factor of the appellant's youth was canceled out by the very young age of the victim; (8) that certain mitigating factors not raised by the defense did not exist, i.e., mental defect or disease [R.C. 2929.04(B)(3)] and lack of a prior record [R.C. 2929.04(B)(5); and (9) excessive comment on the unsworn statement of the appellant.
Proposition of Law No. 2: A death sentence is unconstitutionally imposed under the constitutional rights of the accused under the Eighth and Fourteenth Amendments to the Constitution of the United States, and in violation of Art. I. Secs. 9 and 10 of the Ohio Constitution, where the trial court overrules a defense motion in limine to limit the prosecution's penalty phase argument to the aggravating factors proved at the guilt-or-innocence phase of the proceedings.
1. Egregious misconduct by the prosecutor in the penalty phase of capital proceedings requires reversal, and where the prosecutor's final argument for death of Defendant incorporates nonstatutory aggravating factors, and in addition, calls for a death sentence later imposed in required by the United States and Ohio Constitutions.
2. Only the aggravating factor for which the accused has been indicted may support a decision for death; resort to nonstatutory aggravating factors requires reversal of the death sentence.
3. Arguments to a jury at the sentencing phase of a capital prosecution that the death sentence is required in order to maintain a "civilized law and order society" are grossly prejudicial and inflammatory, and require the reversal of the death sentence imposed after such arguments.
4. An argument to impose the death penalty which misstates the law is unlawful and prejudicial, and a death sentence imposed following such an argument must be reversed.
5. Arguments for the death sentence which focus on the nature and circumstances of the offenses, i.e., the brutality, gruesomeness, and heinousness of the murders, constitute prejudicial, reversible constitutional error, requiring reversal of the death sentence obtained thereby.
6. The status of the victim as a defenseless baby is a prejudicial, and nonstatutory aggravating factor, and the argument that the accused should die for killing such a victim is contrary to law, prejudicial, and unconstitutional, and compels reversal of the death sentence imposed following such arguments.
7. The murder itself is not a statutory aggravating factor under Ohio law, and an argument by the prosecution at the penalty phase of a capital proceeding to the jury to consider the killing itself as an aggravating factor, prejudicially injects a nonstatutory aggravating factor into the weighing process, skewing the result, and rendering the result — a death verdict — a violation of the Eighth and Fourteenth Amendments to the Constitution of the United States, and Art. I. Sec. 9 of the Ohio Constitution.
8. It is reversible error for the prosecution to argue that the defendant's prior record is an aggravating factor, especially where the defense has not advanced lack of a prior record as a mitigating circumstance; any death sentence imposed following such prosecutorial misconduct must be reversed.
9. The youth of the defendant, proffered as a statutory mitigating factor, may not be canceled out by the younger age of the victim, which is not a statutory aggravating factor, and, where prosecutors are permitted to argue that the youth of the defendant is so canceled out by the fact that the victim is a six month old baby, violates the right of the defendant to meaningful consideration of a statutory mitigating factor, and his death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution, and Art. I. Sec. 9 of the Ohio Constitution.
10. It is the defendant who has the right to present and argue mitigating factors during the penalty phase of a capital trial, and if he does not do so, no comment on any factors not raised by him is permissible.
11. It is prejudicial, reversible error for a trial court to permit the prosecutor, at the penalty phase of a capital trial, to comment upon the unsworn statement of the accused, beyond the mere fact that the statement was unsworn, in violation of the rights of the accused under the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Art. I. Secs. 9 and 10 of the Ohio Constitution.
12. Where there are several instances of prosecutorial misconduct during argument at the penalty phase of a capital trial, their prejudicial effect upon the death verdict must be gauged not only individually, but for their collective and cumulative effect, and where the cumulative effect of all such instances is manifestly prejudicial, reversal of the death sentence is required by the United States and Ohio Constitutions.
Proposition of Law No. 3: Egregious prosecutorial misconduct in guilt phase argument in a capital proceeding requires reversal where it is prejudicial to the right of the accused to a fair trial, in violation of the right of the accused to due process of law, secured to him by the Fourteenth Amendment to the Constitution of the United States, and Art. I Sec. 16 of the Ohio Constitution.
1. It is improper for an attorney to express his personal belief or opinion as to the credibility of the witness or as to the guilt of the accused.
2. It is prejudicial, reversible error, and a denial of due process for a prosecutor, during final argument to the jury at the guilt/innocence phase of a capital trial, to throw one of the state's exhibit at the defendant.
3. It is prejudicial prosecutorial misconduct for the prosecution in a capital trial, to argue to the jury that defense counsel's duty is to confuse the jury.
4. It is prejudicial error for a prosecutor to comment during his argument to the jury at the guilt phase of a capital case that the accused [who steadfastly has maintained his innocence] demonstrates no remorse for what the prosecutor says is his criminal act, and comments upon the contrast between the reaction of the accused to photos of his deceased child with the reaction of the child's young mother, who became hysterical during the trial when the prosecutor thrust a picture of her dead baby at her for the claimed purpose of having her identify, not the child, but barettes depicted in the child's hair, and when those barettes could be, and were, identified as having been in the baby's hair when her body was recovered.
Proposition of Law No. 4: A court speaks through its journal, and where that journal indicates that the jury in a capital case has already determined that the accused should die for his crime, and a signed verdict to that effect is entered on the journal of the court even before the evidence is adduced at the penalty phase of the proceedings, which phase commences after the entry of the penalty verdict, the judgment and death sentence must be reversed as being in violation of the Constitutional rights of the accused to due process, a fair and impartial jury, and to be free from cruel and unusual punishment, as well as their counterparts in the Ohio Constitution, Art. I. Secs. 5, 9, and 16.
Proposition of Law No. 5: It is a denial of due process of law and a violation of the proscription against cruel and unusual punishment embodied in the Ohio and United States Constitutions for a trial court to "correct" the record in a capital case to reflect that a jury verdict for death, journalized prior to the jury's consideration and weighing of factors relevant to punishment, be deemed journalized after such consideration, where there is insufficient evidence in the record to justify the conclusion of the trial court that the death verdict was not signed and filed prior to the penalty trial, as the original record indicates.
Proposition of Law No. 6: Where the trial court finds that the mitigating circumstance of innocence is present, and further finds that mercy should be granted in imposing sentence, the imposition of the death sentence violates the Eighth Amendment and Art. I. Sec. 9 of the Ohio Constitution.
Proposition of Law No. 7: Where the trial court in a capital case files its sentencing opinion 16 months late, fails to delineate the mitigating factors raised by the accused, and fails to state the reasons why aggravation outweighs mitigation, the death sentence imposed violates the Eighth Amendment prohibition against cruel and unusual punishment, and the right to due process of law under the Fourteenth Amendment, both of the U.S. Constitution, and their counterparts in the Ohio Constitution, Art. I. Secs. 9 and 16.
Proposition of Law No. 8: Where the opinion of the court of appeals fails to state the reasons why aggravation outweighs mitigation, a death sentence affirmed by that court is constitutionally infirm, violating the Eighth Amendment and Art. I. Sec. 9 of the Ohio Constitution, and must be set aside.
Proposition of Law No. 9: Where the acts and omissions of counsel at a criminal trial fall below an objective standard of reasonableness to the prejudice of their client, who is convicted and sentenced to death, then the client has been deprived of the effective assistance of counsel in violation of his constitutional rights under the Sixth, Eighth, and Fourteenth Amendments, and Art. I. Secs. 9 and 10 of the Ohio Constitution, and his conviction and death sentence must be revoked.
A. Failure to object to the penalty phase arguments of the state.
B. Failure to object to the prosecutor's guilt phase arguments.
C. Failure to object to leading questions by the prosecutors.
D. Failure to object to the prosecution adducing evidence as to the nonexistence of a statutory mitigating factor. (R.C. § 2929.04(B)(3))
E. Failure to object to the use of the word "recommend" in the instructions and verdict form.
F. Failure to object to improper redirect questions.
Proposition of Law No. 10: In assessing the claim that an appellant in a criminal case was denied a fair trial by various errors, some of which standing alone would be harmless, an appellate court is required to consider the errors not only for their individual effect, but must also consider the cumulative effect of all of the errors upon the right of the accused to a fair trial, and shall render judgment accordingly.
Proposition of Law No. 11: A trial court has the duty to intervene in a criminal trial where the rights of the accused are, have, or are about to be violated, and the defense attorneys fail to raise the issue of such errors by appropriate means, and, where such occurs and the rights of the accused to the fundamentally fair trial secured to the accused by due process are prejudiced, such errors must be reviewed on their merits on appeal.
Proposition of Law No. 12: The defendant in a capital case has the option of raising any statutory mitigating factor he wishes, and, where it is clear from the outset of the penalty phase of the trial that the defendant is not going to raise the statutory factor of a mental disease or defect substantially preventing him from realizing the criminality of his conduct (though not amounting to an insanity defense), or from conforming his conduct to the requirements of the law, it is error for the trial court to permit the prosecution to inquire of defense psychologists whether the defendant had a mental disease or defect, and whether he new right from wrong when the offense was committed.
Proposition of Law No. 13: The Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, and the Ohio Constitution guarantee to the due course of law, require the prosecution to prove each and every element of a criminal offense beyond a reasonable doubt, and in the absence of evidence sufficient to persuade a rational factfinder of each such element to that degree, a conviction of aggravated murder is based upon insufficient evidence, offends due process, and must be reversed.
Proposition of Law No. 14: The Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, and the Ohio Constitution guarantee to the due course of law require the prosecution to prove each and every element of a criminal offense beyond a reasonable doubt, and in the absence of evidence sufficient to persuade a rational factfinder of each such element to that degree, a conviction of kidnaping, and the capital specification based thereon is based upon insufficient evidence, offends due process, and must be reversed.
Proposition of Law No. 15: The Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, and the Ohio Constitution guarantee to the due course of law require the prosecution to prove each and every element of a criminal offense beyond a reasonable doubt, and in the absence of evidence sufficient to persuade a rational factfinder of each such element to that degree, a conviction of aggravated burglary and the related capital specification is based upon insufficient evidence, offends due process, and must be reversed.
Proposition of Law No. 16: Where the felonies underlying a two count indictment of capital murder, and which furnish two capital specifications to each of the two counts of aggravated murder are not proved beyond a reasonable doubt, the aggravated felony murder convictions of which those felonies form an essential element must be reversed, as must the death sentence, not only because the murder is not capital, but because the jury's consideration of one or both unproved felony specifications unfairly skewed the statutory weighing process, rendering the sentence unconstitutionally unreliable.
Proposition of Law No. 17: Where a defendant in a criminal case has been interviewed by court psychiatric personnel with respect to competence or a possible plea of not guilty by reason of insanity, but is found competent and proceeds to trial on a plea of not guilty, and does not raise his mental status in his defense, statements made in an uncounseled interview with court psychiatric personnel is not admissible in the absence of evidence that the accused was advised of his Miranda rights and knowingly, voluntarily, and intelligently waived his right to counsel, and where the trial court, over objection, admits statements made to such personnel in rebuttal of the trial testimony, the constitutional rights of the accused to the privilege against self-incrimination and the right to counsel have been violated, requiring reversal.
Proposition of Law No. 18: Where a prosecutor exhibits a photograph of the corpse of the child victim in a murder prosecution to the testifying mother of the child, the mother erupts in an emotional outburst which gives rise to a reasonable inference that the witness had not seen the photo before, and the prosecutor's stated reason for exhibiting the photo to the witness-mother was to have the mother identify, not her child, but two barrettes depicted in the photo as being in the hair of the corpse, which barrettes were recovered from the boy and were moments before identified by the witness, the trial court errs in denying defense objections and motions for mistrial, and violates the right of the accused to a fundamentally fair trial secured to him by the Due Process Clause of the Fourteenth Amendment, and Art. I. Sec. 16 of the Ohio Constitution.
Proposition of Law No. 19: A death sentence recommended by a jury from service on which one or more veniremen were excused because of their views concerning capital punishment cannot stand unless it affirmatively appears on the record that each such venireman excused for cause unequivocally indicates that his scruples against capital punishment will automatically prevent him from recommending the death penalty and/or that such views will render him unable to return a verdict of guilty no matter what the evidence, and that he is prevented by his scruples from following the instructions of the court and considering fairly the imposition of the death sentence.
Proposition of Law No. 20: It is constitutionally impermissible for the trial court to instruct the jury that their verdict is merely a recommendation, as such an instruction impermissibly attenuates the jury's sense of responsibility for its decision, and a death sentence imposed following such an instruction is constitutionally infirm.
Proposition of Law No. 21: The increased need for reliability required in capital cases by the Ohio and Federal Constitutions mandates the granting to the defense of more than six peremptory challenges.
Proposition of Law No. 22: If an interrogation occurs without the presence of an attorney and a statement is taken, a heavy burden rests upon the prosecution to demonstrate that the defendant knowingly and intelligently waived his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to retained or appointed counsel.
Proposition of Law No. 23: Where a warrantless search of the residence of a suspect, yielding incriminating evidence, is based upon an ineffective waiver purportedly executed by the accused, his constitutional rights have been violated by the illegal search and seizure, and all evidence seized pursuant to such waiver is inadmissible in evidence against him.
Proposition of Law No. 24: Where the state has failed to prove beyond a reasonable doubt that the aggravating factors of which the appellant was convicted outweigh the mitigating factors established by the evidence, and/or that the sentence of death is appropriate, the appellate court reviewing the case must reverse the death sentence and either resentence the accused to life imprisonment, or remand for that purpose.
Proposition of Law No. 25: The Eighth and Fourteenth Amendments to the Constitution of the United States prohibit sentences which are disproportionately severe in relation to the crime committed, sentences visited upon others for the same crime in the same and other jurisdictions.
Proposition of Law No. 26: The Ohio Death Penalty statutes are unconstitutional, violating the Eighth Amendment proscription against cruel and unusual punishments, the Fourteenth Amendment guarantees to due process of law and to the equal protection of the laws, an also violating the concomitant provisions of the Ohio Constitution.
(A) The death penalty is so totally without penological justification that it results in the gratuitous infliction of suffering, and that consequently, there is no rational state interest served by the ultimate sanction.
(B) Both locally, statewide, and nationally, the death penalty is inflicted disproportionately upon those who kill whites as opposed to those who kill blacks, and even within Hamilton County, the death penalty is selectively imposed, rendering the penalty as applied in Hamilton county arbitrary and capricious on the one hand, and the product of racial discrimination of the other.
(C) The use of the same operative fact to first elevate what would be "ordinary" murder to aggravated murder, and then to capital, death-eligible aggravated murder permits the state (1) to obtain a death sentence upon less proof in a felony murder case than in a case involving prior calculation and design, although both crimes are ostensibly equally culpable under the revised code, and (2) fails to narrow the capital class to those murderers for whom the death penalty is constitutionally appropriate.
(D) The requirement that a jury must recommend death upon proof beyond a reasonable doubt that the aggravating circumstances outweigh only to the slightest degree the mitigating circumstances renders the Ohio capital statutes quasi-mandatory and permits the execution of an offender even though the mitigating evidence falls just short of equipoise with the aggravating factors, with the result that the risk of putting someone to death when it is practically as likely as not that he deserves to live renders the Ohio capital process arbitrary and capricious, and, in the absence of a requirement that, before death may be imposed, aggravating factors must substantially outweigh mitigating factors, unconstitutional.
(E) The Ohio capital statutes are constitutionally infirm in that they do not permit the extension of mercy by the jury even though the aggravating factors may only slightly outweigh mitigating factors.
1. The Ohio capital statutes are unconstitutionally because they require the death sentence and fail to permit the jury to recommend mercy even though the aggravating factors only marginally outweigh the mitigating factors, and in spite of the fact that there may be factors strongly suggesting the appropriateness of a penalty less than death in a given case.
(F) The provisions of Crim. R. 11(C)(3) permitting a trial court to dismiss specifications upon a guilty plea only under the nebulous and undefined concept "in the interests of justice" (1) needlessly encourage guilty pleas and the concomitant waiver of the right to jury, to compulsory process, and to confrontation, and (2) reintroduces the possibility that the death sentence will be imposed arbitrarily and capriciously.
1. The provisions of Crim. R. 11(C)(3) needlessly encourages the entry of guilty pleas and the concomitant waivers of the right to jury trial, confrontation, and compulsory process, and renders the death penalty statutes unconstitutional.
2. The possibility that some capitally-indicted capital defendants can avoid the death penalty by pleading guilty where the trial judge dismisses the capitally-necessary specifications on the undefined standard "in the interests of justice" reintroduces the element of arbitrariness and caprice in the Ohio capital sentencing scheme and renders the statutes unconstitutional.
(G) The Ohio capital sentencing scheme is unconstitutional because it provides no standards for sentencing or review at several significant stages of the process and consequently death sentences are imposed, and reviewed, without sufficient statutory guidance to juries, trial courts and reviewing courts to prevent the unconstitutional arbitrary and capricious infliction of the death penalty.
1. To be constitutional, a state death penalty scheme must provide standards to guide the sentencer in the reasonable exercise of the awesome power entrusted to it, in order to avoid the influence of arbitrariness and caprice in the sentencing decision, and where the statutes provide no meaningful standards to guide the sentencer, and reviewing courts, no death sentence imposed under such a system may constitutionally stand.
2. There are no standards set forth for the guidance of juries, trial judges, or reviewing courts in the weighing of aggravating and mitigating factors sufficient to assure that any given death sentence has been constitutionally imposed, and therefore no death sentence may be constitutionally imposed.
On March 5, 1996, the Supreme Court of Ohio issued a decision rejecting petitioner's propositions of law, and concluding that petitioner's death sentence was appropriate and proportionate. State v. Hill, supra, 75 Ohio St. 3d 195; J.A. Vol. VI, at 1853. On April 24, 1996, the Ohio Supreme Court denied without opinion petitioner's motion for reconsideration. State v. Hill, 75 Ohio St. 3d 1453 (1996); J.A. Vol. VI, at 1891.
The United States Supreme Court denied the petition for a writ of certiorari on October 7, 1996. J.A. Vol. VII, at 2014.
B. Original Postconviction Action
While pursuing his certiorari petition to the United States Supreme Court, petitioner, represented by new counsel, filed a postconviction action in the state trial court on September 20, 1996. The claims for relief that petitioner raised may be summarized as follows:
First Claim for Relief: Petitioner's convictions and/or sentences are void or voidable because death by electrocution unconstitutionally constitutes a blatant disregard for the value of human life, entails unnecessary and wanton infliction of pain, and diminishes the dignity of man.
Second Claim for Relief: A defendant is deprived of the effective assistance of counsel guaranteed by the United States and Ohio Constitutions where defense counsel fails to conduct an adequate background search for competent experts and, because of the defense expert's incompetence, inaccurate psychological evidence is presented by the defense at the penalty phase.
Third Claim for Relief: A defendant is deprived of the effective assistance of counsel guaranteed by the United States and Ohio Constitutions where defense counsel fails to conduct an adequate background search for, and preparation of, mitigation witnesses, because, as a result, insufficient and poorly prepared mitigation evidence is then presented by the defense at the penalty phase.
Fourth Claim for Relief: A defendant is deprived of the effective assistance of counsel guaranteed by the United States and Ohio Constitutions where defense counsel fails to conduct an adequate background search for fact witnesses, who would be able to provide information about a Defendant's conduct if the Defendant is unwilling to speak to his attorneys about his involvement in the death charged.
Fifth Claim for Relief: A defendant is deprived of the effective assistance of counsel guaranteed by the United States and Ohio Constitutions where defense counsel fails to bring the issue of "non-communication" to the Court's attention and fails to seek leave to withdraw if withdrawal and the appointment of new counsel would be in the best interest of the Defendant.
Sixth Claim for Relief: A defendant is deprived of the effective assistance of counsel guaranteed by the United States and Ohio Constitutions where defense counsel fails to move for a mistrial when it becomes evidence that an officer of the Court withheld critical information from defense counsel and the Court that could have been used to prevent a conviction for capital murder and the imposition of the death penalty.
Seventh Claim for Relief: Hill was unconstitutionally deprived of his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution when an officer of the Court withheld critical information from defense counsel and the Court that could have been used to prevent a conviction for capital murder and the imposition of the death penalty.
Eighth Claim for Relief: The Ohio Legislature has seen fit to require proportionality reviews in capital cases. Ohio Rev. Code § 2929.05(A) provides that the appellate courts shall make an independent, de novo review of all the evidence and facts in the case to determine if the "sentence of death is appropriate," . . . "the court of appeals and the Supreme Court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases." (Emphasis added.) The statute mandates that the appellate courts perform proportionality review to determine appropriateness and excessiveness in the sentence. This makes proportionality an integral part of Ohio's review of a capital sentence. The Ohio courts have not performed any meaningful proportionality review, but instead simply have failed to to follow the spirit and intent of the statutory requirement. The courts typically limit comparison to cases in which the death sentence was imposed. Additionally, they make no meaningful comparison of those cases. Instead, the courts list cases in which the same aggravating circumstance was found, ignoring whether those so-called "similar" cases also had additional aggravating circumstances or what mitigation was presented. The court ignores those cases with similar facts where the death penalty was not imposed. This is not the "meaningful appellate review [that] ensure[s] that the death penalty is not imposed arbitrarily or irrationally." Parker v. Dugger, 498 U.S. 308, 321 (1991).
On October 31, 1996, the trial court issued findings of fact and conclusions of law denying petitioner's postconviction action on the pleadings; no discovery was conducted and no evidentiary hearing was held. J.A. Vol. IX, at 2636.
Petitioner appealed to the Ohio Court of Appeals for the First Appellate District and, represented by the same counsel, raised the following assignments of error:
First Assignment of Error: The trial court erred by denying Defendant-Appellant's Motion for Funds for Expert Assistance of Leave to Amend.
1. In a death penalty post-conviction proceeding, the petitioner is constitutionally entitled to the assistance of experts and for the funds necessary to retain the same.
2. In a death penalty post-conviction proceeding, a motion for expert assistance to investigate allegations of cognitive brain damage and/or mental illness should be granted.
Second Assignment of Error: The trial court erred by denying Defendant-Appellant's Motion for Leave to Conduct Discovery.
1. In a death penalty post-conviction proceeding, the petitioner is constitutionally entitled to conduct discovery on fact-based claims supported by evidence outside the record.
2. Post-conviction proceedings are civil in nature and discovery should be permitted to enable a petitioner to support fact-based claims supported by evidence outside the record.
3. In a death penalty post-conviction proceeding, unopposed requests to conduct discovery should be granted.
Third Assignment of Error: The trial court erred by not granting an evidentiary hearing on Defendant-Appellant's post-conviction petition.
1. In a death penalty post-conviction proceeding, the Rules of Civil Procedure must be followed in determining whether or not an evidentiary hearing should be conducted on the claims raised in the post-conviction petition.
2. In a death penalty post-conviction proceeding, facially sufficient claims, raising factual matters outside the record, mandate an evidentiary hearing.
3. In a death penalty post-conviction proceeding, factual allegations supporting a constitutional violation mandate a hearing unless the state can show that there is no genuine issue as to any material fact.
4. In determining whether or not there are grounds warranting a hearing on a death penalty post-conviction petition, affidavits offered in support of the petition should be accepted as true and material conflicts between the affidavits and the record should be resolved at the evidentiary hearing.
5. Section 2953.21, Ohio Revised Code, does not permit dismissal of a post-conviction petition without a hearing if the petition and the matters considered therewith indicate a possibility that the petitioner might be entitled to relief.
Fourth Assignment of Error: The trial court erred in denying Defendant-Appellant's First Claim for Relief set forth in his post-conviction petition.
1. The death penalty is unconstitutional.
Fifth Assignment of Error: The trial court erred in denying Defendant-Appellant's Second Claim for Relief set forth in his post-conviction petition without conducting an evidentiary hearing.
1. When a post-conviction petition alleges that trial counsel were ineffective for failing to retain competent, unbiased psychological experts and present accurate mitigating evidence to the jury during the penalty phase of a death penalty trial, evidence outside of the record in support of this allegation warrants an evidentiary hearing on the issue.
Sixth Assignment of Error: The trial court erred in denying Defendant-Appellant's Third Claim for Relief set forth in his post-conviction petition without conducting an evidentiary hearing.
1. When affidavits submitted with the post-conviction petition allege that trial counsel did not interview and prepare the mitigation witnesses called during the penalty phase of a death penalty trial, Defendant-Appellant's claims of ineffective assistance of trial counsel are supported by evidence outside the record, thereby mandating a hearing on this claim at which time any conflicts between the record and the evidence outside the record can be resolved.
Seventh Assignment of Error: The trial court erred in denying Defendant-Appellant's Fourth, Fifth, Sixth Claims for Relief set forth in his post-conviction petition without conducting an evidentiary hearing.
1. When affidavits submitted with the post-conviction petition indicate that (1) trial counsel were unable to adequately prepare a defense, because the Defendant was unable to discuss the facts of the offense with counsel and (2) trial counsel were aware that Defendant had confided in a probation officer as to the actual facts of the offense, a facially sufficient claim of ineffective assistance of counsel was alleged and warranted an evidentiary hearing.
Eighth Assignment of Error: The trial court erred in denying Defendant-Appellant's Seventh Claim for relief set forth in his post-conviction petition without conducting an evidentiary hearing.
1. When evidence outside the record indicates that an officer of the Court possessed, but refused to timely disclose, information that could have prevented a guilty verdict and/or the sentence of death on the charge of aggravated murder, the trial court is required to conduct an evidentiary hearing to determine if post-conviction relief is warranted.
Ninth Assignment of Error: The trial court erred in denying Defendant-Appellant's Eighth Claim for Relief set forth in his post-conviction petition without conducting an evidentiary hearing.
1. The Ohio proportionality review conducted regarding Defendant-Appellant's death penalty was constitutionally invalid and should have been reviewed during an evidentiary hearing.
On November 21, 1997, the appellate court issued a decision rejecting petitioner's assignments of error and affirming the trial court's judgment denying petitioner's postconviction action. J.A. Vol. X, at 2798.
Petitioner appealed to the Supreme Court of Ohio, filing a memorandum in support of jurisdiction on January 5, 1998. (J.A. Vol. XI, 2803.) On March 11, 1998, the Supreme Court of Ohio issued a summary order declining to accept jurisdiction over petitioner's appeal. ( State v. Hill, 81 Ohio St. 3d 1468 (1998); J.A. Vol. XI, at 2828.) Shortly thereafter, petitioner initiated these habeas corpus proceedings.
C. Second Postconviction Action
Petitioner commenced this habeas corpus proceeding on June 19, 1998, and filed his initial habeas corpus petition on June 26, 1998. On November 12, 1998, petitioner filed a motion asking the Court to hold the proceeding in abeyance while petitioner returned to state court to exhaust claims that he had included in his habeas corpus petition but had never presented to the state courts. In an Opinion and Order dated December 21, 1998, the Court denied petitioner's motion without prejudice, but advised him that he was free to pursue additional state court remedies during the pendency of this habeas corpus proceeding. Subsequently, petitioner filed a second postconviction action in the state trial court, as well as an application for delayed reconsideration of his direct appeal in the state court of appeals.
Represented by the Ohio Public Defender's Office and attorneys James B. Hadden and David Bloomfield, Jr., petitioner filed a second postconviction action pursuant to O.R.C. § 2953.23(A)(2) on February 18, 2000. J.A.Vol. XIV, at 135. In addition to attacking the constitutionality of O.R.C. § 2953.23(A)(2) due to the restrictions it applies on the state courts' ability to entertain second or successive postconviction actions, petitioner also raised the following grounds for relief:
First Ground for Relief: The judgment and sentence against Petitioner Hill are void or voidable on the grounds that through the use of peremptory challenges, prosecutors excluded African-Americans from Mr. Hill's petit jury in violation of Petitioner's rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution.
Second Ground for Relief: The judgment and sentence against Petitioner Hill are void or voidable on the grounds that they were obtained in violation of Petitioner's rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article I § 10 of the Ohio Constitution guaranteeing the accused the right to effective assistance of counsel. (Trial Phase)
A. Trial counsel was ineffective for failing to object to several improper jury instructions at the culpability phase: 1) the trial court incorrectly added an uncharged theft offense as an element of aggravated burglary — this created a material variance on the charge of aggravated burglary from the charge as it was indicted; 2) the trial court's incorrect definition of "reasonable doubt" — it diluted from State's burden of proof as required by the Due Process Clause; 3) the trial court's incorrect definition of "purpose" — it shifted the burden of proof to Mr. Hill by creating a conclusive presumption of purpose to kill from predicate facts. And, further, the jury was also instructed that purpose to kill may be inferred. These two instructions together created a mandatory rebuttable presumption where purpose was presumed from the homicide itself; 4) the trial court's misleading definition on causation by foreseeable result — the definition made Mr. Hill culpable by the mere performance of an illegal act; 5) the trial court's misleading charge on the element of "principal offender" (second specification to count one) — it allowed the jury to convict Mr. Hill absent a finding that he was the principal offender in the aggravated murder; 6) the trial court's error in failing to instruct the jury that it had to be unanimous in finding that Mr. Hill was either the principal offender or that he acted with prior calculation or design and that Mr. Hill could be found guilty only if the jury was unanimous as to one or both alternatives; and 7) the trial court's instruction on "kidnapping" which included the element of "serious physical harm" violated Mr. Hill's right against double jeopardy — there was no harm to the victim apart from the homicide itself.
B. Trial counsel was ineffective for failing to request an instruction on the lesser included offense of involuntary manslaughter with regard to the counts of aggravated murder.
C. Trial counsel failed to investigate or interview witnesses for Mr. Hill's defense. Defense counsel was so unprepared that they requested, and received, a few additional hours to prepare the witness list, thus barely avoid sanctions on the first day of trial. Defense counsel then directed Mr. Hill's family to pull all of the witnesses and their information together in the period of a few hours. Because the family was unable to meet this impossible deadline, Mr. Hill, a borderline mentally retarded and mentally ill client — who also suffers from organic brain impairment — was commanded by the court to scrawl out his own witness list for the State. As a direct result, Mr. Hill's attorneys turned in an incomplete list and the trial court prohibited an alibi witness, Diane Anderson, from testifying and witnesses who were called were ill-prepared to testify. Trial counsel also failed to object tot he cross-examination testimony of family members that was gleaned as a result of the State's completely improper use of ex parte subpoenas.
D. Trial counsel failed to interview any witnesses on the State's discovery list.
E. Trial counsel failed to request the appointment of experts necessary to present his defense at trial. R.C. § 2929.024. Specifically, trial counsel failed to request the appointment of: 1) a competent pathologist to rebut the testimony of the coroner; 2) an expert to rebut the testimony of the State's latent fingerprint expert; 3) an expert to rebut the testimony of the State's "plastic bag" expert; 4) competent mental health experts to testify about Mr. Hill's serious mental impairments and his inability to give factually reliable statements, a voluntary statement, or make a knowing and intelligent waiver of his constitutional rights.
F. Trial counsel was ineffective for calling Hill to testify on his own behalf at the culpability phase. Hill is labeled borderline mentally retarded and suffers from Major Depressive Disorder with Psychotic Features, Paranoid Personality Disorder, and Substance Abuse Dependence. Further, Mr. Hill was also suffering from organic brain impairment at the time of his capital trial. The confused information that came out of the petitioner's own mouth and conflicting rebuttal testimony offered by Court Clinic workers actually prejudiced him.
G. Trial counsel was ineffective for not asserting proper Batson challenges when the State used peremptory challenges to strike three African-Americans from Hill's jury.
H. Trial counsel was ineffective during voir dire as they: 1) failed to ask questions concerning Mr. Hill's defenses; 2) failed to inquire about mitigating factors; 3) informed jurors they would have to convict Hill of aggravating circumstances to reach mitigation; 4) informed the jury that the death verdict was only a recommendation; 5) misdefined aggravating circumstances as mitigating factors; 6) misstated when Mr. Hill would eligible for parole on a life verdict; 7) reviewed the burden of proof so that Mr. Hill had to prove that he was entitled to receive a sentence less than death; 8) failed to address the issue of racial prejudice with the jurors — this was crucial as their client was a capital defendant who was African-American. This utter failure to engage in racial bias questioning was ineffective.
Third Ground for Relief: The judgment and sentence against Petitioner Hill are void or voidable on the grounds that they were obtained in violation of Petitioner's rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article I § 10 of the Ohio Constitution guaranteeing the accused the right to effective assistance of counsel. (Mitigation Phase)
A. Trial counsel failed to request the services of an independent and competent expert psychologist pursuant to R.C. § 2929.024. The State was permitted to collect family interview notes taken by Court Clinic personnel, which were used to cross-examine the family members who testified at the penalty phase. The State also improperly elicited opinions from the Court Clinic Psychologist at mitigation as to the family members' "motivations" in testifying on Mr. Hill's behalf and the content of their testimony. Indeed, the psychologist for the Court Clinic went beyond reporting her "findings" and functioned as an agent of the State by recounting her conversations with and negative impressions of Mr. Hill's family.
B. Trial counsel failed to object to the State's improper use of the clinic's interview notes with family members for cross-examination at mitigation.
C. Trial counsel failed to provide necessary records, essential social history information or properly to brief the court psychologist. This is a critical function of counsel as it enables the expert to present a compete picture of the defendant at the mitigation phase.
D. Trial counsel failed to object to: 1) the court's erroneous directive that the jury must be unanimous before it could find that the aggravating circumstances did not outweigh the mitigating factors — a single juror, however, may find that the aggravating circumstances do not outweigh the mitigating factors; 2) improper identification of aggravating circumstances — the jury was instructed to consider any evidence that was relevant to the nature and circumstances of the aggravating circumstances — this rendered the deliberations unreliable because the jury was free to consider any evidence of the homicide itself as relevant. Further, relevance is a legal question for the court and not a factual question for the jury; 3) the court's improper instruction that shifted the burden of proof to Mr. Hill on the weighing process (the instruction required the jury to find that the mitigation outweighed the aggravating circumstances before a life verdict could be signed). Rather, Mr. Hill should have had no burden of persuasion in the jury's weighing task; 4) the court's instruction that it must determine if death is appropriate before considering life; 5) the court's improper definition of § 2929.04(B)(7) mitigating factors.
E. Trial counsel failed to request essential instructions at mitigation that: 1) Genesis enjoyed the presumption of life; 2) the trial court had merged both counts of aggravated murder and the aggravating circumstances; 3) the jury need not be unanimous to consider a factor as mitigation — an individual juror can decide for herself if a particular mitigating factor deserved weight; and 4) Mr. Hill faced additional prison time for Kidnapping and Aggravated Burglary and the impact of consecutive sentences — this instruction would have given accurate information about Mr. Hill's actual date of parole eligibility if the jury returned a life verdict.
Fourth Ground for Relief: The judgment and sentence against Petitioner Hill are void or voidable on the grounds they were obtained in violation of Petitioner's rights under the Fifth and Fourteenth Amendments of the United States Constitution due to pervasive prosecutorial misconduct that occurred at his capital trial. The misconduct was so egregious that it denied him a fair trial. As a result, Petitioner Hill was prejudiced. (The State improperly compelled witnesses to meet with the prosecution after the State issued exparte subpoenas.)
Fifth Ground for Relief: Petitioner Hill's convictions and sentences are void and/or voidable because the State withheld impeaching evidence from the defense in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 1, 2, 5, 9, 10, 16 and 20 of the Ohio Constitution. (Evidence that Hamilton County Juvenile Court Probation Officer Lynda Phillips obtained information indicating that the victim had died as a result of an accident . . . and evidence that law enforcement officers gave polygraph examinations to the victim's mother and to Petitioner Hill.)
Sixth Ground for Relief: Petitioner Hill's convictions and sentences are void and/or voidable because the trial court refused to consider and weigh valid mitigation evidence in sentencing Mr. Hill to death, violating his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. (Lynda Phillips' testimony that the death of Domika Dudley was an accident.)
Seventh Ground for Relief: Petitioner Hill's convictions and sentences are void and/or voidable because the selection of [the] grand jury foreperson in Ohio and Hamilton County violates due process, fair cross-section, and equal protection guarantees. The underrepresentation of African-Americans and other minorities in the grand and petit juries in Hamilton County violates due process, fair cross-section, and equal protection guarantees. Also, there is a serious underrepresentation of women Grand Jury forepersons in the Grand Juries which returned capital indictments from 1982 through 1998. This underrepresentation of female citizens in the Grand Jury foreperson process violates due process, fair cross-section and equal protection guarantees. These errors violated Mr. Hill's rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Eighth Ground for Relief: Mr. Hill was incompetent at both the guilt and sentencing phases of his trial and at the time of his direct appeal in violation of his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Ninth Ground for Relief: Ohio is bound through the Supremacy Clause of Article VI of the United States Constitution to abide by the International Covenant on Civil and Political Rights (ICCPR); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) — all of which were entered into by the United States and prohibit the execution of Mr. Hill. Ohio's obligations are not limited by the reservations and conditions placed on these conventions by the Senate. The Senate's inclusion of conditions and reservations in treaties goes beyond the role of advice and consent. This is equivalent of the line-item veto, which is unconstitutional. Further, Ohio's obligations under the ICCP and not limited by the Senate's declaration that it is not self-executing. Whether a treaty is self-executing is a question for the judiciary.
J.A. Vol. XIV, at 135-166. On March 6, 2000, the trial court issued an entry denying petitioner's earlier motion requesting the trial court to recuse itself. J.A. Vol. XIV, at 377. Some three years later, on April 18, 2003, the trial court issued a decision declining to entertain petitioner's second postconviction action, finding that the petition did meet or even address the criteria under R.C. § 2953.23 for a second or successive petition. J.A. Vol. XIV, at 459.
Petitioner appealed to the Ohio Court of Appeals for the First Appellate District and raised the following assignments of error in a merit brief filed on September 3, 2003:
Assignment of Error No. I: The trial court erred when it did not declare R.C. § 2953.21 and 2953.23(A)(2) constitutionally infirm on their face and as applied to Appellant Hill.
Issue Presented for Review:
1. R.C. § 2953.23 violates the Separation of Powers, Due Process and the Open Courts Provisions. Article I, § 16, Article II, § 32 of the Ohio Constitution, Fifth, Sixth, Eighth, and Fourteenth Amendments.
Assignment of Error No. II: The trial court erred when it failed to grant Genesis Hill's request to conduct discovery.
Issue Presented for Review:
1. A trial court must provide a post-conviction petitioner the opportunity to conduct discovery pursuant to the Ohio Civil Rules prior to considering a dispositive motion filed by the State. See Eighth and Fourteenth Amendments to the United States Constitution; O.R.C. § 2953.21; Ohio R. Civ. P. 56.
Assignment of Error No. III: The trial court erred when it failed to grant Genesis Hill relief on the first cause of action.
Issue Presented for Review:
1. The judgment and sentence against Genesis Hill are void or voidable on the grounds that through the use of peremptory challenges, prosecutors systematically excluded African-Americans from Hill's petit jury in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Assignment of Error No. IV: The trial court erred when it failed to grant Genesis Hill relief on the second cause of action.
Issue Presented for Review:
1. The judgment and sentence against Appellant Hill are void or voidable on the grounds that they were obtained in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Ohio Constitution guaranteeing the accused the right to effective counsel.
Assignment of Error No. V: The trial court erred when it failed to grant Genesis Hill relief as to the third cause of action.
Issue Presented for Review:
1. The judgment and sentence against Hill are void or voidable on the ground that it was obtained in violation of his rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article I, § 10 of the Ohio Constitution guaranteeing the accused the right to effective assistance of counsel.
Assignment of Error No. VI: The trial court erred when it failed to grant Genesis Hill relief as to the fourth cause of action.
Issue Presented for Review:
1. The judgment and sentence against Appellant Hill are void or voidable on the grounds that they were obtained in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution due to the pervasive prosecutorial misconduct that occurred at his capital trial.
Assignment of Error No. VII: The trial court erred when it failed to grant Genesis Hill relief as to the fifth cause of action.
Issue Presented for Review:
1. Appellant Hill's conviction and sentence is void or voidable because the State withheld impeaching evidence and exculpatory evidence from the defense in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.
Assignment of Error No. VIII: The trial court erred in denying Genesis Hill relief as to the sixth cause of action.
Issue Presented for Review:
1. Appellant Hill's conviction and sentence is void or voidable because the trial court refused to consider and weigh valid mitigation evidence in sentencing Hill to death, violating his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Assignment of Error No. IX: The trial court erred when it denied Genesis Hill relief as to the seventh cause of action.
Issue Presented for Review:
1. Appellant Hill's conviction and sentence is void or voidable because the selection of grand jury forepersons in Ohio and Hamilton County violates due process, fair cross-section, and equal protection guarantees. Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Assignment of Error No. X: The trial court erred when it failed to grant relief as to Genesis Hill's eight cause of action.
Issue Presented for Review:
1. Appellant Hill was incompetent at both the guilt and sentencing phases of his trial and at the time of his direct appeal in violation of his rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
J.A. Vol. XV, at 31-54. On December 24, 2003, the appellate court issued a judgment entry affirming the trial court's decision not to entertain petitioner's second postconviction action. J.A. Vol. XV, at 74.
Petitioner appealed to the Supreme Court of Ohio. He filed a memorandum in support of jurisdiction February 5, 2004 raising the following propositions of law:
Proposition of Law No. I: A trial court must provide a post-conviction petitioner the opportunity to conduct discovery pursuant to the Ohio Civil Rules prior to considering a dispositive motion filed by the State of Ohio. Eighth and Fourteenth Amendments to the United States Constitution; O.R.C. § 2953.21; Ohio R. Civ. P. 56.
Proposition of Law No. II: O.R.C. § 2953.23 violates the Separation of Powers, Due Process of Law and Open Courts provisions. Article I, § 16, Article II, § 32 of the Ohio Constitution; Fifth, Sixth, Eighth and Fourteenth Amendments.
Proposition of Law No. III: The judgment and sentence against Genesis Hill are void or voidable on the grounds that through the use of peremptory challenges, prosecutors systematically excluded African-Americans from Hill's petit jury in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Proposition of Law No. IV: A petitioner in a post-conviction proceeding is entitled to relief or in the alternative an evidentiary hearing when he presents evidence dehors the record that his trial counsels' performance did not meet the prevailing standard of practice and he was prejudiced by that deficient performance. Sixth, Eighth and Fourteenth Amendments.
Proposition of Law No. V: A petitioner in a post-conviction proceeding is entitled to relief or in the alternative an evidentiary hearing when he presents evidence dehors the record that the prosecutor engaged in pervasive misconduct. Fifth, Sixth, Eighth and Fourteenth Amendments.
Proposition of Law No. VI: A petitioner in a post-conviction proceeding is entitled to relief or in the alternative an evidentiary hearing when he presents evidence dehors the record that the trial prosecutor failed to provide defense counsel with exculpatory evidence in a timely manner to obtain his convictions and death sentence. Fifth, Sixth, Eighth and Fourteenth Amendments.
Proposition of Law No. VII: A petitioner in a post-conviction proceeding is entitled to relief or in the alternative an evidentiary hearing when he presents evidence that the victim's death was accidental and the trial court refuses to weigh this valid mitigation evidence. Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Proposition of Law No. VIII: A conviction will be reversed where the selection of the grand jury forepersons in Ohio and Hamilton County violates Due Process, Fair Cross-Section, and Equal Protection Guarantees. Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Proposition of Law No. IX: A petitioner in a post-conviction proceeding is entitled to relief or in the alternative an evidentiary hearing when he presents evidence dehors the record that he was incompetent at the time of trial and at the time of his direct appeal. Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
Proposition of Law No. X: A conviction will be reversed where the cumulative effect of the errors deprives the petitioner of a fair trial. Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
J.A. Vol. XVI, at 6-32. On May 12, 2004, the Supreme Court of Ohio issued a one-line entry summarily declining to accept jurisdiction over petitioner's appeal, thereby affirming the judgment of the appellate court below. J.A. Vol. XVI, at 45.
D. Rule 26(B) Application for Delayed Reopening of Direct Appeal
On October 1, 1999, pursuant to Ohio R. App. P. 26(B), petitioner filed an application for delayed reopening of his direct appeal in the court of appeals, the procedure in Ohio for raising claims of ineffective assistance of appellate counsel. According to the application, petitioner's appellate attorneys had performed unreasonably and to his prejudice in failing to raise the following assignments of error:
First Assignment of Error: During the penalty phase of Mr. Hill's case, the trial court incorrectly stated that the jury's recommendation — of either death or life imprisonment — must be unanimous. This defective instruction violated Mr. Hill's Eighth and Fourteenth Amendment rights under the United States Constitution to be free from deprivation of life without due process of law.
Second Assignment of Error: Through the use of peremptory challenges, prosecutors excluded African-Americans from Mr. Hill's petit jury in direct violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Third Assignment of Error: The actions of trial counsel deprived Mr. Hill of his right to the effective assistance of counsel during the culpability phase of his case in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
A. Trial counsel was ineffective for failing to object to several improper jury instructions at the culpability phase: 1) the trial court incorrectly added an uncharged theft offense as an element of aggravated burglary — this created a material variance on the charge of aggravated burglary from the charge as it was indicted; 2) the trial court's incorrect definition of "reasonable doubt" — it diluted from State's burden of proof as required by the Due Process Clause; 3) the trial court's incorrect definition of "purpose" — it shifted the burden of proof to Mr. Hill by creating a conclusive presumption of purpose to kill from predicate facts. And, further, the jury was also instructed that purpose to kill may be inferred. These two instructions together created a mandatory rebuttable presumption where purpose was presumed from the homicide itself; 4) the trial court's misleading definition on causation by foreseeable result — the definition made Mr. Hill culpable by the mere performance of an illegal act; 5) the trial court's misleading charge on the element of "principal offender" (second specification to count one) — it allowed the jury to convict Mr. Hill absent a finding that he was the principal offender in the aggravated murder; 6) the trial court's error in failing to instruct the jury that it had to be unanimous in finding that Mr. Hill was either the principal offender or that he acted with prior calculation or design and that Mr. Hill could be found guilty only if the jury was unanimous as to one or both alternatives; and 7) the trial court's instruction on "kidnapping" which included the element of "serious physical harm" violated Mr. Hill's right against double jeopardy — there was no harm to the victim apart from the homicide itself.
B. Trial counsel was ineffective for failing to request an instruction on the lesser included offense of involuntary manslaughter with regard to the counts of aggravated murder.
C. Trial counsel failed to investigate or interview witnesses for Mr. Hill's defense. Defense counsel was so unprepared that they requested, and received, a few additional hours to prepare the witness list, thus barely avoid sanctions on the first day of trial. Defense counsel then directed Mr. Hill's family to pull all of the witnesses and their information together in the period of a few hours. Because the family was unable to meet this impossible deadline, Mr. Hill, a borderline mentally retarded and mentally ill client — who also suffers from organic brain impairment — was commanded by the court to scrawl out his own witness list for the State. As a direct result, Mr. Hill's attorneys turned in an incomplete list and the trial court prohibited an alibi witness, Diane Anderson, from testifying and witnesses who were called were ill-prepared to testify. Trial counsel also failed to object tot he cross-examination testimony of family members that was gleaned as a result of the State's completely improper use of exparte subpoenas.
D. Trial counsel failed to interview any witnesses on the State's discovery list.
E. Trial counsel failed to request the appointment of experts necessary to present his defense at trial. R.C. § 2929.024. Specifically, trial counsel failed to request the appointment of: 1) a competent pathologist to rebut the testimony of the coroner; 2) an expert to rebut the testimony of the State's latent fingerprint expert; 3) an expert to rebut the testimony of the State's "plastic bag" expert; 4) competent mental health experts to testify about Mr. Hill's serious mental impairments and his inability to give factually reliable statements, a voluntary statement, or make a knowing and intelligent waiver of his constitutional rights.
F. Trial counsel was ineffective for calling Hill to testify on his own behalf at the culpability phase. Hill is labeled borderline mentally retarded and suffers from Major Depressive Disorder with Psychotic Features, Paranoid Personality Disorder, and Substance Abuse Dependence. Further, Mr. Hill was also suffering from organic brain impairment at the time of his capital trial. The confused information that came out of the petitioner's own mouth and conflicting rebuttal testimony offered by Court Clinic workers actually prejudiced him.
G. Trial counsel was ineffective for not asserting proper Batson challenges when the State used peremptory challenges to strike three African-Americans from Hill's jury.
H. Trial counsel was ineffective during voir dire as they: 1) failed to ask questions concerning Mr. Hill's defenses; 2) failed to inquire about mitigating factors; 3) informed jurors they would have to convict Hill of aggravating circumstances to reach mitigation; 4) informed the jury that the death verdict was only a recommendation; 5) misdefined aggravating circumstances as mitigating factors; 6) misstated when Mr. Hill would eligible for parole on a life verdict; 7) reviewed the burden of proof so that Mr. Hill had to prove that he was entitled to receive a sentence less than death; 8) failed to address the issue of racial prejudice with the jurors — this was crucial as their client was a capital defendant who was African-American. This utter failure to engage in racial bias questioning was ineffective.
Fourth Assignment of Error: Mr. Hill was denied his right to the effective assistance of counsel at the mitigation phase of his case in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
A. Trial counsel failed to request the services of an independent and competent expert pursuant to R.C. § 2929.024. See Glenn v. Tate (C.A. 6, 1995), 71 F.3d 1204. The State was permitted to collect family interview notes taken by Court Clinic personnel, which were used to cross examine the family members who testified in mitigation. The State also improperly elicited opinions from the Court Clinic Psychologist at mitigation as to the family's "motivations" in testifying on Mr. Hill's behalf and the content of their testimony.
B. Trial counsel failed to provide necessary records, essential social history information or properly to brief the court psychologist. Wallace v. Stewart (C.A. 9, 1999), 1999 WL 511348.
C. Trial counsel failed to object to: 1) the court's erroneous directive that a recommendation of life imprisonment must be unanimous; 2) improper identification of aggravating circumstances; 3) the court's mandatory death penalty instruction (must recommend death if aggravating circumstances outweigh mitigating circumstances); 4) the court's instruction that it must determine if death is appropriate before considering life; 5) the court's erroneous definition of "outweigh"; 6) the court's erroneous definition of "reasonable doubt"; 7) the court's improper instruction that Mr. Hill had the burden of proof for the life sentence; 8) the court's improper definition of § 2929.04(B)(7) mitigating factors; 9) State's use of the clinic's interview notes with family members for cross examination at mitigation.
D. Trial counsel failed to request essential instructions at mitigation that: 1) Genesis enjoyed the presumption of life; 2) the trial court merged both counts of aggravated murder and the aggravating circumstances; 3) the jury need not be unanimous to consider a factor as mitigation; and 4) Mr. Hill faced additional prison time for Kidnapping and Aggravated Burglary and the impact of consecutive sentences — this instruction would have given accurate information about Mr. Hill's actual date of parole eligibility if the jury returned a life verdict.
Fifth Assignment of Error: The trial court denied Mr. Hill's constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by failing to give proper sentencing instructions at the mitigation phase.
Sixth Assignment of Error: Mr. Hill's substantial right to due process under the Fifth and Fourteenth Amendments to the United States Constitution is violated when prosecutorial misconduct denies him a fair trial. (improperly compelled witnesses to meet with the prosecution after the State issued ex parte subpoenas)
Seventh Assignment of Error: The trial prosecutors' failure to provide Mr. Hill with material and exculpatory evidence regarding the trial and sentencing phases violated his rights as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Further, when the State suppresses this material and exculpatory information, trial counsel's ineffectiveness is state-induced in direct violation of the Sixth and Fourteenth Amendments to the United States Constitution. (evidence that Hamilton County Juvenile Court Probation Officer Lynda Phillips obtained information indicating that the victim had died as a result of an accident . . . and evidence that law enforcement officers gave polygraph examinations to the victim's mother and to Petitioner Hill)
Eighth Assignment of Error: The trial court erred when it refused to consider and weigh valid mitigation evidence in sentencing Mr. Hill to death, violating his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. (Lynda Phillips' testimony that the death of Domika Dudley was an accident)
Ninth Assignment of Error: The selection of grand jury foreperson in Ohio and Hamilton County violates due process, fair cross-section, and equal protection guarantees. Likewise, the underrepresentation of African-Americans and other minorities in the grand jury and petit jury in Hamilton County violates due process, fair cross-section, and equal protection guarantees. These errors violated Mr. Hill's rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Tenth Assignment of Error: Mr. Hill's sentence is void or voidable because the state denied him a fair proportionality review as required by statute in violation of the Fifth, Sixth, Eighth and Fourteenth Amendment to the United States Constitution. Ohio's proportionality statutes create a liberty interest that mandates that the appellate courts perform proportionality review to determine appropriateness and excessiveness in the sentence.
Eleventh Assignment of Error: Mr. Hill was incompetent at both the guilt and sentencing phases of his trial and at the time of his direct appeal in violation of his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Twelfth Assignment of Error: Ohio is bound through the Supremacy Clause of Article VI of the United States Constitution to abide by the International Covenant on Civil and Political Rights (ICCPR); the International Convention of the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) — all of which were entered into by the United States and prohibit the execution of Mr. Hill. Ohio's obligations are not limited by the reservations and conditions placed on these conventions by the Senate. Further, Ohio's obligations under the ICCP are not limited by the Senate's declaration that it is not self-executing.
J.A. Vol. XVII, at 8. On April 14, 2000, the appellate court issued an entry overruling a motion that petitioner had filed requesting all of the judges of the First District Court of Appeals to recuse themselves. J.A. Vol. XIX, at 73. On June 8, 2000, the appellate court issued an entry denying petitioner's Rule 26(B) application for reopening on the ground that petitioner had failed to show good cause for filing an untimely application. J.A. Vol. XIX, at 75. In so ruling, the appellate court expressly held that, "[t]he fact that appellant was represented by the same counsel in the direct appeals of his case to this Court and to the Ohio Supreme Court does not establish good cause for filing this application more than three and one-half years after the Ohio Supreme Court decided the direct appeal." Id. (citations omitted).
Petitioner appealed to the Supreme Court of Ohio. In a merit brief filed on September 15, 2000, petitioner raised the following propositions of law:
Proposition of Law No. I: An appellate court commits constitutional error when it refuses to consider whether an application for reopening contains any genuine issue of ineffective assistance of appellate counsel.
Proposition of Law No. II: An appellate court commits constitutional error when it denies an application to reopen where the appellant has shown good cause for an untimely filing.
Proposition of Law No. III: Mr. Hill was denied the effective assistance of counsel on his direct appeals in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Federal Constitution.
J.A. Vol. XX, at 14. On January 17, 2001, the Supreme Court of Ohio issued an opinion affirming the judgment of the appellate court below, "albeit, for different reasons." J.A. Vol. XX, at 150; State v. Hill, 90 Ohio St. 3d 571, 572 (2001). Specifically, the Supreme Court of Ohio concluded that, under the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984), petitioner had not demonstrated a genuine issue that he received ineffective assistance of counsel. Hill, 90 Ohio St. 3d at 572-73. In other words, the Supreme Court of Ohio rejected petitioner's application on the merits.
III. Habeas Corpus
Represented by attorneys Randall L. Porter of the Ohio Public Defender's Office and Steven M. Brown, petitioner filed a "shell" habeas corpus petition on June 26, 1998. (Doc. No. 6). On that same day, this Court issued an order staying petitioner's execution. (Doc. No. 10).
On November 2, 1998, petitioner filed a motion for an order to hold his habeas corpus proceedings in abeyance to permit him to complete his factual investigation and exhaust certain claims. (Doc. No. 27). Counsel for petitioner explained that the appointment of the Ohio Public Defender's Office to petitioner's case afforded him the first meaningful opportunity to conduct a proper, thorough factual investigation. On December 21, 1998, this Court issued an order denying petitioner's motion without prejudice. (Doc. No. 30). The Court advised petitioner that, although it was not willing to issue an order staying the habeas corpus proceedings, petitioner was free to pursue whatever state court remedies he wished in an effort to exhaust new claims and to file, when and if necessary, a motion to amend his petition to add any newly exhausted claims or newly exhausted facts. This Court issued another order on December 21, 1998 which required, among other things, the parties to file a joint status report every sixty days advising the Court about the status of any new state court proceedings that petitioner might initiate. (Doc. No. 31).
On April 12, 1999, petitioner, represented by attorneys James B. Hadden of Porter Wright Morris Arthur and Randall L. Porter of the Ohio Public Defender's Office, filed an amended habeas corpus petition raising twenty-five claims for relief. (Doc. No. 71). On June 11, 1999, respondent filed a return of writ setting forth the procedural history of petitioner's case and cursory responses to each of petitioner's twenty-five claims for relief. (Doc. No. 78).
On August 16, 1999, the parties filed their second Joint Status Report. (Doc. No. 79). Petitioner indicated that, although he had not yet initiated any new state court proceedings, he anticipated filing a Murnahan motion in the state court of appeals to reopen his direct appeal no later than September 17, 1999, and a state postconviction action in the trial court shortly after that.
On March 22, 2000, respondent filed a motion to dismiss procedurally defaulted claims. (Doc. No. 91). Following several extensions of time, petitioner filed a memorandum in response on May 25, 2000, in which he indicated, among other things, that he had filed a Murnahan motion in the court of appeals to reopen his direct appeal on October 1, 1999, and a successor postconviction action in the trial court on February 18, 2000. (Doc. No. 100). On June 19, 2000, respondent filed a reply in support of her motion to dismiss procedurally defaulted claims.
On May 6, 2002, petitioner filed a "Notice of Exhaustion" urging the Court to find that he had constructively exhausted the facts and claims set forth in his successor postconviction action. (Doc. No. 121). Petitioner argued that, since the state trial court had taken no action on the successor postconviction action that petitioner had filed nearly two years earlier, it was futile to require petitioner to continue to pursue or wait out his successor postconviction proceedings. Respondent filed a memorandum in opposition on May 30, 2002, (doc. no. 122), and petitioner filed a reply on June 12, 2002, (doc. no. 123).
On April 28, 2003, respondent filed a notice indicating that the state trial court had ruled on petitioner's successor postconviction action. (Doc. No. 126). A year later, on April 15, 2004, the parties filed a Joint Status Report in which petitioner indicated that he had filed an appeal in his successor postconviction proceedings to the Supreme Court of Ohio on February 5, 2004 and that the matter was pending. (Doc. No. 128). On August 10, 2004, the Court issued an order requiring petitioner, within thirty days of the date of any decision by the Ohio Supreme Court in petitioner's successor postconviction appeal, to file a motion for leave to file an amended habeas corpus petition in this Court. (Doc. No. 130).
A little over a year later, on August 26, 2005, respondent filed a notice indicating that, apparently unbeknownst to petitioner and respondent alike, the Supreme Court of Ohio had issued an order back on May 12, 2004 declining to accept jurisdiction over petitioner's appeal, thereby ending his successor postconviction proceedings. (Doc. No. 131). Accordingly, the Court conducted a status conference on September 22, 2005 and established a briefing schedule concerning petitioner's motion for leave to file a second amended petition. (Doc. No. 135).
The Court issued an Opinion and Order on December 30, 2005, granting petitioner leave to file a second amended petition, (doc. no. 140). In the current version of the petition, petitioner has raised essentially the same twenty-five claims that he previously raised, but he has reorganized the order in which he presents them, all while maintaining the original numbers assigned to the claims. For example, petitioner's seventh claim for relief, in which he argues that trial counsel provided ineffective assistance before and during the culpability phase of his trial, is presented first in the current petition, but it is still designated as the "seventh ground for relief." The Court will list petitioner's claims in numerical order, and then note parenthetically the order in which that claim as been argued in the second amended petition:
First Ground for Relief : The State's unlawful gathering and use of evidence violated Mr. Hill's Fourth, Fifth, Sixth, and Fourteenth Amendment rights. ¶¶ 272-283 (argued nineteenth in the second amended petition).
a. The use at trial of evidence obtained without a warrant violated Mr. Hill's Fourth and Fourteenth Amendment rights.
b. The use at trial of statements obtained from Mr. Hill without a knowing and voluntary waiver violated of Miranda rights violated Mr. Hill's due process rights. [sic]
Second Ground for Relief : The process of selecting grand jury forepersons and members in Hamilton County was tainted at the time of Mr. Hill's trial due to consideration of race in the drawing, selection, and empanelment of grand jurors, in violation of the Fifth, Sixth, and Fourteenth Amendments. ¶¶ 259-271 (argued eighteenth in the second amended petition).
a. Hamilton County improperly chooses grand jury members.
b. Hamilton County improperly chooses grand jury forepersons.
Third Ground for Relief : The Hamilton County Common Pleas Court tried Mr. Hill while he was incompetent, violating his due process rights. ¶¶ 207-220 (argued eleventh in the second amended petition).
Fourth Ground for Relief : Prosecutors' failure to provide exculpatory evidence during pretrial discovery denied Genesis Hill a fair trial. ¶¶ 77-97 (argued fourth in the second amended petition).
a. Withholding Linda Phillips's exculpatory evidence violated Mr. Hill's due process rights.
b. The State withheld mitigating polygraph evidence.
c. The files of the prosecutor and investigating officer contain Brady material.
Fifth Ground for Relief : Prosecutors employed peremptory challenges in a racially discriminatory manner. ¶¶ 125-134 (argued sixth in the second amended petition).
Sixth Ground for Relief : The trial court admitted testimony that violated Mr. Hill's right to a fair trial. (testimony from victim's mother when she was shown photographs of the deceased) ¶¶ 224-232 (argued fourteenth in the second amended petition).
Seventh Ground for Relief : Trial counsel ineffectively assisted Mr. Hill before and during his trial's culpability phase. ¶¶ 28-52 (argued first in the second amended petition).
a. Trial counsel ineffectively assisted Mr. Hill by failing to find, interview, and otherwise prepare witnesses for trial.
b. Trial counsel ineffectively assisted Mr. Hill by failing to seek appointment of experts.
I. Failure to seek appointment of a pathologist.
ii. Failure to seek appointment of a criminalist.
c. Trial counsel ineffectively assisted Mr. Hill by failing to seek instruction on a lesser included offense.
d. Trial counsel ineffectively assisted Mr. Hill by making inappropriate statements during voir dire.
• Erroneously told the jury it would have to convict Mr. Hill of the aggravating circumstance to reach mitigation.
• Informed the jury that a death verdict was only a recommendation.
• Misdefined when Mr. Hill would be eligible for parole if the jury returned a life-sentence verdict.
• Stated that Mr. Hill bore the burden of proving he was entitled to a sentence less than death.
e. Trial counsel ineffectively assisted Mr. Hill by calling him to testify at trial.
f. Trial counsel ineffectively assisted Mr. Hill by failing to assert a proper Batson challenge.
g. Trial counsel ineffectively assisted Mr. Hill by failing to challenge the grand jury selection process.
Eighth Ground for Relief : The trial court denied Mr. Hill due process by failing to properly instruct the jury at the trial phase's conclusion. ¶¶ 139-146 (argued eighth in the second amended petition).
a. The trial court incorrectly defined "reasonable doubt."
b. The trial court improperly charged the jury on capital specifications.
Ninth/Fifteenth Grounds for Relief : Insufficient evidence supported Mr. Hill's conviction, violating his due process rights. ¶¶ 177-206 (argued tenth in the second amended petition).
a. The prosecution provided insufficient evidence that Mr. Hill purposely caused the victim's death.
I. The State offered insufficient evidence that Mr. Hill caused the victim's death.
ii. Even if the State offered sufficient evidence that Mr. Hill caused the death, it presented insufficient evidence that he purposely did so.
b. The prosecution provided insufficient evidence of kidnapping.
c. The prosecution provided insufficient evidence of aggravated burglary.
I. Insufficient evidence of the aggravating element.
ii. Insufficient evidence of trespass.
d. Insufficient evidence that aggravating factors outweighed mitigating factors.
Tenth/Thirteenth Grounds for Relief : Prosecutorial misconduct at trial denied Mr. Hill of his due process rights. ¶¶ 98-124 (argued fifth in the second amended petition).
a. Prosecutorial misconduct during voir dire.
b. Prosecutorial misconduct during closing arguments.
I. Improper statements of opinion.
ii. Throwing an exhibit at Mr. Hill.
iii. Taken as a whole, the prosecution's actions were so egregious as to render Mr. Hill's trial fundamentally unfair.
c. Prosecutorial misconduct at the mitigation phase.
I. Improper solicitation of rebuttals to arguments Mr. Hill did not make.
ii. Improper argument at mitigation.
Eleventh Ground for Relief : The trial court denied Mr. Hill access to reasonable and necessary experts during the culpability and mitigation stages of the proceedings, violating the Fourteenth Amendment. ¶¶ 233-247 (argued fifteenth in the second amended petition).
a. The trial court failed to appoint a neutral mental-health expert.
b. The trial court failed to appoint a pathologist for the defense.
c. The trial court failed to appoint a criminalist for the defense.
Twelfth Ground for Relief : Trial counsel ineffectively assisted Mr. Hill during his trial's mitigation phase. ¶¶ 53-68 (argued second in the second amended petition).
Thirteenth Ground for Relief : (see tenth ground for relief above)
Fourteenth Ground for Relief : The trial court denied Mr. Hill due process by failing to give proper sentencing instructions in the sentencing phase. ¶¶ 147-176 (argued ninth in the second amended petition).
a. The trial court improperly merged aggravated murder and aggravating circumstances.
b. The trial court improperly identified aggravating circumstances.
c. The trial court gave an improper mandatory death penalty instruction.
d. The trial court improperly told the jury that their death-sentence decision was a mere recommendation.
e. The trial court failed to instruct the jury that it need not be unanimous to consider a factor as mitigation.
f. The trial court incorrectly instructed the jury on unanimity.
g. The trial court improperly defined "outweigh" in instructing the jury.
h. The trial court improperly instructed the jury with respect to the impact of other convictions.
I. The trial court improperly instructed the jury on the "catch-all" mitigating factor.
Fifteenth Ground for Relief : (see ninth ground for relief above)
Seventeenth Ground for Relief : Mr. Hill was incompetent during his direct appeals. ¶ 221 (argued twelfth in the second amended petition).
Eighteenth/Nineteenth Grounds for Relief : Mr. Hill lacked effective assistance of counsel during his direct appeals to the Hamilton County Court of Appeals and the Ohio Supreme Court. ¶¶ 69-73 (argued third in the second amended petition).
Twentieth Ground for Relief : The Ohio courts offered no meaningful review of Mr. Hill's death sentence. ¶¶ 248-257 (argued sixteenth in the second amended petition).
Twenty-First Ground for Relief : The prosecutors sought the death penalty against Mr. Hill arbitrarily, in violation of his due process rights. ¶¶ 135-138 (argued seventh in the second amended petition).
Twenty-Second Ground for Relief : The Hamilton County Common Pleas Court and Ohio appellate courts violated Mr. Hill's due process rights by summarily dismissing capital post-conviction petitions and refusing to follow the statutorily mandated process for redress. ¶¶ 284-297 (argued twentieth in the second amended petition).
Twenty-Third Ground for Relief : Ohio's death penalty violates the Eighth Amendment. ¶ 258 (argued seventeenth in the second amended petition).
Twenty-Fourth Ground for Relief : Cumulative error in the state court proceedings denied Mr. Hill due process. ¶ 298 (argued twenty-first in the second amended petition).
Twenty-Fifth Ground for Relief : Mr. Hill is incompetent to be executed. ¶¶ 222-223 (argued thirteenth in the second amended petition).
(Second Amended Petition, doc. no. 139).
On January 27, 2006, respondent filed a second motion to dismiss procedurally defaulted claims. (Doc. No. 142). Petitioner filed a response in opposition on February 27, 2006. (Doc. No. 144). Respondent filed a reply in support on March 14, 2006. (Doc. No. 145).
IV. Procedural Default
This matter is before the Court on respondent's motion to dismiss procedurally defaulted claims. It does not appear that every claim petitioner has raised in his habeas corpus petition was presented to the Ohio courts either during the direct appeal or on collateral review. As a general matter, a defendant who is convicted in Ohio of a criminal offense has available to him more than one method of challenging that conviction. Claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio's doctrine of res judicata. State v. Perry, 10 Ohio St. 2d 175 (1967). Issues that must be raised in a postconviction action pursuant to R.C. § 2953.21 include claims that do not appear on the face of the record and claims of ineffective assistance of trial counsel where the defendant was represented on direct appeal by the same attorney who represented him at trial. State v. Cole, 2 Ohio St. 3d 112 (1982). In 1992, a third procedure of review emerged. Claims of ineffective assistance of appellate counsel must be presented to the appellate court in a motion for delayed reconsideration pursuant to State v. Murnahan, 63 Ohio St. 3d 60 (1992) and Ohio R. App. P. 26(B).
In addition to raising each claim in the appropriate forum, a habeas litigant, in order to preserve his constitutional claims for habeas review, must present those claims to the state's highest court. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Thus, the judgment of conviction on direct appeal, and any adverse decision rendered by the trial court in postconviction, must be appealed to both the Ohio Court of Appeals and the Supreme Court of Ohio. Likewise, any adverse decision rendered by the Ohio Court of Appeals on a motion for delayed reconsideration must be timely appealed to the Supreme Court of Ohio.
In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition could be dismissed, or stayed and abeyed, for failure to exhaust state remedies. See, e.g., Rhines v. Weber, 544 U.S. 269, 277 (2005). But if, because of a procedural default, the petitioner can no longer present his claims to the state courts, then he has also waived those claims for purposes of federal habeas corpus review, unless he can demonstrate both cause for the procedural default, as well as actual prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must decide that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Respondent alleges that the following claims, in part or in their entirety, are procedurally defaulted: 7, 12, 18 and 19, 4, 10, 5, 8, 14, 3, 17, 25, 11, 2, and 22. The Court will address each of the grounds individually to determine whether the ground is subject to the procedural default alleged by respondent.
A. Ground Seven — Ineffective Assistance During Culpability Phase of Trial
In his seventh ground for relief, petitioner argues that he received ineffective assistance of counsel prior to and during the culpability phase of his trial. Specifically, petitioner argues that trial counsel performed unreasonably and to petitioner's prejudice by: (a) failing to find, interview, and prepare witnesses; (b) failing to seek appointment of experts, i.e., pathologist and criminalist; (c) failing to request a jury instruction on lesser included offenses; (d) making inappropriate statements during voir dire; (e) calling petitioner to testify; (f) failing to assert a Batson challenge during jury selection; and (g) failing to challenge the grand jury selection process. (Second Amended Petition, Doc. # 139, at ¶¶ 28-52.)
Respondent argues that petitioner's seventh ground for relief is procedurally defaulted under Ohio's doctrine of res judicata because he failed to raise the allegations on direct appeal. (Second Motion to Dismiss, Doc. # 142, at 30-33.) Specifically, respondent argues that petitioner raised multiple instances of trial counsel ineffectiveness on his first direct appeal of right to the intermediate appellate court and then to the Supreme Court of Ohio, but not the same instances that he raises herein. As for the multiple instances of trial counsel ineffectiveness that petitioner did raise in his original postconviction action, respondent argues that those were dismissed under res judicata by the state courts. Finally, according to respondent, allegations of trial counsel ineffectiveness that petitioner subsequently raised in his Rule 26(B) application to reopen his direct appeal and his successor postconviction action were not reviewed on their merits by the state courts and were instead rejected on procedural grounds.
In response, petitioner appears to concede that his claim is procedurally defaulted, but argues that he can demonstrate cause and prejudice to excuse the default and permit review. (Memorandum in Opposition, Doc. # 144-1, at 22.) Specifically, petitioner offers ineffective assistance of appellate counsel as cause to excuse the default, arguing that his appellate attorneys performed unreasonably and to his prejudice in failing to raise the issues set forth in his seventh ground for relief on direct appeal. ( Id. at 22-24.)
The first part of the Maupin test requires the Court to determine whether a state procedural rule is applicable to petitioner's claim, and, if so, whether petitioner violated that rule. As noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio's doctrine of res judicata. See State v. Perry, supra. Claims that do not appear on the face of the record must be raised in a timely postconviction action pursuant to Ohio Rev. Code § 2953.21. Further, with respect to claims of ineffective assistance of trial counsel, a criminal defendant who is represented by new counsel on direct appeal is required to claims of trial counsel ineffectiveness on direct appeal, so long as those claims do not involve evidence outside the trial record. See State v. Cole, supra, 2 Ohio St. 3d 112; see also Combs v. Coyle, 205 F.3d 269, 275-77 (6th Cir. 2000).
A review of the record confirms that petitioner, who was represented by new counsel on appeal, raised several claims of trial counsel ineffectiveness on his direct appeals of right to the court of appeals and the Supreme Court of Ohio (J.A. Vol. IV, at 809-815; J.A. Vol. VI, at 1571-1577), and several different claims of trial counsel ineffectiveness in his original postconviction action (J.A. Vol. VII, at 2045-2055). But the trial counsel ineffectiveness claims set forth in petitioner's seventh ground for relief were raised for the first time in petitioner's second postconviction action, with the exception of his claim that trial counsel failed to challenge the grand jury selection process, which trial counsel ineffectiveness claim does not appear to have been raised in any state court. (J.A. Vol. XIV, at 135-166.) To the extent that the claims set forth in petitioner's seventh ground for relief were of record, petitioner violated the resjudicata rule set forth in Perry and Cole when he failed to raise them on direct appeal.
To the extent, however, that the claims set forth in petitioner's seventh ground for relief relied on evidence outside the trial record, petitioner violated R.C. § 2953.21 et seq. when he failed to include them in his timely original postconviction action and raised them instead in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23. Under R.C. § 2953.21(A)(2), a postconviction petition must be filed within one-hundred-eighty days after the date on which the trial transcript is filed in the court of appeals on the direct appeal. Regarding cases in which the judgment of conviction was entered prior to the effective date of the amendments that imposed the limitation period, i.e., September 21, 1995, petitioners were given a "grace period" to file their postconviction actions either within the limitation period set forth in R.C. § 2953.21(A)(2) or by September 21, 1996, whichever was later. Petitioner, whose judgment of conviction was entered prior to September 21, 1995, complied with the limitation period by filing his original postconviction action on September 20, 1996.
R.C. § 2953.23 allows for the filing of an untimely and/or successive postconviction action, but only upon the satisfaction of certain conditions. That section provides, in relevant part.
(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
***
R.C. § 2953.23(A). A review of petitioner's second postconviction action, in which he raised all but one of the trial counsel ineffectiveness claims set forth in his seventh ground for relief, reveals that he failed to address, let alone demonstrate, the conditions set forth in § 2953.23 for filing an untimely, second postconviction action.
Thus, regarding the first part of the Maupin test, the Court concludes that, to the extent that the claims set forth in petitioner's seventh ground for relief were of record, petitioner violated the res judicata rule set forth in Perry and Cole when he failed to raise them on direct appeal. To the extent, however, that the claims set forth in petitioner's seventh ground for relief relied on evidence outside the trial record, petitioner violated R.C. § 2953.21 et seq. when he failed to include them in his timely original postconviction action and raised them instead in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23. The first part of the Maupin test has been satisfied. Petitioner does not appear to argue otherwise.
The second part of the Maupin test requires the Court to determine whether the state courts actually enforced the procedural rule against petitioner's claim. To the extent that petitioner violated the res judicata rule by failing to raise record claims on direct appeal, the Court deems the second part of the Maupin test to have been met because petitioner, by raising his claims in an untimely, successor postconviction action, presented his claims to the state courts in a manner and forum that did not afford them an opportunity to enforce the res judicata rule. To the extent that petitioner violated R.C. § 2953.21 et seq. when he raised his claims in an untimely successor postconviction action instead of in his timely original postconviction action, the state courts clearly and expressly enforced the rule by declining to reach the merits of his claims because of his failure to satisfy the conditions set forth in R.C. § 2953.23 for filing an untimely or successor postconviction action. (J.A. Vol. XIV, at 459.)
The Court further finds that the procedural rules at issue are adequate and independent under the third part of the Maupin test. To be "independent," the procedural rule at issue, as well as the state court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991). To be "adequate," the state procedural rule must be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). "[O]nly a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim." Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348-351 (1984)). See also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998).
The Court of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). The doctrine of res judicata is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have consistently refused, in reliance on that doctrine, to review the merits of claims. See State v. Cole, 2 Ohio St. 3d 112, 443 N.E.2d 169 (1982); State v. Ishmail, 67 Ohio St. 2d 16, 423 N.E.2d 1068 (1981). Further, the doctrine of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. With respect to the independence prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law. Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is an adequate and independent ground for denying relief.
The Court also finds that Ohio's postconviction rules, and specifically the rules imposing a limitations period and those imposing stringent conditions on the filing of untimely and/or successive petitions, are adequate and independent. The statutory provisions at issue, i.e., R.C. §§ 2953.21 through 2953.23, are stated in clear and unmistakable terms. Since they became effective on September 21, 1995, they have been consistently enforced by the state courts. See, e.g., State v. Byrd, 145 Ohio App. 3d, 318 (Ohio App. 1 Dist. 2001); State v. Garner, No. C-990659, 2000 WL 492074 (Ohio App. 1 Dist. Apr. 28, 2000); State v. Beuke, 130 Ohio App. 3d 633 (Ohio App. 1 Dist. 1998). Further, there is an emerging body of case law attempting to clarify the circumstances under which jurisdiction will lie for an untimely or successive postconviction action. See, e.g., State v. Byrd, 145 Ohio App. 3d 318 (Ohio App. 1 Dist. 2001); State v. Beuke, 130 Ohio App. 3d 633 (Ohio App. 1 Dist. 1998). The limitations set forth in R.C. 2953.23(A) further important state interests in finality of criminal judgments and efficient use of judicial resources. Finally, R.C. 2953.23(A) does not rely on or otherwise implicate federal law.
Prior the enactment of R.C. 2953.23(A), there were virtually no limitations on the number or timeliness of postconviction actions that a prisoner could file.
Once the Court determines that a constitutional claim is subject to procedural default, the Court may not address the merits of that claim absent a showing by petitioner of cause to excuse the default an actual prejudice from the underlying constitutional claim. Petitioner asserts that he can demonstrate cause and prejudice to excuse the default of his seventh ground for relief. Specifically, petitioner offers ineffective assistance of appellate counsel for the failure to raise these claims on direct appeal. Before a claim of ineffective assistance of counsel can be considered as cause to excuse procedural default, the claim must first be fairly presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). The particular allegations of appellate counsel ineffectiveness that petitioner offers as cause were presented to the state courts in petitioner's Rule 26(B) application for delayed reopening of his direct appeal, with the exception of the claim concerning trial counsel's failure to challenge the grand jury selection process. (J.A. Vol. XVII, at 8.) Although the state appellate court rejected petitioner's Rule 26(B) application on procedural grounds without reaching the merits of the appellate counsel ineffectiveness claims asserted therein, (J.A. Vol. XIX, at 75), the Supreme Court of Ohio expressly rejected petitioner's claims on the merits. State v. Hill, 90 Ohio St. 3d 571, 572-73 (2001). That being the case, those claims are properly before this Court for the purpose of determining whether appellate counsel ineffectiveness constitutes cause to excuse the default of petitioner's seventh ground for relief, except as to the allegation set forth in sub-part (g) of ground seven, in which petitioner argues that his trial attorneys were ineffective for failing to challenge the grand jury selection process. Petitioner never presented a claim to the state courts challenging appellate counsel's failure to raise that trial counsel ineffectiveness claim on direct appeal. Thus, under Edwards v. Carpenter, supra, this Court may not consider that appellate counsel ineffectiveness claim as cause to excuse the default of ground seven, sub-part (g).
The Supreme Court has refrained from establishing firm contours for the cause-and-prejudice standard that the Court adopted for excusing the default of constitutional claims during state court proceedings. Amadeo v. Zant, 486 U.S. 214, 221-22 (1988). As a general rule, though, "the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). In order to qualify as cause for a procedural default, counsel ineffectiveness must rise to the level of an independent constitutional violation under the standard established in Strickland v. Washington, 466 U.S. 668, 687-89 (1984). "[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. *** So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray v. Carrier, 477 U.S. 478, 486-88 (1986).
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). "`[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). Of course, not every decision made by appellate counsel can be insulated from review merely by categorizing it as strategic. The Court of Appeals for the Sixth Circuit has identified the following considerations that ought to be taken into account in determining whether counsel on direct appeal performed reasonably competently:
A. Were the omitted issues "significant and obvious?"
B. Was there arguably contrary authority on the omitted issues?
C. Were the omitted issues clearly stronger than those presented?
D. Were the omitted issues objected to at trial?
E. Were the trial court's rulings subject to deference on appeal?
F. Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable?
G. What was appellate counsel's level of experience and expertise?
H. Did the petitioner and appellate counsel meet and go over possible issues?
I. Is there evidence that counsel reviewed all the facts?
J. Were the omitted issues dealt with in other assignments of error?
K. Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt?Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999). The Sixth Circuit cautioned, however, that this list is not exhaustive and need not produce a certain "score." Id. at 428.
In sum, to establish a claim of ineffective assistance of counsel sufficient to establish cause for the default of his seventh ground for relief, petitioner must show both deficient performance on the part of his appellate attorneys and prejudice from the deficient performance:
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 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.Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong of the Strickland test, the Court notes that, "[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To establish the second prong of the Strickland test, i.e., prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Petitioner asserts ineffective assistance of appellate counsel as cause for his failure to assert on direct appeal the trial counsel ineffectiveness allegations set forth in his seventh ground for relief. Upon careful review of the transcript and trial record, as well as petitioner's briefs on direct appeal to the Ohio Court of Appeals and Supreme Court of Ohio, the Court cannot conclude that the trial counsel ineffectiveness claims set forth in petitioner's seventh ground for relief, individually or together, were so significantly and obviously stronger than the issues that were raised on direct appeal that petitioner's appellate attorneys can be regarded as ineffective for failing to raise them.
None of the trial counsel ineffectiveness issues that petitioner faults appellate counsel for omitting strikes this Court as significant and obvious. Trial counsel's cross examination of the State's witnesses and direct examination of defense witnesses demonstrated on trial counsel's part a thorough understanding of the facts and issues in petitioner's case — i.e., establishing petitioner's whereabouts during the time that the baby disappeared from her mother's apartment, demonstrating a lack of eyewitnesses to a kidnapping or murder, and exposing the bias that some of the State's witnesses may have had against petitioner. Similarly, trial counsel's cross examination of the State's expert witnesses on fingerprint identification, comparison between a plastic bag found in petitioner's apartment and a plastic bag in which the victim's body was found, and the cause of death and other injuries to the victim adequately exposed weaknesses in their testimony such that any failure on defense counsel's part to obtain their own experts in those areas did not jump out at this Court as a glaring omission. When questioned by the trial court during a side bar discussion in the middle of their closing arguments, trial counsel explained on the record, (but out of the hearing of the jury), that they had decided as a matter of strategy not to request an instruction on lesser included offenses and were exploring in their closing argument the alternate possibility that the baby had been killed accidentally in an attempt to cast reasonable doubt on one of the essential elements of the aggravated murder charge — namely, a purposeful killing. (Tr. Vol. XI, at 1524-26.) Further, defense counsel's "inappropriate" remarks during voir dire that petitioner highlights do not strike this Court as so egregious or improper that any reasonable attorney would have hastened to challenge them on direct appeal. Regarding the decision to have petitioner testify at trial, although the testimony was not particularly strong or advantageous to petitioner's defense, it would have been difficult for appellate counsel to challenge trial counsel's decision to call petitioner based solely on the record and without knowing such things as whether, or to what extent, trial counsel had investigated and prepared petitioner to testify or perhaps whether petitioner insisted against trial counsel's advice, as is his constitutional right, on testifying.
Finally, with respect to petitioner's assertion that appellate counsel should have challenged trial counsel's failure to raise a Batson challenge during voir dire, the trial record that this Court has reviewed does not appear to reflect the race of the jurors who were dismissed through the State's peremptory challenges. (Tr. Vol. IV, at 300 (John Earl Allen); Tr. Vol. IV, at 373 (Robin Reuss); Tr. Vol. V, at 450 (Beverly Brooks); Tr. Vol. V, at 574 (Mattie McLoud); Tr. Vol. V, at 471 (John Nelson); Tr. Vol. VI, at 736 (Vernon Ace Johnson); Tr. Vol. VII, at 931-37 (exercise of peremptory challenges).) The trial record does reflect that final jury was comprised of two African-American women, six Caucasian women, and four Caucasian men. (Tr. Vol. VII, at 968.) Appellate counsel could not reasonably have been expected to argue on appeal that trial counsel erred in not making a Batson challenge, if it was not readily apparent from the trial record that a Batson challenge was warranted. Further, trial counsel, by being there to question the prospective jurors and observe their reactions as they answered questions, were in the best position — and certainly a far better position than appellate counsel reading a record — to determine whether a Batson challenge was warranted.
The prospective jurors filled out and submitted questionnaires which the Court can only assume were part of the trial record. However, those questionnaires do not appear to have been included in the record submitted to this Court. Thus, this Court has no way of knowing whether those questionnaires indicated the prospective jurors' race.
Continuing with the Mapes factors, the omitted issues were arguably stronger than a few, but not most, of the issues that were presented on direct appeal. Further, it does not appear that the omitted issues were dealt with in any other assignments of error. Appellate counsel raised twenty-nine assignments of error on direct appeal to the Ohio Court of Appeals and twenty-six propositions of law on direct appeal to the Supreme Court of Ohio. The Court cannot say that the omitted trial counsel ineffectiveness claims set forth in petitioner's seventh ground for relief were stronger than the prosecutorial misconduct, appropriateness of the death penalty, trial counsel ineffectiveness, or suffiency of the evidence claims that were raised, or even than the "boilerplate" challenges to the constitutionality of Ohio's death penalty statutes that were raised. Given the number of issues that appellate counsel raised on direct appeal, clearly, "winnowing out weaker arguments" was not a priority for appellate counsel, and, to be fair, appellate attorneys in capital cases might reasonably decide to err on the side of inclusion. The fact remains, however, that appellate counsel does not have a constitutional duty to raise every non-frivolous issue on direct appeal, and the trial counsel ineffectiveness claims set forth in petitioner's seventh ground for relief were not clearly stronger than the issues that appellate counsel raised.
Several Mapes factors either are not reflected by the record or do not speak one way or the other about appellate counsel's performance. Appellate counsel has never testified in a collateral proceeding about their strategy on appeal. The record simply does not reflect whether or to what extent appellate counsel met with petitioner to discuss possible issues to raise on appeal. Nor does the record reflect the level of counsel's experience and expertise. As for whether there is evidence demonstrating that appellate counsel reviewed all of the facts, although there is no direct evidence demonstrating as much, a review of the briefs and other pleadings filed by petitioner's appellate attorneys strongly indicate that they thoroughly reviewed the transcript and trial record, and were well versed on the facts of petitioner's case. Further, it cannot be said that there was any notable authority on any of the omitted trial counsel ineffectiveness claims that would have alerted appellate counsel one way or the other to raise those issues.
The final Mapes factor directs the Court to consider whether the decision to omit the issue was an unreasonable decision that only an incompetent attorney would make. After careful review, the Court answers that inquiry in the negative, and further finds, under the two-pronged Strickland standard, that petitioner cannot demonstrate ineffective assistance of appellate counsel sufficient to establish cause for the default of his seventh ground for relief. As the Court noted in detail above, the omitted issues were not significant and obvious or clearly stronger than the issues that were presented.
It also bears mentioning that, to the extent that the trial counsel ineffectiveness claims that were omitted relied on evidence outside the trial record — as indicated by the fact that petitioner raised them in his successor postconviction action and supported them with non-record evidence — appellate counsel cannot be faulted under the two-part Strickland test for not raising those claims on direct appeal. Under such circumstances, petitioner cannot establish appellate counsel ineffectiveness as cause to excuse the default of his seventh ground for relief.
For the foregoing reasons, the Court concludes that petitioner has failed to establish that his appellate attorneys were ineffective under the two-pronged standard set forth in Strickland sufficient to establish cause and prejudice to excuse the default of his seventh ground for relief. Accordingly, under the four-part Maupin test, the Court concludes that petitioner's seventh ground for relief is procedurally defaulted. Respondent's motion to dismiss petitioner's seventh ground for relief as procedurally defaulted is granted.
B. Ground Twelve — Ineffective Assistance during Mitigation Phase of Trial
In his twelfth ground for relief, petitioner argues that he received ineffective assistance of counsel during the mitigation phase of his trial. Specifically, petitioner argues that trial counsel performed unreasonably and to petitioner's prejudice by: (1) failing to obtain a mitigation expert; (2) failing to obtain an independent mental health expert; (3) failing to prepare mitigation witnesses; (4) failing to object to improper jury instructions; and (5) failing to object to the prosecution's improper closing arguments. (Second Amended Petition, Doc. # 139, at ¶¶ 53-68.)
Conceding that sub-parts (4) and (5) were raised on direct appeal, respondent argues that sub-parts (1) through (3) are procedurally defaulted under Ohio's doctrine of res judicata because petitioner failed to raise the allegations on direct appeal. (Second Motion to Dismiss, Doc. # 142, at 33-36.) Specifically, respondent argues that petitioner raised multiple instances of trial counsel ineffectiveness on his first direct appeal of right to the intermediate appellate court and then to the Supreme Court of Ohio, but only petitioner's allegations concerning trial counsel's failure to object to the trial court's use of the word "recommend" to describe the jury's verdict and trial counsel's failure to object to the prosecution's closing arguments were included among those allegations. As for the multiple instances of trial counsel ineffectiveness that petitioner raised in his original postconviction action, respondent argues that those were dismissed under res judicata by the state courts. Finally, according to respondent, allegations of trial counsel ineffectiveness that petitioner subsequently raised in his Rule 26(B) application to reopen his direct appeal and his successor postconviction action were not reviewed on their merits by the state courts and were instead rejected on procedural grounds.
In response, petitioner insists that his claim is not procedurally defaulted. (Memorandum in Opposition, Doc. # 144-1, at 31-34.) Specifically, petitioner first emphasizes respondent's concession that sub-parts (4) and (5) were preserved for review because they had been raised on direct appeal. Petitioner goes on to argue that he properly raised sub-parts (1) through (3) in his original postconviction action because those allegations relied on and were supported by evidence outside the trial record. Petitioner argues that, although the state trial court addressed his claims on the merits, the appellate court enforced res judicata against the claims but erred in doing so. In the alternative, petitioner offers ineffective assistance of appellate counsel as cause to excuse the default, arguing that his appellate attorneys performed unreasonably and to his prejudice in failing to raise the issues set forth in his twelfth ground for relief on direct appeal. ( Id.)
Respondent raises no procedural default arguments against sub-parts (4) and (5), essentially conceding that those allegations were raised and addressed on direct appeal. A review of the record confirms respondent's position. Thus, sub-parts (4) and (5) of petitioner's twelfth ground for relief are properly before the Court for a review on the merits, but only as to the specific arguments that petitioner actually raised on direct appeal. (J.A Vol. VI, at 1572-73 (failure to object to penalty-phase closing arguments); J.A. Vol. VI, at 1574-75 (failure to object to penalty-phase jury instruction that used the word "recommend" in describing the jury's sentencing verdict)).
Turning to sub-parts (1) through (3) of petitioner's twelfth ground for relief, respondent argues that those allegations are barred by res judicata because they were not raised on direct appeal. Respondent further argues that, to the extent those allegations were raised in petitioner's original postconviction, they were rejected by the state courts on the basis of res judicata. Finally, respondent argues that, to the extent those allegations were raised in petitioner's Rule 26(B) application to reopen his direct appeal or petitioner's successor postconviction action, the allegations were never addressed on the merits by the state courts and were rejected on procedural grounds.
When the state alleges that a habeas claim is defaulted because the petitioner violated a state procedural rule, a federal habeas court reviewing the claim must apply the four-part Maupin test. Maupin v. Smith, supra, 785 F.2d at 138. The first part of the Maupin test requires the Court to determine whether petitioner violated a state procedural rule. As noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio's doctrine of res judicata. See State v. Perry, 10 Ohio St. 2d 175. Claims which rely on and are supported by evidence outside the trial record are properly raised in a timely postconviction action pursuant to R.C. § 2953.21. In Greer v. Mitchell, 264 F.3d 663, 674-76 (6th Cir. 2001), the Court of Appeals for the Sixth Circuit reminded that a federal habeas court must make an independent determination whether a state procedural rule was violated. With this in mind, the Court must determine whether petitioner violated Ohio's res judicata rule, or rules governing the filing of postconviction actions, when he raised these allegations in postconviction instead of on direct appeal.
Petitioner argues that these claims were properly raised in his original postconviction action, as opposed to direct appeal, because they relied on and were supported by evidence outside the trial record. In determining whether res judicata applies to a constitutional claim, the inquiry is properly focused on whether the claim genuinely relies on and is supported by evidence that is outside the trial record and that was not available at trial. State v. Cole, supra, 2 Ohio St. 3d 112. Thus, non-record evidence submitted during postconviction proceedings to support a constitutional claim must genuinely support the claim in a manner that no record evidence could. See State v. Powell, 90 Ohio App. 3d 260, 268 (Ohio App. Dist. 1 1993) (holding that additional evidence offered in postconviction to support claim of trial counsel ineffectiveness during mitigation was merely cumulative to evidence presented at trial).
In the second amended petition before this Court, petitioner argues that his trial attorneys were ineffective during the mitigation phase (1) for failing to conduct an adequate investigation or obtain the services of a mitigation specialist to conduct an investigation; (2) for failing to obtain the services of an independent mental health expert; and (3) for failing to investigate and prepare lay witnesses. As a result, petitioner argues, trial counsel permitted the jury to hear testimony about petitioner's background and mental health that was at best, incomplete and at worst, inaccurate altogether. Specifically, petitioner explains that his trial counsel put forth a weak mitigation case consisting of testimony from well-meaning family members who either did not know, or would not tell, the whole story of petitioner's troubled background, instead painting a picture of an unremarkable, even pleasant childhood surrounded by loving relatives. Similarly, trial counsel presented testimony by a Court Clinic psychologist, Dr. Nancy Schmidtgoessling, which revealed only the "tip of the iceberg" relating to the mental illness from which petitioner suffered. (Second Amended Petition, Doc. # 139, at ¶¶ 60-66.)
Had counsel conducted a proper investigation, obtained the services of a mitigation specialist, or at least interviewed and prepared their witnesses more thoroughly, according to petitioner, the jury would have learned that petitioner received weekly beatings growing up; that he was repeatedly sexually assaulted by one of his father's friends; that he had to steal food and raise himself because his mother was so dysfunctional as a parent and was so depressed that she often could not get out of bed; that he was often filthy because his mother would not wash clothes; that he had a history of dizziness, eye pain, blurred visions, and light-headedness; and that voices in petitioner's head yelled such things as "Die!" and "Hate you!" (Second Amended Petition, Doc. # 139, at ¶ 66.) Further, had counsel obtained an independent mental health expert instead of relying solely on a Court Clinic psychologist, the jury would have learned that petitioner's actual IQ was in the borderline-retarded range; petitioner's mental illness at the times of the offense and the trial would have impaired his ability to respond appropriately during times of stress; petitioner's mental illness potentially had a genetic component; petitioner's alcoholism potentially had a genetic component; and that petitioner had organic brain damage resulting from lead poisoning during infancy which affected his behavior at the time of the offense. ( Id. at ¶ 64.)
Petitioner is correct when he asserts that there was little or no evidence in the trial record from which he could have raised and supported these allegations on direct appeal. Thus, to the extent that he raised these allegations in his original postconviction action and supported them with evidence outside the trial record, they are properly before this Court for a review on the merits, for reasons that will be explained more fully below. Unfortunately, contrary to petitioner's assertion herein, most of the allegations set forth in his twelfth ground for relief were not raised in his original postconviction action either.
The allegations and supporting evidence that petitioner raised in his original postconviction action are far less expansive than the allegations that petitioner presents in the petition before this Court. In the second claim for relief in his original postconviction action, petitioner argued that trial counsel's failure to conduct an adequate search for an expert or obtain an independent mental health expert allowed the jury to hear inaccurate psychological evidence. (J.A. Vol. VIII, at 2045-2049.) Petitioner argued that his trial counsel were ineffective for relying on Court Clinic psychologist Nancy Schmidtgoessling when, by Dr. Schmidtgoessling's own admission, the Court Clinic acts as a "friend of the court" and does not have the sort of time and resources to devote to mitigation preparation that an independent investigator or expert would have. ( Id. at 2046-2048.) In support of these allegations, petitioner offered two affidavits by attorney-experts, i.e., Steven R. Keller and Gerald G. Simmons, (J.A. Vol. VIII, at 2131-2134; 2135-2142), as well as a transcript of a deposition of Dr. Schmidtgoessling that was taken in an unrelated habeas corpus case, (J.A. Vol. VIII, at 2143). Petitioner also argued that, contrary to Dr. Schmidtgoessling's conclusion that he was essentially normal psychologically, he suffered from discernable mental illness and/or organic brain impairment which constituted a mental defect under R.C. § 2929.04(B)(3). Petitioner failed to identify the discernable mental illness and/or organic brain impairment, or to cite to any affidavits or other non-record evidence identifying the same. Rather, petitioner asserted that discovery and funds to employ an expert would support his allegations.
In the third claim for relief in his original postconviction action, petitioner argued that trial counsel failed to conduct an adequate investigation or to prepare witnesses to testify, thereby allowing the witnesses to present positive remembrances of petitioner's childhood instead of the violence-ridden background and family life that petitioner actually experienced. (J.A. Vol. VIII, at 2049-2051.) Thus, petitioner argued, the jury heard that petitioner was conceived as a result of a casual acquaintance between his mother and father, when petitioner actually was conceived as a result of rape. ( Id. at 2050.) In support of his allegations, petitioner cited again to the affidavits of attorney-experts Mr. Keller and Mr. Simmons, as well as to the affidavits of his mother and three aunts, (J.A. Vol. VIII, at 2298-2305). Those affidavits set forth very few facts of any substance. Petitioner's mother averred that petitioner was conceived as a result of his father raping her. (J.A. Vol. VIII, at 2299.) Petitioner's aunts — Denise Hill, Jennifer Clark, and Ruby Hill — signed identical affidavits stating essentially that petitioner's attorneys did not discuss their testimony with them before they were called as mitigation witnesses and that, as a result, they focused their testimony on positive memories. ( Id. at 2300-2305.)
How petitioner can assert in his response in opposition to respondent's motion to dismiss that the allegations set forth above are sufficient to preserve the allegations set forth in his twelfth ground for relief escapes this Court. (Petitioner's Memorandum in Opposition, Doc. # 144-1, at 31.) There are almost no facts in common between the two sets of allegations. Regarding petitioner's claim that his trial attorneys were ineffective for failing to hire a mitigation specialist, there were no allegations or evidence in petitioner's original postconviction action about weekly beatings, sexual assault, stealing food, or running around filthy as alleged in the habeas petition. Regarding petitioner's claim that his trial attorneys were ineffective for failing to obtain an independent mental health expert, there were no allegations or evidence in petitioner's original postconviction action about an IQ placing petitioner in the borderline-retarded range, mental illness affecting his ability to respond appropriately in stressful situations, or organic brain impairment affecting him at the time of the offense as alleged in the habeas petition. Although a petitioner in habeas corpus may tinker with or marginally supplement claims that were presented to the state courts, petitioner cannot add new facts or evidence that place the claim in a "significantly different posture" than the claim that was presented to the state courts. See Sampson v. Love, 782 F.2d 53, 55 (6th Cir. 1986); cf. Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (holding that a federal court may consider new facts developed in habeas corpus proceedings where they do not "fundamentally alter the legal claim already considered by the state courts"). Petitioner raised a claim in his original postconviction action alleging trial counsel ineffectiveness for the failure to obtain an independent mental health expert; but that claim bears no relation to the claim set forth in sub-part (2) of petitioner's twelfth ground for relief herein. Similarly, petitioner raised a claim in his original postconviction action alleging trial counsel ineffectiveness for failing to conduct an adequate investigation and/or obtaining a mitigation specialist; but that claim bears no relation to the claim set forth in sub-part (1) of petitioner's twelfth ground for relief herein.
Thus, the Court reiterates as to petitioner's twelfth ground for relief, i.e., ineffective assistance of trial counsel during the mitigation phase, that only the allegations of trial counsel ineffectiveness set forth in petitioner's original postconviction action, and only the non-record facts and evidence offered in support of those allegations, are properly before the Court for a review on the merits. They do not amount to much.
Only petitioner's allegation that his trial attorneys were ineffective for failing to interview or prepare mitigation witnesses, i.e., sub-part (3) of ground twelve, is properly before the Court — and again, only to the extent that those allegations were presented in petitioner's original postconviction action. There was no evidence in the trial record from which petitioner could have argued on direct appeal that his trial attorneys were ineffective for failing to prepare, interview, or meet with the relatives they called to testify on petitioner's behalf. Petitioner thus raised that allegation and supported it with non-record evidence in his original postconviction action. (J.A. Vol. VIII, at 2298-2305; affidavits of Mary E. Hill, Denise Hill, Jennifer Clark, and Ruby Hill.) In fact, there was actually evidence on the trial record demonstrating that petitioner's relatives were reluctant and uncomfortable about discussing negative aspects of petitioner's background and family life, and that trial counsel had urged them to be truthful and forthcoming with that information anyway. (Tr. Vol. XII, at 1610-11, testimony of Denise Hill.) Without any evidence in the trial record establishing that trial counsel had failed to meet with, interview, or prepare petitioner's relatives to testify at the mitigation hearing about unpleasant aspects of petitioner's upbringing — and a few instances memorialized on the record actually suggesting that counsel had met with those witnesses and urged them to be forthcoming about petitioner's background — any claim that trial counsel were ineffective during mitigation for failing to interview and prepare witnesses could not reasonably have been raised on direct appeal. See Greer v. Mitchell, supra, 264 F.3d at 675 ("Although counsel could certainly have raised an ineffective assistance of counsel claim on direct appeal, the precise arguments advanced in his petition for post-conviction relief require significant supplementation of the trial record."). In other words, petitioner could not possibly have litigated on direct appeal the claim that he subsequently raised in postconviction and that he now seeks to raise here, i.e., ineffective assistance of counsel during mitigation for failing to interview and prepare witnesses.
Even if the evidence that was produced during postconviction may not have been the most compelling evidence in support of petitioner's contention that his trial attorneys failed to interview or prepare witnesses, that evidence was more than what petitioner had available to him on direct appeal — which was nothing at all. As noted in Greer v. Mitchell, "While the probative value of this evidence is difficult to assess in retrospect, it seems clear that this material and the arguments that logically flow from it are outside the trial record." Greer v. Mitchell, supra, 264 F.3d at 675. That being so, the Court concludes that petitioner did not violate Ohio's res judicata rule as to the portion of his twelfth ground for relief in which he alleges ineffective assistance of trial counsel during mitigation for the failure to interview and prepare witnesses.
This Court is mindful that its conclusion regarding the purported violation of Ohio's res judicata rule is at odds with the conclusion reached by the Ohio courts. The Ohio Court of Appeals determined, as a matter of state law, that this particular trial counsel ineffectiveness claim was barred by res judicata because it could have been raised on direct appeal. (J.A. Vol. X, at 2798.) Thus, although it appears to this Court that petitioner properly presented this claim to the Ohio courts in postconviction, the state courts held that the claim was procedurally barred. The question then is whether the claim is procedurally barred in federal habeas corpus. In Greer, the Sixth Circuit addressed this dilemma:
Generally, a federal habeas court sitting in review of a state-court judgment should not second guess a state court's decision concerning matters of state law. (citation omitted). Nevertheless, when the record reveals that the state court's reliance upon its own procedural default is misplaced, we are reluctant to conclude categorically that federal habeas review of the purportedly defaulted claim is precluded.Greer v. Mitchell, 264 F.3d at 675. This Court agrees with the Sixth Circuit's reasoning, and is of the view that the portion of petitioner's twelfth ground for relief described above is not barred by res judicata. For the foregoing reasons, respondent's motion to dismiss ground twelve is denied as to petitioner's allegation that his trial attorneys were ineffective for failing to interview and prepare mitigation witnesses.
Regarding the remainder of the allegations set forth in petitioner's twelfth ground for relief, which were not included in petitioner's original postconviction action, the Court concludes that those allegations are barred by procedural default. Specifically, the Court finds that petitioner violated R.C. § 2953.21 et seq. when he failed to include them in his timely original postconviction action and raised them instead in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23. The following facts set forth in the second amended petition were presented to the state courts for the first time in petitioner's untimely, successor postconviction action and therefore may not be considered by this Court: that petitioner received weekly beatings growing up; that he was repeatedly sexually assaulted by one of his father's friends; that he had to steal food and raise himself because his mother was so dysfunctional as a parent and was so depressed that she often could not get out of bed; that he was often filthy because his mother would not wash clothes; that he had a history of dizziness, eye pain, blurred visions, and light-headedness; that voices in petitioner's head yelled such things as "Die!" and "Hate you!"; that petitioner's actual IQ was in the borderline-retarded range; that petitioner's mental illness at the times of the offense and the trial would have impaired his ability to respond appropriately during times of stress; that petitioner's mental illness potentially had a genetic component; that petitioner's alcoholism potentially had a genetic component; and that petitioner had organic brain damage resulting from lead poisoning during infancy which affected his behavior at the time of the offense. (Second Amended Petition, Doc. # 139, at ¶¶ 64 and 66.) Those allegations were set forth in the affidavits of Dr. Michael Gelbort and Dr. Robert L. Smith, which were submitted as exhibits H and J respectively in support of petitioner's untimely, successor postconviction action. (J.A. Vol. XIV, at 194, 206.)
As the Court discussed more fully above in connection with petitioner's seventh ground for relief, under R.C. § 2953.21(A)(2), a postconviction petition must be filed within one-hundred-eighty days after the date on which the trial transcript is riled in the court of appeals in the direct appeal. Regarding cases in which the judgment of conviction was entered prior to the effective date of the amendments that imposed the limitation period, i.e., September 21, 1995, petitioners were given a "grace period" to file their postconviction actions either within the limitation period set forth in R.C. § 2953.21(A)(2) or by September 21, 1996, whichever was later. Petitioner, whose judgment of conviction was entered prior to September 21, 1995, complied with the limitation period by filing his original postconviction action on September 20, 1996.
R.C. § 2953.23 allows for the filing of an untimely and/or successive postconviction action, but only upon the satisfaction of certain conditions. A review of petitioner's second postconviction action reveals that he failed to address, let alone demonstrate, the conditions set forth in § 2953.23 for filing an untimely, second postconviction action.
Thus, regarding the first part of the Maupin test, the Court concludes that petitioner violated R.C. § 2953.21 et seq. when he failed to include the allegations from his twelfth ground for relief set forth above in his timely original postconviction action and raised them instead in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23.
The second part of the Maupin test requires the Court to determine whether the state courts actually enforced the procedural rule against petitioner's claim. The state courts clearly and expressly enforced the relevant procedural rules by declining to reach the merits of petitioner's claims because of his failure to satisfy the conditions set forth in R.C. § 2953.23 for filing an untimely or successor postconviction action. (J.A. Vol. XIV, at 459.) Further, the Court has already determined that the procedural rules at issue are adequate and independent under the third part of the Maupin test.
Turning to the fourth part of the Maupin test, once the Court determines that a constitutional claim is subject to procedural default, the Court may not address the merits of that claim absent a showing by petitioner of cause to excuse the default an actual prejudice from the underlying constitutional claim. Petitioner offers ineffective assistance of appellate counsel as cause for his failure to raise his twelfth ground for relief on direct appeal. (Petitioner's Memorandum in Opposition, Doc. # 144, at 33.) Petitioner's argument is not well taken. The Court has expended great effort in determining that most of the ineffective assistance allegations set forth in petitioner's twelfth ground for relief relied on evidence outside the trial record — evidence that was presented to the state courts for the first time in petitioner's untimely, successor postconviction action. That being the case, appellate counsel cannot be faulted under the two-part Strickland test for not raising those claims on direct appeal. Under such circumstances, petitioner cannot establish appellate counsel ineffectiveness as cause to excuse the default of the allegations in his twelfth ground for relief that were first presented to the state court in his untimely, successor postconviction action.
For the foregoing reasons, the Court reaches the following conclusions. Sub-parts (4) and (5) of petitioner's twelfth ground for relief are properly before the Court for a review on the merits because they were presented to and considered by the state courts on direct appeal. Respondent raised no procedural default argument against them. As to sub-parts (1) through (3), only petitioner's allegation that his trial attorneys were ineffective during mitigation for failing to interview and prepare witnesses, sub-part (3), is properly before the Court for a review on the merits because petitioner properly raised those allegations in his original postconviction action. Respondent's motion to dismiss that portion of petitioner's twelfth ground for relief is denied.
The remainder of the allegations set forth in petitioner's twelfth ground for relief, specifically those set forth in paragraphs 64 through 66 of the second amended petition are barred by procedural default because petitioner raised them for the first time in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23. The Court reiterates with respect to sub-part (2), i.e., trial counsel ineffectiveness for failing to obtain a neutral mental health expert, that although petitioner raised that bare allegation in his original postconviction action, the specific facts and evidence that he seeks to present in the instant petition were not presented in his original postconviction action. Thus, the claim as set forth in the petition is not properly before this Court.
Respondent's motion to ground twelve is granted as to sub-parts (1) and (2), i.e., as to paragraphs 64-66.
C. Grounds Eighteen and Nineteen — Ineffective Assistance of Appellate Counsel
In his eighteenth and nineteenth grounds for relief, petitioner argues that he received ineffective assistance of counsel on his direct appeals of right to the intermediate court of appeals and the Supreme Court of Ohio. Petitioner does not elaborate, arguing only that his appellate counsel "failed to preserve several meritorious arguments on appeal, including that trial counsel performed ineffectively for the reasons described in detail above, and that Mr. Hill was incompetent, as described below." (Second Amended Petition, Doc. # 139, at ¶ 69.) In this regard, petitioner argues that appellate counsel were ineffective for failing to include among the trial counsel ineffectiveness claims that they did raise on direct appeal allegations that trial counsel failed to prepare witnesses, conduct an adequate investigation, and hire appropriate experts. ( Id. at ¶ 72.) Petitioner also asserts that one of his appellate attorneys later admitted to having been clinically depressed at the time of petitioner's appeal, and that this attorney resigned from the practice of law in the face of disciplinary charges. ( Id. at ¶ 70.)
Respondent argues that all of petitioner's appellate counsel ineffectiveness claims, whether asserted as independent constitutional claims or as cause to excuse the default of other claims, are procedurally defaulted because petitioner failed to present them to the state courts in a timely fashion, in violation of Ohio R. App. P. 26(B) and State v. Murnahan, 63 Ohio St. 3d 60 (1992). (Second Motion to Dismiss, Doc. # 142, at 36-37.)
Petitioner offers several arguments in response. First, according to petitioner, although the intermediate appellate court rejected petitioner's App. R. 26(B) application as untimely, the Supreme Court of Ohio, on appeal from that decision, rejected petitioner's application on its merits. (Memorandum in Opposition, Doc. # 144-1, at 37-38.) The Ohio Supreme Court's decision in that regard, petitioner argues, forgave any procedural default. Petitioner goes on to argue that the United States Court of Appeals for the Sixth Circuit has held in numerous decisions that an untimely App. R. 26(B) application cannot serve as the basis for procedural default barring habeas corpus review because the Supreme Court of Ohio has not consistently enforced that bar. ( Id. at 38-39.) Petitioner's first argument is well taken. Because the Court finds, as explained more fully below, that petitioner's appellate counsel ineffectiveness claims were rejected on the merits, and not because they were untimely, the Court need not address petitioner's argument that Ohio R. App. P. 26(B) is not an adequate and independent state ground upon which to foreclose habeas corpus review and deny relief.
On October 1, 1999, petitioner raised numerous claims of ineffective assistance of appellate counsel in an application for delayed reopening of his direct appeal under Ohio R. App. P. 26(B), the procedure in Ohio for raising claims of appellate counsel ineffectiveness. (J.A. Vol. XVII, at 8.) On June 8, 2000, the appellate court issued an entry denying petitioner's Rule 26(B) application for reopening on the ground that petitioner had failed to show good cause for filing an untimely application. J.A. Vol. XIX, at 75. Petitioner appealed to the Supreme Court of Ohio.
On January 17, 2001, the Supreme Court of Ohio issued an opinion affirming the judgment of the appellate court below, "albeit, for different reasons." J.A. Vol. XX, at 150; State v. Hill, 90 Ohio St. 3d 571, 572 (2001). Specifically, the Supreme Court of Ohio concluded that, under the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984), petitioner had not demonstrated a genuine issue that he received ineffective assistance of counsel. Hill, 90 Ohio St. 3d at 572-73. In other words, the Supreme Court of Ohio rejected petitioner's application on the merits.
Under the second part of the Maupin test, violation of a state procedural rule will not preclude federal habeas corpus review if the state courts do not enforce the procedural rule. "Under certain circumstances, a merits ruling by the last reviewing state court will `forgive' a procedural default finding made by the lower court, so as to permit federal court review of the claim." Jamison v. Collins, 100 F.Supp.2d 521, 553-54 (S.D. Ohio 1998) (citing Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989); County Court of Ulster County, New York v. Allen, 442 U.S. 140 (1979)); see also Abela v. Martin, 380 F.3d 915, 922-24 (6th Cir. 2004) (declining to enforce procedural default where last reviewing state court did not clearly and unambiguously indicate that denial of claim was based on procedural rule). In the instant case, the last reviewing state court, i.e., the Supreme Court of Ohio, clearly and expressly denied the appellate counsel ineffectiveness claims presented in petitioner's App. R. 26(B) application on the merits. That being so, the second part of the Maupin test is not met.
For the foregoing reasons, respondent's motion to dismiss petitioner's eighteenth and nineteenth grounds for relief as procedurally defaulted is denied. The appellate counsel ineffectiveness claims set forth in petitioner's eighteenth and nineteenth grounds for relief are entitled to a review on the merits, but only to the extent that those claims were included in petitioner's App. R. 26(B) application to the state courts. (J.A. Vol. XVII, at 8-18.)
D. Ground Four — Prosecution Withheld Material, Exculpatory Evidence
Citing Brady v. Maryland, 373 U.S. 83, 86 (1963) and its progeny, petitioner argues in his fourth ground for relief that the prosecution withheld material, exculpatory evidence in violation of petitioner's rights under the Sixth, Eighth, and Fourteenth Amendments. In sub-part (a), petitioner argues that the prosecution withheld exculpatory information known to Linda Phillips, a Hamilton County juvenile probation officer in whom petitioner had confided prior to his trial that Domika Dudley's death was an accident, that he felt terrible about her death, and that he did not want Ms. Phillips to divulge the information to anyone, including his defense attorneys. (Second Amended Petition, Doc. # 139, at ¶¶ 81-88.) Petitioner argues in sub-part (b) that the prosecution withheld knowledge of the existence of polygraph examinations that had been given to both petitioner and Teresa Dudley, the victim's mother. ( Id. at ¶¶ 89-92.) Finally, petitioner argues in sub-part (c) that there must be more Brady information in the files of the prosecution and the investigating officer, given the history of the Hamilton County Prosecutor's Office of committing Brady violations. ( Id. at ¶¶ 93-97.)
Respondent argues that petitioner's fourth ground for relief is procedurally defaulted in its entirety because it was not raised on direct appeal or in petitioner's original postconviction action. Respondent concedes that petitioner presented these allegations in his successor postconviction as the fifth claim for relief therein, but respondent argues that the allegations are procedurally defaulted because the state courts did not conduct a merits review of petitioner's successor postconviction action. (Second Motion to Dismiss, Doc. # 142, at 37-38.)
Petitioner insists that he properly raised this claim in his original postconviction action, supporting it with evidence outside the trial record and requesting discovery to gather even more non-record evidence, and that the state courts erred in applying the res judicata bar against his claim. (Memorandum in Opposition, Doc. # 144-1, at 16-17.) In so arguing, petitioner addresses only the component of his claim regarding the exculpatory evidence withheld by Linda Phillips regarding petitioner's alleged admission to her that the baby's death was an accident, i.e., sub-part (a). Petitioner argues in the alternative that ineffective assistance of appellate counsel constitutes cause and prejudice sufficient to excuse any default stemming from his failure to raise this claim on direct appeal. ( Id. at 17-19.) Petitioner's arguments are not well taken.
Under the first part of the Maupin test, the Court concludes that petitioner violated Ohio's res judicata doctrine when he failed to raise the allegations set forth in his fourth ground for relief on direct appeal. As noted supra, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio's doctrine of res judicata. See State v. Perry, 10 Ohio St. 2d 175. Claimed Brady violations, by their very nature, ordinarily will involve evidence outside the trial record. In the instant case, however, there was more than more than enough evidence in the trial record from which petitioner could have raised the Brady claim set forth in his fourth ground for relief on direct appeal.
Regarding petitioner's claim that the prosecution was impugned with and failed to disclose exculpatory evidence known to a state agent, i.e., Juvenile Probation Officer Linda Phillips, the trial record very amply reflected all of the details alleged in sub-part (a) of petitioner's fourth ground for relief. Thus, the very same details could and should have been raised on direct appeal. On December 6, 1991, just before petitioner was to be formally sentenced by the trial court following the jury's recommendation on November 22, 1991 that petitioner be put to death, juvenile court probation officer Linda Phillips was permitted to address the trial court. There, for the first time, Ms. Phillips stated what she had learned from a conversation with petitioner prior to his trial — namely, "From his own words, Genesis did not brutally nor intentionally kill that baby. He told me it was an accident." (Tr. Vol. XII, at 1791.) She went on to explain that she had known this information for some time, but that petitioner had forbidden her to disclose what she knew and that she was, at that time, disclosing it against petitioner's will. ( Id. at 1791-92.) The record further reflects that defense counsel also had been unaware, until that day, of petitioner's admission to Ms. Phillips. ( Id. at 1793-94.) The record also contained ample testimony from which petitioner could have discussed on direct appeal whether or to what extent Ms. Phillips had been acting in an official capacity during the times that she met with petitioner prior to and during the pendency of his trial. (Tr. Vol. XII, at 1680-81.) Although petitioner submitted in support of his untimely, successor postconviction action an affidavit by Ms. Phillips, (J.A. Vol. XIV, at 220), that affidavit did not set forth any necessary facts that were not already reflected on the trial record. Similarly, although petitioner had stated in an affidavit submitted in support of his original postconviction action that he had confided in Ms. Phillips what had actually happened to his child, (J.A. Vol. VIII, at 2306), that fact already was reflected on the trial record. Thus, petitioner alleged no facts of substance in either his original postconviction action or his untimely, successor postconviction action that could not have been raised on direct appeal.
Regarding petitioner's allegation that the prosecution failed to disclose evidence that petitioner and the victim's mother, Teresa Dudley, had been given polygraph examinations in the early days of the investigation, the trial record contained all of the details alleged in sub-part (b) of petitioner's fourth ground for relief. Thus, the very same details could and should have been raised on direct appeal. During a pretrial motions hearing on September 20, 1991, the prosecution stated, in response to a motion that defense counsel had filed for any information about polygraph examinations that may have been administered, that they (the prosecutors) knew of none. (Tr. Vol. II, at 32.) Defense counsel then stated on the record that, according to their own investigation, both petitioner and the victim's mother had been given polygraph examinations, ( Id. at 32-34), at which point Mr. Tolbert responded that they (the prosecutors) would look into it, ( Id. at 34). Although petitioner submitted in support of his untimely, successor postconviction action affidavits by petitioner and Teresa Dudley averring that they had been given polygraph examinations, (J.A. Vol. XIV, at 222 and 223), that fact was already reflected on the trial record. Thus, petitioner presented no additional facts or evidence of any substance in his untimely, successor postconviction action that could not have been raised on direct appeal.
Regarding petitioner's blanket assertion in sub-part (c) that there must be more Brady information in the files of the prosecution and the investigating officer, given the history of the Hamilton County Prosecutor's Office of committing Brady violations, the Court is not persuaded that there was sufficient evidence on the trial record from which petitioner could have raised that argument on direct appeal. But the utter lack of substance to the claim makes any procedural default analysis not only impossible, but also unnecessary.
Returning to sub-parts (a) and (b) of petitioner's fourth ground for relief, the second part of the Maupin test requires the Court to determine whether the state courts actually enforced the procedural rule against petitioner's claim. The Court deems the second part of the Maupin test to have been met because petitioner, by raising these allegations for the first time in his untimely, successor postconviction action, presented his claims to the state courts in a manner and forum that did not afford them an opportunity to enforce the res judicata rule. In this regard, the Court notes that petitioner presented related allegations in his original postconviction — namely, that his trial attorneys were ineffective for failing to "cause" disclosure of what Ms. Phillips knew and for failing to move for a mistrial when they learned that Ms. Phillips had withheld exculpatory information, and that his due process rights were violated when Ms. Phillips withheld the exculpatory information that she knew — and that the state courts rejected those claims on the basis of res judicata. (J.A. Vol. IX, at 2642, 2645, 2647; J.A. Vol. X, at 2798.) In any event, the state courts were never given an opportunity to enforce res judicata against the claim that petitioner seeks to present here, i.e., that the state withheld material, exculpatory evidence.
The Court further finds that the third part of the Maupin test has been met. As the Court explained more fully in connection with petitioner's seventh ground for relief, Ohio's res judicata rule is an adequate and independent state ground for denying relief and foreclosing federal habeas corpus review.
Turning to the fourth part of the Maupin test, petitioner asserts ineffective assistance of appellate counsel as cause for his failure to assert on direct appeal the Brady allegations set forth in his fourth ground for relief. Before a claim of ineffective assistance of counsel can be considered as cause to excuse procedural default, the claim must first be fairly presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). The particular allegation of appellate counsel ineffectiveness that petitioner offers as cause was presented to the state courts in petitioner's Rule 26(B) application for delayed reopening of his direct appeal. (J.A. Vol. XVII, at 13.) Although the state appellate court rejected petitioner's Rule 26(B) application on procedural grounds without reaching the merits of the appellate counsel ineffectiveness claims asserted therein, (J.A. Vol. XIX, at 75), the Supreme Court of Ohio expressly rejected petitioner's claims on the merits. State v. Hill, 90 Ohio St. 3d 571, 572-73 (2001). That being the case, those claims are properly before this Court for the purpose of determining whether appellate counsel ineffectiveness constitutes cause to excuse the default of petitioner's fourth ground for relief.
To establish a claim of ineffective assistance of counsel sufficient to establish cause for the default of his fourth ground for relief, petitioner must show both deficient performance on the part of his appellate attorneys and prejudice from the deficient performance. The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). "`[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). Of course, not every decision made by appellate counsel can be insulated from review merely by categorizing it as strategic. As explained, supra, at pp. 68-69, the Court of Appeals for the Sixth Circuit has identified eleven factors determining whether counsel on direct appeal performed reasonably competently.
Initially, the Court views as somewhat significant the fact that petitioner apparently had disclosed to Ms. Phillips that the death of his six-month-old daughter was an accident for which he felt remorse and the fact that polygraph examinations apparently had been administered to petitioner and the victim's mother, Teresa Dudley. Although petitioner proceeded to trial with the strategy that he had had no involvement in either the disappearance or death of Domika Dudley, evidence suggesting that the victim's death may have been the result of an accident while she was in petitioner's care, rather than an intentional killing, strikes this Court as evidence that appellate counsel might have wanted to highlight. Similarly, evidence that petitioner and the victim's mother had been given polygraph examinations strikes this Court as significant if for no other reason than because it suggests that police at some point might have regarded Teresa Dudley as a suspect in the disappearance and/or death of her daughter. In any event, the Court is not persuaded under the totality of the Mapes factors that appellate counsel were ineffective for failing to raise these issues as Brady claims. Because there was contrary authority that rendered these Brady claims meritless, it simply cannot be said that the decision to omit the claims, even if inadvertent, was an unreasonable one that only an incompetent attorney would adopt.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." See also State v. Jackson, 57 Ohio St. 3d 29 (1991); State v. Johnston, 39 Ohio St. 3d 48 (1988). Three components must be satisfied to establish a Brady violation: (1) the existence of evidence favorable to the petitioner; (2) which was suppressed by state officials; and (3) which resulted in prejudice to the petitioner. Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (citing Brady v. Maryland, 373 U.S. 83 (1963)). In United States v. Bagley, 473 U.S. 667, 682 (1984), the United States Supreme Court explained that in determining whether favorable evidence was improperly suppressed, that evidence shall be deemed material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." See also State v. Johnston, supra, 39 Ohio St. 3d at paragraph five of the syllabus.
A trial prosecutor's duty to disclose exculpatory evidence extends to information in possession of the law enforcement agency or agencies responsible for investigating the offense. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). However, a trial prosecutor faced with a general, non-specific request has no duty to seek out possible Brady material from agencies not acting on behalf of the prosecution. See State v. Lawson, 64 Ohio St. 3d 336, 344 (1992) (holding that knowledge of FBI agent could not be ascribed to the State where agent's relationship to State was no more than that of any citizen); see also Harper v. Bohanan, slip copy, 2006 WL 1462574 (E.D. Tenn. May 23, 2006), * 11-12. Further, Brady does not require the government to disclose information which is already known to the defendant. United States v. Glover, 846 F.2d 339, 342-43 (6th Cir. 1988). Under these well-established corollaries to Brady, any claim that the prosecution committed a Brady violation by not disclosing petitioner's statement to Linda Phillips that Domika Dudley's death was an accident and that he felt terrible about it would fail. Although Linda Phillips was a probation officer for the juvenile court and had had some brief contact in her official capacity with petitioner when he was a minor, it is readily apparent from the transcript that she was at no time acting in an official capacity when, at defense counsel's request, she met with petitioner in connection with his capital trial and when he confided in her about the circumstances surrounding the death of Domika Dudley. (Tr. Vol. 1680-81.) That being so, her knowledge could not be ascribed to the prosecution. Further, petitioner had knowledge of the statement that he had made to Ms. Phillips. For that reason, Brady did not compel the prosecution to reveal what petitioner already knew. It tests the limits of credulity to suggest that appellate counsel was ineffective for failing to raise a Brady claim challenging the prosecution's failure to disclose a fact that it did not know, knowledge of which could not rightfully be imputed to it, and which petitioner himself already knew.
Similarly, appellate counsel was not ineffective for failing to raise a claim that the prosecution failed to disclose that petitioner and the victim's mother, Teresa Dudley, had been given polygraph examinations. As noted above, Brady does not require the government to disclose information which is already known to the defendant. United States v. Glover, 846 F.2d at 342-43. Further, the results of polygraph examinations generally are not discoverable as Brady evidence. See Wood v. Bartholomew, 516 U.S. 1 (1995) (holding that prosecutor did not violate Brady for failing to disclose that a key witness for the prosecution had failed a polygraph examination because failure of that witness to pass the polygraph would not constitute admissible evidence); see also State v. Davis, 62 Ohio St. 3d 326, 341 (1991) (suggesting that polygraph results are not discoverable under Brady v. Maryland rule). Beyond the question of whether polygraph results are discoverable under Brady, it bears mentioning that the results of polygraphs tests generally are not admissible for the purpose of establishing the guilt or innocence of the accused, and are admissible for purposes of corroboration or impeachment only if certain conditions are strictly met. State v. Souel, 53 Ohio St. 2d 123, 132 (1978). This prohibition applies not just for the accused, but also for witnesses. See, e.g., State v. Lascala, 61 Ohio App. 3d 228, 236 (1988). Petitioner knew he had been given a polygraph examination. According to transcript, defense counsel were also well aware, as early as a month before trial, that petitioner and Teresa Dudley had been given polygraph examinations. (Tr. Vol. II, at 32-34.) Petitioner will not be heard to argue that his appellate attorneys were ineffective for failing to raise a Brady claim challenging the prosecution's failure to disclose information about polygraph examinations that were administered to petitioner and Teresa Dudley. Defense counsel had discovered through their own investigation that the examinations had been given. Beyond that fact, it is highly unlikely that the results of the tests — whatever they were — would have constituted admissible evidence.
Under the totality of the Mapes factors, the Court is not persuaded that the decision to omit the Brady claims set forth in petitioner's fourth ground for relief — even if the decision was actually inadvertent — was an unreasonable one that only an incompetent attorney would adopt. Thus, the Court concludes that petitioner has failed to establish that his appellate attorneys were ineffective under the two-pronged standard set forth in Strickland sufficient to establish cause and prejudice to excuse the default of his fourth ground for relief. Accordingly, under the four-part of the Maupin test, the Court concludes that petitioner's fourth ground for relief is procedurally defaulted. Respondent's motion to dismiss petitioner's fourth ground for relief as procedurally defaulted is granted.
E. Grounds Ten and Thirteen — Prosecutorial Misconduct
In his tenth and thirteenth grounds for relief, petitioner raises several claims of prosecutorial misconduct. (Second Amended Petition, Doc. # 139, at ¶¶ 98-124.) In sub-part (a), petitioner argues that the prosecution committed numerous acts of misconduct during voir dire. ( Id. at ¶¶ 98-101.) Petitioner argues in sub-part (b) that the prosecution engaged in misconduct during closing arguments, ( Id., at ¶¶ 102-115), and in sub-part (c) that the prosecution committed various acts of misconduct during the mitigation phase of petitioner's trial, ( Id., at ¶¶ 116-124).
Respondent argues that only sub-part (a) is procedurally defaulted because petitioner failed to raise those allegations on direct appeal or in his original postconviction action, and instead raised them for the first time in an untimely, successor postconviction that the state courts declined to address on the merits. (Second Motion to Dismiss, Doc. # 142, at 38-39.) Respondent states that sub-parts (b) and (c) were presented on direct appeal and are properly before this Court for a review on the merits.
In response to the procedural default argument against sub-part (a), petitioner concedes that the first three parts of the Maupin test have been met, but argues that ineffective assistance of appellate counsel constitutes cause and prejudice to excuse the default.
As respondent asserts and petitioner concedes, the allegations set forth in sub-part (a) of petitioner's tenth and thirteenth grounds for relief were raised for the first time in petitioner's untimely, successor postconviction action. The Court has already determined, with respect to claims initially raised in petitioner's untimely, successor postconviction action, that petitioner violated R.C. § 2953.21 et seq. when he failed to include those claims in his timely original postconviction action and raised them instead in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23. The Court has also determined that the state courts clearly enforced that procedural default and that the procedural rules at issue constitute an adequate and independent state ground upon which to deny relief.
Turning to the fourth part of the Maupin test, petitioner asserts appellate counsel ineffectiveness as cause for the default of sub-part (a) of his tenth ground for relief. Before a claim of ineffective assistance of counsel can be considered as cause to excuse procedural default, the claim must first be fairly presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). The particular allegation of appellate counsel ineffectiveness that petitioner offers as cause was not presented to the state courts in petitioner's App. R. 26(B) application for reopening. Petitioner argues in his tenth ground for relief that the prosecution engaged in misconduct during voir dire for repeatedly telling prospective jurors that they had to first convict petitioner of death penalty specifications in order to reach the death-penalty phase; for telling prospective jurors that their death verdict was only a recommendation; for misstating to prospective jurors what constituted aggravating or mitigating factors; and for incorrectly informing prospective jurors about petitioner's parole eligibility. (Second Amended Petition, Doc. # 139, at ¶¶ 98-101.) Nowhere in his App. R. 26(B) application for reopening did petitioner argue that his appellate attorneys were ineffective for failing to raise those specific instances of prosecutorial misconduct or even for failing to raise even a general claim of prosecutorial misconduct during voir dire. (J.A. Vol. XVII, at 8-18.)
Petitioner emphasizes in his memorandum in opposition, as he noted in his App. R. 26(B) application, that he was prevented from "fully briefing each assignment of error" due to page limitations imposed by App. R. 26(B). (Memorandum in Opposition, Doc. # 144-1, at 28; J.A. Vol. XVII, at page 9, n. 2.) Petitioner's argument is not well taken. There is a difference between not "fully briefing each assignment of error" and not including a single reference to prosecutorial misconduct during voir dire. In his App. R. 26(B) application, petitioner raised claims challenging the prosecution's use of peremptory challenges on the basis of race, improper use of exparte subpoenas to compel witnesses to meet with them, and failure to disclose material and exculpatory evidence. Petitioner did not include a single reference to prosecutorial comments during voir dire. Without a single allegation in this regard, however brief page limitations might have compelled that allegation to be, this Court cannot possibly conclude that petitioner fairly presented to the state courts a claim of appellate counsel ineffectiveness for failing to raise instances of prosecutorial misconduct for remarks made during voir dire. That being so, the Court cannot consider petitioner's claim that appellate counsel ineffectiveness constitutes cause and prejudice to excuse the default of his tenth ground for relief.
For the foregoing reasons, the Court concludes that sub-part (a) of petitioner's tenth ground for relief is procedurally defaulted. Respondent's motion to dismiss sub-part (a) of petitioner's tenth ground for relief is granted.
F. Ground Five — Racial Discrimination in Use of Peremptory Challenges
In his fifth ground for relief, petitioner argues that the prosecutors employed peremptory challenges in a racially discriminatory manner. (Second Amended Petition, Doc. # 139, at ¶¶ 125-134.) Specifically, petitioner asserts that the prosecution used peremptory challenges to strike all three African-American members of the jury venire — i.e., John Allen, Beverly Brooks, and John Nelson — and that no race-neutral explanation for striking those prospective jurors is apparent from the record.
Respondent argues that petitioner's claim is procedurally defaulted because petitioner failed to raise those allegations on direct appeal or in his original postconviction action, and instead raised them for the first time in an untimely, successor postconviction that the state courts declined to address on the merits. (Second Motion to Dismiss, Doc. # 142, at 40-41.) In response, petitioner concedes that the first three parts of the Maupin test have been met, but argues that ineffective assistance of appellate counsel constitutes cause and prejudice to excuse the default.
As respondent asserts and petitioner concedes, the allegations set forth in petitioner's fifth ground for relief were raised for the first time in petitioner's untimely, successor postconviction action. The Court has already determined, with respect to claims initially raised in petitioner's untimely, successor postconviction action, that petitioner violated R.C. § 2953.21 et seq. when he failed to include those claims in his timely original postconviction action and raised them instead in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23. The Court has also determined that the state courts clearly enforced that procedural default and that the procedural rules at issue constitute an adequate and independent state ground upon which to deny relief.
Turning to the fourth part of the Maupin test, petitioner asserts appellate counsel ineffectiveness as cause for the default of his fifth ground for relief. Before a claim of ineffective assistance of counsel can be considered as cause to excuse procedural default, the claim must first be fairly presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). The particular allegation of appellate counsel ineffectiveness that petitioner offers as cause was presented to the state courts in petitioner's App. R. 26(B) application. Further, as this Court has already determined, the Supreme Court of Ohio expressly rejected petitioner's App. R. 26(B) application on the merits. State v. Hill, 90 Ohio St. 3d 571, 572-73 (2001). Thus, this Court is free to consider the "cause" argument that petitioner asserts.
The Court concluded in its discussion of the default of petitioner's seventh ground for relief that petitioner's appellate attorneys were not ineffective for failing to raise the issue of trial counsel's failure to raise a Batson challenge during jury selection. Specifically, the Court noted that the trial record it had reviewed did not appear to reflect the race of any of the jurors who had been dismissed through the State's peremptory challenges. (Tr. Vol. IV, at 300 (John Earl Allen); Tr. Vol. IV, at 373 (Robin Reuss); Tr. Vol. V, at 450 (Beverly Brooks); Tr. Vol. V, at 574 (Mattie McLoud); Tr. Vol. V, at 471 (John Nelson); Tr. Vol. VI, at 736 (Vernon Ace Johnson); Tr. Vol. VII, at 931-37 (exercise of peremptory challenges).) The trial record did reflect that the final jury was comprised of two African-American women, six Caucasian women, and four Caucasian men. (Tr. Vol. VII, at 968.) The Court noted, however, that questionnaires which had been filled and submitted by the prospective jurors did not appear to have been included in the record submitted to this Court, leaving this Court no way of knowing whether those questionnaires indicated the prospective jurors' race or whether appellate counsel reviewed them. The Court ultimately concluded, with respect to petitioner's seventh ground for relief, that appellate counsel could not reasonably have been expected to argue on appeal that trial counsel erred in not making a Batson challenge, if it was not readily apparent from the trial record that a Batson challenge was warranted. For the same reason, this Court concludes that appellate counsel could not reasonably have been expected to argue on appeal that a Batson violation had occurred, or even that a prima facie showing of a Batson violation could be made.
Accordingly, the Court concludes that petitioner has not established cause and prejudice to excuse the default of his fifth ground for relief. That being so, respondent's motion to dismiss ground five as procedurally defaulted is granted.
G. Ground Eight — Improper Jury Instructions
In his eighth ground for relief, petitioner argues that the trial court gave improper jury instructions, specifically in its definition of "reasonable doubt" and its explanation of the capital specifications with which petitioner had been charged. (Second Amended Petition, Doc. # 139, at ¶¶ 139-146.)
Respondent raises numerous procedural default arguments against petitioner's claim. (Second Motion to Dismiss, Doc. # 142, at 41-42.) Primarily, respondent argues that petitioner defaulted this claim because he failed to raise a contemporaneous objection against these jury instructions at trial in violation of Ohio R. Crim. P. 30(A). Respondent goes on to note that petitioner failed to raise this claim on direct appeal or in either his original postconviction action or untimely, successor postconviction action. According to respondent, petitioner raised the claim only in his App. R. 26(B) application for delayed reopening of his direct appeal, which application the state courts rejected as untimely.
Petitioner concedes that he failed to preserve this claim at trial, on direct appeal, or in either his original postconviction action or his untimely, successor postconviction action. (Memorandum in Opposition, Doc. # 144-1, at 26.) He argues under the fourth part of the Maupin test that he can demonstrate cause and prejudice to excuse the defaults — namely, ineffective assistance of trial counsel for the failure to raise a contemporaneous objection and/or ineffective assistance of appellate counsel for failing to raise the issue on direct appeal. (Id. at 26-27.)
Because petitioner concedes that the first three parts of the Maupin test have been met with respect to his eighth ground for relief, it is not necessary for the Court to address those matters in detail. It is sufficient to note that petitioner violated Ohio's contemporaneous objection rule when he failed to object to the jury instructions at trial, and that petitioner then violated Ohio's resjudicata rule when he failed to challenge those jury instructions on direct appeal. The state courts were never given an opportunity to enforce the procedural rules, both of which are adequate and independent state grounds upon which to deny relief under established Sixth Circuit precedent. See, e.g., Scott v. Mitchell, 209 F.3d 854, 866-71 (6th Cir. 2000) (holding that Ohio's contemporaneous objection rule is adequate and independent); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001) (holding that resjudicata is adequate and independent).
Turning to the fourth part of the Maupin test, petitioner asserts as cause to excuse the default ineffective assistance of trial counsel for the failure to object to the jury instructions at trial and/or ineffective assistance of appellate counsel for the failure to challenge the jury instructions on direct appeal. Before a claim of ineffective assistance of counsel can be considered as cause to excuse procedural default, the claim must first be fairly presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). Careful review of the record reveals that neither of the ineffective assistance claims that petitioner offers as cause were presented to the state courts.
First, petitioner offers as "cause" ineffective assistance of trial counsel for the failure to object to the jury instructions at trial. That trial counsel ineffectiveness claim was presented to the state courts for the first time in petitioner's untimely, successor postconviction action. (J.A. Vol. XIV, at 150.) However, petitioner's inclusion of the claim therein was insufficient to preserve it for two reasons. First, as noted supra, where petitioner is represented by entirely new counsel on direct appeal, as petitioner herein was, claims of ineffective assistance of trial counsel that do not rely on evidence outside the record must be raised on direct appeal or they will be waived under Ohio's doctrine of resjudicata. See State v. Cole, supra, 2 Ohio St. 3d 112; see also Combs v. Coyle, 205 F.3d 269, 275-77 (6th Cir. 2000). Second, as noted repeatedly throughout this order, no claims that petitioner raised in his untimely, successor postconviction action are properly before this Court because petitioner did not satisfy or even address the conditions set forth in R.C. § 2953.23 for filing an untimely, successor postconviction action.
Petitioner also included this trial counsel ineffectiveness claim in his App. R. 26(B) application for delayed reopening of his appeal. (J.A. Vol. XVII, at 11.) However, petitioner's inclusion of the claim in that application also was insufficient to preserve it because the only claims that can be preserved in an application for delayed reopening are claims of ineffective assistance of appellate counsel or claims otherwise challenging the validity of the appellate court's decision. Under Ohio law, an application for reopening pursuant to App. R. 26(B), or a "Murnahan" motion, is a procedural mechanism for raising claims of appellate counsel ineffectiveness or otherwise challenging the validity of the appellate court's decision, not for bootstrapping underlying constitutional claims that were omitted from the direct appeal in the first place. Fair presentment requires a petitioner to present his claims to the state courts in a procedure and manner that will provide the state courts with the opportunity to apply controlling legal principles. Picard v. Connor, 404 U.S. 270, 276-77 (1971). If petitioner is suggesting that raising a claim in a Rule 26(B) application is equivalent to raising that claim on direct appeal, he is in error. The argument that any alleged trial error raised in an application for reopening is fairly presented to the state courts in the same manner as if that error had been challenged in a timely direct appeal is untenable and unsupported by case law. Under Edwards v. Carpenter, supra, the claim of trial counsel ineffectiveness that petitioner offers as cause for the default of his eighth ground for relief was not properly presented to the state courts and cannot be considered by this Court.
Petitioner also offers as "cause" ineffective assistance of appellate counsel for the failure to challenge the jury instructions on direct appeal. However, petitioner never presented that claim of appellate counsel ineffectiveness to the state courts. In his App. R. 26(B) application, petitioner did include a claim that appellate counsel was ineffective for failing to challenge trial counsel's ineffectiveness for failing to object to the jury instructions at trial. But that claim is legally distinct from a claim that appellate counsel was ineffective for failing to challenge the jury instructions on direct appeal. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) ("the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is presented in federal court."). Petitioner emphasizes in his memorandum in opposition, as he noted in his App. R. 26(B) application, that he was prevented from "fully briefing each assignment of error" due to page limitations imposed by App. R. 26(B). (Memorandum in Opposition, Doc. # 144-1, at 26-27 n. 8; J.A. Vol. XVII, at page 9, n. 2.) The Court has already rejected that argument. Without an explicit allegation that appellate counsel was ineffective for failing to challenge the jury instructions on direct appeal, however brief page limitations might have compelled that allegation to be, this Court cannot possibly conclude that petitioner fairly presented that claim to the state courts. That being so, the Court cannot consider petitioner's claim that appellate counsel ineffectiveness constitutes cause and prejudice to excuse the default of his eighth ground for relief.
For the foregoing reasons, the Court concludes that petitioner's eighth ground for relief is procedurally defaulted. Respondent's motion to dismiss ground eight is granted.
H. Ground Fourteen — Improper Jury Instructions at the Sentencing Phase
In his fourteenth ground for relief, petitioner challenges nine jury instructions that the trial court gave during the sentencing phase of his trial. Petitioner argues that the trial court: (a) improperly merged the aggravated murder charge and the aggravating circumstances; (b) improperly identified the aggravating circumstances; (c) improperly gave a mandatory death penalty instruction; (d) improperly instructed the jury that its sentencing verdict was a "recommendation;" (e) failed to instruct the jurors that they did not need to unanimously find the existence of a mitigating factor; (f) improperly instructed the jury that it had to be unanimous in rejecting a death sentence; (g) improperly defined "outweigh;" (h) improperly instructed the jury on the impact of other convictions; and (I) improperly instructed the jury on the "catch-all" mitigating factor set forth in R.C. § 2929.04(B)(7). (Second Amended Petition, Doc. 139, at ¶¶ 147-176.)
Respondent argues that petitioner's claim is procedurally defaulted in its entirety because petitioner violated Ohio's contemporaneous objection rule when he failed to object to any of the nine jury instructions at trial. (Second Motion to Dismiss, Doc. # 142, at 43.) Respondent goes on to argue that petitioner failed to raise all but one of the jury instructions on direct appeal. Although petitioner did raise a claim challenging the trial court's instruction that the jury's verdict was only a "recommendation," i.e., sub-part (d), respondent notes that the Supreme Court of Ohio reviewed that claim only for plain error, due to petitioner's failure to object at trial. (Id.) According to respondent, petitioner raised all of the jury instruction challenges in his App. R. 26(B) application for delayed reopening of his direct appeal, which application the state courts rejected as untimely.
Petitioner concedes that the first three part of the Maupin test have been met. (Memorandum in Opposition, Doc. # 144-1, at 34.) He argues under the fourth part of the Maupin test that he can demonstrate cause and prejudice to excuse the defaults — namely, ineffective assistance of trial counsel for the failure to raise a contemporaneous objection and/or ineffective assistance of appellate counsel for failing to raise the issue on direct appeal. (Id. at 34-35.)
Because petitioner concedes that the first three parts of the Maupin test have been met with respect to his fourteenth ground for relief, it is not necessary for the Court to address those matters in detail. It is sufficient to note that petitioner violated Ohio's contemporaneous objection rule when he failed to object to the jury instructions at trial, and that petitioner then violated Ohio's resjudicata rule when he failed to challenge those jury instructions on direct appeal. The state courts were never given an opportunity to enforce the procedural rules, both of which are adequate and independent state grounds upon which to deny relief under established Sixth Circuit precedent. See, e.g., Scott v. Mitchell, 209 F.3d 854, 866-71 (6th Cir. 2000) (holding that Ohio's contemporaneous objection rule is adequate and independent); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001) (holding that resjudicata is adequate and independent).
Petitioner did not violate resjudicata as to sub-part (d). On direct appeal, petitioner did challenge the trial court's instruction that the jury's sentencing verdict was a "recommendation." (J.A. Vol. VI, at 1605.)
The Supreme Court of Ohio clearly and expressly enforced petitioner's violation of the contemporaneous objection rule as to petitioner's claim challenging the trial court's use of the word "recommend." (J.A. Vol. VI, at 1873.)
Turning to the fourth part of the Maupin test, petitioner asserts as cause to excuse the default ineffective assistance of trial counsel for the failure to object to the nine penalty-phase instructions at trial and/or ineffective assistance of appellate counsel for the failure to challenge those jury instructions on direct appeal. Before a claim of ineffective assistance of counsel can be considered as cause to excuse procedural default, the claim must first be fairly presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). As with petitioner's eighth ground for relief, careful review of the record reveals that neither of the ineffective assistance claims that petitioner offers as cause were presented to the state courts, with the exception of petitioner's claim that his trial attorneys were ineffective for failing to object to the use of the word "recommend" in the trial court's penalty phase jury instructions and the penalty phase verdict forms.
In sub-part (E) of his ninth proposition of law on direct appeal to the Supreme Court of Ohio, petitioner clearly raised a claim challenging the failure of his trial attorneys to object to the use of the word "recommend" in describing the jury's sentencing verdict. (J.A. Vol. VI, at 1574-75.) That being the case, the Court is free to consider petitioner's argument that trial counsel ineffectiveness constitutes cause and prejudice to excuse the default of sub-part (d) of his fourteenth ground for relief. However, the Court rejects petitioner's argument. That is, the Court is not persuaded either that trial counsel performed in an objectively unreasonable manner in failing to raise this objection, or that petitioner was prejudiced by trial counsel's inaction in this regard. Ohio courts have consistently rejected the argument that the use of the word "recommend" in instructing a capital jury on its sentencing decision violates Caldwell v. Mississippi, 472 U.S. 320 (1985) (holding that it is impermissible to rest death sentence on determination made by sentencer who has been led to believe that responsibility for determining appropriateness of defendant's death rests elsewhere). State v. Getsy, 84 Ohio St. 3d 180, 202 (1998) ("Use of an instruction that the jury verdict is a `recommendation' accurately reflects Ohio law and does not diminish the jury's overall sense of responsibility."); see also State v. Woodard, 68 Ohio St. 3d 70, 77 (1993); State v. Henderson, 39 Ohio St. 3d 24, 29-30 (1988). It cannot even be argued that trial counsel, in the face of such case law, nonetheless should have objected to the instruction for the purpose of preserving the issue for federal review. The Sixth Circuit also has consistently rejected this argument. Buell v. Mitchell, 274 F.3d 337, 352-53 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417, 435-36 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854, 877 (6th Cir. 2000); Mapes v. Coyle, 171 F.3d 408, 414-15 (6th Cir. 1999); Kordenbrock v. Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1991). Thus, the Court cannot find that trial counsel performed unreasonably and to petitioner's prejudice in failing to object to the use of the word "recommend" in the trial court's jury instructions and on the sentencing verdict forms. Petitioner, accordingly, has not demonstrated cause and prejudice to excuse the default of ground fourteen, sub-part (d).
The remainder of the ineffective assistance of counsel claims offered by petitioner as "cause" to excuse the default of his fourteenth ground for relief were not properly presented to the state courts and cannot, under Edwards v. Carpenter, be considered by this Court. First, petitioner offers as "cause" ineffective assistance of trial counsel for the failure to object to the penalty-phase jury instructions at trial. That trial counsel ineffectiveness claim was presented to the state courts for the first time in petitioner's untimely, successor postconviction action. (J.A. Vol. XIV, at 153-54.) However, petitioner's inclusion of the trial counsel ineffectiveness claims therein was insufficient to preserve it for two reasons. First, as noted supra, where petitioner is represented by entirely new counsel on direct appeal, as petitioner herein was, claims of ineffective assistance of trial counsel that do not rely on evidence outside the record must be raised on direct appeal or they will be waived under Ohio's doctrine of resjudicata. See State v. Cole, supra, 2 Ohio St. 3d 112; see also Combs v. Coyle, 205 F.3d at 275-77. Second, as noted repeatedly throughout this order, no claims that petitioner raised in his untimely, successor postconviction action are properly before this Court because petitioner did not satisfy or even address the conditions set forth in R.C. § 2953.23 for filing an untimely, successor postconviction action.
Petitioner also included this trial counsel ineffectiveness claim in his App. R. 26(B) application for delayed reopening of his appeal. (J.A. Vol. XVII, at 12.) However, petitioner's inclusion of the trial counsel ineffectiveness claims in that application also was insufficient to preserve them because the only claims that can be preserved in an application for delayed reopening are claims of ineffective assistance of appellate counsel. Under Ohio law, an application for reopening pursuant to App. R. 26(B), or a "Murnahan" motion, is a procedural mechanism for raising claims of appellate counsel ineffectiveness or for otherwise challenging the validity of the appellate court's decision, not for bootstrapping underlying constitutional claims that were omitted from the direct appeal in the first place. Fair presentment requires a petitioner to present his claims to the state courts in a procedure and manner that will provide the state courts with the opportunity to apply controlling legal principles. Picard v. Connor, supra, 404 U.S. at 276-77. If petitioner is suggesting that raising a claim in a Rule 26(B) application is equivalent to raising that claim on direct appeal, he is in error. The argument that any alleged trial error raised in an application for reopening is fairly presented to the state courts in the same manner as if that error had been challenged in a timely direct appeal is untenable and unsupported by case law.
Petitioner also offers as "cause" ineffective assistance of appellate counsel for the failure to challenge the penalty-phase jury instructions on direct appeal. However, petitioner never presented that claim of appellate counsel ineffectiveness to the state courts. In his App. R. 26(B) application, petitioner did include a claim that appellate counsel was ineffective for failing to challenge trial counsel's ineffectiveness for failing to object to the sentencing-phase jury instructions. But that claim is legally distinct from a claim that appellate counsel was ineffective for failing to challenge the jury instructions on direct appeal. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) ("the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is presented in federal court."). Petitioner emphasizes in his memorandum in opposition, as he noted in his App. R. 26(B) application, that he was prevented from "fully briefing each assignment of error" due to page limitations imposed by App. R. 26(B). (Memorandum in Opposition, Doc. # 144-1, at 26-27 n. 8; J.A. Vol. XVII, at page 9, n. 2.) But the Court has already rejected the argument that petitioner was prevented by page limitations imposed by App. R. 26(B) from fully briefing each assignment of error that appellate counsel was ineffective for failing to raise. Without an explicit allegation that appellate counsel was ineffective for failing to challenge the jury instructions on direct appeal, however brief page limitations might have compelled that allegation to be, this Court cannot possibly conclude that petitioner fairly presented that claim to the state courts. That being so, the Court cannot consider petitioner's claim that appellate counsel ineffectiveness constitutes cause and prejudice to excuse the default of his fourteenth ground for relief.
For the foregoing reasons, the Court concludes that petitioner's fourteenth ground for relief is procedurally defaulted. Respondent's motion to dismiss ground fourteen is granted.
I. Ground Three — Petitioner Was Tried While Incompetent
In his third ground for relief, petitioner argues that he was tried while incompetent. (Second Amended Petition, Doc. # 139, at ¶¶ 207-220.) Respondent argues that petitioner's claim is barred by procedural default because it was raised only in petitioner's untimely, successor postconviction action and in his App. R. 26(B) application to reopen his direct appeal, both of which the state courts rejected without reaching the merits. (Second Motion to Dismiss, Doc. # 142, at 44-46.)
Petitioner offers several arguments in response. First, petitioner argues that substantive claims challenging competency can never be procedurally defaulted. (Memorandum in Opposition, Doc. # 144-1, at 13.) Petitioner argues in the alternative that, assuming the Court finds that his claim is subject to procedural default, he can demonstrate cause and prejudice to excuse the default — namely, ineffective assistance of appellate counsel for the failure to raise the claim on direct appeal. (Id. at 14-15.)
The Court rejects petitioner's initial argument that a substantive claim of incompetence can never be procedurally defaulted. Petitioner cites Medina v. Singletary, 59 F.3d 1095 (11th Cir. 1995); Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999); Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997); and Vogt v. United States, 88 F.3d 587, 590 (8th Cir. 1996). Those cases essentially support petitioner's argument. However, petitioner has not cited, and the Court is not aware of, any decisions by the Supreme Court of the United States or the Court of Appeals for the Sixth Circuit supporting his argument. Further, this Court is aware of at least one Sixth Circuit decision that seems to contradict petitioner's argument. Ludwig v. United States, 162 F.3d 456, 458 (6th Cir. 1998) (holding that petitioner had procedurally defaulted a claim that he was not competent to enter a guilty plea). That being so, the Court rejects petitioner's argument that a claim of incompetence to be tried can never be procedurally defaulted.
Turning to petitioner's alternative argument, i.e., that appellate counsel ineffectiveness constitutes cause to excuse any default of his third claim for relief, the Court rejects that argument for the following reasons. To consider appellate counsel ineffectiveness as cause to excuse this default, the Court would have to find that petitioner's claim should have been raised on direct appeal. This the Court cannot do.
As noted supra, claims appearing on the face of the record must be raised on direct appeal or they will be waived under Ohio's doctrine of resjudicata. State v. Perry, supra. Claims that involve matters outside the record must be raised and supported by evidence dehors the record in state postconviction proceedings. In determining whether a claim was properly raised in postconviction instead of on direct appeal, the Court's inquiry is properly focused on whether the claim genuinely relied on evidence outside the trial record. State v. Cole, supra, 2 Ohio St. 3d 112. That is, non-record evidence submitted during postconviction proceedings to support a constitutional claim must genuinely support the claim in a manner that no record evidence could. See State v. Powell, 90 Ohio App. 3d 260, 268 (Ohio App. Dist. I 1993) (holding that additional evidence offered in postconviction to support claim of trial counsel ineffectiveness during mitigation was merely cumulative to evidence presented at trial). In the instant case, petitioner argues in his third ground for relief that his right to due process was violated when he was tried while incompetent. Petitioner could not possibly have argued this on direct appeal based only on the record.
The standard for assessing whether a criminal defendant is competent to stand trial requires the trial court to determine "whether he has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960); see also Drope v. Missouri, 420 U.S. 162, 172 (1975); State v. Berry, 72 Ohio St. 3d 354, 359 (1995). The trial record on this issue was unambiguous: petitioner was competent to stand trial. Based on a suggestion by defense counsel that petitioner might be incompetent, the trial court appointed three experts to evaluate petitioner. Those experts — i.e., Dr. Emmitt Cooper, Dr. Gail Hellman, and Dr. Donna Winter — submitted reports finding that petitioner was competent. (Tr. Vol. III, at 63.) Based on those reports, to which both the prosecution and defense counsel stipulated at trial, and finding no evidence to the contrary, the trial court found that petitioner was competent to stand trial. (Id. at 64-65.) Further, the trial record reflected absolutely no behavior or other incidents suggesting that petitioner was unable to comprehend the proceedings against him or communicate with his counsel. Although there was evidence in the record regarding petitioner's one-month stay at a juvenile mental health facility when he was seventeen years old, due to severe depression, suicidal thoughts, and auditory hallucinations, (see, e.g., Tr.Vol. XII, at 1702), there was no indication on the record suggesting that petitioner was experiencing those or any other symptoms of a mental disorder during trial. (Id. at 1716-17, 1724.) In other words, there was no evidence on the record from which petitioner could have demonstrated that he was unable to grasp fully the proceedings against him and to communicate meaningfully with defense counsel. See Greer v. Mitchell, supra, 264 F.3d at 675 ("Although counsel could certainly have raised an ineffective assistance of counsel claim on direct appeal, the precise arguments advanced in his petition for post-conviction relief require significant supplementation of the trial record."). Under these circumstances, petitioner could not have litigated on direct appeal the claim that he now seeks to raise here, i.e., that he was tried while incompetent.
In arguing herein that he was actually incompetent to be tried and sentenced, petitioner relies on evidence outside the trial record — namely, evidence that he was not communicating with his counsel and an affidavit by Dr. Robert L. Smith stating that, among other things, petitioner was experiencing prior to and during his trial untreated conditions of "Major Depressive Disorder with Psychotic Features and Paranoid Personality Disorder" that impaired his ability to trust, work cooperatively with, and adequately understand and contribute to his defense. (J.A. Vol. XIV, at 213-14.) Dr. Smith evaluated petitioner in 1998, nearly seven years after petitioner's trial. Thus, the only evidence offered by petitioner in support of his claim that he was tried while incompetent, i.e., Dr. Smith's affidavit, constitutes evidence outside the trial record.
In short, application of the four-part Maupin test reveals that petitioner's claim that he was tried while incompetent is procedurally defaulted. As demonstrated above, the claim could not have been litigated on direct appeal because it relied on evidence outside the trial record. That said, petitioner failed to include the claim in his original, timely postconviction action, thus violating the time-limitation imposed by R.C. § 2953.21. Instead, he raised it for the first time in his untimely, successive postconviction action without satisfying the conditions set forth in R.C. § 2953.23 for filing untimely and/or successive postconviction actions. The state courts clearly and expressly enforced the procedural default committed by petitioner when he failed to satisfy or even address the conditions set forth in R.C. § 2953.23 for filing an untimely and/or successive postconviction action. This Court has already determined that Ohio's postconviction statutes in this regard constitute an adequate and independent state ground upon which to deny relief. The only cause-and-prejudice argument offered by petitioner, i.e., ineffective assistance of appellate counsel, must be rejected because appellate counsel cannot be regarded as ineffective for failing to raise a claim that could not reasonably have been raised on direct appeal.
For the foregoing reasons, the Court concludes that petitioner's third ground for relief is procedurally defaulted. Respondent's motion to dismiss ground three is granted.
J. Ground Seventeen — Petitioner Was Incompetent during Direct Appeals Process
Petitioner argues in his seventeenth ground for relief that he was incompetent during direct appeals process. (Second Amended Petition, Doc. # 139, at ¶ 221.)
Respondent argues that petitioner's claim is procedurally defaulted. Specifically, respondent points out that petitioner failed to raise this claim on direct appeal or in his original postconviction action. Respondent goes on to point out that, although petitioner raised the claim in his untimely, successor postconviction action and in his App. R. 26(B) application to reopen his direct appeal, the state courts declined to reach the merits of either of those actions due to petitioner's failure to file either in a timely manner. (Second Motion to Dismiss, Doc. # 142, at 46-47.)
In response, petitioner argues, as he did with respect to his third ground for relief, that substantive claims regarding competency can never be procedurally defaulted and that, in the alternative, ineffective assistance of appellate counsel constitutes cause and prejudice sufficient to excuse any default of his seventeenth ground for relief. (Memorandum in Opposition, Doc. # 144-1, at 36-37.)
For the reasons discussed more fully in connection with petitioner's third ground for relief, this Court rejects the argument that substantive claims regarding competency can never be procedurally defaulted. Petitioner has not cited, and the Court is not aware of, any decisions by the Supreme Court of the United States or the Court of Appeals for the Sixth Circuit supporting that argument. Further, this Court is aware of at least one Sixth Circuit decision that seems to contradict petitioner's argument. Ludwig v. United States, 162 F.3d 456, 458 (6th Cir. 1998) (holding that petitioner had procedurally defaulted a claim that he was not competent to enter a guilty plea).
Having rejected petitioner's argument that claims regarding competency can never be procedurally defaulted, this Court must determine whether his claim is procedurally defaulted. The Court answers that inquiry in the negative because the Court is satisfied that petitioner, by raising the claim in his App. R. 26(B) application to reopen his direct appeal, gave the state courts an adequate opportunity to address the allegation that petitioner seeks to present herein — namely, that he was incompetent during his direct appeal process.
Fair presentment requires a petitioner to present his claims to the state courts in a procedure and manner that will provide the state courts with the opportunity to apply controlling legal principles. Picard v. Connor, supra, 404 U.S. at 276-77. Under Ohio law, an application for reopening pursuant to App. R. 26(B), or a "Murnahan" motion, is a procedural mechanism for raising claims of appellate counsel ineffectiveness or for otherwise challenging the validity of the appellate court's decision. Petitioner argued in the eleventh assignment of error in his App. R. 26(B) application that he was incompetent during the guilt, mitigation, and direct appeal stages of his case, or rather, that appellate counsel was ineffective for failing to argue that he was tried while incompetent and was still, at the time of his direct appeal, incompetent. Therefore, petitioner did therein argue that the court of appeals erred in rendering judgment over petitioner's direct appeal, given the fact that petitioner was allegedly incompetent at the time. (J.A. Vol. XVII, at 15-16.) Although the appellate court rejected his application as untimely, the Supreme Court of Ohio rejected his application on the merits. J.A. Vol. XX, at 150; State v. Hill, 90 Ohio St. 3d 571, 572 (2001).
Thus, under the procedural default analysis under Maupin v. Smith, supra, 785 F.2d at 138, it cannot be said that petitioner has violated a state procedural rule or that the last state court to issue a reasoned decision rejected petitioner's claim on procedural grounds. Respondent's motion to dismiss ground seventeen as procedurally defaulted is denied.
K. Ground Twenty-Five — Petitioner is Incompetent to be Executed
In his twenty-fifth ground for relief, petitioner argues that he is incompetent to be executed. (Second Amended Petition, Doc. # 139, at ¶¶ 222-223.) Respondent argues that petitioner's claim is procedurally defaulted because petitioner failed to present it to any state court. (Second Motion to Dismiss, Doc. # 142, at 48.) In response, petitioner argues that has not committed a procedural default as to this claim because the issue was not ripe during his state appeals or postconviction proceedings and because the "claim may still be premature." (Memorandum in Opposition, Doc. # 144-1, at 39-40.) Essentially, petitioner has raised the claim now in an effort to preserve it and ensure his ability to raise it when and if it does become ripe, i.e., when and if his execution becomes imminent.
In Stewart v. Martinez-Villarreal, 523 U.S. 637 (1998), the Supreme Court held that the defendant's claim that he was incompetent to be executed, raised for the second time after the claim had been dismissed in a previous petition by the district court as premature, did not amount to a "second or successive" application within the meaning of 28 U.S.C. § 2244(b). Stewart did not purport to establish a procedure for defendants to use to preserve their ability to raise a competency to be executed claim. Rather, Stewart addressed the manner in which such claims should be handled once a petitioner does raise the claim in a subsequent habeas corpus petition after having already pursued an earlier habeas corpus petition. Thus, Stewart dealt with a competency to be executed claim that was raised a second time after having been previously dismissed by the district court as "premature." This Court is faced with a competency to be executed claim filed in an initial habeas corpus application, accompanied by a concession that the claim may be premature.
For the following reasons, the Court is not persuaded that petitioner's claim is procedurally defaulted. If anything, the claim is unexhausted. The Court also concludes, however, that petitioner's twenty-fifth claim should be dismissed as "premature."
Regarding the procedural default determination, the first part of the Maupin test requires the Court to determine whether a state procedural rule applies to petitioner's claim, and, if so, whether petitioner violated that rule. Petitioner has never raised a claim in any state court alleging that he is mentally incompetent to be executed. But the Court is not persuaded that petitioner, in failing to do, has violated a state procedural rule. Section 2949.28 et seq. of the Ohio Revised Code provides a remedy for raising a claim challenging the sanity of a convict who is sentenced to death to be executed. That statute does not appear to contain a limitation period. Rather, a motion is properly filed under R.C. § 2949.28 only if a prisoner sentenced to death appears to be insane and accordingly incompetent to be executed. Thus, the first part of the Maupin test has not been met and respondent has not sustained his burden of proving that petitioner's twenty-fifth ground is procedurally defaulted. But the inquiry does not end here.
The fact that petitioner has an available state remedy for presenting his claim that he is incompetent to be executed begs the question whether his claim is, as a result, unexhausted. In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition could be dismissed, or stayed and abeyed, for failure to exhaust state remedies. See, e.g., Rhines v. Weber, 544 U.S. 269, 277 (2005). Until recently, a federal court faced with a mixed habeas corpus petition, i.e., one containing both exhausted and unexhausted claims, was required to dismiss that petition in its entirety, without prejudice, to permit the petitioner to exhaust his claims. Rose v. Lundy, 455 U.S. 509, 510 (1982). When the Supreme Court imposed a "total exhaustion" requirement, however, "there was no statute of limitations on the filing of federal habeas corpus petitions." Rhines v. Weber, 544 U.S. 269, 274 (2005). Now, in order to ensure that a petitioner who otherwise files a timely habeas corpus petition is not precluded by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1) from re-filing his petition following the exhaustion of his state remedies, a federal court is permitted to stay and abey the habeas corpus proceedings to permit exhaustion, rather than dismissing the petition, but only upon a finding that there was good cause for the petitioner's failure to exhaust his claims in the state court and that petitioner's unexhausted claim is not plainly meritless. Rhines, 544 U.S. at 277.
This Court has no difficulty concluding that there was good cause for petitioner's failure to exhaust his twenty-fifth ground for relief in the state courts, in view of the fact that any claim challenging his competency to be executed would have been premature until his execution was somewhat imminent. However, the Court is not in a position to make a finding one way or the other about the merits of petitioner's twenty-fifth ground for relief since petitioner's execution is not imminent. That being so, this Court will not issue an order staying and abeying these proceedings to permit petitioner to exhaust his twenty-fifth ground for relief in the state courts. The Court will, however, dismiss the claim as "premature."
Although Stewart v. Martinez-Villarreal did not create a rule for how to preserve or exhaust these claims, or a right for defendants to re-open or re-raise such claims, Stewart and subsequent cases appear to attach significance to including competency to be executed claims in an initial habeas corpus petition, when a habeas corpus applicant intends to raise the claim at a later time when his execution does become imminent. See Stewart, 523 U.S. at 645 n. 1 (suggesting that there might be a second or successive habeas corpus application issue under 28 U.S.C. § 2244(b) where a prisoner raises a competency to be executed claim for the first time in a petition filed after the federal courts have already rejected the prisoner's initial habeas corpus application); see also Garza v. Lappin, 253 F.3d 918, 924 (7th Cir. 2001) (emphasizing the importance of the prisoner having already raised his competency to be executed claim in an earlier petition and the district court having dismissed it as premature); Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2000) (same). Thus, that petitioner has raised a competency to be executed claim, when the claim does not appear to be ripe, is understandable. The Court will dismiss petitioner's claim as "premature" without expressing any view on whether or to what extent petitioner will be able to litigate his claim at such time that his execution becomes imminent.
Respondent's motion to dismiss ground twenty-five as procedurally defaulted is denied. However, the Court dismisses ground twenty-five as "premature."
L. Ground Eleven — Petitioner Was Deprived of Reasonable and Necessary Experts
Citing Ake v. Oklahoma, 470 U.S. 68, 76 (1985), petitioner argues in his eleventh ground for relief that the trial court denied him access to reasonable and necessary experts during the culpability and mitigation phases of his trial. (Second Amended Petition, Doc. # 139, at ¶¶ 233-247.) Petitioner argues that the trial court erred in not appointing: (a) a neutral mental health expert; (b) a defense pathologist; and (c) a defense criminalist. With respect to the failure of the trial court to appoint a neutral mental health expert, petitioner contends that, as a result of utilizing the services of Dr. Nancy Schmidtgoessling of the Hamilton County Court Clinic, instead of a "neutral" psychologist, the following information was never discovered or provided to defense counsel: that petitioner was incompetent, that petitioner's mental illness might have had a genetic component, that petitioner was experiencing auditory hallucinations directing him to hurt himself, that petitioner was at extreme risk of developing addictions, that people experiencing the psychotic symptoms that petitioner was experiencing usually turn to substance abuse, that petitioner was overtly paranoid with delusions, that petitioner's IQ was in the borderline mental retardation range, that petitioner's mental disorders played a significant role in his involvement in the offense, and that petitioner's consumption of drugs on the day of the offense exacerbated his depression and paranoia. (Id. at ¶¶ 236-239.) Petitioner argues that the trial court's failure to appoint a defense pathologist left him unable to challenge conclusions of deputy coroner Dr. Amy Martin regarding whether the victim's injuries alone, (i.e., without consideration of other information from the police investigation), that the victim had died from an intentionally inflicted injury; the time of death; whether the victim had been shaken; and whether a weapon had been used. (Id. at ¶¶ 240-244.) Finally, petitioner argues that the trial court's failure to appoint a defense criminalist left him unable to challenge the testimony of the state's expert, William Dean, concluding that a plastic bag recovered from petitioner's residence had come from the same roll as a plastic bag in which the victim's body had been found. (Id. at ¶¶ 245-246.)
Respondent argues that petitioner's claim is procedurally defaulted because he failed to raise it on direct appeal or in either of his postconviction actions. (Second Motion to Dismiss, Doc. # 142, at 49-50.) Respondent notes that although petitioner raised a similar claim in his original postconviction action, wherein he argued that ineffective assistance of trial counsel denied him access to reasonable and necessary experts, that argument is insufficient to preserve for review the instant claim that the trial court denied petitioner access to reasonable and necessary experts.
Petitioner appears to concede that his claim is subject to procedural default, but argues that "[t]o the extent that this Court concludes that Mr. Hill failed to bring his claim that he was denied reasonable and necessary experts at trial and mitigation in state courts, this failure is excused by his appellate counsel's ineffective assistance." (Memorandum in Opposition, Doc. # 144-1, at 29.)
For the reasons the follow, the Court finds that petitioner violated R.C. § 2953.21 et seq. when he failed to include the allegations set forth above in either his timely original postconviction action or his untimely, successor postconviction action. Petitioner raised related claims in his untimely, successor postconviction, i.e., that his trial attorneys were ineffective for failing to obtain a neutral mental health expert, a defense pathologist, and a defense criminalist. But that was insufficient to preserve the claim that petitioner seeks to present here not only because the claim raised in petitioner's untimely, successor postconviction action, (trial counsel ineffectiveness) was legally distinct from the claim set forth in his eleventh ground for relief herein (trial court error), see Wong v. Money, supra, 142 F.3d at 322 ("the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is presented in federal court."), but also because none of the claims set forth in petitioner's untimely, successor postconviction action are properly before this Court, due to petitioner's failure to satisfy the conditions set forth in R.C. § 2953.23 for filing an untimely and/or successor postconviction action. Petitioner raised a related claim in his original postconviction action of trial counsel ineffectiveness for the failure to obtain a neutral mental health expert, (J. A. Vol. VIII, at 2045-2049), but that, too, was insufficient to preserve petitioner's claim herein that the trial court erred in not providing a neutral mental health expert, not only because the claims are legally distinct, see Wong v. Money, supra, but also because petitioner's original postconviction included none of the numerous facts set forth in paragraphs 236-239 of the second amended habeas corpus petition.
Turning to the Maupin test, the Court makes the following findings. Petitioner's allegations relied on evidence outside the trial record. Petitioner violated R.C. § 2953.21 et seq. when he failed to include those allegations in his timely original postconviction action. Even to the extent that petitioner subsequently raised related claims of trial counsel ineffectiveness in his untimely, successor postconviction action, he violated R.C. § 2953.23 by failing to satisfy the conditions for filing an untimely, successor postconviction action. To the extent that petitioner failed to present the allegations set forth in ground eleven to any state court, this Court deems the second part of the Maupin test to have been met because the state courts were never given the opportunity to address petitioner's allegations or enforce default. To the extent that petitioner raised related claims in his untimely, successor postconviction action, the Court has already determined that the state courts clearly enforced the procedural default committed by petitioner when he failed to satisfy the conditions in R.C. § 2953.23 for filing an untimely and/or successive postconviction action, and that the procedural rules at issue constitute an adequate and independent state ground upon which to deny relief.
Turning to the fourth part of the Maupin test, petitioner offers appellate counsel ineffectiveness as cause to excuse the default, arguing that his appellate attorneys performed unreasonably and to his prejudice in failing to argue on direct appeal that the trial court had denied petitioner access to reasonable and necessary experts. (Memorandum in Opposition, Doc. # 144-1, at 29-31.) The Court cannot consider this "cause" argument because petitioner never presented this particular allegation of appellate counsel ineffectiveness to the state courts. See Edwards v. Carpenter, supra, 529 U.S. at 452-53 (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts).
In his App. R. 26(B) application, petitioner did include a claim that appellate counsel was ineffective for failing to challenge trial counsel's ineffectiveness for failing to obtain reasonable and necessary experts. (J.A. Vol. XVII, at 11-12.). But that claim is different from a claim that appellate counsel was ineffective for failing to argue that the trial court erred in not appointing reasonable and necessary experts for petitioner's defense. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) ("the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is presented in federal court."). To the extent that petitioner has argued that he was prevented from "fully briefing each assignment of error" due to page limitations imposed by App. R. 26(B), the Court has rejected that argument and has held that without an explicit allegation that appellate counsel was ineffective for failing to challenge the trial court's failure to appoint reasonable and necessary experts, this Court cannot possibly conclude that petitioner fairly presented that appellate counsel ineffectiveness claim to the state courts. That being so, the Court cannot consider petitioner's claim that appellate counsel ineffectiveness constitutes cause and prejudice to excuse the default of his eleventh ground for relief. Moreover, considering that the allegations set forth in petitioner's eleventh ground for relief involve matters almost entirely outside the record, appellate counsel cannot be faulted under the two-part Strickland test for not raising those claims on direct appeal.
For the foregoing reasons, respondent's motion to dismiss petitioner's eleventh ground for relief is granted.
M. Ground Two — Discrimination in Selection of Grand Jury and Grand Jury Foreperson
In his second ground for relief, petitioner argues that the method of selecting grand jury forepersons and members in Hamilton County was tainted at the time of his trial due to consideration of race in the drawing, selection, and empanelment of grand jurors. (Second Amended Petition, Doc. # 139, at ¶¶ 259-271.) That method, according to petitioner, begins with the use of a randomly compiled list based on all registered voters in Hamilton County. Those persons are then sent a questionnaire postcard and persons who fail to return the postcards are not considered for jury service. Petitioner complains that African-Americans and other minorities fail in a disproportionate number to return the postcards. With respect to the selection of grand jury forepersons, petitioner's complaint centers around the fact that presiding judges of the common pleas courts are permitted to select grand jury forepersons, and are not limited in their selection to individuals who are already members of the grand jury venire. Petitioner asserts that the presiding judges in Hamilton County have traditionally selected grand jury forepersons who are Caucasian.
Respondent argues that petitioner's claim is procedurally defaulted because petitioner never raised it on direct appeal or in his original postconviction action. (Second Motion to Dismiss, Doc. # 142, at 50-52.) Respondent argues that although petitioner did include the claim in his untimely successor postconviction action, as well as his App. R. 26(B) application to reopen his direct appeal, that was insufficient to preserve the claim for habeas review because the state courts denied both actions on procedural grounds without reaching the merits of the claims raised therein.
Petitioner concedes that the first three part of the Maupin test have been met. (Memorandum in Opposition, Doc. # 144-1, at 10-12.) He argues under the fourth part of the Maupin test that he can demonstrate cause and prejudice to excuse the defaults — namely, ineffective assistance of appellate counsel for failing to raise the issue on direct appeal. (Id.)
Regarding the first part of the Maupin test, the Court concludes that, to the extent that the allegations set forth in petitioner's second ground for relief were of record, petitioner violated the resjudicata rule set forth in Perry and Cole when he failed to raise them on direct appeal. To the extent, however, that the claims set forth in petitioner's second ground for relief relied on evidence outside the trial record, petitioner violated R.C. § 2953.21 et seq. when he failed to include them in his timely original postconviction action and raised them instead in an untimely, successor postconviction action without satisfying the conditions set forth in R.C. § 2953.23. The first part of the Maupin test has been satisfied. Petitioner does not argue otherwise.
The second part of the Maupin test requires the Court to determine whether the state courts actually enforced the procedural rule against petitioner's claim. To the extent that petitioner violated the resjudicata rule by failing to raise record claims on direct appeal, the Court deems the second part of the Maupin test to have been met because petitioner, by raising his claims in an untimely, successor postconviction action, presented his claims to the state courts in a manner and forum that did not afford them an opportunity to enforce the resjudicata rule. To the extent that petitioner violated R.C. § 2953.21 et seq. when he raised his claims in an untimely successor postconviction action instead of in his timely original postconviction action, the state courts clearly and expressly enforced the rule by declining to reach the merits of his claims because of his failure to satisfy the conditions set forth in R.C. § 2953.23 for filing an untimely or successor postconviction action. (J.A. Vol. XIV, at 459.)
Regarding the third part of the Maupin test, the Court has already determined that Ohio's resjudicata rule, as well as Ohio's postconviction rules, provide an adequate and independent basis for denying relief.
Turning to the fourth part of the Maupin test, petitioner asserts ineffective assistance of appellate counsel as cause for his failure to assert on direct appeal a claim challenging the process for selecting grand jury forepersons and venire members. Before a claim of ineffective assistance of counsel can be considered as cause to excuse procedural default, the claim must first be fairly presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). The particular allegation of appellate counsel ineffectiveness that petitioner offers as cause was presented to the state courts in petitioner's Rule 26(B) application for delayed reopening of his direct appeal, (J.A. Vol. XVII, at 14-15), and was rejected on the merits by the Supreme Court of Ohio. State v. Hill, supra, 90 Ohio St. 3d at 572-73.
To establish a claim of ineffective assistance of counsel sufficient to establish cause for the default of his fourth ground for relief, petitioner must show both deficient performance on the part of his appellate attorneys and prejudice from the deficient performance. The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). The Court is not persuaded under the totality of the factors set forth by the Sixth Circuit in Mapes v. Coyle, supra, 171 F.3d at 427-28, that appellate counsel were ineffective for failing to raise the allegations set forth in petitioner's second ground for relief challenging the method for selecting grand jury forepersons and venire members. Because those claims appear to be meritless, it simply cannot be said that the decision to omit the claims, even if inadvertent, was an unreasonable one that only an incompetent attorney would adopt.
Petitioner's claim, without more, is insufficient on its face. Nothing about the use of voter registration lists, or the questionnaires described by petitioner, strikes this Court as improper, unfair, or unfounded. See Bryant v. Wainwright, 686 F.2d 1373, 1378 (11th Cir. 1982), cert. denied, 461 U.S. 932 (1983). With respect to the selection of grand jury forepersons, petitioner's claim concerns the fact that presiding judges are permitted to select grand jury forepersons and are not limited to individuals who are already members of the grand jury venire. Petitioner asserts that the presiding judges in Hamilton County have traditionally selected grand jury forepersons who are white. Petitioner's argument has failed to make even a prima facie showing of discriminatory purpose under controlling constitutional principles sufficient to undermine the constitutionality of his convictions or death sentence. See Rose v. Mitchell, 443 U.S. 545, 566-69 (1979) (setting forth criteria necessary to make prima facie showing of discrimination in selection of grand jury foreperson); Castaneda v. Partida, 430 U.S. 492, 494-95 (1977) (setting forth the criteria necessary to make a prima facie showing of discrimination in grand jury selection process); see also Ramseur v. Beyer, 983 F.2d 1215, 1237-38 (3rd Cir. 1991) (rejecting claim of intentional discrimination in selection of grand jury foreperson based on survey of only half of the sixty-four persons who served over a three-year period), cert. denied, 508 U.S. 947 (1993); Johnson v. Puckett, 929 F.2d 1067, 1072-73 (5th Cir.) (granting relief where, between 1959 and 1979, 32 grand jury forepersons had been appointed and none was black), cert. denied, 502 U.S. 898 (1991); Bryant v. Wainwright, 686 F.2d 1373, 1378-79 (11th Cir. 1982) (rejecting a claim of intentional discrimination in selection of grand jury forepersons where petitioner presented statistics relating to selection of only ten grand jury forepersons), cert. denied, 461 U.S. 932 (1983). That being so, the Court cannot conclude that appellate counsel performed unreasonably or to petitioner's prejudice in failing to raise this claim on direct appeal.
In short, the Court concludes that petitioner's second ground for relief is procedurally defaulted, and that petitioner has failed to demonstrate cause and prejudice sufficient to excuse the procedural default. Respondent's motion to dismiss ground two as procedurally defaulted is granted.
N. Ground Twenty-Two — Inadequacies in Postconviction Policies and Procedures
In his twenty-second ground for relief, petitioner raises various challenges to the practices adopted and employed by the Hamilton County Common Pleas Court and the appellate courts in summarily rejecting postconviction petitions in capital cases. (Second Amended Petition, Doc. # 139, at ¶¶ 284-297.) Respondent argues that petitioner's claim is procedurally defaulted because it was never presented to any state court. (Second Motion to Dismiss, Doc. # 142, at 52-53.) Petitioner concedes that he never raised the claim on direct appeal or in either of his postconviction actions, but argues that the claim is not procedurally defaulted because petitioner had no reason, and probably no standing, to challenge the procedures described in his twenty-second ground for relief before they had actually been used against him. (Memorandum in Opposition, Doc. # 144-1, at 39.) Petitioner's argument is not well taken.
The first part of the Maupin test requires the Court to determine whether a procedural rule is applicable to petitioner's claim and, if so, whether petitioner violated the rule. The parties failed to address this argument, but the Court concludes that there is a state procedural rule requiring claims of this nature to be raised at the trial court level. The gravamen of petitioner's argument is that Ohio's postconviction procedure, as applied by the courts in Ohio, is unconstitutional because it does not meet the requirements of the Due Process Clause. In State v. Awan, 22 Ohio St. 3d 120, syllabus, 489 N.E.2d 277 (1986), the Supreme Court of Ohio held that the failure to raise at the trial court level the issue of the constitutionality of a statute or its application, so long as the issue is apparent at the time of trial, constitutes a waiver of such issue when raised for the first time on appeal. A number of appellate courts in Ohio, following Awan, have held that the failure of a petitioner to raise at the trial court level the constitutionality of Ohio Rev. Code § 2953.21 constitutes a waiver of that issue on appeal. State v. McNeill, 137 Ohio App. 3d 34, 44, 738 N.E.2d 23, 30-31 (Ohio App. 9 Dist. 2000); State v. Awkal, 1998 WL 827585, No. 73267 (Ohio App. 8 Dist. Nov. 25, 1998), at *3; State v. Schmidt, 1998 WL 351871, No. E-98-002 (Ohio App. 6 Dist. Jun. 19, 1998), at *1; State v. Benner, 1997 WL 549605, No. 18094 (Ohio App. 9 Dist. 1997). Thus, the Court is satisfied that there was a state procedural rule requiring petitioner to raise his allegations challenging the constitutionality of Ohio's postconviction remedy at the trial court level and that petitioner violated the rule when he failed to do so.
The second part of the Maupin test requires the Court to determine whether the state courts actually enforced the procedural rule. The Court deems the second part of the Maupin test to have been met because the state courts, by virtue of petitioner's failure to raise this claim at all, were never given the opportunity to enforce the rule.
The Court further finds that the procedural rule is an adequate and independent state ground. The rule emerged as early as 1986 and is stated in clear terms. Having since been adopted by multiple courts, the rule has been consistently enforced in Ohio. The rule serves important state interests in judicial efficiency by encouraging litigants to raise claims challenging the adequacy of Ohio's postconviction process at a time and in a forum where such claims can most effectively be heard and remedied. Finally, the Court concludes that the procedural rule, i.e., requiring claims challenging the adequacy of Ohio's postconviction process to be raised at the trial court level, does not rely on or otherwise implicate federal constitutional law.
Even assuming that petitioner's claim is not procedurally defaulted under the four-part Maupin test by virtue of petitioner's violation of a state procedural rule, the Court finds in any event that his claim has been waived due to his failure to fairly present the claim to any state court. A state prisoner must exhaust available state court remedies before he can secure federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner satisfies the exhaustion requirement when he fairly presents his constitutional claims to the state's highest court to provide the state courts with a fair opportunity to remedy constitutional infirmities. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). If petitioner has not fairly presented his claims, and a state remedy still exists for him to do so, then his habeas corpus petition may be dismissed for want of exhaustion. See Rhines v. Weber,, 544 U.S. 269, 125 S.Ct. 1528, 1534-35 (2005); Rose v. Lundy, 455 U.S. 509, 510 (1982).
If petitioner has not fairly presented his claims, and no state remedy exists for him to do so, then his claim is exhausted and procedurally defaulted.
Exhaustion is a problem only if the state still provides a remedy for the habeas petitioner to pursue, thus providing the state courts an opportunity to correct a constitutionally infirm state court conviction. If no remedy exists, and the substance of a claim has not been presented to the state courts, no exhaustion problem exists; rather, it is a problem of determining whether cause and prejudice exist to excuse the failure to present the claim in the state courts.Rust, 17 F.3d at 160; see also Gray v. Netherland, 518 U.S. 152, 161 (1996) (exhaustion requirement is satisfied if it is clear that the petitioner's claims are now procedurally barred under state law); Gall v. Parker, 231 F.3d 265, 283-84 (6th Cir. 2000) (same).
Petitioner bears the burden of demonstrating that his claims have been fairly presented or that the exhaustion requirement should be excused. The Court is simply not persuaded that petitioner was prevented, by virtue of the fact that the procedures about which he complains had not been used against him yet, from raising his twenty-second ground for relief in the state courts.
The Court having determined that petitioner's twenty-second ground for relief appears to be procedurally defaulted, habeas corpus review is precluded absent a showing by petitioner of cause and prejudice to excuse the default. Petitioner offers no such argument.
For the foregoing reasons, the Court concludes that petitioner's twenty-second ground for relief is procedurally defaulted. Respondent's motion to dismiss ground twenty-two is granted.
O. Whether Petitioner's Alleged Incompetence Excuses Procedural Defaults
Petitioner argues, with respect to all of the procedural defaults alleged herein, that his incompetence during his trial and appeals process allows him to overcome any procedural defaults that the Court may find, since petitioner's mental disorders rendered him unable to communicate with his counsel or to make decisions about what issues to raise on direct appeal. (Memorandum in Opposition, Doc. # 144-1, at 40.) Respondent counters that petitioner's argument is against Sixth Circuit precedent and that, in any event, petitioner has not conclusively demonstrated that he was, in fact, incompetent. (Reply, Doc. # 145, at 11-12.)
Respondent is correct that petitioner's argument appears to be foreclosed by Sixth Circuit precedent. As noted in connection with the default of petitioner's third ground for relief, this Court is aware of at least one Sixth Circuit decision that seems to contradict petitioner's argument. Ludwig v. United States, 162 F.3d 456, 458 (6th Cir. 1998) (holding that petitioner had procedurally defaulted a claim that he was not competent to enter a guilty plea).
P. Whether "Miscarriage of Justice" Exception Excuses Procedural Defaults
Petitioner also argues, with respect to all of the procedural defaults alleged herein, that any procedural default that this Court finds should be excused under the "miscarriage of justice" exception. Citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992), petitioner argues that he will suffer a gross miscarriage of justice if this Court does not grant habeas relief. "Had Mr. Hill been effective represented at his trial and on appeal, and if the trial court had provided appropriate rebuttal and mitigation experts, and had Mr. Hill been able to present Ms. Phillips's testimony, `it is more likely than not that no reasonable juror would have convicted him' of aggravated murder and, in any event, `no reasonable juror would have found him eligible for the death penalty.'" (Memorandum in Opposition, Doc. # 144-1, at 41, quoting Calderon v. Thompson, 523 U.S. 538, 559-560 (1998)).
Respondent argues throughout his second motion to dismiss that none of petitioner's claims raise an issue with respect to "actual innocence" sufficient to excuse procedural default in the interests of preventing a fundamental miscarriage of justice. See, e.g., Second Motion to Dismiss, Doc. # 142, at 33. The Court agrees.
Beyond the four-part Maupin analysis, this Court is required to consider whether this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . ." Murray v. Carrier, supra, 477 U.S. at 496. Although, "[a]s a general rule, claims forfeited under state law may support federal habeas relief only if the prisoner demonstrates cause for the default and prejudice from the asserted error," House v. Bell, 126 S.Ct. 2064, 2076 (2006), the Supreme Court has recognized that, in extraordinary cases, "the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration." Id. (citations and internal quotation marks omitted).
The "actual innocence" exception to procedural default applies whether the petitioner is asserting that he is actually innocent of the underlying crime for which he was convicted, or is challenging the aggravating circumstances that made him eligible for the death penalty. As the Sixth Circuit explained in Williams v. Bagley, 380 F.3d 932, 973 (6th Cir. 2004):
The "fundamental miscarriage of justice" gateway is open to a petitioner who submits new evidence showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. The gateway is also available to a petitioner who demonstrates that he is "actually innocent" of the sentence of death that has been imposed on him. To establish his "innocence" of the death penalty, a petitioner must "show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).Williams v. Bagley, 380 F.3d at 973.
Thus, the "actual innocence" exception to procedural default applies whether the petitioner is asserting that he is actually innocent of the underlying crime for which he was convicted, Schlup, supra, 513 U.S. at 327, or is challenging the aggravating circumstances that made him eligible for the death penalty, Sawyer, supra, 505 U.S. at 336. The Court is mindful that "the Schlup standard does not require absolute certainty about the petitioner's guilt or innocence." House, supra, 126 S.Ct. at 2077. Still, "it bears repeating that the Schlup standard is demanding and permits review only in the `extraordinary' case." Id., (quoting McClesky v. Zant, 499 U.S. 467, 494 (1991)). After careful review of the second amended petition, the state court record, and the parties' arguments regarding procedural default, this Court is not persuaded that petitioner has satisfied this demanding standard.
Q. Whether Petitioner is Entitled to a Hearing
Petitioner argues that he is entitled to a hearing on the issue of procedural default, not only so this Court can make an independent determination of the facts bearing on the federal questions of cause and prejudice, but also so petitioner can develop facts demonstrating the ineffectiveness of his trial and appellate attorneys and his mental incompetence. (Memorandum in Opposition, Doc. # 144-1, at 41-43.) Without expressing any opinion about whether an evidentiary hearing might be necessary or warranted on other issues in this case, the Court is not persuaded that a hearing is necessary on the procedural default issues raised in respondent's motion to dismiss or petitioner's memorandum in opposition.
V. Conclusion
For the foregoing reasons, respondent's motion to dismiss is GRANTED as to the following grounds: seven, twelve (paragraphs 64-66), four, ten (sub-part a), five, eight, fourteen, three, eleven, two, and twenty-two; and DENIED as to the following grounds: twelve (except paragraphs 64-66), eighteen, nineteen, seventeen, and twenty-five. The Court further FINDS that ground twenty-five must be DISMISSED as "premature."