Byrd v. Collins

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0121P (6th Cir.)

File Name: 00a0121p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________

; 

JOHN W. BYRD, JR., 

Petitioner-Appellant,  

No. 96-3209

v.

 >

TERRY L. COLLINS, Warden,  Respondent-Appellee. 

1

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 94-00167—James L. Graham, District Judge.

Argued: March 11, 1998

Decided and Filed: April 6, 2000 Before: JONES, SUHRHEINRICH, and BATCHELDER, Circuit Judges.

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COUNSEL

ARGUED: Richard J. Vickers, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant. Stuart A. Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: Richard J. Vickers, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, Steven M. Brown, 2 Byrd v. Collins No. 96-3209

Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee.

SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, J., joined. JONES, J. (pp. 91-109), delivered a separate dissenting opinion.

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OPINION

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SUHRHEINRICH, Circuit Judge. In August 1983, the Court of Common Pleas in Hamilton County, Ohio, sentenced Petitioner, John W. Byrd, Jr., to death for the aggravated murder of Monte Tewksbury. The Ohio state courts repeatedly rejected Petitioner’s claims for relief. In March 1994, only days before his scheduled execution, Petitioner filed his first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The U.S. District Court for the Southern District of Ohio denied the petition. We now AFFIRM that denial.

I. Background

A. Facts

On the evening of April 17, 1983, Monte B. Tewksbury was working alone as the night clerk at the King Kwik convenience store at 9870 Pippin Road in Hamilton County, Ohio. Monte was married and was the father of three children.

At approximately 11:00 p.m., two robbers entered the store in masks; one of them carried a bowie knife with a five-inch blade. The robbers removed all of $133.97 from the cash register. In addition, they took Monte’s Pulsar watch, wedding ring, and his wallet which contained cash, credit cards, and an automobile registration slip. Then, as Monte stood with his hands raised and his back to the robbers,

No. 96-3209 Byrd v. Collins 3

Petitioner plunged his bowie knife to the hilt in Monte’s side, resulting in a puncture wound to the liver that caused massive internal bleeding. The two robbers ripped the inside telephone out of the wall and fled. At approximately 11:10 p.m., Robert Shephard was driving northbound on Pippin Road. He observed two men run from the King Kwik and enter a large red van parked at the corner of Pippin and Berthbrook. The van then drove off.

Although severely injured, Monte managed to exit the store and get to the outside telephone. He called his wife, Sharon Tewksbury, told her he had been robbed and hurt, and that she should call the police and an ambulance. At that time, Cecil Conley, a prospective customer, arrived at the King Kwik. Conley found Monte standing outside the building and leaning against the wall next to the telephone. Monte was bleeding from his side. Conley helped Monte into the store, went back to the telephone which was still off the hook, and spoke briefly to Sharon. Conley also advised Sharon to call an ambulance, and he himself called the police. Monte told Conley “I’m going to die,” and that he had been robbed and cut with a knife. Monte described the robbers as two white men wearing stocking masks.

Sharon arrived at the scene and held her dying husband in her arms as he repeated his statements. Police and medical help then came, and Monte was transported to a hospital. While en route, Monte made several statements to the effect that he did not understand why he had been stabbed, because he had been cooperative and had given the robbers everything they requested. Monte also made a statement to the effect of “Thank God I didn’t see it coming,” which supports the conclusion that his back was to his assailants when he was stabbed. Almost immediately after he was taken to the emergency room, Monte’s heart stopped. Despite heroic efforts to save his life, Monte died at 1:15 a.m., April 18, 1983, from exsanguination resulting from his stab wound. That night, a short time after the King Kwik robbery, Jim Henneberry, a clerk at a nearby U-Totem store, was standing 4 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 109

at the cash register. A customer, Dennis Nitz, was playing a adequately develop evidence which may establish that the video game near the front door when two robbers entered the findings were actually erroneous. Such a ruling would defeat store wearing masks. Henneberry realized what was the entire purpose of the pre-AEDPA § 2254(d) – which, occurring and fled to a room in the rear of the store. One of again, presumes, rather than requires, the correctness of state the robbers chased after Henneberry with a knife. The robber findings. Yet this appears to be exactly what the district court tried unsuccessfully to force open the door to the room. did in this case, seemingly determining that the state court Meanwhile, the other robber pushed Nitz back when he findings were binding, rather than ascertaining whether Byrd attempted to leave; however, Nitz was able to dodge him and had alleged sufficient facts to overcome the presumption. get out. The robbers were unable to open the cash register, so they took it with them. Robin Hannon, a resident of an The district court abused its discretion by not allowing apartment located near the U-Totem, was disturbed by the discovery and an evidentiary hearing on Byrd’s claims of false noise from a loud muffler. Hannon looked outside and testimony and suppression. Since the record already supports observed two people getting into a large red van parked in the a number of Byrd’s claims of constitutional error, it is clear U-Totem lot. The van had a defective tail light.1 that he has, at least, alleged sufficient facts to require a full and fair evidentiary hearing on his claims. Moreover, the Shortly after 1:00 a.m. on April 18, 1983, two police district court erred by determining that the presumption of officers from Forest Park in Hamilton County were seated in correctness necessarily foreclosed an evidentiary hearing. a marked police cruiser eating their lunch. The officers were The applicability of the presumption of correctness and the in a K-Mart parking lot, which was located in an area propriety of an evidentiary hearing are two interrelated, yet containing principally commercial establishments, some of fundamentally distinct, issues. Byrd has yet to be afforded which had recently been burglarized. The officers had been any meaningful opportunity to conduct discovery, and has advised approximately forty-five minutes earlier by their consistently been denied an evidentiary hearing. supervisor about the incident at the King Kwik. As the officers watched, a red cargo van drove by at a slow rate of Accordingly, at minimum, Byrd should be granted speed. The van pulled into the K-Mart lot, and its headlights discovery and an evidentiary hearing limited to the specific were turned off. A few minutes later, the van’s headlights evidentiary requests he made previously before the district came back on, and the van left the lot. However, the van court, and to those requests pertinent to his false testimony returned within five minutes, again at low speed, from the and suppression claims. Given that there already exists direction opposite to that in which it had gone moments significant evidence that Byrd’s conviction was secured in before. violation of bedrock constitutional guarantees of due process and fundamental fairness, discovery is the least that is The police officers became suspicious, followed the van, required before this court pushes him further down the road and, upon inquiry of the police dispatcher, learned the identity toward execution. of its owner. The van pulled into a parking lot adjacent to a closed United Dairy Farmers store. The officers pulled behind the van after summoning back-up assistance. One of

1 In the course of the subsequent police investigation, Hannon identified the van, which had remained in police custody, as the one she saw outside the U-Totem on the night in question.

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the credibility of Ronald Armstead was subject to extensive the passengers, later identified as John Eastle Brewer, exited cross-examination, that there is no credible evidence that the van and approached the police car. Brewer identified Ronald Armstead lied in his testimony, and that Ronald himself as “David Urey” and told the police he had no Armstead was not given consideration by the State in return identification. Brewer provided inconsistent stories about for his testimony. why he was in the area. One of the officers asked Brewer to remain in the cruiser while he approached the van. The van’s The majority contends that the August 5, 1988 discovery driver, William Danny Woodall, and Petitioner provided the order provided Byrd with sufficient opportunity to develop his officer with identification, which was called in to the claims. However, a close read of the record reveals that this dispatcher. Although there were no current warrants for order had little effect on Byrd’s ability to obtain the either Petitioner or Woodall, the dispatcher reported that both information he sought. For example, Byrd asserts that he had prior felony convictions. The officer shined a flashlight filed a “Motion For Release of Records” in July 1988, and the inside the van and saw coins on the floor. There were trial court issued the August 5 order in response to that stocking masks and a knife located in a tray on the dashboard. motion. According to Byrd, “[defense] counsel sought all A Shell credit card in Sharon’s name was lying on the floor available records through use of this motion.” J.A. at 279. under the passenger seat. There was also what appeared to be Thus, despite the majority’s claim to the contrary, see ante at fresh blood on the interior side of the driver’s seat. A drawer 39, Byrd did indeed attempt to utilize the August 5 order to from a cash register was in the back of the van. obtain information, but was thwarted in his attempts. Byrd further asserts that he filed two additional motions, prior to B. Indictment and Trial the July 1988 motion, requesting discovery from the Hamilton County Sheriff’s Office and the Hamilton County On the basis of this evidence, Petitioner, Brewer, and Prosecutor’s Office. Byrd contends that this information Woodall were arrested. In an indictment returned on May 26, would have detailed contacts between inmates Ronald 1983, the three were charged with aggravated murder and Armstead, Virgil Jordan, Marvin Randolph, Robert Jones and three counts of aggravated robbery. Petitioner also was the prosecutor’s or sheriff’s office. Byrd also requested charged with two death penalty specifications; i.e., that he discovery to determine why Armstead was chosen among four was the “principal offender” who committed the aggravated jailhouse informants who offered testimony against him. murder of Monte Tewksbury while committing or attempting Byrd asserts that the documents establish that the prosecutor’s to commit the aggravated robbery of the King Kwik, as well2 office knew Armstead was returning to prison, and shed light as the aggravated robbery of Monte Tewksbury himself. on any consideration Armstead received for his testimony. Pleas of not guilty were entered as to all charges on May 31, Without adequate discovery in these areas, Byrd has not been 1983. Petitioner’s counsel filed a series of pre-trial motions, afforded a full and fair opportunity to factually develop his including one seeking the suppression of evidence taken from claims. the van. The Hamilton County Court of Common Pleas denied this motion on July 26, 1983. Jury selection for Even if Byrd has not established a § 2254(d) exception, he Petitioner’s trial began on August 1, 1983, and lasted five has nevertheless overcome the presumption of correctness by days. averring sufficient facts, which if fully developed, would entitle him to relief. It would be unjustifiably circular for this Court to hold that a state court’s findings were binding,

2

without providing the petitioner an opportunity to fully and In Ohio, the “principal offender” means “the actual killer.” State v.

Penix, 513 N.E.2d 744, 746 (Ohio 1987).

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The main evidence introduced at trial to prove that conducting evidentiary hearings. The presumption of Petitioner was the principal offender, i.e., the individual who correctness is just that – a rebuttable presumption, not an actually stabbed and murdered Monte, came from Ronald inexorable command. See 28 U.S.C. § 2254(d) (providing Armstead, who at the time of trial, was serving a sentence at that petitioner must “establish by convincing evidence that the the Cincinnati Workhouse (Cincinnati Correctional Institute). factual determination by the State was erroneous” when a Armstead testified that he recalled Petitioner’s, Brewer’s, and § 2254(d) exception is inapplicable); Brown v. Davis, 752 Woodall’s arrival at the Workhouse and that, practically from F.2d 1142, 1147 (6th Cir. 1985) (“To overcome the the date of their arrival, they had bragged about committing presumption of correctness, the petitioner must establish by the King Kwik robbery and Monte’s murder. Armstead convincing evidence that the factual determination in the state testified that, approximately three weeks after the robbery, he court was erroneous.”). Within the operation of “sound was with Petitioner, Brewer, Woodall, and others when a discretion,” district courts maintain significant authority to P.M. Magazine television program aired featuring footage of receive evidence pertaining to the legitimacy of federal the Tewksbury family. The footage, which included singing claims. This discretion to order discovery or hold evidentiary by Monte’s daughter, was taped the day before Monte was hearings, however, becomes an obligation when “specific murdered. According to Armstead, Petitioner stated during allegations before the court show reason to believe that the the telecast that Monte deserved to die and, either then or at petitioner may, if the facts are fully developed, be able to another time, admitted to Armstead that he had killed Monte demonstrate that he is . . . entitled to relief.” Harris v. because Monte had “gotten in the way.” Armstead also Nelson, 394 U.S. 286, 300 (1969). In these circumstances, “it testified that Petitioner sought advice from him regarding is the duty of the court to provide the necessary facilities and whether the prosecution could detect blood stains on a knife procedures for an adequate inquiry.” Id. (emphasis added); blade if it had been cleaned.3 see Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (holding it is an abuse of discretion to deny discovery when specific The State called a total of twenty-six witnesses at the guilt factual allegations, if fully developed, would entitle petitioner stage. Petitioner, on the other hand, called only one witness, to relief); see also Lynott v. Story, 929 F.2d 228, 232 (6th Cir. a police officer who identified some of Woodall’s clothing. 1991); McDaniel v. United States Dist. Court for the Dist. of Closing arguments were presented on August 12, 1983, after Nev., 127 F.3d 886, 888 (9th Cir. 1997)(per curiam). ten days of trial. Late that evening, the jury asked the court to have Armstead’s testimony read back. Over objection, the At least three exceptions to the § 2254(d) presumption of court reporter read the entirety of Armstead’s testimony to the correctness apply in this case: (i) the fact-finding procedure jury in open court. Shortly thereafter, the jury returned its employed by the state court was not adequate to afford a full verdict finding Petitioner guilty of aggravated murder and two and fair hearing; (ii) the material facts were not adequately counts of aggravated robbery.4 The jury also found Petitioner developed at the state court hearing; and (iii) the factual guilty of the two death penalty specifications. findings made by the state court were not supported by the record. 28 U.S.C. §§ 2254(d) (2), (3) & (8). Even the district court acknowledges that Byrd’s discovery requests were consistently rebuffed by Ohio courts. Indeed, Byrd has never 3 been afforded the opportunity to fully discover relevant Armstead’s testimony is set forth in greater detail in Part II-A, infra. documents, depose witnesses, or adequately develop his 4 claims. Additionally, several of the “facts” found by the state The trial court severed the count in the indictment charging court appear to be unsupported by the record – namely that Petitioner with aggravated robbery of the U-Totem.

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The majority dismisses this request by concluding that since The sentencing phase of the trial began on August 16, 1983. Byrd was unable to establish an exception to the presumption Petitioner called one witness, his mother, Mary Lou Ray. of correctness afforded state court factual findings under 28 Mrs. Ray testified that she gave birth to Petitioner when she U.S.C. § 2254(d) (West 1995), the district court properly was sixteen years old and her marriage to Petitioner’s father deferred to state findings of fact and, consequently, did not ended shortly thereafter. She testified that Petitioner’s father abuse its discretion in denying further discovery. The went to jail shortly after their son was born and she had not majority’s analysis is flawed, however, both in its discussion seen her ex-husband in eighteen years. She also discussed her of the inapplicability of §2254(d), and in its consolidation of subsequent failed marriages to two men, both of whom the discovery determination with its resolution of the abused Petitioner. For instance, Mrs. Ray testified that she presumption of correctness issue. married Ed Ryan, and the marriage lasted three years. She stated that Ryan “was mean to Johnny [Petitioner]. When In habeas proceedings initiated prior to the effective date Johnny got older, he blacked his eyes. . . . [Petitioner] of the Antiterrorism and Effective Death Penalty Act of 1996, couldn’t do nothing right to please him.” Tr. at 1762. Mrs. 28 U.S.C. § 2254, federal courts must presume the correctness Ray also described a learning disability from which Petitioner of state court factual findings unless2 an exception under the suffered throughout his schooling. According to Mrs. Ray, former version of §2254(d) applies. See Lindh v. Murphy, Petitioner was extremely frustrated by the ridiculing he 521 U.S. 320, 326-327 (1997); Gilliam v. Mitchell, 179 F.3d received from other children. Finally, Mrs. Ray recounted 990, 991 (6th Cir. 1999). When an exception does apply, and how at age eleven Petitioner assisted another young child who the habeas petitioner’s factual allegations, if proved, would had fallen into a frozen creek.5 On cross-examination, Mrs. entitle him to relief, the district court is required to hold an Ray admitted that she had filed several petitions with the evidentiary hearing. See McMillan v. Barksdale, 823 F.2d juvenile court alleging her inability to maintain control of her 981, 983-84 (6th Cir. 1987); Rector v. Johnson, 120 F.3d 551, son. She also conceded that she had never reported any abuse 562-63 (5th Cir. 1997) (“[A] federal habeas court must allow of Petitioner to the authorities. discovery and an evidentiary hearing only where a factual dispute, if resolved in the petitioner’s favor, would entitle him As permitted under Ohio law, Petitioner then made an to relief and the state has not afforded the petitioner a full and unsworn statement to the jury. He expressed remorse for fair evidentiary hearing.”) (quoting Ward v. Whitley, 21 F.3d what happened to Monte and his family, noted that he was 1355, 1367 (5th Cir. 1994)); Jeffries v. Blodgett, 5 F.3d 1180, only 19 years old, and made a plea for his life. The State 1187 (9th Cir. 1993) (“A federal evidentiary hearing is presented no witnesses at the sentencing hearing. Later the mandatory if (1) petitioner’s allegations, if proven, would same day, the jury found that the aggravating circumstances establish the right to relief, and (2) the state court trier of fact outweighed the mitigating factors and recommended has not, after a full and fair hearing, reliably found the imposition of the death penalty. On August 19, 1983, the trial relevant facts.”). court adopted the jury’s recommendation and sentenced Petitioner to death as the principal offender in the felony Moreover, even when an exception is inapplicable, federal courts are not thereby prevented from ordering discovery or

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In an opinion setting forth its reasons for imposing the death 2 penalty, the trial court concluded: “This being the only socially See Ante at 34, n.23 (listing statutory factors under former version redeeming act of the defendant’s life offered or otherwise shown by the of § 2254(d)). evidence it does not rise to the level of a mitigating factor.” JA at 1134.

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murder charge and to consecutive jail terms of seven to counsel. However, in this case – on these facts – the failure twenty-five years on the two aggravated robbery counts. even to challenge such serious and damaging prosecutorial misconduct falls far beyond the bounds of effective The trial court issued a written opinion on August 30, 1983, representation. explaining that it had found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating Likewise, Byrd’s appellate counsel must be deemed factors in Petitioner’s case. The court noted that the jury ineffective for not raising, on direct appeal, trial counsel’s found two statutory aggravating circumstances; i.e., that the failure to challenge the stated prosecutorial misconduct. See, murder occurred in connection with two different aggravated e.g., United States ex rel. Barnard v. Lane, 819 F.2d 798, 805 robberies. The court concluded “that defendant’s killing of (7th Cir. 1987) (finding appellate counsel ineffective for the victim was completely unnecessary and cold blooded failure to raise trial counsel’s ineffectiveness on direct since the victim had submitted peacefully and turned over his appeal). Certainly it is not within the bounds of objectively personal possessions and money. This killing . . . evidenced reasonable professional conduct, or constitutionally the particularly malicious outlook of this defendant.” JA at permissible appellate strategy, to fail to raise prejudicial 1130. The court further stated: “The proved facts of the violations of Sixth Amendment rights. aggravating circumstances reveal a pattern of willful, cold- blooded disregard for human life and values well beyond In addition, since the prejudice analysis is essentially what this judge has seen in other cases.” JA at 1132. identical to the Brady materiality determination, see Strickland, 466 U.S. at 694; see also Tucker v. Prelesnik, 181 The court then reviewed the mitigating factors in F.3d 747, 754-55 (6th Cir. 1999), for the reasons discussed Petitioner’s case. The court specifically rejected Petitioner’s previously, the failure of Byrd’s attorneys to challenge the youth as a consideration, noting that Petitioner was “the discussed prosecutorial misconduct prejudiced Byrd’s right to oldest 19 year old this Judge has ever seen.”6 JA at 1131. a fair trial. The court also considered the nature and circumstances of the offense, listed under Ohio law as possible mitigating factors. III. However, the court noted the unnecessary and brutal nature of the murder and commented as to the evidence of the incident If the majority is unwilling to acknowledge the at the U-Totem store as well. constitutional errors that appear on the face of this record, Byrd should, at the very least, be granted discovery and an The only mitigation evidence the trial court believed worthy evidentiary hearing to explore his claims that: 1) Armstead of consideration was the evidence of Petitioner’s unhappy testified falsely concerning Byrd’s role in the murder of childhood, lack of paternal love and affection, and some Monte Tewksbury; 2) the prosecution intentionally failed to degree of abuse. The court stated that there was nothing correct the false testimony; and 3) the prosecution actually introduced at trial which showed that Petitioner’s childhood suppressed evidence relevant to Armstead’s impeachment. experiences resulted in any emotional scarring that could Since Byrd has averred facts sufficient to support Brady violations because the prosecution should have known that Armstead testified falsely, he has certainly raised sufficient 6 facts to justify an evidentiary hearing to further substantiate Similarly, a concurring opinion in the Ohio Supreme Court his claims.

remarked that “the evidence in this record demonstrates that Byrd’s chronological age of nineteen does not accurately reflect his maturity.” State v. Byrd, 512 N.E.2d 611, 626 (Ohio 1987) (Brown, J., concurring).

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A. manifest itself later in life or explain his behavior on the night in question. The court concluded: “To give credence to this We apply a two-part test to determine whether a criminal suggested mitigation would be an affront to the sensitivities defendant was denied effective assistance of counsel. First, of the thousands of law-abiding, hard-working citizens of this we ascertain whether counsel’s performance was state who had a similar childhood and have matured to an professionally deficient; second, we determine whether the adulthood of exemplary existence.” JA at 1134. The court deficient performance prejudiced the defendant’s also disregarded Petitioner’s statement during the penalty constitutional interests. See Strickland v. Washington, 466 phase concerning drinking and using drugs on the night in U.S. 668, 687 (1984); Rickman v. Bell, 131 F.3d 1150, 1154 question as being “self-serving” and “not under oath.” With (6th Cir. 1997); Gravley, 87 F.3d at 785. In assessing respect to Petitioner’s alleged learning disability, the court counsel’s performance, we inquire whether “counsel’s expressly held that “[i]t should be fairly obvious to even a representation fell below an objective standard of person of low mentality that if you bury a bowie knife to its reasonableness,” as measured by “prevailing professional hilt in the chest of someone, the victim may die as a result norms.” Rickman, 131 F.3d at 1154 (quoting Strickland, 466 thereof, and that the perpetrator will suffer the full U.S. at 687-88). This objective reasonableness standard punishment provided by law.” JA at 1134. Based on its encompasses strategic litigation choices that simply fail to determination that this mitigating evidence was insufficient to bear fruit. See Strickland, 466 U.S. at 689. counteract the aggravating circumstances, the court held that death was the appropriate sentence in this case, and it directed In this case, there is no objectively reasonable professional that Petitioner be executed on January 27, 1984. norm of capital defense practice that suggests counsel should remain mute while a prosecutor engages in egregious C. Appeals prosecutorial vouching and wild factual speculation. See Gravley, 87 F.3d at 785-86 (holding that defense counsel After his sentencing, Petitioner was appointed new counsel provided ineffective assistance by failing to object to to represent him on appeal. In his appellate brief, Petitioner numerous instances of prosecutorial misconduct during trial raised twenty separate assignments of error. On February 5, and closing argument). In a case that turns on the testimony 1986, the Ohio Court of Appeals for the First Appellate of a jailhouse informant, it is a gross dereliction of duty for a District (Hamilton County) (hereinafter referred to as the capital defense lawyer to sit silently while a prosecutor Hamilton County Court of Appeals), affirmed both declares that the State of Ohio “believe[s]” the testimony. It Petitioner’s conviction and sentence. State v. Byrd, No. C- is similarly deficient representation for capital defense 830676, 1986 WL 1512 (Ohio Ct. App. 1 Dist., Feb. 5, 1986). counsel to fail to object to outrageous prosecutorial On August 12, 1987, the Ohio Supreme Court rejected speculation as to a defendant’s purported motive in allegedly essentially the same claims. State v. Byrd, 512 N.E.2d 611 committing a murder, or the whereabouts of unrecovered key (Ohio 1987). The state supreme court concluded that this evidence. While the failure to object to apparent prejudicial case “involve[s] a completely compliant victim who gave error may often be predicated upon trial strategy, see Byrd no reason to stab him. We find that the death penalty is Strickland, 466 U.S. at 689, there is no acceptable tactical not inappropriate considering the senseless nature of the justification for silence on these issues. If this case did not so murder and the similarity to other cases in which the death indispensably depend on the testimony of one individual, the penalty was upheld.” Id. at 626. The U.S. Supreme Court substantial deference the Constitution affords criminal denied a petition for certiorari. Byrd v. Ohio, 484 U.S. 1037 defense lawyers might encompass the inaction of Byrd’s (1988).

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While his direct appeal was still pending, Petitioner filed a the merits of Byrd’s claims, it is apparent that the bulk of motion for a new trial. Although it was filed on December 6, them lack merit. However, given the failure of Byrd’s trial 1983, the motion was not ruled upon for almost six years. On counsel to object to widespread prosecutorial misconduct, see September 19, 1989, the trial court denied the motion. The supra Part I, and the failure of Byrd’s appellate counsel to Hamilton County Court of Appeals subsequently affirmed this raise issues pertaining to prosecutorial misconduct and the denial. State v. Byrd, No. C-890659, 1991 WL 17781 (Ohio credibility of Armstead’s testimony, it is clear that Byrd was Ct. App. 1 Dist., Feb. 13, 1991). denied his Sixth Amendment right to effective assistance of counsel.

Following Petitioner’s direct appeals, and while his motion for a new trial was pending, Petitioner filed a post-conviction relief petition with the Hamilton County Court of Common Pleas. The court denied a request by Petitioner to consolidate his post-conviction petition with his motion for a new trial of counsel in a postconviction hearing. As long as no direct and then denied the post-conviction petition without a hearing appeal was taken, or the claim of incompetent counsel was not on October 2, 1989. On February 13, 1991, the Hamilton raised and adjudicated on a direct appeal, res judicata does not County Court of Appeals reversed and remanded. State v. bar the adjudication of this issue in postconviction proceedings. Byrd, No. C-890699, 1991 WL 17783 (Ohio Ct. App. 1 Dist., 448 N.E.2d 452, 454 (Ohio 1983) (internal quotations and citation Feb. 13, 1991). The court of appeals stated that the common omitted). Shortly after Cooperrider, in an opinion seemingly applying the pleas court’s decision did not recite that it had reviewed the Cooperrider principle, the Ohio Supreme Court addressed the merits of totality of the record before denying the petition. Id. at *2. an ineffective assistance of trial counsel claim, after it noted that the claim Despite obtaining a remand from the court of appeals, was not raised on direct appeal. See State v. Decker, 502 N.E.2d 647, 649 & n.3 (Ohio 1986). All of the cases cited by the majority regarding the Petitioner appealed the judgment of the appellate court to the supposed consistency and clarity of the Cole rule are after 1990 – well Ohio Supreme Court. On May 20, 1991, the state supreme after Byrd had sought to vindicate his Sixth Amendment rights under state court granted the State’s motion to dismiss the appeal, post-conviction proceedings. See Ante at ¶ 203-204. Given these effective as of May 15, 1991. State v. Byrd, 573 N.E.2d 665 ambiguous statements by the Ohio Supreme Court, we certainly cannot (Ohio 1991). conclude that the Cole rule was sufficiently established and enforced to justify default of Byrd’s claim of ineffective assistance of trial counsel. In any event, to the extent his trial counsel claim was defaulted, it is clear On April 1, 1991, the common pleas court again denied the that the default was “cause[d]” by the ineffectiveness of Byrd’s appellate post-conviction relief petition without a hearing. The trial counsel. See, e.g., Gravley, 87 F.3d at 785. Further, given that this Court court explained: “The Court of Appeals has erroneously has itself recognized the murkiness of Ohio’s procedural framework for concluded that this Court did not review the entire record presenting claims of ineffective assistance of appellate counsel, see when previously ruling on this case . . . . This Court did Manning v. Alexander, 912 F.2d 878, 881-83 (6th Cir. 1990), we cannot conclude that the Murnahan rule – not clearly articulated until 1992 – was previously review the entire record, and now, pursuant to the sufficiently established and followed to bar our consideration of Byrd’s Court of Appeals decision, has again reviewed the entire ineffective appellate counsel claims. Thus, irrespective of the Supreme record.” State v. Byrd, No. B-831662, at 1 (Hamilton County Court’s resolution of Carpenter v. Mohr, 163 F.3d 938 (6th Cir. 1998), C.P., Apr. 1, 1991). The Hamilton County Court of Appeals cert. granted sub nom, Edwards v. Carpenter, 120 S.Ct. 444, (U.S. Nov. affirmed this judgment on February 26, 1992. State v. Byrd, 8, 1999) (No. 98-2060), Byrd’s appellate ineffectiveness claims are not barred by an “adequate” state procedural bar, and therefore can properly No. C-910340, 1992 WL 37761 (Ohio Ct. App. 1 Dist., Feb. serve as “cause” for any purported default of his trial ineffectiveness 26, 1992). In particular, the court of appeals determined that claims. Finally, as should be apparent from the following discussion of Petitioner’s ineffective assistance of appellate counsel claims the merits of Byrd’s claims, he was clearly prejudiced by the failure to receive effective assistance.

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which the testimony of convicted felon and jailhouse were not properly raised in a post-conviction petition. Id. at informant Armstead can be credited; the vouching results in *6. The Ohio Supreme Court declined to hear Petitioner’s the presentation of Armstead as an upstanding member of the appeal of the denial of his post-conviction petition. State v. prosecutor’s “our people”; the factual speculation allows for Byrd, 596 N.E.2d 472 (Ohio 1992). the creation of an imaginary evidentiary predicate to undergird Armstead’s testimony; and the victim impact After failing to persuade the state courts to hear his evidence predisposes the jury to grant Armstead every benefit ineffective assistance of appellate counsel claims in a petition of the doubt as it, understandably, seeks to make someone pay for post-conviction relief, Petitioner filed an application for for the damage done to the Tewksbury family. In this context, delayed reconsideration with the Hamilton County Court of confidence in the outcome of Byrd’s trial must be, and is, Appeals on June 17, 1992. On October 1, 1992, the court of seriously undermined. One cannot, in good conscience, blink appeals issued an order in which it stated that it would not at such substantial constitutional impropriety with full consider any of these claims because they were untimely. comprehension of its deadly effects. In these circumstances, State v. Byrd, No. C-830676 (Ohio Ct. App. 1 Dist., Oct. 1, judicial neglect transforms the justice system into an 1992). Following the court of appeals’s refusal to hear his accomplice to constitutional transgression. claims, Petitioner pursued two different courses. First, Petitioner appealed that refusal to the Ohio Supreme Court.

II. On October 27, 1993, the state supreme court affirmed the judgment of the court of appeals in a one-sentence order.

Byrd also claims that his trial and appellate counsel were State v. Byrd, 621 N.E.2d 407 (Ohio 1993). Second, ineffective in violation of the Sixth Amendment. Initially, I Petitioner filed a motion for delayed reinstatement of his note that Byrd has not procedurally defaulted his ineffective direct appeal to the Ohio Supreme Court. The court denied assistance of trial and appellate counsel claims, 1and therefore the motion without elaboration in another entry issued on those claims are preserved for federal review. Turning to October 27, 1993. State v. Byrd, 621 N.E.2d 409 (Ohio 1993). Motions to reconsider both orders were denied on December 15, 1993, and the Ohio Supreme Court scheduled 1 an execution date of March 15, 1994.

The majority primarily relies on the Ohio Supreme Court’s decision in State v. Cole, 443 N.E.2d 169 (Ohio 1982) for its conclusion that Byrd procedurally defaulted his ineffective assistance of trial counsel claims. Then, on March 7, 1994, only eight days before his It is settled that only state procedural bars that are deemed “adequate” to scheduled execution, Petitioner filed a petition for a writ of support the state’s judgment are given force by federal courts. See habeas corpus pursuant to 28 U.S.C. § 2254. “That Coleman v. Thompson, 501 U.S. 722, 729 (1991). This adequacy formidable filing included 29 claims for relief and filled determination requires that a state procedural rule be actually enforced almost 300 pages.” Collins v. Byrd, 510 U.S. 1185, 1186 and “firmly established and regularly followed.” Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); Ford v. Georgia, 498 U.S. 411, 423-24 (1994) (Scalia, J., dissenting from denial of the application to (1991). On one hand, the Ohio Supreme Court concluded in Cole that a vacate stay of execution). The U.S. District Court for the claim is barred by res judicata when a defendant, represented by new Southern District of Ohio rejected Petitioner’s habeas petition counsel, fails to raise on direct appeal a claim of ineffective assistance of on grounds of inexcusable delay. However, we granted a stay trial counsel that can be resolved without reference to evidence outside of execution. Among other things, our order granted the record. See 443 N.E.2d at 170. However, one year later in State v. Cooperrider, the Ohio Supreme Court held: Petitioner “120 days to allow for further investigation and discovery of possible habeas claims,” id. at 1187 (internal Appellant should have no fear that the doctrine of res judicata quotations omitted), as well as “leave . . . to amend the will prevent him from raising the issue of ineffective assistance 12 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 101

petition within sixty (60) days of this order to include any from jail. This videotape had little, if any, probative value newly discovered claims,” Id. at 1187-88 (internal quotations respecting Armstead’s testimony, and to the extent it did shed omitted). Upon application by the State, the U.S. Supreme minimal light on the circumstances surrounding Byrd’s Court declined to vacate the stay. Petitioner’s case was purported jailhouse confession, the State certainly could have transferred to a different district court judge. On December presented alternative evidence that carried less potential to 28, 1995, following three separate opinions disposing of the inflame and prejudice the jury. One can comprehend the claims raised, the district court entered an order denying the relevance of this kind of material during the sentencing phase petition for a writ of habeas corpus and dismissing the action. where the sentencer needs to respond to “the specific harm Petitioner now appeals from the district court’s denial of caused by the defendant,” see Payne, 501 U.S. at 825. But habeas relief. such a visceral appeal as this – with a highly attenuated connection to any material fact respecting Byrd’s guilt – is II. Ronald Armstead inappropriate in the context of determining whether a defendant is guilty of a capital crime.

A. Testimony Regarding Petitioner’s Confession D.

The first issues that we will consider focus upon the testimony of Ronald Armstead. All agree that Armstead’s While it may be that each specific instance of prosecutorial testimony was vitally important to the jury’s determination misconduct might not per se warrant a new trial, taken as a that Petitioner was the principal offender in the aggravated whole, the cumulative effects of these improprieties certainly murder of Monte Tewksbury. Armstead testified that, denied Byrd a constitutionally fair trial. See United States v. following their arrests, Petitioner, Brewer, and Woodall were Young, 470 U.S. 1, 11 (1985) (holding that a prosecutor’s transported to Block A at the Cincinnati Workhouse where conduct must be analyzed in context to determine if defendant Armstead was an inmate. Armstead testified that Petitioner denied a fair trial). In Francis, 170 F.3d at 552, we recently subsequently confessed to stabbing Monte. The following ordered a new trial despite our findings that the specific excerpts of Armstead’s testimony are the most crucial: instances of prosecutorial vouching and improper factual speculation were not individually sufficient to warrant a new Q [by the prosecution]: And what were some of the trial. We concluded: “[W]hen we review the numerous other questions that they asked you and talked to you examples of impropriety in this case together and in the about? context of the entire trial, a new trial is appropriate.” Id.; see also Gravley v. Mills, 87 F.3d 779, 790 (6th Cir. 1996)

A [by Armstead]: Well, they was doing a lot of (granting habeas petition given numerous instances of bragging, you know, about their case, period. Byrd prosecutorial misconduct). (indicating) and Brewer, I talked to them in Byrd’s cell. . . . He [Petitioner] was telling me about how he had For similar reasons, it is clear that the cumulative effect of stabbed that gentleman out there at the King Kwik, you the numerous prosecutorial improprieties in this case denied know, and he wanted to be sure that they didn’t, wasn’t Byrd a constitutionally fair trial. The only way the majority able to find any blood stains on the knife, you know. He can reach a contrary conclusion is to focus myopically on wanted to, you know, as much information that he could each specific instance of prosecutorial misconduct as if it get from my standpoint, how would they be able to find occurred in a vacuum. The prosecutor’s conduct, however, is any blood on the knife if they cleaned it. symbiotic. The Brady violations create an environment in 100 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 13

of substantiation. Morever, it transforms a trial from . . . deliberate and sober fact-finding to visceral and capricious guesswork. Q: Let me ask you this question. Did Defendant Byrd specifically tell you that he’s the one that stabbed Monte Finally, the prosecutor introduced substantial victim impact Tewksbury? evidence during the guilt phase of the trial. While the Supreme Court has recently held that such evidence is A: Yes, he did. permissible during the sentencing phase of a capital trial, it has not similarly approved of such evidence during the guilt Q: How did he say that? phase. See Payne v. Tennessee, 501 U.S. 808, (1991). Indeed, five of the six Justices in the Payne majority wrote or A: Okay. See, he kept on worrying, he, you know, he joined separate concurrences, reiterating that the Court’s kept on worrying about that knife, so like he had got holding applied only to the sentencing phase of capital trials. some stamps, so I was in the cell talking with him first See id. at 830 (O’Connor, J., joined by White and Kennedy, and then Brewer came in and then we just started, they JJ., concurring) (“[A] state may legitimately determine that just started asking me questions, and he said, “Yeah, I victim impact evidence is relevant to a capital sentencing killed him, I killed him, you know, because he was in my proceeding.”); id. at 833 (Scalia, J., joined by O’Connor and motherfu _ _ king way, f _ _ k him,” you know. That’s Kennedy, JJ., concurring) (“The Court correctly observes the the whole attitude they took the whole time they were injustice of requiring the exclusion of relevant aggravating there, they don’t care, you know. He [Petitioner] don’t evidence during capital sentencing. . . .”); id. at 835 (Souter, care (indicating). J., joined by Kennedy, J., concurring) (“To my knowledge, our legal tradition has never included a general rule that Q: Did Brewer tell you who took the money? evidence of a crime's effects on the victim and others is, A: Brewer took the money. He [Petitioner] stabbed him standing alone, irrelevant to a sentencing determination of the (indicating). defendant’s culpability.”). While it may be true that victim impact evidence related to the underlying crime will Tr. at 1547-52. In the district court, the Hamilton County customarily be disclosed during the guilt phase, see id. at 840 Prosecutor’s Office submitted affidavits asserting that (Souter, J., concurring), such disclosure must be limited by its Armstead had provided the prosecutors with details about the probative relevance respecting material facts. See, e.g., murder that were known only to the police and that had not Bennett v. Angelone, 92 F.3d 1336, 1348 (4th Cir. 1996). been provided to the media.

In Byrd’s case, the prosecutor played a highly empathetic B. Petitioner’s Challenges to Armstead’s Testimony television news magazine videotape of Tewksbury and his family, during the testimony of Ronald Armstead. The On appeal, Petitioner posits several challenges to videotape was played without audio so that all the jury Armstead’s testimony. First, Petitioner contends that either observed were the highly-charged and undoubtedly heart- of the following is true: (1) That Armstead and the wrenching images of one who had been taken away from his prosecution had agreed prior to the time that Armstead family by a senseless crime. The majority asserts that the testified that Armstead would receive favorable consideration videotape was relevant to Armstead’s testimony since Byrd in an upcoming parole revocation hearing he was facing in allegedly confessed to Armstead while watching the program exchange for his testimony and that Armstead testified falsely 14 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 99

that no such deal had been made7; or (2) even if no deal had improper for a prosecutor to inform the jury as to purported been reached between Armstead and the prosecution, facts not in evidence during closing argument. See United Armstead nevertheless testified falsely when he stated that he States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995) (“A was not facing additional charges at the time of Petitioner’s prosecutor's statement in a closing argument is improper if the trial. Second, Petitioner alleges that Armstead’s testimony statement brings to the jury’s attention purported facts that are about Petitioner’s confession was false in all material not in evidence and are prejudicial.”); Bess, 593 F.2d at 753 respects. In support of his position, Petitioner presented (“An attorney’s job arguing a case before a jury is to persuade affidavits from several individuals who were incarcerated that body, based solely on the proof at trial and reasonable with Armstead and Petitioner in the Cincinnati Workhouse in inferences that can be deduced therefrom.”); United States v. the Spring of 1983. Petitioner asserts that these affidavits Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999) (holding show that Armstead and another inmate, Virgil Jordan, were that “a prosecutor’s closing argument cannot roam beyond the involved in a scheme to testify falsely against Petitioner in evidence presented during trial”). order to further their8 own causes with the Hamilton County Prosecutor’s Office. Under any of these theories, Petitioner In this case, the prosecutor engaged in wild and inexcusable factual speculation during his closing argument. Without any evidentiary predicate whatsoever, the prosecutor concluded 7 that since Byrd’s boyhood home was in the same area as the We note that Armstead was never asked directly whether he had store where Tewksbury was killed, “on numerous occasions received any consideration from the State in exchange for his testimony. [Byrd] was face to face with Monte Tewksbury, saw him, and Presumably, Petitioner is referring to the prosecutor’s question on re- direct examination, which asked Armstead to “tell the Jury and Judge why recognized him.” J.A. at 3912. In attempting to explain why you are here testifying?” Tr. at 1570. Tewksbury’s blood was not found on the recovered knife, the prosecutor hypothesized -- again without any evidentiary 8 predicate -- that Byrd had wiped the blood off the knife with Marvin Randolph’s affidavit claimed that Jordan was the originator of a plan to help himself, Armstead, Randolph, and another inmate, Paul a missing t-shirt sleeve and dumped the sleeve “out in Sargent, by concocting a story that Petitioner had confessed, using details Hamilton County in the northwest side with blood all over it.” of the robbery and murder gleaned from news accounts. Robert Jones’s J.A. at 3921-22. Given that this hypothesis was wholly affidavit stated that he overheard Armstead and Jordan discussing this plan. Elwood Jones, Jr., claimed both that he had overheard Jordan and unsupported by introduced evidence, the prosecutor, of Armstead putting their story together, and that Armstead later admitted to course, could not identify the location of the sleeve. him that Armstead had lied during Petitioner’s trial and had made a deal However, he decided to take a guess at the sleeve’s location with the prosecutor that Armstead would be released from prison if he anyway, speculating: “Maybe [it’s in] the same place Monte testified. Elwood Jones also produced a letter allegedly written by Tewksbury’s ring is. Maybe the same place the top of the Armstead that recants Armstead’s testimony. A handwriting examiner in cash register is. But that is the explanation of what happened state court concluded that the letter had not been written by Armstead and that there were things about the letter which suggested that Elwood Jones to the other sleeve.” J.A. at 3921. The majority has not had written it himself. Finally, in the district court, Petitioner submitted identified any evidentiary predicate from which the prosecutor an affidavit from one of his post-conviction counsel. The letter claimed could reasonably infer these purported facts. There is a good that Jordan had told her that he and Armstead agreed to fabricate a story reason for this omission: there is no evidence to substantiate concerning Petitioner’s confession. However, Jordan refused to sign an the prosecutor’s overzealous theorizing. Similar to affidavit to that effect.

prosecutorial vouching for witness credibility, such The State, on the other hand, submitted affidavits in response. These speculation places the government’s prestige behind affidavits denied the existence of any type of deal between Armstead and uncorroborated putative facts that have not survived the rigor the Hamilton County Prosecutor’s Office, and also affirmatively asserted 98 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 15

strikingly similar to what we see here. In that case, the contends that the State violated his right to due process when prosecutor stated that he “believe[d] beyond a reasonable it presented testimony from a key witness which it knew was doubt” that the defendant committed the charged crime. Id. false and which it neither corrected nor disclosed to at 753; see also United States v. Kerr, 981 F.2d 1050, 1053 Petitioner’s counsel. See Brady v. Maryland, 373 U.S. 83 (9th Cir. 1992) (finding improper vouching when prosecutor (1963). Thus, Petitioner argues that we should reverse his stated, “I think [the witness] was candid. I think he is capital conviction and vacate his death sentence. honest.”). We characterized such direct prosecutorial vouching as “egregious,” “astonish[ing],” and “inexcusable.” Petitioner’s third argument is an alternative one. He Bess, 593 F.2d at 753, 757. There is no other way to describe contends that the state courts denied him discovery and an the prosecutor’s statements in this case. The essential evidentiary hearing on these claims. Therefore, Petitioner question is whether this vouching constitutes reversible error. asks us, at a minimum, to vacate the district court’s judgment and remand Petitioner’s case with instructions that Petitioner In Carroll, we distilled the appropriate analysis for be allowed to conduct discovery and be granted an evidentiary determining whether identified prosecutorial vouching rises hearing. In order to evaluate Petitioner’s claims fully, we to the level of reversible error. As noted above, we first must review Armstead’s criminal status at the time of determine whether the remarks at issue were flagrant. Here, Petitioner’s trial, as well as the testimony that Armstead the prosecutor’s comments were certainly misleading to the provided at trial. jury. The majority does not dispute that Armstead’s credibility was indispensable to Byrd’s conviction. Armstead C. Armstead’s Status at the Time of Trial was a jailhouse informant and convicted felon whose credibility was questionable at best. The State’s (1) Possible Parole Revocation representations that it believed Armstead are certainly likely to mislead a citizen jury as to Armstead’s actual credibility. On December 4, 1980, Armstead began serving a 3-15 year Additionally, the import of the remarks was exacerbated by prison sentence, which was imposed by the Hamilton County the weakness of alternative evidence of Byrd’s guilt. Again, Court of Common Pleas following his convictions for the majority does not dispute that this case turns on felonious assault and trafficking in drugs. On September 2, Armstead’s credibility, which was certainly bolstered by overt 1982, Armstead was paroled, notwithstanding the opposition prosecutorial vouching. Though the statements do not appear of the Hamilton County Prosecutor’s Office, which had to be extensive, nor can we determine whether they were maintained that Armstead showed a disposition to commit deliberately placed before the jury, their strategic potency is violent crimes. Approximately three months later, on beyond dispute. Given the paucity of corroborating evidence December 17, 1982, Armstead was arrested and charged with of Byrd’s guilt, and the fact that these statements were the robbery. The Ohio Adult Parole Authority (APA) was kind that would mislead a jury, the prosecutorial vouching in this case represents flagrant constitutional error.

C. that Armstead had provided the prosecutors with details about the murder that were known only to the police and that had not been provided to the In addition to engaging in gross vouching during his closing media. Moreover, the State provided letters from Randolph and Sargent, written before any contact had been made by Armstead, in which they argument, Byrd’s prosecutor also speculated as to facts not in volunteered to testify against Petitioner and in which they stated that evidence. As the majority acknowledges, it is highly Petitioner had admitted to various inmates at the jail that he had killed Monte.

16 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 97

notified of his arrest, and, by January 3, 1983, Armstead prosecutorial vouching stems from its tendency to place the waived a probable cause hearing on the issue of whether he imprimatur and legitimacy of the government behind witness was a parole violator given his recent arrest and was notified testimony. See United States v. Francis, 170 F.3d 546, 550 that he would receive a full parole revocation hearing at a (6th Cir. 1999). In this regard, the prohibition on government later date. On February 2, 1983, Armstead was declared a vouching is consistent with the prosecutor’s role as parole violator, and the APA placed a detainer on him which representative of a dispassionate sovereign, not a partisan would result in his arrest as soon as he was released from jail interest. See Berger v. United States, 295 U.S. 78, 88 (1935). on this most recent charge. On March 15, 1983, Armstead pleaded guilty to a reduced charge of assault and attempted This Court applies a two-step analysis to determine whether petty theft and received a sentence of 180 days in the prosecutorial vouching constitutes reversible constitutional Cincinnati Workhouse. His presumptive release date was error. First, we assess whether the statements were improper, September 15, 1983. and second, whether the impropriety was harmless. See Carroll, 26 F.3d at 1384-87 (6th Cir. 1994). In determining While serving his 180 day sentence at the Workhouse, whether improper conduct was harmless, we further inquire Armstead met Petitioner and witnessed Petitioner’s into the flagrancy of the conduct. This flagrancy inquiry confession to Monte’s stabbing. Armstead testified to this requires that we assess the following factors: whether the effect at Petitioner’s trial. Petitioner was convicted on August remarks tended to mislead the jury; were isolated or 12, 1983, and sentenced to death on August 19, 1983. On extensive; were deliberately or accidently placed before the August 29, 1983, Armstead was released from the Workhouse jury; and the strength of the evidence against the accused. See and sent, pursuant to a parole violator warrant, to the id. at 1385, 1389; see also Olsen v. McFaul, 843 F.2d 918, Columbus Correctional Facility for further proceedings. 929 (6th Cir. 1988) (applying flagrancy factors to determine Armstead was scheduled for an informal parole review scope of prosecutorial misconduct in habeas case). hearing on October 20, 1983.

In this case, there is no doubt that the prosecutor improperly On the day Armstead was released to the custody of the vouched for Armstead’s credibility; the only issue is whether APA, Daniel Breyer, the prosecutor in Petitioner’s trial, spoke the vouching was harmless. During closing arguments, the to a supervisor with the APA and advised him of Armstead’s prosecutor stated: cooperation. The following day, Breyer confirmed this in writing. Breyer’s letter stated that Armstead testified without I’m not sure there is honor among thieves, but I believe inducement by the State. The letter explained that, although Armstead when he took the stand, and I believe you did, it would not recommend parole, the Hamilton County too . . . . I have heard no evidence direct or Prosecutor’s Office nonetheless would not be opposed to a circumstantial to contradict what Armstead said. I decision to continue Armstead on parole. Prior to the date of believe him and submit that you should believe him. . . . his parole hearing, Armstead allegedly faced threats and Witnesses pay a price to testify. I never met Armstead assaults from other inmates at the Columbus Correctional before, but you know there’s something real genuine Facility, including Petitioner’s father John Byrd, Sr. As a about our people. . . . result, Armstead was transferred to the Hamilton County Jail on October 6, 1983. Then, on approximately October 20, J.A. at 3920. There is no more direct way to vouch for a 1983, the APA determined that Armstead would be returned witness’ credibility than to assert “I believe him.” In United to parole. Armstead’s cooperation at Petitioner’s trial was States v. Bess, 593 F.2d 749 (6th Cir. 1979), we ordered a new trial in the face of prosecutorial vouching that is 96 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 17

witnesses who corroborated Armstead’s testimony. In these cited as a mitigating circumstance behind the decision to ways, Armstead’s parole evidence certainly satisfies the Kyles return Armstead to parole. On October 26, 1983, Armstead definition of materiality as whether “the government’s was reinstated to parole and he moved to San Diego, evidentiary suppression undermines confidence in the California. After approximately one year of supervision in outcome of the trial.” Id. at 434 (internal quotations and San Diego, Armstead received his final release on November citation omitted). See also United States v. Scheer, 168 F.3d 1, 1984. 445, 452-53 (11th Cir. 1999) (finding a Brady violation when evidentiary suppression related to a key witness’ testimony); (2) Armstead’s Testimony East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997) (holding that “when the withheld evidence would seriously undermine At the outset, we note the extensive impeachment evidence the testimony of a key witness on an essential issue or there elicited from Armstead by Petitioner’s defense counsel on is no strong corroboration, the withheld evidence has been cross-examination. Armstead conceded, among other things, found to be material”). the following facts on cross-examination: (1) That he had been incarcerated in Block A of the Cincinnati Workhouse The imperative that we have the utmost confidence in a jury (i.e., “the maximum security part” of the Workhouse) since verdict is paramount when the punishment is death. We must approximately December 20, 1982; (2) that he also had been not tolerate any reasonable doubt in discharging this duty. convicted within the previous ten years of a state or federal Here, no one disputes that the State secured Byrd’s conviction offense carrying a sentence of more than one year in prison; as a direct result of Armstead’s testimony. We know that the (3) that he previously had used the alias “Ronald Scott” after jury was unaware that Armstead faced up to fifteen years he escaped from the Workhouse during a prior period of imprisonment, depending on the reception he received at his incarceration and fled to Chicago; and (4) while in Chicago, parole hearing. This reception would undoubtedly be warmer he got into some “trouble” (i.e. arrested for robbery), but he if he found a way to ingratiate himself with the Hamilton had a “good work record up there and everything, so when County prosecutor. None of these facts dictate that the jury [he] went to court the Judge gave [him] some probation.” Tr. would have necessarily reached a different verdict, but they at 1552-56. We also point out that defense counsel elicited certainly undermine confidence in its verdict. By failing to from Armstead testimony in addition to that permitted by the correct material testimony that it should have known was Ohio Rules of Evidence. Ohio Evidence Rule 609 generally false, the State committed reversible constitutional error. authorizes the admission of evidence of a conviction within ten years prior to the date such evidence’s introduction is B. sought if the crime is punishable by imprisonment in excess of one year. Ohio Evid. R. 609(A)-(B). At Petitioner’s trial The prosecution’s Brady violations were exacerbated by in 1983, Armstead admitted that he had an “escape charge” numerous other instances of misconduct – notably improper from 1972. Moreover, although defense counsel was prosecutorial vouching for Armstead’s credibility and the restricted at one point from pursuing the nature of Armstead’s importing of facts not in evidence into closing argument. conviction within the preceding ten year period, counsel This Court has unambiguously stated its disdain of successfully obtained the answer (i.e., a reference to robbery) prosecutorial vouching for witness credibility. See United at a later point in his cross-examination. States v. Carroll, 26 F.3d 1380, 1389 (6th Cir. 1994) (“We cannot overstate the extent to which we disapprove of . . . improper vouching by prosecutors.”). Our contempt for 18 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 95

At the conclusion of the cross-examination, the following time pending or nothing else pending.” J.A. at 3863. On colloquy occurred between Petitioner’s counsel and redirect, the prosecution asked Armstead why he came to Armstead: testify against Byrd. Armstead responded, “I don’t have no more cases pending, and I come to testify against him because Q: Do you have any charges pending now? he was wrong.” J.A. at 3864. The majority attempts to explain the undeniable falsity of these statements by MR. VOLLMAN [prosecution]: Objection, Judge. hypothesizing that Armstead must have thought that the We have been over that. questions referred to “criminal” charges, as opposed to his impending parole revocation hearings. See ante 47-48. First, THE COURT: Overruled. Armstead was asked whether he had “any charges pending.”

“Any” means “any.” Armstead was not asked whether he had A: No, I don’t sir. any “criminal” charges pending, or any other kind of charges. Q: Did you have charges pending at the time that you He was simply asked whether he had “any” pending charges. talked to the police and prosecutor? Moreover, Armstead responded that he had “nothing else pending.” There is no qualification in this statement. By A: No, I didn’t, sir. I got my time in March the 15 and testifying that he had “nothing else pending,” Armstead left I don’t have no time pending or nothing else pending. the jury with the impression that he had no specific reason to fabricate testimony, and that all of his jail time was behind Tr. at 1569. On re-direct examination, the prosecution asked him. This was patently untrue, and either the prosecution Armstead when he was subject for release. Armstead stated: knew or should have known. “I got about two more weeks before my time is up.” Tr. at 1570. The prosecutor then concluded by asking Armstead Additionally, the majority concludes that Armstead’s why he was testifying. Amstead stated: testimony on his pending charges is immaterial since any parole records evidence would merely serve as cumulative Because what he did is not what you would say is hip, impeachment evidence, and that Armstead had been and he think it hip, and he brags about it, him and his substantially impeached by other evidence. While buddies, and Woodall and they bragged about it from the Armstead’s overall credibility was certainly impugned by day that they come in the Workhouse until the day they evidence that he was imprisoned at the Cincinnati Workhouse left. And he don’t care about nothing . . . and he killed at the time of trial, and his admission that he had committed that man [Monte] for no reason, ‘cause he had the a prior crime carrying at least a one-year prison term, none of money, and they could have left, and I don’t have no this testimony furnished the kind of specific motivation to more cases pending, and I come to testify against him fabricate testimony provided by his parole status. This because he was wrong. evidence of a particular rationale to concoct testimony is not merely cumulative with respect to Armstead’s general Tr. at 1570. credibility. Neither the district court nor the majority dispute that Armstead’s testimony was principally responsible for On appeal, Petitioner argues that Armstead lied — and the Byrd’s conviction. Indeed, Armstead’s testimony provided prosecution knew he was lying yet failed to respond the only meaningful distinction between Byrd and coaccordingly — when Armstead testified that he did not have defendant John Brewer, who was not charged with any charges pending at the time of Petitioner’s trial. Tewksbury’s murder. Moreover, the State did not present any 94 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 19

The majority attempts to remove itself from this Petitioner points out that Armstead was facing an upcoming constitutional thicket by relying on our decision in United parole revocation hearing as a result of his guilty plea in States v. Clark, 928 F.3d 733 (6th Cir. 1991), which provided March 1983 to charges of assault and attempted petty theft. that “[n]o Brady violation exists where a defendant knew or In Petitioner’s view, his defense counsel’s question was not should have known the essential facts permitting him to take limited simply to any criminal charges Armstead might have advantage of any exculpatory information.” Id. at 738 been facing at the time, but necessarily encompassed (internal quotations and citation omitted). Perhaps something like a parole revocation hearing as well. recognizing the dubiousness of Clark’s applicability to this case, the majority further maintains that Armstead’s In Petitioner’s state post-conviction proceedings, the statements are neither false nor material for Brady purposes. common pleas court rejected Petitioner’s Brady claims and denied his motion for a new trial. The court also set forth its First, the majority attempts to excuse the prosecution’s factual findings with respect to the Brady claims. The district failure to correct Armstead’s false and misleading testimony court presumed these findings to be correct. While these by asserting – as per Clark – that Byrd’s trial counsel should findings are fatal to Petitioner’s Brady claims on habeas, have known “that Armstead was on some form of parole Petitioner contends that we need not defer to these findings. when he was arrested in December 1982” since he had access We now review the findings of the common pleas court, as to Armstead’s arrest records. See ante at 46. While, perhaps, well as Petitioner’s arguments that these findings are not one might expect an effective counsel to infer from entitled to deference. Armstead’s arrest history that he was likely on some form of parole at the time of his 1982 arrest, this omission is not so III. State Court Factual Findings egregious as to excuse the prosecutor’s failure to correct known false testimony. In Clark, we held that defense A. Introduction counsel should have been aware of exculpatory evidence when such evidence “was disclosed at [an] earlier detention On September 19, 1989, the common pleas court denied hearing in the presence of defendant and with the opportunity Petitioner’s motion for a new trial, and in so doing, made for inquiry by defense counsel.” 928 F.2d at 738. There was several findings of fact. On October 2, 1989, and again on no such disclosure in this case. Brady most assuredly does April 1, 1991, the court denied Petitioner’s request for an not allow a prosecutor to stand idly by while key witnesses evidentiary hearing and denied his petition for post-conviction testify in materially false and misleading ways. Indeed, the relief. In conjunction with each denial, the court made a Supreme Court recently asserted: “[T]he prosecution’s number of factual findings. The Hamilton County Court of responsibility for disclosing known, favorable evidence rising Appeals ultimately affirmed the denials of both the motion for to a material level of importance is inescapable.” Kyles, 514 a new trial and the petition for post-conviction relief. U.S. at 438. Petitioner subsequently filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On habeas review, the Perhaps recognizing that the Clark exception to Brady is district court deferred to the state courts’ factual findings in inapplicable to this case, the majority maintains that rejecting Petitioner’s claims. On appeal, Petitioner contends Armstead’s testimony was neither false nor material. The that these findings were not entitled to the presumption of notion that Armstead’s testimony was not false is simply correctness, because the state post-conviction proceedings did implausible. Byrd’s counsel asked Armstead, “Do you have not afford Petitioner the opportunity to conduct discovery and any charges pending?” Armstead replied, “I don’t have no develop the record. We disagree. After careful study of the entire record, it appears that, prior to ruling on his claims, the 20 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 93

state courts afforded Petitioner a significant opportunity to in the outcome of the trial.” Id. at 434 (internal quotations conduct the discovery necessary to support his demand for an and citation omitted). In this vein, “[if] there is no reasonable evidentiary hearing. Thus, even assuming that the doubt about guilt whether or not the additional evidence is information Petitioner now seeks actually exists, we must considered, there is no justification for a new trial . . . [but] defer to the state courts’ factual findings, because Petitioner if the verdict is already of questionable validity, additional had an adequate opportunity in the state courts to develop the evidence of relatively minor importance might be sufficient record to the extent necessary to warrant an evidentiary to create a reasonable doubt.” United States v. Agurs, 427 hearing, but he failed to do so. See Keeney v. Tamaro-Reyes, U.S. 97, 112-13 (1976). 504 U.S. 1, 9 (1992).

In this case, the prosecution did not disclose star witness B. Post-Conviction Proceedings in the State Courts Ronald Armstead’s parole records and pending charges. This evidence would have revealed that, at the time of Byrd’s trial, On April 19, 1988, the Ohio Supreme Court granted Armstead had a pending parole violation hearing where he Petitioner six months to prepare and present his post- faced the probability of three to fifteen years of imprisonment. conviction case. Petitioner proceeded to seek discovery on The evidence would have further revealed that the Hamilton two different fronts: one in the common pleas court, and one County prosecutor’s office, who so vehemently extolled in the Hamilton County Court of Appeals. On July 19, 1988, Armstead’s virtues throughout Byrd’s trial, was adamantly Petitioner, through his post-conviction counsel Richard J. opposed to any potential premature release for Armstead. Vickers, filed a Motion for Release of Records. On August Indeed, on multiple occasions prior to Armstead’s testimony 5, 1988, the common pleas court issued what can only be against Byrd, the prosecutor informed the Ohio Adult Parole described as a discovery order (hereinafter referred to as “the Authority that it was strongly opposed to any early release for August 5th order”).9 It states: Armstead. After Armstead’s testimony against Byrd, however, the prosecutor – who was involved in pursuing both It is therefore ORDERED that the Southern Ohio Armstead’s and Byrd’s charges – committed an about-face, Correctional Facility, the Hamilton County Jail, the informing the parole board that Armstead would face physical Hamilton County Juvenile Court and the Juvenile harm in prison, and that he “sincerely hope[d]” that he would Detention Center, Adult Parole Authority, the Ohio not be placed in such an environment. With a proverbial Department of Rehabilitation and Corrections, University wink-and-nod, the prosecutor indicated that he “would not be Hospital of Cincinnati, Cincinnati General Hospital, opposed” to an early release for Armstead. J.A. at 1551-52. Cincinnati Children’s Hospital and any other juvenile or adult, public or private organization or person, release While the jury was wholly unaware that, barring a upon request to Petitioner Byrd, his counsel or his agent fortuitous appearance at the parole hearing, Armstead was any records in their possession which concern John W. returning to prison, it did hear Armstead attest to the Byrd. following: “I don’t have no time pending or nothing else pending. . . . I don’t have no more cases pending, and I come In addition, any person or organization having any to testify against [Byrd] because he was wrong.” J.A. at 3864. medical, psychological, psychiatric, hospital, police, At best, these statements were misleading and left the jury with a material mis-impression of fact. At worse, these statements were patently false, which the prosecution knew, 9 A copy of this order is contained in the Appendix at the end of the or should have known.

opinion.

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constitutional guarantees of due process, fundamental school and employment records related to Mr. Byrd fairness, and effective assistance of counsel. These errors should also release the records in their possession to Mr. require an issuance of the writ or, at least, a remand for Byrd, his attorneys or his agents. limited discovery. Anything less is a gross and irrevocable miscarriage of justice, as the stark and chilly choice here is State v. Byrd, No. B-831662A (Hamilton County C.P., Aug. between due process or death. Out of a deeply held belief that 5, 1988).10 the option compelled by the Constitution is clear, I now set forth my dissenting views. On October 18, 1988, Petitioner filed his post-conviction petition in state court and attached to it a number of affidavits I. of prison inmates alleging that Armstead’s trial testimony had been concocted and was untrue. Also attached to the petition A. were, among other things, a letter purportedly written by Armstead implying that he had testified pursuant to a deal It is well settled that prosecutorial suppression of evidence with the prosecutor and a letter from the prosecutor to the favorable to an accused “violates due process where the APA indicating that Armstead had not testified as part of any evidence is material either to guilt or to punishment, deal but that, for a number of reasons, the prosecutor did not irrespective of the good faith or bad faith of the prosecution.” object to the possibility of Armstead returning to parole rather Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Kyles v. than being sent back to prison for violating his parole. Whitley, 514 U.S. 419, 433-34 (1995) . More specifically, due process prohibits the government from introducing Although he already obtained the August 5th order, testimony that it knew or should have known was false, see Petitioner’s post-conviction counsel prepared two broad Kyles, 514 U.S. at 433, or failing to volunteer exculpatory pseudo-discovery motions, which he presented to the evidence of which it was or should have been aware. See common pleas court on October 27, 1988 (hereinafter referred United States v. Phibbs, 999 F.2d 1053, 1088 (6th Cir. 1993); to as “the October 27th motions”). The first motion requested Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998); see also that the court order the Hamilton County Sheriff’s Office “to Carriger v. Stewart, 132 F.3d 463, 480-81 (9th Cir. 1997) turn over and advise the Hamilton County Prosecutor’s Office (finding due process violation when prosecution failed to of all information obtained during the course of their disclose exculpatory evidence relating to witness’ history of investigation of Petitioner’s case.” JA at 1718. The second untruthfulness and violent behavior). Moreover, government motion requested that the court order the Hamilton County suppression of any evidence that is favorable to a defendant Prosecutor’s Office to make a “complete copy of the entire is material, and such suppression constitutes constitutional Hamilton County Prosecutor’s File on Petitioner Byrd.” JA error when “there is a reasonable probability that, had the at 1721. The request stated that the court should review this evidence been disclosed to the defense, the result of the material and then seal a copy for use in further postproceeding would have been different.” Kyles, 514 U.S. at conviction proceedings. 433 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

To establish constitutional error, a defendant need not show that “more likely than not [he would] have received a 10 In his habeas petition, Petitioner claims that he sought all available different verdict.” Id at 434. It suffices to show that “the records through use of this motion; however, he relates the specifics only government’s evidentiary suppression undermines confidence with regard to his attempts to obtain a copy of a victim impact statement.

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The prosecutor opposed the second motion, and Petitioner __________________ stated later in his habeas petition that the common pleas court failed to hear or grant these motions.11 Although Petitioner DISSENT requested much more extensive discovery in the district court, __________________ these two motions appear to form the gravamen of Petitioner’s protestations that the state post-conviction courts’ NATHANIEL R. JONES, Circuit Judge, dissenting. This findings of fact are not entitled to deference. dissent is compelled by the majority’s validation of the unpardonable constitutional improprieties present in this On December 2, 1988, the common pleas court held a record. The effect of this validation is an intolerable hearing concerning Petitioner’s request for copies of victim- abandonment of substantive and procedural principles deeply impact statements, which Petitioner alleged were rooted in Anglo Saxon and American constitutional impermissibly given to the jury (hereinafter referred to as “the jurisprudence. Stated in its most simple form, these December 2nd hearing”). At that time, the prosecutor asked principles are designed to protect individual rights from the court to revoke the August 5th order in its entirety and constitutional shortcuts. I dissent here because rather than order that, in the future, if Petitioner wanted further upholding these principles, as courts are sworn to do, a “discovery type material, he can file a motion with this Court grievous breakdown has occurred. and this Court can consider each application on its own merits.” JA at 3992. During Petitioner’s response, the The ultimate penalty – death – hovers ominously over this following colloquy took place: case, and this reality leads me to set forth several postulates.

Democracy defends itself from anarchy by the degree it exalts Court: Let’s try to cut through a lot of things that I process over passion. The supremacy of due process over raw don’t think are really important. What do emotion is even more compelling when government you want? Specifically, what do you want? contemplates assuming the power to kill. Jurists most often find themselves in the cross-hairs of popular rage when Vickers: Your Honor, there’s no case law or statutory confronted with constitutional infirmity in capital cases. In no authority. other arena of civic decision-making is it more imperative that public officials operate with detachment. Judge Cranch, with Court: Just answer my question. Specifically what unsurpassed clarity, spoke to the necessity of judicial do you want? impartiality in charged circumstances when he declared during Aaron Burr’s 1807 treason trial: “The Constitution was Vickers: We would like copies of the victim impact made for times of commotion. . . dangerous precedents occur statement. in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, . . . undisturbed by the 11 clamor of the multitude.”

Petitioner supported his Brady claim with the same documents used to support his other claims concerning Armstead and the Examining Petitioner John Byrd’s claims with the requisite prosecutor’s alleged subornation of perjury. As discussed below, judicial sobriety exposes serious and egregious instances of Petitioner’s documents were insufficient to trigger an in camera review of the prosecutor’s files with respect to any of Petitioner’s claims, and it prejudicial error which, if uncorrected, will lead to his appears that the post-conviction court never conducted such a review. execution. It is beyond refutation that the State secured The court found, however, that the prosecutor did not suppress any Byrd’s death sentence in contravention of fundamental evidence favorable to Petitioner.

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APPENDIX Court: For what purpose?

Vickers: It’s our understanding that the victim impact statement went to the jury.

Court: The victim impact statement did not go to the jury. There was no PSI requested by the defendant. That is part of the probation report, is it not? You have a complete record of what went to the jury. It’s not in there, is it?

Vickers: No sir. Court: I can assure you it didn’t go to the jury. I can assure you the Court didn’t even have a copy of it, if in fact there was one. Is that all you’re requesting?

Vickers: Your Honor, if I may be heard? Court: Is this all you’re requesting? Vickers: At this time, we have another motion pending for emergency room records which has not been heard.

Court: I’m only going to hear what’s before me. Vickers: Yes sir. Once again, if this Court will allow me just to address Mr. Breyer’s comments. Mr. Breyer asked this Court to revoke or limit its order without citing any case law or statutory authority for it to do so.

Court: I’m not going to revoke the entire order. I think revocation of the order would cause too much contact between Mr. Vickers and his staff and your office, [sic] and this particular Court with regard to discovery in the future, as regards that which may be 24 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 89

necessary for their post-conviction relief. of our Constitution. We are confident that they do. So I’m going to deny that portion of it. I am Accordingly, the judgment of the district court denying the not going to allow the release of any of the petition for a writ of habeas corpus is AFFIRMED. materials which the Probation Department may or may not have, because, one, the jury didn’t have that material and neither did the Court, and I find that it has absolutely no relevance with regard to the post-conviction relief.

JA at 3393-96 (emphases added). In response to a question by Vickers, the court reiterated that it was not revoking the August 5th order.

The State then requested that post-conviction counsel clarify Petitioner’s allegations concerning an alleged deal between the prosecutor and Armstead. In response, counsel stated that the petition was clear: Petitioner had attached the August 30, 1983, letter from the prosecutor’s office to the APA stating that the prosecutor would not be opposed to continuing Armstead’s parole.12 The State responded with a request that counsel explain in writing what the consideration was that the prosecutor allegedly gave to Armstead. This colloquy followed:

Vickers: Your Honor, I would be glad to respond to Mr. Breyer, but we have sort of a Catch 22 situation here. We can only supply the documents that we have. Until the Court grants an evidentiary hearing we cannot conduct the kind of discovery that we need to

12 The letter stated that, despite the absence of any promise, Armstead’s testimony at Petitioner’s trial had greatly assisted the prosecution and that, because of his testimony, Armstead’s safety was now in danger.

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contends that Ohio’s death penalty scheme: (1) Allows for conduct in13order to fully answer Mr. Breyer’s the imposition of capital punishment in an arbitrary and question.[ ] discriminatory manner; (2) fails to narrow the class of deatheligible defendants adequately; (3) imposes an impermissible Court: You’ve made an allegation. There’s certainly risk of death on capital defendants who choose to exercise some basis for the allegation, sir. their right to a jury trial; (4) violates defendants’ rights to due process and effective assistance of counsel by allowing Vickers: Sir, within the context of the petition, I presentence investigation reports or mental evaluations believe the documents show that there was requested by defendants to be provided to the jury; (5) fails to contact between Armstead and the provide for an adequate proportionality review; (6) fails to prosecutor’s office. Also this cause of action provide the sentencing authority with the option to choose a does not stand alone. There are other causes life sentence even if the aggravating circumstances outweigh of action to indicate. the mitigating factors; and (7) provides an execution process that is cruel and unusual in that it offers defendants “the Court: Is it so difficult to put that in letter form and macabre choice” of death by lethal injection or death by send it to Mr. Breyer? electrocution. The district court rejected each of Petitioner’s claims. We agree that the claims lack merit substantially for Vickers: I will do my best to respond, yes, sir. the reasons given by the district court in its opinion of July JA at 3999. It is unclear to what extent, if any, counsel 28, 1995. followed through with the court’s directive to respond in IX. Conclusion writing to the prosecutor’s office. Other than an apparent request for the Sheriff’s investigatory records, which In his brief, Petitioner states that “[t]his will in all Petitioner eventually received, we find nothing in the record likelihood be the last court to review the merits of [his] claims to indicate that Petitioner ever requested to view non-work for relief from his capital conviction and death sentence.” product prosecutorial materials, or, if he did make such a Petitioner’s Br. at 1. Mindful of this likelihood and the request but was met with prosecutorial opposition, that finality of the sentence imposed, we have reviewed Petitioner took any steps to have the court enforce the request. Petitioner’s claims for relief with great care, as the length of this opinion plainly indicates.

The people of the sovereign State of Ohio have concluded that capital punishment is an appropriate sanction in certain 13 circumstances. Over sixteen years ago, an Ohio jury It appears that counsel had a preconceived notion that, since Ohio Rev. Code § 2953.21 does not entitle a petitioner to discovery, he was recommended, and the trial court agreed, that Petitioner’s somehow precluded from pursuing discovery under the August 5th order crime warranted this ultimate sanction. Over the following that the court had issued in response to his motion. There is, however, an decade, Ohio’s state courts repeatedly affirmed Petitioner’s important distinction between having no entitlement to discovery and conviction and sentence. Our task on habeas review is not to being precluded from undertaking discovery; here, although counsel may question the wisdom or propriety of capital punishment. not have been able to conduct depositions or serve interrogatories without a further order from the court, he certainly could have obtained Instead, our sole responsibility is to ensure that Petitioner’s documentary materials. Counsel made a similar “we-need-an-evidentiaryconviction and death sentence comport with the requirements hearing-to-do-discovery” statement earlier at the December 2nd hearing and in his memorandum in support of the second October 27th motion.

26 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 87

Just prior to participating in the above-described hearing, 777 (6th Cir. 1987). In any event, the claim is without merit. on November 29, 1988, Petitioner requested from the On direct appeal, the Ohio Supreme Court noted that, Hamilton County Sheriff’s Office records pertaining to the although it believed the argument to be improper, it was not visitation at the Hamilton County Jail and the Workhouse of prejudicial to Petitioner when viewed in the context of the inmates Armstead, Virgil Jordan, Marvin Randolph, Robert entire closing argument, which emphasized the evidence of E. Jones, and Thomas Sargent. On December 23, 1988, aggravating circumstances present in the case. See State v. pursuant to Ohio Rev. Code § 149.43, Petitioner filed with the Byrd, 512 N.E.2d 611, 616 (Ohio 1987). This circuit has Hamilton County Court of Appeals a mandamus action noted that, “[u]nless calculated to incite the passions and seeking to enforce his public records request. State v. Leis, prejudices of the jurors, appeals to the jury to act as the No. C-880792 (Ohio Ct. App. 1 Dist., June 16, 1989). community conscience are not per se impermissible.” United Sometime after Petitioner filed the mandamus action, the States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991). court of appeals stayed the post-conviction proceedings in the Solivan involved comments by the prosecutor that the jury trial court. should convict the defendant of drug charges in order to send a message to drug dealers that they were not welcome in the On January 17, 1989, counsel for the Sheriff’s Department community. That case was in the context of a direct appeal wrote Petitioner’s counsel and informed him that he could where the court, under its supervisory powers, held that the have access to visitation records by contacting Milt Casias at argument constituted reversible error. Petitioner’s case is the Hamilton County Sheriff’s Office. Petitioner’s counsel distinguishable not only because we must examine his claims did not examine these records until April 4, 1989. At that under the more stringent standards applicable on habeas time, counsel was permitted to review, and was given copies review, but also because the argument complained of does not of, visitation cards for each inmate whose records he ask the jury to send a message to other potential murderers or requested. The search for these records had been conducted robbers. The prosecutor quoted from the Supreme Court’s in late 1988 when Petitioner first made his request, and the explanation of the purpose of capital punishment as a way of Department of Corrections provided Petitioner with all of the arguing that the jury should find that these purposes would be requested visitation records that it could locate. However, not served by imposing the death penalty on Petitioner. It is not all of the records were found. In particular, the Department clear that this comment was even improper, and it certainly was unable to locate the general attorney log book for the does not render Petitioner’s entire trial fundamentally unfair. requested period, but Milt Casias averred that, to the best of The prosecutor urged the jury to weigh all the aggravating his knowledge, the log book had not been destroyed.14 circumstances against the mitigating factors in making its Petitioner’s counsel requested, and Casias agreed to conduct, sentencing determination. In short, the prosecutor’s comments did not deny Petitioner his right to a fair trial.

14 For the foregoing reasons, we reject each of Petitioner’s When Casias spoke with Petitioner’s counsel on April 4, 1989, he informed counsel that the Sheriff’s Department regularly destroyed claims of prosecutorial misconduct. records that were more than five years old. In Petitioner’s case, the records sought were from spring and summer of 1983; Petitioner made VIII. Miscellaneous Claims this request on November 29, 1988, shortly past the five-year mark. Moreover, as the State noted, it is surprising that any visitation records Finally, Petitioner raises a series of miscellaneous were found: visitation records are supposed to be maintained on a threeyear retention cycle, and individual inmate visitation cards are normally challenges to Ohio’s capital punishment scheme both on its kept for only one year. Despite the foregoing, Petitioner’s counsel was face and as applied to his case. In particular, Petitioner able to obtain visitation cards for each inmate requested.

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intelligence, interest and bias, if any; together with all the a further search for the records in question. On April 7, 1989, facts and circumstances surrounding the testimony. Casias’s office informed counsel that a large number of Applying these tests, you will assign to the testimony of records had, in fact, been destroyed on March 8, 1989. The each witness such weight as you deem proper. Sheriff’s Office provided counsel with a list of destroyed items; this list did not include any visitation records or the You are not required to believe the testimony of any attorney log book. The prosecutor’s office informed counsel witness merely because that witness was under oath. that they would continue to look for the log book. You may believe or disbelieve all or any part of the testimony of any witness. It is in your province to Counsel apparently also asked the prosecutor to provide determine what testimony is worthy of belief and what access to the sheriff’s investigatory files, a request testimony is not worthy of belief. substantially similar to the first of Petitioner’s two October 27, 1988, motions. On May 10, 1989, the prosecutor’s office Tr. at 1692-94. The remarks in question were extremely informed counsel that, in order to expedite Petitioner’s isolated and constituted only two brief comments in the midst mandamus action, the prosecutor’s office had “decided to of over thirty pages of transcript from closing argument. The make available to [Petitioner] all the records [Petitioner had] comments were deliberate in the sense of attempting to requested.”15 JA at 564. The prosecutor provided counsel emphasize the credibility of Armstead, but they clearly were with a contact at the Hamilton County’s Sheriff’s Office from not deliberate in the sense of attempting to mislead or confuse whom counsel could obtain the requested information. In the jury. Indeed, the prosecutor explicitly told the jury that addition, through the discovery process, in January 1989, his closing argument was not evidence. Following our counsel obtained Petitioner’s Juvenile Court records. examination of all the factors, especially the fact that the comments did not have any substantial likelihood of Sometime after April 7, 1989, Petitioner moved the confusing the jury, we conclude that the two brief comments Hamilton County Court of Appeals to hold an evidentiary at issue did not render Petitioner’s conviction constitutionally hearing regarding the lost visitation records. The Sheriff’s infirm under the stringent standard applicable on habeas Department moved to dismiss the action and opposed the review. See Brecht v. Abramson, 507 U.S. 619, 623 (1993) evidentiary hearing, providing affidavits and other documents (harmlessness standard used by federal habeas courts is showing that it had complied with Petitioner’s mandamus whether the error had a "substantial and injurious effect or request. On June 16, 1989, the Hamilton County Court of influence in determining the jury's verdict.") (quoting Appeals dismissed the mandamus action, stating that Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Petitioner “has failed to show, pursuant to Civil R. 26(B), the relevancy of the destroyed or lost records as to the E. Appeal to Societal Duty Postconviction Relief Petition.” JA at 3283. The court also overruled the motion for an evidentiary hearing, and dissolved Petitioner’s final claim is that the prosecutor argued to the the stay and protective orders previously entered. jurors during closing arguments at the sentencing phase that they should impose the death penalty on Petitioner in order to fulfill their societal duty. In making this argument, the prosecutor quoted from Gregg v. Georgia, 428 U.S. 153 (1976). At the outset, we note that Petitioner did not raise this 15 According to the State’s April 15, 1994, opposition to Petitioner’s claim in the petition for habeas corpus, and, thus we need not motion for discovery in the district court, this request covered the entire consider it on appeal. See Chandler v. Jones, 813 F.2d 773, file of the sheriff’s investigation into Monte’s murder.

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We find nothing in the record to indicate that Petitioner’s reexamine Armstead’s testimony was to reevaluate counsel otherwise utilized the August 5th order or Ohio Rev. Armstead’s credibility. Everyone involved with the case Code § 149.43 to pursue further discovery. Counsel claims presumably knew that, if Armstead’s testimony was believed, that, on an undisclosed date, he met with an employee of the then Petitioner was the principal offender and guilty of the Ohio Auditor of State to discuss a “Furtherance of Justice cold-blooded murder of Monte Tewksbury. Account” and was informed that the Hamilton County Auditor’s Office would have audit oversight responsibility for In our view, the prosecutor’s statements did not “so infect[] the prosecutor’s disbursements from such an account. There the trial with unfairness as to make the resulting conviction a is no indication whatsoever that, after receiving such denial of due process.” Darden, 477 U.S. at 181 (internal information, counsel either attempted to obtain these records marks and citation omitted). We are confident that the from Hamilton County or pursue a public records action. prosecutor’s statements did not confuse or improperly influence the jury, especially given its decision to have the C. State Court Findings testimony reread. In addition, the trial judge instructed the jury as to the factors to consider in evaluating the weight to In reviewing the motion for a new trial, the common pleas give the testimony of a witness. These factors emphasized court considered the affidavits and other evidence attached to that it was within the jury’s sole discretion how much weight the post-conviction petition. The court denied the motion, to give testimony, and the prosecutor’s opinion as to the finding: truthfulness of a witness was not one of these factors to consider. The judge instructed the jury as follows:

(1) The affidavits and statements of Elwood Jones, and the affidavits of Marvin Randolph, Robert Jones, and In determining the weight to be given to such a Thomas Sargent are merely impeaching in nature. witness’s testimony, you may take into consideration that witness’s skill, experience, knowledge, veracity, (2) Elwood Jones, Marvin Randolph, Robert Jones, and familiarity with the facts of the case, and the usual rules Thomas Sargent are all convicted felons, whose for testing credibility. credibility is thereby diminished. The affidavits of Randolph and Sargent are contradicted by their own As to all the evidence, you, ladies and gentlemen, are letters to the prosecutor.[16] the sole judges of the facts, the credibility of the witnesses, and the weight to be given to the evidence.

To weigh the evidence, you must consider the credibility of the witnesses who have testified. You will apply the tests of truthfulness which you apply in your daily lives.

16 These tests include the appearance of each witness Thomas Sargent and Marvin Randolph each contacted the prosecutor’s office via handwritten letters and affirmatively asserted that upon the stand; the manner of testifying; the they frequently talked with Petitioner and his co-defendants and that they reasonableness of the testimony; inconsistencies, if any, had information regarding Monte’s murder. “Recanting affidavits and in the testimony; the opportunity the witness had to see, witnesses are viewed with extreme suspicion by the courts.” Spence v. Johnson, 80 F.3d 989, 997 (5th Cir. 1996) (quoting May v. Collins, 955 hear and know the things concerning which that witness F.2d 299, 314 (5th Cir. 1992)). testified; accuracy of memory; frankness or lack of it;

84 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 29

relief on the basis of improper vouching.43 The few cases in (3) The note purportedly signed by Ronald Armstead, which vouching provided a basis for relief were in the context attached to the affidavits of17Elwood Jones, was not of a direct appeal where we exercise supervisory power over written by Ronald Armstead.[ ] the federal trial court proceeding. Even on direct appeal, however, reversal is not automatic. Compare United States v. (4) There is no credible evidence before the Court that Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994) (finding Ronald Armstead lied in his trial testimony. reversible error), with Collins, 78 F.3d at 1039-40 (holding that improper vouching was harmless under the (5) Ronald Armstead was not given any consideration by circumstances). the State for his testimony against John Byrd, Jr.[18]

In Petitioner’s case, we conclude that the demanding (6) The credibility of Ronald Armstead was the subject standard for habeas relief has not been met. Our review of the of extensive cross-examination at trial. “totality of the circumstances” convinces us of this. Angel, 682 F.2d at 608. First, the above remarks did not mislead the JA at 4201-02. The court gave res judicata effect to these jury at all. In fact, the prosecutor told the jury during his findings of fact when Petitioner raised identical claims in his closing argument that his argument was not evidence. He post-conviction petition. It found that all issues of fact could stated, “I ask you to bear in mind what I say is not evidence.” be resolved without an evidentiary hearing and granted Tr. at 1643. In addition, the trial judge instructed the jury summary judgment to the State. immediately after closing arguments that the arguments of the attorneys were not evidence. Tr. at 1688. This Court has noted that where the court instructs the jury in this fashion, 17 “[s]uch instructions have sometimes been deemed to cure The State presented a report by a handwriting expert that improprieties in closing argument.” Carroll, 26 F.3d at 1389 concluded: “I have found no basis for believing that the ‘Ronald n.12. Moreover, following an initial period of deliberation, Armstead’ signature on the [letter implying that Armstead cut a deal in exchange for his testimony] was written by Ronald Armstead. I am the testimony of Armstead was reread at the jury’s request. confident examination of the original would result in a definite After hearing Armstead’s testimony again, the jury returned determination that it was not written by him.” JA at 3165. While not a verdict of guilty approximately one hour later. Armstead’s definitively so concluding, the report also indicated that the letter in testimony was far from complicated. The crux of his question may have been written by Elwood Jones. testimony was that Petitioner told him that Petitioner had 18 stabbed Monte. The jury could not have wanted to reexamine Other than the letter that the common pleas court determined was Armstead’s testimony for the purpose of remembering what forged, all correspondence from Armstead to the prosecutor’s office was he said. Rather, the likely purpose behind the jury’s desire to written after Petitioner’s conviction and stated only that Armstead felt that his life was now in danger and was requesting the prosecutor’s help. All correspondence from the prosecutor’s office to the APA was also written subsequent to Petitioner’s conviction. This correspondence advised, 43 among other things, that Armstead had provided assistance, Armstead’s See, e.g., Toney v. Anderson, No. 96-4284, 1998 WL 68919 (6th life appeared to be in danger because of this assistance, and the Cir. Feb. 13, 1998); Martin v. Rivers, No. 95-2210, 1997 WL 49067 (6th prosecutor’s office would not oppose continuing Armstead’s parole. Cir. Feb. 3, 1997), cert. denied, 520 U.S. 1233 (1997); Boyle v. Brigano, Prosecutor Breyer also averred that Armstead was not given a deal in No. 93-3823, 1994 WL 242392 (6th Cir. June 2, 1994); Cantrell v. Gray, exchange for his testimony and that Armstead served his local time in full No. 84-3686, 1986 WL 16540 (6th Cir. Feb. 7, 1986); Mitchell v. Ravitz, before being transferred to the State as a parole violator. The inmate No. 85-1029, 1985 WL 13742 (6th Cir. Sept. 30, 1985) (all cases denying affidavits are the only submissions tending to support Petitioner’s habeas relief despite the petitioner’s claim of improper vouching). contention that Armstead made a deal in exchange for his testimony.

30 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 83

In addition, in its order denying the post-conviction petition Armstead’s testimony. Specifically, Petitioner complains of to vacate Petitioner’s sentence, the common pleas court the following two statements: found, among other things, that:

[Armstead] looked Byrd right in the face. He looked me (1) Marvin Randolph and Thomas Sargent initiated in the face. He looked you in the face, Armstead did, he contact with the prosecutor’s office to testify against looked the defense attorneys in the face and he said, Petitioner, but were not called by the State. “What that man did was wrong. He killed that man for no reason.” I’m not sure there is honor among thieves, (2) Petitioner has submitted no credible evidence but I believe Armstead when he took that stand, and I suggesting that Ronald Armstead lied, or that would believe you did, too. result in the probability of a different outcome at a second trial. Tr. at 1658-59. (3) Ronald Armstead did19not have any charges pending Armstead said that he was told by Byrd that Byrd stabbed at the time of this trial,[ ] and received no bargain or Monte Tewksbury. I haven’t heard any evidence to deal from the State in return for his testimony. contradict that. I have seen a lot of circumstantial evidence to support that. I have heard no evidence direct (4) There are no fundamental discrepancies between the or circumstantial to contradict what Armstead said. I testimony of Ronald Armstead at this trial and his believe him, and I submit that you should believe him. testimony at the trial of the co-defendants.

Tr. at 1662. Petitioner contends that these comments (5) No evidence favorable to the defendant was deprived him of his right to a fair trial and an impartial jury suppressed by the State. determination of his guilt. We have stated that “‘it is improper for a prosecuting attorney in a criminal case to state JA at 1874, 1878, 1896. his personal opinion concerning the credibility of witnesses or the guilt of a defendant.’” United States v. Krebs, 788 F.2d The Hamilton County Court of Appeals affirmed the lower 1166, 1176 (6th Cir. 1986) (quoting United States v. Daniels, court. Ohio v. Byrd, No. C-910340, 1992 WL 37761 (Ohio 528 F.2d 705, 709 (6th Cir. 1976)). Ct. App. 1 Dist., Feb. 26, 1992). The court of appeals noted that “[u]nder O.R.C. § 2953.21(C), the trial court has a However, we lack supervisory power over state courts, and statutory duty before granting [an evidentiary] hearing to our inquiry on habeas review is limited to determining only determine from the petition, the supporting affidavits, and the whether the improper comments constitute a due process violation. See Cook v. Bordenkircher, 602 F.2d at 119 n.5. As we noted earlier, in a due process analysis, we consider 19 Although the common pleas court did not explicitly state that “the fairness of the trial, not the culpability of the prosecutor.”

“Armstead did not lie about his charges” when discussing this claim, this Pritchett, 117 F.3d at 964 (quotation marks and citation is the clear import of its findings. The court explicitly found that omitted). We have not discovered, nor have the parties Armstead had no criminal charges pending at the time of trial and that he directed us, to any cases in which we have granted habeas served his six month sentence and was transferred to the State as a parole violator. The court concluded that Petitioner was not entitled to relief because “the factual premise underlying his claim is false.” JA at 1878- 79.

82 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 31

remarks were relatively isolated, and other evidence of record whether there are substantive grounds for relief.” Id. Petitioner’s guilt is strong, especially his confession to at *2. In particular, it found that the lower court properly Armstead. Although the comments were deliberately placed refused to hold an evidentiary hearing on Petitioner’s first before the jury, the prosecutor was merely speculating about cause of action (substantive lying) because “the record is possible inferences from the evidence. Finally, defense devoid of any evidence that the prosecution had any counsel did not object to these comments or ask for a curative knowledge that Armstead’s testimony was fallacious. Instead, instruction. In sum, we hold that these comments were not Petitioner offered evidence that served only to challenge the “so egregious so as to render the entire trial fundamentally credibility of Armstead as a witness for the state.” Id. unfair.” Pritchett, 117 F.3d at 964. Similarly, the court held that, with respect to the question of a deal, there was no issue of fact that required a hearing. The Petitioner also complains that the prosecutor directed court reasoned that (1) even assuming the “forged letter” was personal insults at him and suggested that the defense counsel authentic, it was inherently contradictory because it stated that was hiding something from the jury. The prosecutor referred Armstead testified “only” because of a deal, and then later to Petitioner as a “predator” three times during closing stated that he testified “only” because he wanted the truth to arguments and suggested to the jury that the defense counsel come out; (2) that the letter written by Prosecutor Breyer did was trying to hide something from it about the source of not recommend any particular action and clearly stated that blood found on a sweater alleged to have been worn by Armstead’s cooperation was attained without promise or Woodall. Although “gratuitous insults” of the defendant by inducement; (3) Elwood Johnson’s affidavit did not claim any a prosecutor are not to be encouraged, the prosecutor’s use of firsthand knowledge of a deal; and (4) the record contained no the term “predator” to describe Petitioner did not deprive him other evidence of a deal. Thus, an evidentiary hearing was of a fair trial. See Olsen v. McFaul, 843 F.2d 918, 930 (6th not required, because Petitioner failed to present sufficient Cir. 1988) (denying habeas relief and holding that the evidence to create an issue of fact that, if resolved in petitioner defendant had not been deprived of a fair trial Petitioner’s favor, would provide substantive grounds for where the prosecutor referred to the petitioner as a relief. “deadbeat,” “thief,” “creep,” and “liar”, the remarks were deliberate and not isolated, no curative instruction was given, D. District Court Habeas Proceedings and the evidence of guilt was not overwhelming). In addition, while it is “unprofessional . . . to make personal attacks on The district court deferred to the state courts’ factual opposing counsel,” Collins, 78 F.3d at 1040, the statement findings,20 but not until after it considered Petitioner’s several about defense counsel in this case was clearly a suggestion of a reasonable inference to be drawn from defense counsel’s presentation of evidence and argument. “Where there is 20 The district court presumed that the state courts’ findings were conflicting testimony, it may be reasonable to infer, and correct with respect to the “absence of any advance arrangement between accordingly to argue, that one of the two sides is lying.” Id. Armstead and the prosecutor for leniency, and the absence of any (citing United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. evidence that the prosecution was aware that Armstead’s testimony about 1991)). Byrd’s confession was false.” Byrd v. Collins, No. C-1-94-167, at 21 (S.D. Ohio Dec. 26, 1995). It is unclear whether, in dismissing Petitioner’s “pending charges” claim, the district court relied on the state Finally, Petitioner argues that during closing arguments the courts’ various findings that Armstead did not have any criminal charges prosecutor improperly vouched for the truthfulness of pending and did not perjure himself, or whether it relied on its own factual findings with respect to that issue. Nonetheless, the court apparently concluded that Armstead’s testimony was not false or 32 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 81

discovery requests and ordered further discovery in two pants, you have seen them all that they were all blue. I areas.21 speculate that that tan he wore, he had tan pants. I will tell you this, Nitz wasn’t concerned with what color pants Among other things, Petitioner’s document requests he had on, and he is trying to help the police. He made included: (1) “All documents . . . received or prepared by a mistake. He’s a kid, lucky to be alive today, given that the Hamilton County Prosecutor’s Office or the Hamilton one fault, that faulty recall. County Sheriff’s Department authorizing, requesting[,] directing or identifying Ronald Armstead, Virgil Jordan, Tr. at 1655. Marvin Randolph, Robert Jones, Leroy Tunstall, to be questioned and/or investigated in connection with the murder [W]e are missing two sleeves there (demonstrating). We of Monte Tewksbury, regardless of whether such individuals have this T-shirt altered, missing one sleeve, one of them testified at trial”; (2) all documents containing statements by dirtier than the other, and we recovered two sleeves from Sharon Tewksbury concerning the murder of Monte that truck, one a little cleaner than the other, and I submit Tewksbury; (3) all Prosecutor’s Office and Hamilton County to you we are missing a sleeve, and I will tell you where Auditor’s Office documents concerning payments from a that sleeve is. It is out in Hamilton County in the “Furtherance of Justice Account,” allegedly maintained by the northwest side with blood all over it. Now, where out Prosecutor’s Office, to Virgil Jordan, Ronald Armstead, or there? I don’t know. Maybe the same place Monte any other person designated by the prosecutor as having Tewksbury’s ring is. Maybe the same place the top of provided assistance in the investigation of Monte’s murder or that cash register is. But that is the explanation as to Petitioner’s capital trial; (4) all Sheriff’s Department, what happened to that other sleeve. Cincinnati Police Department, and Prosecutor’s Office documents relating to Armstead’s arrest in December 1982, Tr. at 1660-61. In our view, these statements constitute and his subsequent prosecution; (5) all APA, Probation arguably reasonable inferences from the evidence presented Department, and Prosecutor’s Office records pertaining to at trial. The prosecutor did not present these statements as Armstead’s pending parole revocation; and (6) all Sheriff’s factual assertions but, rather, as beliefs inferred from the Department and Prosecutor’s Office records relating to the evidence presented. For example, in stating that Petitioner use of Armstead or Jordan as jailhouse informants. possibly had been in the store previously and recognized Monte, the prosecutor emphasized that the jury could assume Petitioner’s deposition requests included, among others: (1) that Petitioner had seen Monte before, because the store was Prosecutors Breyer and Vollman, “regarding the investigation, near Petitioner’s boyhood home. including the review of files and internal documents However, even if the statements in question are considered impermissible comments on facts not in evidence, we conclude that they do not meet the stringent standard for misleading such that the prosecutor would be required to correct it; obtaining habeas relief set out above. We find that the instead it faulted defense counsel for failing to ask obvious questions remarks did not mislead the jury, because the prosecutor concerning Armstead’s supervised release status. qualified the remarks with statements such as “you would 21 have to assume,” “I speculate,” and “where out there? I don’t After an April 11, 1994, hearing and subsequent briefing, the know.” The jurors would know that these comments were district court denied without prejudice Petitioner’s original discovery motion, because it was made before filing of either Respondent’s return inferences, and they would not be confused into believing that of writ or Petitioner’s traverse. these comments were factual evidence. Moreover, the 80 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 33

assertions by Petitioner that the prosecutor commented on maintained by the prosecutor’s office pertaining to Ronald matters not in evidence, directed personal insults at Petitioner, Armstead, as well as interviews of Ronald Armstead, Virgil suggested to the jury that defense counsel was attempting to Jordan, Marvin Randolph and Robert Jones by investigators” mislead the jury, and vouched for the truthfulness of from the Sheriff’s Department and Prosecutor’s Office, and Armstead as a witness. We address each one in turn. “interviews and preparation of Ronald Armstead by Daniel J.

Breyer, Carl Vollman and all other Assistant Hamilton It is improper for a prosecutor, during closing arguments, County Prosecuting Attorney’s that led to” Armstead’s to bring to the attention of the jury any “purported facts that testimony; (2) Nancy Rankin and Andrew Hitz, regarding the are not in evidence and are prejudicial.” United States v. victim impact statements; and (3) Anderson Resnick,22 Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995) (citing United States regarding the name of the prosecutor who prosecuted v. Leon, 534 F.2d 667, 679 (6th Cir. 1976)). However, Armstead in relation to his December 1982 arrest. prosecutors “must be given leeway to argue reasonable inferences from the evidence.” United States v. Collins, 78 On October 12, 1995, the district court ordered the State to F.3d 1021, 1040 (6th Cir. 1996). The statements of the supplement the record with all records from the APA that prosecutor which Petitioner challenges involve speculation were related to the revocation of Armstead’s parole in 1983 regarding the clothing that Petitioner was wearing on the and the release of Armstead either from parole or from the night of the murder, the possible disposal of evidence that the sentence which he began to serve upon parole revocation. State never obtained, and the possibility that Petitioner The State complied with this request by providing its entire recognized Monte because Petitioner had been in the store file on Armstead, which consisted of 147 indexed exhibits prior to the night of the murder. comprising 225 pages. The district court also ordered the State to produce a copy of the victim impact statement. Each In particular, the prosecutor made the following statements: party was then to submit briefs addressing (1) whether, assuming that the victim impact statement went to the jury, Ironically, possibly, but more probably intentionally, this such submission was harmless error; and (2) whether an King Kwik and that intersection were about a block inference could be drawn from the parole records that away, as Officer Baker said, Detective Baker said, a Armstead testified falsely concerning his future incarceration, block away from Byrd’s boyhood home, a home where I and, if so, whether an inference could be drawn that the believe you would have to assume, and you can have that prosecutor was aware of such false testimony. The court map, but I think you would have to assume, giving all the deferred its decision on the materials requested in the balance close nature and location of that subdivision, a home of the discovery motion. The State provided a copy of the where Byrd, I’m sure, on numerous occasions was face statement, and on November 28, 1995, Petitioner deposed to face with Monte Tewksbury, saw him and recognized Nancy Rankin and Andrew Hitz. him.

After reviewing these records, the district court addressed Tr. at 1649. in its third opinion the facts relevant to the parole issue. We have already recounted these. See supra at pp. 15-16. The Now, also you heard Nitz’ testimony, 18 or 19 year old kid, primarily; I think he was that old. I’m not even that sure. He didn’t look that old. He was playing a video 22 Anderson Resnik was a paralegal employed by the Ohio Public game before midnight. You heard him say that the guy Defender’s Commission who attempted to find out the name of with the knife had tan pants. To be in that group, had tan Armstead’s prosecutor.

34 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 79

district court found that the presumption of correctness to Petitioner’s failure to testify.42 While this determination is applied to the state courts’ factual findings. The court first dispositive, we also note that these comments were relatively noted that the common pleas court was a court of competent isolated, were few in number, and were not objected to by jurisdiction, Petitioner and the State were parties to the post- defense counsel. conviction proceedings, and written, factual findings were made. See 28 U.S.C. § 2254(d). Citing Sumner v. Mata, 449 During the penalty phase, Petitioner did not remain U.S. 539, 597 (1981), and Nichols v. Perini, 818 F.2d 554, completely silent. Instead, he made an unsworn statement to 557 n.3 (6th Cir. 1987), the court flatly rejected Petitioner’s the jury in which he expressed remorse for the incident but contention that, unless the state court held an evidentiary did not directly admit that he was the one who actually hearing, there had been no “hearing” for purposes of stabbed Monte. We agree with the district court that the determining whether the state courts’ factual findings are prosecutor’s penalty phase comment to which Petitioner now entitled to deference under 28 U.S.C. § 2254(d). The court objects was a fair response to Petitioner’s unsworn statement. further concluded that none23of the eight exceptions listed in The prosecutor was not commenting on Petitioner’s failure to § 2254(d) were applicable. Using the state courts’ factual present sworn testimony. Instead, the prosecutor merely findings, the district court held that the prosecutor did not suggested to the jury that Petitioner’s expression of remorse was “shallow,” because Petitioner did not accept more complete responsibility for his actions and for Monte’s death.

23 Case law permits comments that are made in response “to the The district court must defer to the factual findings of the state argument and strategy of defense counsel.” Butler, 686 F.2d courts unless one of the following exceptions applies: at 1172; see also Lockett v. Ohio, 438 U.S. 586, 595 (1978)

(1) the merits of the factual dispute were not resolved in the (holding that the prosecutor’s closing remarks that the State court hearing; evidence was “unrefuted” and “uncontradicted” added (2) the factfinding procedure employed by the State court was nothing to the impression that had already been created by the not adequate to afford a full and fair hearing; defendant’s refusal to testify after the jury had been promised (3) the material facts were not adequately developed at the State a defense by her counsel and told that the defendant would court hearing; take the stand). In short, we find no constitutional violation. (4) the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) the applicant was an indigent and the State court, in D. Various Claims of Improper Prosecutorial deprivation of his constitutional right, failed to appoint counsel Argument to represent him in the State court proceeding; (6) the applicant did not receive a full, fair, and adequate hearing Petitioner also challenges various allegedly improper in the State court proceeding; or arguments, which he contends deprived him of a fair trial. (7) the applicant was otherwise denied due process of law in the Some of these claims, such as comments on Petitioner’s State court proceeding; (8) or unless that part of the record of the State court proceeding failure to testify and victim impact have been addressed in which the determination of such factual issue was made, above. The remaining instances complained of include pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part 42 of the record as a whole concludes that such factual Furthermore, the comment alluding to Petitioner as a “predator” determination is not fairly supported by the record. who was not “genuine” cannot reasonably be said to be a reference to his failure to testify. Nowhere in this comment does the prosecutor imply that 28 U.S.C. § 2254(d). this description of Petitioner was the result of his failure to testify.

78 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 35

as comments on the defendant’s failure to testify, “but knowingly suborn perjury. The court also held that, because whether the jury necessarily would have done so.” Id. These the state courts’ findings are binding, further discovery on standards have not been met here. these issues was not warranted, as it would not lead to an evidentiary hearing or other independent fact-finding.

As the district court noted, the comments were made during a closing argument that focused on the reasons why E. Analysis of the State Courts’ Factual Findings Armstead, a jailhouse informant, should have been viewed by the jury as a credible witness. Armstead’s credibility was "[W]e presume a state trial or appellate court's conclusions clearly at issue, and the prosecutor had a legitimate reason for as to facts are correct unless the petitioner demonstrates by attempting to focus on the strengths of his testimony during convincing evidence that the facts are erroneous under one of closing argument. Moreover, Armstead’s testimony regarding the eight conditions enumerated in 28 U.S.C. § 2254(d)(1-8)." the “bragging” that was done by Petitioner, Brewer, and McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996) Woodall about the murder, as well as his testimony regarding (citing Sumner v. Mata, 455 U.S. 591, 597 (1982) (per Petitioner’s comments while watching P.M. Magazine both curiam)). Petitioner has provided no evidence to establish included references to other persons having been present. Tr. that any of the § 2254(d) exceptions apply in his case. at 1560 (“they bragged to everybody over there that was in Therefore, we must defer to the state courts’ factual findings. that area”); Tr. at 1563 (“Well, at the time that [the P.M. Magazine program] came on everybody stopped what they On brief and at oral argument, Petitioner strenuously argued was doing just to watch the program”). This circuit has held that the state courts’ factual findings are not entitled to that “[g]eneral references to evidence as uncontradicted, while deference, because the state courts did not order discovery. not recommended, may not reflect on the defendant’s failure Specifically, Petitioner contends: to testify where witnesses other than the defendant could have contradicted the evidence.” Raper v. Mintzes, 706 F.2d 161, No discovery was ordered.[24] Byrd filed motions asking 164 (6th Cir. 1983). Petitioner was not the only person who the trial court to order the investigative files of the law could have been called to refute the fact that Petitioner made enforcement authorities who investigated his case to be such statements, and the prosecutor could legitimately argue copied and incorporated into the files of the Hamilton that Armstead should be deemed a credible witness, because County Prosecutor’s Office and that the prosecutor’s files the defense failed to call 41 any witnesses from the Workhouse be copied and filed with the trial court. The files of the to refute his testimony. Hence, we conclude that the investigators and prosecutor would have been invaluable prosecutor’s comments did not constitute indirect references to assess Byrd’s claims of perjured testimony and Brady violations. The trial court refused to grant or even hear Byrd’s motions.

41 Although a prosecutor may not comment on the failure of a criminal defendant to produce evidence, the prosecutor may “summarize the evidence and comment on its quantitative and qualitative significance.” United States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994) (citing United States v. Drake, 885 F.2d 323, 323-24 (6th Cir. 1989)). In Petitioner’s case, the prosecutor’s comment that Armstead’s testimony 24 was uncontradicted was a permissible comment on the quality of the Of course, Petitioner conveniently forgets to mention the August evidence presented. 5th order.

36 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 77

Petitioner’s Br. at 44-45.25 Thus, Petitioner argues, he has It is well established that a prosecutor’s direct reference to established the exceptions listed in 28 U.S.C. § 2254(d)(1), a criminal defendant’s failure to testify is a violation of that (2), and (6). We disagree. defendant’s Fifth Amendment privilege against compelled self-incrimination. Griffin v. California, 380 U.S. 609 Petitioner cannot show that “the merits of the factual (1965); Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988). dispute were not resolved in the State court hearing.” However, indirect references on the failure to testify also can § 2254(d)(1). In fact, this contention is contrary to violate the Fifth Amendment privilege. When the alleged Petitioner’s assertion that the state courts came to the wrong infringements consist of such references, “a reviewing court conclusions on the merits. In Fowler v. Jago, 683 F.2d 983 must look at all the surrounding circumstances in determining (6th Cir. 1982), we discussed the showing necessary to meet whether or not there has been a constitutional violation.” this exception. We made clear that we defer where the Butler v. Rose, 686 F.2d 1163, 1170 (6th Cir. 1982) (en banc). findings are “sufficient to enable the district court to fulfill its The court must undertake a “probing analysis of the context obligation to determine that [the facts] are supported by the of the comment.” United States v. Robinson, 651 F.2d 1188, evidence and that the correct standards of law were applied.” 1197 (6th Cir. 1981). This “probing analysis” involves the Id. at 989. In the present case, the state court clearly found consideration of four factors: that there was no deal, that there was no credible evidence that Armstead lied about Petitioner’s confession, and that, at (1) Were the comments “manifestly intended” to reflect the time of Petitioner’s trial, Armstead did not have any the accused’s silence or of such a character that the jury pending criminal charges. The court also specified the would “naturally and necessarily” take them as such; evidence upon which it relied. Thus, § 2254(d)(1) does not apply. Similarly, Petitioner has failed to show either that “the (2) Were the remarks isolated or extensive; factfinding procedure employed by the State court was not adequate to afford a full and fair hearing” or that “the (3) Was the evidence of guilt otherwise overwhelming; applicant did not receive a full, fair, and adequate hearing in [and] the State court proceeding.” § 2254(d)(2), (6). Petitioner simply failed to provide a sufficient quantum of cogent (4) What curative instructions were given, and when. evidence to warrant an investigation of the prosecutor’s work product and other trial preparation files. United States v. Moore, 917 F.2d 215, 225 (6th Cir. 1990)

(quoting Spalla v. Foltz, 788 F.2d 400, 404-05 (6th Cir.

The Ohio post-conviction statute in effect at the time 1986)). We will begin with the prosecutor’s comments Petitioner was pursuing his state post-conviction remedies regarding Armstead’s testimony. provided:

We are convinced that the statements concerning Armstead were not manifestly intended to reflect on Petitioner’s failure to testify at trial, nor would the jury have understood the 25 statements as such. This Circuit has explained that we will Petitioner argues that this further discovery would have permitted him to show that Armstead’s testimony was false; why prosecutors chose not find “manifest intent” where some other explanations for to have only Armstead, rather than also Randolph and Jordan, testify the prosecutor’s comments are equally possible. United against Petitioner; that the prosecution knew that Armstead had a pending States v. Ursery, 109 F.3d 1129, 1135 (6th Cir. 1997). In parole revocation hearing; and that Armstead, in fact, had cut a deal prior addition, we have made clear that the question is not whether to testifying. As discussed below, Petitioner’s fishing expedition was appropriately cut short. the jury possibly or even probably would view the statements 76 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 37

marks and citation omitted); Serra, 4 F.3d at 1355. Hence, (A) Any person who has been convicted of a criminal we reject this claim as well. offense . . . claiming that there was such a denial or infringement of his rights as to render the judgment void C. Comments on Failure to Testify or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at Petitioner contends that the prosecutor violated his Fifth any time in the court that imposed sentence, stating the Amendment right against self-incrimination by making grounds for relief relied upon, and asking the court to comments that allegedly pertained to Petitioner’s failure to vacate or set aside the judgment or sentence or to grant testify at trial. In particular, Petitioner complains of other appropriate relief. The petitioner may file a comments made during closing arguments at both the guilt supporting affidavit and other documentary evidence in and sentencing phases of his trial. During the closing support of the claim for relief. argument of the guilt phase of the trial, the prosecutor remarked that the State’s key witness, Ronald Armstead, was . . . credible because “his testimony is uncontradicted, no one has disputed Armstead’s testimony.” Tr. at 1659. The prosecutor (C) Before granting a hearing, the court shall determine also stated that “[w]itnesses pay a price to testify.” Tr. at whether there are substantive grounds for relief. In 1682. He followed that comment with a reference to making such a determination, the court shall consider, in Armstead and the statement that “you know there’s something addition to the petition and supporting affidavits, all the real genuine about our people, not all of them, not the files and records pertaining to the proceedings against the predator [i.e. Petitioner].” Tr. at 1682. Petitioner contends petitioner, including, but not limited to, the indictment, that these comments were an intentional attempt to draw his the court’s journal entries, the journalized records of the failure to testify to the jury’s attention. During the closing clerk of the court, and the court reporter’s transcript. . . . argument at the penalty phase, Petitioner made an unsworn If the court dismisses the petition, it shall make and file statement to the jury in which he stated that he was “sorry for findings of fact and conclusions of law with respect to what happened,” and “sorry for Mr. Tewksbury and his such dismissal. family.” Tr. at 1777. However, Petitioner also stated that he did not know exactly what was in his mind that night, and that . . . he had been drinking and using drugs. Further, Petitioner admitted that he had made a “tragic” mistake. Tr. at 1778. (E) Unless the petition and the files and records of the The prosecutor subsequently described these comments as case show the petitioner is not entitled to relief, the court “shallow.” Tr. at 1797. The prosecutor then asked the jury, shall proceed to a prompt hearing on the issues, hold the rhetorically: “Did you hear from this man’s mouth that he hearing, and make and file written findings of fact and was the principal offender that plunged that weapon into conclusions of law upon entering judgment. Monte Tewksbury? Nothing from him, not one shread [sic]. Yet he wants to spook you that, you know, I have had this Ohio Rev. Code Ann. § 2953.21 (Anderson 1987). problem, that problem. That’s nonsense.” Tr. at 1798. Petitioner now argues that this was a reference to his failure It is true that, under Ohio law, courts are not required to to present sworn testimony during the penalty phase and to hold evidentiary hearings in all post-conviction cases. See acknowledge his guilt as the principal offender. We disagree Sherills v. Cuyahoga County Court of Common Pleas, 650 for the reasons explained below. N.E.2d 899, 900 (Ohio 1995). Where a petition alleges facts which, if proved, would entitle the petitioner to relief, but the 38 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 75

files and records of the case negate the existence of facts introduced in the guilt phase as well. See Black v. Collins, sufficient to entitle the petitioner to relief, the trial court may 962 F.2d 394, 408 (5th Cir. 1992) (holding that victim impact so find and summarily dismiss the petition; in so doing, argument presented during both guilt and sentencing phase however, the court should specify the portions of the files and did not render trial fundamentally unfair). See also Bennett v. records that negate the existence of the petitioner’s alleged Angelone, 92 F.3d 1336, 1348 (4th Cir. 1996) (“Thus Payne facts. See State v. 26Perry, 226 N.E.2d 104,105 (Ohio 1967) suggests that limited victim background evidence may be (syllabus para. 3). To merit an evidentiary hearing, a admitted — indeed, may have to be admitted — at the guilt petitioner must submit evidentiary documents containing phase of trial.”). Moreover, as the Seventh Circuit has sufficient cogent and operative facts that demonstrate remarked, “[w]e must recognize that the state should not be substantive grounds for relief. See State v. Combs, 652 required to present . . . closing arguments that are devoid of N.E.2d 205, 210 (Ohio Ct. App. 1994); State v. Smith, 506 all passion.” Williams v. Chrans, 945 F.2d 926, 947 (7th Cir. N.E.2d 1205, 1208 (Ohio Ct. App. 1986). And it is true that, 1991). according to caselaw, Ohio post-conviction courts are not statutorily required to compel discovery so that a petitioner We have recognized that “[a] prosecutor is permitted a may gather evidence to prove that a hearing is warranted. See certain degree of latitude in summation.” United States v. Smith, 506 N.E.2d at 1208. Nonetheless, if discoverable Barker, 553 F.2d 1013, 1025 (6th Cir. 1977). In our view, it materials supportive of Petitioner’s claims actually do exist, is far from clear that the statements complained of were fault for failure to obtain them almost certainly lies not with improper at all. In any event, even assuming the statements Ohio’s post-conviction relief system, but rather with evoking sympathy for the Tewksbury family were improper, Petitioner’s own post-conviction counsel. they do not meet the stringent standard necessary for reversal of a conviction on habeas. The remarks were relatively On October 10, 1990, the Ohio Supreme Court held that a isolated, were not extensive, and were only a small part of a criminal defendant who has exhausted his direct appeals is a closing argument that focused heavily on summarizing the “person” who may avail himself of the State’s public records evidence presented at trial.40 The prosecutor began his law in Ohio Rev. Code § 149.43 in order to support a petition closing argument by asking the jurors to “bear in mind what for post-conviction relief. See Ohio ex rel. Clark v. City of I say is not evidence,” and was intended only “to recreate . . . Toledo, 560 N.E.2d 1313, 1315 (Ohio 1990).27 Obtainable the scenario which I believe the evidence has indicated did, in public records include law enforcement investigatory files. fact, occur.” Tr. at 1643. When combined with the See Ohio ex rel. Johnson v. City of Cleveland, 603 N.E.2d instruction from the trial judge that the closing arguments 1011, 1012-13 (Ohio 1992). Thus, this statutory procedure were not evidence, we simply cannot hold that the provided Petitioner with access to most of the records he prosecutor’s isolated comments rendered “the entire trial fundamentally unfair.” Pritchett, 117 F.3d at 964 (quotation

26 A post-conviction petition may also be dismissed without a hearing where the claims raised therein are barred by res judicata. See State v. Perry, 226 N.E.2d 104, 106 (Ohio 1967) (syllabus para. 9). 40 In complaining of the prosecutor’s arguments relating to the 27 victimization of Monte Tewksbury, Petitioner only cites to a total of four We recognize that the Ohio Supreme Court subsequently overruled pages of transcript. The closing arguments by the prosecutor at the guilt Clark on September 15, 1994. See Ohio ex rel. Steckman v. Jackson, 639 phase comprised over 30 pages of transcript. Cf. Rodriguez v. Peters, 63 N.E.2d 83, 85 (Ohio 1994) (syllabus para. 6). However, Steckman F.3d 546, 565 (7th Cir. 1995) (victim impact comments comprising one obviously had no impact upon Petitioner’s case. of 35 pages of closing argument transcript did not render trial unfair).

74 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 39

evidence.” Byrd v. Collins, No. C-1-94-167, at 27 (S.D. Ohio sought. Obviously, what Petitioner could not access pursuant Nov. 2, 1995). We agree. Moreover, even assuming the to Ohio Rev. Code § 149.43 was work product material. introduction of this videotape into evidence was improper, it However, Petitioner did use this procedure successfully to surely would not rise to the level of a due process violation. obtain visitation records from the Sheriff’s Department. Any prejudice to Petitioner resulting from the showing of this Moreover, the prosecutor represented that his office gave videotape would result not from the tape itself, but from the Petitioner access to all of the sheriff’s investigatory files. But clearly admissible testimony regarding Petitioner’s confession even if this were not the case, the process set forth in Ohio to the crime and callous remarks about his victim that were Rev. Code § 149.43 provided Petitioner with the ability to made while watching the television interview in the obtain such records and, given that the State has the burden of Cincinnati Workhouse. providing a public records exception, there does not appear to be any reason why Petitioner could not have requested from Petitioner also claims that, during closing argument at the the prosecutor information that was not specifically compiled guilt phase, the prosecutor used inflammatory arguments to in reasonable anticipation of his trial or other non-work generate sympathy for Monte and his family. The statements product materials. Similarly, it appears that Petitioner could complained of are as follows: have obtained records concerning the Furtherance of Justice Account. However, it appears from the record that such After stripping Tewksbury of his personal possessions, requests simply were never made. his belongings, the store’s belongings, and Tewksbury’s pride, they stripped him of his life, his breath, and his Moreover, notwithstanding the lack of any statutory blood. requirement to do so, Petitioner’s post-conviction trial court provided Petitioner with other significant opportunities for Tr. at 1650. discovery. From August 5, 1988, until October 2, 1989, there was a court order of record permitting him to obtain any and Monte Tewksbury will never see the sun. Monte all records from any organization or person, public or private, Tewksbury will never feel the chill of fall. He will never “which concern John W. Byrd.” See supra at p. 20. Although watch his youngsters grow. He will never break bread this language is quite broad, Petitioner’s counsel’s use of this with his wife . . . . order apparently focused primarily on obtaining the victim impact statement. At the December 2, 1988, hearing, the Tr. at 1679. We are unpersuaded. court repeatedly asked counsel, “What do you want?”

The U.S. Supreme Court has held that there is no per se bar Counsel’s only response concerned the victim impact to the introduction of victim impact evidence and argument. statement and a brief mention of emergency room records. See Payne v. Tennessee, 501 U.S. 808, 827 (1991). “In the Nothing else was requested. Notably, at this very hearing, the majority of cases, . . . victim impact evidence serves entirely court explicitly refused to revoke that discovery order, legitimate purposes. In the event that evidence is introduced although urged to do so by the prosecutor. that is so unduly prejudicial that it renders the trial Despite the above-mentioned opportunities, Petitioner fundamentally unfair, the Due Process Clause of the failed to produce any reliable evidence that would support his Fourteenth Amendment provides a mechanism for relief.” Id. claim. Petitioner points to only one explicit limit placed on at 825. While Payne was announced in the context of the his discovery pursuant to the August 5th order; i.e., sentencing phase of a capital trial, its rationale has been Petitioner’s access to the victim impact statement. The applied to reject challenges to victim impact evidence 40 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 73

common pleas court denied Petitioner access to it, because (1) might have on them.39 This type of questioning is not there was absolutely no evidence that the jury received a copy improper and certainly does not constitute prosecutorial of it (as well as significant evidence to the contrary), and (2) misconduct. the statement had no other relevance to the post-conviction proceedings. Notwithstanding the foregoing, the district court The prosecutor introduced into evidence at Petitioner’s trial permitted discovery in this area, and Nancy Rankin, the a videotape of a television interview with Monte’s family. custodian of the victim-impact statement, confirmed that the This interview featured Monte’s daughter, who was a singer. statement never went to the trial court or the jury. It was filmed the day before the murder, and both Monte and his wife were present and were a part of the interview.

With respect to Petitioner’s requests for the sheriff’s Petitioner contends that this was a “highly sympathetic and records, the record demonstrates that Petitioner was provided emotion-charged portrayal of the victim and the victim’s with the documents he sought with the exception of the family” and constitutes an improper attempt by the prosecutor attorney log book. The missing visitation information was to inflame the jury against Petitioner. Petitioner’s Br. at 135. essentially duplicative of that which Petitioner was provided. However, the State’s key witness, Ronald Armstead, testified Petitioner received copies of each individual inmate’s that, while watching this television interview in jail, he heard visitation card; the attorney log and other visitation records Petitioner confess to the crime. The district court noted that, would only confirm that the information on those cards was since the videotaped interview “was the centerpiece of the accurate. Holding an evidentiary hearing on the matter would arena where [Petitioner] allegedly confessed[,] . . . it was have been pointless, as the Sheriff’s Office had conducted a not wholly improper for the prosecutor to seek to introduce, search in December 1988, provided Petitioner with copies of nor for the trial judge to permit the introduction of, that those documents found, fully explained its document retention and destruction process, and provided proof that the missing documents were not among those destroyed on March 39 8, 1989. Moreover, assuming the missing documents were, In fact, when one juror responded that the evidence might affect in fact, destroyed at some other time, neither an evidentiary her emotionally, the prosecutor asked whether she could still be fair and hearing nor further discovery would have resurrected them. impartial, to which she answered that she could. We note the following exchange:

In addition, it is noteworthy that Petitioner’s failure to obtain these records before they were either destroyed or misplaced Q: A knife was used in this killing. Would that bother you to is due, in large part, to his own delay in seeking them, since see or hear evidence where a man was stabbed with a knife in he waited more than five years even to attempt to obtain them. the side and bled to death? I know it’s not a pleasant thing, but The Sheriff’s Department records pertaining to the murder from the standpoint you couldn’t be a fair and impartial juror? investigation were made available by the Prosecutor’s Office A: I don’t know, I think it would bother me. in May 1989. This more than fulfilled the first of Petitioner’s two October 27th motions. Q: Mrs. Thompson, I’m not suggesting to you that it wouldn’t bother you. What I’m saying to you, would the bother be such that you couldn’t be a fair and impartial juror? A: No. Q: That’s all I’m asking.

Tr. at 623 (voir dire of Juror Thompson).

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emotionally charged victim impact arguments during closing When Petitioner still failed to sustain his initial burden of arguments at the guilt phase. proof more than a year after obtaining the August 5th order,28 the common pleas court properly followed Ohio law and Upon review of the transcripts of the voir dire questions denied an evidentiary hearing. The Hamilton County Court and comments cited by Petitioner as illustrative of of Appeals affirmed the trial court’s conclusion that no misconduct, it is clear that the context and purpose of these evidentiary hearing was warranted under the statute. See questions and comments were to ascertain whether or not the State v. Byrd, No. C-890659, 1991 WL 17781, at *2 (Ohio Ct. prospective juror could set aside his or her emotions and App. 1 Dist., Feb. 13, 1991) (affirming denial of the motion decide the case impartially. This is certainly proper. Indeed, for a new trial). a trial judge “retains great latitude in deciding what questions should be asked on voir dire.” Mu’Min v. Virginia, 500 U.S. What Petitioner really wants is access to the prosecutor’s 415, 424 (1991). Hence, “[s]o long as the court ensured that work product and trial preparation files. Unfortunately for the defendant or defendants had ‘a fair trial by a panel of Petitioner, he failed to provide the state courts with a impartial, “indifferent” jurors,’ reversal is not mandated.” sufficient reason to force the Prosecutor’s Office to turn over United States v. Phibbs, 999 F.2d 1053, 1071 (6th Cir. 1993) its files and conduct an in camera review. Such a review (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1960)). might have been warranted, for instance, if Petitioner had supplied Furtherance of Justice Account records showing that Petitioner cites the following question as evidence of Armstead had received money from the State, or at least misconduct: showing that Jordan had received money for testifying at the trial of Petitioner’s co-defendant, Brewer. However, Secondly, I don’t know if you will be bothered by this or Petitioner’s attempt to obtain such documents during the state not. Some people are bothered by the method of death post-conviction proceedings appears to have been feeble at and how a person dies, and as I previously indicated, we best. Despite the fact that Petitioner’s post-conviction are talking about a knife this long (indicating), about a counsel knew that the Hamilton County Auditor’s Office blade that long being stuck in a man and him bleeding would have records of the prosecutor’s disbursements from through his liver, and bleeding internally. Do you have a stomach for that, to listen to the coroner testify about the method of death? Tr. at 804-05. In response to an affirmative answer, the 28 Although he claims to the contrary, not one affidavit Petitioner prosecutor then asked, “You will be able to set that aside, presented contained any evidence within the affiant’s personal however gruesome the details are, and get to the truth because knowledge. Each affiant’s statement —whether it concerned the alleged that is what we are all here for? [,]” to which the juror deal or the alleged concocted confession—was nothing more than hearsay. All of the admissible “evidence” submitted, e.g., the “forged”

answered “[y]es.” Tr. at 805. This demonstrates that the letter allegedly written by Armstead, the post-trial letters from the prosecutor, far from trying to inflame prospective jurors prosecutor to the APA, and the prosecutor’s own affidavit, tended to against Petitioner, was attempting to determine whether the establish that no deal existed. The “Armstead” letter was internally prospective jurors could remain fair and objective regardless inconsistent, was determined by a handwriting expert to be a forgery, and of the emotional impact that the facts of this brutal crime was not supported by any evidence authenticating it. The letters from the Prosecutor’s Office, as well as the prosecutor’s own affidavit, all indicated that Armstead’s testimony was obtained without any promise or inducement from the State, and expressed a concern for Armstead’s physical safety.

42 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 71

such an account, it appears that he made no attempt to obtain aggravating circumstances outweighed any mitigating factors. these documents through a public records action. Petitioner’s brief cites as an example the following question:

“[I]f you feel, based upon everything that you are instructed Similarly, such a court review might have been warranted on by the law that this defendant’s life should be taken in the had Petitioner obtained an affidavit from Jordan stating that electric chair for the incident he did on April 17, 1983, you he had conspired with Armstead to fabricate a story and had could do it. Is that what you are saying?” Tr. at 259. This conveyed that information to the prosecutor, or that Jordan question only inquired into whether the prospective juror had personal knowledge that Armstead received payment or could follow the law. It is not intended to weed out those some other sort of deal in exchange for his testimony. with any personal doubts about the use of capital punishment. Petitioner’s attempt to provide information about Jordan via The answer the juror gave, and the prosecutor’s response, are the affidavit of Jane Perry is insufficient: like the other telling in this regard. The juror answered, “Yes, if the affidavits, it is nothing more than hearsay. Moreover, given evidence warrants it [,]” to which the prosecutor responded, that Perry’s alleged conversation with Jordan took place in “That’s the ground rules. . . . Whatever I talk to you about October 1988, in the midst of Petitioner’s state post- is if the evidence warrants it.” Tr. at 260. The prosecutor conviction proceedings, the fact that Perry’s affidavit was was inquiring only whether the juror could follow the law. never presented to the state post-conviction courts, and was Needless to say, this is entirely permissible. The questioning not even made until October 1995, would cause most courts of the other jurors was similar in nature.38 Therefore, to raise at least one eyebrow. Petitioner’s claim must fail.

As the district court determined, it was not unreasonable for B. Victim Impact Evidence and Argument Ohio to forbid Petitioner’s access, even via in camera review, to the prosecutor’s work product notes of conversations with Petitioner also argues that the prosecutor improperly informants when Petitioner had made no credible showing injected victim impact evidence and arguments into the trial. that those documents would contain information indicating In particular, Petitioner alleges that the prosecutor (1) made Armstead had lied or cut a deal with the prosecutor. To hold comments during voir dire about the nature and manner of the otherwise would in effect mandate that every time a petitioner murder, (2) introduced into evidence a videotape of a makes an unsubstantiated allegation that his trial was television interview with the victim’s family, and (3) made constitutionally infirm, the post-conviction court must conduct an evidentiary hearing and order the prosecution’s files to be opened.29 Given the fact that Petitioner failed to 38 present any admissible evidence supporting his position, For example, one juror answered the prosecutor’s question of despite opportunities for discovery, we cannot say that the whether she could impose the death penalty where the law merited doing so by stating that “I believe that would be my duty to do.” Tr. at 963 (voir state court’s factfinding procedures were unfair or that dire of Juror Hall). The trial judge had asked her earlier whether she Petitioner was not afforded a fair hearing. could fairly consider the death penalty, and she stated that it was “not simple” for her. Tr. at 958. In spite of these possible doubts about her views of the death penalty, the prosecutor did not challenge her being seated on the jury, because she had indicated that she could follow the law despite any personal doubts. This demonstrates that the prosecutor was 29 not attempting to screen from the jury everyone who had any doubts about Even with the expanded record including all of Armstead’s parole capital punishment. Rather, the prosecutor was merely attempting to records, Petitioner still fails to point to any evidence indicating that a deal ensure that each juror would be able to apply the law to the facts in the might have existed. case.

70 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 43

Petitioner’s allegations of prosecutorial misconduct can be After considering the post-conviction petition, the affidavits grouped into five categories. Petitioner contends that the Petitioner submitted in support of the petition, and the entirety prosecutor (1) improperly “death-qualified” the jury during of the record, the common pleas court made specific findings voir dire; (2) improperly injected victim impact evidence and of fact and conclusions of law, denied an evidentiary hearing, argument into the trial; (3) improperly commented on and dismissed the petition. The Hamilton County Court of Petitioner’s failure to testify; (4) made various improper and Appeals reviewed these findings and conclusions, and inflammatory arguments during closing arguments; and (5) affirmed the trial court in all respects. The appellate court’s improperly appealed to the jury’s sense of societal duty to opinion included specific factual findings and concluded that impose the death penalty. We will address each of these in an evidentiary hearing was not required, because Petitioner turn. had failed to present evidence that he had a substantive ground for relief. See State v. Byrd, No. C-910340, at 5 (Ohio A. “Death-Qualification” of Jury Ct. App. 1 Dist., Feb. 26, 1992).

Petitioner argues that the prosecutor improperly secured a On habeas review, the district court concluded that the commitment from each juror that the juror could impose the factual findings of the state courts were entitled to the death penalty in Petitioner’s case. In Lockhart v. McCree, presumption of correctness, because Petitioner had failed to 476 U.S. 162, 173 (1986), the Supreme Court held that “the establish any of the eight exceptions contained in 28 U.S.C. Constitution does not prohibit the States from ‘death § 2254(d). The essence of Petitioner’s claim on appeal is that qualifying’ juries in capital cases.” The State is allowed to the record in the state court proceedings, and therefore in the remove, for cause, “prospective jurors whose opposition to district court, was inadequately developed and that he is the death penalty is so strong that it would prevent or entitled to discovery and an evidentiary hearing in federal substantially impair the performance of their duties as jurors.” court in order to provide substance to the claims raised in his Id. at 165; accord Morgan v. Illinois, 504 U.S. 719, 733 habeas petition. However, the conclusion is inescapable that, (1992); Buchanan v. Kentucky, 483 U.S. 402, 414 (1987). if the state court record was inadequately developed, it was so The Court has held that a juror may not be excluded merely because Petitioner failed to pursue the avenues that were “because they voiced general objections to the death penalty available to him to develop it. or expressed conscientious or religious scruples against its infliction.” Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). If a habeas petitioner has failed to develop the factual basis However, instead of prohibiting inquiry into whether a of a claim in the state trial court, petitioner must show cause prospective juror could impose the death penalty if the case so and prejudice or a fundamental miscarriage of justice before merited, these principles “demand inquiry into whether the relitigating the facts. See Keeney v. Tamaro-Reyes, 504 U.S. views of prospective jurors on the death penalty would 1, 11-12 (1992); Mitchell v. Rees, 114 F.3d 571, 579 (6th Cir. disqualify them from sitting.” Morgan, 504 U.S. at 731. 1997), cert. denied, 522 U.S. 1120 (1998).30 We find no A review of the record in this case indicates that the prosecutor was well within the scope of these governing 30 principles in his questioning of prospective jurors. The We note that, in the Antiterrorism and Effective Death Penalty Act prosecutor merely asked the jurors whether they could impose of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, Congress added an evidentiary hearing provision to the habeas corpus statute. Section the death penalty if they believed that Petitioner was guilty of 2254(e)(2), as amended by the AEDPA, now provides as follows: aggravated murder beyond a reasonable doubt and that the (2) If the applicant has failed to develop the factual basis of a 44 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 69

indication that Petitioner attributes this failure to anything 602 F.2d 117, 119 (6th Cir. 1979)); see Darden, 477 U.S. at other than Ohio’s statutory and procedural requirements and 181; Serra, 4 F.3d at 1355; Angel v. Overberg, 682 F.2d 605, the state courts’ interpretation and utilization of them. 608 (6th Cir. 1982) (en banc). Indeed, our case law However, as we have exhaustively recounted, Petitioner has demonstrates the “extreme nature of prosecutorial misconduct failed to show that Ohio’s post-conviction relief system required for a federal court to issue the writ.” Angel, 682 F.2d caused his failure to conduct adequate discovery. Perhaps at 609 (quoting Cook, 602 F.2d at 102). Petitioner’s post-conviction counsel negligently failed to pursue potential avenues of discovery adequately. Even so, The factors to consider in determining whether this this is clearly not a sufficient ground for relief, as the stringent standard has been met in a habeas case37have been Supreme Court has held that ineffective assistance of post- articulated consistently by this circuit as follows: conviction counsel cannot constitute “cause.” See Coleman v. Thompson, 501 U.S. 722, 755-57 (1991). The Court also [W]e consider the degree to which the remarks has noted that “[i]t is hardly a good use of scarce judicial complained of have a tendency to mislead the jury and to resources to duplicate factfinding in a federal court merely prejudice the accused; whether they are isolated or because a petitioner has negligently failed to take advantage extensive; whether they were deliberately or accidentally of opportunities in state-court proceedings.” Keeney, 504 placed before the jury, and the strength of the competent proof to establish the guilt of the accused. Pritchett, 117 F. 3d at 964 (quotations and citations omitted).

claim in State court proceedings, the court shall not hold an Important to our analysis as well is the principle that relief evidentiary hearing on the claim unless the applicant shows will not be granted unless “the prosecutor’s statement likely that— had a bearing on the outcome of the trial in light of the (A) the claim relies on— strength of the competent proof of guilt.” Id. (citing Angel, (i) a new rule of constitutional law, made 682 F.2d at 608). Finally, “each case turns on its own unique retroactive to cases on collateral review by the facts and . . . only a full review will reveal whether a Supreme Court, that was previously constitutional violation took place.” Cook, 602 F.2d at 120. unavailable; or To constitute a denial of due process, the misconduct must be (ii) a factual predicate that could not have “so pronounced and persistent that it permeates the entire been previously discovered through the exercise of due diligence; and atmosphere of the trial.” Pritchett, 117 F.3d at 964 (internal quotations omitted). For the reasons set forth below, we must (B) the facts underlying the claim would be sufficient conclude that Petitioner’s claims do not meet this demanding to establish by clear and convincing evidence that but standard. for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 37 We note that other tests have been used in the context of a direct § 104, 110 Stat. at 1219. Where the omission of material facts from the appeal of a federal criminal conviction. See United States v. Carroll, 26 state court record is attributable to the habeas petitioner, the new F.3d 1380 (6th Cir. 1994). These tests, however, are not applicable to the legislation both codifies and narrows the standard set forth in Keeney. present case, because, as noted above, we lack supervisory powers over See Weeks v. Bowersox, 119 F.3d 1342, 1354 n.12 (8th Cir. 1997), cert. state court proceedings. Our standard of review on habeas review is denied, 522 U.S. 1093 (1998). Of course, the provisions of the AEDPA limited to whether there has been a denial of due process. In this respect, are not applicable to Petitioner’s case. See Lindh v. Murphy, 521 U.S. this Court has been consistent in its application of the standards and 320 (1997). factors on which we rely to resolve Petitioner’s claims.

68 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 45

Having rejected each of the claims of ineffective assistance U.S. at 9. To hold otherwise in Petitioner’s case would not of appellate counsel presented above, we now consider in Part only be contrary to well-settled law, but also would establish VII Petitioner’s claims of prosecutorial misconduct during his a blueprint for delay by other capital defendants. This we are trial. unwilling to do. As the Supreme Court stated in Keeney:

“The state court is the most appropriate forum for resolution VII. Prosecutorial Misconduct Claims of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court Petitioner contends that his appellate counsel were proceedings can only degrade the accuracy and efficiency of ineffective for failing to raise certain claims of prosecutorial judicial proceedings.” Id. Similarly, in Eaton v. Angelone, misconduct. Petitioner alleges that various instances of 139 F.3d 990, 995 (4th Cir.), cert. denied, 524 U.S. 934 unconstitutional prosecutorial misconduct occurred during the (1998), the Fourth Circuit explained: course of his trial and that they warrant a reversal of his longstanding conviction and death sentence. Petitioner’s More fundamentally, we refuse to transform a federal burden on habeas review is quite a substantial one. For relief habeas proceeding into a second trial. In this case an to be granted, the misconduct must have “‘so infected the trial evidentiary hearing would be precisely that. The with unfairness as to make the resulting conviction a denial of Supreme Court has charged us to preserve “the state trial due process.’” Darden v. Wainwright, 477 U.S. 168, 181 on the merits [as] the ‘main event,’ so to speak, rather (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, than a ‘tryout on the road’ for what will later be the 643 (1974)). We do not possess supervisory powers over determinative federal habeas hearing.” Wainwright v. state court trials. Cook v. Bordenkircher, 602 F.2d 117, 119 Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d n.5 (6th Cir. 1979) (“it is the responsibility of the [state 594 (1977). We would be unfaithful to this charge if we courts] to police their prosecutors; we have no such acted to supplant the state factfinding process with authority.”). Therefore, on habeas review, our standard of repetitive federal proceedings. review is limited to “‘the narrow one of due process.’” Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, We share these same sentiments here. 416 U.S. at 642).

Although the procedural history of this case in the state In making this determination, we must bear in mind that courts is labyrinthine, one thing is clear: Petitioner is not “‘the touchstone of due process analysis . . . is the fairness entitled to discovery and an evidentiary hearing. Because of the trial, not the culpability of the prosecutor.’” Serra v. Petitioner failed to rebut the statutory presumption of Michigan Dep’t of Corrections, 4 F.3d 1348, 1355 (6th Cir. correctness that the federal habeas court must award to the 1993) (quoting Smith v. Phillips, 455 U.S. 209, 219 (1982)); factual findings of the state courts, the district court properly see Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.) (quoting concluded that it was required to defer to those factual Serra, 4 F.3d at 1355), cert. denied, 118 S.Ct. 572 (1997). findings. Furthermore, given this conclusion, we would be Therefore, even if the prosecutor’s conduct was “undesirable hard-pressed to say that the district court abused its discretion or even universally condemned,” Darden, 477 U.S. at 181 in denying further discovery on these issues. See Rules (quotation marks and citation omitted), it does not constitute Governing Section 2254 Cases in the United States District a due process violation unless “the conduct was ‘so egregious Courts, Rule 6(a) (“A party shall be entitled to invoke the so as to render the entire trial fundamentally unfair.’” processes of discovery . . . if, and to the extent that, the Pritchett, 117 F.3d at 964 (quoting Cook v. Bordenkircher, 46 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 67

judge in the exercise of his discretion and for good cause under the Confrontation Clause were violated by the shown grants leave to do so, but not otherwise.”). introduction of hearsay evidence of Monte Tewksbury’s statements immediately before his death. The admission of IV. Analysis of Petitioner’s Brady Claims hearsay evidence does not violate the Confrontation Clause where the witness is unavailable and the statement bears In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme adequate indicia of reliability. Idaho v. Wright, 497 U.S. 805, Court recently summarized the relevant law on Brady 814 (1990). “Reliability can be inferred without more in a violations. The Court reaffirmed the rule that “‘a conviction case where the evidence falls within a firmly rooted hearsay obtained by the knowing use of perjured testimony is exception.” Id. at 815. The hearsay exception for dying fundamentally unfair, and must be set aside if there is any declarations has been recognized by the Supreme Court since reasonable likelihood that the false testimony could have at least 1892. See Mattox v. United States, 146 U.S. 140, 151 affected the judgment of the jury.” Id. at 433 n.7 (quoting (1892); Pointer v. Texas, 380 U.S. 400, 407 (1965). The United States v. Agurs, 427 U.S. 97, 103 (1976)). It is settled dying declarations exception is firmly rooted, and the that there exists no difference between exculpatory and admission of Monte’s dying declarations did not violate impeachment evidence for Brady purposes. Id. at 433. Of Petitioner’s rights under the Confrontation Clause. course, our conclusion that we must defer to the factual findings of the state courts necessarily requires that we deny Petitioner next contends that the trial court acted Petitioner relief on the basis of his Brady claims. These improperly in allowing the jury to be “death-qualified,” and factual findings establish, among other things, that Armstead in admitting improper evidence and allowing improper “received no bargain or deal from the State in return for his arguments by the prosecutor. We reject Petitioner’s claims. testimony,” that “Petitioner has submitted no credible First, it is not improper for jurors to be death-qualified, i.e., to evidence suggesting that Ronald Armstead lied, or that would be asked whether they could impose capital punishment, if result in the probability of a different outcome at a second warranted, regardless of any personal opposition that they trial,” and that “[n]o evidence favorable to the defendant [i.e. might have. Lockhart v. McCree, 476 U.S. 162, 173 (1986). Petitioner] was suppressed by the State.” JA at 1874, 1878. Second, we find that the evidence and arguments complained of were not improper, and, therefore, it was not error for the We also reject Petitioner’s argument that Armstead’s judge to allow them at trial. In any event, it is surely not our testimony that he had no charges pending at the time of role on habeas review to decide whether a state trial judge’s Petitioner’s trial violated Brady. The record indicates that the decision whether to admit evidence pursuant to state prosecution provided defense counsel with a copy of evidentiary rules was a proper one. Our sole task is to decide Armstead’s record. The record which Petitioner attached to whether federal constitutional violations have occurred. See his “Petition to Vacate or Set Aside Sentence: R.C. Section Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (“[T]he 2953.21” indicates “015Y” (fifteen years) across from the Due Process Clause does not permit the federal courts to date of disposition of Armstead’s felonious assault conviction engage in a finely tuned review of the wisdom of state and “005Y” (five years) across from the date of disposition of evidentiary rules.”). Petitioner’s final claim is that his his drug trafficking conviction. The record states the date that appellate counsel were constitutionally ineffective for failing the fifteen and five years were imposed as “Date Disp. to argue on direct appeal that Petitioner was denied a fair trial 11/25/80.” Armstead’s record also noted, among other things, because the prosecution presented testimony of a “jailhouse prior convictions for assault with intent to rape, sodomy, and informant.” This claim has no merit. assault and battery. Although it should have been obvious 66 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 47

give under Ohio law. See Ohio Rev. Code Ann. § 2901.05(B) from his record that Armstead was on some form of parole & (D) (Anderson 1996). This Circuit has previously upheld when he was arrested in December 1982, defense counsel the constitutionality of this instruction. See Thomas v. Arn, never questioned Armstead regarding whether his parole 704 F.2d 865, 869 (6th Cir. 1983). Similarly, Petitioner status would be adversely affected by the six-month sentence challenges instructions which stated that the jury’s verdict he received in March 1983 following his plea of guilty to was only a recommendation, that the jury was to consider all assault and attempted petty theft. This Circuit has held that statutory mitigating factors, and that if the aggravating “[n]o Brady violation occurs ‘where a defendant knew or circumstances outweighed the mitigating factors then a should have known the essential facts permitting him to take recommendation of death was mandatory. These challenges advantage of any exculpatory information, or where the are without merit as well. These instructions reflect Ohio evidence is available from another source.’” See Workman v. statutory law, see Ohio Rev. Code Ann. §§ 2929.03(D)(2) & Bell, 178 F.3d 759, 767 (6th Cir. 1998) (quoting United States 2929.04(B) (Anderson 1996), and raise no constitutional v. Clark, 928 F.2d 733, 738 (6th Cir. 1991)), cert. denied, 120 concerns. S.Ct. 264 (1999). This principle applies in the impeachment context as well, as there exists no difference for Brady Nor do we find any problems with the remaining purposes between exculpatory and impeachment evidence. instructions Petitioner contests. The trial judge’s instruction See Kyles, 514 U.S. at 433. Under these circumstances, it is that the jury could consider the arguments of counsel in difficult to conclude that Armstead’s testimony violated weighing the aggravating circumstances against the mitigating Brady. The prosecution provided Petitioner’s defense counsel factors was proper, especially since the judge distinguished with sufficient information to enable counsel to question between evidence and arguments of counsel and previously Armstead regarding his status at the conclusion of his sixhad provided an instruction that the arguments of counsel month sentence in the Cincinnati Workhouse. The fact that were not evidence. The instruction that a jury verdict defense counsel failed to do so was no fault of the State. recommending a life sentence must be unanimous was a proper statement of Ohio law, see State v. Brooks, 661 N.E.2d In any event, in order to establish a claim of prosecutorial 1030, 1042 (Ohio 1996), and was constitutionally misconduct or denial of due process, the defendant must show permissible. Finally, Petitioner contends that the judge’s that the statement in question was false, that the prosecution instruction that the jury must not be motivated by feelings of knew it was false, and that it was material. See United States sympathy but must render a fair and impartial verdict was v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989); United improper. This argument is utterly without merit, as such an States v. O’Dell, 805 F.2d 637, 641 (6th Cir. 1986). instruction is a perfectly appropriate and indeed wise one. In Moreover, the defendant must show that the statement in sum, none of the judge’s instructions to the jury was question was “indisputably false,” rather than merely unconstitutional, and Petitioner’s claim that his appellate misleading. Lochmondy, 890 F.2d at 823. Here, we simply counsel was constitutionally ineffective for failing to raise cannot say that Armstead’s statement that he did not have any them must necessarily fail. charges pending at the time of Petitioner’s trial was “indisputably false.” Armstead certainly was not facing any D. Miscellaneous Claims criminal charges when he testified in Petitioner’s case. At the time of trial in August 1983, Armstead was nearing The remaining claims that Petitioner asserts as a basis for completion of his six-month sentence at the Cincinnati his ineffective assistance of appellate counsel argument also Workhouse that he had received in March 1983. In our view, lack any hint of merit. First, Petitioner argues that his rights Armstead’s answer indicates that he interpreted defense 48 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 65

counsel’s question as referring specifically to criminal the ailing instruction by itself so infected the entire trial that charges and not as encompassing the parole revocation the resulting conviction violates due process.’” Id. at 72 hearings he would face at the 31 end of his six-month sentence (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

at the Cincinnati Workhouse. Tr. at 1569 (“I got my time Moreover, the Supreme Court has cautioned that it has in March the 15th and32I don’t have no time pending or “defined the category of infractions that violate ‘fundamental nothing else pending.”). Moreover, the prosecutor himself fairness’ very narrowly.” Dowling v. United States, 493 U.S. appears to have interpreted defense counsel’s question to refer 342, 352 (1990). Petitioner has not come close to meeting to criminal charges. Tellingly, when defense counsel asked this standard here. Armstead about any pending charges, the prosecutor objected, stating “[w]e have been over that.” Tr. at 1569. In lodging First, Petitioner argues that the trial judge improperly his objection, the prosecutor obviously was referring to instructed the jury on causation and undermined the specific defense counsel’s previous cross-examination of Armstead intent to kill requirement that is necessary for a finding of regarding his criminal history. This indicates that the aggravated murder in Ohio. The trial judge instructed the jury prosecutor did not know that Armstead’s testimony was that the causation requirement is met when death is the “false,” another requirement for a Brady violation. natural and foreseeable result of the defendant’s actions. The trial judge continued:

Nor are we inclined to find that the statement was material. In United States v. Avellino, 136 F.3d 249, 257 (2nd Cir. The test for foreseeability is not whether the defendant 1998), the Second Circuit remarked: “where the undisclosed should have foreseen the death in its precise form. The test is whether in light of all the circumstances, a reasonably prudent person would have anticipated that 31 death was likely to result to anyone from the performance We note that the Hamilton County Court of Common Pleas of the act or acts.

similarly interpreted Armstead’s testimony in denying Petitioner’s post- conviction petition. See supra at p. 30 & n.19. Tr. at 1697. In his habeas petition, Petitioner argues that this 32 instruction was “completely incompatible with the Petitioner included in his brief the following excerpt from requirement that the defendant must have a specific intent to Armstead’s testimony at the trial of William Woodall. The following cause a certain result — the death of another person.” JA at colloquy occurred during defense counsel’s cross-examination of Armstead regarding Armstead’s motivation for testifying against 247. We are unpersuaded. In his immediately preceding Woodall: instruction, the trial court informed the jury that “[n]o person may be convicted of aggravated murder unless he is Q [by defense counsel]: And you didn’t expect to receive specifically found to have intended to cause the death of anything in exchange for doing your good civic duty as a another.” Tr. at 1697. In our view, the causation instruction citizen?

did not undermine the requirement of specific intent. In short, A [by Armstead]: My time is up, I got three more weeks—about it was not even an erroneous instruction, much less an two or three more weeks and my six months will be up. unconstitutional one.

Petitioner’s Br. at 67 n.28 (emphasis added). We note that Armstead Petitioner’s challenge to the judge’s instruction defining stated that his “six months” would be completed in two or three weeks. reasonable doubt must also fail. The trial judge’s instruction Similarly, in Petitioner’s case, Armstead remarked that “I got my time in March the 15.” Tr. at 1569. These statements clearly refer to the sentence was taken virtually verbatim from the statutorily required Armstead received on March 15, 1983, following his guilty plea. definition of reasonable doubt that the judge was required to 64 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 49

mitigation material with Petitioner, as well as his mother, evidence merely furnishes an additional basis on which to sister, grandmother, and stepfather. Counsel made a challenge a witness whose credibility has already been shown determination that this material would be presented most to be questionable or who is subject to extensive attack by credibly by Petitioner’s mother. In affirming the common reason of other evidence, the undisclosed evidence may be pleas court, the Hamilton County Court of Appeals noted: cumulative, and hence not material.” We already have noted the extensive amount of impeachment information that The remaining affidavits [from Petitioner’s family Petitioner’s counsel elicited during his cross-examination of members, former girlfriend, and parole officer] share a Armstead. This information included, among other things, common theme, i.e., that Byrd’s life was fraught with Armstead’s then-current incarceration in the maximum abuse, rejection, disappointment and violence. At the security area of the Cincinnati Workhouse, as well as his mitigation hearing, Byrd’s mother recounted numerous conviction within the preceding ten years of an offense negative episodes of Byrd’s life. The trial court, in its carrying a sentence of more than one year in prison. Hence, opinion, recognized that Byrd had been subjected to Armstead’s credibility had been seriously questioned. To be abuse and that he had endured various difficulties in his sure, defense counsel certainly could have asked Armstead life. Thus, the evidence of Byrd’s chaotic life, as set whether he was facing a parole revocation hearing after the forth in the supporting affidavits, is merely cumulative to completion of his sentence in the Workhouse. However, if that presented at trial by Byrd’s mother. defense counsel had asked such a question, the prosecution presumably would have responded on re-direct examination State v. Byrd, No. C-910340, 1992 WL 37761, at *6 (Ohio Ct. by asking Armstead whether he had entered into any type of App. 1 Dist., Feb. 26, 1992). The common pleas court also agreement with the prosecution concerning its assistance at determined that counsel made a tactical decision not to his upcoming hearing. There would not have been anything introduce records regarding Petitioner’s juvenile, medical, and further to explore; as the state courts found, there was no school records so as to avoid revealing Petitioner’s prior evidence that Armstead had struck any sort of a deal with the behavior patterns to the jury. Finally, the common pleas court prosecution prior to his testimony at Petitioner’s trial. found that the trial court had authorized Petitioner to employ a psychologist or a psychiatrist; however, Petitioner refused In our view, Armstead had been subjected to extensive to be interviewed by either. Given these factual findings, we impeachment by defense counsel, and it is difficult to conclude that Petitioner has not shown that defense counsel’s conclude that there exists a reasonable probability that, had performance at the mitigation phase was constitutionally the issue of Armstead’s upcoming parole hearing been ineffective. disclosed, the outcome in Petitioner’s trial would have been different. See Kyles, 514 U.S. at 433-34; United States v.

C. Jury Instructions Bagley, 473 U.S. 667, 678 (1985); cf. Agurs, 427 U.S. at 109 (“The mere possibility that an item of undisclosed Petitioner next claims that his appellate counsel were information might have helped the defense, or might have constitutionally ineffective for failing to challenge several of affected the outcome of the trial, does not establish the trial judge’s instructions to the jury at both the guilt and ‘materiality’ in the constitutional sense.”). In short, we penalty phases of Petitioner’s trial. The standard we apply on simply cannot say that this evidence “could reasonably be habeas review is highly demanding. Indeed, “the fact that the taken to put the whole case in such a different light as to instruction was allegedly incorrect under state law is not a undermine confidence in the verdict.” Kyles, 514 U.S. at 435. basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71- 72 (1991). Rather, the sole question on habeas is “‘whether 50 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 63

For the foregoing reasons, we reject Petitioner’s claims of not shown that this decision was anything other than a Brady violations in this case. legitimate tactical decision, see Nguyen v. Reynolds, 131 F.3d 1340, 1350 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 V. Procedural Issues Related to the Ineffective (1998), nor has he shown a reasonable probability of a Assistance of Counsel Claims different outcome had defense counsel, in fact, made an opening statement. None of the alleged instances of Petitioner further alleges that his trial counsel were ineffective trial counsel has merit. Moreover, we “must ineffective in violation of his Sixth Amendment right to indulge a strong presumption that counsel’s conduct falls counsel. To prevail, Petitioner must show not only that within the wide range of reasonable professional assistance.” performance of counsel was deficient but also that this Strickland v. Washington, 466 U.S. 668, 689 (1984). deficient performance prejudiced the defense. Strickland v. Therefore, Petitioner’s appellate counsel were not Washington, 466 U.S. 668, 687 (1984). constitutionally ineffective for failing to raise these issues on direct appeal.

A. Ineffective Assistance of Trial Counsel Claims B. Ineffective Assistance of Trial Counsel (Penalty On appeal, Petitioner raises ineffective assistance of trial Phase) counsel challenges to the representation provided by his defense counsel at the guilt and penalty phases.33 Petitioner Petitioner contends that he received constitutionally contends that defense counsel were ineffective at the guilt ineffective assistance of counsel at the penalty phase of his stage as a result of (1) their failure to present an opening trial. The Eighth Amendment requires a jury to consider the statement; (2) the fact that one of the two defense counsel circumstances of the crime and the defendant’s character and refused to participate in the preparation of Armstead’s cross- background during the sentencing phase of a capital trial. examination, because that counsel previously had represented Boyde v. California, 494 U.S. 370, 377-78 (1990); Austin v. Armstead in a criminal matter; and (3) the failure of defense Bell, 126 F.3d 843, 848 (6th Cir. 1997), cert. denied, 523 U.S. counsel to object to alleged prosecutorial misconduct. 1079 (1998). Moreover, the Constitution requires defense counsel to conduct a reasonable investigation into the Petitioner posits several arguments with respect to defendant’s background and present it to the jury. Austin, 126 counsel’s performance at the penalty phase of his trial. At the F.3d at 848. Failure to do either may constitute ineffective outset, Petitioner contends that defense counsel were assistance of counsel. Id.; Glenn v. Tate, 71 F.3d 1204, 1206- ineffective due to their failure to investigate possible 08 (6th Cir. 1995). Petitioner argues that counsel was mitigating factors. Petitioner asserts that counsel failed to ineffective for failing to present sufficient mitigation evidence obtain an independent mental health expert after the trial court and obtain the assistance of an independent psychologist. authorized counsel to do so, and failed to request the Petitioner’s defense in mitigation consisted of nine pages of testimony from his mother, Mary Ray, as well as an unsworn statement from Petitioner expressing “regret” over the 33 incident.

In the district court, Petitioner alleged that defense counsel were ineffective at the pre-trial and voir dire stages as well. However, We are unpersuaded that counsel’s performance was Petitioner does not assert these particular ineffectiveness arguments on appeal. Curiously, Petitioner nonetheless contends that his counsel on constitutionally ineffective. The factual findings of the direct appeal were ineffective for failing to raise the claim of misconduct common pleas court establish that defense counsel discussed by the State’s attorneys during voir dire.

62 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 51

to at trial was not crucial to proof of defendant’s guilt.” The appointment of an independent mitigation specialist. court declined to place any weight on the affidavits submitted Petitioner maintains that the alleged failure of defense counsel by Petitioner’s purported experts, finding that one of the to obtain a psychological expert prevented Petitioner from purported experts “was not qualified to give an expert opinion presenting mitigation evidence about his background and how on matters of forensic pathology,” and that the conclusions of factors from his background affected his behavior. In another were “without any basis in fact.” JA at 1888, 1890. addition, Petitioner argues that a mitigation specialist would The court stated: “Petitioner does not allege that he possesses have helped counsel investigate, prepare, and present any new evidence or could obtain any such evidence, which information regarding Petitioner’s history, family background, would aid his client.” JA at 1890. We agree with this and formative environment. Petitioner presents several analysis. additional arguments as well. He contends that defense counsel’s opening statement at the penalty phase was Petitioner cites his trial counsel’s decision not to present a deficient and revealed a lack of “thorough familiarity” with defense of intoxication as another instance of alleged the law and the evidence presented. Petitioner also challenges ineffectiveness. We disagree. There is no evidence of the extent of the defense’s mitigation case, which consisted of intoxication in this case aside from Petitioner’s self-serving testimony from Petitioner’s mother and an unsworn statement statements. Moreover, an intoxication defense presumably from Petitioner. Petitioner argues that “[t]he brevity and would have required Petitioner to admit to the act of stabbing sparseness of the defense case provided Petitioner’s jurors and killing Monte Tewksbury, an admission that likely would with no real understanding of how or why the Petitioner have been detrimental to his defense. See State v. Poole, 294 wound up on the wrong end of a capital indictment.” JA at N.E.2d 888, 889 (Ohio 1973) (listing intoxication as one of 237. Finally, Petitioner contends that defense counsel were several affirmative defenses consistently recognized in Ohio). ineffective in the penalty phase for failing to object to Petitioner has shown nothing to undermine the common pleas numerous instances of alleged prosecutorial misconduct at court’s finding that counsel made a legitimate tactical closing argument, as well as certain allegedly improper decision not to raise intoxication as a defense. Thus, we instructions from the trial court. reject his argument.

The district court found that the great bulk of Petitioner’s Petitioner further contends that his trial counsel were ineffective assistance of trial counsel claims were ineffective for failing to voir dire potential jurors adequately, procedurally defaulted, because they had not been raised to make an opening statement, and to object to prosecutorial properly in the Ohio state courts. The district court found that misconduct. The common pleas court found that defense only the following issues were properly preserved: (1) That counsel had adequate information at voir dire regarding counsel was ineffective for breaching their pre-trial duty to potential jurors and had a particular type of juror in mind. investigate and thus failing to determine that Armstead’s The court concluded that counsel’s performance at voir dire testimony was false and that Armstead had reached a deal was not ineffective. Petitioner has not convinced us with the prosecutors in exchange for his testimony; (2) that otherwise. Petitioner’s other claims of ineffective assistance counsel was ineffective for failing to object to the trial court’s of counsel are similarly unpersuasive. The failure to object to instruction to the jury at the penalty phase that it could not be alleged prosecutorial misconduct did not rise to the level of governed by considerations of sympathy; and (3) that counsel constitutional infirmity. See infra Part VII. Nor did defense was ineffective for failing to object when the trial court counsel’s decision not to make an opening statement render permitted the prosecutor to argue that the jury should sentence their performance constitutionally ineffective. Petitioner has Petitioner to death as a duty to satisfy society’s moral outrage.

52 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 61

In our view, it also appears that the Hamilton County Court of VI. Analysis of the Merits of Petitioner’s Ineffective Appeals did not apply a procedural bar and decided on the Assistance of Appellate Counsel Claims merits Petitioner’s claim that defense counsel were ineffective at the penalty phase due to their failure to present additional Each of Petitioner’s ineffective assistance of appellate mitigation evidence. Petitioner does not argue that the counsel claims alleges a failure on the part of counsel to raise remaining ineffective assistance claims were considered by a certain issue on direct appeal. For convenience, we group the state courts on their merits. Indeed, Petitioner these claims into the following five categories: (1) Ineffective acknowledges that he raised his ineffective assistance of trial assistance of trial counsel (guilt phase); (2) ineffective counsel claims in his post-conviction petition to vacate assistance of trial counsel (penalty phase); (3) prosecutorial sentence pursuant to Ohio Rev. Code § 2953.21, and both the misconduct; (4) jury instructions; and (5) miscellaneous. We common pleas court and the Hamilton County Court of will now review the merits of these claims with the exception Appeals declined to reach the merits, finding that the claims of the prosecutorial misconduct arguments, which we will were barred by the doctrine of res judicata. Thus, as to these address separately in Part VII. defaulted claims, we must consider whether the applicable Ohio procedural rule constitutes an adequate and independent A. Ineffective Assistance of Trial Counsel (Guilt Phase) state ground. We hold that it clearly does.

Petitioner argues that his appellate counsel were B. Procedural Default of Trial Counsel Claims constitutionally ineffective for failing to raise certain claims of alleged ineffective assistance of trial counsel at the guilt Federal courts “will not review a question of federal law phase of his trial. These claims are completely without merit. decided by a state court if the decision of that court rests on First, petitioner alleges that his trial counsel were a state law ground that is independent of the federal question constitutionally ineffective for failing to file a motion for and adequate to support the judgment.” Coleman v. discovery as to the existence of any deals between the Thompson, 501 U.S. 722, 729 (1991). In 1967, the Ohio prosecution and any of its witnesses. There is no evidence Supreme Court held that “[c]onstitutional issues cannot be whatsoever that any such deals existed, and the common pleas considered in post-conviction proceedings under Section court made specific findings to this effect in denying 2953.21 et seq., Revised Code, where they have already been Petitioner’s post-conviction petition. or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of Petitioner also contends that trial counsel were ineffective conviction or on direct appeal from that judgment, and thus for failing to retain experts to test the State’s physical have been adjudicated against him.” State v. Perry, 226 evidence. Petitioner maintains that counsel should have N.E.2d 104, 105-06 (Ohio 1967) (syllabus para. 7). In State obtained a criminologist to analyze evidence regarding blood v. Cole, 443 N.E.2d 169 (Ohio 1982), the state supreme court stains that were found on Petitioner’s clothing and on a knife articulated how this procedural rule would apply with respect found in the van, and shoe prints that were taken from the to ineffective assistance of trial counsel claims. The court crime scene. However, the common pleas court found that explained: “Where defendant, represented by new counsel “[t]he jury was aware that exhibit 7, the knife, could not be upon direct appeal, fails to raise therein the issue of shown to be the murder weapon, that the blood stains could competent trial counsel and said issue could fairly have been not be shown to be the victim’s and that the shoe prints were determined without resort to evidence dehors [i.e., outside] not those of defendant Byrd.” State v. Byrd, No. B-831662 the record, res judicata is a proper basis for dismissing (Hamilton County C.P. Oct. 2, 1989). The court further found that “[t]he source of the blood which was tested and testified 60 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 53

that an ineffective assistance of appellate counsel claim can defendant’s petition for post-conviction relief.” Id. at 170 establish cause for a procedural default of an independent (syllabus). claim and need not itself be subjected to a procedural default analysis as long as the ineffective assistance of appellate Before applying a state procedural bar, the federal court counsel claim has been presented to the state courts and must determine whether (1) the state courts actually enforced exhausted. See id. at 945. The panel stated that “[t]he their state’s procedural rule, see Reynolds v. Berry, 146 F.3d Supreme Court . . . [has] not implement[ed] a procedural 345, 347 (6th Cir. 1998); Maupin v. Smith, 785 F.2d 135, 138 default requirement for claims asserted as cause, and until it (6th Cir. 1986); and (2) the rule in question is “firmly does, we see no reason to engraft such a requirement on our established and regularly followed,” Ford v. Georgia, 498 own.” Id. U.S. 411, 423-24 (1991); James v. Kentucky, 466 U.S. 341, 348-51 (1984). An adequate and independent procedural We recognize that the Supreme Court has granted certiorari default rule bars habeas review of a petitioner’s federal claim to review this aspect of Carpenter. See also Stewart v. unless the petitioner can show cause for the default and LaGrand, 526 U.S. 115, 120 (1999) (per curiam) (finding that prejudice attributable thereto, or demonstrate that a failure to an ineffective assistance of counsel claim could not be consider the federal claim will result in a fundamental considered as cause to excuse a procedurally defaulted claim miscarriage of justice. Coleman, 501 U.S. at 749-50; Harris because, among other things, the claim asserted as cause had v. Reed, 489 U.S. 255, 262 (1989).34 On appeal, Petitioner itself been defaulted, and the petitioner had failed to raises two principal arguments: (1) That the Ohio rule relied demonstrate cause and prejudice for this default). However, on in this case to bar federal review of Petitioner’s ineffective regardless of Carpenter, our review of the underlying merits assistance of trial counsel claims does not constitute an of Petitioner’s ineffective assistance of appellate counsel “adequate and independent” state ground; and (2) in any claims in Parts VI and VII, infra, convinces us that these event, Petitioner can show cause, i.e., the ineffective claims do not warrant relief on habeas. As a result, assistance of his appellate counsel to raise the claims, and Petitioner’s ineffective assistance of appellate counsel claims prejudice resulting therefrom. cannot constitute cause to excuse the procedural default of his ineffective assistance of trial counsel claims. Petitioner cites a total of four cases from the Ohio Supreme Court, which he contends show that neither Perry’s res judicata rule in general nor its application in Cole-type situations in particular is regularly followed, and hence the State’s res judicata rule is insufficient for purposes of R. 26 and 14(B).”). applying procedural default. We do not agree. First, we note that this circuit has applied Cole in holding that an ineffective To be sure, the decision in Rone was relevant to the court of appeals’s determination to deny the motion for reconsideration. However, assistance of trial counsel claim had been procedurally Rone was not the procedural rule upon which the Hamilton County Court defaulted. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. of Appeals relied in denying the motion for reconsideration. The court of 1998). Second, we note in any event that the Supreme Court appeals simply held that, as a matter of state law, Rone and several other decisions of the Hamilton County Court of Appeals precluded a finding of “good cause” in Petitioner’s case. The Hamilton County Court of 34 Appeals had affirmed Petitioner’s conviction and sentence in 1986, yet “The miscarriage of justice exception is concerned with actual as Petitioner did not file his motion for reconsideration until 1992. In light compared to legal innocence.” Calderon v. Thompson, 523 U.S. 538 of its previous decisions, the court of appeals held that, as a matter of state (1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). Petitioner law, no “good cause” had been shown. does not argue that this exception applies to his case.

54 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 59

has indicated that a procedural rule need not be applied in Court repeatedly since 1983.” State v. Byrd, No. C- 830676, every applicable case. Dugger v. Adams, 489 U.S. 401, 410 at 1 (Ohio Ct. App. 1 Dist, Oct. 1, 1992). The Ohio Supreme n.6 (1989). Rather, the Court in Dugger found a procedural Court rejected two subsequent appeals in separate orders. See rule to be sufficient where it was applied “[i]n the vast State v. Byrd, No. 92-2222, at 1 (Ohio Oct. 27, 1993); State majority of cases.” Id. Moreover, the case law Petitioner v. Byrd, No. 86-512, at 1 (Ohio Oct. 27, 1993). cites is unpersuasive. In State v. Howard, 537 N.E.2d 188 (Ohio 1989), as Justice Resnick noted in her dissenting E. Carpenter v. Mohr opinion, the same attorney represented the defendant at trial and on direct appeal. Id. at 196 (dissenting opinion). Hence, When Petitioner presented his ineffective assistance of Cole was inapplicable. In State v. Decker, 502 N.E.2d 647, appellate counsel claims on habeas, the district court 649 n.3 (Ohio 1986), the Ohio Supreme Court pointed out in determined that they had been procedurally defaulted. In the its opinion that the defendant had not raised his ineffective district court’s view, the relevant procedural rule was the assistance of trial counsel claim on direct appeal. The State Hamilton County Court of Appeals’s decision in Rone. The presumably failed to raise res judicata as a defense. court concluded that, while no statewide procedure for raising Moreover, in State v. Nichols, 463 N.E.2d 375, 376-77 (Ohio ineffective assistance of appellate counsel claims existed in 1984), the state supreme court expressly noted the limited Ohio until Murnahan, the rule in the Hamilton County Court issue before it: “Nichols’ latest constitutional claims . . . of Appeals had been well established since the decision in were not presented to either the trial court or the court of Rone in August 1983. The court stated: “it was not appeals. Accordingly we will confine ourselves to the unreasonable to expect a defendant convicted in Hamilton procedural question presented and make no attempt . . . to County to follow the rule established by that County’s Court review the . . . constitutional claims.” Finally, State v. of Appeals.” Byrd v. Collins, No. C-1-94-167, at 17 (S.D. Cooperrider, 448 N.E.2d 452 (Ohio 1983), upon which Ohio Nov. 2, 1995). Petitioner relies heavily, is entirely consistent with Cole. Cooperrider has been consistently interpreted to stand for the On the basis of this Circuit’s opinion in Carpenter v. Mohr, proposition that a claim of ineffective assistance of trial 163 F.3d 938 (6th Cir. 1998), cert. granted sub nom, Edwards counsel, which is dependent upon evidence outside the v. Carpenter, 120 S.Ct. 444, 68 U.S.L.W. 3008, 68 U.S.L.W. record, is to be raised in a post-conviction proceeding rather 3305, 68 U.S.L.W. 3310 (U.S. Nov. 8, 1999) (No. 98-2060), than on direct appeal. See, e.g., State v. Kent, No. 96CA794, the district court’s decision to subject Petitioner’s ineffective 1998 WL 106158, at *4 (Ohio Ct. App. 4 Dist., Mar. 4, assistance of appellate counsel claims to a procedural default 1998); State v. Hull, No. 58024, 1990 WL 14156, at *1 (Ohio analysis was error.36 In Carpenter, a panel of this court held Ct. App. 8 Dist., Feb. 15, 1990).

In sum, Petitioner’s argument that the Cole rule is not 36 In addition, a careful reading of the Hamilton County Court of regularly applied in Ohio and thus does not constitute an Appeals’s October 1, 1992 “Entry Denying Application for Delayed adequate and independent state law ground for purposes of Reconsideration” indicates that the court did not rely upon Rone. Rather, invoking a procedural bar to Petitioner’s ineffective assistance the court relied upon former Ohio Rule of Appellate Procedure 26 — of trial counsel claims is rejected. As the district court which provided for the reconsideration of an appeals court judgment —

and former Rule of Appellate Procedure 14(B) — which required a correctly found, Ohio state courts consistently invoke Cole showing of good cause for the enlargement of time to file an untimely and apply res judicata when a defendant, who is represented motion. See State v. Byrd, No. C-830676, at 1 (Ohio Ct. App. 1 Dist., by new counsel on direct appeal, fails to raise at that stage of Oct. 1, 1992) (“The Court . . . finds that said application is not well taken and that the same ought to be and hereby is overruled under App.

58 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 55

Dist., Aug. 31, 1983). The court of appeals stated that, among the litigation an ineffective assistance of trial counsel claim other alternative remedies, “the appellate court in which appearing on the face of the record. See, e.g., State v. Lentz, counsel has been alleged ineffective could consider the issue 639 N.E.2d 784, 785 (Ohio 1994) (“This court’s decision in upon a motion for reconsideration of its own judgment.” Id. Cole . . . forms the applicable law in the area [of res On the basis of Rone, the common pleas court declined to judicata].” ); State v. Caslin, No. 97APA09-1275, 1998 WL address the merits of Petitioner’s claims. On April 1, 1991, 255559 (Ohio Ct. App. 10 Dist., May 21, 1998) (applying in its opinion following a remand from the court of appeals, Cole to bar a claim of ineffective assistance of counsel); State the common pleas court incorporated its previous conclusion. v. Combs, 652 N.E.2d 205 (Ohio Ct. App. 1 Dist. 1994) On February 26, 1992, the Hamilton County Court of Appeals (same). See also Mapes v. Coyle,171 F.3d 408, 421 (6th Cir. affirmed for the same reasons, and the Ohio Supreme Court 1999) (citing Cole as the only exception to the res judicata subsequently declined to hear Petitioner’s appeal of the denial rule set forth in State v. Perry). of the post-conviction petition. State v. Byrd, 596 N.E.2d 472 (Ohio 1992). We have considered Petitioner’s remaining arguments challenging the application of Cole to this case and find them On February 19, 1992, one week before the Hamilton to be without merit. Suffice it to say, Petitioner was County Court of Appeals’s decision in Petitioner’s case, the represented by new counsel on direct appeal, and his Ohio Supreme Court decided State v. Murnahan, 584 N.E.2d ineffective assistance of trial counsel claims could have been 1204 (Ohio 1992). Murnahan resolved a split among the considered without resort to evidence outside the record. state courts of appeals as to the proper procedure for raising Petitioner failed to raise the great bulk of these claims on claims of ineffective assistance of appellate counsel. See direct appeal. We now conclude that Petitioner’s ineffective Manning v. Alexander, 912 F.2d 878, 881-82 (6th Cir. 1990) assistance of trial counsel claims—with the exceptions noted (citing cases). The state supreme court determined that above—are procedurally defaulted.35 Therefore, in order for claims of ineffective assistance of appellate counsel were not us to consider them, Petitioner must show cause and prejudice cognizable in post-conviction relief petitions. Murnahan, 584 for his failure to raise them in his direct appeal. Petitioner N.E.2d at 1205 (syllabus para. 1). The court explained: “[t]o argues that the “cause” behind this failure was the ineffective allow such claims could in effect permit trial courts to assistance of his appellate counsel. We turn now to this second-guess superior appellate courts.” Id. at 1208. The claim. court concluded that the proper method for raising such claims was a motion for reconsideration in the court of C. Ineffective Assistance of Appellate Counsel Claims appeals or a direct appeal to the state supreme court. See id. at 1208-09. Petitioner argues that the ineffective assistance of his appellate counsel provides him with the “cause” necessary to Approximately four months after the state supreme court’s excuse the procedural default of his ineffective assistance of decision, Petitioner finally filed a Murnahan petition (i.e., a trial counsel claims. In Murray v. Carrier, 477 U.S. 478, 488 motion for delayed reconsideration) with the Hamilton County Court of Appeals. The court of appeals refused to consider the petition, finding that there had “been no showing 35 Of course, Petitioner’s claims that his trial counsel were ineffective of good cause to justify the delay, considering that the remedy for failing to determine that Armstead’s testimony was false and that of reconsideration in relation to claims of ineffective Armstead had reached a deal with the prosecution must fail, as we have assistance of appellate counsel has been discussed by this already rejected the underlying merits of these claims. The remainder of the preserved claims will be addressed infra.

56 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 57

(1986), the Supreme Court held that constitutionally 9. The trial court’s penalty phase charge created an ineffective assistance of counsel may provide grounds for unconstitutional presumption in favor of the death “cause” for a procedural default. sentence and effectively made that sentence mandatory in Petitioner’s case.

Petitioner raises sixteen claims of alleged ineffective assistance of appellate counsel with respect to his direct 10. The trial court improperly instructed the jury on all appeal to the Hamilton County Court of Appeals. Petitioner statutory mitigating factors. contends that his appellate counsel were ineffective for failing to raise the following arguments: 11. The procedures and instructions of the trial court during voir dire skewed the entire capital proceeding in 1. The preclusion of mitigation evidence through the favor of guilty verdicts and a capital sentence. ineffective assistance of counsel at Petitioner’s penalty hearing violated Petitioner’s right to a reliable sentencing 12. The trial court’s actions during Petitioner’s trial determination by an informed jury. denied Petitioner due process of law. 2. Petitioner was denied his due process, equal 13. The admission of hearsay evidence violated protection, effective assistance of counsel and statutory Petitioner’s rights of confrontation of witnesses and due rights when his trial counsel failed to present evidence process. from an independent psychologist.

14. The prosecution put forward argument attacking 3. Misconduct by the State’s attorneys occurred at the Petitioner’s failure to testify as proof of his guilt of a voir dire phase of Petitioner’s capital trial. capital crime and as a basis for his death sentence. 4. Petitioner was deprived of his right to the effective 15. The trial court improperly instructed the jury on assistance of counsel at the guilt-innocence phase of his reasonable doubt. capital trial.

16. Erroneous jury instructions at the penalty phase 5. The trial court improperly instructed the jury on violated Petitioner’s rights. causation.

D. Procedural History of Appellate Counsel Claims 6. Petitioner was deprived of his right to the effective assistance of counsel during the mitigation phase of his Petitioner raised his ineffective assistance of appellate trial. counsel claims in his post-conviction petition. On October 2, 1989, the common pleas court held: “A claim of ineffective 7. The State used a jailhouse informant to secure assistance of appellate counsel cannot be raised in a R.C. Petitioner’s conviction. 2953.21 proceeding. State v. Rone, C-820640 (1st Dist., C/A 8/31/83).” The Hamilton County Court of Appeals had held 8. The trial court’s instruction to the jury that its verdict in Rone, which was decided on August 31, 1983, that was only a recommendation diminished the jury’s sense ineffective assistance of appellate counsel claims could not be of responsibility for its decision and misled the jury pursued in state post-conviction proceedings. See State v. concerning its key role in sentencing. Rone, No. C-820640, 1983 WL 5172, at *4 (Ohio Ct. App. 1