RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hamblin v. Mitchell No. 00-3663 ELECTRONIC CITATION: 2003 FED App. 0457P (6th Cir.) File Name: 03a0457p.06 Akron, Ohio, for Appellant. Matthew C. Hellman, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, Michael L. Collyer, UNITED STATES COURT OF APPEALS OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for Appellee. FOR THE SIXTH CIRCUIT _________________ MERRITT, J., delivered the opinion of the court, in which GILMAN, J., joined. BATCHELDER, J. (pp. 23-24), DAVID HAMBLIN , X delivered a separate dissenting opinion. Petitioner-Appellant, - - _________________ - No. 00-3663 v. - OPINION > _________________ , BETTY MITCHELL , Warden, - MERRITT, Circuit Judge. In this death penalty case from Respondent-Appellee. - Ohio tried in the state criminal court in Cleveland, the N primary issue is whether counsel for the defendant provided Appeal from the United States District Court an adequate defense under the Sixth Amendment as for the Northern District of Ohio at Youngstown. incorporated in the Due Process Clause. Fred Jurek was No. 95-02046—Peter C. Economus, District Judge. counsel for the defendant, Hamblin, the petitioner in this habeas corpus case. Jurek had no experience trying capital Argued: March 20, 2002 cases, and he was later disbarred from the practice of law in Ohio. After the defendant was found guilty of murder by a Decided and Filed: December 29, 2003 jury at the guilt phase of the case, Jurek did not prepare for the penalty phase of the bifurcated trial. He did not try to find Before: MERRITT, BATCHELDER, and GILMAN, out any family history or any facts concerning defendant’s Circuit Judges. psychological background and mental illness, nor did counsel seek any advice or expert consultation for the penalty phase _________________ of the case. Despite a large body of mitigating evidence, counsel did nothing to discover what was available or COUNSEL introduce it in evidence. We will first set out the standards governing the assistance of defense counsel in capital cases at ARGUED: Linda E. Prucha, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Matthew C. Hellman, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee. ON BRIEF: Linda E. Prucha, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, George C. Pappas,
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the sentencing phase of the case and then apply those In the most recent case on ineffective assistance, Wiggins standards to the facts of this case.1 v. Smith, 123 S. Ct. 2527, decided June 26, 2003, the Court held by a 7-2 vote that counsel’s investigation and I. presentation “fell short of the standards for capital defense work articulated by the American Bar Association . . . Ineffective assistance of counsel in capital cases has been standards to which we have long referred as ‘guides to a persistent problem in the United States. See James S. determining what is reasonable.’” 123 S. Ct. at 2536-37. In Liebman, The Overproduction of Death, 100 COLUM. L.REV . its discussion of the 1989 ABA Guidelines for counsel in 2030, 2102-10 (2000). It was only 70 years ago in the capital cases, the Court held that the Guidelines set the notorious but seminal Scottsboro Boys case, Powell v. applicable standards of performance for counsel: Alabama, 287 U.S. 45 (1932), that the Supreme Court finally decided that the Due Process Clause of the Fourteenth [I]nvestigations into mitigating evidence “should Amendment requires the appointment of competent counsel comprise efforts to discover all reasonably available capable of “the giving of effective aid in the preparation and mitigating evidence and evidence to rebut any trial” because a defendant facing capital punishment “requires aggravating evidence that may be introduced by the the guiding hand of counsel at every step in the proceeding prosecutor.” ABA Guidelines for the Appointment and against him.” 287 U.S. at 69-71. Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989).... Despite these well-defined Not until 50 years later in Strickland v. Washington, 466 norms, however, counsel abandoned their investigation U.S. 668 (1984), did the court begin to define specifically of petitioner’s background after having acquired only what the “effective assistance of counsel” means. There the rudimentary knowledge of his history from a narrow set Court said that counsel in such cases must act with of sources. “reasonableness under prevailing professional norms” as “guided” by “American Bar Association standards and the Id. at 2537 (emphasis in original). The Court then also like.” This standard includes counsel’s “duty to make adopted ABA guideline 11.8.6, which it described as stating reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” But the that among the topics counsel should consider presenting Court went on to say that under this standard “judicial are medical history, educational history, employment and scrutiny of counsel’s performance must be highly training history, family and social history, prior adult and deferential,” and that the defendant must overcome “a strong juvenile correctional experience, and religious and presumption” that counsel’s action is reasonable because any cultural influences. “detailed guidelines . . . would encourage the proliferation of ineffectiveness challenges.” Id. (Emphasis in original.) Thus, the Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the “prevailing professional norms” in ineffective assistance cases. This principle adds clarity, detail 1 The petition before us was filed before the effective date of AEDPA and content to the more generalized and indefinite 20-year- (April 24, 1996), see Lindh v. Murphy, 521 U.S. 320 (1997), and is old language of Strickland quoted above. governed by preexisting standards. No. 00-3663 Hamblin v. Mitchell 5 6 Hamblin v. Mitchell No. 00-3663
Prior to the Wiggins case, our Court in a series of cases had standards merely represent a codification of longstanding, dealt with the failure of counsel to investigate fully and common-sense principles of representation understood by present mitigating evidence at the penalty phase of the case. diligent, competent counsel in death penalty cases. The ABA Our analysis of counsel’s obligations matches the standards standards are not aspirational in the sense that they represent of the 1989 Guidelines quoted by the Supreme Court in norms newly discovered after Strickland. They are the same Wiggins. In Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir. type of longstanding norms referred to in Strickland in 1984 1995), Judge Nelson for himself and Judge Guy (Judge Siler as “prevailing professional norms” as “guided” by “American dissenting) set aside the death verdict on grounds of Bar Association standards and the like.” We see no reason to ineffective assistance of counsel at the penalty phase. The apply to counsel’s performance here standards different from Court held that counsel must perform a full and complete those adopted by the Supreme Court in Wiggins and investigation of mitigating evidence including the defendant’s consistently followed by our court in the past. The Court in “history, background and organic brain damage.” 71 F.3d at Wiggins clearly holds at 123 S. Ct. at 2535, that it is not 1207. The Court also held that this investigation should be making “new law” on the ineffective assistance of counsel conducted before the guilt phase of the case. It said that the either in Wiggins or in the earlier case on which it relied for “time consuming task of assembling mitigating witnesses its standards, Williams v. Taylor, 529 U.S. 362 (2000). [should not wait] until after the jury’s verdict ....” Id. (quoting Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th New ABA Guidelines adopted in 2003 simply explain in Cir. 1991)). The Court faulted the lawyers because they greater detail than the 1989 Guidelines the obligations of “made no systematic effort to acquaint themselves with their counsel to investigate mitigating evidence. The 2003 ABA client’s social history” — for example, they “never spoke to Guidelines do not depart in principle or concept from any of his numerous brothers and sisters,” and “never Strickland, Wiggins or our court’s previous cases concerning examined school records” or “medical records” or “records of counsel’s obligation to investigate mitigation circumstances.2 mental health counseling.” Id. at 1208. In a similar case, Austin v. Bell, 126 F.3d 843, 847-48 (6th Cir. 1997), Judge 2 Suhrheinrich, for a panel including Judges Martin and Merritt, The 2003 A BA G uidelines at section 10.7 contain ten pages of relied on Judge Nelson’s opinion in Glenn v. Tate to explain discussion about counsel’s “obligation to conduct thorough and that prevailing standards require a full and complete independent investigations relating to the issues of both guilt and penalty.” The description of counsel’s obligation to investigate mitigating investigation of mitigating evidence. Then in Coleman v. evidence for the sentencing phase of the case is as follows (omitting Mitchell, 268 F.3d 417, 449-52 (6th Cir. 2001), Judge Clay quotation marks and the lengthy footnotes attached to the test): for himself and Judge Cole (Judge Batchelder dissenting), reviewed the holdings of Glenn and Austin and reached a Counsel’s duty to investigate and present mitigating evidence is similar conclusion. Like the Supreme Court in Wiggins, now well established. The duty to investigate exists regardless of the expressed desires of a client. Nor may co unsel sit idly b y, Judge Clay explicitly relied on the 1989 ABA Guidelines. thinking that investigation would be futile. Counsel cannot responsibly advise a client about the merits of different courses The 1989 Guidelines adopted as “prevailing norms” in of action, the client cannot make informed decisions, and Wiggins reinforce and support our court’s previous rulings in counsel cannot be sure of the client’s competency to make such Glenn, Austin and Coleman applying similar norms to cases decisions unless counsel has first conducted a thorough tried in the 1980's. Although the instant case was tried before investigation with respect to both phases of the case. the 1989 ABA edition of the standards was published, the Because the sentences in a capital case must consider in No. 00-3663 Hamblin v. Mitchell 7 8 Hamblin v. Mitchell No. 00-3663
mitigation, anything in the life of the defendant which might In sum, we recognize that we must measure counsel’s militate against the app ropriateness of the d eath penalty for the performance in this case against the prevailing standards at defendant, penalty phase preparation requires extensive and the time of Hamblin’s trial. We cite the 1989 and 2003 ABA genearlly unparalleled investigation into persona l and fam ily Guidelines simply because they are the clearest exposition of history. In the ca se of the client, this be gins with the moment of counsel’s duties at the penalty phase of a capital case, duties conception [i.e., undertaking representation of the capital defendant]. Counsel needs to explore: that were recognized by this court as applicable to the 1982 trial of the defendant in Glenn v. Tate, 71 F.3d 1204, 1206-08 (1) Medical history, (including hospitalizations, mental and (6th Cir. 1995). Since that trial took place even before the physical illness or injury, alcohol and drug use, pre-natal trial in the present case, the same standards regarding and birth trauma, malnutrition, developmental delays, and counsel’s duty to investigate mitigating evidence, as neurological damage). articulated in the ABA Guidelines, are relevant here. (2) Fam ily and social history, (including physical, sexual or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence; pov erty, familial instability, neighborhood environment and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one or a natural police officers or other witnesses), decisions about the need for disaster; experiences of racism or other social or ethnic bias; expert evaluation (including competency, mental retardation, or cultural or religious influences; failures of government or insanity), motion practice, and plea nego tiations. social intervention (e.g., failure to intervene or provide necessary services, place ment in poo r quality foster care or .... juvenile detention facilities); It is necessary to locate and interview the client’s fam ily members (who may suffer from some of the sa me impairm ents (3) Educational history (including achievement, performance, as the client), and virtually everyone else who knew the client behavior, and activities), special ed ucational needs and his family, including neighb ors, teachers, clergy, case (including cognitive limitations and learning d isabilities) workers, doctors, co rrectional, probation or parole officers, and and op portunity or lack thereo f, and activities; others. Records — from courts, government agencies, the military, employers, etc. — can conta in a wealth of mitigating (4) Military service, (including length and type of service, evidence, documenting or providing clues to childhood abuse, conduct, special training, combat exposure, health and retardation, brain damage, and/or mental illness, and mental health services); corroborating witnesses’ recollections. Records should be requested conc erning not on ly the client, but also his parents, (5) Employment and training history (including skills and grandp arents, siblings, an d child ren. A multi-generational performance, and barriers to employability); investigation frequently discloses significant patterns of family dysfunction and may help establish or strengthen a diagnosis or (6) Prior juven ile and adult correctional experience (including underscore the hereditary nature of a particular impairment. The conduct while under supervision, in institutions of education collection of corrob orating information from multiple sourc es — or training, and regarding clinical services); a time-consuming task — is important wherever possible to ensure the reliability and thus the persuasiveness of the evidence. The mitigation investigation should begin as quickly as possible, beca use it may affect the investigation of first phase ABA Guidelines for the Appointment and Performance of Defense defense (e.g., by suggesting additional areas for questioning Counsel in Death Penalty Cases ¶ 10.7 (2003) at pp. 80-83. No. 00-3663 Hamblin v. Mitchell 9 10 Hamblin v. Mitchell No. 00-3663
II. the stricter AEDPA standard to petitions filed after April 24, 1996); Lindh v. Murphy, 521 U.S. 320 (1997). A. The district court denied Hamblin’s request for a writ of This case begins in 1983 in Cleveland, Ohio, when habeas corpus, for an evidentiary hearing and for discovery. Metropolitan Park Ranger John English was investigating On the basis of the papers before the court, it held that alleged homosexual activity in a local park. He was shot in counsel was not ineffective and labeled the lack of the leg by an unknown assailant. His injuries were not life investigation as “strategic,” finding that counsel relied on the threatening. Just prior to the shooting, Ranger English and now defunct “residual doubt” theory during the penalty phase. other witnesses observed petitioner David Hamblin sitting in The residual doubt theory seeks to convince the jury to his car at the park. Twenty minutes after the shooting, Lillian impose a less severe sentence by reinforcing any lingering Merrick was found unconscious in her car in the parking lot doubt the jury may have about the guilt of the defendant. of a store near the park, suffering from a blow to the head “Residual doubt” was rejected by the Ohio Supreme Court as inflicted by a blunt object. She also sustained a wound to her a mitigation strategy after Hamblin’s trial. State v. McGuire, hand, described as a “defensive” wound. She had been 80 Ohio St. 3d 390, 686 N.E.2d 1112, 1123 (1997). McGuire robbed of her purse and groceries. She died three days later held that because the jury must find guilt at the culpability from her injuries without regaining consciousness. phase beyond a reasonable doubt, a “residual doubt” theory Investigation clearly established that defendant Hamblin makes no sense. If the jury has “residual doubt,” it must not wounded the park ranger and killed Lillian Merrick. convict. Therefore, residual doubt can no longer be used as a mitigating factor in Ohio at sentencing. A jury in the Common Pleas Court of Cuyahoga County convicted Hamblin of aggravated murder, aggravated robbery, B. attempted murder and having a weapon under disability and sentenced him to death. The conviction was affirmed by the The record reveals that defense counsel’s representation of Cuyahoga County Court of Appeals and the Ohio Supreme Hamblin at the penalty stage of the case fell far short of Court. State v. Hamblin, No. 49975, 1986 WL 11132 (Ohio prevailing standards of effective assistance of counsel as App. Sept. 18, 1986), aff’d, 37 Ohio St. 3d 153, 524 N.E.2d outlined in Wiggins, our previous cases and the 1989 and 476, cert. denied, 488 U.S. 975 (1988). 2003 ABA Guidelines. Hamblin filed a petition pursuant to 28 U.S.C. § 2254 in The Cuyahoga County Court of Common Pleas appointed November 1995 after exhausting his state post-conviction Fred Jurek and Arthur Lambros to serve as Hamblin’s court- proceedings. State v. Hamblin, No. 66556, 1994 WL 706137 appointed attorneys. Neither lawyer had previously tried a (Ohio App. Dec. 15, 1994), dismissed, appeal not allowed, 72 capital case. Jurek3 admitted in his affidavit that he did Ohio St. 3d 1528, 649 N.E.2d 837 (May 31, 1995). Hamblin filed his petition for habeas review prior to the enactment of the Antiterrorism and Effective Death Penalty Act, which 3 Only Jurek filed an affidavit for the state post-conviction permits reviewing federal courts greater latitude in examining proceeding. Jurek was disbarred in 1989 and died in 199 9. There is no the proceedings than is permissible under AEDPA-governed information in the record as to why Hamblin’s other attorney, Arthur cases. See Williams v. Taylor, 529 U.S. 362 (2000) (applying Lamb ros, did no t submit an affidav it during the post-conviction proceedings. Beca use Jurek wa s the only defense lawyer to speak during No. 00-3663 Hamblin v. Mitchell 11 12 Hamblin v. Mitchell No. 00-3663
essentially nothing by way of preparation for the penalty and a younger sister by stealing and he first stole food as a phase of this trial. Aff. of Fred Jurek, at ¶ 8, State v. very young child. He was never educated. He did not attend Hamblin, CR-186558, Ex. B. to State Post-Conviction elementary school with regularity and did not receive any Petition (Ohio App. July 31, 1989). Jurek stated in his education past the seventh grade. He started getting in trouble affidavit that he did not treat Hamblin’s case any differently with the law as a teenager, resulting in a criminal record as a than other criminal cases he had handled and he was juvenile. He first left home at 13 and left permanently at 16. “unaware” of the special preparation that was needed for the penalty phase. Id. at ¶ 12. He stated he did not prepare for Hamblin first showed signs of mental disorder when he was the penalty phase until after the guilty verdict was returned — a teenager — probably resulting from his poor family leaving a period of only six days (from Wednesday, April 11, situation and possibly from a severe blow to the head at about until Tuesday, April 17) to prepare for the penalty phase. Id. age 8, inflicted by his father with a dog chain, and from a Jurek’s affidavit states that he did not seek any advice or severe infection his mother suffered while pregnant with him, expert consultation for the penalty phase. Counsel’s the result of a stabbing inflicted on her by Hamblin’s father. explanation for doing nothing in preparation for the Aff. of James P. Eisenberg, Ph. D., State v. Hamblin, CR- sentencing phase was his belief that the case would “plead 186558, Ex. E to State Post-Conviction Petition (Ohio App. out” and not go to trial. Id. at ¶ 8. He acknowledged a lack Aug. 9, 1989). While an earlier mental evaluation did not of strategy. He stated that he “did not present the jury with show signs of organic deficiency, such as retardation, further any mitigating evidence, therefore the closing statement testing since Hamblin has been in prison shows psychological consisted of a plea for mercy.” Id. at ¶ 18. problems, but whether their origin is psychological, organic or both is not known. If counsel had investigated his case, he would have found a large body of mitigating evidence. The evidence of Jurek did not obtain any family or social history nor did he Hamblin’s unstable and deprived childhood presented at the contact any of Hamblin’s family members except Rhonda post-conviction proceedings is extensive. Hamblin grew up Lezark, the mother of Hamblin’s daughter. Jurek Aff. at ¶¶ in extreme poverty and neglect, surrounded by family 13-15. Twenty-two family members and friends filed violence and instability, had a poor education and likely affidavits with Hamblin’s state post-conviction petition suffers from mental disability or disorder. He grew up in relating the violence and deprivation of Hamblin’s childhood, Appalachian Kentucky where his father had a still. His father each stating that they would have been available and willing was very violent and beat Hamblin’s mother and Hamblin to testify at the penalty phase but had never been asked to do regularly. Hamblin’s father was arrested on several occasions so. for public intoxication, manufacture of moonshine and child neglect. Hamblin’s mother abandoned her children on several Counsel also failed to gather any medical information, occasions, leaving them to fend for themselves, and at times including psychological information, on Hamblin. Earlier resorted to prostitution. Hamblin tried to provide for himself psychiatric evaluation of Hamblin had shown him competent to stand trial and not to be mentally retarded. Counsel believed, incorrectly, that the issue of competency to stand trial was the only admissible psychological evidence for the penalty phase of the trial, an d because we have no information as to mitigation purposes. Relying solely on what he was told by what Lambros’ role wa s, if any, it is reasonable to conclude that Fred Hamblin and the prosecutor — that mental competency to Jurek had sole responsibility for the penalty phase, including preparation. No. 00-3663 Hamblin v. Mitchell 13 14 Hamblin v. Mitchell No. 00-3663
stand trial was the only relevant issue — counsel did not to help Hamblin prepare or give this statement. Jurek Aff. at evaluate Hamblin’s mental condition at the time of trial or ¶ 17. inquire further into his mental health. Counsel did not review the earlier reports concerning Hamblin’s mental status, which Obviously, counsel’s failure to investigate and prepare for were prepared for a previous criminal case involving the sentencing phase of the case violates the ABA standards Hamblin. An evaluation done in 1964 when Hamblin was 13 and applicable case law discussed above, unless there is some and had been arrested on juvenile charges stated that Hamblin other justification for counsel’s performance. tends “to alienate himself from other people and appears mistrustful and suspicious of everyone.” School records and C. IQ tests, among other records, were also available but were not collected or reviewed. Nor did counsel contact a mental The district court below found two justifications for health professional to help him evaluate the existing reports counsel’s performance. First the court found that defense or to give him advice on using the psychological information counsel did not further investigate Hamblin’s mental previously acquired on Hamblin or to inquire about further condition for the “strategic” reason that such an investigation psychological testing. Jurek Aff. at ¶ 16. might not reveal any psychological problems or brain injury, thereby preventing a mitigation theory based on those factors. Only two witnesses were offered at the penalty phase: The court said mitigation evidence “could hurt him as easily Rhonda Lezark and Hamblin himself. The entire proceeding as help him if exposed to a jury,” and so “Hamblin’s attorneys consists of about 38 pages and could not have taken more made a strategic decision not to [investigate or] present than 45 minutes to present. The prosecution’s closing mitigating evidence about Hamblin’s deplorable childhood argument at the penalty phase consumes 10 pages out of the and wretched upbringing.” App., Vol. I, p. 67. Second, the 38, while defense counsel’s closing argument consists of 3 court found that counsel did not investigate or prepare pages. mitigation because his client told him not to present evidence in mitigation. Witness Rhonda Lezark was in a long-term relationship with Hamblin and they have one daughter from that The first reason for not investigating is not asserted by relationship. Lezark had testified for the prosecution during defense counsel in the record before us and, even if it were, the guilt phase. In her testimony at the penalty phase she does not make sense. Because counsel does not know what stated that Hamblin’s relationship with their child was good. an investigation will reveal is no reason not to conduct the She had nothing else positive to say during her short investigation. Counsel was obligated to find out the facts, not testimony. She told the jury about Hamblin’s previous prison to guess or assume or suppose some facts may be adverse. time and explained that she did not want to testify on his Counsel admitted he was not sure what further investigation behalf. Hamblin’s counsel did not prepare her for her or testing might reveal about Hamblin’s psychological health testimony at the penalty phase or interview her in advance. or any organic brain damage. In addition, because the district court did not hold an evidentiary hearing or allow any The only other testimony by the defense during the penalty discovery, many details of why counsel failed to investigate phase was a relatively short, rambling, almost incoherent, are not known. And between the time the habeas petition was unsworn statement given by Hamblin to the jury in an attempt filed in late 1995 and the issuance of the district court’s order to explain his background. Counsel admitted he did nothing in early 2000, Fred Jurek, the lawyer responsible for the No. 00-3663 Hamblin v. Mitchell 15 16 Hamblin v. Mitchell No. 00-3663
penalty phase, died. This complete failure to investigate (“counsel can hardly be said to have made a strategic choice simply cannot be condoned and constitutes a clear against pursuing a certain line of investigation when s/he has constitutional violation. not yet obtained the facts on which such a decision could be made”); Knighton v. Maggio, 740 F.2d 1344, 1350 (5th Cir. As to the second justification, the district court said that 1984) (petitioner entitled to relief if record shows that counsel cannot be ineffective when counsel is simply “counsel could not make a valid strategic choice because he following a defendant’s wishes not to investigate or prepare had made no investigation”). for the mitigation phase of the case. There is no evidence in the record that counsel informed Hamblin about the Therefore, the two “strategic” justifications for failing to importance of mitigation to the penalty phase or the investigate mitigating factors by the court below are consequences of limiting the penalty phase to his unsworn insufficient to excuse counsel’s performance. Counsel’s statement and the testimony of Rhonda Lezark. Since the performance fell well below minimum standards in capital district court did not permit an evidentiary hearing or cases. discovery in this case, it is not clear what Hamblin said to Jurek about investigating the case or what Jurek advised III. Hamblin. But ABA and judicial standards do not permit the courts to excuse counsel’s failure to investigate or prepare The Strickland and Wiggins cases in the Supreme Court because the defendant so requested, assuming that this finding also require us to examine whether counsel’s deficient is factually accurate. The Guidelines state that “the performance prejudiced defendant. This is the second or investigation regarding penalty should be conducted “prejudice” prong established by Strickland. Defendant must regardless of any statement by the client that evidence bearing show “that there is a reasonable probability that, but for upon penalty is not to be collected or presented,” because counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a [c]ounsel cannot responsibly advise a client about the probability sufficient to undermine confidence in the merits of different courses of action, the client cannot make outcome.” Strickland, 466 U.S. at 694. Hamblin must informed decisions, and counsel cannot be sure of the demonstrate that “counsel’s errors were serious enough to client’s competency to make such decisions, unless counsel deprive [him] of a proceeding the result of which was has first conducted a thorough investigation .... reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir. 1995). Hamblin has sufficiently demonstrated that the utter failure of ABA Guidelines § 10.7 (2003) at pp. 80-81. This guideline his counsel effectively to present at sentencing the wealth of is supported by our decisions in Austin v. Bell, supra, 126 mitigating evidence “undermines confidence in the outcome” F.3d at 849, and Coleman v. Mitchell, supra, 268 F.3d at 447, of the sentencing phase of his trial. as well as by a number of cases from other circuits, see, e.g., Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir. Under federal law, one juror may prevent the death penalty 1991) (counsel ineffective for “latching onto” client’s by finding that mitigating factors outweigh aggravating assertions that he did not want to call penalty phase witnesses factors. As the Supreme Court recently said in Wiggins, the and failing to conduct an investigation sufficient to allow “prejudice” prong is satisfied if “there is a reasonable client to make an informed decision to waive mitigation); probability that at least one juror would have struck a United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989) different balance.” 123 S. Ct. at 2543. No. 00-3663 Hamblin v. Mitchell 17 18 Hamblin v. Mitchell No. 00-3663
Ohio is a “weighing” state, which means that the case, including whether Hamblin’s counsel was ineffective in aggravating circumstances must outweigh the mitigating other aspects of the sentencing phase and whether factors in order to impose the death penalty. Hamblin has prosecutorial misconduct at the sentencing phase undermined presented substantial evidence of a childhood in which abuse, Hamblin’s constitutional right to a fundamentally fair trial. neglect, violence and hunger were common. In light of the We will now turn to the issues raised by Hamblin concerning quantity of mitigation evidence available, we find ourselves the guilt phase of his trial. unpersuaded that there is a reasonable probability that a jury would have returned the same sentence had the evidence been A. Ineffective Assistance of Counsel at introduced. Our confidence in the outcome of Hamblin’s trial Culpability Phase has been undermined by counsel’s failure to include the details of Hamblin’s background during their penalty phase Hamblin contends that his counsel should have put on an presentation. In our view, had the available evidence been expert pathologist to counter the testimony of the presented — about Hamblin’s mental history and abusive prosecution’s expert. The Cuyahoga County Coroner testified childhood — at least one juror would have voted against the that Lillian Merrick was killed by one or more blows to the death penalty. He is therefore entitled to a new trial at the head. Hamblin claims that an independent pathologist might penalty phase. The sentencing phase of the trial under Ohio have shown that death resulted from a single blow to the head law is obviously a critical stage of the criminal proceeding intended only to disable the victim for purposes of robbing which can result in the sentence of death and did so in this her, not to kill her — a less gory and disturbing scenario of case. Yet Hamblin’s counsel performed virtually no the incident than that presented by the prosecution. The investigation to prepare a defense. Counsel presented no performance of counsel in this respect at the guilt phase was meaningful evidence by way of mitigation as a result of the poor, to say the least, because of his failure to try to retain an failure to investigate and prepare, not as a result of trial independent expert, such as a pathologist, to investigate fully strategy after thorough research. It is not just that the defense the position of the prosecution that the victim received presented on Hamblin’s behalf at the sentencing phase was numerous blows to the head, an inference not supported by ineffective; rather, Hamblin’s counsel did not present any the evidence in the record before us. He could perhaps have meaningful mitigation evidence at the sentencing phase made a showing that there was only one blow to the head and because he was not prepared due to his lack of knowledge hence raised a stronger inference of lack of intent to kill. But and understanding of the sentencing phase of a capital case. in the end we cannot know the answer because no expert has This total lack of preparation, investigation and understanding yet appeared to clarify the issue. Absent such evidence, we of sentencing caused counsel’s deficient performance and therefore cannot say that this failure was harmful to the extreme prejudice to Hamblin. defendant and that he was prejudiced by it.
IV. The State also called a witness from the Ohio Bureau of Criminal Identification and Investigation to explain Because we find that counsel’s failure to investigate electrophoresis, the technique by which the victim’s blood possible mitigating circumstances constitutes ineffective was matched to the blood found on a jacket in Hamblin’s assistance of counsel warranting a new penalty phase trial for home. Defendant claims that an expert witness could have Hamblin, we pretermit any other sentencing issues raised in explained that electrophoresis is unreliable, especially when the habeas petition concerning the sentencing phase of the performed on post-mortem samples, and such testimony No. 00-3663 Hamblin v. Mitchell 19 20 Hamblin v. Mitchell No. 00-3663
would have raised doubts about its value in this case. This The prosecutor’s repeated reference to the numerous blows error was likely harmless given the physical evidence received by the victim is not backed by the evidence. The presented at trial to demonstrate defendant’s guilt — Lillian pathologist for the state testified that the victim received at Merrick’s personal effects were found in the defendant’s least one blow to the head that caused her death. She went on house and car and the gun found in the house matched that to explain that the body showed no evidence of more than one used to shoot the park ranger. Even if defense counsel had blow to the head, although she could not rule out that further called expert witnesses to testify on electrophoresis, it would blows might have occurred that did not show up on the body. not likely have changed the outcome of the culpability phase. Neither this testimony by the state’s pathologist, nor any other evidence, supports the prosecutor’s inference that the victim B. Prosecutorial Misconduct/Brady Issues was repeatedly hit and beaten. The remarks were prejudicial because they implied that defendant beat the victim beyond Defendant raises prosecutorial misconduct in two ways: all reason when the evidence shows that it is more likely the (1) Inappropriate comments during trial and sentencing and victim received one blow to the head that killed her. (2) failure to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Despite the inappropriate references by the prosecutor, we cannot say that his comments were “so fundamentally unfair 1. Prosecutor’s Comments. To grant relief for as to deny [the defendant] due process” based on the “totality prosecutorial misconduct, the prosecutor’s comments must of the circumstances.” Many of the improper comments came be “so fundamentally unfair as to deny [the defendant] due during the closing and the jury was instructed by the court process” based on the “totality of the circumstances.” shortly thereafter to look only to the evidence, not the Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974); accord comments of the lawyers. Furthermore, the considerable Kincade v. Sparkman, 175 F.3d 444, 445-56 (6th Cir. 1999) amount of physical evidence pointing to defendant’s guilt (prosecutorial misconduct found where prosecutor inferred cannot be ignored. The jury was likely to convict defendant that defendant committed other burglaries than the one for based on this evidence even had the prosecution not made the which he was standing trial). Specifically, our court takes improper comments. The comments went to the nature and into account: intent of the attack, not to defendant’s guilt or innocence of killing the victim. Accordingly, we find that the comments the degree to which the remarks complained of have a made by the prosecutor were error, but that the jury would tendency to mislead the jury and to prejudice the probably have returned the verdict of guilty anyway. accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the 2. Brady Violation. Under Brady, the prosecution must jury and the strength of the competent proof to establish disclose favorable evidence to the defendant. Favorable the guilt of the accused. evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en the proceeding would have been different.” United States v. banc) (citing United States v. Leon, 534 F.2d 667, 677 (6th Bagley, 473 U.S. 667, 682 (1985). Here, the question is Cir. 1976)); see also United States v. Carroll, 26 F.3d 1380 whether the government failed to preserve evidence that (6th Cir. 1994). might have been useful to the defendant. The defendant must show that the government (1) acted in bad faith in failing to No. 00-3663 Hamblin v. Mitchell 21 22 Hamblin v. Mitchell No. 00-3663
preserve the evidence; (2) that the exculpatory nature of the questioning occurred after he told the police he wanted a evidence was apparent and (3) the defendant was unable to lawyer and was told he couldn’t have one until Monday. obtain similar evidence. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). The tapes themselves contain mostly irrelevant and/or inadmissible ramblings of the defendant about himself. On The State’s firearm expert testified that there was a negative direct appeal, the Ohio Supreme Court found admission of the result on the defendant’s clothes for gunshot residue. The tapes to be harmless error because the physical evidence of defense was not notified of the results before trial; and, by the guilt was substantial. We agree. The tapes contained time of trial, the state had lost the evidence. Defendant claims information about prior crimes, vulgar language from that the evidence was necessary because it might have cast defendant concerning hatred of homosexuals and other doubt on whether he shot the ranger. (The shooting of the general information about defendant and his sordid past. ranger and the murder of Lillian Merrick were tried together.) Although the tapes should not have been admitted, we do not The district court, although finding the claim procedurally believe their introduction affected the guilty verdict. Much of defaulted, addressed it and found no bad faith on the part of the information on the tapes was cumulative of information the government and found the evidence of only “speculative” that was properly admitted, and the physical evidence materiality. pointing to defendant’s guilt was very strong, rendering this evidentiary error harmless. Again, given that the evidence of defendant’s guilt is substantial, we cannot find that a “reasonable probability” For the foregoing reasons, we reverse the judgment of the exists that the state’s failure “undermines confidence in the district court and order that the writ of habeas corpus be outcome of the trial.” Although the government should granted unless defendant receives a new penalty phase trial always turn over results from firearm tests, and it was at fault within 180 days of this order. for failing to do this here, this evidence would not have had an impact on the outcome of the guilt phase nor has it otherwise “undermined” our confidence in the outcome. C. Playing Defendant’s Taped Statements at Trial Defendant was arrested at a bar and taken to the police station at 11:30 P.M. the night of the incidents. His statement was taken a little after midnight but Hamblin was not actually cross-examined because he had been drinking. Two more statements were taped later that day and the next (Friday and Saturday, October 14 and 15, 1983). Defendant was given Miranda warnings before he was questioned and the prosecution claims that he waived his right to an attorney or to remain silent. Hamblin claims that he did not knowingly waive his Miranda rights and was told he could not see a lawyer until Monday. According to defendant, most of the No. 00-3663 Hamblin v. Mitchell 23 24 Hamblin v. Mitchell No. 00-3663
_________________ history of physical abuse, had no history of sexual abuse. Unlike Wiggins, who had no prior history of violence or DISSENT criminal activity, Hamblin had a criminal history that _________________ involved acts of violence. Unlike the petitioner in Glen, Hamblin cannot point to any medical opinion establishing ALICE M. BATCHELDER, Circuit Judge, dissenting. I neurological impairment or global brain damage, nor can he respectfully dissent from the granting of the writ, although I demonstrate mental retardation. And unlike the petitioner in agree that counsel’s assistance during the penalty phase of Glen, Hamblin cannot complain that while his own counsel Hamblin’s capital trial was deficient. The majority opinion failed to present evidence of his mental and psychological correctly reflects that prior to both the 2003 revisions to the deficits, the prosecutor presented expert testimony that he 1989 ABA Guidelines, and the Supreme Court’s decision in suffered from no such deficits. Wiggins v. Smith, 123 S. Ct. 2527 (2003), this circuit handed down several cases requiring that defense counsel in a capital Because I do not agree that there is a reasonable probability case perform a complete mitigation investigation, including that Hamblin’s jury, had it been presented with the evidence inquiry into the defendant’s social, physical, medical and of Hamblin’s ugly childhood, would not have imposed the mental history. This case law, which involved assistance of death penalty, I dissent from the granting of the writ. counsel rendered prior to the 1989 ABA Guidelines, sets a standard that is very similar to those 1989 Guidelines. And under the standard articulated by this court in, for example, Glen v. Tate, 71 F.3d 1204 (6th Cir. 1995), Hamblin’s counsel failed to do the mitigation inquiry required. I dissent from the granting of the writ because I do not agree with the majority opinion that defense counsels’ failure to make the necessary mitigation investigation resulted in the degree of prejudice necessary to meet the Strickland requirement. Hamblin is not like the defendant in Wiggins, who had been physically abused as a child and, more importantly insofar as the Court was concerned, had been sexually abused repeatedly in foster care throughout his childhood and adolescence. See, e.g., Wiggins, 123 S. Ct. at 2537 (“Had counsel investigated further, they may well have discovered the sexual abuse later revealed during state postconviction proceedings.”); at 2539 (“[T]he records contain no mention of sexual abuse, much less of the repeated molestations and rapes of petitioner detailed in the Selvog report.”); at 2539 (“The [Maryland Court of Appeals] also assumed, erroneously, that the social services records cited incidences of sexual abuse.”) Hamblin, although having a