Sowell v. Bradshaw

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 23, 2004
• Docket: 02-3441
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Sowell v. Bradshaw No. 02-3441 ELECTRONIC CITATION: 2004 FED App. 0193P (6th Cir.) File Name: 04a0193p.06 Collyer, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, Charles L. Wille, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for UNITED STATES COURT OF APPEALS Appellant. Mark A. Vander Laan, Christopher R. McDowell, DINSMORE & SHOHL, Cincinnati, Ohio, Randall L. Porter, FOR THE SIXTH CIRCUIT OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, _________________ Ohio, for Appellee.

BILLY JOE SOWELL , X ROGERS, J., delivered the opinion of the court, in which Petitioner-Appellee, - BATCHELDER, J., joined. MOORE, J. (pp. 31-36), - delivered a separate dissenting opinion. - No. 02-3441 v. - _________________ > , OPINION MARGARET BRADSHAW, - Warden, _________________ - Respondent-Appellant. - ROGERS, Circuit Judge. The state of Ohio indicted - Petitioner Billy Joe Sowell for murder, with a stipulation that N he could receive the death penalty. Relying on advice of his Appeal from the United States District Court counsel, Sowell opted to be tried by a three-judge panel rather for the Southern District of Ohio at Columbus. than by a 12-member jury. Sowell’s counsel was confident No. 94-00237—Edmund A. Sargus, Jr., District Judge. that one of the three judges on the panel would refuse to recommend death. The panel nevertheless imposed the death Argued: October 29, 2003 penalty, and Sowell’s direct and collateral appeals through the Ohio courts were unsuccessful. On federal habeas review, Decided and Filed: June 23, 2004 however, the district court granted a writ of habeas corpus, finding that Sowell’s jury waiver was not knowing and Before: BATCHELDER, MOORE, and ROGERS, Circuit intelligent, and that his counsel was ineffective. We reverse Judges. the district court’s grant of a writ of habeas corpus to Sowell because he has not demonstrated that his jury waiver was not _________________ knowing and intelligent or that his counsel was ineffective.

COUNSEL FACTS AND PROCEDUR AL HISTORY

ARGUED: Michael L. Collyer, OFFICE OF THE As the facts that underlie Sowell’s death penalty are not in ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for controversy, we rely on the Ohio Court of Appeals’s version: Appellant. Mark A. Vander Laan, DINSMORE & SHOHL, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael L.

1 No. 02-3441 Sowell v. Bradshaw 3 4 Sowell v. Bradshaw No. 02-3441

The record discloses that [Sowell] and [Calvert] building [Sowell] realized that he was not in the mood to Graham resided in adjacent apartments on the third floor retire for the evening, and instead presented himself at of an apartment building in downtown Cincinnati. Graham’s apartment. Graham greeted [Sowell] and [Sowell] was the resident manager of the building and invited him inside, where Edwards and Billups were also became acquainted with Graham, who performed present. Graham produced a marijuana cigarette which occasional odd jobs at the apartment building. After was consumed by all four occupants. Graham became a resident in [Sowell’s] apartment [Sowell] testified before the trial court that following building, the two men developed a friendly relationship the consumption of the marijuana, he fell asleep for a and visited one another in their respective residences. short time. When he awoke the others were still present On May 1, 1983, three days prior to the instant and [Sowell] discovered that approximately $190 had offenses, [Sowell] was a guest in Graham’s apartment. been removed from his trouser pocket. At first [Sowell] Also present were Donna Edwards (Edwards), a woman thought that the trio was playing a joke upon him; with whom Graham shared the apartment, and [Pam] however, his requests for the return of his money Billups [a former prostitute who had been visiting received no response. [Sowell] further testified that Graham and Edwards]. Graham offered two marijuana Graham then picked up a knife and ordered [Sowell] to cigarettes to [Sowell], which he accepted. Thereafter leave the residence. [Sowell] complied and departed, but [Sowell] left the apartment in the company of Billups and he was extremely angry as a result of his loss. proceeded to a nearby restaurant where he purchased Both Billups and Edwards told the trial court that dinner for her. En route to the restaurant, [Sowell] [Sowell’s] visit to the apartment on the day in question smoked the second marijuana cigarette, having consumed was at first friendly. However, [Sowell] soon became the first at Graham’s residence. Thereafter the pair made agitated and accused Billups of being unsociable in that their way to a hotel where [Sowell] rented a room. There she did not speak to him earlier that afternoon. [Sowell] was conflicting testimony concerning the events that also accused Billups of stealing $24 from him during transpired thereafter. However, it is not disputed that their encounter three days earlier. When [Sowell] [Sowell] eventually lost consciousness, having consumed referred to Billups in terms meant to insult her pedigree, an unspecified quantity of wine during the evening in Graham ordered [Sowell] to leave the premises. [Sowell] addition to the marijuana. The next morning [Sowell] left, stating that he was going to obtain his gun, return made his way back to his residence, stopping along his and shoot Billups. route to obtain breakfast for Billups. [Sowell] went directly to his apartment where he [Sowell] next encountered Billups on the afternoon of directed his common-law wife, Lenora Waugh (Waugh), May 4, 1983. Billups was in the company of Edwards to bring his gun to him. Waugh complied with that and the trio passed in the doorway of a store but did not request, as well as with [Sowell’s] instructions to acknowledge one another. As will be seen, this accompany him to Graham’s apartment. Upon returning seemingly inconsequential meeting gained significance to Graham’s door, Waugh, at [Sowell’s] instruction, later in the day. knocked and indicated to those inside that she was a That evening [Sowell] returned to his apartment woman named Portia. Graham responded to the door building after, according to his testimony, visiting no less and opened it. Edwards and Billups testified, and the than five taverns and consuming at least one double shot trial court found, that [Sowell] forced his way into the of vodka at each stop. Upon returning to his apartment apartment, firing a bullet from his handgun into the No. 02-3441 Sowell v. Bradshaw 5 6 Sowell v. Bradshaw No. 02-3441

ceiling as he entered. [Sowell] demanded to know of attempted murder in violation of O.R.C. §§ 2903.01(A) Billups’s whereabouts and threatened to shoot her. and 2923.02(A). The aggravated murder count contained a Graham was able to calm [Sowell] and began to escort capital specification alleging that the aggravated murder was him from the apartment and to close the door, whereupon part of a course of conduct involving the aggravated murder [Sowell] suddenly turned and shot Graham in the of one person and the attempt to murder another. See O.R.C. abdomen. As Graham fell, [Sowell] fired a second shot § 2929.04(A)(5) (“Imposition of the death penalty for into Graham’s skull. Graham fell to the floor, mortally aggravated murder is precluded, unless . . . the following is wounded. specified in the indictment . . . and proved beyond a [Sowell] next made his way to the closet in which reasonable doubt: . . . the offense at bar was part of a course Billups was cowering, and fired three bullets into her of conduct involving the purposeful killing of or attempt to body. [Sowell] next placed the gun to Billups’s forehead kill two or more persons by the offender.”).1 and pulled the trigger. However, the gun did not expel a bullet because it no longer contained ammunition. 1 [Sowell] left the apartment after warning Edwards not to Fox v. Coyle, 271 F.3d 658, 664 –65 (6th C ir. 200 1), briefly leave the premises or he would shoot her also. [Sowell] summ arizes O hio’s capital sentencing system. returned to his apartment, obtained money and made his way to a nearby tavern where he was apprehended by the In common with other states that emp loy the d eath pena lty, Ohio uses a weighing method to determine whether an police. individual charged with a capital offense receives the death [Sowell] testified regarding the shootings and told the penalty. An ind ividual beco mes eligible for the death penalty court that he returned to Graham’s apartment to demand only if one or more of a series of statutory aggravating his money and that he was confronted by Graham, who circumstances “is specified in the indictment . . . and proved was armed with a knife. [Sowell] stated that it was only beyond a reasonable doubt.” [O .R.C.] § 29 29.0 4(A). . . . Once an individual has been found guilty of a capital offense, a jury or after Graham made a furtive movement that [Sowell] three-judge pane l must determine whether the presence of one began shooting at Graham, and that one of the bullets or more of the nine statutory aggravating circumstances listed at struck the ceiling. [Sowell] explained his conduct as [O.R .C.] § 2929.0 4(A) outweighs the mitigating circumstances follows: “It just, I just clocked out. When I seen that presented by the defendant. The three-judge panel [or jury is person going this way I just pivoted, I pivoted on my then] required to “weigh against the aggravating circumstance proved beyond a reasonable doubt, the nature and circumstances gun, I was shooting, I was angry, I started shooting, I just of the offense, the history, character, and background of the started shooting everybody I seen.” offender, and all of the following factors [listing factors such as age, mental disease , and p rovo cation].” [O .R.C.] § 2929 .04(B). Ohio v. Sowell, No. C-830835, 1986 WL 9082, at *1–*2 (Ohio Ct. App. Aug. 20, 1986) (footnotes omitted); see In weighing the aggravating circumstances against the mitigating factors, the also Ohio v. Sowell, 530 N.E.2d 1294, 1297–98 (Ohio 1988). court, and the trial jury if the offender was tried by a The Trial Court Proceeding jury, [1] sha ll consid er . . . any evidence raised at trial that is relevant to the aggravating circumstances the On May 26, 1983, a Hamilton County grand jury indicted offender was found guilty of committing or to any Sowell on one count of aggravated murder in violation of factors in mitigation of the imposition of the sentence of death, [2] shall hear testimony and other evidence Ohio Revised Code (“O.R.C.”) § 2903.01(A), and one count that is relevant to the nature and circumstances o f the No. 02-3441 Sowell v. Bradshaw 7 8 Sowell v. Bradshaw No. 02-3441

On October 14, 1983, Sowell appeared before the trial The State Post-Conviction Proceedings judge, Judge Crush. Sowell waived his right to a jury trial and asked to be tried by a three-judge panel, as Ohio’s capital On December 20, 1989, Sowell filed in the Hamilton scheme allows. See O.R.C. § 2945.06. Trial began on County Court of Common Pleas a post-conviction petition October 18, and on October 20 the panel unanimously found that raised 41 claims for relief, the 29th of which argued that Sowell guilty of all charges, including the capital Sowell’s jury waiver was not knowing, voluntary, and specification. The sentencing phase (also called the intelligent. His sole support for this claim was an affidavit “mitigation phase”) was held on November 2, and, on the attached to the petition, in which he averred that he had following day, the panel sentenced Sowell to death on the waived his right to a jury trial only because his counsel had aggravated murder count and 7 to 25 years on the attempted assured him that he would not receive a death sentence if he murder count. went with a three-judge panel. Specifically he stated, “I would not have waived my right to a trial by jury if my The Direct Appeal counsel had not informed me that such a waiver would mean that my life would be spared.” J.A. at 262. Though the trial Sowell appealed to the Ohio Court of Appeals, which court could have found that he had procedurally defaulted on affirmed the conviction and sentence on August 20, 1986. this claim because he could have raised it on direct appeal, Sowell, 1986 WL 9082. The Supreme Court of Ohio see Ohio v. Cole, 443 N.E.2d 169, 170–71 (Ohio 1982) similarly affirmed, on November 16, 1988, see Sowell, 530 (setting out Ohio’s rules for raising new claims on post- N.E.2d 1294; and the U.S. Supreme Court denied certiorari, conviction appeal), the court instead found a more indirect see Sowell v. Ohio, 490 U.S. 1096 (1989). This ended default by holding that Sowell’s “self serving” affidavit was Sowell’s direct appeal. Thus far, Sowell had not complained insufficient to rebut the presumption of validity established by that his waiver of jury trial had been invalid. his and his attorney’s on-the-record assurances to the trial court that the waiver was knowing and intelligent. Overall, the court granted summary judgment to the state. aggravating circumstances the offender was found With respect to his jury trial waiver, Sowell appealed to the guilty of committing, the mitigating factors set forth in Ohio Court of Appeals and argued that he was entitled to division (B) of sectio n 2929.0 4 of the Revised Code, relief because “he was promised a life sentence by his trial and any other factors in mitigation of the imposition of the sentence o f death, and [3 ] shall hea r the statem ent, attorneys if he waived his right to a jury trial.” J.A. at 340. if any, of the offender, and the arguments, if any, of In a new claim, he further argued that counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the trial counsel was ineffective due to their waiving a jury offend er. trial without adequately assuming that Appellant’s life would be spared. A jury should only be waived if [O.R .C.] § 29 29.0 3(D )(1). Finally, if the court or three-judge panel impo ses the sentence of death, it must sp ecify in a separate counsel has received sufficient assurances that a three opinion the aggravating and mitigating circum stances found to judge panel will in fact spare the accused’s life. To try be present as well as “the reasons why the aggravating the case without sufficient assurances does not meet the circumstances the offender was found guilty of committing were prevailing standards of practice for capital defense sufficient to outweigh the mitigating factors.” [O.R.C.] attorneys. § 29 29.0 3(F). No. 02-3441 Sowell v. Bradshaw 9 10 Sowell v. Bradshaw No. 02-3441

J.A. at 341 (citations omitted). The Ohio Court of Appeals The Present Federal Habeas Petition agreed with the trial court that Sowell’s affidavit was not enough to rebut the presumption established by Sowell’s Sowell renewed his federal habeas petition on May 24, representations to the original trial court that his waiver was 1994, raising 52 claims. Only two of these claims are knowing and valid. Ohio v. Sowell, 598 N.E.2d 136, 143 involved in the present appeal. They are as follows: (Ohio Ct. App. 1991). The Ohio Court of Appeals did not address Sowell’s current ineffective assistance argument, Fifth Ground for Relief. The action of trial counsel apparently finding that it was procedurally defaulted. See id. deprived Petitioner Sowell his right to the effective at 142. Sowell’s subsequent appeal to the Supreme Court of assistance of counsel during the trial phase of his case in Ohio, which appeal again raised the jury waiver issue, was violation of the Fifth, Sixth, Eighth and Fourteenth dismissed for lack of jurisdiction. Ohio v. Sowell, 579 N.E.2d Amendments to the United States Constitution. 1394 (Ohio 1991). .... Thirty-Fourth Ground for Relief. Petitioner Sowell’s The Initial Federal Habeas Petition, and the Murnahan waiver of a jury trial which was not knowingly, Application intelligently and voluntarily entered violated his rights as guaranteed by the Sixth, Eighth and Fourteenth Sowell filed a federal habeas petition in April of 1992, but Amendments to the United States Constitution. the district court dismissed the petition without prejudice for lack of exhaustion, finding that Sowell could perhaps raise his J.A. at 95, 157. Sowell’s Fifth Claim asserted that counsel ineffective assistance of appellate counsel claims via the had not received sufficient assurances that a jury waiver Supreme Court of Ohio’s newly-created Murnahan would avoid the death penalty, and the Thirty-Fourth Claim application procedure.2 However, the Ohio courts denied his asserted that Sowell’s waiver of a jury trial was Murnahan motions. Ohio v. Sowell, 622 N.E.2d 649 (Ohio constitutionally inadequate. 1993). For the next five years, the parties litigated various issues, including discovery, expansion of the record, merits briefing, and whether Sowell should be granted an evidentiary hearing. In 1994 the Warden sought to have 31 of Sowell’s 2 claims—including the Thirty-Fourth claim but not the In Ohio v. Murnahan, 584 N.E.2d 1204 (O hio 1992)— a case handed down a couple of months before Sowell filed his federal habeas Fifth—dismissed due to procedural default. On February 18, petition— the Supreme Court of Ohio considered whether a defendant 1998, the district court issued an Opinion and Order finding could com plain o f ineffective a ssistance of appellate counsel in state that six of the claims were defaulted, but that the Thirty- post-conviction proceed ings und er the state’s post-conviction appeal Fourth claim was not. The following month, on March 10, statute, O.R.C. § 295 3.21. The court held that defend ants cannot do this, Sowell filed a motion for an evidentiary hearing on various of and instead must file a motion for delayed reconsideration with the appellate court in which the alleged error took place. See 584 N.E.2d at his claims, including the Fifth Ground but not the Thirty- 120 9. Notably, the procedure required by Murnahan was the procedure Fourth. Earlier, on January 27, 1998, Sowell had filed a that had been required since at least 1983 by the Ohio Court of Appeals traverse that requested an evidentiary hearing on the Thirty- in Hamilton County, where Sowell’s trial and appeal were conducted. See Fourth claim. On September 29 of the same year, the district Oh io v. Rone, No. C-820640, 1983 WL 5172, at *4 (Ohio Ct. App. Aug. court issued an Opinion and Order that granted an evidentiary 31, 1983 ). No. 02-3441 Sowell v. Bradshaw 11 12 Sowell v. Bradshaw No. 02-3441

hearing for the Fifth and the Thirty-Fourth claims on the On October 5, 2001, the district court partially granted a grounds that the state court’s post-conviction findings “were conditional writ of habeas corpus, finding that Sowell had inadequate to resolve the factual dispute of whether properly waived his right to a jury in relation to the guilt petitioner’s jury waiver was induced by erroneous assurances phase of his trial, but not the sentencing phase. The court left on the part of his trial attorneys . . . .” J.A. at 427. The court undisturbed Sowell’s 7- to 25-year sentence for attempted also allowed Sowell to expand the record by including an murder, and gave Ohio the option of retrying Sowell entirely, affidavit from Martin Pinales, one of his two trial attorneys, or of leaving the conviction in place and imposing any on the jury waiver issue. This was the second expansion of sentence Ohio law permits, other than death. The court did the record granted by the court regarding the jury waiver not address Sowell’s other grounds for relief. The Warden issue, since earlier in the litigation the court had allowed filed a motion to alter or amend, which the court denied, and Sowell to add to the record the correspondence between a motion to stay, which the court granted. The Warden, Pinales and post-conviction counsel on this issue. currently Margaret Bradshaw, now appeals. The district court conducted an evidentiary hearing on DISCUSSION April 21, 1999, at which Sowell presented four witnesses: Pinales, Sowell, Dr. Gelbort (a neuropsychologist), and Since Sowell filed his habeas petition prior to 1996, pre- Donald Schumacher (an “attorney-expert”). At this hearing, AEDPA standards apply. Powell v. Collins, 332 F.3d 376, Pinales testified to his belief that Sowell’s life would be 388 (6th Cir. 2003). Under those standards, we review de spared by a three-judge panel because of inferences from his novo a district court’s legal conclusions in granting a writ of discussion with Judge Crush at a pretrial conference.3 Pinales habeas corpus, and for clear error the district court’s factual admitted that he strongly suggested to Sowell that he choose findings. Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir. the three-judge panel to avoid the death penalty. Sowell 2000). The writ of habeas corpus may only issue if the state testified that he “had faith and conviction and belief in [his] court proceedings were fundamentally unfair as a result of a attorney” and he “thought that [he] wasn’t going to get the “violation of the Constitution or laws or treaties of the United death penalty” by waiving the jury. J.A. at 573. Dr. Gelbort States.” See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 opined that Sowell’s ability to reason, ponder and project into U.S. 62, 67–68 (1991). The state court’s factual findings are the future were in the bottom two percent of the population. entitled to a presumption of correctness, which is rebuttable Schumacher stated that Pinales’ counseling of Sowell—a only by convincing evidence. 28 U.S.C. § 2254(d) (now client with abnormally low intelligence—was deficient repealed)4; McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th because the “downside” of the choice was not explained by Cir. 1996). This presumption only applies to basic, primary, counsel or in the waiver colloquy with the court. or historical facts, and to “implicit findings of fact, logically deduced because of the trial court’s ability to adjudge the witnesses’ demeanor and credibility.” McQueen, 99 F.3d at 1310. The presumption does not apply to mixed questions of law and fact, or questions of law, both of which are reviewed 3 Pinales testified that his “impression of the overview of what occurred” was that Pinales “got the feeling in the discussions with Judge 4 Crush that if a jury was waived, this would not be a capital case.” J.A. at All citations to § 2254 in this opinion refer to the pre-AEDPA 525. version. No. 02-3441 Sowell v. Bradshaw 13 14 Sowell v. Bradshaw No. 02-3441

de novo. Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. The legal ground underlying this argument is the principle 2001). that “the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which I. Procedural Default it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); but see Prather v. Rees, 822 A. Abandonment of the Jury Waiver Claim in Sowell’s F.2d 1418, 1421 (6th Cir. 1987) (“[I]f the difference is merely Post-Conviction Appeal a variation in the legal theory, rather than a different legal claim, [then the petitioner] has exhausted his claim.”). In Contrary to the Warden’s argument, Sowell did not Wong, the petitioner had argued to the state courts that her “abandon” his ineffective-jury-waiver claim in his post- counsel was ineffective for failing to present an insanity conviction appeal. Sowell first raised the jury waiver issue in defense, but on appeal she attempted to argue in addition that his post-conviction proceedings before the Ohio trial court as her counsel was ineffective for prematurely abandoning the his twenty-ninth cause of action, arguing that “Petitioner search for an expert who would say she was insane, even Sowell’s waiver of a jury trial was not a knowing and though two experts had already found that she was not insane. intelligent waiver of his right to a jury trial” because Wong, 142 F.3d at 319-22. The panel found that the latter “Petitioner was advised by his counsel that if he waived his claim advanced a new theory, and was procedurally defaulted. jury trial, he would not receive the death penalty.” J.A. at Id. at 321-22. 244–45. He raised this argument again before the Ohio Court of Appeals. And on appeal to the Supreme Court of Ohio, he It is not necessary for us to determine whether Sowell has raised it again, this time with a little more legal argument. raised a different legal claim here, or merely presents a variation in legal theory, because we are persuaded that the B. Presentation of Jury Waiver Claim on Grounds Other Warden, by advising the district court that she would not Than Those Presented to the State Court object to the testimony of Dr. Gelbort that supported the claim, has waived her right to object. Sowell argued to the state courts that his waiver was not knowing because he acted in reliance on his counsel’s C. Failure to Attach Sufficient Documentation to Support erroneous assurances, but he did not argue, as he does now, Sowell’s Jury Waiver and Ineffective Assistance that his waiver was not knowing because he did not Claims When He Raised Them in State Post- understand what he was giving up, due to the trial judge’s and Conviction Proceedings Sowell’s attorney’s failure to warn him adequately of the dangers of his choice, and due to his own mental deficiencies. The Warden’s final default argument fails because she did Nevertheless, the district court considered these latter not raise it below. The Warden contends that Sowell grounds. The Warden contends that this was error, and defaulted both of the claims relevant to this appeal by failing argues that the court should have found these grounds to satisfy Ohio’s requirement that a petitioner in a post- procedurally defaulted. Consequently, the Warden argues, conviction proceeding produce more than a self-serving the issue-as-presently-framed is distinct from that presented affidavit to rebut the presumption that a proceeding on the to the state courts, and it is hence procedurally defaulted. record was somehow invalid. See Ohio v. Kapper, 448 N.E.2d 823, 826 (Ohio 1983) (“[A] petition for post-conviction relief is subject to dismissal without a hearing No. 02-3441 Sowell v. Bradshaw 15 16 Sowell v. Bradshaw No. 02-3441

when the record . . . indicates that the petitioner is not entitled conduct a hearing on the claims that were the basis of the to relief and that the petitioner failed to submit evidentiary district court’s judgment. The district court held that the state documents containing sufficient operative facts to court’s finding “is subject to review and an evidentiary demonstrate that the guilty plea was coerced or induced by hearing in this Court under 28 U.S.C. §§ 2254(d)(2) and false promises.”). The Ohio courts rejected Sowell’s claim (d)(3).” J.A. 426–27. The district court concluded that for this reason. See J.A. at 318; Ohio v. Sowell, 598 N.E.2d because Sowell was not attempting to present evidence that 136, 143 (Ohio Ct. App. 1991). The Sixth Circuit has was not presented, at least in some fashion, to the Ohio recognized Ohio courts’ dismissal for failure to provide courts, cause and prejudice was not required. documentation as a sufficient basis for finding a procedural default. See Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir. The Warden challenges that decision by the district court, 2002) (finding that the failure to attach documentation can arguing that Sowell needed to demonstrate cause and result in a procedural default). prejudice or a fundamental miscarriage of justice before the district court could hold an evidentiary hearing. However, in However, the Warden did not make this argument to the Abdur’Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), we district court. The Warden concedes that the failure to raise explained that even though the cause and prejudice the issue before the district court may mean that the argument requirement had to be met for petitioner to be entitled to a is forfeited. Procedural default is a defense “that the State is hearing, the district court nonetheless has inherent authority obligated to raise and preserv[e] if it is not to lose the right to to hold an evidentiary hearing even if petitioner is not entitled assert the defense thereafter.” Trest v. Cain, 522 U.S. 87, 89 to one. Abdur’Rahman, 226 F.3d at 706 (“Because the (1997) (internal quotation marks omitted). Further, district court properly ordered an evidentiary hearing pursuant procedural default is not a jurisdictional matter, and “[a] court to its inherent authority to do so, the issue of whether of appeals is not ‘required’ to raise the issue of procedural Petitioner is entitled to an evidentiary hearing [via a showing default sua sponte.” Id. Nonetheless, this court may consider of cause and prejudice] is irrelevant and will not be a newly-raised default argument, if it so wishes. See, e.g., addressed.”). It was therefore not error for the district court Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000) to exercise its inherent power to hold an evidentiary hearing, (“While procedural default is not a jurisdictional bar to review without undertaking a cause and prejudice analysis. of such a claim, and the Government’s failure to raise the default may operate as a forfeiture of its right to defend on III. Knowing and Intelligent Waiver that ground, we nonetheless may raise these issues sua sponte.” (citations omitted)). In light of the resources that Reaching now the merits, we conclude that Sowell has have been expended by the district court and the serious failed to present enough evidence to rebut the presumption of consequences facing Sowell, and because the Warden did not a knowing and intelligent jury waiver. We review de novo make this argument to the district court, we exercise our the largely legal question of whether a petitioner’s waiver of discretion not to reach the documentation-default issue. a jury trial was knowing, intelligent, and voluntary. Lott v. Coyle, 261 F.3d 594, 610 (6th Cir. 2001) II. Expansion of the Record and Evidentiary Hearing To find a constitutional error, the district court merged the Notwithstanding the Warden’s additional argument, the validity of the waiver with the question of ineffective district court, under our precedent, had the authority to assistance of counsel. The district court found that No. 02-3441 Sowell v. Bradshaw 17 18 Sowell v. Bradshaw No. 02-3441

[s]ince the Constitution does not require an on-the-record the court must be had, in addition to the express and colloquy, and because the validity of a jury waiver is to intelligent consent of the defendant. And the duty of the be determined from the totality of the circumstances, the trial court in that regard is not to be discharged as a mere conduct of a defendant’s attorney must also be matter of rote, but with sound and advised discretion, considered. In other words, counsel has a duty, along with an eye to avoid unreasonable or undue departures with the trial court, to ensure that the defendant from that mode of trial or from any of the essential understands the nature of the right and the consequences elements thereof, and with a caution increasing in degree of waiving the right. Counsel’s recommendation to as the offenses dealt with increase in gravity. waive trial by jury does not amount to constitutional ineffectiveness if the recommendation was reasonable Patton v. United States, 281 U.S. 276, 312–13 (1930) trial strategy. (emphasis added). Federal Rule of Criminal Procedure 23(a) accordingly provides that cases in which a defendant is Sowell v. Anderson, No. C-1-94-237, 2001 WL 1681142, at entitled to a jury trial shall be so tried unless the defendant *15 (S.D. Ohio Oct. 5, 2001); see also id. (“The duty to waives a jury trial in writing with the approval of the court ensure that a criminal defendant’s jury trial waiver is knowing and the consent of the government. It is undisputed that and intelligent rests primarily with the trial court, but is also Sowell signed such a written waiver. See J.A. 730-32. As all shared by counsel.”). The district court cited no legal of the other formal aspects of a jury waiver were complied precedent to support its commingling of the doctrines, and with as well, the intelligent consent of Sowell is the sole this court has found none. Therefore, we decline to follow the component of a jury waiver that is at issue in the present case. mixing approach, and instead consider each claim separately on the merits. The district court in this case imposed requirements on the jury waiver procedures that are not constitutionally required. The only issue with regard to whether Sowell waived his “Compliance with the requirements of [Federal Rule of jury right is whether he “intelligently consented.” According Criminal Procedure 23(a)] creates a presumption that the to the Supreme Court, “the right to jury trial in serious waiver is a voluntary, knowing and intelligent one.” United criminal cases is a fundamental right and hence must be States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985); see also recognized by the States as part of their obligation to extend United States v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990). due process of law to all persons within their jurisdiction.” Although we will not presume waiver from a silent record, the Duncan v. Louisiana, 391 U.S. 145, 154 (1968). Although burden of demonstrating that a waiver of jury trial was not under the common law, defendants were not allowed to waive valid lies with the defendant who waived it. The Supreme this right, the Supreme Court has held that defendants can do Court has expressly held that: so, under certain conditions: a determination of guilt by a court after waiver of jury Not only must the right of the accused to a trial by a trial could not be set aside and a new trial ordered except constitutional jury be jealously preserved, but the upon a plain showing that such waiver was not freely and maintenance of the jury as a fact finding body in criminal intelligently made. If the result of the adjudicatory cases is of such importance and has such a place in our process is not to be set at naught, it is not asking too traditions, that, before any waiver can become effective, much that the burden of showing essential unfairness be the consent of government counsel and the sanction of sustained by him who claims such injustice and seeks to No. 02-3441 Sowell v. Bradshaw 19 20 Sowell v. Bradshaw No. 02-3441

have the result set aside, and that it be sustained not as a outlined therein are not constitutionally required. See matter of speculation but as a demonstrable reality. Sammons, 918 F.2d at 597. Specifically, the Sammons court stated: Adams v. United States ex rel. McCann, 317 U.S. 269, 281 (1942). The statement that this knowledge is sufficient is not, of course, equivalent to a statement that it is constitutionally This court in United States v. Martin, 704 F.2d 267 (6th required. In fact, the Seventh Circuit has held that a Cir. 1983), identified in dicta some specific aspects of a jury defendant who “understood that the choice confronting trial about which a defendant should have at least some him was, on the one hand, to be judged by a group of knowledge before waiving a jury trial. The court observed people from the community, and on the other hand, to that have his guilt or innocence determined by a judge” had knowingly and intelligently waived his right to trial by a defendant ignorant of the nature of the jury trial right jury. cannot intelligently weigh the value of the safeguard. A defendant, therefore, should have both the mental ability Id. (emphasis in original). The court went on to hold that and some knowledge of the jury trial right before he is “[w]hile the district court failed to conduct the suggested allowed to waive it. A technical knowledge of the jury colloquy in this action, the record does not disclose any trial right, however, is not what is required. A defendant evidence that Sammons was so unaware of the rudimentary is sufficiently informed to make an intelligent waiver if elements of trial by jury that his waiver cannot stand.” Id. he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the The district court erred in treating the dicta in Martin as jurors, the verdict of the jury must be unanimous, and setting forth a statement of constitutional law. See Sowell, that a judge alone will decide guilt or innocence should 2001 WL 1681142, at *15. (“The Sixth Circuit has held that he waive his jury trial right. Knowledge of these in order for a jury waiver to be knowing and intelligent as a essential attributes is generally sufficient to enable a matter of constitutional law, the record must reflect at a bare defendant to make a knowing and intelligent decision. minimum the following understandings on the part of the defendant: that the jury is composed of twelve members of Martin, 704 F.2d at 273 (citations omitted). In Martin, the community, that the defendant may participate in the however, the court explicitly stated that there is no selection of the twelve jurors, that any verdict rendered by the constitutional requirement for the trial court to conduct a jury must be unanimous, and that a judge alone will decide colloquy with the defendant prior to a jury waiver. Id. at 274- guilt or innocence if a jury trial is waived.” (emphasis 75.5 added)). The district court added that “[b]oth Sammons and Martin require that a defendant be aware of and understand In Sammons, this court considered the Martin passage and that any verdict returned by a jury must be unanimous.” Id. expressly stated that the elements of a knowing jury waiver Sammons does not support that proposition. Rather, the Sammons court merely quoted Martin’s “unanimous” requirement, and then stated that Martin was not necessarily 5 establishing constitutional requirements. See Sammons, 918 W e nonetheless strongly recommended such a colloquy, and F.2d at 597. Contrary to the district court’s decision, neither continue to do so. No. 02-3441 Sowell v. Bradshaw 21 22 Sowell v. Bradshaw No. 02-3441

case established a constitutional requirement that the The district court found the trial court’s colloquy first lacked defendant understand that the verdict must be unanimous. an inquiry as to whether Sowell “understood that he had the right to participate in the selection of jurors.” Sowell, 2001 In applying the law, as the district court saw it, to the facts, WL 1681142, at *16. This inquiry is recommended by the court found several deficiencies in Sowell’s waiver. The Martin. Martin, 704 F.2d at 273. However, as described first alleged “deficiencies” relate to what was and, more above, neither Sammons nor Martin mandated that a colloquy importantly, what was not contained in the colloquy between discussing the defendant’s understanding of his role in the trial court and Sowell regarding his waiver of a jury trial.6 selecting a jury was a constitutional requirement for jury waiver. Martin, 704 F.2d at 274-75; Sammons, 918 F.2d at 597. Consequently, the trial judge did not commit 6 constitutional error by failing to include this question in the The colloquy included the following discussion: colloquy. THE C OURT: A ll rig ht, M r. Sow ell, I have been told by your attorne ys that you w ish to give up your right to trial b y jury in The district court was also disturbed that the trial court this case, is that correct? failed to ask Sowell during the colloquy if he understood that SOW ELL: Yes, sir. THE COU RT: You discussed this at length with your attorneys? SOW ELL: Yes, sir. THE CO URT: And any remaining questions unanswered? SOW ELL: Yes, sir. SOW ELL: No , sir. THE COU RT: N ow do you understand that in the running of the THE COURT : All right now, do you understand that both the case I have some other things here I may not be required to tell Constitution of the United States and the Constitution of the you, but I will tell you so you understand it. That in a general State of Ohio gives [sic] you [an] absolute right to a trial by jury running of the case the deciding of motions such as you have in if you wish it, do you understand that? this case deciding of anything other than your guilt or innocence SOW ELL: Yes, sir. then two of the three judges can decid e that. That does not have THE CO UR T: A nd do you understand that a jury w ould consist to be unanim ous, do you understand that? of 12 people? SOW ELL: Yes, sir. SOW ELL: Yes, sir. THE COU RT: And of course do you understand that, of course, TH E COU RT : Twelve of your peers, do you understand that? before the maximum penalty could be before – Okay, do you SOW ELL: Yes, sir. understand that the judges to sit with this Court, that is the other THE COURT: And you understand that before a jury could find two judges will be selected by the presiding Judge. I am not the you guilty of the charge against you or any other charge, they presiding Judge of the Common Pleas Court, but that presiding would have to agree unanim ously. T hat means that all 12 would Judge of the Common Pleas Court will decide who the other two have to agre e, you understand that? judges will be? SOW ELL: Yes, sir. SOW ELL: Yes, sir. THE COU RT: Now if you are tried by a three-judge panel you THE COURT: Do you understand that your attorneys cannot understand that before those three judges could find you guilty control that nor can you? of anything, whether it is the crime you are charged with or SOW ELL: Yes, sir. some lesser included charge, all three of them would have to THE COURT: Any other right you can think of I shou ld discuss agree, they could no t convict you un less they unanimo usly with him. agree d, do you understand that? PROSECUTOR: I believe you pretty well covered it, Your SOW ELL: Yes, sir. Hono r. THE CO UR T: Bu t it would be three people, not 12 deciding your guilt or inno cence, do you understand that? J.A. at 728-30. No. 02-3441 Sowell v. Bradshaw 23 24 Sowell v. Bradshaw No. 02-3441

the jury would decide whether or not to recommend a death (emphasis in original). However, as previously noted the sentence and that such a decision by the jury must be colloquy was not constitutionally deficient. Further, Ohio unanimous. Sowell, 2001 WL 1681142, at *16-*17. The courts have held that it is necessary for a petitioner in a post- district court also found the colloquy insufficient because the conviction proceeding to produce more than a self-serving trial court did not ask Sowell if anyone promised or induced affidavit in order to rebut the presumption that a proceeding him to waive his right to a jury trial or if he understood that on the record was valid.7 See Kapper, 448 N.E.2d at 826. a jury waiver would still leave him eligible a death sentence. Thus, the Ohio courts’ decisions to look only at the colloquy Id. Martin does not list these alleged deficiencies in its and the written waiver was reasonable. See, e.g., J.A. at 318; passage recounting aspects of a generally sufficient colloquy, Ohio v. Sowell, 598 N.E.2d 136, 143 (Ohio Ct. App. 1991). Martin, 704 F.2d at 273, and there is no basis for concluding that it was constitutional error for the trial court not to Further, the district court concluded from evidence conduct inquiries on these specific issues. presented at the evidentiary hearing that information conveyed either directly or indirectly from defense counsel The district court found that the sum of all of these caused Sowell to believe that he would not receive a capital deficiencies “demonstrate[d] that petitioner’s waiver of his sentence if he waived a jury. Sowell, 2001 WL 1681142, at right to a jury trial was not knowingly made.” Sowell, 2001 *18. Pinales testified at the hearing as follows: WL 1681142, at *17. However, the Martin court clearly held that colloquies are not constitutionally required and that an A. [Pinales] . . . I believed that I would not be involved extremely perfunctory waiver with no colloquy was in a death penalty case if there was a three-judge constitutionally adequate. Martin, 704 F.2d at 274-75. panel. I believe[d] that because that was my Further, although capital cases do require a more extensive impression of what Judge Crush said to me. Did I colloquy than other types of cases, the simple fact that the convey that to my client? Absolutely. Did I tell him case is capital does not mandate an exhaustive colloquy. See that this is etched in tablets that I brought down Lott, 261 F.3d at 614–15 (finding—in a capital case—that a from a mountain? Absolutely not. colloquy much more perfunctory than that in the present case Q. Do you recall if you would have stated it to him in was constitutionally sufficient). Thus, the cumulative effect terms of a promise? of these alleged colloquy deficiencies does not require a A. No, I would not have said it as a promise. finding that Sowell’s waiver was not intelligent. J.A. at 562; see also id. at 566 (“I did not say to Mr. Sowell, Another deficiency that the district court found involved [‘Y]ou waive a jury, and you will not be given the death “the virtual absence of any state court findings on the issue of penalty.[’] I believe from the tone of everything I said, that whether petitioner’s jury trial waiver was knowing and intelligent[,]” because “[t]he state courts refused to inquire as to the validity of the waiver of trial by jury, beyond review of 7 As previously noted in the procedural default discussion, this circuit the in-court colloquy and the waiver form.” Sowell, 2001 WL has recognized the failure to provide documentation in an Ohio court as 1681142, at *17-*18. The district court again noted in this an adeq uate basis for dismissing on procedural de fault grounds. See, e.g., context that “the in-court waiver colloquy was deficient in Lorraine, 291 F.3d at 426. If failure to provide d ocumentation is that petitioner was never advised that both verdicts had to be adequate to support proc edural default, it must also be adequate to support the decisio n of the state court not to expand the scop e of the evidence unanimous before a death sentence could issue.” Id. at *17 reviewed to determine w hether a jury wa iver was intelligent. No. 02-3441 Sowell v. Bradshaw 25 26 Sowell v. Bradshaw No. 02-3441

was certainly the connotation, but that was not—I couldn’t expert testimony. We cannot say that these findings are swear that I said those specific words.”). clearly erroneous. The district court concluded that “it is clear that the petitioner exhibited comprehension deficits and The record reflects that Pinales formed a strong impression that petitioner decidedly misapprehended that, if he waived from the discussions with Judge Crush during the pre-trial his right to a jury trial, he would not be sentenced to death.” conferences in this case that Judge Crush would not impose Sowell, 2001 WL 1681142, at *18. Even with limited the death penalty. Pinales, assuming he had a sound strategy cognitive skills and intelligence, however, the question still that would spare Sowell’s life, advised Sowell that he should turns on just what Sowell “misapprehended.” Even with waive his right to a jury trial. Sowell thought it was best to comprehension deficits and limited intelligence on the part of trust his attorney, so he waived his right. Unfortunately for Sowell, there is no basis for concluding that he thought that Sowell, the three judge trial ended with a capital sentence. It he was legally guaranteed not to be sentenced to death. The might be significant whether Pinales led Sowell to believe, record supports at most that Sowell understood his chances of and whether Sowell in fact believed, that the panel of judges avoiding the death penalty were much greater if he waived a could not deliver the death penalty (because, for example, the jury trial. Such “misapprehension,” even if exacerbated by law allowed juries but not judge-panels to deliver the comprehension deficits and limited intelligence, still amounts penalty), or whether it was only an estimation or prediction to the taking of a calculated litigation risk and thus still does that they would not deliver it. Such a distinction indicates a not amount to a lack of intelligent consent. difference between a mistake of law (which if corrected could have changed Sowell’s choice) and taking a risk to lessen the The dicta in Martin did not establish the precise minimal chance of a death sentence. Neither the district court nor the constitutional requirements for an intelligent waiver. In parties focused on this distinction. They appear, to varying contrast, this court in Sammons approved of the statement by degrees, to assume Sowell was taking a risk. This record the Seventh Circuit that there is a knowing and intelligent contains no evidence that Pinales told Sowell that the panel of waiver where the defendant “‘understood that the choice judges could not impose the death penalty, and Sowell has not confronting him was, on the one hand, to be judged by a presented evidence to support a finding that he believed that group of people from the community, and on the other hand, the panel could not impose the death penalty. To the extent to have his guilt or innocence determined by a judge . . . .’” that the district court implied that Sowell made a mistake of Sammons, 918 F.2d at 597 (citing United States ex rel. law (i.e., that Sowell believed that a three-judge panel could Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir. 1983)). not sentence him to death), it committed clear error. Sowell The evidence only supports a conclusion that, despite his took a litigation risk and lost; these facts alone do not create intellectual limitations, Sowell understood this choice. a constitutional violation. Hence, Sowell’s jury waiver survives constitutional scrutiny, and a writ cannot issue on the ground that it did not. The district court’s conclusion that Sowell did not “intelligently consent” to jury waiver was also based on the IV. Ineffective Assistance of Counsel court’s findings that Sowell had a “low level of cognitive skills and comprehension” and less-than-average, “limited” As Sowell made a constitutionally effective waiver of his intelligence. The former finding was supported by the district right to a jury trial, his only remaining claim is ineffective court’s observations of Sowell during the evidentiary hearing assistance of trial counsel. Sowell, however, has not and testimony by Pinales; the latter finding was supported by demonstrated that his counsel’s performance was No. 02-3441 Sowell v. Bradshaw 27 28 Sowell v. Bradshaw No. 02-3441

unreasonable. “A claim of ineffective assistance of counsel 615 (6th Cir. 2001); Cobb v. Perini, 832 F.2d 342, 347 (6th presents a mixed question of law and fact; therefore we Cir. 1987). review both the state court and district court determinations de novo. Our de novo review includes both the performance Neither the Warden nor the district court cited the and prejudice components of an ineffective assistance claim.” Strickland two-part test, apparently assuming the ineffective Coleman v. Mitchell, 268 F.3d 417, 445 (6th Cir. 2001) assistance of counsel claim was intertwined with the jury (citations omitted). waiver claim. However, Sowell must demonstrate a Strickland violation to receive a writ for a violation of his Ineffective assistance of counsel claims are generally Sixth Amendment rights because of the ineffectiveness of his governed by Strickland v. Washington, 466 U.S. 668 (1984), counsel. in which the Supreme Court established a two-part inquiry: The first step of Strickland requires that Sowell First, the defendant must show that counsel’s demonstrate that Pinales’s performance was seriously performance was deficient. This requires showing that deficient. That is, Sowell must overcome “a strong counsel made errors so serious that counsel was not presumption that counsel’s conduct falls within the wide functioning as the “counsel” guaranteed the defendant by range of reasonable professional assistance,” Strickland, 466 the Sixth Amendment. Second, the defendant must show U.S. at 689, and show that Pinales made errors so serious that that the deficient performance prejudiced the defense. he was not functioning as the “counsel” guaranteed by the This requires showing that counsel’s errors were so Sixth Amendment. serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both Pinales, however, did a constitutionally sufficient job. At showings, it cannot be said that the conviction or death the Ohio jury waiver hearing, Judge Crush asked Pinales and sentence resulted from a breakdown in the adversary Sowell’s other attorney, “Counsel of course have discussed process that renders the result unreliable. this [waiver] with the defendant at length?” J.A. at 727–28. Pinales replied, “Absolutely, Your Honor,” and Sowell’s Strickland, 466 U.S. at 687. In determining whether an other attorney agreed. Id. at 728; see also id. at 731 (Sowell attorney’s conduct was deficient, the Supreme Court stressed answering “Yes” to Judge Crush’s question whether he had that “the proper standard for attorney performance is that of discussed the waiver with his attorneys). Sixteen years later, reasonably effective assistance,” id., “viewed as of the time of at the district court’s hearing, Pinales did not recall the counsel’s conduct,” id. at 690, and considered “in light of all specifics of his conversation with Sowell, and only recalled the circumstances,” id. “Judicial scrutiny of counsel’s that they had discussed waiving the jury. See J.A. at 527; see performance must be highly deferential.” Id. at 689. also id. at 529 (Pinales, when asked “whether you informed “Because of the difficulties inherent in making the evaluation, Mr. Sowell that his jury waiver was still a method to be a court must indulge a strong presumption that counsel’s convicted and sentenced to death,” answering, “I can’t recall conduct falls within the wide range of reasonable professional that specific. I probably said it, but I probably also said that, assistance; that is, the defendant must overcome the very strongly, that I believe that he would not be facing the presumption that, under the circumstances, the challenged death penalty if he waived a jury.”). Pinales did not recall action ‘might be considered sound trial strategy.’” Id. that Sowell had any difficulty in understanding the jury (citation omitted); see also Miller v. Francis, 269 F.3d 609, waiver issues at the time. Id. at 559. This evidence does not No. 02-3441 Sowell v. Bradshaw 29 30 Sowell v. Bradshaw No. 02-3441

show that Pinales’ performance was constitutionally deficient. conclusion. Pinales on a number of occasions specifically Further, the simple fact that Pinales mistakenly thought that stated that he did not tell Sowell that he would be ineligible Judge Crush would not impose death does not mean that for the death penalty if he waived his right to a jury. J.A. at Pinales was acting unreasonably. 529 (Pinales admitted that he probably told Sowell that a death sentence was still an option if he waived a jury); id. at Furthermore, there is strong evidence that everything came 566 (“I did not say to Mr. Sowell, you waive a jury, and you down to Pinales’s recommendation, and it did not matter how will not be given the death penalty.”). Pinales explicitly much Sowell may or may not have been informed of what he stated that he read the jury waiver to Sowell. Id. at 531 (“I’m was giving up and risking. Both Pinales and Sowell testified sure I must have read [the jury waiver form] to [Sowell]”); id. that Sowell trusted Pinales implicitly, and decided to waive at 536 (“My recollection now is . . . I sat at the table, read it solely because of Pinales’s recommendation. See J.A. at 527- to him, showed him where to sign.”). Although Pinales might 28 (Pinales testifying that “Billy Joe totally relied on the now, over sixteen years later, approach the situation advice that I was giving. . . . He was like a lost puppy in the differently, his actions on the record of this case, concerning jail, and I think I became his only friend. So I certainly think his advice to Sowell regarding the jury waiver, did not fall he relied on what I said.”); id. at 558-59 (Pinales, when asked below a minimal level of professional competency, and thus whether he recalled Sowell’s response to the recommendation did not constitute ineffective assistance of counsel. to waive a jury, replying, “I can’t recall specifically . . . but I can tell you his reaction to everything. It was almost The court is not required to address both components of whatever I wanted to do. Clearly he put his faith in me. And Strickland if one component fails. Strickland, 466 U.S. at fate.”); id. at 573 (Sowell, when asked why he had waived his 697. Thus, as Sowell did not demonstrate that his counsel jury trial, answering, “Because I had faith and conviction and performed below an objectively reasonable level, the court belief in my attorney”); id. at 574 (Sowell, when asked need not discuss the prejudice component. whether in deciding to waive his right to a jury he considered anything other than Pinales’s recommendation, answering, Because Sowell has failed to demonstrate that the state “No. No.”). Everything appears to come down to whether court proceedings denied him either his right to trial by jury Pinales had a reasonable basis for thinking that Judge Crush or his right to effective assistance of counsel, he has failed to would not impose a death sentence. The district court did not demonstrate that those proceedings were fundamentally consider this issue, and the record does not show that Pinales unfair. We therefore REVERSE the judgment of the district had no reasonable basis for so thinking. court granting the writ of habeas corpus.

Pinales recommended that Sowell take a calculated risk, which he did. There was no evidence that Pinales guaranteed Sowell a result, or misstated the law. The district court found that Pinales advised Sowell that “he would be spared the death penalty if he waived jury trial.” Sowell, 2001 WL 1681142, at *18. While this statement can be read in different ways, if the statement by the district court amounted to a finding of fact that Pinales guaranteed that Sowell would not be sentenced to death, the record does not support such a No. 02-3441 Sowell v. Bradshaw 31 32 Sowell v. Bradshaw No. 02-3441

_______________ were fundamentally unfair as a result of a violation of the Constitution or laws or treaties of the United States.” Powell DISSENT v. Collins, 332 F.3d 376, 388 (6th Cir. 2003). The failure of _______________ the state trial court to ensure that Sowell knowingly and intelligently waived his right to a jury trial in accordance with KAREN NELSON MOORE, Circuit Judge, dissenting. I the constitutional guarantees afforded to criminal defendants respectfully dissent because Billy Joe Sowell’s (“Sowell”) rendered the state proceedings fundamentally unfair. waiver of his constitutional right to a jury trial was neither knowing nor intelligent. What the majority labels as a The primacy of the jury trial represents one of the pillars calculated risk undertaken by Sowell, I consider to be the upon which our criminal justice system rests. See Duncan v. height of uncertainty because Sowell, an abnormally Louisiana, 391 U.S. 145, 149 (1968) (“[T]rial by jury in unintelligent individual, was not aware that he could still criminal cases is fundamental to the American scheme of receive the death penalty if he waived his right to a jury trial. justice . . . .”); U.S. CONST . art. III, § 2 (“The Trial of all In light of the pre-AEDPA standards of review that we must Crimes . . . shall be by Jury. . . .”); U.S. CONST . amend. VI apply, I would affirm the district court’s grant of a conditional (“In all criminal prosecutions, the accused shall enjoy the writ of habeas corpus because a jury trial waiver is not right to . . . an impartial jury. . . .”). “Trial by jury is the knowing and intelligent when a defendant is not aware that he normal and, with occasional exceptions, the preferable mode or she could be sentenced to death. of disposing of issues of fact in criminal cases above the grade of petty offenses.” Patton v. United States, 281 U.S. Risk is not synonymous with uncertainty. Whereas risk can 276, 312 (1930). Even though “the right of the accused to a be managed, uncertainty is immeasurable and wild. The trial by a constitutional jury [must] be jealously preserved,” calculation of risk centers upon an estimation of potential loss id., a defendant can waive this core right, but only when versus potential benefit. Accordingly, risk cannot be certain safeguards have been satisfied. “[B]efore any waiver managed without some knowledge of the possible downside. can become effective . . . the express and intelligent consent Just as even the most risk-loving sports gambler or venture of the defendant” must be obtained. Id. “[T]he duty of the capitalist would not place a bet or make an investment trial court in that regard is not to be discharged as a mere without knowing the size of the financial stake being risked matter of rote, but with sound and advised discretion, with an (the amount that could be lost), a criminal defendant cannot eye to avoid unreasonable or undue departures from that fully understand the ramifications of waiving his or her right mode of trial or from any of the essential elements thereof, to a jury trial without knowing the potential loss that could and with a caution increasing in degree as the offenses dealt result. Such a concept resonates with even more intensity with increase in gravity.” Id. at 312-13 (emphasis added). when a defendant has limited cognitive abilities. The validity of such a waiver turns on the particularized The filing of Sowell’s habeas petition before the enactment facts of a specific case. “[W]hether or not there is an of AEDPA impacts our review of the state court proceedings. intelligent, competent, self-protecting waiver of jury trial by We review de novo a state court’s “[d]eterminations of law, an accused must depend upon the unique circumstances of or determinations involving mixed questions of fact and law.” each case.” Adams v. United States ex rel. McCann, 317 U.S. Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). A writ of 269, 278 (1943). Our analysis of the waiver’s intelligence habeas corpus must be issued “if the state court proceedings cannot ignore two circumstances pertinent to this appeal: the No. 02-3441 Sowell v. Bradshaw 33 34 Sowell v. Bradshaw No. 02-3441

gravity of the potential sentence and Sowell’s mental state. community, he may participate in the selection of the jurors, “What is at stake for an accused facing death or imprisonment the verdict of the jury must be unanimous, and that a judge demands the utmost solicitude of which courts are capable in alone will decide guilt or innocence should he waive his jury canvassing the matter with the accused to make sure he has a trial right.” Martin, 704 F.2d at 274-75. Similarly, we have full understanding of the consequences of his actions.” held that a written waiver is not constitutionally required. Boykin v. Alabama, 395 U.S. 238, 243-44 (1969) (quotation Fitzgerald v. Withrow, 292 F.3d 500, 504 (6th Cir. 2002). omitted). “[B]ecause there is a qualitative difference between death and any other permissible form of punishment, there is Nevertheless, there must be some indication that a a corresponding difference in the need for reliability . . . .” defendant is intelligently and knowingly waiving the right to Zant v. Stephens, 462 U.S. 862, 884 (1983). This need for a jury trial, which I believe includes a showing that the reliability is even more pressing when a death-penalty eligible defendant understands the maximum punishment available in defendant has demonstrated mental problems. “[T]he purpose the event of a finding of guilt. There are different reasons of the ‘knowing and voluntary’ inquiry . . . is to determine why a defendant would forego trying his or her case in front whether the defendant actually does understand the of a jury, one of which is a belief that a defendant may be less significance and consequences of a particular decision . . . .” likely to receive a certain punishment, particularly the death Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993). penalty, if he or she submits to a bench trial. In such a situation, a decision to waive the right to a jury trial cannot be In evaluating the constitutionality of various processes for considered intelligent if the defendant is not aware of assessing the intelligence of a waiver, we have not mandated sentence that could result. that a state trial court conduct a defined colloquy or even obtain a written waiver, but in order for a waiver to be Here, neither the written form nor the oral colloquy constitutionally sound, the trial court must be convinced that apprised Sowell that the death penalty would still be available the waiver is knowing and intelligent. In the context of a upon waiver of the right to a jury trial. The written waiver direct federal appeal, we have stated that a waiver is knowing did not discuss the death penalty. The oral colloquy similarly and intelligent only if the defendant has “both the mental lacked any mention of punishment, save for an oblique ability and some knowledge of the jury trial right before he is reference to the “maximum penalty” in the midst of a allowed to waive it” so as to allow the defendant to convoluted and unfinished half question/half thought that “intelligently weigh the value of the safeguard.” United would be confusing to many trained lawyers and judges, as States v. Martin, 704 F.2d 267, 273 (6th Cir. 1983). We have well as most criminal defendants. See Joint Appendix “implore[d] district courts to personally inform each (“J.A.”) at 730 (Trial Tr.) (“And of course do you understand defendant of the benefits and burdens of jury trials on the that, of course, before the maximum penalty could be before record prior to accepting a proffered waiver,” id. at 274, but — Okay, do you understand that the judges to sit with this we have stopped short of making mandatory such a colloquy. Court, that is the other two judges will be selected by the See United States v. Sammons, 918 F.2d 592, 597 (1990) presiding Judge, I am not the presiding Judge of the Common (declining to impose a colloquy requirement); Spytma v. Pleas Court, but that the presiding Judge of the Common Howes, 313 F.3d 363, 370 (6th Cir. 2002) (applying Martin Pleas Court will decide who the other two judges will be?”). and Sammons in the habeas context). In Martin, we The state trial court never ascertained if Sowell understood suggested that, “[a]t a minimum, a defendant should be that the three-judge panel had the ability to sentence him to informed that a jury is composed of 12 members of the death nor did it mention the penalty stage of the proceeding. No. 02-3441 Sowell v. Bradshaw 35 36 Sowell v. Bradshaw No. 02-3441

The majority places great stock in the distinction between problems,2 proceeded to ask him rote questions about several Sowell believing that a panel of judges could not deliver the structural aspects of a jury trial, but completely failed to death penalty and Sowell believing that a panel would not mention the potential punishment that Sowell faced. Given deliver it. Op. at 24. While this is a narrow legal distinction that “the right of the accused to a trial by a constitutional jury that Sowell’s attorney perhaps understood, I cannot believe [must] be jealously preserved,” Patton, 281 U.S. at 312, and that Sowell, given his mental infirmities, distinguished mindful of the trial court’s duty to ensure that a defendant is between the two, particularly when his attorney did not make intelligently waiving the right to a jury trial — a duty that is clear the difference and when the trial court did nothing to exercised “with a caution increasing in degree as the offenses explain that Sowell could still receive the death penalty if he dealt with increase in gravity,” id. at 312-13 — I cannot agree appeared before the three-judge panel. Sowell clearly that Sowell intelligently waived his rights, because he did not believed that he would not receive the death penalty if he understand that he would still be eligible for the death waived his jury right: whether he believed that the law penalty. prevented the judges from sentencing him to death or that the judges would not sentence him to death is immaterial, as I respectfully dissent. either belief belies the knowing and intelligent nature of his jury waiver. The reality that Sowell was an individual of abnormally low levels of intelligence and powers of comprehension cannot be shunted aside. See Lott v. Coyle, 261 F.3d 594, 611 n.8 (6th Cir. 2001) (noting that “we do not take lightly any suggestion that [the defendant] lacked the mental ability to understand the rights he was waiving,” but ruling that the defendant had not sufficiently demonstrated that he suffered from some limitation of his mental abilities). The district court found that Sowell had only an eighth grade education, suffered from organic brain damage, and had an intelligence level in the bottom 2% of the population.1 The defendant’s expert testified that the “the likelihood that Mr. Sowell genuinely understood, intellectually and intelligently comprehended what was being said to him, is minimal.” J.A. at 605 (Gelbort Test.). The state trial court knew of Sowell’s

1 2 This factual finding, along with all the other factual findings made Two of the mental health specialists (Drs. William Walters and by the district court, was not clearly erroneous. Based upon a review of Emmett Coop er) who examined Sowell prior to the jury waiver colloquy the evidence presented during the evidentiary hearing, I am not left with in order to assess his co mpe tency to stand trial concluded that Sowell the “firm and definite” conclusion that the district court erred. could stand trial, but that he had an extremely low IQ , an inab ility to Furthermore, all of the testimony relating to Sowell’s mental capabilities comprehend complex concepts, and diminished intellectual capacity. was unrebutted by the State. Joint Appendix at 494 (D ist. Ct. Op.).