Stumpf v. Anderson

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 28, 2004
• Docket: 01-3613
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Stumpf v. Mitchell No. 01-3613 ELECTRONIC CITATION: 2004 FED App. 0124P (6th Cir.) File Name: 04a0124p.06 OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee. UNITED STATES COURT OF APPEALS DAUGHTREY, J., delivered the opinion of the court, in which MOORE, J., joined. BOGGS, C. J. (pp. 44-52), FOR THE SIXTH CIRCUIT delivered a separate dissenting opinion. _________________ _________________ JOHN DAVID STUMPF , X OPINION Petitioner-Appellant, - _________________ - - No. 01-3613 v. MARTHA CRAIG DAUGHTREY, Circuit Judge. The - > petitioner, John David Stumpf, is a state prisoner incarcerated , on Ohio’s death row. He appeals the district court’s dismissal BETTY MITCHELL , Warden, - of his habeas corpus petition, filed pursuant to 28 U.S.C. Respondent-Appellee. - § 2254, in which he challenged his 1984 guilty plea and death N sentence for one count of aggravated murder, with the capital Appeal from the United States District Court specification that the murder was committed to escape for the Southern District of Ohio at Columbus. detection, apprehension, trial, and punishment for other No. 96-00668—George C. Smith, District Judge. offenses, including aggravated robbery and attempted aggravated murder. Specifically, Stumpf alleges (1) that his Argued: December 11, 2002 guilty plea was involuntary and unknowing; (2) that his due process rights were violated by the state’s use of inconsistent Decided and Filed: April 28, 2004 theories to secure convictions against both Stumpf and his accomplice, Clyde Wesley; (3) that he was deprived of Before: BOGGS, Chief Judge; and DAUGHTREY and effective assistance of counsel at sentencing; and (4) that the MOORE, Circuit Judges. Ohio death penalty statute is unconstitutional on its face and as applied to him. _________________ Prior to entering a guilty plea, Stumpf had waived his right COUNSEL to a trial by jury and elected to have his case heard by a three- judge panel. Under Ohio law, when a defendant pleads guilty ARGUED: Alan M. Freedman, MIDWEST CENTER FOR to aggravated murder, the court must hold an evidentiary JUSTICE, Chicago, Illinois, for Appellant. Carol Ann hearing to establish a factual basis for the plea. The three- Ellensohn, OFFICE OF THE ATTORNEY GENERAL, judge panel held such a hearing in this case and found that Columbus, Ohio, for Appellee. ON BRIEF: Alan M. there was a factual basis for Stumpf’s plea, that he was guilty Freedman, Carol Heis, MIDWEST CENTER FOR JUSTICE, of aggravated murder with the capital specification and, Chicago, Illinois, for Appellant. Stephen E. Maher, OFFICE

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ultimately, that there was insufficient mitigating evidence to review the district court’s determination of the facts only for spare Stumpf from imposition of the death penalty. clear error, we adopt the district court’s characterization of the facts, as determined by the state courts, as follows: Under Ohio law at the time of Stumpf’s conviction, the aggravated murder statute required that “specific intent” be On May 14, 1984, Stumpf, Clyde Daniel Wesley, and proved to convict someone of that crime. At the evidentiary Norman Leroy Edmonds, after visiting a bar in hearing to establish a factual basis for Stumpf’s plea, Stumpf Washington, Pennsylvania, got on Interstate 70 and and his attorneys argued that he did not shoot the victim and, headed west toward Ohio. By sundown, they had indeed, that he was not present when the victim was shot. reached Guernsey County. They stopped their car along The state argued in response that Stumpf was the shooter, and I-70 and, leaving Edmonds in the car, Stumpf and the three-judge panel that heard the case adopted the state’s Wesley walked to a nearby house under the pretense of theory, finding that Stumpf was the actual shooter. At a later needing to make a phone call. The house they chose was trial of Stumpf’s accomplice Wesley, however, the state owned and occupied by Norman and Mary Jane Stout. presented the testimony of a jailhouse informant to establish Stout admitted Stumpf and Wesley into his home and that Wesley was the shooter. When Stumpf sought to allowed them to use the phone. When they had withdraw his guilty plea on the basis of Wesley’s conviction, completed the call, both Stumpf and Wesley produced the state opposed his motion, arguing that the informant’s pistols and announced a robbery.1 Stumpf held the testimony was unreliable. Stouts at gunpoint in a back bedroom while Wesley searched the house for items to steal. We conclude that the district court should have granted relief to Stumpf on either or both of two alternative grounds: At some point, Stout moved toward Stumpf, and first, that his guilty plea was unknowing and involuntary Stumpf shot him between the eyes with his pistol. The because he was manifestly not aware that specific intent was shot was not fatal, and Stout subsequently pushed an element of the crime to which he pleaded guilty and, Stumpf into the next room. During this altercation, Stout second, that Stumpf’s due process rights were violated by the was struck on the head with a pistol and shot in the head state’s deliberate action in securing convictions of both a second time. These actions were enough to render him Stumpf and Wesley for the same crime, using inconsistent semi-conscious but not to kill him. While lying on the theories. Because we are granting relief on these two floor in the other room, Stout heard four gunshots. There grounds, we do not reach Stumpf’s challenge to the is no dispute that Mary Jane Stout was shot and killed effectiveness of counsel’s representation at sentencing or to during the course of this robbery, although there is a the constitutionality of the Ohio death penalty statute. dispute as to whether Stumpf or Wesley fired the fatal shots. After Mrs. Stout was killed, Stumpf and Wesley I. PROCEDURAL AND FACTUAL BACKGROUND stole the Stout’s car and fled. Stumpf was arrested several days later, and after initially denying any A. The District Court’s Factual Findings Most of the underlying facts are undisputed in this case and do not affect the legal determinations necessary to the 1 resolution of the appeal. For that reason, and because we W esley and Stumpf had carried Edmonds’s chrome R aven and W esley’s black .25 caliber pistol with them into the ho use. No. 01-3613 Stumpf v. Mitchell 5 6 Stumpf v. Mitchell No. 01-3613

knowledge about these crimes and then being told that after he and Wesley had left the Stout residence. The black Stout had survived, he confessed to being involved. .25 caliber pistol was recovered by the police after the men sold it, along with one of Stout’s guns, to an individual in At the time the trial court proceedings occurred, Washington, Pennsylvania. Ronald Dye, a ballistics expert Wesley had not yet been extradited from Texas. from the Ohio Bureau of Criminal Identification and However, subsequent to Stumpf’s having pleaded guilty Investigation, a division of the Ohio Attorney General’s and having been sentenced to death, Wesley was office, testified at Stumpf’s factual basis hearing as to the convicted of aggravated murder by a jury and received a forensic findings regarding bullets and cartridge cases sentence of life imprisonment without the possibility of recovered from the murder scene. Dye testified that there parole for 20 years. The State introduced evidence at were eight spent cartridges found at the scene, that seven of Wesley’s trial that Wesley and not Stumpf fired the shots them had been fired by one gun, and one was fired by a that killed Mrs. Stout. Edmonds was not charged in the different gun. Dye also said that the black pistol, which had Stout murder and robbery, but was charged for other been recovered by the police, fired one bullet, while the other offenses committed during this crime spree, and he seven bullets were all fired by the same gun. That gun could agreed to and did testify against both Stumpf and Wesley have been the chrome Raven, or one of several other types of concerning the murder of Mary Jane Stout. guns. Stumpf v. Anderson, No. C-1-96-668 (S.D. Ohio Nov. 9, At Stumpf’s plea proceeding, the prosecutor argued that the 1999). ballistics evidence supported the conclusion that Stumpf had shot Mrs. Stout, since she was apparently shot with the same B. Additional Facts Regarding Ballistics Evidence weapon used against her husband, saying, “There’s ample evidence to conclude that this defendant fired all shots that hit Of the two bullets that struck Stout, only pieces of each anybody, because the same gun fired all of those shots.” were recovered. Part of the bullet that struck him between the However, during Wesley’s trial, the same prosecutor put eyes was recovered during surgery, while a second fragment Eastman, Wesley’s cellmate, on the witness stand, to repeat was found in the second bedroom. A portion of the bullet that Wesley’s confession to him. According to Eastman, Wesley struck Stout in the top of the head was recovered during told him that after Stumpf had shot Stout in the face, he surgery, but part of it had to be left in place. Another bullet dropped the chrome Raven and ran, at which point Wesley was recovered from the mattress of the second bedroom. picked up the pistol and shot Mrs. Stout. This version of the crime was also supported by the ballistics evidence that the Stout’s wife was shot four times in the first bedroom. She black pistol had a tendency to jam after firing just one round, died from three gunshots to the left side of her head. The which may have led Wesley to discard it after shooting it only fourth bullet went through her left wrist and struck her chest once. without penetrating the skin of her chest. A fifth bullet was recovered from the wall of that bedroom, above the headboard C. The Guilty Plea of the bed. Stumpf and Wesley could not be tried together because The chrome Raven was never recovered by the police, and Wesley contested his extradition from Texas, where he had Stumpf admitted that he had thrown it out of the car window been apprehended. As a result, while Wesley was still No. 01-3613 Stumpf v. Mitchell 7 8 Stumpf v. Mitchell No. 01-3613

detained in Texas, Stumpf pleaded guilty to the aggravated members and a few former employers and teachers – and of murder of Mary Jane Stout, in violation of Ohio Rev. Code an unsworn statement by Stumpf himself. Defense counsel § 2903.01(B), and to the capital specification under Ohio Rev. presented no expert witnesses, beyond a parole officer and a Code § 2929.04(A)(3) that the murder was committed for the court clerk who testified as to Stumpf’s lack of a significant purpose of escaping detection, apprehension, trial or criminal history. The general defense strategy was to show punishment for the offenses of the aggravated robbery of the that Stumpf had a generally good nature, lacked a violent Stouts. He also pleaded guilty to the attempted aggravated temper, had a fairly steady work history but a limited murder of Norman Stout and to a firearms specification for education, had a difficult home environment, and was each count. Subsequent to the entry of his plea, the respectful towards women. Stumpf’s unsworn statement prosecutor notified the trial judge that a plea agreement had recounted his version of the crime and emphasized that been reached. Stumpf was questioned about the agreement at Wesley, and not Stumpf, had shot Mary Jane Stout. some length, as detailed below. Following the hearing, the three-judge panel sentenced D. The Evidentiary Hearing Stumpf to death, finding that he had established only two mitigating factors: his age (23) and his lack of a significant Under Ohio law, the trial court must conduct an evidentiary criminal background. hearing in all aggravated murder cases involving guilty pleas, to determine whether there is a factual basis for the plea. F. Appellate Procedural History Following Stumpf’s entry of a waiver to have a jury hear the evidence, the hearing commenced before a three-judge panel. After Stumpf’s conviction, and while his direct appeal was pending, Clyde Wesley was also convicted, by a jury, of During the factual basis hearing, the prosecution argued Mary Jane Stout’s murder. As a result, Stumpf filed a motion that Stumpf had shot Mrs. Stout, while the defense argued for leave to withdraw his guilty plea or, in the alternative, to that Mrs. Stout was shot by Wesley, not by Stumpf. The have the trial court set aside his death sentence and grant him three-judge panel found Stumpf “guilty beyond a reasonable a new sentencing hearing. The motion was summarily denied doubt” of count one of the indictment (aggravated murder of by two of the three judges who had heard his case at the trial Mary Jane Sout), along with specification one (that she was level (the third judge had died in the interim), and the Ohio killed to escape detection for the crimes of aggravated Supreme Court affirmed the order at the same time it affirmed robbery and attempted aggravated murder) and specification Stumpf’s conviction on direct appeal. four (firearm), and guilty of count two of the indictment (attempted aggravated murder of Norman Stout), with its Stumpf then filed a petition for post-conviction relief in firearm specification. state court, raising challenges to the validity of his jury trial waiver and the effectiveness of trial counsel’s representation, E. The Mitigation Hearing particularly with regard to counsel’s advice to Stumpf that he would not receive the death penalty if he pleaded guilty. In The mitigation hearing was held one day after the the petition, Stumpf requested an evidentiary hearing and conclusion of the evidentiary hearing, lasted less than two submitted multiple affidavits in support of his claims. The days, and consisted of the presentation of 15 witnesses for the trial court dismissed the petition without an evidentiary defense – primarily some of Stumpf’s friends and family hearing, and this decision was affirmed by the Ohio Court of No. 01-3613 Stumpf v. Mitchell 9 10 Stumpf v. Mitchell No. 01-3613

Appeals. The Ohio Supreme Court dismissed the appeal, see the trial court failed to vacate his sentence or allow him to State v. Stumpf, 560 Ohio St. 3d 712(1990), and the United withdraw his plea based on newly discovered evidence; and States Supreme Court subsequently denied certiorari. See (5) whether Stumpf received the ineffective assistance of Stumpf v. Ohio, 502 U.S. 956 (1991). appellate counsel. Before us, Stumpf has pressed the first four claims but has abandoned the claim that appellate Stumpf next filed a petition for a writ of habeas corpus in counsel was ineffective. federal court, alleging as grounds for relief that the Ohio Death Penalty statute is unconstitutional, both as written and II. STANDARD OF REVIEW as applied to Stumpf; that his guilty plea was not knowing and intelligent; that his waiver of the right to a jury trial was Because Stumpf’s federal habeas petition was filed in invalid; that he received ineffective assistance of counsel at November 1995, the amendments to 28 U.S.C.§ 2254 the penalty phase; that he was not permitted to be present at contained in the Antiterrorism and Effective Death Penalty his motion for a new trial; that the trial court improperly Act of 1996 (AEDPA) do not apply to this case. See Lindh v. considered non-statutory aggravating circumstances and Murphy, 521 U.S. 320, 336)(1997) (finding that AEDPA ignored substantial mitigating evidence when deciding his changes do not apply to cases pending at the time of sentence; that the trial court erred in denying his motion to AEDPA’s enactment on April 24, 1996). Stumpf’s claims, vacate his sentence or withdraw his guilty plea based on therefore, must be evaluated under § 2254(d) as it existed newly discovered evidence; that consideration of post- prior to the enactment of AEDPA. sentence proceedings by less than the entire three-judge panel violated his due process rights; and that the trial court erred Accordingly, we review the district court’s disposition of by failing to follow an Ohio statutory requirement that the a petition for writ of habeas corpus de novo, although the court produce a meaningful written analysis of the mitigation district court’s factual findings are reviewed only for clear evidence as a basis for imposing a death sentence. error. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996). We also defer to the state court’s factual findings, The district court issued two opinion and orders. The first which may be rebutted only by “clear and convincing found that several of petitioner’s claims had been evidence.” Id. However, this deference only applies to procedurally defaulted, see Stumpf v. Anderson, No. C-1-96- “basic, primary facts” and not to mixed question of law and 668 (S.D. Ohio Nov. 9, 1999); the second denied relief on the fact, which are subject to de novo review. Id. remaining claims, see Stumpf v. Anderson, No. C-1-96-668 (S.D. Ohio Feb. 7, 2001). However, the district court did III. ANALYSIS grant a certificate of appealability on the following five issues: (1) whether the statutory provisions governing Ohio’s A. The Validity of the Petitioner’s Guilty Plea capital punishment scheme violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States The Supreme Court has held, in Boykin v. Alabama, 395 Constitution, either on their face or as applied to Stumpf; U.S. 238 (1969), that when a defendant enters a guilty plea, (2) whether Stumpf’s guilty plea was knowing, intelligent and the state bears the burden of showing that the plea was voluntary; (3) whether Stumpf received the ineffective voluntary, intelligent and knowing. Determining whether a assistance of counsel at the penalty phase of his trial; plea is voluntary, intelligent and knowing requires an analysis (4) whether Stumpf’s due process rights were violated when of the totality of the circumstances. Garcia v. Johnson, 991 No. 01-3613 Stumpf v. Mitchell 11 12 Stumpf v. Mitchell No. 01-3613

F.2d 324, 326 (6th Cir. 1993). When a defendant brings a guilty. Indeed, defense counsel’s representations to the court federal habeas petition challenging his plea, the state either betray their own ignorance of the intent element of generally satisfies this burden by producing a transcript of the aggravated murder, or represent a woefully inadequate plea proceeding. Garcia, 991 F.2d 324, 326. A state court understanding of the meaning of a guilty plea. Finally, the finding that the plea was proper is accorded a presumption of plea colloquy itself, along with Stumpf’s statements to the correctness, unless the transcript of the plea proceeding is court through all stages of the proceedings, demonstrates inadequate to demonstrate that the plea was voluntary, Stumpf’s unwillingness to admit to intent. intelligent and knowing. Garcia at 326-27; Dunn v. Simmons, 877 F.2d 1275, 1277 (6th Cir. 1989), overruled on other At the time of Stumpf’s crime and subsequent conviction, grounds by Parke v. Raley, 506 U.S. 20 (1992). Ohio’s aggravated murder statute specified that specific intent was a necessary element of aggravated murder. The statute The proper standard of review in this case, then, turns on read as follows: whether the record of state court proceedings surrounding Stumpf’s guilty plea “leav[es] doubt as to whether the plea § 2903.01 Aggravated murder. was in fact intelligent and voluntary.” Dunn v. Simmons, 877 F.2d at 1277 (citing Roddy v. Black, 516 F.2d 1380, 1384 (6th (A) No person shall purposely, and with prior Cir. 1975)). If the record does leave doubt as to whether the calculation and design, cause the death of another. plea was voluntary, intelligent and knowing, and the defendant argues that it was not, the State bears the burden of (B) No person shall purposely cause the death of another proving the contrary. Id. (citing Boykin v. Alabama, 395 U.S. while fleeing immediately after committing or attempting 238, 243 (1969). to commit kidnapping[sic], rape, aggravated arson or arson, aggravated robbery or robbery, aggravated Although Stumpf does not contend explicitly that his guilty burglary or burglary, or escape. plea was invalid because he was not aware that specific intent was an element of the crime to which he pleaded guilty, this (C) Whoever violates this section is guilty of aggravated argument is inherent in the fact that he continually professed murder, and shall be punished as provided in section his innocence of committing the actual shooting both during 2929.02 of the Revised Code. and after the guilty plea. The record reflects, for example, his expectation that he would be given an opportunity to present Ohio Rev. Code § 2903.01 (1984)(amended 1996).2 evidence to the three-judge panel relevant to his conduct.” Stumpf was convicted under § 2903.01(B), which, although Moreover, the record indicates that the explicit statutory it specifies that the murder must be caused “purposely,” does requirement of intent was never explained to Stumpf during not specifically require intent. However, subsection (D) of the plea colloquy. Furthermore, although his attorneys the same statute clarifies that intent is indeed a necessary represented to the court that they had explained to Stumpf the element of aggravated murder: elements of the crime, their own arguments to the court during the plea colloquy and the evidentiary hearing to establish a factual basis for the plea refute the typical 2 presumption that defense counsel have fully and adequately Ohio Rev. Code § 2903.01 was amended on July 1, 1996. Section (D) was removed and replaced with additional descriptions of aggravated explained all elements of a crime to a client before he pleads murd er. See Ohio Rev. Cod e § 2903 .01 (2002). No. 01-3613 Stumpf v. Mitchell 13 14 Stumpf v. Mitchell No. 01-3613

(D) No person shall be convicted of aggravated murder Ohio Rev. Code § 2903.01(D) (1984)(amended 1996). unless he is specifically found to have intended to cause Finally, the fact-finder must also be instructed that “the the death of another . . . . prosecution must prove the specific intent of the person to have caused the death by proof beyond a reasonable doubt.” Ohio Rev. Code § 2903.01 (1984) (amended 1996). Ohio Rev. Code § 2903.01(D) (1984) (amended 1996). Read Furthermore, the statute limits fact-finders from inferring together, these provisions indicate that specific intent may not specific intent solely from an accused’s participation in a be inferred solely from the fact of participation in a felony felony murder: murder but must be established explicitly by the prosecution. [I]n no case shall a jury in an aggravated murder case be Ohio courts have confirmed this interpretation of the instructed in such a manner that it may believe that a statute. In In re Washington, 691 N.E.2d 285, 287 (1998), the person who commits or attempts to commit any offense Supreme Court of Ohio considered an appeal regarding listed in division (B) of this section is to be conclusively whether there was sufficient evidence to support the specific inferred, because he engaged in a common design with intent requisite for an aggravated murder conviction, in a case others to commit the offense by force and violence or in which the murder was committed in the course of a because the offense and the manner of its commission robbery. As the court explained: “Washington cannot [be would be likely to produce death, to have intended to found guilty of] aggravated murder based solely on his cause the death of any person who is killed during the complicitous actions. It is also necessary for the state to commission of or attempt to commit, or flight from the establish that Washington acted with the kind of culpability commission of or attempt to commit, the offense. If a required of the commission of aggravated murder.” In re jury in an aggravated murder case is instructed that a Washington, 691 N.E.2d at 286. In this particular case, the person who commits or attempts to commit any offense court found that there was sufficient evidence for the trial listed in division (B) of this section may be inferred, court to conclude that Washington had acted with the because he engaged in a common design with others to requisite intent, because the trial court inferred intent only commit the offense by force or violence or because the after “hearing and considering all the evidence” instead of offense and the manner of its commission would be presuming intent based on Washington’s participation in the likely to produce death, to have intended to cause the robbery. In re Washington, 691 N.E.2d at 288. death of any person who is killed during the commission of, attempt to commit, or flight from the commission of Here, the record of the plea proceeding clearly or attempt to commit the offense, the jury also shall be demonstrates that the defendant did not possess an instructed that the inference is nonconclusive, that the understanding of the aggravated murder charge to which he inference may be considered in determining intent, that pleaded guilty. Although the district court ultimately it is to consider all evidence introduced by the concluded that the state court record was suggestive of a prosecution to indicate the person’s intent and by the knowing and voluntary plea, it did concede that the plea person to indicate his lack of intent in determining proceeding was “not a picture of clarity.” We agree, and we whether the person specifically intended to cause the note that this “lack of clarity” first surfaced at the moment the death of the person killed . . . . prosecutor informed the court that a plea agreement had been reached. He gave the following account of the agreement: No. 01-3613 Stumpf v. Mitchell 15 16 Stumpf v. Mitchell No. 01-3613

SCOTT: Your Honor, the first matter that would be dealt Indictment and including the specification to the third with or the State would ask leave of Court pursuant to count. Criminal Rule 7 (D) and Ohio Revised Code Section 2941.30 to amend by interlineation specification one to That is my understanding of the arrangement that we are the first count of the Indictment in order that it may read proposing to the Court at the present time.3 as follows: The Grand Jurors further find and specify under Ohio Revised Code Section 2929.04(A)(3) in Reviewing this portion of the trial court record, the district compliance with Ohio Revised Code Section 2941.14 court commented that “the prosecuting attorney’s explanation that the aforesaid offense being the offense charged in of the plea agreement was somewhat difficult to follow, and the first court, the Aggravated Murder, was [committed] that criminal defendants in such situations will often answer for the purpose of escaping detection, apprehension, trial questions posed by the trial court without a clear or punishment for other offenses – the words, “other understanding of each and every term uttered – especially if offenses” are the first change, committed by the above advised by counsel to do just that.” But the trial court in this named John David Stumpf, to wit: Aggravated Robbery case, rather than attempting to elucidate the prosecutor’s and then we’re adding the language “and Attempted explanation for the defendant, immediately turned to the Aggravated Murder”. If that amendment is granted, the defendant for verification of the prosecutor’s account of the defendant then would enter a plea of guilty to the first plea agreement. As the record reveals, even at this stage in count contained in the Indictment, being the Aggravated the plea agreement, the defendant appeared to be unable to Murder count and a plea of guilty to specification one to follow the proceedings: the first count as amended; would also enter a plea of guilty to the second count in the Indictment, being the JUDGE HENDERSON: Thank you, Scott. Before offense of – excuse me, back up. As to the first count he ruling on the motion or amendment of the Indictment, I would also enter a plea of guilty to specification four to would ask Counsel for the defense if they wish to the first count. So, he will be pleading to the first count, comment upon the statement of the Prosecutor. Tingle? the amended specification one to the first count and specification four to the first count. With regard to the TINGLE: If the Court please, the statement made by the second count, being the Attempted Aggravated Murder, Prosecuting Attorney is an accurate statement based upon he would enter a plea of guilty to the Attempted our discussions with him earlier today and one upon Aggravated Murder and a plea of guilty to the which we are ready to proceed at this time. specification to the second count. If the pleas of guilty to JUDGE HENDERSON: I’m going to ask the Counsel the two counts and the specifications I’ve mentioned are for the defendant to inform the defendant that I am going accepted by the Court, the Court would then proceed to ask one question of the defendant very shortly and that under Criminal Rule 11(c)(3) to determine if there is a question is this: Do you, John David Stumpf, factual basis for the plea of guilty to the Aggravated affirmatively acknowledge the agreement that has been Murder charge and the existence of the aggravating circumstances and if the pleas are accepted the State would then ask leave to enter a nolle pros as to 3 The plea agreement also merged specification four of count one, and specifications two and three to the first count and also a specification one o f count two. T hat is, bo th gun spe cifications were to nolle pros as to the third, fourth and fifth counts in the be treated as part o f the same offense for sentencing purposes. No. 01-3613 Stumpf v. Mitchell 17 18 Stumpf v. Mitchell No. 01-3613

stated by the Prosecutor and concurred in by the JUDGE HENDERSON: Have you informed your client defendant’s counsel? Having forewarned the defendant of the elements of the offenses with which he is charged, of the question that is to be asked, I’m going to ask that of all defenses which may be available to him and of all question now. Stumpf, do you affirmatively of his Constitutional rights, both State and Federal? acknowledge this agreement? TINGLE: Yes, we have. STEPHENS: Would you repeat the question for him Your Honor? After his attorneys indicated that they had explained the elements of the crime to their client, Stumpf was sworn in for JUDGE HENDERSON: Stumpf, do you affirmatively the limited purpose of answering questions concerning his acknowledge the agreement that has been stated by the guilty plea, and affirmed his attorney’s statements, as follows: Prosecutor and concurred in by your attorneys? JUDGE HENDERSON: Stumpf, I’m going to ask you THE DEFENDANT: Yes, sir. a number of questions and if you do not understand those questions you may inquire of your attorneys to better Obviously, not every ambiguity in a plea proceeding, able you to understand everything that is being asked without more, will demonstrate that a plea is not “knowing you. These have to do with the rights that you have as a and intelligent.” However, the exchange set out above turned person who has been accused of a crime. Do you out to be merely the beginning of much confusion that was to understand that you have a constitutional privilege follow. After allowing amendment of the indictment, the against self-incrimination? court conducted a plea colloquy, examining first the defense attorneys, and then the defendant: THE DEFENDANT: Yes, sir. JUDGE HENDERSON: The Indictment seems to be in JUDGE HENDERSON: With a full understanding that order and the Court is going to make certain inquiries of anything that you say may be used against you, are you the counsel for the defendant and the defendant as to the willing then to answer questions with regard to your proposed entry of the guilty plea. It is necessary that understanding of your rights? question be asked and answers thoughtfully given in a case of this sort. I’m going to inquire of the attorneys for THE DEFENDANT: Yes, sir. the defendant, have you fully investigated the facts and the law of this case and determined whether there exists JUDGE HENDERSON: Now, you heard the questions any question of the admissibility of any claimed that I put to your attorneys, I believe, relative to their admissions, confessions or other evidence under Federal advice to you and their counseling of you, did you not? and State law and advised your client concerning the same? THE DEFENDANT: Yes, sir.

TINGLE: We have, Your Honor. JUDGE HENDERSON: Do you personally acknowledge that your attorneys have informed and advised you as they say they have? No. 01-3613 Stumpf v. Mitchell 19 20 Stumpf v. Mitchell No. 01-3613

THE DEFENDANT: Yes, sir. JUDGE HENDERSON: Do you understand also that you would be subject under the – under specification four JUDGE HENDERSON: Are you satisfied with the to the first count to three years incarceration before you services which they have performed for you? begin to serve any other sentence? THE DEFENDANT: Yes, sir. THE DEFENDANT: Yes, sir. Judge Henderson next questioned Stumpf as to his physical JUDGE HENDERSON: Do you understand also that the and mental health, and whether he was presently under the Attempted Aggravated Murder, which is set forth in influence of drugs or alcohol. He then went over the crimes count two, is a felony in the first degree and that you to which Stumpf was pleading guilty. The following is a could be sentenced to be incarcerated for a period of four, complete account of his explanation to the defendant: five, six or seven but not more than twenty-five years? Do you understand that, sir? JUDGE HENDERSON: Do you understand that you are charged with several offenses? The first offense being THE DEFENDANT: Yes, sir. that of Aggravated Murder, that there have been two specifications being presented at this time in this JUDGE HENDERSON: Do you understand also that for particular proceedings, to wit: Aggravated Robbery and a felony of the first degree that you could be fined not Attempted Murder and possession of a firearm while more than $10,000.00? committing those offenses. Do you understand that? THE DEFENDANT: Yes, sir. THE DEFENDANT: Yes, sir. JUDGE HENDERSON: And that you could receive JUDGE HENDERSON: Do you understand also that both the fine and the incarceration, which I have you have been charged with the offense of Attempted mentioned? Aggravated Murder, which is a felony in the first degree? THE DEFENDANT: Yes, sir. THE DEFENDANT: Yes, sir. JUDGE HENDERSON: Are you presently on probation JUDGE HENDERSON: For the first count, which is that or parole, sir? of Aggravated Murder, you are subject to the following penalties: you are subject to being – to a sentence of THE DEFENDANT: No, sir. twenty years without probation, that is, a sentence of life without probation for twenty years; a sentence of life As indicated below, Stumpf has a low IQ and has been without probation for a period of thirty years and the found to be mentally and emotionally immature. death penalty by electrocution could be imposed against Nevertheless, the trial court never inquired into Stumpf’s you. Do you understand that, sir? ability to understand the guilty plea proceedings or the nature of the charges against him. The explanation set out above is THE DEFENDANT: Yes, sir. the only account of the crimes provided to Stumpf by the No. 01-3613 Stumpf v. Mitchell 21 22 Stumpf v. Mitchell No. 01-3613

court. Nowhere does the court explain the elements, or even evidence and testimony on your own behalf. My read the charges as listed in the indictment.4 statement to you and my question to you was intended to except those rights that you do have. Counsel, is that Judge Henderson then proceeded to question Stumpf about satisfactory? the rights he was surrendering by pleading guilty. The exchange went as follows: STEPHENS: Yes, sir. JUDGE HENDERSON: Do you understand that if you We read this exchange to reflect a misunderstanding plead guilty you will waive, that is, you will give up the between attorney Stephens and Judge Henderson. Stephens, right to a jury trial or trial by the Court; the right to be answering for Stumpf, asserted the defendant’s right to presumed innocent and until proved guilty beyond a present evidence during “a hearing or trial relative to the reasonable doubt; the right to confront and to question underlying facts” of the case. He was plainly referring to the the witnesses against you and to have compulsory factual basis hearing and asserting the defendant’s wish to process for obtaining witnesses in your favor; the right challenge the state’s version of the facts. Judge Henderson to remain silent or to testify at your trial as you may indicated in response that the defendant could present choose and that no inferences may be drawn if you evidence during “the sentencing portion of this trial,” choose not to testify at your trial. Do you understand apparently referring to the mitigation phase. In any case, this that you may be giving up those rights? was the first indication that the defendant did not wish to concede the state’s version of the facts. The parties next STEPHENS: Your Honor, with reference to that, we discussed a prior suppression hearing, and then the court have explained that to the defendant. He was going to resumed questioning Stumpf: respond but we have informed him that there is, after the plea, a hearing or trial relative to the underlying facts so JUDGE HENDERSON: Do you understand, Stumpf, that he is of the belief that there will be presentation of that if any promises or inducements have been made to evidence and I wanted to make that clear to the Court you by any person to cause you to plead guilty that they with reference to his right of waiver of trial to Court. are not binding upon the Court, that if you plead guilty that Court, this panel of Judges, will decide your JUDGE HENDERSON: I understand that and I sentence after considering all of the evidence that is to be appreciate your bringing that to my attention, Stephens. presented and evidence in mitigation of punishment and Of course in the sentencing portion of this trial you do after considering a presentence investigation, report and have those rights to speak in your own behalf to present recommendation approved and prepared by the probation department and that you may receive the maximum sentence prescribed by law. Do you understand that, sir? 4 Stumpf did initial the interlineation amendment to the indictment THE DEFENDANT: Yes, sir. during the plea hearing, but there is no ind ication in the record that he had actually read the indictment at any point or that it had been read to him. Moreo ver, we conc lude that use of the term “purp osely” is not sufficient JUDGE HENDERSON: Have any promises or to put the defendant on no tice that sp ecific intent, which is expressly more inducements been made to you, sir, other than the than intent implied from participation in a felony, is a required element of aggravated murder. No. 01-3613 Stumpf v. Mitchell 23 24 Stumpf v. Mitchell No. 01-3613

agreement which you have affirmatively acknowledged before the plea was finalized and Stumpf’s fate was sealed. on the record? Once again, however, Judge Henderson referred to the defendant’s “right to present evidence in mitigation hearing,” THE DEFENDANT: No, sir. completely missing the clear implication that despite his admission of guilt, Stumpf was concerned about preserving JUDGE HENDERSON: Are you in fact guilty of count his ability to contest the state’s account of his actions. one with specification one and specification four? Moreover, defense counsel’s arguments during the STEPHENS: One moment, Your Honor. Your Honor, subsequent evidentiary hearing confirm the defendant’s desire the defendant has asked me to explain his answer. His to contest the state’s version of the crime. From the opening answer in yes. He will recite that with obviously his statement at that hearing, counsel argued that Wesley, not understanding of his right to present evidence at a later Stumpf, was the one who shot Mary Jane Stout. For example, time relative to his conduct, but he’ll respond to that. defense counsel’s opening statement included the following: JUDGE HENDERSON: At no time am I implying that [T]he scenario as outlined by Scott [the prosecutor] does the defendant will not have the right to present evidence follow the sequence of events as they did occur, except in mitigation hearing and I do appreciate it, Stephens, for the statements as to the actual shooting of Mary Jane that you bring this to the attention of the Court. And I’m Stout, which the defendant believes the evidence will going to ask that the defendant, himself, respond to the show occurred at the hands of Daniel Wesley. question that I asked with that understanding that he has the right to present evidence in mitigation. I’m going to The district court rejected Stumpf’s argument that his ask the defendant if he is in fact guilty of the charge set position that he was not the shooter rendered his guilty plea forth in Count one, including specification one and involuntary, relying on Garcia v. Johnson, 991 F.2d 324, 327 specification four? (6th Cir. 1993), as authority for the proposition that a “temporary qualification of position by the defendant is not The Defendant: Yes, sir. sufficient to rebut the presumption of correctness of state court proceedings, and to support a finding that [the Again, the exchange between Stephens and Judge defendant] did not understand the nature of his plea.” Stumpf Henderson has all the hallmarks of a serious v. Anderson, 2001 WL 242585 (S.D. Ohio 2001) (quoting misunderstanding. Stumpf was unwilling to plead “guilty” Garcia, 991 F.2d at 327). We conclude that the district without expressly reserving his right to present evidence court’s reliance was misplaced, however, because Stumpf’s “relevant to his conduct.” Read with the preceding reference qualification was more than temporary, and it was never to presenting evidence, this could only refer to the subsequent addressed by the trial court. evidentiary hearing to establish a factual basis for the plea. Stumpf, obviously, was reiterating his desire to challenge the By contrast, in Garcia, the defendant first claimed that he state’s account of his actions, and had the procedure called for had not intended to kill his victim. Garcia, 991 F.2d at 327. an immediate determination of the evidence relied upon by After this statement, the judge conducted “a substantial the state to support the defendant’s imminent conviction, the discussion” with the defendant regarding the facts of the case, misunderstanding would undoubtedly have come to light and Garcia then admitted that he had intended to kill his No. 01-3613 Stumpf v. Mitchell 25 26 Stumpf v. Mitchell No. 01-3613

victim. Id. Here, the trial judge, before accepting Stumpf’s thus counterbalances the assurances given by defense counsel plea, had not informed the defendant that specific intent was that they had explained the elements to Stumpf. an element of the crime to which he was pleading, nor had he inquired whether Stumpf had actually shot the victim or, if We recognize, of course, that Stumpf need not have been not, had specifically intended that she be killed. In the the “principal offender” – the actual shooter – in order to have absence of some inquiry, Stumpf’s express reservations of his specifically intended the death of Mary Jane Stout. ability to put on evidence of his version of the crime, along Nevertheless, it is clear from the record of the factual basis with his attorneys’ arguments that he did not intend, and was hearing that the state’s theory of guilt relied completely on not even present for, the killing of Mrs. Stout, should have put Stumpf being the principal offender. The prosecution the trial court on notice that Stumpf was not aware of the true presented no evidence that Stumpf intended Mrs. Stout’s import of his plea. death, other than arguing that he was the actual shooter. In the closing arguments at the evidentiary hearing, defense The district court did not focus on the question of intent. counsel, contending that the prosecution had not met its Rather, it found that Stumpf’s position that he was not the burden with regard to the basis for seeking the death penalty, shooter was consistent with the specification to which he effectively challenged the prosecution’s proof as to specific pleaded guilty. However, in making this finding, the district intent to kill. The prosecutor responded that “[a]s to a court failed to recognize that Stumpf’s position is inconsistent purpose to kill, whoever shot Mrs. Stout didn’t intend to do with the charge to which he also pleaded guilty. It is this her any favors when he shot her four times. It seems to me inconsistency that gives rise to his claim that his plea was not that shooting a person four times shows what your intent validly entered. was.” Generally, a reviewing court presumes that defense counsel Indeed, the three-judge panel, which presumably knew of has explained the elements of the crime to a defendant the intent element, found, beyond a reasonable doubt, that pleading guilty, even where the record does not reflect any Stumpf was “the principal offender” in the aggravated murder statement by counsel to that effect. Berry v. Mintzes, 726 and made no other finding as to specific intent. Their F.2d 1142, 1147 (6th Cir. 1984) (“it may be appropriate to conclusion in this regard indicates that the panel found that presume that in most cases defense counsel routinely explain Stumpf’s shooting of Mrs. Stout provided the requisite the nature of the offense in sufficient detail to give the specific intent, as there was no other evidence in the record to accused notice”); but cf. Henderson v. Morgan, 426 U.S. 637, satisfy this element. Given this finding, it is unlikely that 642-48 (1976) (finding that, where the defendant’s attorneys Stumpf can be said to have knowingly conceded specific had argued to the court that their client had not intended to intent to kill by pleading guilty, when he continued to harm the victim, there could be no presumption that counsel maintain throughout the proceedings that he had not been the had explained to their client that intent was an element of the one who actually shot the victim. crime). In this case, defense counsel did state to the court that they had informed Stumpf of the elements of the crime. In a We conclude that the record of Stumpf’s plea hearing and typical case, such an assurance would prevent a reviewing the subsequent evidentiary hearing, taken together, court from finding that a plea was involuntary. In this case, demonstrate that the plea he entered was constitutionally however, the record clearly establishes that Stumpf sought to invalid. Boykin holds that, “because a guilty plea is an preserve his right to argue that he was not the shooter and admission of all the elements of a formal criminal charge, it No. 01-3613 Stumpf v. Mitchell 27 28 Stumpf v. Mitchell No. 01-3613

cannot be truly voluntary unless the defendant possesses an Furthermore, the totality of the circumstances surrounding understanding of the law in relation to the facts.” Boykin, 395 the plea provide additional evidence that the plea was not U.S. 238, 243 n.5 (1969). This understanding must include voluntary, knowing, and intelligent. For example, Stumpf “real notice of the true nature of the charge against him, the argues that the fact that he remained eligible for the death first and most universally recognized requirement of due penalty and, therefore, pleaded guilty under an agreement that process.” Henderson v. Morgan, 426 U.S. 637, 644 (1976) provided absolutely no benefit in the form of a reduction in (quoting Smith v. O’Grady, 312 U.S. 329, 344 (1941) (finding possible sentence, is an additional indication that his plea was that, because the defendant did not know intent was an not knowing and intelligent.6 This argument standing alone element of the crime to which he pleaded guilty, his plea would be not carry much weight, given the well-recognized could not be voluntary).5 We have held that “a guilty plea is principle that a guilty plea cannot be rendered involuntary not deemed voluntary where the person entering it does so merely because, in hindsight, it turned out not to be the best without understanding of the consequences of his plea.” decision. See McMann v. Richardson, 397 U.S. 759, 769-71 United States v. Stubbs, 279 F.3d 402, 411, 412 (6th Cir. (1970). However, Stumpf’s decision to plead guilty – by 2002) (quotation omitted) (finding, in a split decision in a agreement – to a crime with a capital specification, especially case involving a mandatory minimum sentence, that if the in the absence of any identifiable reason to take such a course “essential elements of the crime with which the defendant was of action, creates an additional inference that his plea was charged were not understood by the defendant, his counsel, or invalid. In combination with his position that he was not the the district court, then the defendant’s guilty plea would be shooter, which reveals his ignorance of specific intent as an constitutionally invalid”). element of the crime, the record indicates that Stumpf’s plea was involuntary “because he ha[d] such an incomplete As discussed above, when the state court record of a understanding of the charge that his plea cannot stand as an defendant’s plea does not demonstrate that the plea is intelligent admission of guilt.” Ivy v. Caspari, 173 F.3d 1136, constitutionally adequate, the state bears the burden of 1141-42 (8th Cir. 1999)(guilty plea involuntary where showing the plea was voluntary, knowing and intelligent. defendant was not informed that intent was a necessary Here, the state has presented no extrinsic evidence to counter element of the underlying felony). the record of the proceedings discussed above. Instead, the respondent has explicitly relied on that record alone to argue The question of counsel’s effectiveness in representing that the plea was voluntary, knowing, and intelligent. Given Stumpf is not before us as an independent ground for relief. the paucity – indeed, the lack -- of the evidence to refute what It is, however, raised in the context of challenge to the is clear on the record, we must conclude that the state has validity of his guilty plea. The record shows clearly that therefore not met its burden of showing that the plea may stand. 6 Stumpf also claims that his plea was invalid because he was not aware that he remained eligible for the death penalty. W e disco unt this 5 as a possible basis for relief, however, because the record of the plea Indeed, in Henderson, the defendant had heard the indictment, hearing indicates that the judge, while listing the possible sentences which charged that he had “willfully” stabbed the victim, read in open Stumpf could receive for aggravated murder, did inform Stumpf at the court. Henderson, 426 U.S. 637 , 642. The Sup reme Court found that this time of his plea that “the death penalty by electrocution could be imposed was not sufficient to put him on notice that intent was a required element against you.” The judge then asked whether Stumpf understood, and of the crime to which he was p leading guilty. Id. at 645-46. Stumpf answered, “Yes, sir.” No. 01-3613 Stumpf v. Mitchell 29 30 Stumpf v. Mitchell No. 01-3613

Stumpf has always denied being the shooter. It is also clear such a plea would have amounted to admitting that he that defense counsel’s strategy, throughout both the specifically intended the death of Mary Jane Stout. A evidentiary hearing and the mitigation hearing, was to argue mitigation investigator later reported, in an affidavit, that that after Stumpf shot Norman Stout he panicked and fled, “John did not want to plead guilty.” Moreover, affidavits that Stumpf was not even present in the home when Mary from Stumpf’s family affirm the impression that his attorneys Jane Stout was shot, and that Wesley was, in fact, the one were less than candid in explaining to them the motive behind who shot Mrs. Stout. One possible, if unlikely, explanation the plea. for example, Stumpf’s mother and sister said that for counsel’s strategy is that they themselves were unaware they were told by Stumpf’s attorney that he would not receive that specific intent was an element of the crime. But, failure the death penalty because of his plea. to research the most basic details of the statute under which their client was charged would be outside the “range of We conclude from the record before us, as it relates to the competence” to which the defendant is entitled. See murder of Mary Jane Stout, that there exists a reasonable Henderson v. Morgan, 426 U.S. 637, 647 (1976). Perhaps probability that, had the petitioner been fully informed of the more disturbing is the possibility that counsel, realizing that elements of the offense to which he was pleading and intent was an element of the offense, nonetheless chose to consequences of that plea, he would not have pleaded guilty allow their client to plead guilty and then – and only then – to to her aggravated murder. contest the existence of that element. But this, too, would manifestly constitute ineffective assistance, since a plea is not B. The Due Process Violation merely a confession but serves as a conviction, with only the resulting sentence left to be decided. Boykin v. Alabama, 395 At the time of Stumpf’s post-plea evidentiary hearing and U.S. 238, 242 (1969). It is true that Ohio requires a factual his mitigation – or sentencing – hearing, his accomplice, basis hearing in cases of aggravated murder, but it would Wesley, was still in Texas, fighting extradition. During both nonetheless be reckless and plainly incompetent for an Stumpf’s plea hearing, held pursuant to Ohio Rev. Code attorney to rely on a factual basis hearing to refute an element § 2945.06, and his sentencing hearing, the prosecutor argued, of a crime to which his client has already pleaded guilty. and the three-judge panel ultimately found, that Stumpf was Finally, whether Stumpf’s lawyers were aware of the intent the principal offender, responsible for actually shooting Mary element or not, their behavior compels the conclusion that Jane Stout. After Stumpf’s sentencing in the fall of 1984, the Stumpf himself was not aware of the intent element. state tried Clyde Wesley before a jury in the spring of 1985. Stumpf’s observation of his attorneys’ attempt to contest the Wesley was also charged with aggravated murder with capital state’s version of events, and his own position throughout the specifications, and during his trial, the state argued that plea colloquy that he intended to challenge the state’s facts- Wesley, not Stumpf, was the shooter. To support this a position evidently sanctioned by his attorneys, reaffirms the argument, the state presented testimony from Eastman, conclusion that Stumpf was not aware that by pleading guilty Wesley’s cellmate, about statements Wesley had made to to aggravated murder he was admitting to specific intent to Eastman concerning details about the murder. Wesley took kill Mary Jane Stout. the stand and denied that he was the shooter, but the jury convicted him of the aggravated murder of Mrs. Stout. At the There are other indications in the record, as well, pointing sentencing phase of Wesley’s trial, the same jury then to the existence of at least a reasonable probability that recommended a sentence of 20 years to life, rather than the Stumpf would not have pleaded guilty had he known that death penalty. No. 01-3613 Stumpf v. Mitchell 31 32 Stumpf v. Mitchell No. 01-3613

Stumpf argues that the prosecutor’s use of two conflicting In Smith v. Groose, the Eighth Circuit considered a case in theories concerning the identity of the shooter to convict both which a prosecutor had used two different, conflicting him and Wesley constitutes a due process violation. statements by a co-defendant at successive trials to convict the petitioner at the first trial and a second individual at a The Constitution’s Due Process clause guarantees every second trial. Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir. defendant the right to a fair trial. Lassiter v. Department of 2000). That case involved a group of four young men who Soc. Servs., 452 U.S. 18, 24-5 (1981); Turner v. Louisiana, were looking for homes to burglarize one evening. In the 379 U.S. 466, 471-72 (1965). The Supreme Court has also course of their search, they saw another group of burglars emphasized that “because the prosecutor is in a peculiar and breaking into a home. They realized they knew these men very definite sense the servant of the law, the twofold aim of and decided to help them break into the house. The residents which is that guilt shall not escape or innocence suffer. . ., it were murdered in the course of the burglary. The primary is as much his duty to refrain from improper methods issue at trial was whether the murders took place before or calculated to produce a wrongful conviction as it is to use after the four young men began participating in the offense. every legitimate method to bring about one.” Berger v. One of the four men first told the police that the other group United States, 295 U.S. 78, 88 (1935), overruled on other had committed the murders without the participation of the grounds, Stirone v. United States, 361 U.S. 212 (1960). group of four. Two days later, he told police that he had seen one of the four men from his group stabbing the victims with Drawing on the principle that the Constitution’s “overriding a pocketknife; he later recanted this story. The prosecutor concern [is] with the justice of the finding of guilt,” United then used both statements to obtain convictions against men States v. Agurs, 427 U.S. 97, 112 (1976), several of our sister in each of the two groups. Id. at 1047-49. circuits have found, or implied, that the use of inconsistent, irreconcilable theories to secure convictions against more than Examining the record before it, the Eighth Circuit held that one defendant in prosecutions for the same crime violates the “[t]he use of inherently factually contradictory theories due process clause. See, e.g., Smith v. Groose, 205 F.3d 1045 violates the principles of due process.” Id. at 1052. The court (8th Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th found that in order to amount to a due process violation, an Cir. 1997) (en banc); Drake v. Kemp, 762 F.2d 1449 (11th inconsistency in the prosecutor’s theories “must exist at the Cir. 1985) (en banc) (Clark, J., specially concurring); cf. core of the prosecutor’s case against defendants for the same Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (involving a crime.” Id. This constitutes a due process violation because situation where both defendants had shot at the victim and it it renders convictions unreliable, given that “[the s]tate’s was unclear whose bullet had actually hit and killed the duty to its citizens does not allow it to pursue as many victim; the court found that the two theories advanced by the convictions as possible without regard to fairness and the prosecution were not inconsistent because both defendants search for truth.” Id. at 1051. could have been convicted under the law of parties). On this issue of first impression in this court, we now join our sister In finding a due process violation under these circuits in finding that the use of inconsistent, irreconcilable circumstances, the Eighth Circuit in Smith v. Groose was theories to convict two defendants for the same crime is a due careful to distinguish the facts in its case from those in the process violation. Fifth Circuit’s opinion in Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995), where the court did not reach the due process question in a case in which the prosecutor argued in two No. 01-3613 Stumpf v. Mitchell 33 34 Stumpf v. Mitchell No. 01-3613

separate cases that different defendants had each shot the one Eleventh Circuit case which, although it granted habeas relief bullet that killed the victim. Id. at 1268. The distinction in on alternate grounds, also involved inconsistent theories: the Nichols case was that both perpetrators had fired shots at the victim, and both could have been convicted under a felony The prosecutor’s theories of the same crime in the two murder theory. Therefore, the prosecutor’s arguments were different trials negate one another. They are totally not factually inconsistent, because both defendants could have inconsistent. This flip flopping of theories of the offense been convicted even if the prosecutor had used the identical was inherently unfair. Under the peculiar facts of this argument in both cases. Groose, 205 F.3d at 1051. case the actions by the prosecutor violate the fundamental fairness essential to the very concept of Finally, the Ninth Circuit considered a similar situation in justice. . . The state cannot divide and conquer in this Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en manner. Such actions reduce criminal trials to mere banc), vacated on other grounds, 523 U.S. 538 (1998). In gamesmanship and rob them of their supposed search for that case, the prosecutor argued at one trial that, based on the truth. jailhouse informant testimony, one defendant had committed a rape and murder. At a second trial, the prosecutor used Thompson, 120 F.3d at 1059 (quoting Drake v. Kemp, 762 different jailhouse informants to argue that the second F.2d 1449, 1479 (11th Cir. 1985) (en banc) (Clark, J., defendant had the motive and disposition to commit the concurring)). crimes. A plurality of the en banc Ninth Circuit,7 specifically excluding situations where new evidence comes to light, In this case, the state clearly used inconsistent, found that a prosecutor cannot use inconsistent theories of the irreconcilable theories at Stumpf’s hearings and Wesley’s trial same crime in order to secure multiple convictions. Id. at At each proceeding, the prosecutor argued that the defendant 1058. The court echoed Judge Clark’s concurrence in an had been the one to pull the trigger, resulting in the fatal shots to Mary Jane Stout. At Wesley’s trial, the prosecutor relied on Eastman’s testimony and on the gun-switching scenario argued by Stumpf, to secure Wesley’s conviction. The prosecutor asserted: 7 The majority opinion rested on an ineffective assistance of counsel claim. See Thompson v. Calderon, 120 F.3d 10 45, 1051 -56 (9th Cir. Believing he had killed Mr. Stout, [Stumpf] pitched the 1997)(en banc). However, desp ite the fact tha t a majority of judges did gun aside and left the immediate area back the hallway not join in the portion of the opinion finding a due process violation, several of the conc urring and dissenting judge s indicated that they would down the steps to the basement. At that point [Wesley,] find a due process violation for the use of wholly inconsistent theories to whose own gun was jammed, picked that chrome colored convict separate defendants. See, e.g., Thompson, 120 F.3d at 1063-64 Raven up and as Mrs. Stout sat helplessly on her bed, (Tashima, J., concurring, joined by Thomas, J.)(agre eing with the premise shot her four times in order to leave no witnesses to the that “due p rocess is violated when a pro secuto r pursu es who lly crime. inconsistent theories of a case at separate trials” but arguing that, in order to find prejudice, the court m ust decide w hich of the two theories is true)(quotation omitted ); Thompson, 120 F.3d at 1066-73 (Ko zinski, J., These statements are irreconcilably inconsistent with those dissenting, joined by N elson, J.)(“In the case o f mutually inconsistent made by the very same prosecutor at Stumpf’s plea hearing, verdict, which I am not sure is the case here, I believe that the state is when he told the trial court: required to take the necessary steps to set aside or modify at least one of the verdicts.” Id. at 1071.) No. 01-3613 Stumpf v. Mitchell 35 36 Stumpf v. Mitchell No. 01-3613

Believing that the had killed Mr. Stout, Stumpf [then] rights because the prosecutor had no knowledge of Eastman’s turned the same chrome colored Raven automatic pistol testimony at the time of Stumpf’s plea. The state learned of upon Mary Jane Stout as she sat on the bed and shot her Eastman’s testimony soon after Stumpf’s plea and sentencing four times. Three times in the left side of the head and and yet continued to maintain that the convictions of both neck and one time in the writs; obviously in order not to Stumpf and Wesley, each of which was obtained by arguing leave anyone available to identify him. that a different individual was the shooter, were sound and reliable.8 Indeed, as discussed below, the state maintained The state claims that, because Eastman’s testimony was not that Eastman’s testimony was unreliable during a hearing on available at the time of Stumpf’s guilty plea, Stumpf is really Stumpf’s motion to vacate his plea and/or his sentence. To asserting Wesley’s due process claim in the guise of his own. this day, there has been no suggestion of corrective action by The state also argues that “it was of no import to the charge the state. of capital murder against Stumpf which of the two [defendants] killed the witness [Mrs. Stout]” since the capital The state’s second argument, with which the district court specification was that Mrs. Stout was killed because she was agreed, is that the identity of the shooter was not the critical a witness to the crime, and not that the defendant had been the issue in either trial and that therefore the use of different shooter. Finally, the state asserts that inconsistent, theories did not violate Stumpf’s due process rights. By irreconcilable theories were not used in these two cases, pleading guilty to capital murder, the state’s argument goes, because the prosecution did not rely on Eastman’s testimony Stumpf admitted concerted action with Wesley in causing the at Wesley’s trial. None of these arguments is persuasive. death of Mary Jane Stout for the purposes of avoiding detection. All that was left for the prosecution then to prove, First, Stumpf clearly has a due process claim even though under this theory, was that Mrs. Stout was killed so that the Eastman’s testimony was not available at the time of his trial. defendant could escape detection for other crimes. But this It is true that this is not a case where the prosecutor argument ignores the fact that, as the aggravated murder selectively presented evidence in Stumpf’s case to support the statute existed in 1984, specific intent was a necessary theory of the murder he was arguing in that case. However, element of the crime. Ohio Rev. Code § 2903.01(B); see also the due process challenge to the use of inconsistent theories supra, pp.15-16. Because Stumpf never confessed to specific is based on the notion of fundamental fairness. Because intent to kill Mrs. Stout, the prosecution bore the burden of inconsistent theories render convictions unreliable, they proving beyond a reasonable doubt that Stumpf was guilty of constitute a violation of the due process rights of any the charge. defendant in whose trial they are used. In Groose, the petitioner was in fact the defendant at the first trial, and the Finally, the state argues that irreconcilable theories were second, inconsistent theory did not come to light until four not used because Eastman’s testimony was completely years after his conviction, at the second trial. Groose, 205 F.3d at 1048. Nevertheless, the Eighth Circuit found that his due process rights had been violated. Logically, “both 8 In fact, W esley’s co unsel wanted to inform the jury that the [defendants’ due process rights] were prejudiced by the prosecutor had p reviously argued that Stumpf, and not W esley, was the prosecutor’s actions or neither’s were.” Drake, 762 F.2d at shooter. The prosecutor argued that Stumpf had never admitted to firing 1479 (Clark,J., concurring). Furthermore, it is disingenuous the shots, and that his own argument was irrelevant. The trial court did not allow Wesley’s counsel to discuss Stumpf’s proceedings in front of of the state to argue that there is no violation of Stumpf’s the jury. No. 01-3613 Stumpf v. Mitchell 37 38 Stumpf v. Mitchell No. 01-3613

unreliable. State’s counsel even asserted at oral argument that habeas relief was not warranted, because the Supreme Court the state did not rely on Eastman’s testimony in order to of Ohio’s independent reweighing of the aggravating and prosecute Wesley. This argument is just short of astounding, mitigating circumstances cured any misplaced reliance on given the fact that in seeking to convict Wesley of aggravated Stumpf having been the actual shooter. Apparently engaging murder, the prosecution offered no proof of the element of in such a reweighing process, the Ohio Supreme Court specific intent other than the theory that Wesley was the concluded that Eastman’s testimony was not sufficient to tip actual shooter. That the state relied on Eastman’s testimony the balance of aggravating and mitigating factors. is evident from the fact that it presented his testimony to the jury, and from the fact that it prevented Wesley’s counsel We cannot agree with this reasoning, because we do not from presenting evidence of Stumpf’s guilty plea. Had the believe that a reweighing of the factors used to support state presented a theory of the crime consistent with the imposition of the death penalty cures the due process theory it asserted at Stumpf’s evidentiary hearing, it would violation at issue. The Ohio Supreme Court, it is true, found have had no need to keep that information from Wesley’s that “the testimony of a cellmate during Clyde Wesley’s trial jury. is of minimal credibility, especially in light of appellant’s guilty plea and the substantial evidence to the contrary The district court ultimately accepted the state’s argument adduced during appellant’s sentencing hearing.” State v. that the core issue at Stumpf’s evidentiary hearing was not the Stumpf, 32 Ohio St. 3d at 106. But, putting aside for the identity of the shooter. However, in reaching this conclusion, moment the question of whether Eastman’s testimony need be the court started with what we believe to be a faulty credible for a due process violation to be established by the assumption, i.e., that “the state was not required to prove that state prosecution’s presentation of and evident reliance on it, petitioner was the actual shooter.” The district court, in there is no explicit state court determination regarding concluding that the specification to which Stumpf pleaded Eastman’s credibility to which this court must give deference. guilty, Ohio Rev. Code § 2929.04(A)(3), did not require that Although there is a presumption that a state court’s factual Stumpf be proven to be the “principal offender,” overlooked, findings are correct, this presumption applies only to basic once again, the fact that the aggravated murder statute itself facts and to those facts implicitly established through the trial requires specific intent. See discussion supra pp. 15-16. The court’s unique ability to judge the witnesses’ credibility and state was not required to prove that the petitioner was the demeanor. See McQueen v. Scroggy, 99 F.3d 1302, 1310 actual shooter, but it was required to prove specific intent. (6th Cir. 1996). No court at any level considering Stumpf’s claims actually observed Eastman’s testimony.9 The first Even proceeding from the district court’s false assumption, court explicitly to examine the transcripts of that testimony, however, we cannot agree with the court’s ultimate the two-judge trial panel, failed to make any factual findings, conclusion. The district court found that, although the state instead denying Stumpf’s motion summarily. The Supreme was not required to prove that Stumpf was the actual shooter, “the fact remains that the state did argue that petitioner was [the] actual shooter and the trial court did find that petitioner 9 Indeed, only two fact-finders actually observed Eastm an’s was the actual shooter.” The district court went on to testimony. The jury at Wesley’s trial obviously credited Eastman enough recognize that the trial court cited this very finding as “a to find W esley guilty. The trial judge, in pre-trial proceedings, made at reason, and a very substantial reason” that petitioner received least one credib ility determination when he found that Eastman was not a government agent within the m eaning of Miranda v. Arizona, 384 U.S. the death penalty. The district court found, however, that 436 (1966). See State v. Wesley, 1986 O hio App. LEX IS 8651 (1 986). No. 01-3613 Stumpf v. Mitchell 39 40 Stumpf v. Mitchell No. 01-3613

Court of Ohio recognized as much when it found that the trial evidence comes to light a prosecutor cannot, in order to court had “apparently” determined that Eastman’s testimony convict two defendants at separate trials, offer inconsistent did not change the balancing of mitigating and aggravating theories and facts regarding the same crime”). We have no factors. The Supreme Court of Ohio also presumably quarrel with this proposition, to the extent that it is meant to examined the transcripts, concluding that the testimony was acknowledge a state’s need to continue to investigate crimes of “minimal credibility.” Neither the presumed factual and to present all available evidence in court. However, in finding by the trial court, nor the more explicit one made by this case, although Eastman’s testimony did not come to light the Supreme Court of Ohio is due the type of complete until after Stumpf had been convicted and sentenced to death, deference contemplated by the state, because neither of these the state had many opportunities to correct its use of courts had any better opportunity to judge Eastman’s conflicting theories. Stumpf, upon learning of the state’s credibility than we do. reliance on the theory that Wesley was actually the shooter, timely filed a motion to vacate his guilty plea and/or his Finally, the state presses an argument that Eastman’s sentence. The two judges hearing this motion expressed some testimony was not credible because it relied on “the same type concern over whether there was evidence that Stumpf was not of implausible gun switching and gun juggling that Stumpf in fact the shooter, but the state did not take that opportunity told.”10 This, of course, is beside the point. The pertinent to advocate that all the available evidence be presented to the fact for Stumpf’s due process claim is not whether Eastman’s sentencing panel. gun-switching story is plausible,11 but whether the prosecution relied on that story to secure Wesley’s conviction. A due process claim is a mixed question of law and fact and The prosecution found Eastman’s testimony credible enough is therefore subject to de novo review. Williams v. Coyle, to present the “implausible gun switching” theory to Wesley’s 260 F.3d 684, 706-07 (6th Cir. 2000). Here, the proper jury and obtain his conviction on that theory. standard of review is whether there is a reasonable probability that the prosecutor’s use of inconsistent, irreconcilable In holding that a constitutional violation occurred in this theories rendered the conviction unreliable. See, e.g., id., 260 case, we recognize that at least one circuit has suggested that F.3d at 706-07; Brady v. Maryland, 373 U.S. 83 (1963); a due process violation for the use of conflicting theories may Strickland v. Washington, 466 U.S. 668, 694(1984). A be obviated when the second of two inconsistent theories “reasonable probability” is a probability sufficient to results from the discovery of new evidence. See Thompson v. undermine the outcome and is less than a preponderance of Calderon, 120 F.3d 1045, 1058 (“when no new significant the evidence. Strickland at 694; Lyons v. Jackson, 299 F.3d 588, 599 (6th Cir. 2002). 10 Eastman testified at W esley’s trial that W esley told him that after Measured against this standard, the state’s due process Stumpf had shot Mr. Stout, Stumpf panicked and dropped the .25 caliber violation mandates that both Stumpf’s plea and his sentence Raven. W esley then picked up the Ra ven an d sho t Mrs. Stout a few be set aside. First, there is a reasonable probability that, had times. W hen Mrs. Stout moaned, W esley shot her again to make sure she the prosecution not pursued conflicting theories concerning was dead. who was the actual shooter, Stumpf either would not have 11 pleaded guilty or the three-judge panel would not have found One could argue that this story is more likely to be plausible a factual basis for the specific intent element of aggravated because it is so similar to Stumpf’s acco unt of the crime, which he recounted many months before Eastman testified. murder. Second, and perhaps more likely, there is a No. 01-3613 Stumpf v. Mitchell 41 42 Stumpf v. Mitchell No. 01-3613

reasonable probability that, had the prosecution not pursued of whether the death penalty should follow. I’m not inconsistent theories, Stumpf would not have been sentenced saying it would, but it’s possible. to death. It is true that Judge Bettis made this comment during a As discussed at length above, it was necessary for the three- hearing in which the panel had before it both a transcript of judge panel to find that Stumpf specifically intended the death Eastman’s testimony and evidence of the prosecution’s of Mary Jane Stout in order for it to accept his plea to reliance on that theory of the crime. However, the fact that aggravated murder. Ohio Rev. Code § 2903.01(D) (“[n]o the panel did not grant Stumpf’s motion to withdraw his person shall be convicted of aggravated murder unless he is guilty plea does not dictate the conclusion that they did not specifically found to have intended to cause the death of find Eastman’s testimony persuasive. First, in denying the another”). The prosecution offered virtually no evidence motion summarily, the panel stated, “The Court took the regarding intent other than its contention that Stumpf shot matter under advisement and after having considered the Mrs. Stout. Had the prosecution’s alternate theory been heard same, does overrule the Motion to Withdraw Former Plea and by the three-judge panel, there is a reasonable probability that the Alternative Motion to Set Aside the Sentence Imposed.” it would have found Stumpf guilty of something less than Because the court gave no basis for its ruling, the denial of aggravated murder. relief could have been made on any number of grounds; it would be impossible to divine its reasoning. Hence, the Moreover, there is more than a reasonable probability that panel’s rejection of Stumpf’s motion does not negate the the three-judge panel would not have sentenced Stumpf to conclusion that, had the prosecution’s alternate theory been death had the prosecution not employed inconsistent and before the panel at a sentencing proceeding, there is a irreconcilable theories. In explaining its reasoning for finding reasonable probability that the panel would not have that the aggravating factors in Stumpf’s case outweighed the sentenced him to death. Second, only two of the three judges mitigating factors (and therefore that Stumpf deserved the on the original panel were still alive when Stumpf brought his death penalty), the court’s first pronouncement was that it had motion. Stumpf’s contention that his motion should have “f[oun]d beyond a reasonable doubt that the Defendant was been heard by three judges was rejected by the Ohio Supreme the principal offender in count one of the indictment,” i.e., the Court: aggravated murder charge. In turn, this finding prevented the panel from concluding that Stumpf was not the principal R.C. 2945.06 expressly provides that “[t]he judges or a offender, which would have been “a powerful mitigating majority of them may decide all questions of fact and law factor.” State v. Green, 90 Ohio St. 3d 352, 363 arising upon the trial. . . .” Unanimity is mandated only (2000)(noting that “[v]ery few death sentences have been when the panel finds a defendant guilty or not guilty. approved against persons who were not the principal Whether appellant was entitled to withdraw his guilty offender”). In fact, during the hearing on Stumpf’s motion plea or to a new sentencing hearing were questions of to withdraw his guilty plea, one of the original panel law, properly determined by a majority of the panel. members, Judge Bettis, stated: State v. Stumpf, 32 Ohio St. 3d 95, 105 (1987). [I]f we had not been satisfied that Stumpf was, in fact, the trigger man, the principal offender. . . that may very Under Ohio Rev. Code § 2945.06, then, only one judge’s well have had an effect upon this Court’s determination opinion was required to deny Stumpf’s motion. However, No. 01-3613 Stumpf v. Mitchell 43 44 Stumpf v. Mitchell No. 01-3613

under the same provision, unanimity was required as to ______________ questions of guilt and penalty. Because the third judge on Stumpf’s panel died before the prosecution’s alternate theory DISSENT and Eastman’s testimony came to light, the trial court’s denial ______________ of Stumpf’s motion can prove nothing as to whether that third judge, at the factual basis or mitigation hearings, would have BOGGS, Chief Judge, dissenting. The court has reversed been persuaded by Eastman’s testimony, and the state’s the district court’s denial of a writ of habeas corpus on two reliance on it, that Stumpf should either not have been found grounds: that Stumpf’s guilty plea was involuntary and guilty of aggravated murder, or should not have received the unknowing, and that his due process rights in his own trial death penalty. and sentencing were violated by the state’s later use of evidence against another person. I disagree with both of these Finally, as petitioner points out, Ohio courts have held that conclusions, and therefore respectfully dissent from the reweighing of aggravating and mitigating circumstances by a granting of the writ of habeas corpus. higher court is not a cure for errors in the sentencing process, where the result of the weighing process, had the correct I factors been present, is unknown. State v. Davis, 28 Ohio St. 3d 361, 372 (1988) (“We cannot accept independent review I begin with the second of the court’s two grounds, as I as a cure in this particular action because we cannot know if believe that is the more profoundly mistaken. The majority the result of the weighing process by the three-judge panel cites three cases from other circuits to buttress its theory that would have been different had the impermissible aggravating Ohio’s prosecution of Wesley, which took place in April circumstance not been present.”). 1985, some seven months after Stumpf pleaded guilty and was sentenced to death, somehow violates Stumpf’s due IV. CONCLUSION process rights. None of the three are germane to this case.

On the basis of the two claims addressed in this opinion, In Thompson v. Calderon, a celebrated California death that Stumpf’s guilty plea was not voluntary, knowing and penalty case, the court vacated a death sentence because the intelligent and that his due process rights were violated by the prosecutor presented two mutually incompatible theories for prosecution’s use of inconsistent, irreconcilable theories to the rape-murder during contemporaneous trials of two convict both him and his accomplice, we REVERSE the defendants, Thompson and Leitch. Thompson v. Calderon, district court’s decision and REMAND this case to the district 120 F.3d 1045 (9th Cir. 1997) (en banc) (plurality), vacated court with instructions to issue the writ of habeas corpus in on other grounds, 523 U.S. 538 (1998). During the pre-trial the petitioner’s favor, unless the state elects to retry him proceedings for both men, and in Leitch’s trial, the within 90 days of the date of entry of the conditional writ. prosecutor’s theory was that Leitch killed the victim, his Because we are granting Stumpf relief on both his involuntary girlfriend, because he wanted to get back together with his ex- plea and due process claims, we need not reach his remaining wife; Thompson assisted him in the crime. Id. at 1055. In arguments. Thompson’s trial, however, the prosecutor argued that Thompson had raped the victim and then killed her to cover up his act. He presented different jail house informants at each trial to bolster each contradictory theory. Id. at 1056. No. 01-3613 Stumpf v. Mitchell 45 46 Stumpf v. Mitchell No. 01-3613

The Ninth Circuit held that this shift in arguments violated a Eastman, and the forensic evidence suggested that Eastman’s prosecutor’s duty to discover the truth and that he was statement was not airtight. A cursory comparison of the facts improperly trying to secure convictions for their own sake. to those in Thompson therefore reveals that the California Thompson, 120 F.3d at 1058-59; see, e.g., Berger v. United case has little application to our case.1 States, 295 U.S. 78, 88 (1935) (stating that the government’s fundamental interest in a criminal prosecution is “not that it In Drake v. Kemp, an Eleventh Circuit case, the majority shall win a case, but that justice shall be done”). It also found remanded for a new trial because the burden of proof was that Thompson, who was tried first, was prejudiced due that improperly shifted to the defendant and the prosecutor the fact that “[o]nly in Thompson's trial did the prosecutor violated the defendant’s rights during his closing arguments change the theory and the arguments [from those presented in in the sentencing phase. Drake v. Kemp, 762 F.2d 1449 (11th the pre-trial hearing], and offer facts that directly conflicted Cir. 1985) (en banc). A single concurring judge argued that with the underlying premise of the charges he brought.” Drake’s Fourteenth Amendment rights had been violated. Thompson, 120 F.3d at 1059. The prosecutor, in trials that were a year apart, argued in one instance that a co-defendant must have committed the murder Distinguishing Thompson from the case before us is not alone and, after having secured a conviction, argued that same difficult, however. First of all, the prosecutor in Thompson person was not strong enough to commit the crime, and pursued the two mutually incompatible theories of the murder therefore Drake must have helped. The concurring judge at contemporaneous trials after joint pre-trial proceedings, and concluded that it “seems inescapable that the prosecutor deliberately chose witnesses who would tell the conflicting obtained Henry Drake's conviction through the use of story that he needed to convict each defendant. Knowingly testimony he did not believe; bringing this case under the putting on false evidence is prosecutorial misconduct that logical if not actual factual framework of . . . Napue.” Drake, violates the Due Process Clause. Napue v. Illinois, 360 U.S. 762 F.2d at 1479 (Clark, J. specially concurring). Drake 264, 269 (1959). Nothing in this case indicates that the therefore does not further Stumpf’s case either: a concurring prosecutors deliberately presented false evidence: Stumpf opinion that turns on the prosecutor’s inferred knowledge that pleaded guilty to aggravated murder with the specification of he was presenting false evidence does not comport with the killing a witness and attempted aggravated murder with a facts in this case. firearm. The State had every reason to believe his over-all The last case cited by the majority, Smith v. Groose, 205 admission of responsibility. It was under no obligation, F.3d 1045 (8th Cir. 2000), is equally unconvincing. That case however, to accept at face value his assertion that he did not involved two groups of robbers, the first of which, when actually pull the trigger, especially in light of contradictory preparing to burglarize a house, discovered the second forensic evidence, such as the fact that a .25-caliber weapon already in the process of stealing the homeowner’s killed Mrs. Stout, the same caliber as Stumpf’s gun. possessions. The two groups joined forces, and at some point Nor did the prosecutor in Thompson collect new evidence during the crime the homeowners were murdered. Id. at between trials; he simply manipulated the facts that he had. In contrast, Wesley’s trial took place seven months after 1 Stumpf pleaded guilty, during which time informant Eastman It is worth noting that constitutional claim made in Thompson told prosecutors that Wesley confessed that he murdered ultimately did not prevent the defendant’s execution on July 14, 1998. Calderon v. Thompson, 523 U.S. 538, 566 (1998) (reinstating the mandate Mrs. Stout. However, Wesley denied having confessed to denying hab eas relief). No. 01-3613 Stumpf v. Mitchell 47 48 Stumpf v. Mitchell No. 01-3613

1047. The leader of the first group, Anthony Lytle, provided Groose does not “hold that prosecutors must present varying accounts of what happened, alternately claiming that precisely the same evidence and theories in trials for different the head of the second group, Michael Cunningham, killed defendants. Rather [it] hold[s] only that the use of inherently the couple and that one of his (Lytle’s) cohorts, James factually contradictory theories violates principles of due Bowman, was the murderer. Id. at 1047-48. The state process.” Id. at 1052. The majority remarkably expands this convicted Jon Keith Smith, another member of Lytle’s group, holding to conclude that evidence in a second case that for felony-murder based on his association with purported contradicts a guilty plea in an earlier case can implicate due fellow gang member Bowman, who was argued to be the process rights. Stumpf pled guilty after a colloquy in which actual killer. Four months later, the state then successfully he indicated that he understood that he was waiving certain prosecuted Cunningham for the same murders, based on constitutional rights. A defendant’s guilty plea is an Lytle’s other story that Cunningham had already killed the “admission that he committed the crime charged against couple when Lytle and his friends entered the house. Id. at him.” North Carolina v. Alford, 400 U.S. 25, 32 (1970). 1048. Nothing in the record suggests that the prosecutor was remiss The Eighth Circuit ultimately granted Smith a writ of in relying on Stumpf’s acknowledgment of guilt. See habeas corpus because the state’s prosecution of Cunningham Dickerson v. United States, 530 U.S. 428, 450 (2000) (Scalia, violated Smith’s due process rights. Ibid. Again, the crux of J., dissenting) (observing that if a defendant voluntarily the case was the deliberate presentation of false evidence: “In acknowledges wrong-doing, the “Constitution is not . . . short, what the State claimed to be true in Smith's case it offended by a criminal's commendable qualm of conscience rejected in Cunningham's case, and vice versa.” Id. at 1050. or fortunate fit of stupidity).2 Therefore, I do not see any Only a showing of this kind of prosecutorial misconduct grounds on which to base an allegation that the prosecution could support a claim, dubious as it might be, that Stumpf’s skewed the same set of facts in two different trials in order constitutional rights were retroactively violated. achieve two mutually incompatible guilty verdicts. This case has little or no similarity with the facts of Thompson, Drake, Although this court mentions the prosecution’s knowledge and Groose. of Eastman’s subsequent statement concerning Wesley’s alleged confession to being Mrs. Stout’s killer, the court’s Far more instructive is the Ninth Circuit’s quite recent decision does not rest on this knowledge. It is undisputed that decision in Shaw v. Terhune, 353 F.3d 697 (9th Cir. 2003). the prosecution did not know of Eastman’s statement at the The court held that imposing sentence enhancements on two time of Stumpf’s conviction and sentencing. Nothing defendants for personal use of a firearm during an attempted indicates that the prosecution cherry-picked facts in order to robbery and assault on a restaurant manager was not a confirm Stumpf’s guilty plea in the evidentiary hearing. The majority does not argue that the prosecution was under any 2 obligation to confess error in Stumpf’s post-conviction Even assuming, arguendo, that the majority is correct that Stumpf pled guilty based on substandard legal advice, it does not follow that proceedings or appeals, nor even to bring Eastman’s accepting the acknowledgment of guilt amounts to prosecutorial statement to Stumpf’s attention. There is simply no misco nduc t, the prerequisite for finding a violation of Stump f’s prosecutorial misconduct in this case that could retroactively constitutional rights. The majority argues that the plea was no t voluntary, implicate Stumpf’s due process rights. a conclusion I ad dress infra, but the validity of the plea is an entirely different matter. H owever flawed a d efendant’s guilty ple a might be, it cannot constitute a contradictory prosecutorial theory of guilt, as required in Groose. No. 01-3613 Stumpf v. Mitchell 49 50 Stumpf v. Mitchell No. 01-3613

violation of due process, although the testimony clearly only lightly on the court’s resolution of the question of indicated that only one perpetrator had held a gun to the “whether there is a reasonable probability that the manager’s head. Id. at 701-02. When the first defendant, prosecutor’s use of inconsistent, irreconcilable theories Shaw, learned of the conviction and sentence of his rendered the conviction unreliable.” (Maj. Op. at 40). accomplice three years later, he filed a habeas petition, citing Nothing that occurred in Stumpf’s proceeding rendered the the California Court of Appeals decision upholding Watts’s conviction unreliable. At most, the existence of Eastman’s sentence which stated: “Indeed, the evidence adduced at trial, statement could be argued to have rendered the conviction which presumably was available to the prosecutor prior to unreliable, but then our analysis would simply be that of any trial, tends to support the conclusion that the jury in [Shaw’s] newly discovered evidence, which proceeds against a more trial was mistaken.” People v. Watts, 76 Cal. App. 4th 1250, difficult background and which the court does not undertake. 1259-61 (1999) (quoted in Shaw, 353 F.3d at 701) (bracket United States v. O’Dell, 805 F.2d 637, 640 (6th Cir. 1986) added in Shaw). (“Motions for anew trial based on newly discovered evidence However, the Shaw court distinguished its case from are disfavored.”); see, e.g., Herrera v. Collins, 506 U.S. 390, Thompson, pointing to the fact that the prosecutor did not 400 (1993) (stating the rule that habeas relief is not the proper manipulate evidence – the same crucial distinction that is remedy for a claim of judicial error based on newly present in our case. Shaw, 353 F.2d at 702. Ambiguous discovered evidence, absent some constitutional flaw in the evidence is not false evidence; “regrettable” tactics are not trial proceedings). It would indeed be bizarre if Eastman’s necessarily unconstitutional. Id. at 703-04. The fact of the statement could not undermine Stumpf’s conviction by its matter is that no one but Wesley and Stumpf know who shot own force, but introducing it into another proceeding could do Mrs. Stout. The State is entitled to put on the available so. Following our court’s decision, a prosecutor faced with evidence to convince the finder of fact of guilt. As long as it the same dilemma in the future would be well advised not does so in a good faith manner, without manipulating or only to eschew reliance upon such potentially contradictory selecting out critical evidence, due process is not violated. evidence in later proceedings, but presumably prevent any other prosecutor from doing so. He or she might even be The Shaw court also speculated that if there were a forced deceitfully to disclaim a belief that a jury was entitled constitutional violation, that Watts, the second defendant, to hear such evidence. In sum, whatever the result might be rather than Shaw, would be the one who could argue the were Wesley bringing the claim, I cannot agree to the point. Id. at 704, n. 5. Similarly, I could understand a court principle of retroactive unconstitutionality propounded in this accepting Wesley’s claim that the prosecution could not case. honestly present evidence in his case that contradicted what the government had relied upon previously (a type of II “prosecutorial estoppel”), or even that it could not present With respect to Stumpf’s claim attacking his guilty plea, evidence that contradicted a position it was taking elsewhere. the court’s opinion appears to take no notice of the benefit However, none of those theories can retroactively render that Stumpf in fact gained from pleading guilty. He first unfair the fundamentally fair proceedings that Stumpf waived a jury trial, opting to contest the charges before a received. three-judge panel. He then pled guilty in return for the Having indicated that I believe it is logically impossible for prosecution dropping some charges and specifications. It is Stumpf’s claim to succeed under these circumstances, I touch axiomatic that acceptance of responsibility decreases the chances that the death penalty will be imposed. The No. 01-3613 Stumpf v. Mitchell 51 52 Stumpf v. Mitchell No. 01-3613

sentencing court had three choices in sentencing Stumpf: life thought we would be able to make at this stage.” It made the without parole for twenty years; life without parole for thirty argument. The three-judge panel heard and considered it. years; and death. It made sound strategic sense for him to act They simply were not persuaded. in a way that would encourage the judges to choose one of Finally, it is true that Stumpf denied that he actually shot the first two options. Mrs. Stout. Nevertheless, he knew that by pleading guilty, he Once Stumpf pled guilty, he was entitled to an evidentiary would only be able to argue that Wesley in fact committed the hearing before a three-judge panel to confirm that the murder as part of the mitigation phase of the proceedings. evidence in the case supported his plea. Ohio Rev. Code The majority asserts that there is evidence of a “serious Ann. § 2945.06. Under one strategic view of the facts, the misunderstanding,” (Maj. Op. at 23), between the judge and panel might have been less likely than a jury to render a death Stumpf’s lawyers. But no one was denying that Stumpf was verdict because it would have grasped the legal theory behind involved in the murder of Mrs. Stout. His lawyers were Stumpf’s position that, while guilty of Mrs. Stout’s murder, laying the groundwork to argue that Stumpf was not the he was not actually the shooter, and therefore did not deserve triggerman and therefore did not deserve the death penalty. the death penalty. Stumpf was arguably hoping for another Stumpf would certainly be anxious to make that argument, benefit, namely the dismissal of the remaining specifications and it is hardly surprising that, not knowing the precise point to the charges against him that made him eligible for the in the proceedings that it would be relevant, he would want to death penalty. In Ohio “[i]f the indictment contains one or double-check that he would have an opportunity to argue this more specifications, and a plea of guilty or no contest to the mitigating factor. The majority simply misinterprets charge is accepted, the court may dismiss the specifications Stumpf’s caution as confusion. and impose sentence accordingly, in the interests of justice.” Under these circumstances, it appears to me that Stumpf Ohio R. Crim. P. 11(C)(3). Therefore, the majority is understood his legal strategy, executed it according to plan, incorrect that Stumpf received no benefit at all from pleading and got exactly the opportunities that he bargained for, guilty: he significantly improved his chances to avoid the making the grant of a writ of habeas corpus unwarranted. death penalty, although in the end his strategy did not yield Therefore, I respectfully dissent. the desired result. Despite the court’s extensive exegesis of the “confusion” at the plea hearing itself, the events that took place at the sentencing hearing apparently were neither a surprise nor a disappointment, in the beginning, to the defendant or his counsel. In fact, the defense attorney stated that the prosecution’s rendition of the plea agreement was accurate, (Maj. Op. at 16). No objection was made to the course of the sentencing hearing, nor was there any effort to withdraw the guilty plea at that point. It was only after the Eastman statement came to light that Stumpf attempted to withdraw his guilty plea. Similarly, at the “factual basis hearing” before the three-judge panel the defense did not attempt to say: “Wait a minute, we aren’t able to make an argument that we