Mason v. Mitchell (CA6)

Mason v. Mitchell, No. 05-4511 (capital case) — The court granted relief on a claim of ineffective assistance of counsel at the penalty phase.

The petitioner was charged in September 1993 with aggravated murder, rape, and possession of a firearm by a prohibited possessor.  He was convicted in June 1994, and two weeks later the penalty phase began.  Counsel presented testimony from two deputy sheriffs regarding the petitioner’s good behavior in jail, and from his mother, brother, sister, and cousin, who asked for mercy.  The petitioner testified, continuing to protest his innocence and asking the jury for a life sentence so that he could complete the appeals process.  The defense rested, and the prosecution did not offer any rebuttal evidence.  After four and a half hours of deliberation, the jury informed the judge they could not reach a unanimous sentencing recommendation.  Once they had slept on it, they recommended a death sentence.  The Ohio Supreme Court ultimately affirmed the conviction and sentence.

Ultimately the petitioner filed a federal habeas petition, raising a claim of ineffective assistance at sentencing.  The district court denied relief initially, and the Sixth Circuit remanded for an evidentiary hearing.  The district court held the hearing and denied relief, and the petitioner appealed.

In light of the prevalent ABA Guidelines for representing capital defendants at the penalty hearing, the court found trial counsel’s performance deficient.  The guidelines required counsel to present all reasonably available mitigating evidence.  But counsel’s preparation consisted of a 75-minute phone call with the Ohio Public Defender’s office five days before the penalty hearing.  Counsel had before him only information provided by the state; he “inexplicably failed to conduct his own independent investigation and interview members of the petitioner’s family regarding the circumstances of his childhood and background.”  He did briefly interview a couple of family members, but only after he made the decision not to include any information about the petitioner’s childhood in his mitigation case.

The information the state had provided showed that the petitioner “was born into a drug-dependent family, that the family had in the past and currently was dealing drugs, and that both parents had been previously incarcerated for drug trafficking.”  A psychological evaluation of the petitioner at the age of 13 showed he “had been exposed to quite a lot of violence” and that he came “from a family which has had many problems over the years.”  A police report from that time indicated that the petitioner had suffered several injuries from a beating at the hands of his father.  His parents would whip him and his brothers, tie them up, and stab him.  Counsel failed to talk to the petitioner’s two sisters and two brothers, who could have confirmed this information.

The failure to present this missing information was prejudicial to the petitioner.  The petitioner only had to persuade one juror to impose a noncapital sentence, and the jury was initially deadlocked.  None of the family-background evidence gave rise to a potential for rebuttal by the state; indeed, the only evidence the prosecution considered using in rebuttal was a deposition from a psychologist regarding the extent of the petitioner’s past criminal behavior.  The Supreme Court has held that the failure to present the kind of mitigation evidence not presented here is prejudicial.  See Wiggins v. Smith, 539 U.S. 510 (2003). The Ohio Supreme Court’s ruling ran contrary to Wiggins, and thus the court ordered a new penalty hearing.

Judge Boggs dissented, arguing that counsel is not ineffective merely because the petitioner receives a death sentence.  “Although one might argue that trial counsel’s decision to forego a mitigation defense based on family history was a foolish one, it was not the product of a constitutionally deficient investigation….  He possessed all of the essential facts regarding the petitioner’s background necessary to make a reasonable strategic choice.”  Judge Boogs also complained that the ABA Guidelines were an “impossibly high” benchmark for defense counsel to achieve.

Farley v. Bissonnette (CA1)

Farley v. Bissonnette, No. 08-1094 — The petitioner was charged with murdering her friend, and ultimately convicted.  She challenged an instruction given to the jury at trial, which told the jury that the prosecution did not have to prove that no one else may have committed the murder.  This instruction responded to the petitioner’s theory of the crime, that one of two other people may have committed the murder.  Both of those people testified at trial that they were not at the victim’s home on the night of the murder.  The judge did instruct the jury that the petitioner was presumed innocent and that the Commonwealth bore the burden of proving her guilt beyond a reasonable doubt.  The court rejected the claim, pointing out that “where the defense attempts to cast blame on someone other than the defendant, it is not unusual for the court to remind the jury that the government’s burden is to show that the defendant is guilty — not that the other person whom the defendant seeks to blame is innocent.”  After all, the defendant may have aided or abetted the murder.  In the context of the trial, the instructions as a whole did not allow the jury to convict on something less than proof beyond a reasonable doubt.  See Victor v. Nebraska, 511 U.S. 1 (1994).

The trial court’s restriction on the scope of the petitioner’s cross-examination of one of those prosecution witnesses was harmless beyond a reasonable doubt.  The defense sought to have the witness testify regarding drug-running activity in which he and the victim were involved, but the witness invoked his Fifth Amendment privilege against self-incrimination.  The Supreme Judicial Court of Massachusetts ruled that allowing the witness to invoke the privilege was error, but also had found the error harmless beyond a reasonable doubt.  The First Circuit held that this error did not have a substantial and injurious effect on the verdict.

Newman v. Metrish (CA6)

Newman v. Metrish, No. 07-1782 — The court affirmed the district court’s grant of habeas relief on a claim of insufficient evidence for conviction.  The petitioner was charged with murdering a drug dealer.  “Although the prosecution offered ample evidence to support an inference that the petitioner had previously possessed  at least one of the murder weapons, the prosecution did not offer any evidence that the petitioner had used or possessed the weapons on the day of the murder.  There was no eyewitness testimony, nor were the police able to recover any latent fingerprints from the crime scene or the items in the gym bag.”  The petitioner bought the murder weapon in 1991, and a witness had seen a similar gun in the petitioner’s home a couple of weeks before the murder.  A gym bag found by the side of the road the day after the murder contained twine that was similar to twine seized from the petitioner’s house.  That gym bag also contained a hangun that matched spent ammunition recovered from the victim’s body.  The petitioner presented an alibi defense.

The petitioner was convicted of first-degree murder, but the conviction was later reduced to second-degree murder.  His other efforts at relief on direct appeal and in state post-conviction proceedings failed.  Ultimately, he sought federal habeas relief, claiming that the evidence was insufficient under Jackson v. Virginia, 443 U.S. 307 (1979), to sustain the conviction.  The Sixth Circuit agreed.

“Here, if we consider all the evidence in the light most favorable to the prosecution, there remains reasonable doubt because we are limited by what inferences reason will allow us to draw.  We can infer only that the petitioner intended to rob a drug dealer and knew that the victim was a drug dealer, that a gun previously owned by the petitioner was used to kill the victim, and that a similar looking gun was seen in the petitioner’s home approximately two weeks before the murder….  Although the evidence need not exclude every reasonable hypothesis except that of guilt, it must be enough for any rational trier of fact to have found proof of guilt beyond a reasonable odubt.”

CA6 — memorandum disposition

Bird v. Brigano, No. 06-4438 — The petitioner was arrested for murder, locked in a police interrogation room, and asked to sign a card waiving his Miranda rights.  The trial court denied his motion to suppress the statements taken in the face of the waiver, and he was ultimately convicted and sentenced to two consecutive life terms.  The Miranda claim was ultimately certified for appeal in federal habeas proceedings.

The court affirmed.  The petitioner did not unequivocally invoke his right to silence, despite his protestations to the police that he was done talking to them, because his behavior with the police suggested otehrwise.  In the face of such ambiguity, the court could not conclude that the Ohio courts had unreasonably applied clearly established federal law.

CA9 — memorandum disposition

Hernandez v. Lamarque, No. 07-15921 (argued) — The court affirmed the denial of a § 2254 petition raising a claim under Batson v. Kentucky, 476 U.S. 79 (1986), as not surpassing AEDPA’s limitation on relief.  The court ruled that the prosecutor’s reasons for exercising the strike were not pretexts for racially discriminatory reasons.  The petitioner failed to carry his burden of showing that the state courts’ factual findings were clearly erroneous because there was no evidence of actual discrimination or statistical inferences of discrimination.

Dombrowski v. Mingo (CA11)

Dombrowski v. Mingo, No. 05-13140 — The court affirmed the denial of a § 2254 petition.  The petitioner claimed his Fifth Amendment privilege against self-incrimination was violated when a state court failed to warn him before asking him about prior convictions for purposes of a sentencing enhancement.

The petitioner pleaded guilty to burglary and theft.  As part of the plea colloquy, the trial court informed him he was giving up his rights to testify and to remain silent.  At the beginning of the sentencing hearing, the state sought to postpone it so it could finish gathering documents relating to the petitioner’s criminal history.  The trial court told the petitioner that the delay wouldn’t be necessary if he would stipulate to the prior convictions.  After conferring with counsel, the petitioner admitted to five prior felony convictions.  The petitioner received a 15-year sentence.

After exhausting state-court remedies, the petitioner filed a § 2254 petition.  Although the petitioner had a Fifth Amendment right not to testify about his prior convictions, the district court reasoned, the admission he made was a voluntary statement rather than a compelled one.  The district court therefore denied the petition.  It certified the issue for appeal.

“In this case, the petitioner has pointed to no Supreme Court precedent specifically requiring sentencing courts to either determine that a defendant knows and understands the consequences of his admission to prior convictions for sentence enhancement purposes or to advise a defendant of his Fifth Amendment rights before hearing such an admission, and we have found none.”  Miranda v. Arizona, 384 U.S. 436 (1966), did not afford him such a right, because the lower federal courts had divided on the issue.  Because the rule the petitioner sought was not clearly established federal law, he was not entitled to relief under AEDPA.

Slovik v. Yates (CA9)

Slovik v. Yates, No. 06-55867 — The court granted habeas relief on a confrontation violation.  The charges stemmed from a fight in a pool hall in which the petitioner attacked others by throwing billiard balls.  At trial, defense counsel asked one of the prosecution witnesses whether he was on probation.  The witness denied it, and trial counsel attempted to impeach the witness with a document indicating that he was.  The prosecution objected, and the trial judge ruled the impeachment evidence inadmissible under Cal. Evid. Code § 352 (the analog to Fed. R. Evid. 403).  The petitioner received a sentence of 40 years to life as a result of California’s three-strikes law and other various sentencing enhancements; in state habeas proceedings, the sentence was reduced to 35 years to life.

It was important for the court to put the value of the impeachment evidence in context.  The impeachment evidence would not have had the effect of communicating to the jury that the witness was not credible because he was on probation.  The evidence would have communicated to the jury that the witness was not credible because he had lied about not being on probation.  Excluding this evidence violated clearly established constitutional rules regarding impeachment of witnesses.  See Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308 (1974).

The State countered that, in light of the other evidence introduced at trial, the error in excluding the impeachment evidence was harmless.  But the focus of the confrontation analysis is on the testimony of individual witnesses.  In any event, the California Court of Appeal did not analyze the Sixth Amendment question, instead viewing the argument as a routine application of state evidence law.  This was contrary to clearly established federal law.  Furthermore, the error was not harmless.  The petitioner claimed self-defense at trial, and the witness with respect to whom the impeachment evidence was denied was the alleged aggressor.  The court could not conclude that any error in excluding the impeachment testimony was harmless beyond a reasonable doubt, and granted relief.

Finally, the court chastized the California Court of Appeal for making conclusory statements regarding the harmless-error component of the claim.  The state appeals court merely proclaimed three times that there was no reasonable probability of a different result without pegging its analysis to the harmless-error standards of the Supreme Court’s Confrontation Clause jurisprudence.  “Although it is unclear whether the California Court of Appeal simply failed to conduct a harmless error analysis, or whether it misapplied that analysis, its conclusion that the trial court’s exclusion of the evidence… was harmless error” was contrary to or an unreasonable application of clearly established federal law.

CA7 — memorandum disposition

Leflord v. Pollard, No. 06-1826 — The court affirmed the denial of a § 2254 petition claiming ineffective assistance of counsel.  During voir dire at the petitioner’s trial for reckless homicide during a police chase, a member of the venire explained he had been attacked on a city bus.  The petitioner’s lawyer got the juror to explain that he felt vulnerable and intimidated during the attack.  The juror also explained that he had a close friend who was a police officer, but that that would not affect his deliberations.

The petitioner claimed that he was denied his right to trial by an impartial jury.  The court ruled this claim to be procedurally defaulted because the petitioner did not raise it in state court.

He also claimed that trial counsel was ineffective for failing to strike the juror.  After following up on a potential source of bias, the lawyer made the strategic decision not to strike him.  That strategic decision was entitled to deference under Strickland.  Accordingly, the state courts did not unreasonably reject the claim.

CA5 — memorandum disposition

Shelton v. Quarterman, No. 06-10448 — This is a murder case.  The petitioner was convicted of shooting his business partner and his partner’s wife outside their home.  The partner died; the wife survived.  The partner’s wife claimed that the petitioner’s wife participated in the chooting; the petitioner’s wife was never charged.  The partner’s wife sued the petitioner’s wife for wrongful death.  During discovery, additional facts related to the murder emerged that were not presented at the petitioner’s trial.  Eventually the wrongful death lawsuit was dismissed, and the petitioner’s wife won a libel judgment for public allegations that she was involved in the shooting.

The lawyer who represented the petitioner’s wife at trial wrote a letter to the petitioner, explaining the additional evidence that had emerged during discovery and describing his belief that the prosecution had wrongfully withheld the evidence at the trial.  The petitioner then sought state habeas relief, which both the trial court and the Texas Court of Criminal Appeals denied.

The petitioner then filed a § 2254 petition, and also asked for discovery and to expand the record in federal court.  The district court denied both the requests for evidentiary development as well as the petition on the merits.  The Fifth Circuit certified the issues for appeal.

As for the petitioner’s request for additional discovery, it was grounded in an allegation that the prosecution had presented false testimony from the partner’s at the criminal trial.  But the petitioner failed to allege what was false about the testimony, such that further discovery would have allowed him to flesh that out.  Moreover, the trial court in the wrongful death lawsuit never ruled that the partner’s wife had lied on the stand.  Records from the company that maintained a portable toilet in which evidence of the shooting was found were not material under Brady.  Phone records the prosecution allegedly withheld were not exculpatory.  Because these allegations were insufficient to establish “just cause” for discovery, Bracy v. Gramley, 520 U.S. 899 (1997), the district court did not abuse its discretion to deny discovery.

As for the petitioner’s request to expand the record, the court began by noting that the provisions of § 2254(e)(2) apply to requests to expand the record as well as for evidentiary hearings.  Because the petitioner did not apprise the state habeas courts of the evidence by which he sought to expand the record, he had “failed to develop the factual basis of the claims” in state-court proceedings.  The facts were not sufficient to establish by clear and convincing evidence that no reasonable factfinder would have convicted him, so the district court properly denied the request to expand the record, and for an evidentiary hearing as well.

Finally, trial counsel was not ineffective for failing to investigate the records maintained by the portable toilet company regarding the maintenance of the particular toilet where inculpatory evidence was found.  The records were not “facially exculpatory,” and they did not indicate that the jury would have believed his alibi explanation that he placed the evidence in the portable toilet on a different day.  In light of the strength of the other evidence against the petitioner, the court concluded that the state courts’ conclusion on Strickland prejudice was not unreasonable.

Moses v. Payne (CA9)

Moses v. Payne, No. 07-35468 — The court affirmed the denial of a § 2254 bringing challenges to evidentiary rulings of the trial courts.  The petitioner was accused of killing his wife; his mother called the police from California.  The coroner testifed at the trial; he described the wounds inflicted on the victim’s body, and gave an opinion that the death was a “homicide.”  The coroner explained that he was using the word in a “mixed medical/legal” sense, “signifying the likelihood of another person’s responsibility leading to the death.”  Faced with evidence that the victim’s blood alchol level was .15% at the time of death, the coroner conceded that people having “difficulty with drugs and alcohol” are at a higher risk of suicide.

A ballistics expert also testified for the prosecution.  This expert testified that, based on the objective evidence relied on by the coroner, the death was more likely a homicide than a suicide or an accidental shooting during a struggle over a weapon.

There was also testimony of a domestic dispute between the petitioner and the victim, and how the victim had to be hospitalized.  The emergency room doctor testified that the victim had told him that the petitioner had broken her jaw.  One of the children said that the petitioner had kicked the victim, and so child welfare personnel testified.  The child welfare officer’s testimony supported the prosecution’s theory that the victim was preparing to leave the petitioner on the night she was killed.

The defense’s theory was that the victim had committed suicide.  Doctors from the hospital where the victim had been treated for drug abuse and depression testified for the defense.  The defense wanted an expert to testify regarding symptoms of depression (in order to rebut prosecution testimony), but the trial court excluded the expert.  The trial judge also excluded a photograph of the victim’s unclothed, emaciated body, ruling that it would be too prejudicial to the jury.  The defense wanted to portray the victim as suffering from an eating disorder.  The petitioner was convicted of second-degree murder and sentenced to 420 months in prison.  The Washington Court of Appeals affirmed the conviction, and the Washington Supreme Court denied review.

The court ruled that the victim’s statement to the treating physician did not implicate Crawford v. Washington’s definition of “testimony,” 541 U.S. 36 (2004), because her statements were made for purposes of treatment rather than in order to implicate the petitioner in a crime.  Accordingly, the state court’s evidence ruling was not an unreasonable application of Crawford.  As soon as the victim mentioned she had spoken with child welfare officials, however, her statements became “testimonial,” and the trial court erred in admitting them.  Nevertheless, the state appellate court ruled that admitting them was harmless under Chapman v. California, 386 U.S. 18 (1967).  The Ninth Circuit ruled that admitting these statements did not have a “substantial and injurious effect on the verdict” in light of the overwhelming evidence that the petitioner had killed his wife.  As for the testimony that the petitioner had kicked the victim on a previous occasion, the court reasoned that because this testimony merely served to explain why child welfare personnel were involved, Crawford was not implicated and no habeas relief was available.

The court also considered whether excluding expert testimony under state evidence rules (analogous to Fed. R. Evid. 702) violated the petitioner’s constitutional right to present a defense.  Because Rule 702 was intended to “assist the trier of fact” in admitting expert testimony, there was no violation of Supreme Court case law forbidding rules of evidence that excluded evidence for arbitrary reasons.  The court then cast the petitioner’s argument as challenging the trial court’s exercise of its discretion to exclude testimony under Rule 702.  But because there was no clearly established Supreme Court law regarding the point at which an exercise of “discretion” under Rule 702 violated the Constitution, there could be no habeas relief on this claim because of Carey v. Musladin, 127 S. Ct. 649 (2006).  The same reasoning applied to admitting the victim’s diary, to excluding the photographs of her emaciated body, and to allowing experts to give opinion testimony as to whether the cause of death was “homicide.”

Judge Gould dissented from the court’s ruling on the Rule 702 issue.  For him, excluding the expert testimony regarding the effects of depression “should shake our confidence that the jury reached its verdict after a fair trial.”  Judge Gould’s first point of departure was whether the court could consider any judicial decision other than one issued by the Supreme Court.  The majority had ruled that it could not; Judge Gould pointed out that while Supreme Court decisions are the only relevant source of “clearly established” law under AEDPA, circuit precedent could help explain what an “unreasonable application” of clearly established law might be.  Although clearly established federal law allowed states to exclude evidence in certain limited circumstances, the scope of that exclusion was directly related to the magnitude of the infringement on the defendant’s right to present a defense.  The greater the intrusion on that right, the narrower the scope of the exclusion.  Because Rule 702 was used to completely exclude the testimony of an important defense expert, it could be justified only in the face of a minimal incursion on the petitioner’s right to present a defense.

Judge Gould then pointed out that excluding a defense witness entirely strikes at “the heart of the defendant’s right to mount a defense.”  It was critical to the petitioner’s defense, moreover, to know whether his wife had committed suicide.  The victim had been shot in the head; the petitioner’s fingerprints were on the gun; the victim had suffered from suicidal ideation.  The critical question for the jury was whether the petitioner had shot his wife and tried to blame it on her suicidal thoughts, or whether she had shot herself despite his attempts to stop her from doing so.  “Determination of those facts is in the province of the jury.  But what we must do is to ensure that the process by which the jury receives the question is a fair one, so that we can have confidence in its determination of criminal guilt beyond a reasonable doubt.”

There was no indication that the expert’s testimony would not be reliable (cf. Crane v. Kentucky).  The expert would have helped the jury to understand major depression and suicide generally, the implications of a diagnosis of major depression, and the inconsistencies between the affect and the internal thoughts of a person suffering from major depression.  Although the jury did have testimony from others who had treated the victim, they had no other testimony regarding the likelihood that she would have recovered before her death.  At best the expert’s testimony was “partially cumulative.”  In light of the importance this testimony had to the petitioner’s defense, Judge Gould had “grave doubt” about the harmlessness of excluding it.