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.

Gingras v. Weber (CA8)

Gingras v. Weber, No. 07-3114 — The court affirmed the denial of a § 2254 petition challenging a conviction for selling marijuana.  The petitioner’s home was searched pursuant to a warrant, and the petitioner gave a statement to the police after being informed of his Miranda rights.  He filed a motion to suppress the statement before trial, which the trial court did not resolve before the petitioner pleaded guilty pursuant to a plea agreement.  The petitioner had claimed — and the Eighth Circuit ultimately considered on appeal — that trial counsel was ineffective for failing to tell him that the motion to suppress the statement had not yet been ruled on at the time he pleaded guilty, and that but for that failure he would not have pleaded.

Despite the possibility that there existed an avenue under South Dakota law for the petitioner to resolve the claim in state court, the Eight Circuit addressed the merits.  Under the pre-AEDPA standard of review, the court concluded that there was “scant support in the record” for the idea that the petitioner’s statement to the police was not voluntarily made.  He was initially upset and crying when the police came to his house, but he had calmed down sufficiently to talk to the police in a calm and coherent manner.  There was no coersion on the police’s part.  These conclusions were reasonable, and did not suggest that the trial court would have granted the motion to suppress.  Consequently, there was no prejudice under Strickland and Hill v. Lockhart, 474 U.S. 52 (1985).

The petitioner had sought an evidentiary hearing in federal court on this claim.  The Eighth Circuit affirmed the denial of the hearing, because the petitioner was not diligent in pursuing a hearing as to this claim.  The state habeas court did hold a hearing, but only on a different claim, and there was no indication that the petitioner had sought to bring this claim before the state courts on habeas review.  Consequently, he “failed to develop” the claim in state court, and was not entitled to a hearing under 28 U.S.C. § 2254(e)(2).

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.

CA10 — memorandum disposition

United States v. Ocampo, No. 07-6221 — The court denied a COA to appeal in a 2255 case.  The court rejected the petitioner’s claim of ineffective assistance of counsel because counsel appointed to represent him on appeal did not furnish the court with a complete transcript of the trial.  (Lame!)  The court also considered and rejected a claim under Brady v. Maryland, 373 U.S. 83 (1963), that the petitioner had not raised in the district court.  The court rejected the Brady claim on the merits because the petitioner did not offer any evidence that the prosecution withheld any evidence.

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.

CA9 — memorandum dispositions

Skattebo v. Carey, No. 06-15723 (argued) — The court affirmed the denial of a § 2254 petition.  The petitioner claimed trial counsel was ineffective for relying on cross-examination from a prior trial to support a heat-of-passion defense to murder charges, rather than allowing the petitioner to testify personally on an imperfect self-defense theory.  Based on the course of testimony at the prior trial, counsel made a strategic decision to pursue a heat-of-passion defense, which had been corroborated by several witnesses.  In light of this testimony, counsel’s decision at the second trial was not unreasonable.  This is especially true because allowing the petitioner to testify regarding an imperfect self-defense theory would have afforded the prosecution an opportunity to undermine the heat-of-passion theory as well.

Alaimalo v. United States, No. 07-56621 (screening) — The district court correctly dismissed the § 2241 petition for lack of jurisdiction because the petitioner did not demonstrate that the § 2255 remedy was ineffective or inadequate to afford him relief from his sentence.

CA4 — memorandum disposition

United States v. Snyder, No. 05-7731 — This order is confusing.  The district court denied the § 2255 motion but certified for appeal whether the public-safety exception to Miranda allowed the trial court to admit statements the defendant made concerning the location of a weapon.  The court ruled that trial counsel was not ineffective for failing to ask for suppression of the statements.  (That’s not the claim certified for appeal, but both roads lead to the same place.)

CA6 — memorandum disposition

Reddic v. Conerly, No. 07-1032 — The court afffirmed the denial of a § 2254 petition on the merits.

The petitioner challenged the voluntariness of his guilty plea to armed robbery, as well as the effectiveness of counsel relating to the plea.  The court affirmed with respect to the voluntariness claim.  As for the IAC claim, the court noted that the claim he advanced in district court was not the same claim he advanced in state court.  Accordingly, it was unexhausted.  Moreover, the court denied it as meritless because there was no indication that the evidence the petitioner contended counsel did not uncover before the plea was entered would have caused him to go to trial rather than to plead guilty.

Cox v. Del Papa (CA9)

Cox v. del Papa, No. 06-15106 — Must a trial court examine the validity of a Miranda waiver when the defendant’s competency to stand trial is at issue?

Cox was charged with killing a prostitute in Las Vegas.  He was arrested outside of Winslow, Arizona, and read the Miranda warnings.  Cox told the police that he had been framed, that he killed the woman in self-defense, and she had come at him with “fangs and fingernails” and that he had choked her only long enough to subdue her.  Cox spent a week in jail in Arizona before Las Vegas detectives came to fetch him.  When the Nevada detectives returned, they again read Cox the Miranda warnings.  Although they told Cox they were not going to interrogate him during the ride back to Las Vegas, Cox “decided to speak spontaneously for almost 10 hours straight about everything under the sun.”  (Google Maps tells us it’s only a 5-hour drive from Winslow to Las Vegas.)  Cox told the Nevada cops that the woman had come out of the bathroom in the motel they were staying at wrapped in a towel and then “flipped out.”  Cox claimed he had to restrain her because she was acting “bizarre and devilish.”  Once the woman passed out, Cox said, he fled, hoping that someone would find her and help her.

Four psychiatrists ultimately examined Cox in the time between his arrest and the beginning of his trial.  Two opined he was competent to stand trial; two opined he was not, diagnosing him as either delusional or schizophrenic.  At a hearing, the trial judge found Cox not competent to stand trial, but also ruled that Cox would be a danger if released, and committed him to a state hospital.  His competency was periodically reviewed, and he was ultimately deemed competent to stand trial.  He was then tried for first-degree murder and sentenced to life in prison without the possibility of parole.  He exhausted his direct appeals and state habeas proceedings.

Cox argued that because the trial court harbored some doubts as to his competency to stand trial, it should have sua sponte inquired into the validity of his Miranda waivers.  As to the second set of statements, those made on the ride from Winslow to Las Vegas, the court held Miranda to be totally inapplicable because the statements were “clearly spontaneous.”  Under Carey v. Musladin, 127 S. Ct. 649 (2006), there could be no relief for this claim, because the Supreme Court had never held that courts have a sua sponte obligation to examine the validity of a Miranda waiver in the face of a suggestion of incompetence to stand trial.

Cox also argued that trial counsel was ineffective during a sentencing proceeding for failure to argue mitigating circumstances that might favor a sentence of life with parole (rather than without).  There was some mitigating evidence presented at the hearing — Cox had sustained no disciplinary violations in prison, he was “polite and courteous,” “not a problem to anyone,” and “trying to cope within the system.”  A landlord in San Francisco spoke positively about his carpentry skills.  Cox’s lawyer attributed Cox’s behavior to cocaine use, but Cox interrupted the presentation, protesting that he was not under the influence of cocaine.  Thereupon counsel changed course, arguing that life with parole was an appropriate sentence because it allowed for the possibility of release at some point in the future.  The judge disagreed, citing Cox’s peculiar behavior and the nature of the crime.

Under Wiggins v. Smith, 539 U.S. 510 (2003), the court ruled that Cox was not entitled to relief.  Unlike in Wiggins, there was no “powerful” mitigating evidence left uncovered.  Cox did not express any significant difficulties in his childhood or adolescence.  A long history of substance abuse in adulthood and fathering three illegitimate children did not suggest that avenues for uncovering mitigating evidence remained uncovered.  Furthermore, Cox’s efforts to prevent counsel from presenting drug use as the explanation for his behavior were fatal to his IAC claim.  See Schriro v. Landrigan, 127 S. Ct. 1933 (2007).

CA6 — memorandum disposition

Brooks v. Anderson, No. 06-4286 — The court affirmed the denial of a 2254 petition.

This is a case of shaken baby syndrome.  The petitioner and his mother were tried together, and they were represented by the same lawyer at trial.  The trial judge informed them of the dangers this might pose, and they nevertheless assented.  The trial judge also confirmed that the lawyer was aware of the risks involved.

During the trial, a neighbor testified that the petitioner’s aunt was present in the home, and that the aunt had suffered some kind of “breakdown.”  The neighbor also sought to testify regarding some scratches on the baby.  This tended to prove that the petitioner’s mother would be guilty of child endangerment.  Ultimately, the petitioner was convicted of felonious assault, and his mother was convicted of child endangerment.

After completing state-court review, the petitioner filed a 2254 petition, raising four claims, including two related to the lawyer’s conflict of interest.  A magistrate judge recommended granting the petition, but the district judge disagreed.  The petitioner appealed.

The court found no error in the district court’s denial of the IAC claim predicated on the conflict of interest.  Ultimately, the introduction of the testimony of the neighbor was excluded as inadmissible hearsay.  Because the trial judge excluded the evidence on hearsay grounds rather than because of any prejudice inherent in the conflict of interest, the court affirmed.