CA6 holds Ohio death-row prisoner’s sentencing-phase IAC claims were exhausted.

Carter v. Mitchell, No. 06-4238 (6th Cir. Sept. 6, 2012) (Martin, J.) — The Sixth Circuit affirmed in part and remanded in part a district court’s denial of habeas relief to an Ohio death-row prisoner.

1. The district court correctly denied relief on the petitioner’s claim that the trial court treated the “nature and circumstances” of the crime as aggravating, and not mitigating, in violation of the Eighth Amendment. First, the court held that the Ohio Supreme Court’s independent reweighing of aggravatng and mitigating factors effectively denied this claim sub silentio, such that under Harrington v. Richter, 131 S. Ct. 770 (2011), AEDPA’s limitation on relief applied. And while under Ohio law it’s improper to treat the “nature and circumstances” of the crime as aggravating, see State v. Wogenstahl, 662 N.E.2d 311 (Ohio 1996), the Sixth Circuit had previously held that doing so does not violate the Eighth Amendment, see Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003). Moreover, the Ohio Supreme Court’s independent review cured any Eighth Amendment error the trial court may have introduced in this regard. See Slagle v. Bagley, 457 F.3d 501 (6th Cir. 2006).

2. The district court also correctly ruled that the petitioner’s claims of IAC of appellate counsel were unexhausted and therefore procedurally defaulted. The petitioner first presented this claim to the Ohio Court of Appeals (the same court that had initially heard his direct appeal) some five years after the judgment became final. That court denied the request as untimely, and the petitioner did not seek review of that determination in the Ohio Supreme Court. One year after that, the petitioner presented the claim to the Ohio Court of Appeals for a second time; the court denied the claim as impermissibly successive, and the Ohio Supreme Court affirmed this denial on the ground that the second attempt to present the claim was procedurally barred by virtue of the petitioner’s failure to appeal the denial of the first attempt. The Sixth Circuit held the claim to be unexhausted (because of the failure to present the claim to the Ohio Supreme Court on the first attempt) and thus procedurally defaulted. It also found no cause and prejudice to excuse the default because an Ohio prisoner enjoys no constitutional right to counsel in connection with Ohio’s procedure for raising claims of IAC of appellate counsel. For that reason, this appellate IAC claim could not be used as cause and prejudice to excuse the default of other claims (such as his sentencing-phase IAC claim, discussed next).

3. However, the district court erred when it ruled that two claims of ineffective assistance of trial counsel at the penalty phase were also unexhausted and thus procedurally defaulted. The district court erred when it ruled that under Ohio law, these IAC claims must have been presented at the same time that the petitioner presented his appellate IAC claims. They do not. Moreover, the Ohio state courts had addressed these claims both on direct appeal and in postconviction proceedings. Thus they were exhausted. It did not matter (as Judge Sutton in dissent believed) that the petitioner had presented the claims to the district court both as freestanding grounds for relief and as claims as to which he was relying on the appellate IAC claim in order to excuse any procedural default. Both the habeas rules and the Federal Rules of Civil Procedure permit habeas petitioners to allow claims to do double duty in this way. And the court held that it was free to consider de novo whether the manner in which the petitioner presented his claims to the district court amounted to a forfeiture of the claims as stand-alone grounds for relief. “We are not bound by the district court’s misreading of the record.” Furthermore, the petitioner’s motion to expand the COA before the court of appeals plainly presented these claims both as substantive grounds for relief and as potentially procedurally defaulted claims as to which the petitioner was relying on appellate IAC in order to cure any procedural default. Finally, the petitioner did not fundamentally alter the claims as they were presented to the Ohio courts. Accordingly, the court remanded the case to the district court for further proceedings on the merits.

CA6 holds Ohio appellate IAC claim unexhausted.

Goldberg v. Maloney, No. 11-3305 (6th Cir. Aug. 31, 2012) (Lucero, J., sitting by designation) — The Sixth Circuit affirmed the dismissal as procedurally defaulted an Ohio habeas petitioner seeking federal habeas relief from his state-court contempt conviction under 28 U.S.C. § 2241. In a prior appeal in the case, the Sixth Circuit had held that the petitioner may have procedurally defaulted a due process claim based on lack of notice of the basis for the contempt citation. It remanded the case to the district court for proceedings on whether the petitioner could show cause and prejudice for failing to exhaust it. Back before the district court, the petitioner contended that ineffective assistance of appellate counsel was cause and prejudice for failing to exhaust the claim. But an appellate IAC claim used as cause and prejudice must itself be exhausted. See generally Edwards v. Carpenter, 529 U.S. 446 (2000). Here, however, the appellate IAC claim was not exhausted in a procedurally proper manner under Ohio law. In Ohio, appellate IAC claims can’t be raised on direct appeal; they must instead be raised in a motion for a delayed appeal under Ohio R. App. P. 26(B). Appellate IAC claims raised on direct appeal are considered exhausted only if the Ohio Supreme Court reaches the merits of the claim in that posture. Here, although the petitioner raised the appellate IAC claim on direct appeal, the Ohio Supreme Court declined to address it. Thus the petitioner didn’t exhaust his appellate IAC claim, and hence the district court correctly held the notice claim to be procedurally defaulted.

CA9 affirms denial of habeas relief to Washington death-row prisoner.

Gentry v. Sinclair, No. 09-99021 (9th Cir. Aug. 28, 2012) (Clifton, J.) — The Ninth Circuit affirmed the denial of habeas relief to a Washington death-row prisoner.

1. Contrary to the district court’s conclusion, the petitioner’s claim of ineffective assistance of counsel for failing to present mitigating mental-health evidence was exhausted. The petitioner’s personal restraint petition asserted the claim, cited federal law, and incorporated by reference motions for discovery and funding filed simultaneously with the personal restraint petition, adequately alerted the Washington Supreme Court to the federal claim.

2. Nor was the claim procedurally barred in state court, as the district court also concluded. The Washington Supreme Court’s opinion denying the personal restraint petition noted that all of the pending motions had been “passed to the merits,” see In re Personal Restraint of Gentry, 972 P.2d 1250 (Wash. 1999), and that the Sixth Amendment claim that those motions were supporting was denied on the merits. Thus the state courts resolved the claim on substantive grounds, not procedural bar.

3. Because the Washington Supreme Court resolved the claim on the merits, AEDPA’s limitation on relief applies. That court concluded that the record was insufficient to support the deficient-performance prong of Strickland, and that conclusion was reasonable. Nothing in the affidavits from trial counsel or a psychologist retained by trial counsel submitted in support of the personal restraint petition addressed what trial counsel had done to prepare this aspect of the case in mitigation. It was reasonable for the state court to deny the petitioner’s motions for funding and additional discovery because granting those motions would not have allowed the petitioner to develop evidence to support the deficient-performance prong of Strickland.

4. The petitioner did not exhaust Brady and Napue claims relating to a jailhouse informant who allegedly received benefits from the State of Oregon in connection with a pending case there. All of the Brady and Napue claims in the personal restraint petition related to other jailhouse informants. Thus the factual basis of this claim was not presented to the Washington Supreme Court.

5. The claims relating to the Oregon jailhouse informant was subject to the anticipatory procedural bar of Washington’s one-year limitation period on personal restraint petitions, thus invoking a federal procedural default. Because there was no evidence of a deal between the informant and the State of Oregon, he could not succeed on his Brady claim and thereby show cause and prejudice under Banks v. Dretke, 540 U.S. 668 (2004).

6. Nor did the petitioner merit relief on a claim that the prosecution lied about favorable treatment of another jailhouse informant regarding that informant’s parole status. Before the Ninth Circuit, the state did not dispute that the informant lied about receiving favorable treatment in relation to his parole status, nor did the state dispute that the prosecution knew that the informant had lied. The state court’s contrary conclusion was therefore incorrect. Because the state court concluded that the informant had not lied, it never reached the materiality aspect of this Napue claim, which the Ninth Circuit reviewed de novo. See Wiggins v. Smith, 539 U.S. 510 (2003). Because the informant’s credibility was adequately challenged through cross-examination at trial, and the other evidence against the petitioner was overwhelming, the prosecution’s misconduct on this score was not material.

7. The prosecution’s failure to disclose that it had paid off a third jailhouse informant was not material under Brady.

8. Nor was the prosecution’s failure to disclose that its case agent had been fired from another police department for misconduct material under Brady (even though the petitioner could have used it to impeach the case agent’s testimony at trial). Relatedly, counsel was not ineffective for failing to discover the case agent’s employment history.

9. Counsel was not ineffective for failing to rebut the prosecution’s theory of a case, because they consulted with a medical expert who did help rebut it.

10. The Supreme Court decided Payne v. Tennessee, 501 U.S. 808 (1991), after the trial but before the penalty phase. Moreover, the state legislature passed a law permitting victim-impact evidence during this time. Neither of these developments were impermissible ex post facto laws. See Nooner v. Norris, 402 F.3d 801 (8th Cir. 2005).

11. Finally, the Washington Supreme Court reasonably concluded that Juror 22 was properly struck from the jury because she gave conflicting answers during voir dire about her ability to follow the law in passing sentence in this capital case. See also Uttecht v. Brown, 551 U.S. 1 (2007).