Opinion
Case No. 2:03-cv-983.
March 21, 2008
OPINION AND ORDER
On September 27, 2004, this Court issued an Opinion and Order dismissing several of Petitioner's claims as procedurally defaulted: 1(E), 5 (¶¶ 100-105), 10, 11, 12, and 13. (Doc. # 27.) Additionally, this Court dismissed sub-part (G), paragraph 28 of petitioner's first ground for relief as plainly without merit. On September 28, 2007, this Court issued an Opinion and Order rejecting the remainder of Petitioner's claims on the merits. (Doc. # 56.) Petitioner filed a notice of appeal on October 26, 2007. (Doc. # 59.) This matter is before the Court upon Petitioner's motion for a certificate of appealability (Doc. # 58) and Respondent's response in opposition (Doc. # 60).
An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir. 1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4. "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir. 2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484.
Petitioner seeks a certificate of appealability on the following grounds for relief: 1 (I-A); (I-C); (I-D); (I-F); (I-K) and (II-A); (II-B); (II-C); (II-D); (II-E); (II-F); (II-H); (II-I)); 2; 3; 5; 8; 15; and 18.
First Ground for Relief: Mr. Jackson was denied the right to the effective assistance of counsel at the culpability and penalty phases of his capital trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
I. Trial Phase
A. Defense counsel abrogated their duty to zealously represent Mr. Jackson when they failed to call Michael Patterson as a witness.Petitioner argued that his trial counsel performed unreasonably and to his prejudice by failing to call Michael Patterson as a witness, after Patterson had sent Petitioner a letter offering to tell the truth about what happened and "to tell them Boone did it." (Doc. # 58, at 4 (quoting J.A. Vol. II, D.A., OSC, Part B, at 121).) This Court rejected Petitioner's claim under the
two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984) for reviewing claims of ineffective assistance of counsel, finding neither deficient performance nor prejudice stemming from trial counsel's decision not to call Michael Patterson as a witness for Petitioner. Specifically, this Court concluded, first, that counsel had made a reasonable tactical decision based on their concerns about calling a witness who refused to talk to them or tell them what he would testify to and who had previously given statements to police incriminating Petitioner as the shooter. This Court went on to conclude that counsel's decision did not prejudice Petitioner, insofar as he never produced or even proffered any evidence supporting Patterson's cryptic reference to co-defendant Derrick Boone having been the shooter.
Petitioner advances five reasons in support of his argument that this Court's determination was debatable under the standards required for a certificate of appealability. (Doc. # 58, at 5-7.) Petitioner argues that upon learning of Patterson's letter, counsel had an ethical obligation to investigate the letter, including interviewing Patterson, before alerting the prosecutor about Patterson's letter. (Petitioner maintains that upon learning from defense counsel of Patterson's letter, the prosecutor met with Patterson and coerced him into not cooperating with Petitioner's attorneys by threatening to rescind his plea agreement.) Second, Petitioner argues that no ethical rules prohibited defense counsel from calling to the stand a witness whom they knew or suspected would invoke his Fifth Amendment right not to testify. Third, Petitioner questions the validity of defense counsel's alleged fear that Patterson might incriminate Petitioner as the shooter, arguing that such testimony merely would have been cumulative to what Malaika Williamson and Derrick Boone already had testified to. Fourth, according to Petitioner, counsel's position that it would have been "foolhardy" to call a witness without knowing what he would say does not amount to a reasonable decision, but rather, only magnifies defense counsel's initial error in not interviewing Patterson about his letter or otherwise investigating its content. Finally, Petitioner argues that defense counsel's "tactical decision" deprived Petitioner of the opportunity to present evidence that he was not the shooter. All of these reasons, Petitioner argues, reveal as debatable or wrong this Court's determination that counsel's decision not to call Patterson was a tactical one that did not prejudice Petitioner. The Court agrees.
In view of the weight of Petitioner's arguments, the importance of the Constitutional rights implicated by this claim, and the scrutiny warranted for any evidence, however precarious, that might undermine the State's theory in a death penalty case, the Court is satisfied that petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find this issue debatable or wrong, sufficient to warrant certification under 28 U.S.C. § 2253(c)(2). The Court GRANTS petitioner's motion, and hereby certifies the following issue for appeal:
1. Did defense counsel abrogate their duty to zealously represent Petitioner when they failed to call Michael Patterson as a witness?
C. Counsel failed to move for an expert identification witness.
Petitioner argued that defense counsel performed unreasonably and to his prejudice in failing to obtain an expert to testify regarding eyewitness identification, given the importance of the testimony by Becky Lewis and Nikki Long identifying him as one of the armed perpetrators and the fact that the ramifications attendant to eyewitness identification in criminal cases are not commonly understood by attorneys or lay jurors. This Court rejected Petitioner's claim, concluding that counsel were reasonable in electing to attack the validity of the identification testimony through cross-examination and closing arguments rather than an eyewitness identification expert, especially in view of the fact that the identifications by Lewis and Long were not the sole or even primary component of the State's case against Petitioner. The Court further concluded that Petitioner was not prejudiced by counsel's failure to use an expert to undermine the identification testimony because the State presented other (and stronger) evidence establishing that Petitioner was present in the apartment and armed with a handgun.
In arguing that this Court's determination is debatable under the standards for the issuance of a certificate of appealability, Petitioner emphasizes that the testimony by Lewis and Long identifying him as one of the perpetrators was more critical than this Court allowed, given that they were the only witnesses placing Petitioner at the scene who were unbiased. Petitioner further argues that two of the cases upon which this Court relied, Madrigal v. Bagley, 276 F. Supp. 2d 744 (N.D. Ohio 2003), and Ferensic v. Birkett, 451 F. Supp. 2d 874 (E.D. Mich. 2006), actually support his ineffective assistance claim, Madrigal because its facts concerning the reasonableness of counsel's decision not to use an eyewitness identification expert are distinguishable and Ferensic because counsel in that case actually moved for an eyewitness identification expert. In so arguing, Petitioner emphasizes that his counsel, unlike the counsel in Ferensic, never even explored the idea of obtaining an eyewitness expert and that the expert who provided an affidavit in support of Petitioner's claim explained factors critical to the reliability of the identifications by Lewis and Long that defense counsel never explored.
Petitioner maintained that he was home at his girlfriend's apartment at the time of the offenses. It was critical, therefore, to undermine eyewitness identification testimony placing him at the scene and armed with a handgun. In light of Petitioner's arguments that the cases upon which this Court relied are distinguishable, as well as the growing body of criticism concerning the reliability of eyewitness identification, see, e.g., Moss v. Hofbauer, 286 F.3d 851, 874 (6th Cir. 2002) ("jurisprudence and legal scholarship have well established that while eyewitness testimony has a profound impact on juries, it is often times extremely unreliable"), and cases cited therein, the Court is satisfied that Petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find this issue debatable or wrong, sufficient to warrant certification under 28 U.S.C. § 2253(c)(2). The Court GRANTS Petitioner's motion and hereby certifies the following issue for appeal:
2. Did counsel perform unreasonably and to Petitioner's prejudice during the guilt phase by failing to move for an expert identification witness?
D. Defense counsel failed to object to the prosecution's unfair, improper, and excessive use of leading questions.
Petitioner argued that his attorneys performed unreasonably and to his prejudice when they failed to object to the prosecutor's improper and unfair use of leading questions during direct examination of co-defendant Derrick Boone. Pointing to sixty-nine pages of direct examination during which the prosecutor largely asked detailed questions and Boone largely supplied one-word answers, Petitioner argued that the prosecutor was able to present his unsworn version of the facts and that Boone, himself a viable alternate suspect and infinitely less credible than the prosecutor, was never compelled to testify about the events in his own words. The Court rejected Petitioner's ineffective assistance, concluding that the questions complained of by Petitioner appeared to be permissible under Ohio law and that Petitioner accordingly could not demonstrate prejudice from counsel's failure to object to the questioning. Specifically, this Court observed that the trial court could very well have concluded under Ohio law that Boone was a reluctant witness or a witness identified with Petitioner and that leading questions were necessary to develop his testimony.
Petitioner offers two reasons in support of his argument that reasonable jurists would find this Court's conclusion debatable or wrong. Petitioner argues that, contrary to this Court's determination, leading questions were not necessary to develop Boone's testimony because the trial court never made, and the record would not have supported, any findings that Boone was slow or straining or otherwise impaired in answering questions. Second, Petitioner argues that Boone was not a hostile witness, insofar as he chose to testify against Petitioner in order to receive a more lenient sentence. In this regard, Petitioner argues that Boone gave short answers not because he was a hostile witness, but because the prosecutor's simple questions invited Boone to give simple answers.
Out of an abundance of caution, the Court certifies this issue for appeal. Although this Court continues to be of the view that Petitioner was not prejudiced by the failure of his defense counsel to object to the prosecutor's use of leading questions during direct examination of Boone, this Court is persuaded that reasonable jurists could find its decision debatable or wrong. Derrick Boone, who was himself a viable alternate suspect, was the only person who identified Petitioner as the shooter. His credibility was accordingly of utmost importance to the State's case and the gravamen of sub-part (D) of Petitioner's trial phase ineffective assistance claim is that counsel's failure to object to the prosecutor's use of leading questions prevented the jury from assessing Boone's credibility. The Court concludes that this issue deserves further review sufficient to warrant a certificate of appealability under 28 U.S.C. § 2253(c)(2). The Court GRANTS Petitioner's motion and certifies the following issue for appeal:
3. Did defense counsel perform unreasonably and to Petitioner's prejudice during the guilt phase by failing to object to the prosecution's use of leading questions during direct examination of Derrick Boone?
F. Defense counsel failed to present available independent evidence to impeach Ivana King.
Petitioner argued that his trial attorneys performed unreasonably and to his prejudice by failing to present available independent evidence to impeach Ivana King concerning her possible bias against Petitioner due to his infidelity. The prosecution called King and she testified, among other things, that Petitioner had told her on the night of the offenses that he had "done two people," which she took to mean that he had killed two people, and that Petitioner appeared to have asked her to fabricate an alibi for him. The Court dismissed Petitioner's ineffective assistance claim, concluding on several levels that counsel's performance was not deficient and that Petitioner could not demonstrate prejudice. Regarding the deficient performance component of Strickland, the Court concluded that defense counsel had essentially done what Petitioner asserted they had not — namely, explored during cross-examination of Ivana King whether she harbored any resentment toward Petitioner stemming from her jealousy over his interactions with other women. The Court further noted that the independent evidence of her bias offered by Petitioner — i.e., an affidavit by Petitioner's cousin William Woods containing a single sentence relating his awareness that King was jealous and questioned Petitioner's behavior constantly — would have been of minimal, if any, value. The Court also noted that counsel may very well have chosen as a matter of strategy not to try to impeach King as biased against Petitioner, given the fact that she testified more than once that she loved and supported Petitioner. In this regard, the Court also noted that counsel appeared to have attempted to attack the damaging portions of her testimony, not by suggesting that she was biased, but by suggesting that she had been coerced or intimidated by police. Finally, the Court concluded that Petitioner could not demonstrate prejudice because, even assuming counsel had investigated and presented independent evidence impeaching King's credibility on the basis of her alleged bias against Petitioner, there was no reasonable probability that the outcome of his trial would have been different, considering the other witnesses who had identified him as one of the perpetrators.
Petitioner advances three reasons in support of his argument that this Court's determination was debatable under the standards required for a certificate of appealability. (Doc. # 58, at 12-14.) First, Petitioner argues that the question is not whether defense counsel presented some evidence of King's possible bias, but whether counsel failed to adequately impeach King for bias. In this regard, Petitioner continues to insist that there was available independent evidence that she was a woman scorned. Second, Petitioner actually argues that King may very well have sought to implicate him for a double murder so that he would be incarcerated and unable to have contact with other women. (Doc. # 58, at 13.) Finally, Petitioner argues that contrary to this Court's determination, the other evidence linking him to these crimes was not strong. In this regard, Petitioner reiterates that the eyewitness identification testimony by Becky Lewis and Nikki Long was questionable and argues that the testimony by co-defendants Derrick Boone and Malaika Williamson was inherently suspect because they had reasons to lie.
The Court is constrained to deny Petitioner's motion to certify this ineffective assistance claim for appeal because the Court cannot find, under the standards by which it is bound, that Petitioner has made a substantial showing that he was denied a constitutional right or that reasonable jurists would find this Court's conclusion debatable or wrong. It tests the limits of credulity to suggest that defense counsel performed unreasonably or to Petitioner's prejudice by failing to adequately impeach his essentially supportive girlfriend by presenting independent evidence that she was so enraged with jealousy that she was bent on implicating him for a double murder for which he faced the death penalty just so that he would be incarcerated and unable to interact with other women. Initially, Petitioner still offers nothing more that a single sentence in the affidavit of his cousin, William Woods, purporting to have general knowledge of King's obsessive jealousy but offering no elaboration or specific examples.
Further, to the extent that Petitioner is suggesting that defense counsel failed even to investigate King's possible bias against him, Petitioner's argument is belied by the fact that defense counsel did explore that issue with King during cross examination, albeit not to Petitioner's satisfaction. That said, even assuming case law would permit the Court to relax or lower the deference owed to counsel's performance and strategic decisions, the idea that Petitioner advances — namely, that defense counsel should have impeached King on the basis of her jealousy — does not strike this Court as wise, much less as something that no reasonably competent attorney would have forgone. It would have been difficult for counsel to impeach King as so biased against Petitioner that she preferred to see him on death row rather than with another woman, in light of the fact that King testified more than once that she loved and supported Petitioner. Further, in light of other testimony identifying Petitioner as one of the perpetrators — and Petitioner has done little to convince this Court that the other testimony cannot be relied upon — even a successful attempt to impeach King in this manner would have been of marginal, if any, value.
This Court would prefer, in a death penalty case, to err on the side of certifying too much, rather than too little. But it is obligated by 28 U.S.C. § 2253(c) to certify for appeal only those issues upon which the petitioner makes a substantial showing of the denial of a constitutional right. And under no reading of the record or controlling case law can the Court find that Petitioner has made such a showing in this instance. The Court DENIES Petitioner's motion to certify Sub-Part (F) of Part I of his First Ground for Relief.
K. Trial counsel failed to object to erroneous jury instructions telling the jury that it must unanimously acquit a person of the crime and the specifications before it may consider lesser offenses.
Petitioner argued that the trial court instructed the jury numerous times that "If you find that the State has failed to prove beyond a reasonable doubt any part of specification number ["X"], you must find the defendant not guilty of that spec[ification]. . . ." (Doc. # 58, at 14.) Petitioner argued that because that instruction violated State v. Thomas, 40 Ohio St. 3d 213, paragraph three of the syllabus (1988), holding that the jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense, defense counsel performed unreasonably and to Petitioner's prejudice when they failed to object to the instructions. This Court rejected Petitioner's claim, concluding under controlling Sixth Circuit precedent that counsel could not logically be deemed ineffective under Strickland for failing to object to an instruction that this Court, and more importantly, the Ohio Supreme Court, found to be in step with Ohio law.
In arguing for a certificate of appealability, Petitioner advances two reasons why this Court's conclusion was debatable under the standards required for a certificate of appealability. (Doc. # 58, at 14-15.) First, according to Petitioner, the issue before the Court is whether counsel were ineffective for failing to object to the improper instruction. This argument carries no force because it presupposes and relies upon the impropriety of an instruction that this Court, and more importantly, the Ohio Supreme Court, found to be entirely proper under Ohio law. The second reason offered by Petitioner is not really a reason at all, to wit: "Second, this Court and the Ohio Supreme Court's finding is an unreasonable application of Strickland in light of the facts and evidence presented. See Strickland, 466 U.S. 668." (Doc. # 58, at 15.)
For the reasons discussed more fully above in connection with Sub-Part (F) of Part I of Petitioner's First Ground for Relief, this Court must deny his motion to certify Sub-Part (K) of Part I of his First Ground for Relief. Petitioner offers nothing beyond a conclusory assertion that this Court and the Ohio Supreme Court erred under 28 U.S.C. § 2245(d) in determining that his counsel were not ineffective in this regard. He offers no case law or arguments demonstrating or even suggesting that this Court or the Ohio Supreme Court erred in determining that the jury instruction at issue was proper under Ohio law. Concomitantly, he likewise offers no case law or arguments demonstrating that this Court or the Ohio Supreme Court erred in determining that counsel were not ineffective for failing to object to that which was not error. In light of the foregoing, this Court cannot find under 28 U.S.C. § 2253(c) that Petitioner has made a substantial showing that he was denied a constitutional right. The Court DENIES Petitioner's motion to certify Sub-Part (K) of Part I of this First Ground for Relief.
II. Mitigation Phase
A. Counsel failed to properly respond to the extraneous influence upon Juror Maureen Huddle.
Juror Maureen Huddle had informed the trial court prior to the start of the mitigation phase about several incidents where she found her garage door opened and noticed some men standing near the end of her driveway. The trial court conducted a short colloquy, essentially asking her whether she believed that she could still give her full attention to the case — to which Huddle responded, "Yes." (Doc. # 18 ¶ 48, quoting Tr. Vol. XI, at 20.) Defense counsel thereafter declined to ask any further questions of Huddle. Referencing an affidavit by Juror James Cahill, Petitioner points out that, unbeknownst to defense counsel or the trial court, Huddle had returned to the jury room crying, had related to the other jurors not only the instances she had described to the trial court but also some "bizarre" phone calls she had received, and had had to be driven home by another juror one night because of her fear. Petitioner argued that the clear inference felt by Huddle and possibly conveyed to other jurors was that Petitioner or one of his unidentified accomplices were somehow behind the incidents. Because the trial court did not conduct a more in-depth colloquy to determine the scope and effect of the incident on Ms. Huddle or admonish her not to discuss the incident with her fellow jurors, Petitioner argued that his trial attorneys were ineffective for not taking any steps to discover the impact of the incident on Ms. Huddle or whether it might affect her determination of his sentence, and for not requesting the trial court to instruct Ms. Huddle not to discuss the incident with her fellow jurors.
The Court rejected Petitioner's claim, concluding under relevant case law that counsel, from their perspective at that time, were reasonable in acquiescing to the colloquy that the trial court had conducted and in believing Huddle when she responded that the incidents would not affect her ability to serve as a juror. The Court further concluded that Cahill's affidavit alone was insufficient to establish that Petitioner had been prejudiced by the failure of his attorneys to conduct a more thorough inquiry — one which might have revealed that Huddle was far more upset than she had conveyed, that she thought that the incidents were related to Petitioner's trial, and that she voiced those concerns to her fellow jurors. The Court is more than satisfied, however, that reasonable jurists could find its decision debatable or wrong sufficient to warrant further review.
As Petitioner points out in asking the Court to certify this issue for appeal, it could be argued that counsel were not reasonable in taking at face value Huddle's protestations of impartiality, in view of the natural tendencies a juror might have to deny having biases. Further, the contrast between the relatively dismissive attitude Huddle demonstrated when questioned by the trial court and the emotional reaction she apparently conveyed to her fellow jurors is reason enough, in this Court's view, to certify this issue for appeal. Finally, as Petitioner notes, the potential for prejudice in this instance cannot be taken lightly. In that regard, reasonable jurists could find worthy of further review a scenario where jurors in Petitioner's case had just found him guilty of a double murder and were embarking on an assessment of whether death was the appropriate penalty — an assessment that might have been influenced by considerations other than the appropriateness of the death sentence. The Court concludes that this issue deserves further review sufficient to warrant a certificate of appealability under 28 U.S.C. § 2253(c)(2). The Court GRANTS Petitioner's motion and certifies the following issue for appeal:
4. Did counsel perform unreasonably and to Petitioner's prejudice during the mitigation phase by failing to properly respond to the extraneous influence upon Juror Maureen Huddle.
C. Defense counsel failed to adequately investigate Mr. Jackson's psychological background and failed to present psychological evidence.
Petitioner argued that his defense counsel were ineffective for failing to investigate and present psychological evidence during Petitioner's mitigation hearing. The essence of Petitioner's claim was that counsel's failure to adequately communicate with Dr. Burch about him (Petitioner) and with Petitioner about Dr. Burch resulted in Dr. Burch's being unprepared and Petitioner being evasive and cold during Dr. Burch's attempt to interview and test Petitioner. As a result, Dr. Burch was not able to develop a comprehensive picture of Petitioner's personality functioning and counsel did not call her or any other mental health expert to testify at Petitioner's mitigation hearing.
The Court rejected Petitioner's claim, concluding that the record, although not ideally developed, was sufficient to demonstrate that counsel's decision not to call Dr. Burch was an affirmative one, rather than one born of omission or oversight, and that counsel may very well have decided, as a matter of strategy, that any attempt to present mental health evidence when Petitioner did not appear to suffer from any significant mental or personality disorders or defects may have been more harmful than helpful. This Court, in not finding deficient performance on counsel's part, also took note of the role that Petitioner played in the inability of Dr. Burch to develop or present a comprehensive picture of his personality functioning. Finally, the Court concluded that Petitioner suffered no prejudice, insofar as the information developed and presented by Dr. Hugh Turner in a 1999 affidavit, although more complete and vivid than anything presented during Petitioner's mitigation hearing, nonetheless did not amount to a portrayal of Petitioner and relevant factors concerning his upbringing and character that bore no relation to the case that counsel actually presented during the mitigation hearing. But this Court has no difficulty concluding that reasonable jurists could find its decision debatable or wrong.
Without diminishing the role that Petitioner played in Dr. Burch's inability to form a comprehensive picture of his personality functioning, this Court appreciates the importance in death penalty cases of testimony by a psychologist or mental health expert. Supreme Court and Sixth Circuit annals are rife with habeas corpus decisions emphasizing this point. Thus, counsel's decision not to present any testimony from mental health expert deserves further review, especially considering, as Petitioner argues, whether counsel's decision was informed by sufficient investigation. Further, as Petitioner argues and as the affidavits of Juror James Cahill and Dr. Hugh Turner demonstrate, the possibility that Petitioner was prejudiced deserves further review because the jury was deprived of information concerning the impact that years of domestic violence, drug abuse, and instability left on Petitioner's psyche — information that could have made a difference in one or more juror's sentencing decision. In short, although this Court was not of the view that the record supported a determination that counsel's decision was unreasonable or deprived the jury of significant mental health evidence, the absence of mental health testimony in a death penalty mitigation strikes this Court as cause for concern. The Court GRANTS Petitioner's motion and certifies the following issue for appeal:
5. Did defense counsel perform unreasonably and to Petitioner's prejudice during the mitigation phase by failing to adequately investigate Petitioner's psychological background and failing to present psychological evidence?
D. Defense counsel failed to adequately prepare mitigation witnesses.
Petitioner argued that his defense counsel were ineffective for failing to adequately prepare mitigation witnesses. The gravamen of Petitioner's argument was that defense counsel scheduled meetings with Petitioner's mother, father, and aunt only after Petitioner's trial had begun, and then met with those individuals for only thirty minutes, failed to explain the mitigation process or prepare them for what sort of questions to expect, and placed undue emphasis on urging them to urge Petitioner to accept a plea deal. As a result, Petitioner argued, the witnesses who were called to plead for his life were unprepared, thereby diminishing the effectiveness of their testimony. The Court concluded that counsel had violated no duty, given that they had met with and spoken to their mitigation witnesses and that counsel have no obligation to go over questions and answers with witnesses and may in fact make a tactical decision not to so as to avoid having testimony appear rehearsed. The Court further concluded that Petitioner was not prejudiced by counsel's performance in this regard because much of the information that the witnesses would have more effectively provided, had counsel prepared them adequately, was essentially presented.
Out of an abundance of caution, however, the Court will certify this issue for appeal. The Court remains as unpersuaded now as it did when it rejected this claim that attorneys have a duty to go over questions and answers with witnesses. However, given the undeniable importance in death penalty cases of mitigation investigation and preparation and the wealth of federal case law addressing the same, this Court is of the view that counsel's preparation concerning the witnesses charged with persuading the jury to spare the petitioner's life deserves particular attention. For that reason, the Court is persuaded that Petitioner has made a substantial showing that he was denied a Constitutional right and that reasonable jurists could find this Court's decision denying this claim debatable or wrong. The Court GRANTS Petitioner's motion and certifies the following issue for appeal:
6. Did defense counsel perform unreasonably and to Petitioner's prejudice by failing to adequately prepare mitigation witnesses?
E. Defense counsel failed to present testimony from a cultural expert.
Petitioner argued that defense counsel were ineffective for failing to present the testimony of a cultural expert to put Petitioner's conduct and character into perspective by providing the lay jury with a clear sense of the male African-American circumstance and experience. Petitioner further argued that counsel's error was outcome-determinative, insofar as it deprived the jury of relevant, available mitigation evidence. The Court rejected Petitioner's claim, finding neither deficient performance nor prejudice. Specifically, the Court concluded that counsel's tactical decision to present a "good kid led astray" theory rather than a "doomed from birth" theory was entitled to deference. The Court further concluded that Petitioner could not demonstrate prejudice from counsel's performance in this regard, in light of the possibility that the evidence set forth in Dr. Kwaw David Whittaker's affidavit might have done more harm than good by, among other things, contradicting significant portions of the testimony given by Petitioner's mother and father.
The Court is constrained under the standards set forth in 28 U.S.C. § 2254(c) to deny Petitioner's motion to certify this issue for appeal. In arguing that the Court's decision was debatable or wrong, Petitioner argues that trial counsel's decision not to call a cultural expert does not deserve deference as a reasonable tactical decision because it was supported by insufficient investigation. Petitioner further argues that prejudice from counsel's error is demonstrated by the affidavit of Juror James Cahill, wherein Cahill averred that such cultural testimony might have made a difference in his sentencing determination. Counsel's decision to present a "good kid led astray" theory rather than a "doomed from birth" theory was supported by adequate investigation. Because clearly established federal law requires courts to give deference to that decision, it is difficult for this Court second-guess counsel for failing to call such an expert in a case where the omitted evidence was inconsistent with counsel's primary mitigation theory. Unable to find that Petitioner has made a substantial showing that he was denied a constitutional right, this Court DENIES Petitioner's motion to certify this issue for appeal.
F. Defense counsel failed to protect Mr. Jackson's Eighth Amendment right to have the jury consider all relevant mitigation evidence.
Citing the wealth of information set forth in the affidavit of Dr. Hugh Turner, who had evaluated Petitioner in 1999 during his state postconviction proceedings, Petitioner argued that his defense counsel were ineffective for failing to protect his Eighth Amendment right to have the jury consider all relevant mitigating evidence, to wit: available psychological evidence that was critical to Petitioner's defense and of significant mitigating value. In addition to not presenting valuable information concerning his psychological and personality functioning, Petitioner complains that defense counsel did nothing to rebut the State's repeated assertions that he had had a normal childhood, plenty of opportunities, and numerous positive role models when he actually had had a life fraught with domestic violence, drug abuse, and chaos.
The Court rejected Petitioner's claim, noting that it had essentially rejected this claim in considering and rejecting Petitioner's claim that defense counsel had been ineffective regarding their decision not to present the testimony of Dr. Burch during Petitioner's mitigation hearing. Specifically, the Court reiterated its determination that counsel had not performed deficiently and that, even considering the record and the postconviction affidavits of Dr. Turner and Juror James Cahill, Petitioner had not demonstrated a reasonable probability that, but for counsel's allegedly deficient performance, the outcome of Petitioner's sentencing hearing would have been different.
The Court is more than satisfied, however, that this issue deserves further review on appeal. This claim goes hand in hand with the argument set forth in Sub-Part (C) of Part II of Petitioner's First Ground for Relief that his defense counsel performed unreasonably and to his prejudice by failing to adequately investigate and present available, relevant psychological evidence. Thus, for the reasons set forth in certifying issue number five, the Court concludes that Petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find this Court's decision rejecting his claim debatable or wrong. The Court GRANTS Petitioner's motion and certifies the following issue for appeal:
7. Did defense counsel perform unreasonably and to Petitioner's prejudice by failing to protect Petitioner's Eighth Amendment right to have the jury consider all relevant mitigation evidence, to wit: available, psychological evidence?
H. In the penalty phase, counsel did not oppose the admission of prosecution evidence that did not relate to the proven aggravating circumstances.
Petitioner argued that his defense counsel's error in failing to object when the trial court readmitted during the sentencing phase all of the State's evidence from the guilt phase allowed the jury to consider more than forty exhibits, some of them gruesome, that bore no relationship to the proven aggravating circumstances or the nature and circumstances of the offense. The Court rejected this claim of ineffective assistance, noting that Ohio law does not contain an express prohibition against the readmission of guilt phase evidence, that trial courts enjoy considerable discretion in the admission of mitigation evidence, and that Ohio appellate courts routinely condone the readmission of guilt phase evidence during the mitigation phase. The Court further noted not only that the Ohio Supreme Court in this case had expressly found that the guilt phase evidence in this case was relevant to the mitigation phase issues, but also that at least two federal district courts had determined that such readmission, even if error, did not warrant habeas corpus relief. The Court believes for several reasons, however, that this issue demands further review under the standards set forth in 28 U.S.C. § 2254(c)(3).
First, as this Court expressly noted, although Ohio law does not appear to compel an objection by defense counsel to the blanket readmission of guilt phase evidence, Ohio law certainly permits, if not invites, such an objection. See Ohio Rev. Code § 2929.03(C)(1); State v. DePew, 38 Ohio St. 3d 275, 282-83 (1988). That, combined with the less than bright-line pronouncements by the Ohio Supreme Court on a trial court's duty to determine, before readmitting, the relevancy of guilt phase evidence leaves unclear whether defense counsel have a corresponding duty to object when the State asks for or the trial court permits readmission of guilt phase evidence during the mitigation phase. This Court is of the view that that question should be answered. Accordingly, the Court GRANTS Petitioner's motion and certifies the following issue for appeal:
8. Did defense counsel perform unreasonably and to Petitioner's prejudice during the mitigation phase when they failed to oppose the readmission of prosecution evidence that did not relate to the proven aggravating circumstances?
I. Trial counsel did not oppose instructions that permitted the jury to aggregate aggravating circumstances and collectively weigh aggravating circumstances against mitigating factors.
Petitioner argued that counsel should have objected when the trial court instructed, "You shall sentence the defendant to death only if you find proof beyond a reasonable doubt that the aggravating circumstances [plural] outweigh the mitigating factors" and when the trial court went on to instruct, "Now reasonable doubt is present when, after you have carefully considered and compared all of the evidence, you cannot say that you are firmly convinced that the aggravating circumstances [plural] outweigh the mitigating factors." Petitioner further argued that the error of stating the aggravating circumstances in the plural was repeated in the verdict forms. Petitioner argued that he was prejudiced by counsel's deficient performance in failing to object because the improper instructions and verdict forms allowed the jury to collectively weigh the aggravating circumstances against the mitigating factors instead of weighing each aggravating circumstance separately against the mitigating factors, thereby stacking the scales in favor of death.
The Ohio Supreme Court ruled that Petitioner's claim lacked merit because "[t]he court specifically charged the jury: `The penalty for each individual count must be assessed separately. Only the aggravating circumstances related to a given count may be considered in assessing the penalty for the count.'" Jackson, 92 Ohio St. 3d at 446. This Court concluded that the Ohio Supreme Court's decision did not contravene or unreasonably apply controlling federal law because every determination that it had made in reaching its decision — namely, that jury instructions must be construed as a whole, that the jury instructions in this case correctly set forth Ohio's weighing process, and that counsel were not ineffective for failing to object to jury instructions that correctly set forth Ohio's weighing process — was consistent with federal law.
The single argument that Petitioner advances in support of his request for a certificate of appealability, (essentially the same argument that he presented in his habeas corpus petition), is that considering the principle that the jury is presumed to follow the trial court's instructions, there is a reasonable likelihood that Petitioner's jury followed at least one of the three instances during which the trial court instructed it to consider the aggravating factors cumulatively against the mitigation evidence. The Court is constrained to conclude that Petitioner has not made a substantial showing that he was denied a constitutional right or that reasonable jurists could find its decision rejecting this claim debatable or wrong. The Court bases its decision on the absence of a clear Supreme Court decision on point and the standard set forth in 28 U.S.C. § 2254(d) constraining this Court's review of the Ohio Supreme Court's decision on this issue. The Court DENIES Petitioner's motion to certify this issue for appeal.
Second Ground for Relief: Extraneous influences improperly affected the jury's determination of Mr. Jackson's sentence, thereby denying Mr. Jackson a fair and impartial sentence determination in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Third Ground for Relief: The trial court failed to ensure that extraneous influences did not improperly affect the jury's determination of Mr. Jackson's sentence, thereby denying Mr. Jackson the fair and impartial sentence determination to which he was entitled under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Petitioner argued in his second ground for relief that extraneous influences improperly affected the jury's determination of his sentence and in his third ground for relief that the trial court failed to ensure that extraneous influences did not improperly affect the jury's determination of Petitioner's sentence, in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution. Petitioner argued that trial court's failure to conduct a more in-depth colloquy allowed Huddle to take into the jury room extraneous information — concerning Huddle finding her garage door open, seeing two men near her driveway, and receiving bizarre phone calls — suggesting that Petitioner was attempting to frighten or harm the jurors. He supported the claims with the affidavit of juror James Cahill, III, wherein Mr. Cahill averred in the third paragraph that, prior to the mitigation phase, Huddle had informed her fellow jurors about bizarre phone calls she received at her home and about the incident that occurred near hear home the night prior to the trial phase jury deliberations, had entered the jury room crying after these incidents, and had to be taken home by someone one evening due to her fear.
The Court rejected Petitioner's claim, noting that it had essentially considered and rejected these allegations when it rejected Petitioner's claim that his trial attorneys were ineffective for failing to inquire of Huddle when the trial court gave them the opportunity. Thus, the same reasons that prompted this Court to certify issue number four persuade it that Petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find this Court's decision rejecting his second and third grounds debatable or wrong. Reasonable jurists could find deserving of further review a scenario where jurors in Petitioner's case had just found him guilty of a double murder and, upon embarking on an assessment of whether death was the appropriate penalty, may have been influenced by considerations other than the appropriateness of the death sentence. The Court GRANTS Petitioner's motion and certifies the following issues for appeal:
9. Did extraneous influences improperly affect the jury's determination of Petitioner's sentence, thereby denying him a fair and impartial sentence determination in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States?
10. Did the trial court fail to ensure that extraneous influences did not improperly affect the jury's determination of Petitioner's sentence, thereby denying him the fair and impartial sentence determination to which he was entitled under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States?
Fifth Ground for Relief: Prosecutorial misconduct in the mitigation phase denied Mr. Jackson due process and a fair trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner challenged the following remarks:
Ask yourself, first of all, what was proven to you, because the judge is going to give you instructions just like at the first phase, that you judge the credibility of the witnesses, and decide, first of all, what you want to believe. And the next thing you need to do is decide, is that mitigation? Is that something that makes you believe that something less than the death penalty is appropriate?
Then if you decide that there is mitigation, you decide how much weigh to give to it. And it is only then that you engage in the balancing that we have been talking about all these weeks.
(Doc. # 18 ¶ 106, quoting Tr. Vol. XI, at 155.) First, Petitioner argued that it was not a correct statement of law to tell the jury that it could decide what evidence was mitigating because the Ohio General Assembly has already determined that the circumstances enumerated in Ohio Rev. Code § 2929.04(B) have mitigating value and because the Supreme Court held in Saffle v. Parks, 494 U.S. 484, 489 (1990), that a sentencer may not refuse to consider relevant mitigating evidence. Second, Petitioner argued that it was also inaccurate to tell the jury that it decided how much weight to accord any evidence it finds mitigating because the Ohio General Assembly, in enacting § 2929.04(C) required that the factors enumerated in subsection (B) be given some weight and because the Supreme Court held in Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982), that although a sentencer is free to determine the weight to give relevant mitigating evidence, it may not give the evidence no weight by excluding that evidence from its consideration. Petitioner concluded that it was impossible to determine whether the jurors in his case found some of the statutory mitigating factors to exist, but then decided, in light of the prosecution's comments set forth above, to give them no weight.
The Court rejected Petitioner's claim, determining primarily that the remarks were not improper and secondarily that the remarks, even if arguably improper, were not so egregious as to deny Petitioner a fair trial. Specifically, the Court could not find that the challenged remarks did anything but urge the jury to give what evidence was offered little or no weight, which offended neither Ohio law nor the Eighth Amendment. Although the Court would prefer, in death penalty cases, to err on the side of certifying too many rather than too few issues, the Court would be acting inconsistently with 28 U.S.C. § 2254(c)(3) if it were to certify this issue for appeal. Reasonable jurists could not find debatable or wrong this Court's determination rejecting Petitioner's contention that the challenged remarks put relevant mitigating evidence "beyond the effective reach of the sentencer." Graham v. Collins, 506 U.S. 461, 475 (1993). The Court DENIES Petitioner's motion to certify this issue for appeal.
Eighth Ground for Relief: Mr. Jackson's jury was required to unanimously rule out the death penalty before considering a life sentence, contrary to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner challenged the following portion of the trial court's penalty phase jury instructions:
You shall sentence the defendant to death only if you unanimously find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors.
If you do not so find, you shall consider either a sentence of life without parole eligibility, a life sentence with parole eligibility after serving 30 full years of imprisonment, or a sentence of life with parole eligibility after serving 25 full years of imprisonment.
(Doc. # 58, at 31-31 (quoting Tr. Vol. XI, at 200).) The Court, addressing Petitioner's eighth and ninth grounds together, determined that nowhere did the challenged instructions suggest to the jury that it was required to unanimously find that the aggravating circumstances did not outweigh the mitigating factors before it could consider the life sentence options.
Petitioner argued in his ninth ground that the jury instructions and life sentence verdict forms improperly required the jury to unanimously recommend a life sentence.
The gravamen of Petitioner's argument in asking the Court to certify this issue for appeal is that the trial court, in instructing the jury "[i]f you do not so find," was in essence instructing the jury, "if you do not unanimously find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors." (Doc. # 58, at 31-32.) Petitioner insists that this instruction violated well-established law barring instructions that require a jury to unanimously reject the death penalty as a precondition to considering a life sentence because such instructions preclude the trier of fact from giving effect to mitigating evidence in violation of the Eighth Amendment. The Court is persuaded that this issue deserves further review.
Petitioner's arguments challenging the instant instructions, combined with the frequency with which the Sixth Circuit revisits this very issue, persuade this Court that Petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find this Court's decision rejecting Petitioner's claim debatable or wrong. The Court GRANTS Petitioner's motion and certifies the following issue for appeal:
11. Was Petitioner's jury required to unanimously rule out the death penalty before considering a life sentence, contrary to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution?
Fifteenth Ground for Relief: Mr. Jackson was denied his right to the effective assistance of appellate counsel.
Petitioner originally argued that his appellate attorneys performed unreasonably and to his prejudice by failing to raise seven issues; in requesting a certificate of appealability, Petitioner focuses on just two:
1. Defense counsel failed to request funds for, and obtain the assistance of, an eyewitness identification expert; and
2. Defense counsel did not adequately prepare mitigation witnesses.
(Doc. # 58, at 34.) Using Strickland v. Washington 466 U.S. 668 (1984), and Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999), as its guides, the Court concluded that because none of the underlying claims supporting the seven instances of appellate counsel ineffectiveness set forth above were meritorious, they were insufficient to sustain a claim of ineffective assistance of appellate counsel for the failure to raise them. These two ineffective assistance of trial counsel claims formed the basis, respectively, of sub-part (C) of Part I of Petitioner's first ground for relief and sub-part (D) of Part II of Petitioner's first ground for relief. The Court certified both for appeal, as issue numbers 2 and 6. For the same reasons, the Court is compelled to certify for appeal Petitioner's claim that appellate counsel performed unreasonably and to his prejudice for failing to raise those claims on direct appeal. The Court GRANTS Petitioner's motion and certifies the following issue for appeal:
12. Did appellate counsel perform unreasonably and to Petitioner's prejudice by failing to raise as error:
(a). Defense counsel's failure to request funds for, and obtain the assistance of, an eyewitness identification expert; and
(b). Defense counsel's failure to adequately prepare mitigation witnesses?
Eighteenth Ground for Relief: Mr. Jackson's conviction and sentence are unconstitutional because of the cumulative effect of the many errors that occurred during his trial and in all subsequent proceedings.
Because Petitioner's claim is foreclosed by Sixth Circuit precedent that clearly establishes as to cases governed by the AEDPA that the Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas relief and because, even assuming that Petitioner's claim was not precluded by Sixth Circuit precedent, this Court is not of the view that it would warrant habeas corpus relief because the Court found no errors to accumulate, the Court cannot certify this issue for appeal. In light of the authority stacked against this claim, the Court cannot find that Petitioner had made a substantial showing that he was denied a constitutional right or that reasonable jurists would find debatable or wrong this Court's decision rejecting Petitioner's cumulative error claim.
For the foregoing reasons, the Court GRANTS in part and DENIES in part Petitioner's motion for a certificate of appealability (Doc. # 58) and certifies for appeal the twelve issues set forth above.