BENITA Y. PEARSON, District Judge.
Before the Court is Petitioner Sean Carter's amended petition for writ of habeas corpus, filed pursuant to
On September 25, 1997, an Ohio county grand jury indicted Carter for the aggravated murder and rape of his adoptive grandmother, Veader Prince. The Ohio Supreme Court set out the following account of Carter's crime upon considering Carter's direct appeal of his conviction and sentence:
State v. Carter,
The Trumbull County Grand Jury indicted Carter on four counts on September 25, 1997. The first count was for aggravated murder in violation of
Carter's trial commenced on March 12, 1998. Trial Tr. vol. VIII at 2237. Attorneys Anthony Consoldane and James Lewis represented him. On March 20, 1998, a jury found Carter guilty of aggravated murder and two of the capital specifications, those relating to aggravated robbery and rape. The jury also found Carter guilty of aggravated robbery, rape, and the lesser-included offense of criminal trespass on the aggravated burglary charge. Trial Tr. vol. XV at 3243-45. Following a mitigation hearing, on March 26, 1998, the jury rendered a verdict of death for the aggravated murder of Prince. Trial Tr. vol. XVI at 3408. On April 2, 1998, the trial court adopted the recommendation of the jury and sentenced Carter to death for aggravated murder. Id. at 3421-22. The court also sentenced Carter to a thirty-day term of imprisonment for the criminal-trespass conviction, ten years for the aggravated-robbery conviction, and ten years for the rape conviction. Id. at 3413-14.
Carter filed a timely appeal to the Trumbull County Court of Appeals on May 11, 1998. App. vol. III at 4-5. He was represented by Thomas Zena and John Juhasz. See id. at 63. He raised fourteen propositions of law, which he stated as follows:
App. vol. III at 65-76. The Ohio Supreme Court affirmed Carter's conviction and death sentence on September 13, 2000. Carter,
Carter, still represented by Attorneys Juhasz and Zena, also appealed his conviction and sentence through state post-conviction proceedings, pursuant to
App. vol. IV at 2, 6, 15, 17, 18, 18-19, 19. The trial court dismissed Carter's post-conviction petition on August 30, 1999. Id. at 80-94.
Carter, represented by Attorney Juhasz, appealed the trial court's dismissal of his postconviction petition on September 29, 1999. Id. at 95. He raised the following two assignments of error:
App. vol. V at 10-11. The Trumbull County Court of Appeals affirmed the trial court's decision. State v. Carter,
Carter, still represented by Attorney Juhasz, then appealed that judgment to the Ohio Supreme Court on February 1, 2001. App. vol. V at 201-03. He set forth the following two propositions of law:
App. vol. VI at 6. The court declined jurisdiction and dismissed the appeal on May 2, 2001. State v. Carter,
On January 15, 2003, Carter filed an application to reopen his direct appeal, or a Murnahan application, in the Ohio Supreme Court, pursuant to Rule XI, § 5 of the
On March 19, 2002, Carter's counsel, Linda Prucha and Christa Hohmann from the Ohio Public Defender's Office, initiated habeas corpus proceedings by filing a suggestion of incompetence, a motion to proceed in forma pauperis, an ex parte motion requesting the appointment of a mental health expert to assist counsel in assessing Carter's competency, and a motion for appointment of counsel.
On April 11, 2002, Carter filed an ex parte motion for an order directing the Ohio Department of Rehabilitation and Correction ("ODRC") to provide a copy of Carter's prison records, which the Court granted on April 23, 2002.
Carter filed a motion to stay these proceedings and hold this case in abeyance pending exhaustion of state-court remedies on January 6, 2003, which the State opposed.
Carter filed a motion for leave to conduct discovery on October 15, 2003, which the State opposed.
Carter filed a second amended habeas petition on April 12, 2004.
On July 12, 2004, Carter also filed a motion for evidentiary hearing.
On October 3, 2005, Carter filed a third amended habeas petition.
On November 29, 2005, the Court granted in part and denied in part Carter's motion to expand the record and granted Carter's motion for competency determination. It scheduled a hearing on Carter's mental competency and stayed the case until it issued a ruling on that matter.
On May 2, 2006, the Court ordered Carter's counsel to arrange for both parties' experts to observe Carter interacting with his counsel, and ordered the experts to file reports with the Court regarding their observations.
On December 7, 2007, Carter filed a motion for an order directing the ODRC to provide updated records, which the State did not oppose.
The State appealed the Court's order on October 20, 2008.
On January 8, 2013, the United States Supreme Court unanimously vacated the Sixth Circuit's decision. Ryan v. Gonzales,
Id.
Carter, now represented by Rachel Troutman and Kelle Andrews of the Ohio Public Defender's Office, see
On July 29, 2014, Carter filed an amended traverse.
Carter asserts nine grounds for relief. They are:
Carter's petition for writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), as it was filed after the Act's 1996 effective date. Lindh v. Murphy,
One of AEDPA's most significant limitations on the federal courts' authority to issue writs of habeas corpus is found in § 2254(d). That provision forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state-court decision either:
Habeas courts review the "last explained state-court judgment" on the federal claim at issue. Ylst v. Nunnemaker,
"Clearly established federal law" for purposes of the provision "is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade,
A state-court decision is contrary to "clearly established [f]ederal law" under § 2254(d)(1) only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." (Michael) Williams,
Ultimately, AEDPA's highly deferential standard requires that federal district courts sitting in habeas review give the state-court decision "the benefit of the doubt." Woodford v. Visciotti,
A state-court decision is an "unreasonable determination of the facts" under § 2254(d)(2) only if the court made a "clear factual error." Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). The petitioner bears the burden of rebutting the state court's factual findings "by clear and convincing evidence." Burt,
Miller-El v. Cockrell,
Indeed, the Supreme Court repeatedly has emphasized that § 2254(d), as amended by AEDPA, is an intentionally demanding standard, affording great deference to state-court adjudications of federal claims. In Harrington v. Richter, supra, the Supreme Court admonished that a reviewing court may not "treat[] the reasonableness question as a test of its confidence in the result it would reach under de novo review," and that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington,
Nevertheless, the Supreme Court recognized in Harrington that AEDPA "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Id. "[E]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief." Miller-El,
Federal courts, therefore, retain statutory and constitutional authority, absent suspension of the writ,
In addition to § 2254(d)'s limitations, AEDPA precludes habeas review of some claims that have not been properly exhausted before the state courts, or were procedurally barred by the state courts.
Section 2254(b)(1) provides that a federal court may not award habeas relief to an applicant in state custody "unless it appears that—the applicant has exhausted the remedies available in the courts of the State; or there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant."
When a habeas court finds a claim to be unexhausted, it can, for good cause, stay the action and permit the petitioner to present his unexhausted claim to state court and then return to federal court for review of his perfected petition. Rhines v. Weber,
The exhaustion doctrine is not a jurisdictional limitation on the federal courts. See, e.g., Pudelsky v. Wilson,
Here, the State represents in an introductory section of its return of writ that "all of Carter's claims are exhausted."
Even when a state prisoner exhausts available state-court remedies, a federal court may not consider "contentions of general law which are not resolved on the merits in the state proceeding due to petitioner's failure to raise them as required by state procedure." Wainwright v. Sykes,
In Maupin v. Smith,
Williams v. Coyle,
In determining whether the Maupin factors are met, the federal court again looks to the last explained state-court judgment. Ylst,
As noted above, if a claim is procedurally defaulted, the federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates that (1) there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error, or (2) a fundamental miscarriage of justice would result from a bar on federal habeas review. Coleman,
A petitioner can establish cause in two ways. First, a petitioner may "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier,
If a petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective-assistance claim must itself be presented to the state courts as an independent claim before it may be used to establish cause. Id. If the ineffective-assistance claim is not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and only can be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective-assistance claim. Edwards v. Carpenter,
To establish prejudice, a petitioner must demonstrate that the constitutional error "worked to his actual and substantial disadvantage." Perkins v. LeCureux,
Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the Supreme Court has recognized a narrow exception to the cause requirement where a constitutional violation has "probably resulted" in the conviction of one who is "actually innocent" of the substantive offense. Dretke v. Haley,
The Court will address the procedural default issues presented in this case when it reviews Carter's individual claims.
Carter claims in his first and fifth grounds for relief that both the trial court and his trial counsel failed to protect his constitutional right to be competent to stand trial. He argues that the trial court:
Id.
The State concedes that Carter raised his competency claims related to ineffective assistance of counsel in state courts, both on direct appeal and post-conviction, where they were adjudicated on the merits.
The State argues, however, that although "Carter raised the general claim of incompetency on direct appeal," he did not raise his competency claims relating to trial-court error in state court, resulting in the claims' procedural default. Id.
The Court finds that Carter raised his trial-court-error competency claims on direct appeal to the Ohio Supreme Court and in state post-conviction proceedings, and they were adjudicated on the merits.
As the Supreme Court has noted, "[i]t has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri,
Carter's competency has been at the forefront of his case from the very beginning. The Ohio Supreme Court set forth the following factual account of how this issue was treated at trial:
Carter,
The court went on to note that "Carter did not want to attend the court proceedings, indicating that he just wanted to enter a plea and get it over." Id.
Id.
The Ohio Court of Appeals provided this account of Carter's pre-trial competency hearings:
Carter,
Carter claims that the trial court failed to protect his constitutional right to competency in several respects. The Ohio Supreme Court was the last state court to provide a reasoned opinion on these claims. It found that "[s]ome evidence indicates that while awaiting trial, Carter attempted suicide. Otherwise, his unwillingness to attend the court proceedings and sometimes apparent disagreements with counsel were the only indications in the record that raised a question of competence to stand trial." Carter,
Carter first argues that the trial court failed to consider two pieces of evidence: a psychosocial history written by psychiatric social worker Albert Linder and a letter written by psychologist Dr. Douglas Darnall to defense counsel.
A state court's competency determination is treated as a question of fact under AEDPA's § 2254(d)(2). Thompson v. Keohane,
The State attacks the weight of the evidence Carter contends the trial court should have reviewed, arguing that the trial court "considered all relevant information in considering Carter's competency."
Moreover, as the State points out, the Court may not consider evidence outside the statecourt record. Pinholster,
Carter next claims that the trial court erred by relying on the "flawed" evaluations and testimony of the court-appointed expert, Dr. Palumbo, and State expert, Dr. Alcorn, in finding that Carter was competent to stand trial.
Carter's claim misses the mark. As the State argues, the issue here is not whether Drs. Palumbo and Alcorn were adequately prepared or persuasive. The issue is whether the Ohio Supreme Court decision affirming the trial court's determination of Carter's competency was reasonable in light of the evidence presented. Carter faults the experts' methodology and conclusions, but he has not rebutted by clear and convincing evidence one factual finding underlying the Ohio Supreme Court's decision.
The Ohio high court acknowledged that there was some evidence calling into question Carter's competency to stand trial—namely, his suicide attempt, unwillingness to attend the court proceedings, and apparent disagreements with counsel. Carter,
As the state court explained, the trial court was sharply attentive to, and fully informed about, Carter's competency. It appointed its own expert, Dr. Palumbo, and authorized funding for Carter's expert, Dr. King. The State also retained an expert, Dr. Alcorn. These experts evaluated Carter at length. The court then conducted two competency hearings, at which the experts testified and numerous exhibits were introduced.
Given the careful and thorough nature of these proceedings, Carter "has not shown that the trial court was clearly wrong in believing the State's expert." Franklin v. Bradshaw,
Carter further argues that the trial court erred by failing to "inquire" further into Carter's competency or "ability to be present" once the trial began.
The Supreme Court has advised that "[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Drope,
Id.
Carter identifies only one factor that should have prompted the trial court to inquire further into the issue of his competency once the trial began: Carter's absence from trial. Carter claims that the trial court had an obligation to "bring [him] back into the courtroom to question him as to his desire to be present, or to put on the record Sean's understanding of the proceedings."
The Supreme Court long has recognized that "[o]ne of the most basic of the rights guaranteed by the Confrontation Clause [of the Sixth Amendment] is the accused's right to be present in the courtroom at every stage of his trial." Illinois v. Allen,
A defendant's competency and presence at trial are related. The Court has explained,
Drope,
A review of the record demonstrates that the trial court took every reasonable and appropriate step to protect Carter's right to be present at his trial. The judge was careful to ensure that any waiver of that right was intelligent and voluntary in a lengthy colloquy in his chambers. He informed Carter of the importance of being present at trial, telling him, "I want to inform you that you have an absolute right to be at the trial. It's a very important thing that's being done and the [C]onstitution guarantees you the right to be here . . . ." Trial Tr. vol. XII at 2274. The judge also repeatedly pressed Carter to state affirmatively his desire to be absent from the courtroom during his trial. He said, for example, "So if I do decide to grant your request to not be here while you're being tried, . . . you're going to have to tell me on the record that that's what you want to do even though it would most likely hurt your case; do you understand that?" Id. at 2275.
The judge tried to put off making a decision regarding Carter's request until he had had time to research the issue. Id. But Carter repeatedly and emphatically told the judge he would not return to the courtroom. See id. ("That's what I want to do."); id. at 2276 ("I don't want to be here at the trial. . . . I don't want to. . . . I still don't want to, though. . . . I still don't want to."). Eventually, Carter left the judge no choice but to remove him from the courtroom. The following dialogue took place:
Id. at 2279-81
At that point, as the judge described it on the record,
Id. at 2281-82.
The judge then took appropriate measures to ensure that Carter could watch the trial on a television monitor from a separate jury room and contact his attorneys if necessary. Id. at 2283. He also asked defense counsel to inform him if Carter would like to return to the courtroom and agree not to disrupt the proceedings. Id. at 2284. Finally, he gave the jury a cautionary instruction to disregard Carter's absence from the courtroom. Id. at 2290. Carter's counsel apprised the court throughout the trial of Carter's continued wish to remain outside the courtroom. Id. at 2535; Trial Tr. vol. XIII at 2573; Trial Tr. vol. XIV at 2691, 2808; Trial Tr. vol. XV at 3000; Trial Tr. vol. XVI at 3251.
Near the end of the guilt phase of Carter's trial, Carter's counsel informed the court that Carter now wished to be present in the courtroom and would promise not to be disruptive—but only on the condition that he be unshackled. The deputies did not think they could protect both of Carter's attorneys if Carter was unshackled, however, and one of the defense counsel, whom Carter had threatened to kill, would not waive that protection. The judge decided he would have to remain shackled. When advised of this, Carter chose to stay in the jury room. Trial Tr. vol. XV at 3094-97. The prosecutor noted on the record that Carter's "behavior has been very impulsive and he has acted up. We've heard him. People have complained that he's hollered in the back . . . ." Id. at 3097. The judge summed up,
Id. at 3098.
It is clear from this account that the trial court was patient, solicitous, and wholly reasonable in its treatment of Carter's presence in the courtroom. It also is clear that Carter expressly, voluntarily and intelligently waived his right to be present, both through his oral statements and his disruptive behavior, and continued to express that desire throughout the trial. Carter's conduct was not "beyond his rational control," as Carter suggests,
In sum, Carter's claim that the trial court erred by not "inquir[ing]" further into his absence is belied by the record. The trial court did indeed monitor the situation throughout Carter's trial, albeit through his counsel. And Carter points to nothing in the record that shows the judge should have done something more, or that even if the judge had questioned Carter directly, the result would have been any different. Accordingly, the Ohio Supreme Court neither contravened nor misapplied clearly established Supreme Court precedent in concluding that the trial court did not violate Carter's due process rights by not inquiring further into his competency and removing him from the courtroom during his trial.
Carter further maintains that the trial court should have obtained from Carter an express waiver of his right to be present before the sentencing phase of the trial.
This claim, too, is meritless. As noted above, just minutes into his trial, Carter voluntarily and unequivocally waived his right to be present in the courtroom. Carter cites no clearly established Supreme Court precedent requiring a second express waiver from a defendant before the sentencing phase of trial begins under these circumstances. Additionally, Carter's behavior in the courtroom and outside, in the presence of the trial judge, along with his communications to the trial judge certainly support a reasonably inferred continuation of that earlier made knowing and voluntary waiver of his right to be present in the courtroom during the sentencing phase.
Carter also argues that his trial counsel provided ineffective assistance when they "failed to vigorously pursue the issue of his competence throughout the proceedings."
Carter,
Id.
The Supreme Court long has recognized that the Sixth Amendment right to the effective assistance of counsel at trial "is a bedrock principle in our justice system." Martinez v. Ryan,
Second, the petitioner must show that he or she was prejudiced by counsel's errors. To do this, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
If a petitioner fails to prove either deficiency or prejudice, his ineffective-assistance claim will fail. Id. Ineffective-assistance claims are mixed questions of law and fact. Id. at 698. Habeas courts review such claims, therefore, under AEDPA's "unreasonable application" prong, § 2254(d)(1). See, e.g., Mitchell v. Mason,
The Supreme Court has emphasized that "`[s]urmounting Strickland's high bar is never an easy task.'" Harrington,
Id.
The Court has observed that the standards imposed by Strickland and § 2254(d) are both "highly deferential," so that in applying them together, "review is `doubly' so." Harrington,
Id.
Carter argues that the state court's decision was contrary to, or an unreasonable application of, Strickland given his trial counsel's failure to provide to the experts, or present to the trial court, material evidence of his incompetency to stand trial.
Carter most emphatically complains that his trial counsel did not present to his expert or the trial court the following records: the psychosocial history written by Albert Linder and letter Dr. Darnall wrote to defense counsel, discussed above; the affidavit of Ida Magee, Carter's foster mother; a 1994 chemical dependency assessment from the Portage County Juvenile Court Substance Abuse Awareness Department; and 1995 evaluation of the Portage-Geauga County Juvenile Detention Center.
The Court may not consider this evidence as it was not part of the state-court record. Moreover, Carter offers nothing more than conclusory allegations about his counsel's failure to give these particular documents, and other, unspecified "records of Sean's history," to Dr. King. There is nothing in the record to show what documents counsel actually possessed, or what documents they, or Dr. King himself, may have decided for strategic reasons to use in preparation of the competency evaluation or as evidence at the competency hearings. The record does show, however, that Dr King—like Drs. Palumbo and Alcorn—reviewed numerous informative documents in connection with his assessments of Carter's competency, presumably containing similar, if not identical, information to the documents to which Carter refers.
Carter also argues that his trial counsel should have testified at the two competency hearings about Carter's hostility toward them and refusal to assist in preparing his defense.
Trial Tr. vol. I at 36-38. And Dr. King testified at the second competency hearing,
Trial Tr. vol. VI at 568. The attorneys' testimony, therefore, would have been merely cumulative to what already was in the record.
Carter further argues that his counsel failed to present evidence of his "severe mental illness" and "bizarre" behavior. ECF No. 129 at 8, 38. The record belies this claim. Carter's counsel thoroughly examined each of the experts about aspects of Carter's social and medical history that indicated mental illness, including seizures, hearing loss, learning disabilities, and possible brain damage and hallucinations. See, e.g., Trial Tr. vol. I at 27-29, 90-92; Trial Tr. vol. VI at 564-69, 726. In particular, counsel presented Deputy Vaughn to testify at the first competency hearing that Carter had attempted suicide and acted aggressively toward others. Trial Tr. vol. I at 96-98. At the second hearing, they presented Dr. King, who testified that Carter exhibited bizarre behavior during his evaluations, such as laughing about his case and stating that he wanted to kill Attorney Consoldane. Trial Tr. vol. VI at 558-59. Carter's counsel also questioned the experts at both hearings about the significance of the fact that Carter's mother and maternal uncle were schizophrenic. Trial Tr. vol. I at 29-31; Trial Tr. vol. VI at 563-64, 731-34. And Attorney Lewis aggressively cross-examined Dr. Alcorn about the nature of Carter's hallucinations. Tr. vol. VI at 824-36.
Finally, Carter argues that counsel was ineffective because they "did not request a neuropsychological examination." ECF No. 129 at 39. At the end of the first competency hearing, defense counsel requested funds for an MRI and expert to examine Carter for brain defects, based on Dr. Palumbo's testimony about Carter's seizures, learning disability, and hearing loss. Trial Tr. vol. I at 98-99. The trial court, having found Carter competent, denied the motion for a second expert, but reserved ruling on the MRI in the event it became relevant later for another purpose. Id. at 100-01. At the second competency hearing, Dr. King testified that it would be "comprehensive" to conduct an MRI test. The trial court then directly questioned Dr. King about the necessity for an MRI in this exchange:
Trial Tr. vol. VI at 564-66. At the end of the hearing, the judge stated that he would authorize an MRI for purposes of the mitigation phase of trial, but defense counsel explained that he had requested the test for competency alone and declined the court's offer of an MRI "unless we can find some other organic evidence that would substantiate that." Trial Tr. vol. VII at 869-70.
Given the opinion of the defense's own expert, Dr. King, that an MRI would be useful for purposes of a comprehensive psychiatric evaluation, but was not necessary for his evaluation of Carter's competency, Carter has not "overcome the presumption that, under the circumstances," not pursuing neurological testing or an MRI "was sound trial strategy." Strickland, 466 U.S. 689. See also Morris v. Carpenter, Nos. 11-6322/6323, 2015 WL 5573671, at *15 (6th Cir. Sept. 23, 2015) ("Attorneys are entitled to rely on the opinions and conclusions of mental-health experts.") (citing McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 758 (6th Cir. 2013); Black v. Bell, 664 F.3d 81, 104-05 (6th Cir. 2011)).
Accordingly, the Ohio appellate court reasonably applied Strickland in concluding that his trial counsel did not perform deficiently in their preparation for, and presentation of evidence at, Carter's competency hearings.
Carter also complains that the state court was unreasonable in finding no deficiencies in his trial counsel's treatment of the competency issue after the trial began. ECF No. 129 at 14-15; ECF No. 226 at 71. As with the trial court, however, Carter fails to point to evidence that should have prompted defense counsel to request a third competency hearing. Furthermore, throughout the trial, counsel ensured that the record documented Carter's violent behavior in the courtroom, his refusal to attend the proceedings, and his desire to kill Attorney Consoldane. See, e.g., Trial Tr. vol. XI at 2281; Trial Tr. vol. XIII at 2573; Trial Tr. vol. XV at 3094-99. This claim also fails.
For his second and fifth grounds for relief, Carter alleges additional instances in which his trial counsel breached his Sixth Amendment right to effective assistance of counsel. He complains that counsel:
ECF No. 129 at 21-34, 37-39.
Carter raised the first sub-claim, as listed above, on post-conviction to the trial court and court of appeals, which adjudicated it on the merits. See Carter, 2000 Ohio App. LEXIS 5935, at **8-10. Carter also raised the claim on appeal to the Ohio Supreme Court, but the court declined jurisdiction. State v. Carter, 91 Ohio St.3d 1509, 746 N.E.2d 612 (Ohio 2001). This claim, therefore, is preserved for federal habeas review.
The State argues that the second sub-claim, as listed above, is procedurally defaulted. Carter did not raise it on direct appeal. He did raise the claim on post-conviction, but the court denied it on the ground of res judicata, and Carter then failed to appeal that decision. ECF No. 138 at 71 (citing App. vol. IV at 18-19, 90-91). The Sixth Circuit consistently has recognized Ohio's doctrine of res judicata, barring courts from considering any issue that could have been, but was not, raised on direct appeal, as an "independent and adequate state ground" upon which to find a habeas claim procedurally defaulted. See, e.g., Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
Carter responds that he raised an ineffective-assistance claim regarding "some instances of prosecutorial misconduct" on direct appeal to the Ohio Supreme Court under his fifth proposition of law. He also contends that he raised this claim in his application to reopen his direct appeal, or Murnahan application, and, because the Ohio Supreme Court denied the petition without asserting a procedural bar, the claims are not defaulted. ECF No. 226 at 72-73. Murnahan applications allows capital defendants to present claims of ineffective assistance of appellate counsel to the Ohio Supreme Court within a prescribed 90-day time period. Ohio S. Ct. Prac. R. 11.06(A) (this rule was designated as Ohio S. Ct. Prac. R. XI, § 5 when Carter filed his application); see also State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (Ohio 1992).
This claim is procedurally defaulted. Carter did not raise this claim on direct appeal. See App. vol. III at 137-42. Nor did he raise the claim in his Murnahan application. He mentioned this ineffective-assistance-of-trial-counsel claim there only as the basis for his ineffectiveassistance-of-appellate-counsel claim; in other words, as a claim that his appellate counsel erred for not having raised on direct appeal. The claim, therefore, remains procedurally defaulted absent a showing of cause and prejudice, which Carter does not make. Lott v. Coyle, 261 F.3d 594, 611-12 (6th Cir. 2001).
Carter raised the third sub-claim on direct appeal to the Ohio Supreme Court, which considered the claim on the merits. See Carter, 89 Ohio St. 3d at 606, 734 N.E.2d at 357. This claim is ripe for federal habeas review.
The State argues that the fourth sub-claim also is procedurally defaulted because, although the claim is based on the record, Carter failed to raise it on direct appeal. ECF No. 138 at 79. Carter neither acknowledges nor responds to this argument. The State is correct. In Ohio, where a defendant's ineffective-assistance claim "could [have been] fairly determined without examining evidence outside the record," and the defendant does not raise that claim on direct appeal, the res judicata doctrine precludes post-conviction relief for that claim. State v. Cole, 2 Ohio St.3d 112, 113-14, 443 N.E.2d 169, 171 (Ohio 1982). Carter, having failed to present this record-based claim to state courts and having no remaining state-court remedies, has therefore procedurally defaulted this claim. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
Carter complains in his second ground for relief that his trial counsel failed to investigate, prepare, and present mitigating evidence, including evidence regarding Carter's childhood trauma, neglect and developmental difficulties; his serious mental illness; his family history of serious mental illness; his neurological dysfunction; his polysubstance abuse; and the impact the structured environment of prison would have had on him. ECF No. 129 at 21-34.
The last state court to rule on this claim was the Ohio Court of Appeals on postconviction. Carter submitted as support for this claim an affidavit from an attorney, Gerald Ingram, who averred that a mitigation specialist is "required" in capital cases, because criminal trial lawyers "are inadequate and incompetent to discover" mitigating evidence without such expert assistance. App. vol. IV at 26-27. The appellate court stated:
Carter, 2000 Ohio App. LEXIS 5935, at **8-10.
The Supreme Court repeatedly has held that counsel in capital cases have an "obligation to conduct a thorough investigation of the defendant's background" for mitigation purposes. Williams v. Taylor, 529 U.S. 362, 396 (2000). In Strickland, the Court noted that a capital sentencing proceeding "is sufficiently like a trial in its adversarial format and in the existence of standards for decision" that counsel's role in the two proceedings is comparable: "to ensure that the adversarial testing process works to produce a just result under the standards governing decision." Strickland, 466 U.S. at 686.
Accordingly, the Supreme Court and Sixth Circuit have found ineffective assistance of counsel in capital cases where trial counsel failed to adequately investigate or present mitigating evidence at sentencing. See, e.g., Rompilla v. Beard, 545 U.S. 374, 389-93 (2005) (counsel ineffective for failing to examine court file of defendant's prior conviction which contained a range of vital mitigation leads regarding defendant's childhood and mental health problems); Wiggins v. Smith, 539 U.S. 510, 526, 534, 537 (2003) (counsel ineffective for failing to discover and present "powerful" evidence of petitioner's "excruciating life history" and instead "put on a halfhearted mitigation case"); Frazier v. Huffman, 343 F.3d 780, 795-99 (6th Cir. 2003) (counsel ineffective for failing to introduce any mitigating evidence in either guilt or penalty phases of trial when he was aware of petitioner's brain injury).
Nevertheless, "the duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Rompilla, 545 U.S. at 383. See, e.g., Wiggins, 539 U.S. at 525 (further investigation excusable when counsel has evidence suggesting it would be fruitless); Strickland, 466 U.S. at 699 (counsel could "reasonably surmise . . . that character and psychological evidence would be of little help"); Burger v. Kemp, 483 U.S. 776 (1987) (finding limited investigation reasonable because all witnesses brought to counsel's attention provided predominantly harmful information).
The Supreme Court has advised courts to "begin with the premise that `under the circumstances, the challenged action[s] might be considered sound trial strategy.'" Pinholster, 131 S. Ct. at 1404 (quoting Strickland, 466 U.S. at 689). Indeed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. . . ." Strickland, 466 U.S. at 690. Thus, the Court repeatedly has held that counsel is not ineffective for deciding to offer little or no mitigating evidence where that decision is based on sound professional judgment. See, e.g., Bell v. Cone, 535 U.S. 685, 702 (2002); Strickland, 466 U.S. at 699-700; Burger, 483 U.S. at 793-75; Darden, 477 U.S. at 184.
Courts may infer from the record a trial attorney's strategic basis for a challenged decision. The Supreme Court has explained,
Harrington, 562 U.S. at 109 (citations omitted).
Carter argues that the Ohio appellate court's conclusion that his "assertion that his counsel failed to investigate his medical and social history . . . [was] not supported by the record" contravenes or unreasonably applies Supreme Court precedent. First, he generally complains that his trial counsel "failed to investigate Mr. Carter's background for mitigating evidence." ECF No. 226 at 48. But as the state court determined, the record contradicts this claim. Just twelve days after Carter was indicted, his counsel sought and received funding for an independent psychologist, investigator, and mitigation specialist. App. vol. I at 66-74; App. vol. II at 11-12. Carter himself concedes that the experts gathered "crucial documents substantiating the facts of [Carter's] traumatic childhood," including "a number of medical, legal, and social service records" that were eventually admitted into evidence. ECF No. 226 at 22-23.
More specifically, Carter claims his counsel or the experts they retained failed to uncover in their investigation the Linder report and Darnall letter, described above, which he contends document Carter's serious mental illness. ECF No. 226 at 30-31. But, again, the Court may not consider this evidence. Pinholster, 131 S. Ct. at 1398.
Carter also complains that his trial counsel "failed to investigate his history of drug abuse," and cites to records that report his drug use and related criminal charges but were not presented to the jury during mitigation. ECF No. 226 at 43-44. Again, Carter obtained some of these records in federal habeas proceedings, such as a chemical dependency assessment of Carter conducted for the Portage County Juvenile Court in April 1994 and pre-trial evaluations, and the Court may not consider this evidence. Another document to which he refers, "an evaluation" conducted by the Portage County Department of Youth Services ("DYS") dated June 16, 1995, is similar, if not identical to, a "social history" prepared by that agency, also dated June 16, 1995, that was introduced at Carter's competency hearing and therefore clearly in his counsel's possession. See ECF No. 88 at 8-17. In addition, another Portage County DYS evaluation of Carter, dated June 15, 1995, which contains information about Carter's drug use, also was introduced at the competency hearing. See id. at 1-7.
Carter's more troubling complaint concerns counsel's failure to obtain neurological testing for mitigation purposes. ECF No. 226 at 34-43. He argues that such testing would have uncovered evidence of organic brain damage based on evidence in the record from his childhood, including Carter's traumatic birth, drug use, withdrawn and anxious behavior, and history of seizures.
As explained above, the trial court informed defense counsel after the first competency hearing that he was inclined to authorize an MRI for mitigation purposes if they could "present evidence of a particularized need." Trial Tr. vol. I at 101. At the second competency hearing, Dr. King, the defense's expert, testified that an MRI would be "helpful" for a "comprehensive" psychiatric evaluation of Carter. Trial Tr. vol. VI at 568. However, when the judge directly asked Dr. King if "in [his] opinion an MRI would not assist us in this case to render any psychological opinions involving either sanity or competency or mental defect[,]" Dr. King replied, "No." Id. at 566. At a later pretrial hearing, the judge again asked defense counsel if they would like to renew their motion requesting funds for an MRI, stating:
Trial Tr. vol. VII at 870. Attorney Consoldone replied that he "wanted that done for the competency," but that he would decline the court's offer of funding for an MRI for mitigation purposes "unless we can find some other organic evidence that would substantiate that." Id.
Given Dr. King's express opinion that an MRI would not have advanced Carter's case for mitigation, it is possible that Carter's trial counsel decided that, for sound strategic reasons, the risk posed by an MRI was greater than its potential benefits: an MRI may have shown that Carter had no brain defect at all and actually weakened Carter's position. See Morris v. Carpenter, Nos. 11-6322/6323, 2015 WL 5573671, at *15 (6th Cir. Sept. 23, 2015) ("Attorneys are entitled to rely on the opinions and conclusions of mental-health experts.") (citing McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 758 (6th Cir. 2013); Black v. Bell, 664 F.3d 81, 104-05 (6th Cir. 2011)). Furthermore, the speculative nature of this claim precludes a showing of prejudice; without knowing the results of an MRI test, Carter cannot demonstrate that his counsel's decision to forgo the testing affected the outcome of the jury's sentencing.
The Ohio appellate court, therefore, reasonably determined that Carter's trial counsel were not constitutionally deficient in their efforts to prepare for the mitigation phase of trial.
Carter also contends that the Ohio appellate court was unreasonable in deciding that his trial counsel performed adequately during the mitigation phase of trial. He argues that counsel were ineffective in their "incomplete and inaccurate" presentation of evidence, focusing on three aspects of their performance: their cursory review of Carter's background and character; their incoherent and damaging theory of mitigation; and their failure to introduce compelling evidence. See ECF No. 226 at 21-46.
Carter complains generally that his counsel presented a "piecemeal," "haphazard," and "cursory" overview of Carter's background and character to the jury. Id. at 22, 29. The record clearly refutes this claim.
Defense counsel presented two witnesses, Dr. Sandra McPherson, a psychologist and mitigation specialist, and Nancy Dorian, a psychologist who oversaw Carter's family while working for a social services agency, who together painted a detailed and balanced portrait of Carter and his life. Dr. McPherson in particular provided a comprehensive review of Carter's family, academic, medical, psychological, and criminal history from his birth to the time of the trial, as well as her assessment of his present psychological functioning. See, e.g., Trial Tr. vol. XVI at 3304-24.
Ms. Dorian's and Dr. McPherson's testimony was further supported by exhibits totaling hundreds of pages. See ECF No. 89. The State introduced Carter's Trumbull County Children Services case file, as well as school, medical, and juvenile court records. Defense counsel introduced three reports from Ms. Dorian regarding psychological evaluations she had conducted of Carter in 1983, 1985, and 1986. See ECF No. 89 at 1-4, 196-97; Trial Tr. vol. XVI at 3254-61. They also introduced Dr. McPherson's report, which summarized the information contained in the other exhibits, as well as the reports of Drs. Darnall, Palumbo and Alcorn, and presented her psychological assessment of Carter and opinion of how his diagnostic status and functioning related to the crime. See ECF No. 89 at 5-13; Trial Tr. vol. XVI at 3304, 3327.
Carter also argues that his trial counsel lacked a "comprehensive and coherent theory of mitigation." The jury, in his view, therefore "was unable to process, understand, or contextualize any of the evidence of Sean's traumatic background and mental illnesses . . . . Instead, they were presented with an image of a mechanical killer who was unable to feel emotion, have empathy ..., or express remorse." ECF No. 226 at 20-21. He cites to Dr. McPherson's diagnosis of Carter as a "psychopathic character," and her testimony that persons with this disorder
Id. at 22 (quoting Trial Tr. vol. XVI at 3318). Carter further points to defense counsel's reference to him as a "piece of machinery" in his closing statement. Id. (quoting Trial Tr. vol. XVI at 3369). He suggests that his counsel should have focused instead on the impact a structured prison environment could have had on him if he were given a life sentence. Id. at 20-21.
The evidence and argument about which Carter complains, however, supported what was a clear and well-developed theory of mitigation: that this young man committed a horrible crime because he was severely psychologically damaged through no fault of his own and by circumstances beyond his ability to control. It was, in essence, a plea for mercy, rather than Carter's proposed strategy of minimizing his psychopathy while stressing his potential for adapting well to prison life.
Dr. McPherson's diagnosis of Carter as psychopathic was preceded by her detailed account of Carter's traumatic first years of life, his early medical and mental illnesses, his positive foster placement and later disruptive adoptions by the Smith and Carter families, his troubled juvenile years, and his compromised intellectual functioning. Trial Tr. Vol. XVI at 3304-15. She stressed the negative impact his birth mother's neglect and the unsuccessful adoptions had on every aspect of his development, including delayed cognitive development, a seizure disorder, and attachment disorder as a young child, id. at 3305-06; inappropriate sexual behavior and aggression as a juvenile, id. at 3310-11; and ultimately, mental illness. She testified, for example, that without proper nurturing children "don't develop adequately the cognitive structures that underlie a lot of our thinking process. In the same way, . . .[c]hildren who are not loved don't develop the capacity to love or care for anybody, including themselves." Id. at 3312-13. She also explained his genetic predisposition to schizophrenic-like illnesses. Id. at 3316.
Carter focuses on Dr. McPherson's diagnosis and description of Carter's psychopathic features. But Dr. McPherson diagnosed Carter with several psychological disorders, including adjustment disorder with depressed mood, multiple substance abuse, periodic psychotic episodes, possible emergence of schizophrenia, antisocial personality disorder, and borderline personality disorder. Id. at 3315-20. And defense counsel softened her testimony about Carter's psychopathic characteristics by eliciting Dr. McPherson's explanation that Carter's personality disorders were influenced by environmental, genetic, and physiological factors beyond his control. Id. at 3320-21.
Furthermore, defense counsel made their mitigation theory very clear to the jury. In concluding Dr. McPherson's direct examination, counsel elicited her opinion that given his troubled childhood and developmental problems, Carter's foster placement was his "only chance" for a positive outcome, assuming he received substantial assistance such as psychotherapy and special education; instead, he was placed with two adoptive families who were not "reasonable placement[s]" and never received the help he needed. Id. at 3321. His final question highlighted Dr. McPherson's conclusion that Carter "was both born and made and neither of these processes were under his control." Id. at 3323-24.
Counsel also reinforced their mitigation theory in closing argument. For example, and to put the statement that Carter challenges in context, counsel argued:
Id. at 3369.
Carter may now object to his counsel's mitigation theory and argue that another theory would have been more successful, but, as the State asserts, that is precisely the type of secondguessing of counsel's strategy that Strickland prohibits. See ECF No. 138 at 90. Keeping in mind that in the mitigation phase of trial, "strategic choices made after thorough investigation . . . are virtually unchallengeable," Strickland, 466 U.S. at 690, it is enough that "counsel presented a theory of mitigation and provided evidence to support that theory. The jury simply rejected [it]...." Williams v. Coyle, 260 F.3d 684, 705 (6th Cir. 2001).
Carter argues more specifically that his trial counsel mischaracterized, failed to put into context, and ignored "compelling" mitigating evidence. First, he complains that, although Dr. McPherson testified that Carter was sexually abused, Trial Tr. vol. XVI at 3314, she conceded on cross-examination that it is possible that Carter himself reported the abuse and may have been lying, id. at 3328-29. Carter contends that trial counsel were deficient for not bringing to the attention of the jury records that show that Carter's half-uncle, who was diagnosed with schizophrenia, was "preoccupied with sexual activities" and "openly masturbates." ECF No. 89 at 200. Also, he notes, a social worker wrote in a 1984 letter that she was concerned about children who lived with him in part because of his inappropriate sexual conduct. ECF No. 88 at 45-46. There is no evidence, however, that Carter had any contact with this man, and this evidence would have had little, if any, mitigating value.
Carter next agues that his educational history was "erroneously characterized." ECF No. 226 at 23. Dr. McPherson testified that Carter had "the capacity for normal to slightly below intellectual function," but that he had a "complete lack or relative lack or indifference to school." Trial Tr. vol. XVI at 3310. On cross-examination, she conceded that Carter did well in elementary school, earning A's and B's. Id. at 3340-41, 3354. Carter contends that trial counsel should have offered evidence that Carter was enrolled in a learning disability program during elementary school, and that his grades deteriorated once he was no longer in such a program. To support this argument, Carter cites to an affidavit filed in these federal habeas proceedings, which the Court may not consider and which does not cite to the record in any event. ECF No. 226 at 23-24.
In fact, records introduced at the mitigation phase of Carter's trial do not support Carter's claim. The records show that while Carter received special education tutoring in certain subjects in elementary school, he was placed in a regular classroom. ECF No. 89 at 33, 34, 40, 156, 168, 170. The Court also could not find any support in the record for Carter's assertion that he lacked special education services after elementary school and his grades declined as a result. There are no school records past the elementary school level. Dr. McPherson referenced in her report a "Psychological Report" from around 1995 that "indicated [Carter] was doing little work in school, chronic lying and rule-breaking was in evidence." ECF No. 89 at 9. She may have been referring to the 1995 Portage County DYS evaluation, described above, which stated that Carter's "academic performance in elementary school [was] basically average" but that by ninth grade "[h]is grades were consistently failing . . . ." ECF No. 88 at 2.
Carter next contends that his trial counsel did not offer sufficient evidence regarding his experience with the Smith family. He refers to overlooked evidence that the Smiths "emotionally abused" him by cursing and screaming at him and calling him names; did not understand his special needs; spanked him; did not initiate activities with him; and were overly critical of him. ECF No. 226 at 24. Carter does not cite to the record to support this claim.
Ms. Dorian and Dr. McPherson testified about many of these problems. Ms. Dorian testified about Mrs. Smith's difficulties in understanding Carter's intellectual and social limitations; her cursing when reprimanding Carter and when frustrated; and her insufficient interaction with Carter. Trial Tr. vol. XVI at 3290. Dr. McPherson testified that the Smiths "[did] another job on [Carter]"; he "[could not] meet their expectations" and they were "punitive." Id. at 3322-23. More evidence on this issue would have been cumulative. See Eley v. Bagley, 604 F.3d 958, 968 (6th Cir. 2010) ("`[T]he failure to present additional mitigating evidence that is merely cumulative of that already presented does not rise to the level of a constitutional violation.'") (quoting Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007)).
Carter also complains that his counsel should have presented evidence critical of the Carters, including that they were financially unstable, could not provide or seek out for him the psychological services he needed, and had accessible sexually explicit materials in the home. ECF No. 226 at 25-26. Instead, he argues, Dr. McPherson conceded on cross-examination that the Carters were "suitable persons to adopt children" and that they exhibited "heroic behavior" at their first meeting with Carter. Id. at 25 (quoting Trial Tr. vol. XVI at 3344, 3354). Trial counsel, he adds, called the Carters "a fine family" and Mrs. Carter a "nice woman, beautiful woman" during his closing argument. Id. (quoting Trial Tr. vol. XVI at 3375).
But Dr. McPherson did testify that the Carters did not provide the right environment for Carter to succeed. She noted, for example, that the Carters were unprepared for the adoption, failed to give Carter the support services he needed, and had other children and responsibilities. Trial Tr. vol. XVI at 3308-09, 3323. She also testified that the Carter home was too sexually charged for Carter, with several females living there and an unrelated eighteen-year-old male who shared sexually explicit materials with him. Id. at 3309.
Moreover, Dr. McPherson's testimony about the Carters led to damaging rebuttal evidence and cross-examination, and more details about the family could have caused even more harm. See Wong v. Belmontes, 558 U.S. 15, 25 (2009) (rejecting petitioner's "`more-evidence-isbetter' approach to mitigation" where it would have opened door to evidence of past murders). For example, the prosecutor vigorously cross-examined Dr. McPherson about her testimony that the Carter household was not a good environment for Carter. He pointed out the Carters' many efforts to help Carter and their successes with him, and brought up Carter's sexual misconduct with his adoptive and birth sisters and other criminal behavior while he lived with them. Trial Tr. vol. XVI at 3351-58. Finally, it would be reasonable trial strategy to avoid criticizing a victim's family.
Carter further claims that his counsel failed to "elicit[] any of the positive information about Sean and his bond with Ms. Magee." ECF No. 226 at 22. He claims they should have had Ms. Magee testify to "humanize Sean and evoke images of him as a little boy who was trying hard to please but suffered serious, debilitating setbacks in his young life." Id. at 26-27. Carter refers to an affidavit of Ms. Magee, which was filed in this habeas case and the Court may not review. However, both Ms. Dorian and Dr. McPherson testified at length about Carter's positive relationship with Ms. Magee and the strides he made while in her care. See, e.g., Trial Tr. vol. XVI at 3257, 3271-72, 3275, 3287-89, 3306-08, 3321-23. Ms. Dorian read to the jury from a social services report that stated, "Lately Mrs. Magee and this worker have observed Sean `coming out of his shell.' He can now be described as `all boy'. He takes swimming lessons, plays kickball and baseball. He loves cars, trucks, drawing and being read to." Id. at 3275. Ms. Dorian testified that she recommended that Carter remain with Ms. Magee permanently, id. at 3287-89, and Dr. McPherson agreed, as noted above, that Ms. Magee was Carter's "only chance" for a good outcome, id. at 3321. Ms. Magee's testimony, therefore, would have been cumulative.
In addition, Carter maintains that his trial counsel "failed to present an accurate and complete picture of his symptoms [of mental illness], their duration and severity, and the link between his mental illness and the offense." ECF No. 226 at 29. He claims, for example, that his counsel did not introduce "any evidence" during mitigation that he "was suffering from a serious mental illness at the time of the offense" or that he had a genetic predisposition to schizophrenia. Id. at 30, 32. He relies heavily on the affidavit of an expert and the Linder report and Darnall letter, as described above. These documents were produced in these proceedings, and the Court may not consider them.
In any event, this claim is flatly contradicted by the record. As the Court already has noted, Dr. McPherson testified in detail about Carter's early medical problems, such as his hearing loss and seizures, see, e.g., id. at 3305-07; his delayed cognitive development and attachment disorder, see, e.g., id. at 3305-06; and his psychological functioning and diagnoses, including his attachment disorder and genetic predisposition to, and possible emergence of, schizophrenia, see, e.g., id. at 3315-21, 3359-60. Dr. Dorian also testified regarding Carter's various mental illnesses. See, e.g., id. at 3255-59. Any more evidence on this issue would have been cumulative.
Carter further asserts that his counsel introduced evidence of his drug and alcohol abuse "without any regard for explaining or contextualizing this devastating problem, or its interaction with his underlying illness." ECF No. 226 at 43-44. He concedes, however, that Dr. McPherson "noted" that Carter had abused drugs since age thirteen or fourteen. Id. at 43. And she testified that Carter's substance abuse interfered with her ability to predict whether he was becoming schizophrenic, because the substances can cause the same "lapsed thinking process" that signal the emergence of schizophrenia. Trial Tr. vol. XVI at 3316. Moreover, as noted above, Carter's counsel possessed much of the information to which Carter refers. They may have chosen not to introduce it because it conflicted with his mitigation theme. As Carter also concedes, Dr. McPherson was forced to admit on cross-examination that it was Carter's choice to "take drugs and inhale various things." Id. at 3335.
Finally, Carter complains that his trial counsel did not present any evidence of the positive impact a structured prison environment could have had on him. As discussed above, however, defense counsel's decision to present a different mitigation theme than Carter now proposes, and to focus on evidence supportive of that theme and omit other evidence not supportive, is a reasonable trial strategy.
Thus, Carter has not "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. As the Supreme Court has explained,
Bobby v. Van Hook, 558 U.S. 4, 11-12 (2009) (internal citations omitted). Accordingly, the Ohio appellate court also reasonably applied Strickland in determining that Carter's trial counsel were not constitutionally deficient in their presentation of mitigating evidence.
For his next sub-claim, Carter argues that his counsel were ineffective for failing to object to the numerous instances of prosecutorial misconduct described in his third ground for relief. ECF No. 226 at 68-70. Even if this claim were ripe for habeas review, it would fail. As the Court finds no merit in Carter's underlying claims of prosecutorial misconduct, there is no merit to his claim that his trial counsel was ineffective for failing to object to the challenged conduct. See infra Section IV.B.
Carter further argues that his trial counsel performed deficiently by failing to present arguments regarding jury instructions on lesser-included offenses. ECF No. 129 at 39. The Ohio Supreme Court was the last state court to provide a reasoned decision on this claim. It opined:
Carter, 89 Ohio St. 3d at 606, 734 N.E.2d at 357.
The Ohio Supreme Court's decision is reasonable. Moreover, because the Court finds no merit in Carter's underlying claims regarding these jury instructions, there is no merit to his claim that his trial counsel was ineffective for failing to present the jury instructions at issue. See infra Section V.B.
Finally, Carter asserts that his trial counsel were ineffective when they "negated" his principal defense by telling the jury during closing argument that they could find Carter guilty of aggravated murder, aggravated robbery, and rape, even if they had reasonable doubt. This statement, he argues, undermined their argument for instructions on lesser-included offenses, and "[left] the jury with no choice but to find Carter guilty of the charges in the indictment." ECF No. 129 at 39; ECF No. 226 at 72 (citing Trial Tr. vol. XVI at 3185-86). Carter provides no legal authority or factual analysis to support this argument.
Even if this claim were preserved for habeas review, it is meritless. Carter's trial counsel did not "negate" his defense. Counsel argued to the jury that it "wouldn't bother [him]" if they found enough evidence to convict Carter on the various independent counts, even if they had "a little reasonable doubt" about those charges based on the evidence presented by the defense, but that there was too much reasonable doubt for them to find against Carter on the death-penalty specifications. Trial Tr. vol. XV at 3185-86. Any confusion caused by this brief and isolated argument was not great enough to undermine Carter's entire defense and would have been cured by the court's instructions on the correct burden of proof.
For his sixth ground for relief, Carter asserts that his appellate counsel provided ineffective assistance of counsel on direct appeal by failing to raise the following claims:
ECF No. 129 at 40.
The parties agree that this claim is preserved for federal habeas review, because Carter raised it in his Murnahan petition, which the Ohio Supreme Court summarily denied. ECF No. 138 at 90; ECF No. 226 at 76; see also ECF No. 221 at 11 (finding that the Ohio Supreme Court's summary dismissal of Carter's Murnahan petition was presumptively an adjudication on the merits under). Harrington, 562 U.S. at 99-100.
The Supreme Court has held that a defendant is entitled to effective assistance of counsel in his first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). The two-part test enunciated in Strickland is applicable to claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Thus, Carter must demonstrate that his appellate counsel's performance was inadequate, and that the deficient performance so prejudiced the appeal that the appellate proceedings were unfair and the result unreliable. Strickland, 466 U.S. at 687.
An appellant has no constitutional right, however, to have every non-frivolous issue raised on appeal. See Jones v. Barnes, 463 U.S. 745, 750-54 (1983). Tactical choices regarding issues to raise on appeal are properly left to the sound professional judgment of counsel. See United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). "[O]nly when issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome." Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003) (internal quotation marks and citations omitted).
Here, because the Court finds Carter's claims for prosecutorial misconduct, ineffective assistance of trial counsel, and trial-court error relating to his presence at trial all lack merit, it follows that Carter cannot demonstrate that he was prejudiced by appellate counsel's failure to raise the claims on direct appeal. See infra Section IV; supra Sections I.B.1.c., II.B.
For his third ground for relief, Carter claims that he was denied a fair trial in violation of his due process rights by acts of prosecutorial misconduct. Specifically, he complains that the prosecution:
ECF No. 129 at 34-36.
The State argues that sub-claims 1 and 2, as listed above, are procedurally defaulted, because the Ohio Supreme Court found them barred due to defense counsel's failure to object to the alleged misconduct at trial. ECF No. 138 at 47-49. Failure to adhere to Ohio's wellestablished "contemporaneous objection rule" is an independent and adequate state ground upon which to find habeas claims procedurally defaulted. See, e.g., Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006).
In response, Carter concedes that the Ohio Supreme Court "announced an intention to apply the plain error doctrine," which ordinarily will not resurrect a defaulted issue. See, e.g., id. However, he argues, the court failed to enforce the rule, and instead addressed the claims under "the general standard of review," rendering the claims ripe for habeas review. ECF No. 226 at 57-58 (citing Harris v. Reed, 489 U.S. 255, 263 (1989); Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). The State did not refute this argument; it "[a]ssum[ed] a lack of procedural default" in its sur-reply. ECF No. 229 at 13.
The claims are procedurally defaulted. In addressing these claims, the Ohio Supreme Court first noted that Carter's trial counsel did not object to the alleged misconduct at issue. As Carter acknowledges, the court then invoked the plain-error rule, quoting State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d 1244, paragraph one of the syllabus (Ohio 1978), vac'd on other grounds, Wade v. Ohio, 438 U.S. 911 (1978): "`A claim of error in a criminal case cannot be predicated upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny the defendant a fair trial.'" Carter, 89 Ohio St. 3d at 602, 734 N.E.2d at 345. Indeed, the Ohio Supreme Court repeatedly has cited Wade as support for that doctrine. See, e.g., State v. McKnight, 107 Ohio St.3d 101, 141, 837 N.E.2d 315, 357-58 (Ohio 2005); State v. Hanna, 95 Ohio St.3d 285, 297, 767 N.E.2d 678, 695 (Ohio 2002). The court proceeded to address the merits of the claims.
In "exceptional circumstances," Ohio courts may examine a claim that is otherwise waived for "plain error," when "but for the error, the outcome of the trial clearly would have been otherwise." State v. Long, 53 Ohio St.2d 91, 96, 97, 372 N.E.2d 804, 807, 808 (Ohio 1978); see also Ohio R. Crim. P. 52(B) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). Under this rule, Ohio courts first determine whether there is an error, and then whether that error affected the trial's outcome. Contrary to Carter's argument, the Ohio Supreme Court did not forgo its plain-error review of Carter's prosecutorial-misconduct claims by examining whether an error was committed under prevailing law; that is exactly what the plain-error doctrine requires. And, finding no error, there was no need for the state court to undertake the next step in its plain-error analysis. There is no basis for the Court, therefore, to conclude that the state court did not apply the plain-error rule as it stated it would, and the claims' procedural default stands.
As to Carter's remaining prosecutorial-misconduct sub-claims, the State argues that Carter did not properly raise them in state court, and they are therefore procedurally defaulted. ECF No. 138 at 48. Carter counters that the sub-claims were raised in his Murnahan petition, and as the Ohio Supreme Court denied the petition without asserting a procedural bar, the claims are not defaulted. ECF No. 226 at 58. As explained above, a Murnahan petition does not resurrect an otherwise defaulted claim merely by referencing the claim as one that appellate counsel failed to raise on direct appeal. These claims also are procedurally defaulted.
Even if this claim were ripe for review, it lacks merit. The Supreme Court has observed, "Although the State is obliged to `prosecute with earnestness and vigor,' it `is as much [its] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Cone v. Bell, 556 U.S. 449, 469 (2009) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). In particular, a prosecutor's "improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Berger, 295 U.S. at 88. Thus, the Court has made clear, "while [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones." Id.
The Supreme Court set forth the standard for claims of prosecutorial misconduct in habeas proceedings in Darden v. Wainwright, 477 U.S. 168 (1986). It held that to prevail on such claims, "it `is not enough that the prosecutors' remarks were undesirable or even universally condemned.'" Id. at 181 (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). Rather, "[t]he relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)); see also United States v. Young, 470 U.S. 1, 11 (1985) ("Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.").
The Court emphasized in Darden that "the appropriate standard of review for such a claim on writ of habeas corpus is `the narrow one of due process, and not the broad exercise of supervisory power.'" Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 642; see also Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000) ("We do not possess supervisory powers over state court trials."); Cook v. Bordenkircher, 602 F.2d 117, 119 n.5 (6th Cir. 1979) ("[I]t is the responsibility of the [state courts] to police their prosecutors; we have no such authority."). Past decisions of the Supreme Court demonstrate that "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). The Darden standard "is a very general one, leaving courts `more leeway . . . in reaching outcomes in case-by-case determinations . . . .'" Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (quoting Yarlborough v. Alvarado, 541 U.S. 652, 664 (2004)). Indeed, federal habeas courts must adhere to Darden's "highly generalized standard for evaluating claims of prosecutorial misconduct" and not circuit precedent. Id.
In Darden, the Supreme Court found that certain comments a prosecutor made during his closing argument "undoubtedly were improper." Darden, 477 U.S. at 180. Some remarks, it explained, implied that the death penalty would be the only guarantee against a future similar act; others incorporated the defense's use of the word "animal"; and several were offensive, reflecting an emotional reaction to the case. Id. But the Court concluded that in the broader context of the trial, the prosecutorial statements complained of did not deprive the petitioner of a fair trial. Id. at 181-83. It noted that the prosecutor's closing argument "did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent." Id. at 182. Also, "[m]uch of the objectionable content was invited by or was responsive to the opening summation of the defense." Id. The trial court also instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and the arguments of counsel were not evidence. Id. The weight of the evidence against the petitioner was "heavy," the Court observed, including "overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges," which "reduced the likelihood that the jury's decision was influenced by argument." Id. (internal quotation marks and citations omitted). And finally, it noted, defense counsel's tactical decision to present the petitioner as the only witness permitted counsel to give their summation before the State's closing argument and the chance to make a final rebuttal argument. Id.
As the Supreme Court advised decades ago,
Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter, J., concurring).
Because Carter's prosecutorial-misconduct claims were not adjudicated on the merits in state court, the Court reviews them de novo. See, e.g., Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005). That is true even when, as with Carter's first two sub-claims, as listed above, the state court found the claims waived and reviewed them for plain error. The Sixth Circuit has held that a state court's review of a procedurally barred claim for plain error does not constitute an "adjudication on the merits" under AEDPA. AEDPA deference does not apply to such claims, therefore, and federal courts review them de novo. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) ("Plain error analysis is more properly viewed as a court's right to overlook procedural defects to prevent manifest injustice, but is not equivalent to a review of the merits.").
Carter first complains that the prosecutor impermissibly stated his personal beliefs about the strength of the State's case and Carter's guilt during closing argument with the following statement: "I believe in my side. I believe the evidence that we have that this defendant is guilty of all the charges. I wouldn't be here." ECF No. 129 at 34 (quoting Trial Tr. vol. XV at 3116). A prosecutor cannot insert his "personal beliefs into the presentation of his case," because his or her opinion carries the "imprimatur of the government and may induce the jury to trust the government's judgment rather than its own view of the evidence." Young, 470 U.S. at 8-9. "[S]uch comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports charges against the defendant . . . ." Id. at 18-19. Nevertheless, "`a state's attorney is free to argue that the jury should arrive at a particular conclusion based upon the record evidence.'" Wogenstahl v. Mitchell, 668 F.3d 307, 331 (6th Cir. 2012) (quoting Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999)). The statement of which Carter complains is not improper, as it suggests that the prosecutor's belief is based on the evidence adduced at trial, not some special outside knowledge of the prosecutor.
Carter next argues that the prosecutor improperly characterized Carter's explanation about why he went to the victim's house on the night of the murder as "absolutely absurd." ECF No. 129 at 35 (quoting Trial Tr. vol. XV at 3116). "`[A] prosecutor may assert that a defendant is lying during her closing argument when emphasizing discrepancies between the evidence and that defendant's testimony.'" Wogenstahl, 668 F.3d at 331 (quoting United States v. Francis, 170 F.3d 546, 551 (6th Cir. 1999)). Similarly, the prosecutor here was justified in commenting on the implausibility of Carter's account of the crime in light of the evidence.
Carter also claims that the prosecutor improperly vouched for the State pathologist's testimony regarding bleeding in the victim's brain by stating, "I think Dr. Cox's explanation is better than the other doctor's." ECF No. 129 at 35 (quoting Trial Tr. vol. XV at 3130). "`Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the [government] behind the witness.'" Wogenstahl, 668 F.3d at 328 (quoting Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008)). "`Generally, improper vouching involves either blunt comments or comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony.'" Id. (quoting Francis, 170 F.3d at 550).
This particular statement is more problematic, because it is a deliberate statement of personal belief in the witness's credibility and suggests that the prosecutor may have special knowledge of facts not in evidence, namely, the prosecutor's experience with other expert witnesses. Placed in context, however, the statement is not improper. The prosecutor was discussing the two parties' experts' testimony and opinions based on the evidence, not the experts' credentials. Moreover, the challenged statement was one isolated comment made in the context of an extensive trial record, and the evidence against Carter was strong.
Carter claims that the prosecutor improperly implied that the trial-court judge believed Carter was guilty during his direct examination of witness Major James Phillips of the Trumbull County Sheriff's Department, because the judge had signed the search warrants to obtain blood samples from Carter. ECF No. 129 at 35 (quoting Trial Tr. vol. XII at 2340). The prosecutor's examination at issue consisted of two short questions, establishing first that the police officer signed an affidavit supporting his request for a search warrant before the trial judge, and second that the judge issued the warrant. Carter speculates that the jury inferred from this testimony that the judge issued the warrant because he believed Carter was guilty, when, in fact, the testimony was limited to explaining the facts surrounding the issuance of a warrant for the collection of Carter's fluids, which were central to the State's case. This questioning was not improper.
Carter accuses the prosecution of "pervasive" use of inflammatory language during closing argument, including: (1) speaking of the victim's constitutional rights, the "great indignity" and "brutality" of the crime, her "unbelievable" death, and the victim's pain and suffering; (2) repeatedly reminding the jury that a grandson had killed his grandmother; (3) arguing that "it's absolutely necessary . . . that people like Sean Carter be put out of commission. His mission of terror, violence, is incredible"; (4) telling the jury they had to go through nude photographs of the victim and look at stab wounds, "blood all over the place," and swabs of the victim's anal cavity because of Carter. ECF No. 129 at 35 (quoting Trial Tr. vol. XV at 3111, 3115).
"The prosecution necessarily has `wide latitude' during closing argument to respond to the defense's strategies, evidence and arguments." Wogenstahl, 668 F.3d at 329 (quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)). "Generally, `a prosecutor cannot make statements calculated to incite the passions and prejudices of the jurors.'" Id. (quoting Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006)). "At the same time, `[n]othing prevents the government from appealing to the jurors' sense of justice or from connecting the point to the victims of the case.'" Id. (quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)). These statements were within the bounds of dramatic, though permissible, argument. Moreover, all of the complained-of statements are found on just two of twenty-five pages of transcript recording the prosecutor's closing argument. They were brief and general, and several of the statements were factually correct.
Carter also complains that the prosecution argued facts not in evidence during closing argument, including: (1) stating, "you'll see him in the videotape. `I don't have to say I'm sorry.'"; (2) referring to Carter as "a machine, a supposed human being."; (3) arguing Michael and Shasta didn't "come back and kill and rape grandma." ECF No. 129 at 36 (quoting Trial Tr. vol. XV at 3118, 3120).
"It is improper for a prosecutor, during closing arguments, to bring to the attention of the jury any `purported facts that are not in evidence and are prejudicial.'" Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (quoting United States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)). "However, prosecutors `must be given leeway to argue reasonable inferences from the evidence.'" Id. (quoting United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)). These statements were not improper. The first was the prosecutor's interpretation of Carter's statement to police, not a deliberate attempt to mislead the jury into thinking Carter actually so stated, and the prosecutor repeatedly encouraged the jury to listen to the tapes for themselves. See, e.g., Trial Tr. vol. XV at 3118. The second comment was more hyperbole than factual assertion. And the third comment did not introduce new facts. Evely Carter testified that her mother told her that she was going to treat Carter "just like I do Shasta [and] Michael" by not allowing him to return to her house, and explained on cross-examination that they were her niece and nephew. Trial Tr. vol. XII at 2547, 2567.
Finally, Carter complains that during rebuttal closing argument, the prosecutor improperly mentioned an element of a crime, prior calculation and design, with which Carter was not charged. ECF No. 129 at 36 (citing Trial Tr. vol. XV at 3201). This statement is harmless in context. The prosecutor stated after the challenged comment, "He's not charged with that. Sorry. I got carried away again." Trial Tr. vol. XV at 3201.
Carter asserts that the cumulative effect of these acts of misconduct rendered his trial unfair. The "cumulative effect" of multiple acts of misconduct may be considered. See Berger, 295 U.S. at 89. However, determinations as to the impropriety or effect of a prosecutor's conduct at trial should account for the broader context in which the prosecutor's conduct took place. Darden, 477 U.S. at 182; Young, 470 U.S. at 12.
Viewing all of Carter's allegations of prosecutorial misconduct cumulatively and in the context of the entire trial, Carter's claims do not entitle him to habeas relief. There are few instances of improper conduct among these claims, and even if they and those that verged on improper were viewed cumulatively, Carter has failed to demonstrate that the misconduct was "so pronounced and persistent that it permeate[d] the entire atmosphere of the trial." See Wogenstahl, 668 F.3d at 335. As the Supreme Court has noted, "[a litigant] is entitled to a fair trial but not a perfect one, for there are no perfect trials." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (internal quotation marks and citations omitted).
Carter claims for his fourth ground for relief that the trial court violated his right to due process by denying his request to instruct the jury on certain lesser-included offenses. ECF No. 129 at 36-37. He argues that the court should have instructed the jury on theft, in addition to aggravated robbery, because, although he admitted that he took some money from Mrs. Prince's purse, he did so only after the murder took place, and therefore did not use a deadly weapon or inflict serious physical harm while committing the act, as required for aggravated robbery under Ohio law. ECF No. 226 at 63-64. He contends that the court should have instructed the jury on gross sexual imposition, in addition to rape, because the defense presented evidence that the "lack of trauma to the rectum made it equally as plausible that the semen . . . could have been deposited outside the body and seeped into the rectum." Id. at 64. Finally, Carter asserts that the court should have instructed the jury on murder, in addition to aggravated murder, because the jury may have found that he did not commit the murder "while committing or attempting to commit" another felony, as required for aggravated murder under Ohio law; and manslaughter, because the jury may have believed that "Mrs. Prince argued with and eventually pushed Carter." Id. at 65. Failure to give these instructions, he concludes, impermissibly resulted in the jury being "`forced into an all-or-nothing choice between capital murder and innocence.'" Id. at 66-67 (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)).
Carter raised this claim on direct appeal to the Ohio Supreme Court, which adjudicated the claim on the merits. See Carter, 89 Ohio St. 3d at 599-602, 734 N.E.2d at 352-54. This claim is therefore preserved for federal habeas review.
In considering this claim, the Ohio Supreme Court opined,
Carter, 89 Ohio St. 3d at 599-602, 734 N.E.2d at 352-54 (citations omitted).
Carter claims that this decision contravened or unreasonably applied clearly established Supreme Court precedent. ECF No. 226 at 66. The Court disagrees.
The Supreme Court held in Beck v. Alabama, 447 U.S. 625, 627 (1980), that the death penalty may not be imposed where the jury was "not permitted to consider a verdict of guilt of a lesser included non-capital offense, and [where] the evidence would have supported such a verdict," leaving the jury with the stark choice of convicting the defendant and sentencing him to death because a serious crime had been committed or finding him not guilty at all because the crime does not warrant death. The Court explained, however, that the constitutional right to a jury instruction on a lesser-included offense arises only if "the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater." Id. at 635 (internal quotation marks and citations omitted). This is so because "when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the `third option' of convicting of a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction." Id. at 637.
Carter claims that the Ohio Supreme Court unreasonably applied Beck "[b]y focusing on the sufficiency of the evidence supporting the capital charge, [and thereby] in effect convert[ing] Carter's Beck claim into a challenge to the sufficiency of the evidence under Jackson v. Virgina, 443 U.S. 307 (1979)." ECF No. 226 at 66. However, in Hopper v. Evans, 456 U.S. 605, 613 (1982), the Supreme Court made it clear that Beck held that "due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." Id. at 611 (emphasis original). And the Court found in that case that the evidence not only supported the claim that the defendant intended to kill the victim, but his testimony and evidence that he shot the victim in the back during an armed robbery "affirmatively negated any claim that he did not intend to kill the victim." Id. at 613.
Thus, "[i]t is well established that a lesser-included-offense instruction is not required where the facts of a murder so strongly indicate intent to kill that the jury could not rationally have a reasonable doubt as to the defendant's intent." Smith v. Bradshaw, 591 F.3d 517, 524 (6th Cir. 2010). Indeed, "as a general matter, repeated violent conduct conclusively proves intent to kill." Id.; see also Slaughter v. Parker, 450 F.3d 224, 236-38 (6th Cir. 2006) (rejecting Beck claim since the "facts [that the victim was bludgeoned in the head and stabbed five times] foreclose the conclusion that [the defendant] acted with any mental state other than intent"); Abdus-Samad v. Bell, 420 F.3d 614, 629 (6th Cir. 2005) (rejecting Beck claim because "[t]he fact that [the defendant] shot the victim with a pistol five to six times makes it virtually impossible to find that the killing was accidental"); Campbell v. Coyle, 260 F.3d 531, 543-44 (6th Cir. 2001) (rejecting Beck claim because the number and location of the victim's five stab wounds "compelled a reasonable jury to find that the [defendant] possessed the intent to kill," despite evidence of a struggle).
Here, the Ohio Supreme Court reasonably applied Beck and its progeny by focusing on the evidence presented at Carter's trial, and considering whether it supported the greater charges of aggravated murder, aggravated robbery and rape, and negated the possibility of the lesser charges of murder, manslaughter, theft and gross sexual imposition, making the lesser-included instructions unnecessary. The state court reasonably found that the jury could not rationally have had a reasonable doubt that Carter committed aggravated robbery, and was guilty only of theft, because Carter stole the victim's money after he murdered her. Nor could the jury have had a reasonable doubt that the prosecution had proven each element of rape, despite Carter's argument that his semen "seeped" into the victim without any penetration. And finally, due to the severity and location of the victim's wounds, the jury could not rationally have had a reasonable doubt regarding Carter's intent to kill her, negating the need for the lesser-included murder and manslaughter instructions.
Carter argues for his seventh ground for relief that Ohio's method of execution by lethal injection violates the Eighth Amendment prohibition on cruel and unusual punishment and the Due Process Clause of the Fourteenth Amendment. ECF No. 129 at 41-43.
Carter raised this claim on direct appeal to the Ohio Supreme Court, which adjudicated the claim on the merits. See Carter, 89 Ohio St. 3d at 608, 734 N.E.2d at 358. This claim is therefore ripe for federal habeas review.
In addressing this claim, the Ohio Supreme Court stated,
Carter, 89 Ohio St. 3d at 608, 734 N.E.2d at 358.
Carter's assertion that the Ohio Supreme Court's rejection of his lethal-injection methodof-execution claim was contrary to, or an unreasonable application of, Supreme Court precedent must be examined in the context of Supreme Court jurisprudence at the time that the state court rendered its decision. See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) ("In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision."). In 2000, when the Ohio Supreme issued its ruling in Carter, there was no Supreme Court precedent holding that lethal injection constitutes cruel and unusual punishment. The High Court did not even review a challenge to lethal injection until 2008, when it decided Baze v. Rees, 553 U.S. 35 (2008). Indeed, "[w]hile methods of execution have changed over the years, `[the Supreme] Court has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.'" Glossip v. Gross, 135 S.Ct. 2726, 2732 (2014) (quoting Baze, 553 U.S. at 48). Carter's claim, therefore, is meritless.
For his eighth ground for relief, Carter contends that due to his serious mental illness, from which he suffered at the time of his offense and continues to suffer to this day, his execution would violate the Eighth Amendment's prohibition on cruel and unusual punishment. He cites Atkins v. Virginia, 536 U.S. 304, 321 (2002), in which the Supreme Court held that, in light of "our evolving standards of decency," executing an intellectually disabled offender violates the Eighth Amendment's ban on cruel and unusual punishment, and Roper v. Simmons, 543 U.S. 551, 568 (2005), which similarly prohibits the execution of juvenile offenders. ECF No. 226 at 80-84.
The State argues that this claim is procedurally defaulted because Carter never raised it in state court. ECF No. 138 at 96. Carter does not address the procedural posture of this claim. The State is correct; this claim is procedurally defaulted. See O'Sullivan, 526 U.S. at 848 (if a petitioner fails to fairly present any federal habeas claims to the state courts and has no remaining state remedies, then the petitioner has procedurally defaulted those claims); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (Ohio's doctrine of res judicata, barring courts from considering any issue that could have been, but was not, raised on direct appeal, is an "independent and adequate state ground" upon which to find habeas claim procedurally defaulted).
Carter's claim appears to be what has been called a "free-standing actual innocence" claim, although Carter does not label it as such. In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court explained that "a claim of `actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 404. The Court stated in dicta, however, that "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional" regardless of whether any constitutional violation occurred during trial. Id. at 417. "Actual innocence" encompasses not just innocence of the underlying offense, but also the petitioner's eligibility for the death penalty. See, e.g., Dretke v. Haley, 541 U.S. 386, 387 (2004) (citing Sawyer v. Whitley, 505 U.S. 333 (1992)).
The Supreme Court has never applied such a claim, however, and recently declined to resolve whether a "free-standing" actual innocence claim is cognizable on federal habeas review. McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013). The Sixth Circuit has held that such a claim is not a valid ground for habeas relief. See, e.g., Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007); Thomas v. Perry, 553 F. App'x 485, 487 (6th Cir. 2014). Moreover, the Herrera Court emphasized that "the threshold showing for such an assumed right would necessarily be extraordinarily high." Herrera, 506 U.S. at 417; see also House v. Bell, 547 U.S. 518, 520 (2006).
Because this claim has not yet been recognized by the Supreme Court or the Sixth Circuit, relief on this claim is denied.
Carter claims in his ninth ground for relief that his execution will violate the Eighth and Fourteenth Amendments under Ford v. Wainwright, 477 U.S. 399 (1986), because he is "currently severely mentally ill" and "too insane and incompetent to be executed." ECF No. 129 at 48. Carter withdrew this claim in his traverse, however, because it is premature under Panetti v. Quarterman, 551 U.S. 930, 947 (2007), which holds that an Eighth Amendment Ford claim based on a petitioner's incompetency to be executed due to mental illness does not become ripe until the petitioner's execution date is set. ECF No. 226 at 85.
The Court must now determine whether to grant a Certificate of Appealability ("COA") for any of Carter's grounds for relief. The Sixth Circuit has determined that neither a blanket grant nor a blanket denial of a COA is an appropriate means by which to conclude a capital habeas case as it "undermine[s] the gate keeping function of certificates of appealability, which ideally should separate the constitutional claims that merit the close attention of counsel and this court from those claims that have little or no viability." Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001); see also Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001) (remanding motion for certificate of appealability for district court's analysis of claims).
Habeas courts are guided in their consideration of whether to grant a COA by 28 U.S.C. § 2253, which provides in relevant part:
28 U.S.C. § 2253. This language is identical to the requirements set forth in the pre-AEDPA statutes, requiring the habeas petitioner to obtain a Certificate of Probable Cause. The sole difference between the pre- and post-AEDPA statutes is that the petitioner must now demonstrate he was denied a constitutional, rather than federal, right. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (interpreting the significance of the revision between the pre- and post-AEDPA versions of that statute).
Furthermore, if a habeas claim is not procedurally defaulted, then the court need only determine whether reasonable jurists would find the district court's decision "debatable or wrong." Id. at 484. A more complicated analysis is required, however, when assessing whether to grant a COA for a claim the district court has determined is procedurally defaulted. In those instances, a COA should only issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
After taking the above standards into consideration, the Court finds as follows:
The Court will not issue a COA for the Fourth, Fifth (as to sub-claim relating to failure to present argument about jury instructions), Sixth, and Seventh grounds for relief, finding that no reasonable jurist would debate the Court's conclusions on these claims.
Also, the Court will not issue a COA for the Third, Fifth (as to sub-claims relating to failure to object to prosecutorial misconduct and negating theory of the case); and Eighth grounds for relief, because they are procedurally defaulted.
The Court will issue a COA for Carter's First ground for relief regarding his competency to stand trial, Second ground for relief relating to his trial counsel's ineffective assistance during the mitigation phase of trial, and Fifth ground for relief relating to his trial counsel's ineffective assistance regarding his competency to stand trial, finding that a reasonable jurist could debate the Court's conclusions regarding these claims.
For the foregoing reasons, the Court denies Carter's Petition for Writ of Habeas Corpus. The Court further certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could be taken in good faith as to Carter's First ground for relief regarding his competency to stand trial, Second ground for relief relating to his trial counsel's ineffective assistance during the mitigation phase of trial, and Fifth ground for relief relating to his trial counsel's ineffective assistance regarding his competency to stand trial. The Court issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b) as to those claims only. As to all remaining claims, the Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
