Awkal Gets a New Trial

The majority of the Sixth Circuit panel (Moore, Cole, Gilman dissenting) in Awkal v. Mitchell, 01-4278, reversed the district court's denial of habeas relief and granted a new trial on the basis of ineffective assistance of counsel at the guilt phase. Awkal presented claims for relief on IAC during the guilt phase, IAC during sentencing, and prosecutorial misconduct. The panel did not decide the other two claims, but focused only on the question of whether counsel was ineffective for calling an expert witness who testified unequivocally that Awkal was sane at the time of the murder, when Awkal's entire defense was that he was not guilty by reason of insanity.

Counsel presented testimony of three experts: one whose testimony was stricken because he was not licensed in Ohio (and he had received his degree by mail); another who was a pediatrician who had practiced psychiatry for less than one year and was not yet certified; and the third, Dr. Rizk, who had conducted Awkal's pretrial sanity and competency evaluations for the court. The majority noted that counsel was in possession of Dr' Rizk's report well before he testified and should have known that it would be damaging. The majority analogized the case to Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), in which the court found ineffective assistance of counsel where counsel presented expert testimony that eviscerated the petitioner's intoxication defense. It found that Rizk's testimony so devastated Awkal's defense that it was objectively unreasonable for his counsel to call him as a witness. Regarding the prejudice prong, the majority held that the damage done by this witness was so obvious and extensive that had counsel not called him, there was a reasonable probability that the jury's verdict would have been different. In its AEDPA analysis, it further found that the Ohio Supreme Court's application of Strickland was objectively unreasonable in that the court failed to take into account the obvious harm caused by counsel's decision.

Judge Gilman, in dissent found that while counsel's decision was questionable, it was not outside the wide range of professionally competent assistance. It was clear that counsel had made a conscious decision to present this damaging testimony and so it must have been part of the "strategy." As to the prejudice prong, Judge Gilman found that the evidence against Awkal being psychotic at the time of the murders was so overwhelming, that he had no chance at an insanity defense even without Dr. Rizk's testimony

Van Hook - That's Not Really What We Meant

Today, the Circuit panel issued a modification of its opinion in Van Hook v. Anderson, 03-4207. Originally, the court found that Van Hook's counsel was ineffective for three reasons: 1) failure to fully investigate and present mitigating evidence; 2) failure to obtain a mental health expert to testify that Van Hooks actions were the result of mental illness; and 3) introducing and then failing to object to a PSI containing victim impact statements asking that he be sentenced to death. The panel (Merritt, Martin, Moore) amended its opinion "at the request of the majority of the en banc court and in order to avoid the need for an en banc hearing." The sole basis for the IAC finding in the new opinion was counsel's failure to investigate and present relevant evidence at mitigation.

The Circuit Limits AEDPA's Deferential Standard of Review Where New Evidence is Presented in Petitioner's Federal Habeas Claim

Today the Sixth Circuit released its decision in a non-capital habeas case, Brown v. Smith, Case No. 06-2295, granting petitioner's writ. Chief Judge Boggs, joined by Judge Moore, wrote the opinion while Judge Clay filed a separate concurrence also joined by Moore. The petitioner, who was convicted of sexually molesting his teenage daughter, claimed that counsel had been ineffective in failing to investigate and obtain the daughter's counseling records, which contained substantial material for impeachment. The court agreed, finding that because the prosecution's entire case hinged on the daughter's testimony, it was constitutionally deficient for counsel not to seek in camera review of the records. Further, because the records would have provided several points of impeachment of the daughter's testimony, the evidence was not cumulative, and since there was relatively little evidence to support the conviction in the first place, the court found the petitioner was prejudiced by counsel's failure.

Particularly interesting in this case is the treatment by both Boggs and Clay of the standard of review under AEDPA. The court declined to apply the deferential standard of review because the counseling notes were not on the record before the state court, which explicitly stated that its review was limited to mistakes apparent on the record. Boggs analogized petitioner's IAC claim to Brady claims in which the Brady material was discovered only during federal habeas proceedings, and therefore AEDPA deference would not apply to an earlier state court determination regarding different exculpatory material. Presupposing that the threshold standard is met, that 1) petitioner is not at fault for failing to develop the evidence in state court and; 2) if petitioner is at fault, the 2254(e)(2) exceptions apply, the same principles applied to new Brady claims would apply generally to any new claim involving new evidence. Judge Clay's concurrence emphasized that this ruling was an "important and natural progression in the circuit's jurisprudence on this issue," in that this standard of review is no longer limited to Brady claims. In expanding the application of Joseph v. Coyle, 469 F.3d 441 (6th Cir. 1006), Clay explained there can be no adjudication on the merits where the petitioner was unable to put critical evidence before the state court, regardless of whether the court has purported to resolve that particular claim, and the federal court must determine whether that claim was properly addressed.