Sean Carter v. Bobby Bogan
Opinion
In September 1997, Sean Carter raped and killed Veader Prince, his adoptive grandmother.
State v. Carter
,
I
A
In 1981, when he was 18 months old, Sean Carter ("Carter") was removed from his birth mother following a referral to a children service's agency in Trumbull County, Ohio.
Carter
,
On September 13, 1997, Prince returned home to an unwelcome surprise. Unbeknownst to her, Carter had been released from jail and had let himself into her home.
According to Carter's confession, after he obtained the car keys from [the victim's son], he left Prince's house and drove around for a while. He attempted to stay at his aunt's house, but could not. He returned to Prince's house and, since the door was locked, climbed through the bedroom window. He had called out to Prince, hoping to convince her to allow him to stay there for a week. They got into an argument and Prince told him to leave. He kept telling her that he had nowhere to go.
She tried to push him out the door and he started to beat her. At some point, he got a knife from the kitchen and started stabbing her. He described it as just "going off" and could not provide exact details of what happened during the assault, although he did remember hitting her in the face and stabbing her in the neck.
The next thing Carter remembered was being in the kitchen and washing his hands and the knife. He walked downstairs and saw Prince on the basement floor and then started to cover things up. He covered her with some clothes, moved the couch in her bedroom to cover up blood on the carpet, turned the water on in her bathroom and closed the door, and put a chicken in a pot on the stove and turned the stove on. He left a note on the kitchen table saying, "Took Sean to the hospital" in case someone saw blood in the house. He changed his clothes, since they were bloody. He then took about $150 from her purse and left.
He originally took her keys, thinking he would take one of her vans, and actually put his bag of clothes in the van, but could not get the van started. He got into [the victim's son's] car and drove off. Since he did not have a license plate, he stopped to steal a plate from a car in Garrettsville. To remove and transfer the plates to his car, he used the knife that he had stabbed his grandmother with.
Late in the evening of September 14, Prince's body was discovered by her children.
The next day, Carter was detained by police in Beaver County, Pennsylvania, and, after being given his
Miranda
warnings, he confessed to Prince's murder.
Prior to trial, a competency hearing was held at the request of defense counsel.
*761
Because Carter had attempted to commit suicide "several" times while in custody, his arms and legs were shackled throughout the proceedings, and he was guarded by three members of the Trumbull County Sheriff's Department. Despite these circumstances, the court concluded that Carter was competent to stand trial based upon the testimony of Dr. Stanley Palumbo, a court-appointed licensed psychologist.
[w]ith reasonable scientific certainty[,] Mr. Carter [was] competent to stand trial. Mr. Carter underst[ood] the nature of the proceedings against him and d[id] not suffer from any gross mental disorder that would [have] interfere[d] with his ability to participate in his defense. He d[id] not suffer from any mood disorder such as depression, which would [have] cause[d] him to have trouble following a witness's line of statements or [not] have the energy and interest in participating in his own defense in his own best interest.
Shortly thereafter, Carter entered a plea of not guilty by reason of insanity.
At the hearing, three experts-King, Palumbo, and forensic psychiatrist Dr. Robert Alcorn-testified.
*762 Two weeks later, during the trial's opening statements, Carter interrupted defense counsel to express his desire to plead guilty. After the statements concluded, a brief recess was held, at which time Carter informed the court that he did not wish to attend the proceedings. Initially, the trial judge stated that he would hold off on deciding that matter, as he wished to research the issue to ensure that Carter's rights were adequately protected. Carter was, however, insistent that he did not want to attend the trial; and after asking whether he would be removed if he "acted up" in court, he lunged at the judge. The court described the ensuing events:
[w]hat happened is basically the Defendant lost complete control, indicated to the Court that he would act up and, in fact, proceeded to jump around, went crazy causing the deputies, four deputies to restrain him and put him in leg irons. And he struggled very violently with them. And he has promised to the Court that he intends to continue that type of activity throughout the trial if he's required to be here.
Defense counsel agreed with this characterization of the incident and stipulated that until Carter could control himself, Carter would monitor the proceedings via television in a separate room. The trial judge then directed defense counsel to inform the court if Carter changed his mind about attending the proceedings.
On March 20, 1998, Carter was convicted of one count of aggravated murder and of two capital specifications, namely, that the murder was committed in connection with rape and in connection with aggravated robbery.
Represented by new counsel, Carter immediately appealed his conviction and sentence, raising fourteen propositions of law; for purposes of this appeal, however, only two are relevant.
Proposition of Law No. 4
U.S. Const. amend. XIV and Ohio Const. art. I, §§ 1, 2, and 16, require [the] trial court, when presented with bona fide evidence and good faith claims that a criminal defendant is incompetent to stand trial, to examine all reasonably available evidence.
Proposition of Law No. 5
Ineffective assistance of counsel violates not only a capital defendant's rights to effective counsel under U.S. Const. amend. VI and XIV[,] and Ohio Const. art. I, §§ 1 and 10 ; but also rights to a fair and impartial jury trial and a reliably determined sentence, as guaranteed by [ ] U.S. Const. amend.[ ] V, VI, VIII, and XIV and by Ohio Const.[ ] art. I, §§ 5, 9, 10, and 16.
Carter
,
On September 13, 2000, the Supreme Court of Ohio affirmed Carter's conviction and death sentence.
Carter
,
B. State-Court Postconviction Proceedings
While his direct appeal was pending, Carter also filed a "petition to vacate or set aside conviction," which the trial court interpreted as a petition for postconviction relief. State v. Carter , No. 99-T-0133, 2000 Ohio App. LEXIS 5935, at *2 (Ohio Ct. App. Dec. 15, 2000). In relevant part, Carter raised the following causes of action:
SECOND CAUSE OF ACTION
Petitioner was incompetent to stand trial because his paranoid personality did not permit him to trust his lawyers. He therefore could not and did not work cooperatively with counsel, a basic component of competence to stand trial. Further, counsel was physically afraid of Petitioner, which resulted in a diminution of the attorney-client relationship, and counsel failed to present out of court evidence by an expert witness who acknowledged that counsel could not possibly have an effective working relationship with Petitioner.
...
Petitioner's trial counsel failed to (a) present all evidence of Petitioner's incompetence; (b) make a complete record on Petitioner's behalf so that Petitioner could defend his life and liberty on appeal if convicted; and (c) present, through direct or cross examination, all expert evidence of Petitioner's incompetence to stand trial.
FIFTH CAUSE OF ACTION
Petitioner's trial counsel violated the duty to conduct [an investigation of possible mitigating factors] by:
(A)failing to fully investigate Petitioner's medical and social history; and
(B) failing to hire a mitigation expert to assist in discovery of relevant information.
On August 30, 1999, the trial court dismissed the petition without a hearing, finding that Carter "ha[d] failed to show substantive grounds for relief as to any of the claims set forth" therein.
See
On September 29, 1999, Carter appealed the postconviction trial court's decision, alleging two errors.
Assignment of Error No. 1
The trial court erred in denying appellant an evidentiary hearing on his petition for post-conviction relief, thus depriving appellant of liberties secured by U.S. Const. amend. VI and XIV, and Ohio Const. art. I [§§] 1, 2, 10, and 16, *764 including meaningful access to the courts of this State.
Assignment of Error No. 2
The trial court erred in applying the principles of res judicata , thus depriving appellant of liberties secured by U.S. Const. amend. VI and XIV, and Ohio Const. art. I, [§§] 1, 2, 10, and 16.
Id.
at *2-3. On December 15, 2000, the Court of Appeals of Ohio affirmed the judgment of the trial court, holding that the first assignment of error was "without merit" and, therefore, that the second one was moot.
Id.
at *13. In doing so, the court noted that (1) it did not appear that Carter's counsel performed inadequately during the mitigation phase of the trial and (2) Carter had not submitted evidentiary documents that would have entitled him to a hearing on his claim of ineffective assistance of counsel during the mitigation phase.
Id.
at *10, 13. Once again, Carter appealed the decision,
3
but on May 2, 2001, the Supreme Court of Ohio declined jurisdiction and dismissed the case as not involving any substantial constitutional question.
State v. Carter
,
Nearly one-and-three-quarters years later, Carter filed an application with the Supreme Court of Ohio to reopen his direct appeal on the grounds that he had been denied effective assistance of appellate counsel. In particular, Carter alleged that appellate counsel had failed to raise "all instances of prosecutorial misconduct and ineffective assistance of [trial] counsel, and the failure of the trial court to ensure that Mr. Carter was competent to stand trial and to safeguard his right to be present." On March 19, 2003, the court denied the application without discussion.
State v. Carter
,
C. Federal Habeas Corpus Proceedings
In March 2002, prior to Carter's filing an application to reopen his direct appeal, the Office of the Ohio Public Defender ("OPD") initiated habeas corpus proceedings on the Petitioner's behalf by filing a suggestion of incompetence. In its application, the OPD noted that Carter-who, at that time, may have waived further review of his case and have volunteered for execution-was then being held at a facility for inmates with severe mental illness and that his case worker had said that Carter was mentally ill. Because Carter was not represented by counsel and had refused to meet with the office's representatives, the OPD simultaneously filed a motion for the appointment of counsel and an
ex parte
motion for the appointment of a mental-health expert to determine whether Carter was competent to waive federal review of his conviction and death sentence. The district court granted the motions, and on May 1, 2002, habeas counsel filed a petition for a writ of habeas corpus, pursuant to
Carter, who amended his petition three times between May 2002 and October 2005, raised nine claims on habeas review.
GROUND FOR RELIEF ONE
*765 Sean Carter was incompetent at both the culpability and penalty phases of his trial. Therefore, his convictions and sentence of death are in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
GROUND FOR RELIEF TWO
Sean Carter's right to effective assistance of counsel during the mitigation phase was violated when counsel failed to investigate, prepare, and present relevant mitigating evidence. U.S. Const. amend[ ]. VI, VIII, XIV.
GROUND FOR RELIEF THREE
Sean Carter's rights to a fair trial and an impartial jury were violated by prosecutor misconduct at the culpability phase of Mr. Carter's trial. U.S. Const. amend. VI and XIV.
GROUND FOR RELIEF FOUR
The trial court denied Sean Carter his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by failing to instruct the jury properly at the conclusion of the culpability phase.
GROUND FOR RELIEF FIVE
Sean Carter was denied his right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution when his attorneys failed to object and properly preserve numerous errors that occurred during the pre-trial proceedings and the culpability phase of the trial.
GROUND FOR RELIEF SIX
Sean Carter was denied the effective assistance of counsel in his direct appeal as of right, in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
GROUND FOR RELIEF SEVEN
The death penalty as administered by lethal injection in the state of Ohio violates Sean Carter's rights to protection from cruel and unusual punishment and to due process of law as guaranteed by the United States Constitution amend [ ]. VIII and XIV.
GROUND FOR RELIEF EIGHT
Sean Carter is seriously mentally ill. Therefore, his death sentence is in violation of his rights under the Eighth and Fourteenth Amendments.
GROUND FOR RELIEF NINE
Sean Carter will not be competent and sane to be executed. Sean's execution while he is incompetent and insane, violates the Eighth and Fourteenth Amendments to the United States Constitution.
Carter
,
In late November 2005, the district court granted Carter's motion for a competency determination, and granted in part and denied in part his motion to expand the record. Of particular note, the court refused to expand the record to include (1) an affidavit from Ida Magee, who served as Carter's foster mother prior to his adoption by Evely Prince Carter, (2) a psychosocial history of Carter prepared by Albert Linder, a psychiatric social worker, (3) a letter from psychologist Dr. Douglas Darnall that detailed Carter's mental illness, (4) an April 1994 chemical-dependency assessment of Carter by the Portage County Juvenile Court, and (5) a March 1995 Department of Youth Services evaluation. The court's refusal was based on the grounds that Carter had not been diligent in presenting that evidence to the Ohio courts.
See
Five months later, on May 1, 2006, the district court finally conducted a hearing to determine whether Carter was competent
*766
to proceed with his habeas petition. The next day, the court ordered Carter's counsel to arrange for both parties' experts to observe habeas counsels' interactions with Carter, presumably to assess his purported "inability to communicate with counsel in a meaningful way concerning the facts and issues in his case." After the court denied Carter's objection to the order-specifically, that it threatened to violate his attorney-client privilege-he sought a Certificate of Appealability ("COA"), pursuant to
In September 2008, nearly three years after Carter filed his motion for a competency determination, the district court held that the Petitioner was incompetent to proceed with his federal habeas litigation.
Carter v. Bradshaw
,
could not reasonably be expected to recall and describe how well he was able to view the trial once he was removed from it ..., [ ] would be unable to elaborate on conversations he had with defense counsel regarding his competency ... [, and] does not have the present capability to judge and express to habeas counsel what mitigating evidence from his social and family background defense counsel should have introduced during the sentencing phase of trial because of his limited capacity to recall and convey the details about any such events.
Carter
,
On appeal, a panel of this court amended the district court's judgment, directing that Carter's habeas proceedings be stayed with respect to those claims for which Carter's assistance was "essential."
Carter
,
On January 8, 2013, the Supreme Court unanimously vacated the judgment of the Sixth Circuit.
Gonzales
,
Upon remand, the district court denied Carter's petition for a writ of habeas corpus.
Carter
,
II
When reviewing a district court's grant or denial of a petition for a writ of habeas corpus, we examine its conclusions of law de novo and its factual findings for clear error.
Hand v. Houk
,
Among other things, AEDPA limits the circumstances under which we may grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in a state court.
See
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
To be clear, "an
unreasonable
application of federal law is different from
*768
an
incorrect
application of federal law."
Renico v. Lett
,
Review under § 2254(d)(1) is limited in two additional, important ways. First, notwithstanding the language of
As regards 28 U.S.C § 2254(d)(2), it too imposes a highly deferential standard when reviewing claims of factual error by a state court.
See
Burt v. Titlow
,
III
A
It is well-established that "the criminal trial of an incompetent defendant
*769
violates due process."
Cooper v. Oklahoma
,
While the Supreme Court has yet to prescribe a standard for determining when a trial court should hold evidentiary proceedings on the matter of competency, we have previously used the following test: "whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial."
Filiaggi v. Bagley
,
Because competence to stand trial is a question of fact,
see
Thompson v. Keohane
,
B
Although Carter frames his first cause of action as a single claim-namely, that he was incompetent at both the guilt and penalty phases of the trial-it actually consists of two analytically distinct parts. In his first subclaim, Carter raises a question of fact. Specifically, he asserts that "the trial court's [and the Supreme Court of Ohio's] determination of Carter's competency was unreasonable based upon the evidence available at the state court proceeding[,]" both because the courts either ignored or misinterpreted relevant evidence and because they credited flawed expert testimony. Petitioner Br. 22, 27, 31. Carter supports this subclaim, at least in part, by pointing to the following evidence, which he contends the state courts overlooked or did not properly credit: his family history of schizophrenia, his hallucinations as a juvenile and during his competency evaluations, his attempts at suicide while in state custody, his expressed desire to kill one of his trial attorneys, his purported lack of understanding of the role of trial counsel, and his desire to receive the death penalty. Id. at 22-26.
In contrast, Carter's second subclaim-i.e., that even if the trial court's initial determination was not unreasonable, evidence that arose after the competency hearings should have led the court to reevaluate its finding,
id.
at 32-is an issue of law,
see
Hill v. Anderson
,
As already detailed, Carter raised this competency claim on direct appeal, where it was adjudicated on the merits.
Carter
,
C
As a preliminary matter, it is simply not true that the Supreme Court of Ohio failed to consider the host of evidence that Carter points to. In arriving at its conclusion that the trial court's findings of fact did not support Carter's competency claim, the Supreme Court of Ohio explicitly recognized Carter's suicide attempts while awaiting trial, his "apparent disagreements with counsel[,]" his desire to "enter a plea and get it over[,]" and his "lung[ing] at the judge to be removed from the courtroom."
Carter
,
i
Turning now to Carter's first subclaim, the Supreme Court of Ohio's decision affirming the trial court's competency determination was not unreasonable in light of the evidence presented in state court. At Carter's second competency hearing, Drs. Palumbo and Alcorn testified that Carter was competent to stand trial, while Dr. King-who testified that Carter was incompetent-described the issue as a "close call."
8
Given that, all else equal, it is not unreasonable for a court to credit the diagnoses of two experts over that of a third (especially when that contrary opinion is heavily qualified),
see
O'Neal v. Bagley
,
He does not come close to doing so. In his brief, Carter points to evidence that he claims was "enough" to establish his incompetence, such as his family history of schizophrenia, his hallucinations, his attempts at suicide, his desire to plead guilty, and his expressed desire to kill one of his trial counsel. Petitioner Br. 22-26. However, while Carter may very well be correct that such evidence is "enough," the question before us is whether such evidence
compels
a determination of incompetence,
see
Collins
,
ii
As for Carter's assertion that the trial court should have held a third competency hearing
sua sponte
, the judgment of the Supreme Court of Ohio was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."
Hill
,
[Carter] clearly indicated a wish to be able to plead guilty and get it over with. He said he didn't want to go through a trial .... And [when] I inquired whether he would prefer to plead guilty and not have to go through a trial so that he wouldn't have to sit through a recitation of the terrible things that he had done[,] ... he agreed with me about that.
Given this, Carter's standing up in open court and declaring his desire to plead guilty-while certainly unwise-merely reiterated information that had been considered by the court in its prior competency determinations.
The same is true of Carter's "lunging" at the trial judge. Immediately preceding the incident, Carter repeatedly stated, in chambers, that he did not wish to attend the trial and asked why he would not be allowed to plead guilty. Upon being advised by the court to speak with his lawyer about pleading guilty, Carter said, "I don't want to be here, don't want to be over in the court. Like, if I act up in here or something, like get restrained, they take me over there if I did that?"
Carter
,
IV
A
Carter's remaining causes of action involve allegations of ineffective assistance of trial counsel. Specifically, Carter argues that his counsel were constitutionally ineffective because they neither (1) protected his right to be competent to stand trial nor (2) properly presented mitigating evidence during the trial's penalty phase. Petitioner Br. 33, 47. Because these claims are analyzed under the same framework, we group them together for ease of exposition.
*773
To succeed on an ineffective-assistance-of-trial-counsel claim, a defendant must make two showings. First, he must show that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland v. Washington
,
Second, the defendant must establish that "the deficient performance prejudiced the defense."
Id.
at 687,
Because AEDPA applies to this case, Carter faces a particularly daunting task in establishing ineffective assistance of counsel. Where a state court has adjudicated an ineffective-assistance-of-counsel claim on the merits, we use a "doubly deferential standard of review that gives both the state court
and
the defense attorney the benefit of the doubt."
Titlow
,
B
Carter's second claim details three ways in which trial counsel were allegedly ineffective in protecting his right to be competent to stand trial: (1) by not presenting "material and relevant information regarding Carter's predisposition to and symptoms of mental illness[,]" (2) by not presenting "additional evidence of Carter's continual decline into incompetency[,]" and (3) by not "request[ing] a competency hearing after the commencement of trial." Petitioner Br. 33. More specifically, Carter faults his counsel for, respectively, (1) "fail[ing] to provide reports by psychiatric social worker Albert Linder and psychologist Dr. Douglas Darnall to any of the experts ... [, which described] Carter [as] suffering from symptoms [indicative of] a major psychiatric disorder" and failing to adequately investigate and present evidence of Carter's suicide attempts; (2) not testifying during the competency hearings "about their personal experience in attempting to work with Carter and the effect of the breakdown in communication on their ability to prepare a constitutionally adequate defense"; and (3) not requesting a third competency hearing following Carter's outbursts at the start of the trial. Id. at 40-44.
*774
Carter presented part of this claim on direct appeal and then again during postconviction proceedings. In both instances, Carter asserted that trial counsel had failed to "fully present evidence of incompetence" because they neither testified about nor filed affidavits detailing their experience of working with Carter. On direct appeal, the Supreme Court of Ohio rejected Carter's argument, stating that it was "speculative" in light of the record.
Carter
,
There is. To see why, it first bears repeating that because Carter's claim was adjudicated on the merits, our review is limited to the record that was before the Ohio Court of Appeals,
Pinholster
,
Moving on to Carter's assertion that counsel were constitutionally ineffective for failing to present evidence of his *775 suicide attempts and for not testifying about the breakdown in their relationship with Carter, the subclaim is meritless because he does not establish prejudice. It is undisputed that witnesses at the two competency hearings testified regarding these matters. At the first hearing, which Palumbo attended, a Trumbull County deputy sheriff informed the court that he had objected to the removal of Carter's handcuffs at the hearing because Carter had attempted to commit suicide while in custody. Then, at the second competency hearing, Dr. King relayed conversations that he had had with Carter's counsel regarding the difficulties they had faced in working with the Petitioner:
I've had conversations with his counsel as frequent as today and they have indicated to me that he is uncooperative with them, he is not working with them, that actually he is very hostile when put under any pressure, and that they are actually not only apprehensive but even afraid of him.
Carter
,
Finally, because there is no merit to Carter's claim that the trial court erred in failing to hold a third competency hearing
sua sponte
,
see
supra
pp. 771-72, there is also no merit to his subclaim that counsel were constitutionally ineffective for failing to request a competency hearing after the commencement of trial,
see
Franklin
,
C
In his third, and final, cause of action, Carter contends that counsel failed in two ways to "adequately investigate, prepare, and present mitigating evidence that was
*776
available at the time of [his] trial." Petitioner Br. 47. First, Carter argues that counsel did a poor job explaining the evidence introduced during the trial's penalty phase and did not accurately portray Carter's character, history, and background.
Second, Carter criticizes counsels' mitigation theory-namely, that Carter suffers from Antisocial Personality Disorder-as "incoherent and damaging." Id. at 50. Instead of presenting the jury with "an image of a mechanical killer who was unable to feel emotion, have sympathy for others or express remorse[,]" Carter contends that counsel should have introduced "information about the impact a structured prison environment could have [had] on Carter[.]" Id. at 47. Lastly, the Petitioner argues that relief is warranted because counsel presented a "mercy theory" of mitigation, which was not permitted in Ohio at the time of his trial. Id. at 53-54.
Carter's claim evolved at various stages of the proceedings. On direct appeal, Carter limited himself to arguing that counsel were ineffective for failing to accept the trial court's offer of MRI testing. The Supreme Court of Ohio concluded that the claim was not appropriately considered on direct appeal as there was "no way of knowing what, if anything, would have been discovered[.]"
Carter
,
i
Concerning Carter's first subclaim-that trial counsel did not adequately investigate or present mitigating evidence-the judgment of the Ohio Court of Appeals did not involve an unreasonable application of clearly established federal law. Because Carter's claim was adjudicated on the merits in state court,
see
id.
at *10;
see also
Gonzales
,
Absent the foregoing evidence, there is simply no basis for concluding that counsel "failed to fairly depict Carter's character, history and background, including his childhood neglect and trauma, serious mental illness, family history of mental illness, [and] substance abuse[,]" Petitioner Br. 47. As the Court of Appeals of Ohio observed, two defense witnesses testified extensively on these matters during the trial's mitigation phase.
See
*777
Carter
, 2000 Ohio App. LEXIS 5935, at *9-10. For instance, Nancy Dorian, a psychologist who oversaw Carter's foster placement on behalf of children's services, recounted the emotional difficulties he experienced at a young age-such as having an attachment disorder, being "schizoid-prone," and having difficulty getting along with others-as well as the abuse that he suffered at the hands of his mother, e.g., his being "tied to a chair and left alone" for long periods of time.
See
id.
at *9. Likewise, Dr. Sandra McPherson, a clinical psychologist who conducted a thorough review of Carter's medical and social history, detailed the Petitioner's traumatic first few years of life; how he later suffered from emotionally-triggered seizures, an attachment disorder, and hearing issues due to neglect; how he was removed from a foster situation that was his "only chance" for a positive outcome and placed with a family that was emotionally abusive; how he was removed from that family and eventually placed with the Carters, who were not prepared to deal with his many psychological issues; and his genetic predisposition to schizophrenia. In light of this testimony-and the over 200 pages of social service, medical, and legal records that were introduced during the mitigation phase of the trial-trial counsels' performance was not "outside the wide range of professionally competent assistance" with respect to the presentation of evidence of Carter's childhood trauma, mental illness, and substance abuse.
See
Strickland
,
Carter's first subclaim therefore rests upon his counsels' seemingly curious decision not to obtain neurological testing for Carter; upon closer examination, however, that decision did not amount to deficient performance in light of Dr. King's testimony at the second competency hearing. In reviewing counsels' decision, it is important to keep in mind that "[a] licensed practitioner is generally held to be competent, unless counsel has good reason to believe to the contrary."
Fautenberry v. Mitchell
,
ii
The second half of Carter's third cause of action-that counsel were constitutionally ineffective because their mitigation theory was objectively unreasonable,
see
Petitioner Br. 52-is likewise meritless. To begin with, contrary to Carter's suggestions, Ohio state law recognizes Antisocial Personality Disorder ("ASPD") as a statutory mitigating factor.
See
Esparza v. Sheldon
,
Nor was the choice of mitigation strategy otherwise deficient. As noted earlier, to succeed on an ineffective-assistance-of-counsel claim, a petitioner must overcome the presumption that the challenged action constituted sound trial strategy.
Strickland
,
To be clear, counsels' strategy was not a plea for mercy. Carter is quite correct that had defense counsel simply
*779
made a plea for mercy, their performance would have been, at minimum, deficient. That is because in Ohio, mercy "is not a mitigating factor and thus [is] irrelevant to sentencing[.]"
State v. Lorraine
,
Finally, while Carter may be correct that an alternative mitigation theory would have been more successful, that does not show that the Ohio courts unreasonably applied clearly established federal law in rejecting his
Strickland
claim. The sole basis for Carter's alternative mitigation theory is an affidavit by Dr. Bob Stinson-a psychologist who examined the records available to the trial attorneys at the time of the mitigation hearing-that was introduced during federal habeas proceedings. As we have repeatedly noted, however, we cannot consider such evidence when reviewing a claim adjudicated on the merits in state court.
Pinholster
,
V
For the foregoing reasons, we AFFIRM the decision of the district court denying the petition for a writ of habeas corpus.
During oral arguments, Carter's habeas counsel stated that King had merely described the question of Carter's mental illness as a "close call." While this is technically correct, in his competency report, King wrote, " as a result of Mr. Carter's psychosis , he is presently not capable of assisting his defense." (Emphasis added). Logic therefore dictates that King also viewed the question of competence to be a "close call."
Carter was also convicted of aggravated robbery, rape, and the lesser-included offense of criminal trespass on the aggravated-burglary charge.
Carter
,
On appeal, Carter raised the following propositions of law:
Proposition of Law No. 1
Denial of an Evidentiary Hearing Where a Petition for Post-Conviction relief States Operative Facts is a denial of meaningful access to the courts of this State in contravention of Ohio Const. art. I, §§[ ]1 and 16; U.S. Const. amend[.] XIV.
Proposition of Law No. 2
Res judicata may not be applied to defeat claims raised in a post-conviction petition where a direct appeal is still pending and the matters raised in the petition have not been previously adjudicated.
The district court also stated that it was "inclined" to find that "Carter's mental illness prevent[ed] him from truly comprehending the nature of the habeas proceedings."
Carter
,
In
Miller-El v. Cockrell
,
O.R.C. § 2945.37(G) states:
A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense , the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.
We say "at minimum" because the Supreme Court has yet to clarify the relationship between
See supra p.4 n.1.
In his Reply Brief, Carter argues that we are not bound by the Supreme Court's determination that his ineffective-assistance-of-trial-counsel claims were adjudicated on the merits in state postconviction proceedings because it is dicta. Reply Br. 15. In support of this position, he notes that (1) the Supreme Court granted certiorari on a "narrow question," namely, "[w]hether section 4241 provides a statutory right to competence in federal habeas proceedings" and (2) "the issue [was not] previously decided in the Sixth Circuit from which the [warden] sought a Petition for Writ of Certiorari." Id. at 14-15.
While it is true that the Supreme Court granted certiorari with respect to the aforementioned "narrow question," there is no reason to treat its adjudicated-on-the-merits determination as dicta. For starters, we find no basis in the case law for Carter's assertion that the Supreme Court's holdings are limited to the issues on which certiorari is granted; nor does Carter provide any support for that claim. Rather, in
Humphrey's Ex'r v. United States
,
Carter's counsel mischaracterized this portion of Dr. King's testimony in at least one filing before the district court, stating that Dr. King's testimony was limited to the issue of Carter's sanity.
See
Amended Traverse to Return of Writ at 40-41,
Carter
,
At oral argument, Carter argued that trial counsels' decision could not have been strategic because there would have been no downside to pursuing an MRI. Stated more expansively, his federal habeas counsel asserted that even if the MRI had shown that Carter did not suffer from organic brain damage, he would not have been harmed by that revelation as the absence of such an injury would not have ruled out the possibility of mental illness.
This argument ignores, however, the way in which trial counsel could have leveraged uncertainty over the existence of organic brain damage to Carter's benefit. Put differently, in assessing whether a negative MRI result would have harmed Carter's defense, we must consider how trial counsel could have used the jury's uncertainty over the existence of organic brain damage to Carter's advantage. So long as the jury did not have a definitive answer to the question of whether Carter had such damage, counsel could suggest that Carter did indeed suffer from it. Of course, such an insinuation is not as helpful to Carter as actual proof, but it is better than if the MRI showed no damage whatsoever. Accordingly, counsel could have reasonably determined that it was better to hedge their bets than to pursue MRI testing.
Reference
- Full Case Name
- Sean CARTER, Petitioner-Appellant, v. Bobby BOGAN, Jr., Warden, Respondent-Appellee.
- Cited By
- 45 cases
- Status
- Published