Published habeas decision today: United States v. Van Hook, No. 03–4207 (6th Cir. Oct. 4, 2011). Panel of Judges Merritt, Martin, and Moore.
Procedural History:
Long procedural history (pre-AEDPA case). Petitioner filed for federal habeas relief in 1995. Ohio courts had upheld petitioner’s death sentence. Ohio courts denied post-conviction relief. Initially, the federal district court denied the petition and the appellate panel reversed, finding that the petitioner’s confession was unconstitutionally obtained. The Sixth Circuit, sitting en banc, vacated that ruling. On remand, the panel again granted habeas relief, finding that trial counsel had been ineffective. Again, the Sixth Circuit sitting en banc vacated the decision. The panel found ineffective assistance on the next remand, but narrowed the scope of its holding. The Supreme Court granted cert and reversed. The case came back to the panel, and this decision is the next in the series.
Petitioner made three claims. He asserted a Brady claim that the the trial court and prosecution wrongfully withheld two pieces of exculpatory evidence from him at trial. He argued that his trial counsel was constitutionally ineffective because counsel failed to request an independent mental-health expert and requested a presentence report for the penalty phase. And he argued that his appellate counsel for his direct appeal was constitutionally ineffective for failing to raise two grounds for relief.
Brady:
Panel found that the State of Ohio had affirmatively waived the exhaustion of state remedies on the Brady issue. But the Brady evidence would not have added anything of note to the proof. If the three trial judges had not been persuaded by expert testimony to mitigate the punishment, the court found it was highly implausible that the two pieces of Brady evidence (which similarly suggested that the petitioner may have killed the victim because of a "homophobic panic") would have altered the judges’ conclusion. The evidence was weaker and less persuasive than the actual testimony and shined no new light on the issues.
The panel found that there was overwhelming expert testimony at the trial that the petitioner neither met the Ohio standard for insanity nor suffered from a mental disease. No expert testified that the petitioner met the standard for insanity, nor did any expert testify that the murder was the result of a mental disease. Neither of the two Brady documents stated that the petitioner met the standard for insanity or suffered from a mental disease or defect. So this evidence did not undermine confidence that the Ohio courts would have reached the same determinations regarding the petitioner’s mental condition.
Overwhelming evidence at trial showed that the petitioner satisfied the statutory aggravating factor of aggravated robbery. Even if the petitioner was motivated partially, or even entirely, at the precise time of the murder by a "homophobic panic," such a factor would not change the fact that the petitioner also stole some of the victim’s personal property by the use of serious physical harm, and thus committed robbery. The Brady evidence does not undermine confidence in the trial court’s determination regarding this aggravating factor. The court denied the petitioner’s Brady claim on the merits.
IAC for Trial Counsel:
The petitioner argued that his trial counsel was constitutionally ineffective because trial counsel failed to request an independent mental-health expert and requested preparation of a presentence report for the trial court during the penalty phase. The panel found that the Sixth Circuit, sitting en banc, had already rejected these arguments.
IAC for Appellate Counsel:
Petitioner argued his appellate counsel was constitutionally ineffective for failing to raise, among the assignments of error presented on direct appeal to the Ohio Supreme Court, two specific grounds for relief: 1) The trial court should not have admitted into evidence the victim-impact statements in which the victim’s mother and an arresting police officer urged the imposition of the death penalty; and 2) the prosecution committed misconduct by referring to the petitioner’s criminal history or capacity for future dangerousness during the penalty phase.
The petitioner, however, failed to follow the Ohio state procedural rules for timely filing claims of ineffective assistance of appellate counsel. And the petitioner’s delay was not one of days, but rather of years, so it did not matter whether the rule in effect at the time presumed timeliness if within ten days or ninety days. What mattered, under either rule, was whether the petitioner showed good cause for the six-year delay. The state appellate court reasonably found that he did not make the necessary showing.
The court found that the Ohio procedural rules constituted an adequate and independent state ground to foreclose review of the federal claim.
The panel found that the district court properly concluded that the petitioner’s claim of ineffective assistance of appellate counsel was procedurally defaulted. The petitioner presented no argument that his default should have been excused due to cause and prejudice. The panel held that the petitioner’s procedural default barred habeas relief on the claim.
The panel affirmed the judgment of the district court denying the writ of habeas corpus.
