Eley v. Bagley

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0138p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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JOHN J. ELEY,
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Petitioner-Appellant,
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No. 06-4503
v.
,
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Respondent-Appellee. -
MARGARET BAGLEY, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 02-01994—Christopher A. Boyko, District Judge.
Argued: December 4, 2008
Decided and Filed: May 14, 2010
Before: SILER, CLAY, and GIBBONS, Circuit Judges.

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COUNSEL
ARGUED: David Lawrence Doughten, LAW OFFICES, Cleveland, Ohio, for Appellant.
Sarah A. Hadacek, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee. ON BRIEF: David Lawrence Doughten, LAW OFFICES, Cleveland, Ohio,
Jeffrey James Helmick, HELMICK & HOOLAHAN, Toledo, Ohio, for Appellant. Sarah
A. Hadacek, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
GIBBONS, J., delivered the opinion of the court, in which SILER, J., joined. CLAY,
J. (pp. 17-25), delivered a separate dissenting opinion.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Petitioner–appellant John J. Eley was
convicted in Ohio of aggravated murder and aggravated robbery and sentenced to death. He
now appeals the district court’s denial of his petition for a writ of habeas corpus, challenging

1
No. 06-4503 Eley v. Bagley Page 2

the state trial court’s failure to conduct a competency hearing, his trial counsel’s
effectiveness in developing mitigation evidence, and the trial panel’s consideration of
mitigation proof. For the reasons set forth below, we now affirm the district court’s decision
and dismiss Eley’s habeas petition.

I.

The Ohio Supreme Court summarized the facts of the case as follows:

During the early afternoon of August 26, 1986, Eley was visiting
Melvin Green at the home of Green’s girlfriend in Youngstown. According
to Eley, he and Green were just sitting around when Green suggested that
they go down to the “Arab store.” Eley and Green left the house and
proceeded down a path through the woods leading to the Sinjil Market.
Along the way, Green showed Eley a “Black Snub nose gun,” and told Eley
he “was going to take the Arab off.” Since the proprietor of the store, Ihsan
Aydah, knew Green’s face, Eley agreed to go in alone and rob the store
while Green waited outside.
Eley entered the store and told Aydah to put his hands up and to turn
and face the wall. Green had told Eley that Aydah had a gun under the store
counter, so when Aydah lowered his hands and went under the counter, Eley
fired a shot. Eley claimed that he aimed at Aydah’s shoulder. However, the
shot hit Aydah on the right side of his head, approximately four inches
above the earlobe. Aydah died the next day of shock and hemorrhage due
to a gunshot wound to the head.
Just before Eley fired the gun, Green entered the store. After the
shot, Green ran behind the counter and got into the cash register. He took
Aydah’s wallet while Aydah lay wounded on the floor. As the two left the
store, Green gave Eley a brown paper bag with the money and wallet.
According to Eley, they went up the street, “got to the path and run up the
woods.”
...
Several days after the murder, Eley was arrested by Youngstown
police at the residence of his cousin’s girlfriend, Carlotta Skinner. After his
arrest, Eley told police that he and Green had split the money taken in the
robbery, which was around $700. However, Eley later gave the money back
to Green “because he said it was all on him and he had to get out.”
...
[After being arrested, i]n his voluntary statement Eley admitted that
he and Green had robbed the Sinjil Market, and that he shot Aydah. [The
arresting officer] testified that Eley did not appear to be under the influence
of alcohol or drugs during the interview and was “very calm” and “passive.”
The grand jury indicted Eley on one count of aggravated murder
with a specification that the murder was committed during, or immediately
after, the commission of an aggravated robbery (R.C. 2929.04[A][7]), and
No. 06-4503 Eley v. Bagley Page 3

that Eley was the principal offender. This count also carried a firearm
specification. In addition, Eley was indicted on one count of aggravated
robbery (R.C. 2911.01[A][1] and [2]) and one count of conspiracy (R.C.
2923.01[A]). Each count carried a firearm specification.
In May 1987, Eley waived his right to a jury trial and opted for a
trial before a three-judge panel. Eley pled not guilty to the charges against
him, thereby withdrawing a prior plea of not guilty by reason of
1
insanity. . . .
Trial was held before a three-judge panel on May 11–12, 1987,
but the defense chose not to present any evidence. The panel found Eley
guilty of aggravated murder, aggravated robbery, the felony-murder
capital specification, and two of the three firearm specifications, but not
guilty of conspiracy.
During the mitigation hearing, several family members testified
on Eley’s behalf. Eley’s mother, Cecilia Joseph, divorced Eley’s father
when Eley was seven or eight years old, and stated that Eley had “not
much” of a relationship with his father. Joseph testified that on
Christmas night 1964, her second husband had been drinking and began
choking her and her daughter. At that time, Eley stabbed the second
husband with a knife in order to stop him. Joseph testified that Eley
dropped out of high school in the ninth grade, but later entered the Job
Corps and learned to be a welder. Eley sent money home to his mother
during this time, and gave her money to help her finish paying for
nursing school. Joseph stated that while Eley has had problems with
drugs and alcohol, he is a better person when he is not under the
influence. She characterized Eley as “church oriented,” and believed he
had been “born again.”
Eley’s sister, Susan Laury, testified that Eley had helped the
family financially while he was in the Job Corps, and that Eley is
normally a “quiet, sweet, gentle person that wouldn’t hurt anybody.”
Dr. Douglas Darnall, a clinical psychologist, found Eley to be of
borderline intelligence, and ranked him in the twelfth percentile on the
Wechsler Adult Intelligence Test. According to Darnall, Eley has a
history of chronic alcohol and polysubstance abuse, but exhibited “no
evidence of psychosis or major defective disorder.” In addition, Darnall
testified that Eley understands the difference between right and wrong.
Darnall found Eley to be remorseful, but Eley never mentioned that he
felt remorse for the victim. However, two police officers who witnessed
Eley’s confession testified that Eley was remorseful before he made that
statement. Eley made a short unsworn statement at the mitigation phase
that consisted of several biblical quotations from the Book of Romans.

1
According to an affidavit of trial counsel, before trial Eley refused to accept various plea offers
that were conditioned on Eley’s testimony against Green, including an offer of a voluntary manslaughter
charge with a six-year sentence.
No. 06-4503 Eley v. Bagley Page 4

After deliberation, the panel unanimously found that the
aggravating circumstance outweighed the mitigating factors beyond a
reasonable doubt, and sentenced Eley to death. Upon appeal, the court
of appeals affirmed the convictions and sentence of death.

State v. Eley, 672 N.E.2d 640, 644–46 (Ohio 1996). After considering the eighteen
issues Eley raised on appeal, the Ohio Supreme Court affirmed the judgment of the court
of appeals. Id. at 654. Eley’s petition for a writ of certiorari to the Supreme Court was
denied. Eley v. Ohio, 521 U.S. 1124 (1997).

Eley filed a petition for post-conviction relief under Ohio Revised Code
§ 2953.21 on September 20, 1996. The state court conducted an evidentiary hearing on
Eley’s competency but denied Eley’s motion for a competency determination on the
ground that he had no right to be competent in a post-conviction proceeding. The court
then denied post-conviction relief on April 1, 1999. State v. Eley, No. 86-CR-484 (Ohio
Ct. Com. Pl. Apr. 1, 1999). Eley timely appealed, but the Seventh District Court of
Appeals affirmed the trial court’s dismissal of the post-conviction petition on November
6, 2001. State v. Eley, No. 99-CA-109, 2001 WL 1497095 (Ohio Ct. App. Nov. 6,
2001). The Ohio Supreme Court declined to exercise jurisdiction over Eley’s post-
conviction petition. State v. Eley, 764 N.E.2d 1036 (Table) (Ohio 2002).

On July 12, 2002, Eley’s sister, Susan Laury, filed a notice of intent to file the
present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, along with
motions to stay Eley’s execution, to appoint counsel, and for a competency evaluation
to determine if Eley was competent to waive any further appeals. The district court
entered a stay, but while the parties were briefing the last two motions, Eley filed a
notice of intent to file a habeas petition himself. Eley filed the petition on March 19,
2003, raising fourteen grounds for relief. See Eley v. Bagley, No. 4:02CV1994, 2006
WL 2990520, at *4 (N.D. Ohio Oct. 18, 2006). In November 2003, Eley filed a motion
to stay the habeas proceeding so that he could file a mental retardation claim in state
court pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). This claim was later denied.
On October 16, 2006, the district court denied his habeas petition on all fourteen
grounds. Eley, 2006 WL 2990520.
No. 06-4503 Eley v. Bagley Page 5

Eley timely appealed and now raises three issues. The district court granted a
Certificate of Appealability (“COA”) as to the first two: (1) whether the trial court
violated Eley’s due process rights by failing to hold a competency hearing; and
(2) whether Eley’s trial counsel was constitutionally ineffective by failing to investigate
or prepare mitigating evidence for the penalty phase. We expanded the COA to include:
(3) whether the three-judge trial panel failed to consider and give effect to valid
mitigation evidence at sentencing.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214 (1996), governs all habeas petitions filed after April 24,
1996. See Lindh v. Murphy, 521 U.S. 320, 326–27 (1997). AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(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.

28 U.S.C. § 2254(d)(1)–(2).

A state court adjudication is “contrary to” Supreme Court precedent under
§ 2254(d)(1) “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 confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrives at an
opposite result.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court makes “an
unreasonable application of” Supreme Court precedent under § 2254(d)(2) “if the state
court identifies the correct governing legal rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts of the particular . . . case,” or if the court
unreasonably extends or refuses to extend existing Supreme Court precedent to new
No. 06-4503 Eley v. Bagley Page 6

factual situations where it should apply. Id. at 407. Under AEDPA, the question for this
court to answer “is not whether a federal court believes the state court’s determination
was incorrect but whether that determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Factual findings made by
the state courts based on the trial record are entitled to a presumption of correctness that
may be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Warren v.
Smith, 161 F.3d 358, 360–61 (6th Cir. 1998).

However, federal courts need not review every point of error raised by a habeas
petitioner. When a “state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the claims
is barred unless the prisoner can demonstrate cause for the default and actual prejudice
. . . or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this
circuit, to determine whether a federal claim has been procedurally defaulted, we apply
a three-prong test laid out in Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986):

First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that the petitioner failed to
comply with the rule. . . . Second, the court must decide whether the
state courts actually enforced the state procedural sanction. . . . Third,
the court must decide whether the state procedural forfeiture is an
“adequate and independent” state ground on which the state can rely to
foreclose review of a federal constitutional claim. . . .

Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin, 785 F.2d at 138).
If the state procedural rule was not complied with and that rule was an “adequate and
independent” ground for default, we may still excuse the default if the petitioner can
demonstrate “that there was ‘cause’ for him not to follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.” Maupin, 785 F.2d at 138.
In State v. Cole, 443 N.E.2d 169, 171 (Ohio 1982), “the Ohio Supreme Court held that
res judicata is a proper basis upon which to dismiss an ineffective-assistance claim in a
petition for post-conviction relief where a defendant who is represented by new counsel
on direct appeal fails to raise that claim and the basis for that claim ‘could be fairly
No. 06-4503 Eley v. Bagley Page 7

determined without examining evidence outside the record.’” Fautenberry v. Mitchell,
515 F.3d 614, 633 (6th Cir.), cert. denied, 129 S. Ct. 412 (2008). In Fautenberry, we
held that “Ohio’s application of res judicata pursuant to Cole is an actually enforced,
adequate and independent state ground upon which the Ohio state courts consistently
refuse to review the merits of a defendant’s claims.” Id.

III.

A.

We first address Eley’s claim of deprivation of due process by the state trial
panel’s failure to conduct a competency hearing. “The due-process right to a fair trial
is violated by a court’s failure to hold a proper competency hearing where there is
substantial evidence that a defendant is incompetent.” Filiaggi v. Bagley, 445 F.3d 851,
858 (6th Cir. 2006) (citing Pate v. Robinson, 383 U.S. 375, 385–86 (1966)). A
defendant can be adjudged competent to stand trial if he has “sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the proceedings against
him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). “[E]vidence of
a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion
on competence to stand trial are all relevant in determining whether further inquiry is
required, but . . . even one of these factors standing alone may, in some circumstances,
be sufficient.” Drope v. Missouri, 420 U.S. 162, 180 (1975).

Eley argues that there was significant evidence of his incompetency at trial and
therefore the three-judge trial panel should have held an evidentiary hearing on his
competency, even after his counsel withdrew a request for one. Eley points to various
facts in the record to support this assertion. In depositions and affidavits taken to
support his state post-conviction petition, Eley’s trial counsel reported that Eley often
rambled about abstract religious ideas instead of cooperating with forming a defense.
They further stated that Eley often had difficulty communicating with counsel because
of his below-average intelligence and education. At the penalty phase of trial, Eley’s
unsworn statement to the court was a series of biblical quotations from the Book of
No. 06-4503 Eley v. Bagley Page 8

Romans. Eley contends that his mental incompetence directly resulted in his refusal to
accept a plea offer that would have resulted in his serving six years in prison. During
his post-conviction proceedings, the Ohio post-conviction trial court held a competency
hearing, at which Dr. Jeffrey Smalldon, a clinical psychologist, testified that Eley was
inclined to make “pseudophilosophical statements that were often couched in religious
terms, often very difficult to understand.” Smalldon also suspected that Eley may have
suffered from brain damage—possibly due to having had a forceps delivery, to his
abusive upbringing, or boxing as an adolescent—although due to Eley’s failure to
cooperate, Smalldon could not confirm any of his suspicions. Eley contends now that
there was sufficient evidence to give the trial judges cause to suspect that he was
incompetent to stand trial.

The Ohio Supreme Court considered and rejected this argument. The court first
held that Eley had waived his right to a competency hearing “knowingly and
intelligently” after having requested one. Eley, 672 N.E.2d at 650. This holding is
problematic. As the Supreme Court warned in Pate v. Robinson, “[I]t is contradictory
to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’
his right to have the court determine his capacity to stand trial.” 383 U.S. at 384.
However, in the alternative, the Ohio Supreme Court held that even if the waiver were
invalid, “any error by the trial court in not conducting a hearing was harmless, since the
record fails to reveal sufficient indicia of incompetency.” Eley, 672 N.E.2d at 650.
According to the court, Eley had failed to cite any portion of the record that revealed
“any suggestion of incompetency.” Id.

Because evidence at trial did not suggest that Eley was incompetent, we cannot
find that the Ohio Supreme Court’s decision on this issue was unreasonable. The test
for whether the trial court erred in not holding a proper hearing is whether a reasonable
judge in that position would have “experienced doubt with respect to competency to
stand trial.” Filiaggi, 445 F.3d at 858. The state trial record reveals the following.
During a suppression hearing held less than a week before trial, Eley testified to his
recollection of the confession he gave police. His answers on both direct and cross-
No. 06-4503 Eley v. Bagley Page 9

examination were cogent and show that he had an understanding of his objective at the
hearing. Nothing in the record suggests Eley was incompetent during the guilt phase of
trial. At the penalty phase, Eley gave a brief, unsworn statement that consisted of
nothing but Bible verses. While the statement was perhaps unusual, it does not suggest
a lack of competency. Nor does the penalty phase testimony about Eley’s limited
education and low intelligence suggest that Eley was incompetent. Moreover, the state
trial court was aware of Darnall’s opinion that Eley was competent to stand trial.

Much of the evidence that Eley provides to suggest his lack of competency was
generated nearly a decade after his trial. For example, in preparation for his state post-
conviction action, Smalldon reported that Eley may have had brain damage due to head
injuries suffered during Eley’s youth. Further, Smalldon reported that he was unable to
obtain hard test data to corroborate various opinions he had formed because Eley was
uncooperative during his examination. Smalldon’s report was not made until 1996, and
he did not testify at a hearing until January 1997, roughly a decade after the trial.
Although Smalldon believed that many of the factors that led him to his conclusions
“perhaps” would have affected Eley in the same way at the time of trial, he was only
able to conclude that there were serious questions about Eley’s competency “at present,”
meaning in 1996–1997. Smalldon’s assessments did not speak to Eley’s competency at
the time of trial, which is the relevant legal inquiry. For similar reasons, depositions
from Eley’s trial counsel during post-conviction proceedings indicating counsel’s
frustration with Eley’s uncooperative nature and religious beliefs during trial do not
satisfy the test laid out in Filiaggi.

Retroactive determinations of competency are difficult, and any such
determination must be based on “‘evidence derived from knowledge contemporaneous
to trial.’” Bowers v. Battles, 568 F.2d 1, 4 (6th Cir. 1977) (quoting Connor v. Wingo,
429 F.2d 630, 637 (6th Cir. 1970)). The evidence proffered by Eley from the state post-
conviction proceedings has virtually no probative value. The psychological evaluation
of Eley performed by Darnall just before Eley’s sentencing hearing, which concluded
he was sane and competent, is far more probative of his competency at trial than
No. 06-4503 Eley v. Bagley Page 10

examinations conducted nearly ten years later. Although the Ohio Supreme Court’s
holding was that the failure to conduct a competency hearing “was harmless,” the
decision was still based on the critical finding that “the record fails to reveal sufficient
indicia of incompetency.” Eley, 672 N.E.2d at 650. This finding did not involve an
unreasonable application of clearly established Supreme Court precedent, and we
therefore affirm the district court on this issue.

B.

Eley’s second claim is that his counsel performed ineffectively by failing to
investigate and present adequate mitigating evidence at the penalty phase. He argues
that his counsel relied too heavily on the Presentence Investigation Report (“PSR”) and
therefore decided not to interview much of Eley’s family. Eley also argues that counsel
failed to present important social history evidence, such as his difficult upbringing,
history of alcohol and drug abuse, and employment background. Further, Eley contends
that his defense was further undermined by counsel’s failure to request an independent
psychological evaluation by a qualified mitigation psychologist. According to Eley,
counsel’s failures resulted in the state courts’ not fully considering potentially mitigating
factors such as his true remorse for his actions or possible mental defects.

The district court found that Eley had not raised any of these arguments until his
state post-conviction petition, where the Ohio court held that the claims were barred by
res judiciata. Eley, 2006 WL 2990520, at *28. Therefore, the district court held that
this claim was procedurally defaulted. Id. A review of the state court opinions reveals
this is only partially true. The state post-conviction court found that only a portion of
Eley’s claim—that counsel was ineffective for not hiring a toxicologist or
pharmacologist—was barred by res judicata because it was not based on evidence
outside the record and therefore could have been raised on direct appeal. Eley, 2001 WL
1497095, at *10. However, the court of appeals did reach the rest of Eley’s ineffective
assistance claim on the merits and found that he had not shown that any evidence
uncovered by further investigation would have not been cumulative to the evidence
No. 06-4503 Eley v. Bagley Page 11

disclosed in the PSR. Id. at *9, *12. Therefore, we review the rest of his claim of
ineffective assistance of counsel on the merits.2

The Supreme Court set forth the test for ineffective assistance of counsel in
Strickland v. Washington, 466 U.S. 668 (1984). To establish this claim, Eley must show
(1) that his counsel’s performance was deficient, and (2) that the deficiency prejudiced
his defense. Id. at 687–88. To prove deficiency, Eley must show that “counsel’s
representation fell below an objective standard of reasonableness.” Id. Prejudice can
be shown by proving “that there is 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. at 694. Counsel’s failure to reasonably investigate a defendant’s
background or present mitigating evidence to the jury at sentencing can constitute
ineffective assistance. Wiggins v. Smith, 539 U.S. 510, 522–23 (2003); Williams, 529
U.S. at 395–96.

When assessing whether an attorney’s mitigation investigation was deficient, we
consider “not only the quantum of evidence already known to counsel,” but also whether
that evidence should have led “a reasonable attorney to investigate further.” Wiggins,
539 U.S. at 527. To demonstrate prejudice, Eley must show that any new evidence
differs “in a substantial way—in strength and subject matter—from the evidence actually
presented at sentencing.” Fautenberry, 515 F.3d at 626 (citation and internal quotation
marks omitted). “[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.” Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007) (quoting Broom v.
Mitchell, 441 F.3d 392, 410 (6th Cir. 2006)) (internal quotation marks omitted). The
Ohio Court of Appeals’s treatment of this claim hinged on this last issue—the court
found that Eley could not show the new evidence he proffered was more than merely
cumulative of what was presented at mitigation. Ohio lists the “history, character, and

2
“Out of an abundance of caution,” the district court did reach the merits of this claim in the
alternative and rejected it. See Eley, 2006 WL 2990520, at *28–31.
No. 06-4503 Eley v. Bagley Page 12

background” of the offender as a statutory mitigating factor. Ohio Rev. Code Ann.
§ 2929.04(B).3 Therefore, the facts Eley claims counsel should have presented could be
probative of further mitigation.

At the mitigation hearing, Eley first offered the testimony of several law
enforcement officials. A sergeant with the Mahoning County Jail testified that Eley had
not violated any rules or regulations before or during trial. Two officers with the
Youngstown Police Department testified that Eley appeared remorseful at the time he
admitted responsibility for his actions. Eley’s mother, Cecilia Joseph, and sister, Susan
Laury, testified that Eley had difficulty with school and dropped out when he was sixteen
years old. Eley then enlisted in the Job Corps and received training to be a welder, and
Joseph and Laury testified that Eley sent his mother money to support her training for
a nursing degree. Joseph testified that Eley was church-oriented and often attended
church near her home. Joseph and Laury both testified to Eley’s poor relationship with
his father and step-father. Once Eley’s father and mother divorced, when Eley was
around fourteen, Eley’s father stopped seeing him. One Christmas, Joseph’s second
husband—Eley’s step-father—became violent with Joseph and Laury. Eley attempted
to stop his step-father from strangling his mother by stabbing him. Joseph and Laury
testified that although Eley was typically a quiet, sweet, and gentle person, his habitual
use of drugs and alcohol often led to his becoming a different person when he was
impaired. Darnall, a state psychologist and witness, testified that Eley had a chronic
history of both alcohol and polysubstance abuse.

In the state post-conviction proceeding, Eley presented additional mitigating
evidence that counsel had failed to uncover at his sentencing hearing. Joseph testified
that Eley underwent a forceps delivery at birth. A former girlfriend testified that Eley
was addicted to heroin in the 1970s and had been a binge drinker. Eley’s step-mother
testified she knew Eley had been “eating aspirin” as early as the second or third grade.
Eley’s younger sister testified that the family rarely ate nutritional meals when Eley was

3
Although the statute has undergone a minor stylistic change, the version in effect in 1987, when
Eley was sentenced, is in all relevant respects identical to the present version. See, e.g., State v. Glenn,
564 N.E.2d 701, 711 (Ohio 1986).
No. 06-4503 Eley v. Bagley Page 13

growing up, which she believed may have affected him later in life. Several witnesses
testified that Eley became violent or belligerent when he was drinking.

The Ohio Court of Appeals recounted the applicable standard under Strickland.
It wrote that although “[i]t is the obligation of counsel to make reasonable investigations
. . . [a] particular decision not to investigate must be examined for reasonableness under
the circumstances with strong measures of deference to counsel’s judgments.” Eley,
2001 WL 1497095, at *9. After reviewing the evidence presented at the sentencing
phase of trial, the court concluded that “a quantum of information contained in the
affidavits appears to be repetitive of evidence presented by trial counsel at the mitigation
stage.” Id. As for the evidence of a forceps delivery, the court found this evidence to
be “of the type that would normally be rejected by three judge panels when weighing
mitigating factors.” Id. Therefore, the court concluded that Eley had shown no
prejudice. Id. Later, when discussing trial counsel’s alleged overreliance on the PSR,
the court repeated its prior conclusion that counsel’s behavior was “not unreasonable
considering the fact that [the PSR] uncovered similar evidence that would have been
uncovered had a specific investigation been conducted.” Id. at *12.

We cannot find that this conclusion was an unreasonable application of federal
law. The record shows that counsel prepared and questioned several witnesses,
including both law enforcement and family. The question of whether counsel conducted
an “adequate investigation” is governed by a “‘presumption of reasonableness imposed
by Strickland [and is] hard to overcome.’” Beuke v. Houk, 537 F.3d 618, 643 (6th Cir.
2008) (quoting Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir. 2001)). To the extent
that trial counsel failed to further investigate Eley’s upbringing or history of drug and
alcohol abuse—that is, to the extent counsel’s performance was deficient—Eley cannot
show that this failure prejudiced his ability to prove mitigating circumstances. Although
the evidence presented at the post-conviction hearing did go into more depth than the
evidence presented by trial counsel at sentencing, it did not cover any new subject matter
and was not substantially more persuasive than the trial evidence. Much of what Eley
claims should have been presented at the sentencing hearing was, in fact, presented, as
No. 06-4503 Eley v. Bagley Page 14

counsel elicited testimony regarding Eley’s difficult upbringing, employment history,
drug and alcohol addictions, and good behavior in prison. Therefore, we find that Eley’s
second claim is without merit, and we affirm the judgment of the district court on this
issue.

C.

Finally, Eley claims that his Eighth and Fourteenth Amendment rights were
violated by the three-judge trial panel’s failure to properly consider valid mitigation
evidence at sentencing. He maintains that the panel did not consider the evidence he
presented regarding his difficult upbringing, his history of drug and alcohol abuse, his
low intelligence level, and his remorse for the crime.4 Eley supports this claim by noting
that the panel’s discussion of mitigating factors in its sentencing opinion is devoid of any
mention of this evidence. He argues that “[t]he fact that the three-judge panel . . . did
not mention any of the previously noted evidence in mitigation is strong evidence that
such factors were not properly considered.” Therefore, according to Eley, when the trial
judges excluded the evidence from their consideration, they violated the Supreme
Court’s ruling in Eddings v. Oklahoma, 455 U.S. 104 (1982). Further, Eley argues that
the omission of reference to the evidence violates Ohio Rev. Code Ann. § 2929.03(F),5
which sets forth the content required in a sentencing opinion, thus violating his due
process rights under Hicks v. Oklahoma, 447 U.S. 343 (1980).

In Lockett v. Ohio, the Supreme Court held that “the Eighth and Fourteenth
Amendments require that the sentencer, in all but the rarest kind of capital case, not be

4
Eley also claims the court should have considered that he was under strong duress when he
committed the crime, that he cooperated with law enforcement, and that he had undergone a religious
conversion since the homicide. However, Eley did not fairly present these sub-claims to the state courts,
and he is therefore barred from raising them here. See O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999);
Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir. 1985).
5
Ohio Revised Code § 2929.03(F) states in relevant part:
The court or the panel of three judges, when it imposes sentence of death, shall state in
a separate opinion its specific findings as to the existence of any of the mitigating
factors set forth in division (B) of section 2929.04 of the Revised Code, the existence
of any other mitigating factors, the aggravating circumstances the offender was found
guilty of committing, and the reasons why the aggravating circumstances the offender
was found guilty of committing were sufficient to outweigh the mitigating factors.
No. 06-4503 Eley v. Bagley Page 15

precluded from considering, as a mitigating factor, any aspect of a defendant’s character
or record and any of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” 438 U.S 586, 604 (1978). In that case, the Ohio
death penalty statute did not permit the sentencing judge to consider factors such as the
defendant’s character, prior record, and age. See id. at 597, 606, 608. The Court
extended this holding in Eddings; just as the statute may not restrict certain factors from
being considered as mitigation, the sentencing judge cannot, as a matter of law, refuse
to consider appropriate evidence either. 455 U.S. at 108–09, 114–17. “The sentencer[s]
. . . may determine the weight to be given relevant mitigating evidence. But they may
not give it no weight by excluding such evidence from their consideration.” Id. at
114–15.

If a trial court considers unconstitutional aggravating factors, the Supreme Court
has held that this error can be cured by the state appellate court “by independently
‘reweighing’ aggravating and mitigating factors and reaching a sentence without the
consideration of the factors found impermissible at the trial level.” See Lundgren v.
Mitchell, 440 F.3d 754, 783 (6th Cir. 2006) (citing Clemons v. Mississippi, 494 U.S. 738,
740 (1990)).

In this case, Eley is correct that the trial court’s sentencing opinion is somewhat
sparse in its analysis of the mitigation evidence.6 However, Eley’s conclusion that the
court’s lack of detail amounts to a refusal, as a matter of law, to consider any of his
mitigating evidence is not logical. Although the trial court did not elaborate on the
precise evidence it had considered, its opinion does state that it gave careful and
complete scrutiny of all the mitigating factors, which implies at least that it did not

6
The extent of the trial court’s analysis was quite limited. The court first quickly recounted each
category of mitigating factor provided by statute and summarily concluded that none of them applied to
Eley’s case. It then concluded:
Upon full, careful and complete scrutiny of all the mitigating factors setforth [sic] in the
statutes or called to the Court’s attention by defense counsel in any manner and after
considering fully the aggravating circumstances, which exist and have been proven
beyond a reasonable doubt, the Court concludes that the aggravating circumstances do
outweigh all the mitigating factors, advanced by the Defendant, beyond a reasonable
doubt as is required by [Ohio Rev. Code Ann. §] 2929.03(D)(3).
State v. Eley, No. 86-CR-484, at 4 (Ohio Ct. Com. Pl. July 21, 1987).
No. 06-4503 Eley v. Bagley Page 16

explicitly refuse to consider relevant evidence. As the Ohio Court of Appeals noted, and
as recounted above, the trial court heard evidence on all of the mitigating factors that
Eley claims were absent from its consideration. See State v. Eley, No. 87 CA 122, 1995
WL 758808, at *5–6 (Ohio Ct. App. Dec. 20, 1995).

Moreover, even if the trial court did err in its weighing of the aggravating and
mitigating factors or by not following Ohio statutory procedural requirements, both the
Ohio Court of Appeals and the Ohio Supreme Court cured the error by carefully and
independently reweighing the evidence. The court of appeals considered not only the
mitigation evidence Eley claims was ignored, but it also considered additional evidence
of Eley’s head injuries, the possibility of residual doubt, the fact that Eley’s co-defendant
went unpunished, whether the prosecution committed misconduct, and whether the trial
court improperly admitted gruesome photographs. Id. at *24–26, *29–30. The court of
appeals concluded that “the aggravating circumstance [Eley] was found guilty of
committing outweighs the mitigating factors in this case.” Id. at *30. The Ohio
Supreme Court did the same thing. It found “nothing in the nature and circumstances
of the offense to be mitigating [because] Eley participated in a robbery where, under the
circumstances, a murder was likely to occur.” Eley, 672 N.E.2d at 653. It found Eley’s
history, character, and background to be entitled to only “modest weight.” Id. The court
gave “some weight” to Eley’s “longstanding devotion and care for his family” and the
fact that “Eley has shown remorse.” Id. at 654. Nonetheless, the Ohio Supreme Court
also concluded that “the aggravating circumstance outweighs the mitigating factors
beyond a reasonable doubt.” Id.

Because, under Baston v. Bagley, 420 F.3d 632, 637 (6th Cir. 2005), any defect
in the trial court’s sentencing was cured by the appellate courts’ reweighing of the
evidence presented on direct appeal, we affirm the district court on this issue.

IV.

For the reasons set forth above, we affirm the judgment of the district court and
dismiss Eley’s petition for a writ of habeas corpus.
No. 06-4503 Eley v. Bagley Page 17

_________________

DISSENT
_________________

CLAY, Circuit Judge, dissenting. Petitioner’s counsel rendered ineffective
assistance of counsel in violation of the Sixth Amendment by failing to adequately
investigate and prepare mitigating evidence for the penalty phase of Petitioner’s trial.
I would therefore vacate Petitioner’s sentence and remand for proceedings consistent
with this opinion.1

To establish that counsel was ineffective at the penalty phase under Strickland
v. Washington, 466 U.S. 668, 687-88 (1984), Petitioner must show that: (1) counsel’s
performance was deficient, and (2) the deficiency prejudiced his defense.

I. Trial Counsel’s Deficient Performance2

Because the Ohio Court of Appeals analyzed Petitioner’s ineffective assistance
claim only under the prejudice prong of Strickland and did not determine whether
Petitioner’s counsel’s investigation constituted deficient performance, this Court
examines this element of Petitioner’s claim de novo. Rompilla v. Beard, 545 U.S. 374,
390 (2005). To demonstrate that counsel was deficient, Petitioner must establish that
“counsel’s representation fell below an objective standard of reasonableness,” measured
against “prevailing professional norms.” Strickland, 466 U.S. at 688.

With respect to representation at the penalty phase of capital cases, the Supreme
Court has referred to the American Bar Association (“ABA”) Guidelines concerning
death penalty cases as “‘guides to determining what is reasonable.’” Rompilla, 545 U.S.
at 387 (quoting Wiggins v. Smith, 539 U.S. 510, 524 (2003) (quoting Strickland, 466

1
Petitioner has failed to make a sufficient showing on his claims that the state trial court’s failure
to conduct a competency hearing violated his due process rights and that the state trial court’s refusal to
consider mitigating evidence violated his Eighth or Fourteenth Amendment rights. Thus, this dissent will
not address these claims.
2
Because I agree with the majority that Petitioner’s claim of ineffective assistance of counsel is
not procedurally defaulted–except as to Petitioner’s claim that counsel was ineffective for failing to hire
a toxicologist or pharmacologist, which is not at issue here–I have proceeded directly to the merits of
Petitioner’s claim.
No. 06-4503 Eley v. Bagley Page 18

U.S. at 688)). See also Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009) (noting that
“[r]estatements of professional standards [such as the ABA Guidelines] can be useful as
‘guides’ to what reasonableness entails . . . to the extent they describe the professional
norms prevailing when the representation took place”); Hamblin v. Mitchell, 354 F.3d
482, 486 (6th Cir. 2003) ( noting that the Supreme Court has held that “the ABA
standards for counsel in death penalty cases provide the guiding rules and standards to
be used in defining the ‘prevailing professional norms’ in ineffective assistance cases”).
According to the ABA Guidelines, in capital cases, “investigations into mitigating
evidence ‘should comprise efforts to discover all reasonably available mitigating
evidence and evidence to rebut any aggravating evidence that may be introduced by the
prosecutor.’” Wiggins, 539 U.S. at 534 (citing ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989)) (emphasis in
original). The Court has further noted that “among the topics counsel should consider
presenting are medical history, educational history, employment and training history,
family and social history, prior adult and juvenile correctional experience, and religious
and cultural influences.” Id. (emphasis omitted).

Although decisions regarding the investigation of mitigating evidence often
involve strategic choices, counsel’s strategic decisions must be supported by a “thorough
investigation.” Strickland, 466 U.S. at 690. When counsel decides to limit their
mitigation investigation, their strategic choices made after this limited investigation “are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Id. at 691. Accordingly, “the deference owed to counsel’s
strategic judgments about mitigation is directly proportional to the adequacy of the
investigations supporting such judgments.” Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.
2008) (citing Wiggins, 539 U.S. at 521). “In assessing the reasonableness of [attorneys’]
investigation, however, a court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead . . . reasonable
attorney[s] to investigate further.” Wiggins, 539 U.S. at 527. However, the Supreme
Court has also instructed that “hindsight is discounted by pegging adequacy to ‘counsel’s
perspective at the time’ investigative decisions are made, and by giving a ‘heavy
No. 06-4503 Eley v. Bagley Page 19

measure of deference to counsel’s judgments.’” Rompilla, 545 U.S. at 382 (quoting
Strickland, 466 U.S. at 689, 691) (citations omitted).

On appeal, Petitioner argues that his trial counsel were ineffective during the
penalty phase of his trial in several ways. First, Petitioner maintains that “counsel were
ineffective in their mitigation investigation in that they did not talk to most of
[Petitioner’s] family.” (Pet.’s Br. at 25). With respect to those family members with
whom counsel spoke, Petitioner argues that trial counsel failed to “adequately investigate
and prepare” them prior to the mitigation hearing. (Id.) Petitioner also faults trial
counsel for relying on a pre-sentence investigation report without performing further
investigation.

The record, including the testimony of witnesses during mitigation and the post-
conviction deposition of John Schultz, one of Petitioner’s trial attorneys, shows that
Petitioner’s attorneys consulted Petitioner’s family, Dr. Darnall, and another mental
health expert, Dr. Morrison. They also reviewed the Adult Parole Authority’s pre-
sentence investigation report and requested a pre-sentencing psychological examination,
although they did not review any of Petitioner’s medical or school records. Schultz
testified that, “in hindsight,” he “probably would have hired a mitigation expert to assist
him,” (J.A. at 910), but noted that mitigation was “relatively new” and not many lawyers
were experienced in it at the time of Petitioner’s trial. (J.A. at 879).

From these sources, counsel knew the following: (1) Petitioner had a history of
difficulty in school and was a “slow learner” with a low I.Q. and at times had trouble
communicating with people; (2) Petitioner was generally a nice and non-violent person
who helped family around the house and got along well with children; (3) Petitioner had
a poor relationship with his step-father and had at one point stabbed him when his step-
father attempted to choke both his mother and sister in a drunken rage; (4) Petitioner had
several juvenile incidents, including a knife fight and, as an adult, had numerous
convictions for theft, assault, breaking and entering, and “drunk and disturbance;” and
(5) Petitioner had a history of serious drug and alcohol abuse.
No. 06-4503 Eley v. Bagley Page 20

At mitigation, Petitioner’s counsel presented six witnesses, including two
detectives who indicated that Petitioner was remorseful and one correctional facility
officer who testified regarding Petitioner’s good behavior while incarcerated. Each of
these witness’ testimony takes up less than three pages in the sentencing transcript.
Although it appears counsel may have spoken to at least two additional family members,
counsel indicated that their testimony was “largely indicative” of the testimony already
offered. (J.A. at 1587).

Based on the affidavits submitted by Petitioner’s other family members and
acquaintances, however, it appears that trial counsel failed to contact several family
members and friends. See Johnson v. Bagley, 544 F.3d 592, 600 (6th Cir. 2008)
(concluding that counsel’s failure to interview the petitioner’s mother constituted
deficient performance because the interview could have provided further information
as to how her own drug addiction affected the petitioner’s childhood). The record fails
to indicate that Petitioner’s counsel asked for additional names from Petitioner’s mother,
sister, and brother-in-law, or from state officials who were familiar with Petitioner as a
result of Petitioner’s contact with the criminal justice system. See id. (highlighting
counsel’s failure to ask witnesses who were interviewed for additional sources of
mitigation witnesses in finding that counsel was deficient). Nor did counsel seek to
contact officers who were involved in the preparation of Petitioner’s pre-sentence report
or his case more generally.

Counsel also did not seek the court’s permission to retain a mitigation expert.
While counsel’s failure to use a mitigation expert itself does not constitute deficient
performance, their failure to obtain the information that a mitigation expert would
gather—information regarding Petitioner’s childhood, early school years, substance
abuse, interactions with family, and contact with the criminal justice
system—demonstrates the deficiency of counsel’s performance. See Jells, 538 F.3d at
495 (citing Williams v. Taylor, 529 U.S. 362, 397 (2000)) (concluding that counsel had
“an obligation to fully investigate the possible mitigation evidence available”).
“Counsel’s decision not to expand their investigation” and to rely on the pre-sentence
No. 06-4503 Eley v. Bagley Page 21

investigation report to fulfill this obligation to investigate was objectively unreasonable.
Wiggins, 539 U.S. at 524.

Trial counsel chose not to conduct an independent investigation into Petitioner’s
medical and academic background, instead choosing to rely on the pre-sentence report.
Counsel’s own observations of Petitioner and their knowledge of his significant alcohol
and drug abuse, however, should have prompted them to investigate his medical records.
Like the information presented in the records provided to counsel in Wiggins, the report
of Dr. Darnall and counsel’s own knowledge should have prompted them to further
investigate Petitioner’s medical records and history of drug use, particularly since their
mitigation strategy was to show the profound influence drug and alcohol abuse played
in Petitioner’s life.3 See Wiggins, 539 U.S. at 524. In light of the broad spectrum of
mitigation evidence Ohio law permits a defendant to present, the fact that counsel
focused only on Petitioner’s family members in locating potential mitigating evidence
constitutes an abject failure to fully investigate the possible mitigation evidence
available. See id.

Accordingly, trial counsel’s performance during the mitigation phase fell below
“prevailing professional norms” and constituted deficient performance under Strickland.

II. Prejudice Prong of Strickland

Because the Ohio Court of Appeals reached the merits of the prejudice prong of
Petitioner’s ineffectiveness claim, we review this prong under the deferential standards
of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996) (“AEDPA”) to determine whether the state court unreasonably applied
Strickland and related cases to Petitioner’s claim. Under Strickland, Petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a

3
In addition, defense counsel’s presentation at trial failed to reflect Petitioner’s history of drug
and alcohol abuse. Instead, it consisted mainly of family and detectives noting that Petitioner was a good
person who helped his family and was just “slow.” Significantly, the probation officer and Petitioner’s
former girlfriend, both of whom testified at Petitioner’s post-conviction proceedings, would have provided
the information regarding the significant influence of alcohol in Petitioner’s life.
No. 06-4503 Eley v. Bagley Page 22

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Thus, counsel’s ineffective performance “does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at
690. In the specific context of a capital case, a petitioner establishes prejudice when
“there is a reasonable probability that, absent the errors, the sentencer—including an
appellate court, to the extent it independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating factors did not warrant death.”
Id. at 695. The Supreme Court has directed courts to “evaluate the totality of the
available mitigation evidence—both that adduced at trial, and the evidence adduced in
the habeas proceeding.” Williams, 529 U.S. at 397.

At the penalty phase of the trial, Petitioner’s counsel presented six witnesses in
mitigation. A sergeant at the Mahoning County Jail testified that Petitioner had not
violated any rules while incarcerated. Two officers in the Youngstown Police
Department who were present at Petitioner’s confession testified that Petitioner appeared
remorseful during his confession. Petitioner’s mother and sister testified that Petitioner
was a slow learner, had trouble with drugs and alcohol, had no relationship with his
father, and had a troubled relationship with his step-father.4 In addition, they testified
that Petitioner was a nice and non-violent person, gave the family money that he earned
while in the Job Corps, and was religious. Petitioner’s brother-in-law testified that
Petitioner was not violent, helped around the house, and helped his son who had a
learning disability. Dr. Darnall, the psychologist who performed the § 2929.03(D)(1)
examination following trial, submitted a report to the court and also testified during
mitigation. According to the report, Petitioner sustained several head injuries in his
youth, including a hospitalization for a fractured skull at age twelve, a Full Scale I.Q. of
82 corresponding to the 12th percentile, and a reading level equivalent to grade 7.5. In

4
Specifically, they described an altercation that occurred on Christmas, which resulted in
Petitioner stabbing his step-father. Petitioner’s step-father had returned from drinking and, after
Petitioner’s older sister talked back to him, he began choking her. When Petitioner’s mother interfered,
Petitioner’s step-father directed his anger towards her, attempting to choke Petitioner’s mother. To stop
his step-father, Petitioner stabbed his step-father in the shoulder with a kitchen knife.
No. 06-4503 Eley v. Bagley Page 23

addition, Dr. Darnall testified that Petitioner had a chronic history of abuse of both
alcohol and polysubstances, which qualified as a mental disorder.

During the state post-conviction proceedings, Petitioner’s counsel presented
testimony and affidavits from a number of witnesses who did not testify during trial,
including Petitioner’s former live-in girlfriend, his step-mother, a second sister, a
physician, and state officials involved in Petitioner’s case. This testimony largely
focused on the severity of his drug abuse, the effect alcohol and drugs had on his
behavior, the possible effect of head injuries, a forceps delivery and poor nutrition on his
brain, his good behavior during previous incarcerations, and the greater role that his co-
defendant played in the crime.

Noteworthy among the additional evidence presented during post-conviction
proceedings were affidavits of state officials involved in the prosecution of Petitioner’s
case. Gary Trammel, the parole officer who prepared the pre-sentence investigation
report, stated that he had supervised Petitioner and his brothers for several years and that
Petitioner never gave him any problems. According to Trammel, Petitioner was not
violent and “this crime was . . . totally out of character for him. [Petitioner] was a person
who just could never get his act together. Drugs and alcohol were the major factors for
all the trouble that he would get himself into.” (J.A. at 798). He noted that Petitioner
always did well while incarcerated and under supervision. Trammel further stated:

In preparing the presentence report, I could not personally put down a
death sentence recommendation. I still do not think that a death sentence
is the appropriate punishment for [Petitioner]. The death-sentence
recommendation was put in the presentence report pursuant to
prosecuting attorney Gary Van Brocklin.

(J.A. at 799). As with other post-conviction affidavits, Trammel noted that he was
available and ready to testify, but that [Petitioner’s] trial attorneys never contacted him
regarding “[his] opinions as to [Petitioner’s character] or [his] recommendation for a
sentence other than death.” (Id.) In addition to Trammel’s affidavit, the prosecuting
attorney, Gary Van Brocklin, submitted an affidavit stating his feeling that “Melvin
No. 06-4503 Eley v. Bagley Page 24

Green planned the aggravated robbery and that [Petitioner] was a follower.” (J.A. at
804).

Based on the testimony and affidavits submitted during post-conviction
proceedings, Petitioner argues that he was prejudiced because his trial counsel failed to
present important mitigating evidence. While much of the evidence discovered during
post-conviction proceedings did not differ dramatically in subject matter or persuasive
value from the evidence presented at sentencing, the testimony of Officer Trammel
would have been reasonably likely to affect the sentencer’s judgment as to whether death
was warranted. At mitigation, counsel presented the testimony of three state officials–a
guard at the prison where Petitioner was housed who testified to Petitioner’s behavior
while incarcerated, and two officers present during Petitioner’s confession who testified
that Petitioner appeared remorseful and took responsibility for his actions. Counsel did
not present the testimony of any officers who knew about Petitioner’s background or
character as a result of Petitioner’s previous contact with the criminal justice system, nor
did they present the testimony of any officers who were closely involved in the
preparation of Petitioner’s case. Had counsel interviewed the parole officer who
prepared the pre-sentence report rather than simply relying on the report without
investigation, they would have discovered that Trammel was prepared to testify on
Petitioner’s behalf as to why he did not think death was warranted. The source of this
testimony–the fact that it would have been from a law enforcement officer charged with
preparing the case against Petitioner–is crucial. Testimony about Petitioner’s
background or character from his family members or doctors may not have had the same
effect on the sentencer as testimony from an officer involved in his prosecution. Rather
than being cumulative, such supportive testimony from Trammel would have
“present[ed] a more sympathetic picture of [Petitioner]” that could have resulted in a
finding of prejudice. Jells, 538 F.3d at 500.

Accordingly, the Ohio courts unreasonably applied Strickland by finding that
there is not “a reasonable probability that, absent the errors, the [three-judge panel] . . .
No. 06-4503 Eley v. Bagley Page 25

would have concluded that the balance of aggravating and mitigating factors did not
warrant death.” Strickland, 466 U.S. at 695.

CONCLUSION

Because counsel’s investigation into mitigating evidence was deficient and there
is a reasonable probability that, absent the insufficient investigation, the sentencer would
have concluded that Petitioner should not have been sentenced to death, I would vacate
Petitioner’s sentence and remand for proceedings consistent with this dissent. I would
leave Petitioner’s conviction undisturbed.