Awkal v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0098p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
ABDUL AWKAL,
-
Petitioner-Appellant,
-
-
No. 01-4278
v.
,
>
-
Respondent-Appellee. -
BETTY MITCHELL,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 00-00252—Donald C. Nugent, District Judge.
Argued: October 22, 2008
Decided and Filed: March 16, 2009
Before: MOORE, COLE, and GILMAN, Circuit Judges.

_________________

COUNSEL
ARGUED: R. Brian Moriarty, Cleveland, Ohio, for Appellant. Laurence R. Snyder,
OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
ON BRIEF: Kevin M. Cafferkey, LAW OFFICES, Cleveland, Ohio, Thomas F. O’Malley,
Jr., LAW OFFICE, Cleveland, Ohio, for Appellant. Jonathan R. Fulkerson, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Michael L. Collyer, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which COLE, J., joined.
GILMAN, J. (pp. 20-30), delivered a separate dissenting opinion.
_________________

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. In 1992, an Ohio jury convicted
Petitioner-Appellant, Abdul Awkal (“Awkal”), of two counts of aggravated murder with
prior calculation and design with mass-murder and firearm specifications. The trial court

1
No. 01-4278 Awkal v. Mitchell Page 2

sentenced Awkal to death as recommended by the jury. Awkal now appeals the district
court’s decision to deny his petition for a writ of habeas corpus. We granted a certificate of
appealability allowing Awkal to raise claims of ineffective assistance of counsel at the guilt
and penalty phases and of prosecutorial misconduct.

We hold that Awkal’s counsel provided ineffective assistance at the guilt phase of
trial by calling an expert witness who testified that Awkal was sane at the time of the
murders, an opinion that directly contradicted Awkal’s only defense. Because we
REVERSE the district court’s judgment based on this conclusion, we do not decide whether
Awkal’s counsel was ineffective at the penalty phase of trial or whether the prosecutor’s
statements implying that Awkal would be set free if the jury found him not guilty by reason
of insanity constituted prosecutorial misconduct. Accordingly, we REVERSE the district
court’s judgment and REMAND this case with instructions that the district court issue a
conditional writ of habeas corpus requiring Awkal’s release unless the State of Ohio
commences a new trial within 180 days from the date that this judgment becomes final.

I. BACKGROUND

In 1992, Awkal was tried in Ohio state court for the shooting deaths of his wife,
Latife Awkal, and her brother, Mahmoud Abdul-Aziz. Awkal was convicted of two counts
of aggravated murder with prior calculation and design with mass-murder and firearm
specifications. After the penalty phase of trial, the trial court followed the jury’s
recommendation and sentenced Awkal to death. On direct appeal, the Ohio Supreme Court
described the facts of the case as follows:

On January 7, 1992, appellant, Abdul Hamin Awkal, shot and killed
his estranged wife, Latife Awkal, and his brother-in-law, Mahmoud
Abdul-Aziz, at the Family Conciliation Services Department of the
Cuyahoga Domestic Relations Court. Appellant was captured in the
courthouse basement not far from where the shooting took place.
Awkal arrived in the United States from Lebanon about 1984, when
he was twenty-four. He lived with family members in Detroit, Michigan,
and worked as a dishwasher and gas station attendant. In 1985, Awkal
suffered a mental breakdown at the gas station after he believed he had been
accused of theft by his employer. He became hysterical, cursing and
breaking things, vomited and then collapsed. He was taken to Detroit
Medical Center in a straitjacket. Awkal was apparently released into his
No. 01-4278 Awkal v. Mitchell Page 3

brother’s custody later that same day, but disregarded instructions to follow
up with a psychiatrist.
Later, Awkal began working at a General Motors factory in
Michigan. He was eventually transferred to the Chevrolet plant in Parma,
Ohio. He had difficulty sleeping during this period, and was prescribed
medication to help him sleep.
Awkal’s family arranged for him to meet his wife, Latife, after his
arrival in Cleveland. This type of arranged marriage was common in his
Islamic faith. Awkal’s need for sleeping pills diminished after he met his
wife. Awkal and Latife were married under Islamic law in March 1989 and
under Ohio law in April 1989. Later in 1989, Awkal went to Cleveland
Metropolitan General Hospital complaining of numbness down his side.
Although Awkal was again told to talk to a psychiatrist, he never did so.
Awkal and Latife had a daughter, Zaynab, born in September 1990.
On their honeymoon, Latife told Awkal she did not love him, but
that she understood that love would follow. He unsuccessfully attempted to
improve their relationship by opening a bank account for her, teaching her
to drive, encouraging her to attend school, and helping her parents with
various household tasks.
Latife and her brothers felt that Awkal was not a good Muslim.
Awkal did not spend sufficient time in daily prayer and he enjoyed music
and celebrating Christian holidays, such as Christmas. Latife and her
brothers did not listen to music, or celebrate Christian holidays, and prayed
five or six times a day. Latife’s brother, Mahmoud Abdul-Aziz, tried to
teach Awkal the tenets of their family’s Islamic faith, but Awkal viewed
Mahmoud’s actions as interference with his freedom, and believed that he
was harassed and threatened by Mahmoud because of his religious beliefs.
Awkal’s marital life was dissolving. Latife spent many nights away
from Awkal and eventually asked for an Islamic divorce. According to
Awkal, a Muslim husband may divorce his wife merely by telling her, “I
divorce you, I divorce you, I divorce you.” Awkal granted her request on
October 13, 1991, but then Latife agreed to remarry him under Islamic law.
Latife felt that she had been shamed and that her baby had been made
illegitimate by the divorce.
On October 16, 1991, Latife found out that she had contracted a
venereal disease from Awkal. The next day, Latife moved out of the marital
home, moved in with Mahmoud, and started divorce proceedings. A divorce
complaint and motions for spousal support, child support, visitation and
restraining orders were filed in October 1991. Latife talked of returning to
Lebanon with the baby.
Awkal was hurt by his family problems and sought counseling, but
declined medication. Awkal had counseling sessions four times in
November 1991, because he was depressed and suicidal. These feelings
were brought on by the divorce and Awkal’s belief that Latife’s brothers and
their religion had interfered with his life and his marriage. Awkal’s
psychological records reflect that he was very angry with Latife and her
brothers because of the divorce.
No. 01-4278 Awkal v. Mitchell Page 4

On November 8, 1991, Awkal bought a nine-millimeter
semi-automatic pistol, allegedly to defend himself from Latife’s brothers.
The evening of that same day and the morning of the next, Awkal called
Latife and her brother, Omar Abdul-Aziz, threatening to kill her and her
entire family if the divorce was not dismissed. Latife reported the call to her
divorce attorney, who sent a letter to Awkal’s attorney regarding the threats.
Awkal attended hearings in his divorce case on December 10, 17,
and 19, 1991, without incident. During this period, Awkal and Latife agreed
to a child visitation schedule and temporary child and spousal support. At
Latife’s insistence, the visitation order prohibited Awkal from participating
in any Christmas-related activities with the baby during his visitation.
Awkal also agreed that the family checking accounts, containing
approximately $4,800, which had been frozen by the domestic relations
court, were to be equally divided between Latife and Awkal.
A meeting was scheduled for 2:00 p.m. on January 7, 1992, at the
Family Conciliation Services Department, Room 52, located in the basement
of the old Cleveland courthouse. Latife came early to the meeting with her
brother, Mahmoud, and her baby. They waited in the hall outside for Awkal
to arrive.
Awkal arrived at the courthouse parking garage at 1:48 p.m. from
Michigan, where he had spent the weekend with relatives. On his person
were copies of the baby’s medical records, which had been checked out from
the treating HMO over a month earlier, and numerous childcare supplies,
including diapers, baby food, and clothing. Prior to the meeting, Awkal
wrote a check to his brother for nearly the entire contents of the frozen
checking accounts, and changed his address at the post office to his brother’s
house in Michigan.
Awkal confronted Mahmoud and Latife in the hallway at
approximately 2:00 p.m. No harsh words or raised voices were heard from
the hall before the shooting. However, “panicky” voices were heard
immediately before the three entered Room 52. Awkal chased Latife and
Mahmoud into the room, where he shot his wife and her brother at close
range. Five shell casings were found inside the room; one shell casing was
found in the hall outside the room.
Awkal then picked up the baby from the bench outside the room and
walked quickly through the basement halls of the courthouse with her in his
arms. Several armed deputies confronted Awkal in the hallway. Awkal
pointed his gun at his head and then at his daughter’s head, threatening to
kill her and then himself. Awkal vowed that nobody was going to take his
baby.
When a deputy tried to grab Awkal’s gun, Awkal backed further
down the hall with the baby. While proceeding down the hall, Awkal was
confronted by another deputy, who attempted to disarm Awkal. Awkal
evaded this attempt, but was shot in the back while trying to escape.
When Awkal was taken into custody, his pistol was cocked, ready
to fire, and contained six live rounds (one in the chamber; five in the
magazine). Awkal also had another magazine containing thirteen rounds of
No. 01-4278 Awkal v. Mitchell Page 5

live ammunition in his coat pocket. The bullets retrieved from Mahmoud’s
body and from Room 52 were fired from Awkal’s gun.
At the hospital the next day, Awkal, after being advised of his
Miranda rights, told police that he had confronted Mahmoud in the hallway
and demanded that Mahmoud “profess that Allah was the only God.” When
Mahmoud did not do so, Awkal shot the victims. Awkal stated that he
thought that he had shot himself.
Awkal was indicted on two counts of aggravated murder with prior
calculation and design, including the multiple-murder death penalty
specification. He was also indicted on two counts of felonious assault,
including a firearm specification. Awkal pled “not guilty” and “not guilty
by reason of insanity” to the charges against him.
While awaiting evaluation by a court-appointed psychiatrist to
determine whether he was sane and competent to stand trial, Awkal
reportedly had hallucinations involving his wife, who spoke to him and told
him to join her. Two psychiatrists had examined Awkal at the county jail
and found him to be depressed and angry. Awkal was prescribed
anti-depressant and anti-anxiety drugs. These drugs did not stop him from
having the hallucinations, and he was prescribed different anti-psychotic and
anti-depressant medications.
Awkal was found sane at the time of the murders in the preliminary
sanity report. However, the severity of his depression rendered him
incapable of aiding with his defense, and the trial court found Awkal not
competent to stand trial. He was ordered to the Dayton Mental Health
Center, Forensic Unit, for treatment and further evaluation. During his stay
in Dayton, Awkal continued to receive anti-psychotic medication, but at
greater levels. He was also placed on anti-depressant and anti-anxiety
medications. On September 3, 1992, the trial court found Awkal competent
to stand trial, but returned him to Dayton for further treatment until the trial
started.
In October 1992, a jury was impaneled. During the trial, defense
counsel complained to the court that Awkal’s condition had deteriorated and
suggested that a new competency evaluation be undertaken. The trial court
refused to have Awkal reevaluated, but stated that it would watch Awkal
closely to see that he was paying attention to the trial and helping with his
own defense. After the state closed its case in chief, the trial court dismissed
one of the felonious assault charges.
Several witnesses testified on Awkal’s behalf during the guilt phase.
Dr. Paul E. Hewitt, a psychologist, was called to give an opinion on the issue
of prior calculation and design. However, when the court learned that Dr.
Hewitt was not a licensed psychologist in Ohio, his testimony was stricken
from the record. Dr. Magdi S. Rizk, the psychiatrist who conducted
Awkal’s pretrial sanity and competency evaluations, testified that Awkal
was sane at the time of the murders. Finally, Dr. Eileen S. McGee, a
psychiatrist awaiting board certification, testified that Awkal was insane at
the time of the shooting, that he did not know what he did was wrong, and
that Latife and Mahmoud had provoked the incident.
No. 01-4278 Awkal v. Mitchell Page 6

Awkal testified on his own behalf. He stated that Mahmoud and
Latife’s other brothers were religious fanatics, and had harassed him and
interfered in his life. Awkal testified that he purchased the gun to protect
himself from Latife’s brothers, who had threatened him and, on one
occasion, forced him to kneel down before them, swearing allegiance to their
religious sect. He denied threatening Latife or her brother.
Awkal stated that on the morning in question he met Latife in the
hallway of the courthouse, and asked her to come back to him. She refused,
and he went back to his car to get his gun, intending to kill himself in front
of Latife to make her regret her decision to divorce him. When Awkal
returned he asked Latife if he could hug his daughter one last time. Latife
agreed, but Mahmoud confronted Awkal, stating that the baby was not
Awkal’s, and that Awkal would never see her again. Awkal testified that
Mahmoud’s face “turn[ed] into that of a monster” and that the walls then
collapsed. The next thing Awkal knew, he awoke in the hospital.
On rebuttal, the prosecution presented Dr. Edward Dutton, a forensic
psychiatrist, who testified that Awkal was malingering, that he understood
what he had done was wrong, and that he had acted out of anger.
The jury found Awkal guilty as charged on the aggravated murder
charges, but not guilty on the remaining felonious assault charge.
Several witnesses, including Drs. Paul Hewitt, Eileen McGee, and
Salah Samy, testified on Awkal’s behalf during the penalty phase. Dr.
Hewitt testified that Awkal’s problems were part of a life-long anxiety
problem, and believed that Mahmoud’s threats and religious fanaticism were
extremely strong provocation and had facilitated the shooting. Dr. Hewitt
believed that Awkal’s reaction was spontaneous and that he did not have the
ability to conform his conduct to the requirements of Ohio law when he
committed the murders.
Dr. McGee testified that the religious interference of Mahmoud and
his brothers was a strong provoking force in the murders. Dr. McGee also
testified that Awkal’s reaction was triggered by Mahmoud’s provocation,
and that Awkal did not have the ability to conform his conduct to the
requirements of the law of Ohio when the murders occurred.
Dr. Samy, Awkal’s treating psychiatrist in Dayton, testified that
Awkal was not malingering, and that he lost his judgment and control and
awareness of what he was doing just prior to the murders. Dr. Samy testified
that Awkal was not sane at the time of the murders. Dr. Samy also believed
that Latife and Mahmoud facilitated the incident.
Awkal gave an unsworn statement, in which he explained his
childhood situation, his religious problems with his brothers-in-law, and how
these religious problems caused his marital problems. He also talked about
how after Mahmoud’s face became that of a monster, the walls collapsed
down upon him. The next thing Awkal knew, he woke up in the hospital.
The prosecution rebutted this testimony with Dr. Edward Dutton,
who believed that Awkal was malingering.
No. 01-4278 Awkal v. Mitchell Page 7

The jury found Awkal guilty of the aggravated murder charges and
recommended death. The trial court agreed and imposed the death penalty.
The court of appeals affirmed the decision of the trial court.

State v. Awkal, 667 N.E.2d 960, 963-66 (Ohio 1996). Awkal’s convictions were affirmed
on direct appeal. Id. at 966; see also State v. Awkal, 1995 WL 229123 (Ohio Ct. App. 1995).
The Ohio courts also denied Awkal’s petitions for post-conviction relief. See State v. Awkal,
708 N.E.2d 209 (Ohio 1999); State v. Awkal, 1998 WL 827585 (Ohio Ct. App. 1998).

In 2000, Awkal filed a petition for a writ of habeas corpus in the United States
District Court for the Northern District of Ohio. The district court denied Awkal’s petition
and did not grant a certificate of appealability. We granted a certificate of appealability
permitting Awkal to raise claims of ineffective assistance of counsel and prosecutorial
misconduct. In 2004, during the pendency of his habeas petition, we received a letter from
Awkal containing a motion to terminate his appeal. After holding a number of evaluations
and hearings to explore Awkal’s psychological status, the district court determined that
Awkal was not competent to terminate his appeals. We now review Awkal’s ineffective-
assistance and prosecutorial-misconduct claims.

II. ANALYSIS

A. Standard of Review

When considering a habeas petition, “[w]e review the legal basis for a district court’s
dismissal of a § 2254 petition de novo and the court’s factual findings underlying its analysis
for clear error.” Davis v. Coyle, 475 F.3d 761, 766 (6th Cir. 2007). Awkal filed his habeas
petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), so our review is subject to its constraints. Carter v. Mitchell, 443 F.3d 517, 524
(6th Cir. 2006). AEDPA sets the following standard for our review:

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
No. 01-4278 Awkal v. Mitchell Page 8

(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).

The Supreme Court has explained these standards as follows:

Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decides a case differently than
this Court has on a set of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas court may grant the writ
if the state court identifies the correct governing legal principle from this
Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.
Terry Williams v. Taylor, 529 U.S. 362, 412-13 (2000); see also Thompkins v. Berghuis, 547
F.3d 572, 580 (6th Cir. 2008). We have held that “clearly established law under [AEDPA]
encompasses more than just bright-line rules laid down by the [Supreme] Court. It also
clearly includes legal principles and standards enunciated in the Court’s decisions.” Taylor
v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002).

B. Claims of Ineffective Assistance of Counsel

Awkal contends that he received ineffective assistance of counsel at the guilt and
penalty phases of his trial. At trial, Awkal’s sole defense was that he was not guilty by
reason of insanity. Awkal argues that his attorney’s guilt-phase performance was ineffective
because his attorney failed to present a competent mental-health expert to support this
defense. Awkal also asserts that he received ineffective assistance of counsel at the penalty
1
phase of his trial because his attorney failed to present certain mitigating evidence.

1
In both his guilt- and penalty-phase claims of ineffective assistance, Awkal argues that he was
denied his constitutional right to an appropriate expert under Ake v. Oklahoma, 470 U.S. 68 (1985). Even
assuming that this claim is not procedurally defaulted and that it falls within the scope of the certificate
of appealability, we conclude that it would not succeed on the merits.
In making this claim, Awkal relies heavily on Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000).
In Skaggs, the defendant asserted an ineffective-assistance claim and a claim that he had been denied due
process under Ake. Skaggs, 235 F.3d at 267 n.2. Skaggs based both of these claims on the fact that
defense counsel had chosen a fraudulent and erratic psychiatrist to assist in Skaggs’s defense. Id. This
court explained that the two claims are distinct: “[O]ur concern under Ake is with the actions of the [State]
and whether Skaggs had ‘access to a competent psychiatrist’ in preparation of his defense. . . . The fact that
defense counsel failed to engage a competent psychiatrist to testify on Skaggs’s behalf, however, is
significant to Skaggs’s ineffective assistance of counsel claim.” Id. Awkal makes no clear argument that
the state, rather than his own counsel’s errors, denied him access to a competent expert. The record shows
No. 01-4278 Awkal v. Mitchell Page 9

1. Clearly Established Federal Law

To succeed on his ineffective-assistance claims, Awkal must first demonstrate
that his counsel’s performance was deficient, namely that his “counsel’s representation
fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S.
668, 688 (1984). Next, Awkal must show that this deficiency resulted in prejudice by
“show[ing] 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. Finally,
because our review of this case is controlled by AEDPA, Awkal must “show that the
[Ohio Supreme Court] applied Strickland to the facts of his case in an objectively
unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699 (2002).

2. Ineffective Assistance of Counsel at the Guilt Phase

a. Deficient Performance

At trial, Awkal’s sole defense to the murder charges that he faced was that he
was not guilty by reason of insanity. During the guilt phase of trial, Awkal’s counsel
attempted to present the testimony of three expert witnesses to support this defense: Dr.
Paul E. Hewitt (“Hewitt”), Dr. Magdi S. Rizk (“Rizk”), and Dr. Eileen S. McGee
(“McGee”). Hewitt testified first, but shortly after he began testifying, the trial court
determined that Hewitt was not a licensed psychologist.2 The trial court determined that
because Hewitt was not a licensed psychologist, he was not qualified to offer an opinion
regarding the sole guilt-phase issue—Awkal’s sanity at the time of the crime. The trial
court therefore excluded Hewitt’s testimony and instructed the jury to disregard the
testimony Hewitt had already provided. Rizk, a court-appointed forensic psychiatrist

that Awkal had access to McGee. The fact that she was inexperienced and may not have been the strongest
possible expert should be considered in the context of Awkal’s claim of ineffective assistance of counsel
and does not indicate that the state neglected its duty under Ake. Accordingly, to the extent that Awkal
raises a properly preserved claim of Ake error, this claim would not succeed on the merits.
2
Not only was Hewitt unlicensed, but also Hewitt had received his Masters and Ph.D. from
Century University in California, a mail-in university. Hewitt was, however, permitted to testify at the
penalty phase.
No. 01-4278 Awkal v. Mitchell Page 10

who had originally evaluated Awkal to determine if Awkal was competent to stand trial,
testified that he believed that Awkal was sane at the time of the crime. McGee, a
licensed pediatrician who had been practicing psychiatry for about a year but who was
not yet a board-certified psychiatrist, was the final expert to testify at the guilt phase.

Clearly, Awkal’s counsel’s selection of guilt-phase experts was far less than
ideal; counsel chose one unlicensed psychologist, a new and uncertified psychiatrist, and
a psychiatrist whose testimony completely undermined Awkal’s sole defense. We
conclude that counsel’s decision to call Rizk to testify at the guilt phase constituted the
deficient performance necessary to establish ineffective assistance of counsel.

The facts of Awkal’s case are comparable to those of Combs v. Coyle, 205 F.3d
269 (6th Cir. 2000). Like Awkal, Combs did not contend that he was innocent. Id. at
273. Instead, Combs’s defense was that “he was too intoxicated from alcohol and drugs
to form the requisite intent to kill the [two] women or to have committed the killings
with prior calculation and design.” Id. Combs’s counsel presented testimony that
Combs was intoxicated, but called only one expert witness, a psychologist who testified
on cross-examination that, contrary to Combs’s defense, Combs had killed intentionally.
Id. We held that Combs received ineffective assistance of counsel because “[r]egardless
of whether Combs’s counsel should have known or instead actually knew [the expert’s]
opinion regarding Combs’s intent, however, counsel’s decision to put him on the stand
was objectively unreasonable. . . . [N]ot only did [the expert’s] testimony destroy any
hope of a successful intoxication defense, but it also helped the prosecution to establish
one of the elements of its case in chief. Quite simply, this testimony was completely
devastating to the defense, and counsel’s decision to present it was objectively
unreasonable.” Id. at 288.

There are no relevant distinctions between Awkal’s and Combs’s claims. Not
guilty by reason of insanity was Awkal’s sole defense. Like the psychologist in Combs,
Rizk testified about Awkal’s psychological background, including the fact that Rizk had
earlier found Awkal incompetent to stand trial. On direct examination, Rizk fought
defense counsel’s questions and testified that Awkal did not experience hallucinations
No. 01-4278 Awkal v. Mitchell Page 11

at the time of the crime. Defense counsel read an isolated portion of Rizk’s sanity report
dealing with Awkal’s perceptions at the time of the murders, but did not ask Rizk if he
thought that Awkal was insane at the time of the crime. J.A. at 2078 (Trial Tr. Rizk
Test. at 1423). On cross-examination, Rizk unequivocally stated that Awkal was not
legally insane at the time of the crime. Rizk read a portion of his report explaining his
conclusion that Awkal was not legally insane:

[Awkal] has no past history . . . of a mental disease of psychotic
proportions, period. There is also no evidence of residual symptoms or
past psychotic clauses [sic].
At the time of the incident, which is the shooting, [Awkal] was
angry and upset and had no psychotic motive for the act. There is no
history or documentation of any bizarre behavior of the defendant
immediately prior to the act. The defendant’s belief that he saw a
monster’s face could be explained on the basis of an illusion, and
between brackets, rather than on the basis of mental illness.
At the present time the defendant is not manifesting any
symptoms of psychosis. It is my opinion that at the time of the act the
defendant did not suffer from any mental disease or defect which
impaired his ability to know the wrongfulness of his act.

J.A. at 2115 (Trial Tr. Rizk Test. at 1460). Defense counsel had this report before
calling Rizk, and even asked Rizk about a selected portion of it, but did not object to
Rizk’s reading and did not attempt to cabin its impact. J.A. at 2065, 2078, 2115-16
(Trial Tr. Rizk Test. at 1410, 1423, 1460-61). Instead, defense counsel repeatedly tried
to coax Rizk into admitting that he believed that Awkal suffered from hallucinations or
was psychotic. See, e.g., J.A. 2079-89 (Trial Tr. Rizk Test. at 1424-34). Rizk
consistently stated that no matter which medications Awkal had received and no matter
what other doctors might have thought, it was his opinion that Awkal was not psychotic,
did not suffer from hallucinations, and was sane at the time of the crime. See, e.g., J.A.
at 2079, 2102, 2107-09 (Trial Tr. Rizk Test. at 1424, 1447, 1452-54).

The fact that Awkal’s counsel possessed and referenced Rizk’s sanity report,
which stated that Awkal was sane at the time of the crime, does not change our analysis.
See J.A. at 2078 (Trial Tr. Rizk Test. at 1423). In Combs, we clearly stated that, given
the fact that the expert’s testimony completely eviscerated the sole defense, the decision
No. 01-4278 Awkal v. Mitchell Page 12

to put that expert on the stand was “objectively unreasonable,” regardless of whether
defense counsel knew or should have known the contents of that expert’s opinion.
Combs, 205 F.3d at 288. Accordingly, even though it appears that Awkal’s counsel
knew of Rizk’s opinion on sanity, we hold that it was deficient performance for Awkal’s
counsel to call as a witness Rizk, whose testimony ran counter to Awkal’s sole defense.

Our opinion in Morales v. Mitchell, 507 F.3d 916 (6th Cir. 2007), does not alter
this result. Morales’s defense was that, at the time of the crime, he could not “appreciate
the consequences of his acts or refrain from committing those acts, or understand the
difference between right and wrong.” Id. at 921 (internal quotation marks omitted).
This defense was based on a combination of Morales’s psychological problems and his
voluntary intoxication at the time of the crime. Morales’s counsel presented the
testimony of a forensic psychologist who testified that “Morales’s personality disorder,
combined with his alcohol dependency and abuse, deprived him of the ability to refrain
from or understand the wrongfulness of his actions.” Id. at 938. However, this expert
also stated that she agreed that “voluntary intoxication does not serve as a basis for the
insanity defense.” Id. at 936. We explained that “because [the expert’s] one unhelpful
comment was improperly admitted over defense counsel’s objection, we decline to hold
that trial counsel provided ineffective assistance in presenting [the expert’s] testimony.”
Id. at 938. In Morales, we distinguished Combs in part because “unlike Combs’s
counsel, Morales’s trial attorney fully ascertained his expert witness’s opinion before
trial.” Id.

Awkal’s case is analogous to Combs rather than to Morales. Like the expert in
Combs, Rizk’s testimony completely undermined Awkal’s sole defense. Rizk did testify
regarding religious friction in Awkal’s family and the fact that Rizk had found Awkal
not competent to stand trial. Though these aspects of Rizk’s testimony were not harmful
to Awkal, they did not help his defense at the guilt phase. Under Ohio law effective at
the time of Awkal’s trial, “[a] person is ‘not guilty by reason of insanity’ . . . only if he
proves . . . that at the time of the commission of the offense, he did not know, as a result
of a severe mental disease or defect, the wrongfulness of his acts.” Ohio Rev. Code
No. 01-4278 Awkal v. Mitchell Page 13

§ 2901.01(N). Therefore, the sole portion of Rizk’s testimony that was relevant at the
guilt phase was Rizk’s opinion regarding Awkal’s sanity at the time of the crime. Rizk’s
only relevant testimony was clearly, and completely, opposed to Awkal’s sole defense.
Unlike the single, isolated comment by the expert in Morales, Rizk’s testimony
thoroughly undermined Awkal’s defense and was not counterbalanced by other relevant
information that could have helped Awkal. Instead, Rizk’s testimony was akin to that
of the expert in Combs; it so devastated Awkal’s sole defense that it was objectively
unreasonable for Awkal’s counsel to call Rizk to the stand. The fact that Awkal’s
counsel knew of and had access to Rizk’s reports does not change our conclusion that
presenting an expert witness whose testimony plainly contradicts and utterly destroys
an individual’s sole defense constitutes deficient performance by counsel.

b. Prejudice3

In addition to showing that his counsel’s performance was deficient, Awkal has
shown that this deficiency prejudiced Awkal. The state presented other evidence that
Awkal was legally sane at the time of the crime and that Awkal acted with prior
calculation. For example, the prosecutor emphasized that Awkal had diapers and other
baby supplies in his car at the time of the murders, that he was arrested with a full clip
of bullets, and that he had taken steps indicating his intent to move to another area. J.A.
at 2444-50 (Trial Tr. State Closing at 1776-82). However, Awkal countered this
evidence with testimony explaining that he intended to commit suicide but that his
highly emotional mental state caused him to break with reality and kill his wife and her
brother without intent or knowledge of his own actions. Just as in Combs, defense
counsel’s unreasonable decision to present Rizk’s testimony “destroy[ed] any hope of
a successful [insanity] defense” and “was completely devastating to the defense.”
Combs, 205 F.3d at 288; see also id. at 290 (“The testimony of the sole defense expert
that Combs, although intoxicated, nevertheless acted with purpose and intent was

3
Awkal argues that his counsel’s performance was so deficient that he was constructively
deprived of counsel and that we can therefore presume prejudice under United States v. Cronic, 466 U.S.
648 (1984); see also Ivory v. Jackson, 509 F.3d 284, 295 (6th Cir. 2007). However, because we conclude
that Awkal can show prejudice sufficient to satisfy the Strickland standard, we need not decide whether
Awkal’s counsel’s errors were so severe as to constitute a constructive denial of counsel.
No. 01-4278 Awkal v. Mitchell Page 14

obviously damaging to the defense. Furthermore, [the expert’s] testimony provided the
State with its most powerful evidence of purpose.”).

Defense counsel’s decision to call Rizk was so damaging to Awkal’s defense that
even the prosecutor openly wondered why counsel made this choice. Before Rizk took
the stand, the judge, at the prompting of the prosecutor, asked Awkal’s counsel if they
had “strategic reasons for calling Dr. Rizk.” J.A. at 2064-66 (Trial Tr. at 1409-11).
Defense counsel stated that he had no duty to provide such an explanation and declined
to do so. Id. The prosecutor then stated, for the record, that defense counsel “have had
for some time the report of Dr. Rizk concerning the sanity evaluation of [Awkal].” Id.
at 2065 (Trial Tr. at 1410). Defense counsel’s choice to call an expert whose report
indicated that he would testify that Awkal had been legally sane was such an obviously
damaging decision that even the prosecutor was concerned about it. The state also
highlighted defense counsel’s damaging decision during closing argument, telling the
jury that: “Then Mr. Gill called one of our witnesses, Dr. Rizk to the stand. I am still
trying to figure that one out.” J.A. at 2457 (Trial Tr. State Closing at 1789). The judge
overruled an objection to this comment. Id. Defense counsel’s own attempt to confront
Rizk’s testimony in his closing argument included an admission that Rizk “didn’t quite
agree” with defense counsel. J.A. at 2478-79 (Trial Tr. Def. Closing at 1810-11).
Defense counsel’s decision to call Rizk caused such obvious and extensive harm to
Awkal’s case that there is a reasonable probability that, had defense counsel not called
Rizk, the jury’s verdict would have been different.

The fact that the state indicated that it would have called Rizk to testify if Awkal
had not done so does not change our conclusion that Awkal was prejudiced by his
counsel’s objectively unreasonable decision to call Rizk. See J.A. at 2097, 2457 (Trial
Tr. at 1442, 1789). The error here is not that the testimony countering Awkal’s not-
guilty-by-reason-of-insanity defense was presented at some point during trial, but rather
the fact that Awkal’s own counsel called an expert witness whose testimony completely
destroyed this defense. It is part of the normal course of a trial for the prosecution to
No. 01-4278 Awkal v. Mitchell Page 15

oppose the defendant’s position, but it is devastating for a defendant to present
voluntarily evidence that completely contradicts his entire defense.

Similarly, Awkal has shown prejudice even though his counsel called an expert
witness, McGee, who testified that Awkal was legally insane at the time of the crime.
In the normal course of a trial, prosecution and defense experts will often disagree, and
it is the jury’s place to resolve any conflict. Here, however, the two defense experts
presented diametrically opposed views on the critical guilt-phase issue. The jury could
not seriously consider or accept Awkal’s assertion that he was not guilty by reason of
insanity after Awkal’s own attorneys had given them a witness who unequivocally stated
that this defense was not applicable to Awkal. Awkal’s counsel did call an expert who
supported Awkal’s defense, but McGee’s testimony could not undo the damage caused
by defense counsel’s unreasonable decision to call Rizk.

c. Ohio Supreme Court’s Application of Strickland to These Facts

In addition to showing that his counsel’s performance was deficient and that he
was prejudiced by this deficiency, Awkal has “show[n] that the [Ohio Supreme Court]
applied Strickland to the facts of his case in an objectively unreasonable manner.” Cone,
535 U.S.at 699. After considering Awkal’s claims of ineffective assistance of counsel,
the Ohio Supreme Court concluded that “Awkal was not deprived of a fair trial by his
trial counsel. Given the evidence supporting his conviction, he was not prejudiced by
what occurred at trial.” Awkal, 667 N.E.2d at 971. The Ohio Supreme Court explained
its holding as follows:

Counsel also called Dr. Rizk to testify during the guilt phase. Dr.
Rizk is adequately qualified and has testified in numerous other similar
circumstances. However, Dr. Rizk testified that Awkal was sane at the
time of the murders. This testimony obviously damaged Awkal’s
affirmative defense that he was not sane when he committed the murders.
Yet, portions of Dr. Rizk’s testimony assisted the defense, including
testimony about religion as a basis for Awkal’s marital problems, his
medication levels, and his hallucinations.
Counsel concluded Awkal’s affirmative defense by calling Dr.
McGee, a psychiatrist. Dr. McGee was not yet board certified in
psychiatry, had no experience in forensic psychiatry, and had been
No. 01-4278 Awkal v. Mitchell Page 16

practicing psychiatry for only one year. Dr. McGee testified that Awkal,
as evidenced by his hallucinations involving his wife in his cell in
Dayton, had broken with reality at the time of the murders. This break
with reality impaired his ability to know right from wrong at the time of
the murders. Although her opinion may have been diminished by her
lack of certification and inexperience, Dr. McGee supported Awkal’s
affirmative defense.
Thus, of the three doctors called to testify for the defense, the
testimony of one was stricken from the record, one gave an opinion
contradicting Awkal’s affirmative defense but also gave other evidence
that assisted that defense, and one testified that Awkal was not mentally
responsible for his acts. However, Drs. McGee and Hewitt were called
to testify and did testify during the penalty phase of the trial, giving
pro-defense opinions. Dr. Samy also gave a pro-defense opinion in the
penalty phase.
Awkal’s counsel obviously had some plan in mind. Dr. Hewitt
conceivably could have been allowed to testify as an expert witness, and
Dr. Rizk did make an earlier finding that Awkal was incompetent to
stand trial. In hindsight it appears that Awkal may have been better
served to call only Dr. McGee during the guilt phase, and call her and the
other defense doctors during the penalty phase, if the trial would reach
that stage. However, the end result of tactical trial decisions need not be
positive in order for counsel to be considered “effective.” We do not
believe the record establishes that Awkal’s attorneys were ineffective at
trial.

Awkal, 667 N.E.2d at 971-72 (citation omitted).

This analysis and conclusion are objectively unreasonable applications of
Strickland because they fail to recognize the extent of the obvious harm caused by trial
counsel’s decision to call Rizk. The analysis also mischaracterizes Rizk’s testimony as
helpful to Awkal. Though Rizk did testify regarding Awkal’s family and psychiatric
history, these facts were irrelevant at the guilt phase. As discussed above, the only
relevant question at the guilt phase was whether Awkal was sane at the time of the crime.
Ohio Rev. Code § 2901.01(N). Accordingly, anything else that Rizk said at the guilt
phase was irrelevant and did not “assist” Awkal’s defense. Nor did it matter that Rizk
had previously found Awkal incompetent to stand trial, because that incompetency was
unrelated to Awkal’s mental state at the time of the crime. Rizk’s relevant guilt-phase
testimony obviously eviscerated Awkal’s sole defense, a fact that the Ohio Supreme
No. 01-4278 Awkal v. Mitchell Page 17

Court ignored when it assumed that Rizk’s testimony was simply one part of an overall
strategy. Once the jury heard one of Awkal’s own witnesses state that Awkal was sane
at the time of the crime, no strategy could have saved his sole defense. Because the Ohio
Supreme Court’s application of Strickland was objectively unreasonable, and because
we conclude that Awkal received ineffective assistance of counsel at the guilt phase of
trial, we REVERSE the district court’s judgment denying habeas relief.

3. Ineffective Assistance at the Penalty Phase

Awkal also argues that his counsel rendered ineffective assistance at the penalty
phase. Awkal asserts that his counsel failed to provide the jury with relevant mitigating
material, namely a 1985 police report documenting a psychotic episode that Awkal
experienced,4 and that his counsel failed to retain and use qualified mental-health
experts. The government argues that Awkal’s first claim is procedurally defaulted and
that his second is waived because was not properly raised in the district court. Because
we have reversed the district court’s judgment on the ground that Awkal received
ineffective assistance of counsel at the guilt phase, we do not decide whether his claims
of ineffective assistance of counsel at the penalty phase have been properly preserved
or whether they would succeed on the merits.

C. Claims of Prosecutorial Misconduct

Awkal’s final claim is that the prosecutor committed misconduct that deprived
Awkal of due process of law. During guilt-phase closing argument, in reference to
McGee’s expert testimony, the prosecutor stated: “[McGee] comes in here and says for
a brief moment that this guy hallucinated on January 7th and as a result of that he was
legally insane, but he is now sane, so let him walk out that door.” J.A. at 2458 (Trial Tr.
State Closing 1790). The prosecutor also characterized McGee’s decision to testify that
Awkal was insane at the time of the crime as “one of the most irresponsible acts he had
ever seen.” Id. Awkal’s counsel failed to object to these statements.

4
We note that Awkal’s trial counsel attempted to admit this report. The trial court concluded that
the report “has little or no probative value beyond the testimony regarding that incident” that Awkal had
already offered. J.A. at 2306 (Trial Tr. at 1645).
No. 01-4278 Awkal v. Mitchell Page 18

This claim is procedurally defaulted. A “question of federal law decided by a
state court” is procedurally defaulted “if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to support the judgment.
This rule applies whether the state law ground is substantive or procedural.” Coleman
v. Thompson, 501 U.S. 722, 729 (1991) (citations omitted). Because Awkal’s counsel
failed to object to the statements in question, the Ohio Supreme Court reviewed the
prosecutor’s actions for plain error. Awkal, 667 N.E.2d at 970. The Ohio Supreme
Court concluded that “[i]t was error for the prosecutor to argue that Awkal would ‘walk
out that door’ if the jury found him not guilty by reason of insanity.” Id. However,
although the Ohio Supreme Court found that this statement was intended to “inflame the
passions of the jury,” it concluded that the prosecutor’s arguments did not constitute
plain error. Id. at 970-71. The district court concluded that this claim was procedurally
defaulted and that the claim would fail on the merits even if it had not been defaulted.
J.A. at 211-12, 283-84 (Dist. Ct. Op. at 115-16, 187-88). We have held that “Ohio’s
contemporaneous objection rule constitutes an adequate and independent state ground
barring federal habeas review and that the application of plain error review constitutes
enforcement of the rule.” Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005).
Accordingly, because Awkal’s counsel failed to object to the prosecutor’s statements at
trial and because the Ohio Supreme Court applied plain-error review to this claim, the
claim is procedurally defaulted.

Because we grant Awkal’s petition for habeas on the ground that he received
ineffective assistance of counsel at the guilt phase, we do not address whether Awkal has
established the cause and prejudice necessary to excuse his procedural default of the
prosecutorial-misconduct issue.5 We do, however, note that two major errors occurred
here. First, as the Ohio Supreme Court mentioned, the prosecutor’s remark was legally
incorrect and was intended to inflame the jury’s sentiments. The prosecutor’s statements
provided the jury with false and misleading information regarding the effect of a not-

5
The fact that Awkal does not raise an argument concerning cause and prejudice in his briefs
would not preclude us from deciding whether cause and prejudice exist or from proceeding to the merits
if we found that cause and prejudice existed. Thompkins v. Berghuis, 547 F.3d at 588-89.
No. 01-4278 Awkal v. Mitchell Page 19

guilty-by-reason-of-insanity verdict, the critical guilt-phase issue in this case. The
second error occurred when Awkal’s counsel failed to object to this obviously
inflammatory and incorrect statement. Though we do not determine the merits of this
issue, we observe that both the prosecutor and defense counsel committed serious errors
which should not be repeated in this case or in others.

III. CONCLUSION

For the reasons set out above, we REVERSE the district court’s judgment and
REMAND this case with instructions that the district court issue Awkal a conditional
writ of habeas corpus requiring Awkal’s release unless the State of Ohio commences a
new trial within 180 days from the date that this judgment becomes final.
No. 01-4278 Awkal v. Mitchell Page 20

_________________

DISSENT
_________________

RONALD LEE GILMAN, Circuit Judge, dissenting. Because I disagree with
the majority’s conclusion that Awkal has satisfied the Strickland test for ineffective
assistance of counsel, I respectfully dissent.

I. INEFFECTIVE ASSISTANCE AT THE GUILT PHASE

A. Deficiency

The majority holds that Awkal has satisfied the first Strickland requirement by
demonstrating that his counsel’s performance during the guilt phase of trial “fell below
an objective standard of reasonableness.” See Strickland v. Washington, 466 U.S. 668,
688 (1984). By the majority’s reckoning, defense counsel’s presentation of Dr. Magdi
Rizk “devastated Awkal’s sole defense” when the doctor testified that Awkal was sane
at the time of the killings. (Majority Op. at 13) The only case cited by the majority in
support of this proposition is Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000).

I recognize that defense counsel’s decision to call Dr. Rizk as a witness was
questionable at best. But I am not convinced that, when considered “in light of all the
circumstances,” the decision was “outside the wide range of professionally competent
assistance.” See Strickland, 466 U.S. at 690.

Although the majority purports to find “no relevant distinctions” between this
case and Combs (Majority Op. at 11), that characterization strikes me as inaccurate. To
begin with, Combs’s counsel called only one expert witness to testify regarding the sole
defense theory—that Combs’s intoxication deprived him of the ability to form an intent
to kill. Combs, 205 F.3d at 287-88. The expert contradicted that theory when he
testified on cross-examination that Combs had acted purposefully and intentionally. Id.
at 287. Here, Awkal’s counsel presented not one but three expert witnesses at the guilt
phase of trial to testify regarding Awkal’s alleged insanity. Even though the trial court
struck the testimony of the first witness, Dr. Paul Hewitt, upon learning that he was not
No. 01-4278 Awkal v. Mitchell Page 21

a licensed psychologist in Ohio, Dr. Hewitt was allowed to testify later at the penalty
phase of the case.

Dr. Magdi Rizk testified next. On direct examination by defense counsel, Dr.
Rizk informed the jury that that Awkal had previously been found incompetent to stand
trial. He also testified about the religious friction that permeated Awkal’s interactions
with his wife and her brothers. Dr. Rizk’s testimony on direct examination was
favorable to Awkal. But, as the majority discusses in detail, Dr. Rizk contradicted the
defense’s insanity theory on cross-examination when he testified that, in his opinion,
Awkal was sane at the time of the killings.

Finally, Dr. Eileen McGee testified. She opined that Awkal was insane at the
time of the shootings and had no way of understanding that his actions were wrong. Dr.
McGee was also of the opinion that Latife and Mahmoud had provoked the incident.
Her testimony unambiguously supported the defense’s insanity theory.

The instant case is similar to Combs in that one expert witness—here, Dr.
Rizk—contributed testimony favorable to the defendant on direct examination, but
ultimately contradicted the sole defense theory when cross-examined by the prosecution.
There the similarity ends. As noted above, Awkal’s attorneys called two other experts
in addition to Dr. Rizk. Both of those experts squarely bolstered the insanity theory,
even if the testimony of one of them—Dr. Hewitt—was ultimately stricken due to his
lack of a psychologist’s license in Ohio.

Another important distinction between this case and Combs relates to the
strategic implications of defense counsel’s relative awareness of their experts’ likely
testimony. “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.
Defense counsel in Combs did not appear to have ascertained before presenting the
expert witness what that witness was actually going to say on the stand. Indeed,
Combs’s counsel admitted that he was “surprised” when the expert testified that Combs
was able to form an intent to kill. Combs, 205 F.3d at 288. This court recognized on
appeal in Combs that, “[a]lthough Combs’s counsel’s decision to present Dr. Fisher’s
No. 01-4278 Awkal v. Mitchell Page 22

testimony may be considered a strategic one, it was a decision made without undertaking
a full investigation.” Id.

Here, however, Awkal’s counsel had reviewed Dr. Rizk’s sanity report prior to
the trial. That report plainly stated that Awkal was sane at the time of the crime.
Defense counsel’s election to call Dr. Rizk notwithstanding their review of the sanity
report indicates that they made a strategic decision to do so, however questionable in
hindsight. One reasonable explanation is that, knowing that the prosecution was going
to call Dr. Rizk anyway, Awkal’s counsel opted to call him for the defense to take some
of the “sting” out his adverse opinion by being able to present his favorable testimony
first. Along similar lines, defense counsel may have felt that having Dr. Rizk discuss
Awkal’s initial lack of competency to stand trial, as well as various other mental and
emotional issues, would plant a seed of doubt regarding Dr. Rizk’s expected testimony
that Awkal was in fact sane at the time of the killings. Whatever defense counsel’s
reasoning, given their knowledge of Dr. Rizk’s opinion on the insanity issue, their
decision to call him as a defense witness rather than waiting for him to appear as the
prosecution’s witness suggests that the decision was a strategic one.

The Supreme Court has cautioned that “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.”
Strickland 466 U.S. at 689 (internal quotation marks omitted). I do not believe that
Awkal has overcome this strong presumption. He therefore cannot satisfy Strickland’s
deficiency standard.

B. Prejudice

Even assuming that Awkal has shown that his counsel was deficient, he still
cannot satisfy the second part of the Strickland ineffective-assistance test because he has
failed to show that his counsel’s deficiency prejudiced him. See id. at 691. There is no
dispute that Awkal shot his estranged wife and brother-in-law to death. His sole defense
No. 01-4278 Awkal v. Mitchell Page 23

is that he was legally insane at the time, even though the evidence overwhelmingly
indicates otherwise.

Awkal was furious at Latife and her brothers after she initiated the divorce. A
few weeks after the divorce proceedings started, Awkal bought a semi-automatic pistol.
He called Latife and her brother Omar on both the night of the purchase and the next
morning to declare that he would murder their entire family if Latife did not come back
to him. A month or so later, he checked out their baby’s medical files from the
pediatrician’s office. He also changed his address to his brother’s house and wrote his
brother a check for virtually all of the money in a court-frozen joint account that he
maintained with Latife.

Awkal arrived at the courthouse on the morning of the killings with his pistol,
copies of the baby’s health records, and a variety of childcare supplies on his person.
Once inside, he apparently remained calm and said little before firing at least five bullets
into Latife and Mahmoud at close range. Awkal then picked up the baby and proceeded
to quickly make his way towards an exit. He vowed that no one was going to take the
baby away, and he did not surrender until one of the deputies shot him in the back.

In short, nothing about the killings or the time leading up to them suggests that
Awkal was in the grips of psychosis. To the contrary, the record shows that he had
engaged in detailed planning for the killings and their aftermath. Awkal’s actions were
in fact totally inconsistent with his testimony that he had intended to kill himself in front
of Latife. I am accordingly convinced that there was little that anyone representing
Awkal could have done at trial to establish that, at the time of the killings, Awkal “did
not know, as a result of a severe mental disease or defect, the wrongfulness of [his] acts.”
See Ohio Rev. Code § 2901.01(A)(14) (setting the standard for a finding of not guilty
by reason of insanity). The majority nevertheless concludes that the decision of Awkal’s
counsel to call Dr. Rizk prejudiced Awkal because it “destroyed any hope of a successful
insanity defense.” (Majority Op. at 14 (quoting Combs, 205 F.3d at 288) (internal
punctuation omitted)) I would instead suggest that, in light of the overwhelming
No. 01-4278 Awkal v. Mitchell Page 24

evidence against him, Awkal never had any realistic hope of a successful insanity
defense.

Assuming that my view of the evidence is a reasonable one, then Dr. Rizk’s
testimony cannot be said to have singlehandedly “destroyed” Awkal’s insanity defense,
especially where the defense also presented the testimony of Dr. McGee, herself a
psychiatrist, who opined that Awkal was insane at the time of the murders. The majority
summarily argues that “McGee’s testimony could not undo the damage cause by defense
counsel’s unreasonable decision to call Rizk.” (Majority Op. at 15) But this assertion,
which the majority presents without any supporting caselaw, ignores the ability of the
jury to weigh Dr. Rizk’s testimony against that of Dr. McGee and also against the
insanity-related evidence as a whole. According to the majority’s rationale, Dr. Rizk’s
testimony was so destructive that no amount of contrary expert testimony would have
helped the defense. This implies that even if Awkal’s counsel had put up, say, five other
experts to testify that Awkal was insane, the jury could not have looked past the one
adverse opinion. I find the majority’s rationale unpersuasive.

Moreover, I do not believe that the majority has adequately accounted for the fact
that the prosecution would have called Dr. Rizk to testify that Awkal was sane at the
time of the offense if the defense had not done so first. The majority reasons that the
effect of Awkal’s own witness contradicting the insanity defense was inherently more
prejudicial that if the same witness had done so while testifying for the prosecution.
Although I have no doubt that there is some qualitative difference between the impact
of adverse testimony delivered by a defense witness and that of a witness presented by
the prosecution, the majority has not demonstrated why that distinction is so profound
as to render Dr. Rizk’s testimony per se prejudicial under Strickland. To the contrary,
I believe that the inevitability of Dr. Rizk’s testimony in this case compels the
conclusion that the trial’s outcome would have been the same regardless of which side
presented him as its witness. See Strickland, 466 U.S. at 694 (holding that prejudice is
established by showing “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”).
No. 01-4278 Awkal v. Mitchell Page 25

I thus conclude that Awkal cannot satisfy either of Strickland’s requirements for
establishing the ineffective assistance of counsel at the guilt phase of the trial. My
conclusion leads me to believe that the Ohio Supreme Court applied Strickland in a
reasonable manner. This requires me to now address the two grounds for relief that the
majority had no reason to reach in light of its holding regarding ineffective assistance
at the guilt phase. Those claims are that (a) Awkal’s counsel rendered ineffective
assistance at the penalty phase, and (b) the prosecutor engaged in misconduct at the guilt
phase of trial, thus depriving Awkal of due process.

II. INEFFECTIVE ASSISTANCE AT THE PENALTY PHASE

Awkal contends that his trial counsel rendered ineffective assistance by failing
to provide the trial court with a copy of a police report documenting his involuntary
hospitalization in 1985 and by failing to present the testimony of competent mental
health experts in support of his insanity defense at the penalty phase of the trial. The
first part of this claim is procedurally defaulted and the second part lacks merit. I will
address each part in turn below.

A. Failure to provide mitigation evidence

At the conclusion of Dr. McGee’s guilt-phase testimony, Awkal’s counsel
attempted to admit into evidence a medical report regarding Awkal’s hospitalization in
1985 following an incident at work in which he apparently had a mental breakdown and
collapsed. The trial court sustained the prosecution’s objection, reasoning that the
document was difficult to read and lacked probative value because Dr. McGee had
already testified about the episode detailed in the report. Awkal argues that his counsel’s
failure to obtain and introduce a copy of a police report relating to the 1985 incident
during the penalty phase of trial constituted the ineffective assistance of counsel.

But Awkal did not raise this allegation in state court. “Before a federal court
may grant habeas relief . . . , the prisoner must exhaust his remedies in state court. In
other words, the state prisoner must give the state courts an opportunity to act on his
claims before he presents those claims to a federal court in a habeas petition.”
No. 01-4278 Awkal v. Mitchell Page 26

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(1)(A).
“[I]f an unexhausted claim would be procedurally barred under state law, that claim is
procedurally defaulted for purposes of federal habeas review.” Alley v. Bell, 307 F.3d
380, 385 (6th Cir. 2002).

Awkal did not include this claim in his state-court appeals and is now barred by
the statute of limitations from presenting it on state post-conviction review. See Ohio
Rev. Code § 2953.21(A)(2). The claim is thus procedurally defaulted. Because Awkal
has made no attempt to establish cause and prejudice for his default, see Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (noting that a petitioner can overcome procedural
default by demonstrating “cause for the default and actual prejudice as a result of the
alleged violation of federal law,” or by demonstrating “that failure to consider the claims
will result in a fundamental miscarriage of justice”), the claim is not properly before us
for review. See Williams v. Anderson, 460 F.3d 789, 807 (6th Cir. 2006) (declining to
reach the merits of the petitioner’s claim where he failed to argue cause and prejudice
to excuse the default).

B. Retaining and using qualified mental-health experts

Defense counsel presented the testimony of three mental-health experts—Drs.
Hewitt, McGee, and Samy—during the penalty phase of trial. Awkal contends that the
presentation of these experts’ testimony during the penalty phase, along with that of Dr.
Rizk during the guilt phase, constituted ineffective assistance of counsel with regard to
mitigation evidence. I disagree.

Awkal reasons that Dr. Hewitt’s testimony during the penalty phase was a
“mockery” because Dr. Hewitt was “discredited” at the guilt phase when the trial judge
struck his testimony. The force of Awkal’s argument is diluted, however, by the fact
that the judge did allow Dr. Hewitt to testify at the penalty phase of the case. Moreover,
Dr. Hewitt gave lengthy testimony at the penalty phase about Awkal’s background,
family, troubled marriage, and religion. He testified that Awkal’s emotional state
“collapsed” on the day of the murders, that the murders were “spontaneous,” and that
Awkal was unable to appreciate the criminality of his conduct. Dr. Hewitt also testified
No. 01-4278 Awkal v. Mitchell Page 27

that Awkal was not “competent to know right from wrong or what he was doing and that
this was a spontaneous kind of thing provoked by the overall situation at the time.” This
testimony supported defense counsel’s argument that Awkal suffered from a “mental
disease or defect”—a mitigating factor under Ohio law. See Ohio Rev. Code
§ 2929.04(B)(3). Defense counsel clearly did not fall below an objective standard of
reasonableness by presenting Dr. Hewitt’s testimony on this mitigating factor. See
Strickland, 466 U.S. at 688.

Awkal next argues that trial counsel “demonstrat[ed] their complete lack of
preparation for the mitigation phase” by calling Dr. Rizk to testify at the guilt phase. He
reasons that the presentation of Dr. Rizk at the guilt stage “destroyed any meaningful
mitigation presentation because Dr. Rizk previously testified that Awkal was sane.” But
the standard under Ohio law for a plea of not guilty by reason of insanity differs from
the standard for the mental-disease-or-defect mitigating factor provided by Ohio Revised
Code § 2929.04(B)(3). State v. VanHook, 530 N.E.2d 883, 890 (Ohio 1988) (“We note
that the mitigating factor . . . utilizes the term “substantial capacity[,]” which is a term
allowing a broader range of [mental] conditions than the term “capacity” standing
alone.”). Awkal’s argument accordingly fails because Dr. Rizk’s guilt-phase testimony
did not necessarily detract from the testimony of the penalty-phase experts about
Awkal’s mental condition.

As for the testimony of Dr. Salah Samy, another psychiatrist, Awkal submits that
trial counsel completely failed to prepare Dr. Samy for his testimony. In support of this
assertion, Awkal cites Dr. Samy’s testimony that he could not give a loss-of-control
opinion without more detailed information about Awkal. Dr. Samy did, however, testify
that Awkal was not malingering and that, at the time of the shootings, Awkal had
“developed [an] acute psychotic reaction.” Awkal’s counsel did not act unreasonably
by presenting this favorable testimony.

Finally, Awkal argues that Dr. McGee “was a pediatrician, not board certified[,]
and had no experience in forensic psychiatry.” He accordingly reasons that defense
counsel acted ineffectively by presenting such an unqualified expert to testify regarding
No. 01-4278 Awkal v. Mitchell Page 28

his mental condition. But Awkal’s argument overlooks Dr. McGee’s testimony that she
had started her professional training in child psychiatry in 1986, had taken a law-school
class on forensic psychiatry, and had worked for four months with a forensic psychiatrist
in Cleveland. At the time of the trial, Dr. McGee had closed her pediatric practice, had
taken the test to become board-certified in psychiatry, and was practicing psychiatric
medicine. Seventy percent of her patients were adults.

Defense counsel did not act unreasonably by calling Dr. McGee. Her testimony
demonstrates that she was clearly qualified to act as an expert witness on Awkal’s
behalf. See Joyce-Couch v. DeSilva, 602 N.E.2d 286, 290 (Ohio 1991) (“Under Ohio
law, any doctor licensed to practice medicine is competent to testify about medical
issues.”). This court has held that “[a] licensed practitioner is generally held to be
competent, unless counsel has good reason to believe to the contrary.” Lundgren v.
Mitchell, 440 F.3d 754, 772 (6th Cir. 2006). Awkal can make no such showing
regarding Dr. McGee. Because Dr. McGee was qualified under Ohio law to give an
expert opinion, and in fact gave competent testimony that Awkal was mentally ill,
Awkal’s counsel was not constitutionally ineffective for retaining her and presenting her
testimony during the penalty phase of trial.

In sum, Awkal has failed to demonstrate that defense counsel was ineffective
during the penalty phase of his trial. I will thus move on to address his final remaining
claim regarding prosecutorial misconduct.

III. PROSECUTORIAL MISCONDUCT

During closing argument in the guilt phase of the trial, the prosecutor made the
following isolated comment about Dr. McGee’s testimony:

She comes in here and says for a brief moment that this guy hallucinated
on January 7th and as a result of that he was legally insane, but he is now
sane, so let him walk out the door.
Awkal contends that this statement constituted prosecutorial misconduct and that, as a
result, he was denied the due process of law.
No. 01-4278 Awkal v. Mitchell Page 29

The prosecutorial-misconduct claim is procedurally defaulted. Because Awkal’s
counsel made no contemporaneous objection to the prosecution’s statement, the Ohio
Supreme Court reviewed the claim under the plain-error standard. State v. Awkal, 667
N.E.2d 960, 970 (Ohio 1996). The Supreme Court denied the claim, explaining:

It was error for the prosecutor to argue that Awkal would “walk out that
door” if the jury found him not guilty by reason of insanity. First, this
statement was an incorrect statement of the law. If Awkal were found
not guilty by reason of insanity, he would have been confined to a
psychiatric facility until his sanity was restored. This statement plainly
sought to inflame the passions of the jury. However, the prosecutor’s
arguments, as a whole, although impassioned, did not deprive Awkal of
a fair trial and did not constitute plain error.
Id. at 970-71.

Awkal subsequently raised the prosecutorial-misconduct allegation in his federal
habeas petition. The district court correctly determined that the allegation was
procedurally defaulted. Federal habeas review is generally precluded where a state court
decides not to address a petitioner’s federal claims because he has failed to meet a state
procedural requirement that is independent of the federal question and adequate to
support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-730 (1991). And a
state appellate court’s plain-error review of a procedurally defaulted claim does not
waive the procedural default. Lundgren, 440 F.3d at 765.

Here, the Ohio Supreme Court invoked the state’s contemporaneous-objection
rule, explaining that “Awkal objected to neither of these alleged errors [the claim at issue
along with an unrelated prosecutorial-misconduct claim] at trial. Therefore, he has, with
the exception of plain error, waived the issues.” Awkal, 667 N.E.2d at 970. This court
has held that the contemporaneous-objection rule is an adequate and independent state
ground barring federal habeas review, Biros v. Bagley, 422 F.3d 379, 387 (6th Cir.
2005), and that plain-error review is not inconsistent with the procedural default.
Lundgren v. Mitchell, 440 F.3d at 765. Because Awkal does not advance a cause and
prejudice argument to excuse his default, the issue is not properly before us for
consideration.
No. 01-4278 Awkal v. Mitchell Page 30

IV. CONCLUSION

I respectfully dissent from the majority’s holding that Awkal has demonstrated
ineffective assistance of counsel at the guilt phase of the trial. In addition, I conclude
that Awkal’s claims regarding (a) ineffective assistance of counsel at the penalty phase
and (b) prosecutorial misconduct at the guilt phase are either procedurally defaulted or
meritless. I would therefore affirm the judgment of the district court in denying Awkal’s
petition for habeas relief.