Bobby Sheppard v. Norm Robinson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0288p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

BOBBY T. SHEPPARD, ┐
Petitioner-Appellant, │
│
│ No. 13-3165
v. │
>
│
NORM ROBINSON, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:00-cv-00493—Gregory L. Frost, District Judge.
Argued: April 29, 2015
Decided and Filed: December 8, 2015

Before: MERRITT, BATCHELDER, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Allen L. Bohnert, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Allen
L. Bohnert, Erin Gallagher Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellant. Charles L. Wille,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

KETHLEDGE, J., delivered the opinion of the court in which BATCHELDER, J., joined.
MERRITT, J. (pp. 10–17), delivered a separate dissenting opinion.

1
No. 13-3165 Sheppard v. Robinson Page 2

_________________

OPINION
_________________

KETHLEDGE, Circuit Judge. More than 20 years ago, Bobby Sheppard shot and killed
a Cincinnati store owner, Dennis Willhide, execution-style, as Willhide lay helpless on the floor
in front of him. A jury convicted Sheppard of murder, and the state trial court sentenced him to
death. Since then Sheppard has challenged his conviction and sentence on direct appeal in the
Ohio Court of Appeals and the Ohio Supreme Court; filed two petitions for post-conviction relief
in state court, which he likewise litigated all the way through the Ohio appellate courts; and filed
a federal habeas petition, whose denial he challenged in this court. In every one of those
proceedings, at every stage, the courts denied relief; and in three of those proceedings the United
States Supreme Court denied certiorari. Sheppard now seeks to reopen his federal habeas case in
light of Martinez v. Ryan, 132 S. Ct. 1309 (2012), which was decided a month before Sheppard
filed his petition for certiorari in his federal habeas case. Yet Sheppard did not even mention
Martinez in his petition. The district court denied Sheppard’s motion to reopen his case under
Rule 60(b). We affirm.

I.

Our last opinion in this case sets forth most of the relevant facts. See Sheppard v. Bagley,
657 F.3d 338 (6th Cir. 2011). Here we discuss only certain procedural facts especially relevant
to this appeal.

During the penalty phase of Sheppard’s trial, Sheppard claimed that he suffered from
paranoid schizophrenia. Sheppard’s expert, Dr. Jeffrey Smalldon, testified in detail about the
nature of paranoid schizophrenia and about his conclusion that Sheppard was schizophrenic.
After hearing all of the evidence, however, the jury recommended a death sentence.

Soon thereafter, one of the jurors, Stephen Fox, told somebody in the prosecutor’s office
that, during the penalty phase, he had asked his former landlord, Helen Jones, for a layperson’s
definition of paranoid schizophrenia. The prosecutor promptly informed the trial court, which
held an in camera hearing. There, in response to questions from the court and Sheppard’s
No. 13-3165 Sheppard v. Robinson Page 3

attorney, Fox testified that Jones had given him a “very boiled down” definition of paranoid
schizophrenia, namely, that “those kind of people just are not really in touch with reality.”
Fox further testified that Jones’s definition had not influenced his decision to vote for the death
penalty and that he had not discussed Jones’s definition with any other jurors. After hearing Fox
testify, the court found that Sheppard had not suffered any prejudice from Fox’s misconduct. The
court thereafter sentenced Sheppard to death.

Sheppard then filed a motion for a new trial and a motion for resentencing, arguing
among other things that his sentence was invalid because of Fox’s misconduct. Sheppard
attached an affidavit from Jones, in which she confirmed that she had given Fox a brief
description of paranoid schizophrenia. Sheppard App’x at 876. In response, the government
submitted its own affidavit from Jones, in which she said that her description of paranoid
schizophrenia was “totally consistent” with Dr. Smalldon’s testimony. Id. at 888. The trial court
denied the motions, finding again that Fox’s misconduct was harmless. The Ohio Court of
Appeals affirmed, as did the Ohio Supreme Court. State v. Sheppard, 703 N.E.2d 286 (Ohio
1998). The United States Supreme Court denied certiorari. Sheppard v. Ohio, 527 U.S. 1026
(1999).

Sheppard then returned to the trial court and filed a petition to vacate his sentence,
arguing that his trial counsel should have presented more evidence that Sheppard was
schizophrenic on the day he murdered Willhide. Sheppard App’x at 889, 894. The trial court
denied the petition, the Ohio Court of Appeals affirmed, and the Ohio Supreme Court denied
review. State v. Sheppard, 1999 WL 162457 (Ohio App. 1st Dist. 1999); State v. Sheppard,
713 N.E.2d 1049 (Ohio 1999). The United States Supreme Court again denied certiorari.
Sheppard v. Ohio, 528 U.S. 1168 (2000).

Sheppard then filed a second petition in state court seeking to vacate his sentence.
This time, Sheppard claimed that his trial counsel was ineffective for failing to submit “at least
some evidence, by affidavit or testimony, to support their motion for new trial on the basis of
juror misconduct.” Sheppard App’x at 1064. Specifically, Sheppard said that “counsel should
have submitted evidence from a practicing psychologist to show” that the definition of paranoid
schizophrenia that Jones had given Fox was misleading. Id. The trial court denied the petition
No. 13-3165 Sheppard v. Robinson Page 4

because Sheppard could have raised the claim in his first petition. The Ohio Court of Appeals
affirmed, and the Ohio Supreme Court denied review. State v. Sheppard, 2001 WL 331936 at *2
(Ohio App. 1st Dist. 2001); State v. Sheppard, 751 N.E.2d 483 (Ohio 2001).

In 2000, Sheppard filed a federal habeas petition, in which he alleged 15 claims for relief.
Among them was that his trial counsel was ineffective for failing to submit evidence “from an
expert” to show that Jones had given Fox a misleading definition of paranoid schizophrenia.
Sheppard App’x at 1490. Sheppard also claimed that his trial counsel should have obtained
testimony from Jones that she had told Fox more than paranoid schizophrenics are “out of touch
with reality.” R. 89 at 116-17.

In 2002, a magistrate judge held an evidentiary hearing at which Fox and Jones testified.
Fox’s testimony was mostly consistent with what he had said earlier: He testified that, before he
spoke to Jones, he had already decided to vote in favor of the death sentence and that Jones had
given him a brief layperson’s definition of schizophrenia. Sheppard App’x at 598-603. After
persistent questioning from Sheppard’s attorney, however, Fox conceded that his conversation
with Jones had made it easier for him to vote for the death sentence. Id. at 603-04. Jones herself
testified that she could not remember much of her conversation with Fox, but that she had given
him the same definition “that any person would find in the dictionary or Psych 101.” Id. at 627.
Sheppard’s attorneys also questioned Jones about her affidavit from seven years earlier, in which
she had said that the definition she gave Fox was “totally consistent” with Dr. Smalldon’s
testimony. Id. at 648. Jones initially said that she could not remember whether she had actually
read Smalldon’s testimony. Id. at 650. But later, after repeated questioning, she conceded that
she had not read it. Id. at 657.

The magistrate judge recommended that the district court find that Jones’s ineffective-
assistance claim was procedurally defaulted. Sheppard did not object, and in 2009—15 years
after he murdered Willhide—the district court denied his petition. On appeal, Sheppard did not
pursue his trial-court ineffective-assistance claim, though he pursued many others. In September
2011, this Court affirmed the denial of Sheppard’s petition. Sheppard, 657 F.3d at 348.
We refused to consider the new testimony from Jones and Fox because “[t]he testimony in
Sheppard’s evidentiary hearing was taken in violation of [28 U.S.C.] § 2254(e)(2).” Id. at 344.
No. 13-3165 Sheppard v. Robinson Page 5

In March 2012, the Supreme Court decided Martinez v. Ryan, 132 S. Ct. 1309 (2012),
which is the case that Sheppard seeks to rely on here. There, the Court held that “[i]nadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Id. at 1315. Fully a month later,
Sheppard filed his petition for certiorari but chose not to mention Martinez or any of the reasons
why he now thinks Martinez requires his case to be reopened. The Court denied Sheppard’s
petition. Sheppard v. Robinson, 132 S. Ct. 2751 (2012). At that point—after 12 years of
litigation in federal court—the judgment in his federal habeas case became final.

Yet Sheppard’s motion practice continued. Returning to the district court, Shepard filed
a motion for relief under Rule 60(b), arguing that the Supreme Court’s decision in Martinez
amounted to an extraordinary circumstance justifying reconsideration of his ineffective-
assistance claim. The district court denied the motion. This appeal followed.

II.

A.

Sheppard has already had a full round of federal habeas litigation, so a threshold question
is whether his Rule 60(b) motion should be treated as a “second or successive petition” under the
Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(b). See Gonzalez v. Crosby,
545 U.S. 524, 529 (2005). A Rule 60(b) motion “is in substance a successive habeas petition and
should be treated accordingly” if (among other things) it seeks to relitigate a habeas claim
already adjudicated on the merits in federal court, or “seeks to add a new ground for relief[.]” Id.
at 531-32. In contrast, “[i]f neither the motion itself nor the federal judgment from which it
seeks relief substantively addresses federal grounds for setting aside the movant’s state
conviction, allowing the motion to proceed . . . creates no inconsistency with the habeas statute
or rules.” Id. at 533. Thus, to avoid the application of § 2244(b), a Rule 60(b) motion must
“confine[] itself” to the “first federal habeas petition” and challenge only “a nonmerits aspect”—
e.g., a determination that a claim was time-barred or procedurally defaulted—“of the first federal
habeas proceeding.” Id. at 534.
No. 13-3165 Sheppard v. Robinson Page 6

Some aspects of Sheppard’s Rule 60(b) motion fail this test. In Sheppard’s first federal
habeas petition and brief in support, he asserted that his trial counsel had been ineffective
because of two omissions (among others) in the state trial court: first, that counsel did not
submit expert testimony to challenge the definition of paranoid schizophrenia that Jones gave to
juror Fox, see Sheppard App’x at 1490; and second, that counsel did not elicit testimony from
Jones to the effect that Fox had mischaracterized her description of paranoid schizophrenia, see
R. 89 at 117. Sheppard’s Rule 60(b) motion would add two more omissions to this list: that
counsel did not obtain from Fox an admission that his conversation with Jones made it “easier”
for him to vote in favor of a death sentence; and that counsel did not obtain from Jones an
admission that she had not read Smalldon’s testimony before submitting her affidavit to the trial
court. R. 150 at 46. Neither of those omissions were set forth in Sheppard’s first habeas
petition. (Indeed his brief in support of that petition told the district court that Sheppard’s trial
counsel “could not have reasonably anticipated” that Jones had not read Smalldon’s testimony,
R. 89 at 108-09 (emphasis added), which conflicts with Sheppard’s claim now that counsel
should have elicited an admission to that effect.) Hence Sheppard’s Rule 60(b) motion does not
confine itself to the substance of his first habeas petition, but instead tries to add new grounds for
relief. To that extent, therefore, Sheppard’s Rule 60(b) “is in substance a successive habeas
petition and should be treated accordingly.” Gonzalez, 545 U.S. at 531. Thus we will not
consider Sheppard’s claims concerning the admissions that his trial counsel allegedly should
have obtained from Fox and Jones.

That leaves Sheppard’s claims based upon the two omissions that he did allege in his
earlier petition. Sheppard’s Rule 60(b) motion is not second or successive to the extent that it
challenges the district court’s determination that these claims are procedurally defaulted. See id.
at 532 n.4. As to these claims only, therefore, we turn to the question whether Sheppard has met
the Rule 60(b) standard to reopen the district court’s judgment.

B.

We review the denial of a Rule 60(b) motion for an abuse of discretion. Henness v.
Bagley, 766 F.3d 550, 554 (6th Cir. 2014).
No. 13-3165 Sheppard v. Robinson Page 7

Sheppard argues that the Supreme Court’s decision in Martinez is reason to allow him to
reopen his federal habeas case under Rule 60(b)(6). That rule applies only if the movant shows
“extraordinary circumstances justifying the reopening of a final judgment.” Gonzalez, 545 U.S.
at 535 (internal quotation marks omitted). Per the Supreme Court, “[s]uch circumstances will
rarely occur in the habeas context.” Id.

The Court’s decision in Gonzalez governs our decision here. In Gonzalez, the district
court held that Gonzalez’s claims were time-barred under 28 U.S.C. § 2244(d). The Eleventh
Circuit denied a certificate of appealability. During the 90-day period in which Gonzalez could
have filed a petition for certiorari with the Supreme Court, however, the Court granted review in
Artuz v. Bennett, 531 U.S. 4 (2000). And in Artuz the Supreme Court rejected the same
interpretation of § 2244(d) that the district court had adopted in holding that Gonzalez’s claims
were time-barred. Citing that fact, Gonzalez filed a motion under Rule 60(b)(6), arguing that
Artuz was an extraordinary circumstance that justified reopening his habeas case. The district
court denied the motion.

For two reasons, the Supreme Court held that the district court “was correct to deny
relief.” 545 U.S. at 538. First—and here the Court used the term “extraordinary” in the sense of
“unusual”—the Court stated that it was “hardly extraordinary” that the Supreme Court adopted a
different interpretation of § 2244(d) than the district court and the Eleventh Circuit had adopted.
Id. at 536. Second—and here the Court used “extraordinary” in a more equitable sense—the
Court stated Gonzalez’s “lack of diligence” in seeking review of the district court’s interpretation
of § 2244(d) “confirms that Artuz is not an extraordinary circumstance justifying relief from the
judgment in petitioner’s case.” Id. at 537.

Similar reasons support the district court’s decision here. First, our court has already held
that the Supreme Court’s decision in Martinez and its follow-on decision in Trevino v. Thaler,
133 S.Ct. 1911 (2013) are not “extraordinary” within the meaning of Rule 60(b)(6). See, e.g.,
Henness v. Bagley, 766 F.3d 550, 557 (6th Cir. 2014) (capital case). True, Martinez recognized
a “narrow exception[,]” 132 S.Ct. at 1315, to the Court’s earlier decision in Coleman v.
Thompson, 501 U.S. 722 (1991). But Martinez did not overrule Coleman, and thus is not as
extraordinary as Sheppard suggests.
No. 13-3165 Sheppard v. Robinson Page 8

Second, like Gonzalez, Sheppard was not diligent in seeking relief from the Supreme
Court on direct review in his habeas case. Indeed Sheppard was even more derelict than
Gonzalez was. In Gonzalez’s case, during the period in which he could have sought certiorari,
the Supreme Court had merely granted review in Artuz—and yet the Court held that Gonzalez
should have filed a petition that flagged the issue and requested a remand if the Court’s decision
came out his way (which it did). 545 U.S. at 537. Here, the Supreme Court had actually issued
its opinion in Martinez a month before Sheppard filed his petition for certiorari—and yet
Sheppard never mentioned the case in his petition. Had he done so, the Court’s decision in
Gonzalez makes “indisputabl[y]” clear, the Court “would surely have granted him the
reconsideration . . . that he later sought in his Rule 60(b) motion.” Id. at 537 n.10. As in
Gonzalez, therefore, Sheppard’s “lack of diligence confirms” that Martinez “is not an
extraordinary circumstance justifying relief from the judgment in [his] case.” Id. at 537.

The Supreme Court stopped there in Gonzalez—and thus (excepting our response to the
dissent) so do we. Extraordinary circumstances within the meaning of Rule 60(b)(6) are a rarity
in habeas cases. Id. at 536. Sheppard has not shown they are present here.

Finally, we make some points in response to our dissenting colleague. First, the dissent
seeks largely to relitigate the issues we decided in Sheppard’s last appeal. The Supreme Court
denied certiorari as to those issues, and we are content to leave things where they stood last time.
Second, the dissent is mistaken as to what, exactly, we held in our last appeal. We did not hold,
as the dissent asserts throughout its opinion here, that Sheppard’s counsel in state court had been
constitutionally ineffective. Instead we held that Sheppard had not been “diligent” for purposes
of § 2554(e)(2). Sheppard, 657 F.3d at 343-44. That holding does not even roughly equate to a
holding that Sheppard’s counsel was ineffective for purposes of the Sixth Amendment—not least
because we had no reason to determine whether Sheppard had shown any prejudice within the
meaning of Strickland v. Washington, 466 U.S. 668, 694 (1984). And we would add that the
implications of Fox’s and Jones’s testimony in the federal evidentiary hearing are not nearly as
Copernican as the dissent and Sheppard think they are. See, e.g., Sheppard, 657 F.3d at 344
(“there is no reason to think that testimony given seven years after the relevant events is
necessarily more accurate or truthful than testimony given promptly after those events”).
No. 13-3165 Sheppard v. Robinson Page 9

Third, the dissent entirely overlooks that the federal courts have already entered a final
judgment denying Sheppard’s petition for habeas relief in this case. And the Supreme Court has
made clear—in a death case, no less—that the federal circuit courts must afford that judgment
profound respect. See Calderon v. Thompson, 523 U.S. 538, 556 (1998) (“A State’s interests in
finality are compelling when a federal court of appeals issues a mandate denying federal habeas
relief”).

Lastly, Gonzales is not “irrelevant[,]” Dissent op. at 15, to this case. That case’s
profile—a Rule 60(b) appeal seeking to set aside a final judgment in a habeas case on the ground
that some new Supreme Court decision is “extraordinary”—is precisely this case’s profile. So of
course we are bound to apply Gonzalez here. And it is hardly “contrive[d,]” id. at 16, to apply
the Supreme Court’s precedents in habeas cases. Faithfully applied, those precedents make clear
that—more than 20 years now after Sheppard murdered Dennis Willhide—Sheppard is not
entitled to relitigate his case yet again.

* * *

The district court’s January 14, 2013 order denying Sheppard’s Rule 60(b) motion is
affirmed.
No. 13-3165 Sheppard v. Robinson Page 10

_________________

DISSENT
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MERRITT, Circuit Judge, dissenting. There are glaring fundamental, federal
constitutional violations in this death penalty case. My colleagues must have tongue-in-cheek
when they conclude simply that “Sheppard is not entitled to relitigate his case yet again.” The
fact is that Sheppard has not had an opportunity in federal court to ever “litigate” the merits of
his Sixth and Eighth Amendment issues at all. The court has refused at each step to reach the
merits of any constitutional issue and has avoided litigating the main points of Sheppard’s case.
Procedural default has been used improperly once again to suspend the writ of habeas corpus in a
criminal case—here a capital case—in violation of Article I, section 9 (“The Privilege of the
Writ of Habeas Corpus shall not be suspended” except in cases of “Rebellion or Invasion.”).

In this death penalty case, there are four separate issues that must be discussed: First,
whether there are Sixth and Eighth Amendment violations regarding the right to confrontation
and to an impartial jury, as well as the right to a fair sentencing hearing in mitigation of the death
penalty. Second, whether these constitutional violations are procedurally defaulted and may not
be considered in federal court because Sheppard did not pursue them diligently in state court.
Third, whether the court’s “defective counsel” basis for avoiding a ruling on the merits of the
constitutional violation is itself an independent basis for issuing the writ because of ineffective
counsel. Fourth, whether, alternatively, two recent Supreme Court opinions, Martinez v. Ryan,
132 S. Ct. 1309, and Trevino v. Thaler, 133 S. Ct. 1911 (2013), allow Sheppard to overcome the
procedural default of the ineffective-assistance-of-trial-counsel issue that my colleagues in the
majority characterize as a noncognizable “second or successive petition,” and not
“extraordinary” enough to warrant relief. I will discuss these issues in order because the first
two issues provide the necessary background information for the last two issues.

I. Juror Misconduct Resulted in Sixth and Eighth Amendment Violations

The court vastly understates the effect Dr. Helen Jones’ telephone conversation had on
juror Fox’s mind set and discussions during jury deliberations. At the federal evidentiary
No. 13-3165 Sheppard v. Robinson Page 11

hearing, Fox reversed his previous state court testimony that the conversation had no effect on
his vote. Retracting that state court testimony in federal court, he said that it “must have”
contributed to the verdict. Trans. of Fed. Evid. Hr’g, June 24, 2002, at 136-37. Based on his
testimony in federal court, no reasonable person can now deny that what Jones told him during
jury deliberations influenced his position and his vote in favor of the death penalty.

Not only does the case present a clear violation of the “confrontation” and “impartial
jury” provisions of the Sixth Amendment (“the accused shall enjoy the right to . . . an impartial
jury [and] . . . to be confronted with the witnesses against him . . . .”), but it injected false extra-
judicial information into the trial. That false information undermined Dr. Smalldon’s persuasive
testimony in the mitigation phase of the case and denied Sheppard a proper sentencing hearing.
A properly bifurcated sentencing hearing is required under the Sixth Amendment. Gregg v.
Georgia, 428 U.S. 153, 190-93 (1976) (adopted from the Model Penal Code). Extra-judicial
information that negates a capital defendant’s mitigation evidence of mental illness violates the
Eighth Amendment cruel and unusual punishment provision, which requires a decision that fully
considers such mitigating circumstances. Hitchcock v. Dugger, 481 U.S. 393 (1987); Skipper v.
South Carolina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104 (1982).

The court’s answer to Sheppard’s argument that the Fox-Jones conversation clearly
violated his Sixth and Eighth Amendment rights is simply a conclusory statement that the court
will not consider it because his counsel was “plainly” not diligent in developing the factual basis
for his claim in state court, thereby precluding further investigation and review in federal court.
Sheppard v. Bagley, 657 F.3d 338, 343 (6th Cir. 2011). This is the court’s first mistake.

The court does not even mention that the state trial court did not permit counsel to further
develop the record in state court after the initial motion for a new trial in which Fox and Jones
gave the evidence that they later retracted in federal court. The record is clear that shortly after
the jury’s death verdict, an assistant district attorney in Hamilton County, Ohio, told state trial
Judge Crush that juror Fox, a neighbor, told her at a party over the weekend that he had called
Jones, whom he believed to be a psychologist. He said this occurred during jury deliberations
and that he had a conversation about Sheppard’s mitigation defense. Recognizing that this
conversation was highly improper, she advised Judge Crush. The jury had returned its death
No. 13-3165 Sheppard v. Robinson Page 12

verdict the week before. Judge Crush had an informal hearing in his chambers with counsel for
the parties in which juror Fox was apologetic for violating Judge Crush’s instruction to the jury
against discussing the case with others. At that time juror Fox did not want to tell the judge that
the conversation influenced his view of the case. He said it had “no effect” and that he had
already made up his mind before he talked to Jones. After a brief discussion, Judge Crush
immediately ruled that he would not upset the death verdict because the improper telephone
conversation was “harmless error.” They did not discuss the Sixth and Eighth Amendment
principles and case law that this extra-judicial conversation violated.

During the in-chambers hearing, Judge Crush questioned juror Fox about his call to
Helen Jones. After asking Fox a few questions, Judge Crush quickly declared himself “satisfied”
that the improper conduct by Fox had not prejudiced Sheppard’s right to a fair trial. Tr. Trans. of
May 30, 1995 (proceeding in chambers), at 1255. Sheppard’s counsel then followed up with a
few questions and informed Judge Crush that Sheppard would move for a new trial in light of the
extra-judicial contact. In response, the prosecutor asked the trial court to put down an order
stating that there could be no contact with any jurors without specific prior permission of the
court. Sheppard’s counsel stated that he thought such an order was inappropriate and that he was
entitled to contact the jurors. Judge Crush said he had already told the jurors that they did not
need to talk to anyone about the case and he intended “to keep these jurors from being pestered
with that,” and went on to opine that “the public defender’s office is almost religious in their
opposition to the death penalty. People under the influence of such conviction do not always use
good sense. I am just worried about harassing the jurors.” Id. at 1261-62. The prosecutor then
suggested that jurors only be allowed to testify under oath in open court because affidavits
“lead[] to confusion amongst jurors and witnesses.” Id. at 1263. Sheppard’s counsel objected to
any such “prior restraint” that would prohibit speaking with the jurors. Judge Crush then agreed
that the jurors could be contacted by defense counsel but only so long as the prosecutor received
advance notice and was present and allowed to question them as well. Sheppard’s counsel could
not conduct an independent investigation of the jurors. Judge Crush went on to explain that
jurors can be “manipulated,” and “[l]ots of problems com[e] from questioning jurors,” so he
“encourage[s jurors] not to [speak with counsel] because your [sic] statements can be
misconstrued.” Id. at 1264-65.
No. 13-3165 Sheppard v. Robinson Page 13

Although Judge Crush reacted negatively to defense counsel’s request to speak with
jurors, he did not foreclose Sheppard’s counsel from interviewing Helen Jones. After the initial
hearing in chambers, counsel interviewed Jones and received a brief affidavit stating that she
received a phone call from Fox “asking me for information about paranoid schizophrenia. I gave
Mr. Fox a brief description and explanation of paranoid schizophrenia.” Affidavit of Helen
Jones in Support of Motion for New Trial (Aug. 29, 1995). The prosecutor received a more
extensive affidavit from Jones stating falsely that she “thoroughly reviewed the transcript of
Doctor Jeffrey Smalldon” and “[t]he brief explanation I gave Mr. Fox of paranoid schizophrenia
was totally consistent with the testimony of Dr. Smalldon. . . . [N]othing I told [Fox]
contradicted anything testified to by Dr. Jeffrey Smalldon.” Affidavit of Helen Jones in
Response to Motion for New Trial (Oct. 1, 1995). Judge Crush denied the motion based on
Jones’ affidavits and Fox’s statement at the hearing in chambers that his extra-judicial
conversation with Jones had no effect on his vote for the death penalty. State v. Sheppard,
No.B9405527, Entry Overruling Motion for New Trial (Oct. 10, 1995). Judge Crush refused to
set the death penalty aside and grant a new trial of the sentencing phase of the case. The Ohio
Court of Appeals and Supreme Court simply affirmed the harmless error ruling.

It is undisputed that the Fox-Jones conversation interfered with the jury’s deliberations
about the mitigating effect of Sheppard’s paranoid schizophrenia on his culpability for the death
penalty. Dr. Smalldon, an expert, board-certified, experienced psychologist, testified at length
during the penalty phase of the trial. He testified about his observations during numerous
interactions with Sheppard over an eight-month period that included many psychological and
neuropsychological evaluations and tests. Dr. Smalldon also examined Sheppard’s medical and
school records and interviewed family members. Dr. Smalldon testified that many family
members told him that Sheppard’s behavior changed dramatically beginning in the fall of
1993 when Sheppard was 17 years old. Sheppard sustained a head injury in a car accident in
September 1993, which could have triggered the onset of Sheppard’s paranoid schizophrenia.
Dr. Smalldon also testified that the most common time for onset of paranoid schizophrenia is the
late teens and early twenties. Tr. Trans. of May 16, 1995, at 1075. In addition, Dr. Smalldon
testified that Sheppard had an extensive family history of mental illness on his mother’s side,
including paranoid schizophrenia. Id. at 1056.
No. 13-3165 Sheppard v. Robinson Page 14

Dr. Smalldon testified that the results from all of his testing point clearly to paranoid
schizophrenia. His testimony is persuasive. He had “no question about his diagnosis.” Id. at
1088, 1130. Dr. Smalldon’s testimony was clear that Sheppard’s illness “substantially impaired
his ability to conform his conduct to the law because of his radically compromised insight [and]
judgment . . . .” Id. at 1123. That is the mitigating evidence the Fox-Jones conversation
undermined.

Sheppard was only eighteen years and two months old when the murder occurred—only
two months past the age of “diminished culpability” that makes an adolescent ineligible for the
death penalty under the Supreme Court’s opinion in Roper v. Simmons, 543 U.S. 551 (2005). In
dicta, the Court elaborated that these reasons “do not disappear when the individual turns 18.”
Id. at 574.

II. The Court’s Ineffective Assistance of Counsel Decision

When Sheppard’s counsel attempted to pursue and reassert the constitutional claims in
the first and second state habeas corpus proceedings based on the Fox-Jones extra-judicial
conversation, Judge Crush ruled against Sheppard on grounds of “res judicata” and the Ohio
appellate courts refused to disturb earlier rulings of “harmless error.” Sheppard was, therefore,
foreclosed by “res judicata” from pursuing the issue until he filed his federal habeas petition.
Counsel was then allowed to depose Fox and Jones and call them as witnesses. It was only then
that Sheppard’s counsel could examine the witnesses and only then that they retracted and
reversed their earlier testimony. I am, therefore, unable to find a factual basis that would amount
to professional dereliction of duty and ineffective assistance of counsel. I dissented from our
court’s earlier ruling concerning counsel’s performance. Sheppard, 657 F.3d at 350.
My colleagues held, based on counsel’s access to Fox and Jones in the state proceedings, that the
retraction of their earlier “harmless error” statements in the state court should have been
presented to the state court despite the negativity of Judge Crush’s instructions and the state law
bar of “res judicata.”

Although I am not convinced of our court’s previous holding that counsel performed
below normal professional standards, there can be no doubt that that was its holding. Sheppard,
657 F.3d at 343-44. That was the first and only time that any court has made such a ruling in this
No. 13-3165 Sheppard v. Robinson Page 15

case. So the next question becomes: If the court believes Sheppard’s counsel was ineffective
and simply failed to discover and present retractions by Fox and Jones of their earlier statements
in state court, why should not the writ issue on this ground? Why would it not entitle Sheppard
to a new trial on the validity of his mental illness claim—the claim that Fox and Jones in their
extra-judicial conversation undermined and the conversation that Fox now concedes led to his
vote for the death penalty and the position he took during his discussion with other jurors during
their deliberations? It makes no sense for the court to regard its own previous definitive ruling
that Sheppard’s counsel was derelict as now constituting a “second or successive” petition barred
by 28 U.S.C. § 2244(b). It is a ruling of this court that the court is unwilling to overturn or
retract. It stands as the law of the case.

III. “Defective Counsel” Itself Basis for Writ

Neither Gonzalez v. Crosby, 545 U.S. 524 (2005), nor any other case indicates that a
federal court’s own prior holding in the same case of ineffective assistance of counsel or other
constitutional error may be procedurally defaulted as a “second or successive” petition.
Gonzalez is simply irrelevant. It is about tolling the statute of limitations in a habeas case, and
no federal court had made a finding of a constitutional violation in the case. In the case at bar
this court found counsel’s performance deficient. Sheppard then moved under Rule 60(b) that
this court had ruled that counsel was derelict and that the consequences of derelict counsel
should be the issuance of the writ as to the mitigation phase of the trial.

The court wants once again to find a way to avoid the merits of the constitutional
violations—first the Sixth and Eighth Amendment violations and now a Sixth Amendment
violation of the right to counsel. But the court itself has made a clear Sixth Amendment ruling of
ineffective counsel in its effort to avoid ruling on the merits of the Fox-Jones juror misconduct
violation. The court cannot have it both ways. Its earlier ruling is completely inconsistent with
its present ruling that ineffective counsel may not now be considered.

IV. Procedural Default Should Be Excused under Martinez v. Ryan,
132 S. Ct. 1309 and Trevino v. Thaler, 133 S. Ct. 1911 (2013)

If we accept arguendo the court’s assertion that Sheppard’s ineffective assistance of
counsel claim is barred as a “successive petition,” Trevino v. Thaler provides an alternative,
No. 13-3165 Sheppard v. Robinson Page 16

independent basis for preserving Sheppard’s right to have the court decide the ineffective
assistance claim on the merits.

Sheppard made a claim in his federal habeas petition that his trial counsel was ineffective
in the motion-for-new-trial proceedings for failing to present evidence of prejudice to overcome
Judge Crush’s finding of harmless error. The claim was held to be procedurally defaulted in the
federal habeas proceeding because the same claim was not raised at the first opportunity in state
court by Sheppard’s state post-conviction counsel in Sheppard’s first state post-conviction
petition. After the Supreme Court decided Martinez, Sheppard again raised the ineffective
assistance of trial counsel claim in a motion under Rule 60(b). Martinez and the later case of
Trevino excuse the previously-found federal habeas procedural default caused by state post-
conviction counsel’s failure to raise ineffective assistance of trial counsel in the first state post-
conviction proceeding. Although the court says that Sheppard’s claim for relief under Rule
60(b) filed after the Supreme Court’s holding in Martinez is a “second or successive habeas
petition,” Sheppard’s claim for relief under Rule 60(b) cannot be a “second or successive habeas
petition” because he is not asking to relitigate a claim already decided on the merits in the federal
habeas proceeding. Instead he is asking that the federal court’s holding that the ineffective
assistance of trial counsel claim that was found to be procedurally defaulted due to the failure to
raise it in state post-conviction proceedings be excused under the new rule announced in
Martinez and Trevino. If the earlier finding of procedural default is now excused by Martinez
and Trevino, Sheppard would be entitled to a full hearing on the merits of his ineffective
assistance of trial counsel claim. Such a hearing might well lead to a finding that the court’s own
finding of defective counsel was correct. Therefore, the writ would issue requiring a new trial of
the state sentencing hearing.

V. Conclusion

The court clearly wants to avoid issuing the writ of habeas corpus that would require a
new trial at the sentencing phase of the case. But procedural maneuvering is the only way the
court can contrive to avoid reaching the merits of either the constitutional issue regarding jury
misconduct that undermined Sheppard’s mitigation defense or the constitutional issue regarding
the right to effective counsel. In order to avoid issuing the writ by avoiding the merits of the
No. 13-3165 Sheppard v. Robinson Page 17

main constitutional issues, it became necessary for the court first to hold that counsel was not
diligent but was derelict and ineffective. Only by invoking procedural default in this way could
the court then disregard the testimony at the federal evidentiary hearing that the juror based his
vote for death on his extra-judicial conversation with an outside “expert” witness, an egregious
violation of the Sixth Amendment Confrontation Clause. But ironically this holding of defective
counsel gave rise to a further constitutional claim of ineffective assistance of counsel under the
Sixth Amendment.

Having specifically found defective representation, the court then holds that its original
procedural finding concerning representation, when repeated as a constitutional violation, has
now somehow become a “second or successive petition” requiring the court again to avoid
reaching the merits. Everything, including irony itself, has now become a casualty of procedural
default. Despite all of the constitutional violations—the Sixth Amendment confrontation and
impartial jury violations, the Eighth Amendment mitigation violation based on the jury’s
misunderstanding of paranoid schizophrenia and the Sixth Amendment ineffective counsel
violation—the court has managed to avoid reaching the merits of any constitutional claim.