NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0129n.06
No. 20-3613
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
HERSIE R. WESSON, ) Mar 12, 2021
) DEBORAH S. HUNT, Clerk
Petitioner-Appellant, )
)
v. ) ORDER
)
TIM SHOOP, Warden, )
)
Respondent-Appellee. )
Before: SUTTON, STRANCH, and NALBANDIAN, Circuit Judges.
Hersie R. Wesson, an Ohio prisoner under sentence of death, appeals the district court’s
judgment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The
district court granted Wesson a certificate of appealability (“COA”) for one issue raised in his
habeas petition. Wesson has filed an application to expand his COA to include two more issues.
In 2009, a three-judge panel convicted Wesson of two counts of aggravated murder, two
counts of attempted murder, two counts of aggravated robbery, one count of having a weapon
while under a disability, and one count of tampering with evidence. The convictions were based
on Wesson’s murder of 81-year-old Emil Varhola and attack on Emil’s 77-year-old wife, Mary,
after being invited into their home. The panel sentenced Wesson to death. On direct appeal, the
Ohio Supreme Court vacated one of Wesson’s aggravated murder convictions but affirmed his
remaining convictions and the death sentence. State v. Wesson, 999 N.E.2d 557, 584 (Ohio 2013).
In 2010, Wesson filed a state petition for post-conviction relief raising twelve grounds for
relief, which the trial court denied. The Ohio Court of Appeals affirmed, State v. Wesson, No.
25874, 2012 WL 4480109 (Ohio Ct. App. Sept. 28, 2012), and the Ohio Supreme Court denied
further review, State v. Wesson, 16 N.E.3d 682 (table) (Ohio 2014).
Case No. 20-3613, Wesson v. Shoop
In 2015, Wesson filed a second state petition for post-conviction relief raising sixteen
grounds for relief. The trial court concluded that it lacked jurisdiction to consider the successive
petition and the Ohio Court of Appeals affirmed. State v. Wesson, No. 28412, 2018 WL 1189383
(Ohio Ct. App. Mar. 7, 2018). The Ohio Supreme Court denied further review. State v. Wesson,
101 N.E.3d 464 (table) (Ohio 2018).
Also in 2015, Wesson filed his federal § 2254 habeas petition alleging six grounds for
relief: (1) his right against self-incrimination was violated when his illegally obtained statement
was introduced at trial; (2) his trial counsel rendered ineffective assistance during the guilt phase
of the trial by, among other things, failing to properly advise Wesson about his jury waiver; (3) his
trial counsel rendered ineffective assistance during sentencing by failing to investigate and present
mitigating evidence; (4) he is ineligible for the death penalty because he is intellectually disabled;
(5) his due process rights were violated by his state appellate counsel’s ineffective assistance; and
(6) the death penalty is arbitrary, cruel, and unusual, violating his Eighth and Fourteenth
Amendment rights.
The district court denied all but two of Wesson’s claims: his claim that he was
intellectually disabled (and so ineligible for a death sentence) and an
ineffective-assistance-of-counsel claim for not raising the issue. Wesson v. Jenkins, No. 5:14 CV
2688, 2020 WL 1066531 (N.D. Ohio Mar. 5, 2020). The court reserved judgment on these two
claims until it could conduct an evidentiary hearing. Id. at *63. It also granted Wesson a COA
for his self-incrimination claim. Id. at *67.
After the district court issued its decision, the parties filed a joint motion to stay the case
and remand to state court for the evidentiary hearing. The court granted the motion. Then, after
the parties agreed that Wesson could properly raise his claims relating to intellectual disability in
a second § 2254 petition following the state court proceedings, the district court dismissed those
claims without prejudice. As no other claims were pending, the court’s judgment became final,
and Wesson filed a timely appeal. Wesson also moved to stay this appeal while his state court
action is pending, but we denied the motion. Wesson v. Shoop, No. 20-3613, 2020 U.S. App.
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LEXIS 27033 (6th Cir. Aug. 25, 2020). Wesson now moves to expand his COA to include two
more issues from his habeas petition: whether his trial counsel rendered ineffective assistance by
(1) failing to properly advise him regarding his jury waiver; and (2) failing to investigate and
present mitigating evidence during sentencing.
A COA may issue only if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating
that reasonable jurists could “disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When the district court
denies a habeas petition on procedural grounds, the petitioner must show both that (1) reasonable
jurists would find it debatable whether their underlying constitutional claim is valid (i.e.
meritorious); and (2) reasonable jurists would find it debatable whether the district court’s
procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Dufresne v. Palmer,
876 F.3d 248, 254 (6th Cir. 2017).
The constitutional claims that Wesson seeks to add to his COA are both ineffective-
assistance-of-counsel claims. To establish constitutionally ineffective assistance of counsel,
Wesson must show that (1) his counsel’s performance was deficient; and (2) the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure
to investigate a defendant’s background and present mitigating evidence at sentencing may
constitute deficient performance under Strickland. See Wiggins v. Smith, 539 U.S. 510, 522–23
(2003). But counsel is not required to investigate “every conceivable line of mitigating evidence.”
Id. at 533. Nor does counsel have a constitutional obligation to present cumulative evidence at a
mitigation hearing. Lang v. Bobby, 889 F.3d 803, 815 (6th Cir. 2018). As for prejudice, a
defendant must show that, “had the jury been confronted with [the] . . . mitigating evidence, there
is a reasonable probability that it would have returned with a different sentence.” Wong v.
Belmontes, 558 U.S. 15, 20 (2009) (second alteration in original) (quoting Wiggins, 539 U.S. at
536).
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Ineffective Assistance Regarding Jury Waiver
Wesson first contends that his trial counsel incorrectly informed Wesson that his jury
waiver could not be retracted. The day after Wesson waived his right to a jury trial, his trial counsel
sent an email noting that two days before Wesson had “agree[d] to waive the jury and consent to
a panel. He changed his mind a few times since then but he has entered a waiver of jury.” R.41-1
at 166. Six years later, Wesson raised this claim in his second state post-conviction petition. With
his petition, Wesson filed an affidavit claiming for the first time that, after he signed the waiver,
he changed his mind, but counsel incorrectly told him it was too late to withdraw the waiver. Id.
at 161; see O.R.C. § 2945.05. There is no other evidence of this exchange. The state courts denied
the petition as successive and untimely. Wesson, 2018 WL 1189383 at *5; Wesson, 101 N.E.3d
464 (table). When Wesson raised the claim in his federal habeas petition, the district court
dismissed it as procedurally defaulted.
Wesson cannot show deficient performance because there is no conclusive evidence that
the alleged misstatement of law occurred. Wesson’s affidavit, signed six years after the event and
standing alone, does little to establish that the misstatement occurred. See Hoffner v. Bradshaw,
622 F.3d 487, 500 (6th Cir. 2010); Fautenberry v. Mitchell, 515 F.3d 614, 636–37 (6th Cir. 2008).
And as the district court aptly put it, the only other evidence—trial counsel’s emails with the
mitigation psychologist—does “nothing more than show what is undisputed: that Wesson wavered
in his decision about having a jury trial.” R.51 at 53. The email explained that the day before
Wesson waived his jury right, Wesson had “agree[d] to waive the jury and consent to a panel. He
changed his mind a few times since then but he has entered a waiver of jury.” R.41-1 at 166. That
does not establish that Wesson changed his mind after entering the jury waiver, much less that
Wesson ever asked to withdraw his waiver or that counsel declined such a request. Because
reasonable jurists could not debate that this claim for ineffective assistance of counsel lacks merit,
we see no reason to permit review of the district court’s dismissal of the claim as procedurally
defaulted.
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Ineffective Assistance at Sentencing
Wesson next argues that his trial counsel should have investigated and presented more
mitigating evidence during his sentencing. Counsel asked Wesson’s sister Yvette and clinical and
forensic psychologist Dr. Smalldon to testify at the sentencing hearing.
Yvette testified about Wesson’s traumatic childhood. She explained that they moved
frequently and stayed with various family members, their parents were alcoholics, their mother
drank while pregnant with Wesson and gave him alcohol to drink as a baby, their father beat him,
he witnessed his mother being beaten, and he had multiple incidents of untreated head trauma.
Smalldon testified that Wesson lives with borderline intellectual functioning; depression;
alcohol dependence; a personality disorder with passive aggressive, narcissistic, and anti-social
features; and fetal alcohol effect from his mother’s drinking during her pregnancy. He testified
that he did not have enough information to diagnose Wesson with fetal alcohol spectrum disorder,
but that Wesson’s fetal alcohol effect created similar deficits, like the inability to assess behavioral
consequences or respond to social and personal cues. Smalldon also explained that Wesson’s
various mental and physical impairments meant that Wesson was “very vulnerable to overreacting
to things that he perceives as slights or challenges to his very fragile sense of personal competence,
and in that sense I certainly think that all of those factors . . . combine to compromise his ability
to conform his conduct to the requirements of the law.” R.13-26 at 141–42.
Wesson points to other testimony and evidence that he asserts counsel should have
presented. He raised parts of this claim in his first state post-conviction petition, which was denied
as meritless. See Wesson, 2012 WL 4480109 at *7–19; Wesson, 16 N.E.3d 682 (table). Wesson
raised additional parts of this claim in his second state post-conviction petition, which was denied
as successive and untimely. See Wesson, 2018 WL 1189383 at *4–5; Wesson, 101 N.E.3d 464
(table). When Wesson once again brought the claim in his federal habeas petition, the district
court denied it—in part as meritless and in part as procedurally defaulted.
As for the parts of the claim denied as meritless, Wesson first argues that his counsel should
have presented his prison records and expert testimony regarding prison culture. This evidence,
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he claims, would have demonstrated that he could adapt well to prison if given a life sentence. In
evaluating this argument, the Ohio appellate court noted that counsel knew about the prison records
because he asked Smalldon to review them. Wesson, 2012 WL 4480109 at *10. The court
explained that counsel’s decision not to present them was reasonable because they contained
information about prior convictions as well as mixed work-performance evaluations and
information about various disciplinary infractions, including fights with other inmates. Id. at *9–
10. Wesson’s proposed expert testimony, the court added, did not explain how “the tensions of
prison life” that caused them would change if Wesson served a life sentence. Id. at *9. And it
noted that the trial court had already taken Wesson’s “cooperative conduct in jail” into account
during sentencing. Id. at *8. The court concluded that it was objectively reasonable for counsel
to decide that emphasizing Wesson’s prison records (including through expert testimony) would
do more harm than good for Wesson. Id. at *10. The district court determined that this was a
reasonable application of Strickland and not based on an unreasonable finding of fact. Reasonable
jurists could not debate the district court’s resolution of this claim.
Second, Wesson claims that his counsel should have had more lay witnesses testify about
Wesson’s life. Here are the witnesses and what they would have said in abridged form:
• Herb Wesson, Wesson’s cousin, would have testified that Wesson’s parents were
alcoholics who provided no guidance for their children, that Wesson began drinking at a
young age, and that Wesson lacked ambition.
• Deborah Wells, also Wesson’s cousin, would have testified that Wesson’s parents were
alcoholics who did not provide a stable home environment, that Wesson’s father abused
the children, that Wesson started drinking at a young age, and that Wesson was frequently
shuffled between family members.
• Edgar Lee, a former employer, would have testified that Wesson was a good, reliable
worker during the few months he worked for Lee as a handyman.
• Corbitt Norman, Wesson’s son-in-law and former fellow inmate, would have testified that
Wesson encouraged him to enroll in a prison education program, that Wesson was a
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peacekeeper and mentor in prison, and that he once saw Wesson intoxicated from “hooch,”
an alcoholic drink made in prison. R.12-14 at 46–47.
The Ohio appellate court found the proposed testimony about Wesson’s childhood largely
cumulative of Wesson’s sister Yvette’s testimony. Wesson, 2012 WL 4480109 at *14–15. It also
reasoned that Lee’s testimony would not have altered Wesson’s sentencing profile, see Strickland,
466 U.S. at 700, especially since the sentencing court already knew from Smalldon’s testimony
that Wesson had successfully held a job for a few months. Wesson, 2012 WL 4480109 at *14–15.
And it found Norman’s testimony legitimately excluded because counsel could reasonably wish
to avoid testimony about Wesson drinking in prison. Id. at *11. The Ohio appellate court also
found no prejudice because the sentencing court already gave Wesson some credit for his behavior
in prison, and it is not clear that Norman’s testimony would have tipped the scales further. Id. On
each of these claims, the district court agreed that it was reasonable to find the additional testimony
cumulative. It thus concluded that the Ohio appellate court reasonably applied Strickland in
rejecting this ineffective-assistance-of-counsel claim. Reasonable jurists could not debate the
district court’s resolution of this claim.
The concept of cumulative evidence, however, does not mean that all evidence after a
certain point is always barred. Additional witnesses’ testimony, of the type Wesson seeks to
introduce here, may present a picture of a person’s life in all of its dimensions (such as family,
work, or religion) and in the context of his community. See Rompilla v. Beard, 545 U.S. 374, 382
(2005); Wiggins, 539 U.S. at 523–24; Jells v. Mitchell, 538 F.3d 478, 495–96 (6th Cir. 2008). This
point is distinct from offering “increased specificity,” which may be cumulative. Jackson v.
Bradshaw, 681 F.3d 753, 770 (6th Cir. 2012); see also Wong, 558 U.S. at 23. Instead, it recognizes
qualitatively different domains of a person’s life which may well “differ in a substantial way–in
strength and subject matter–from the evidence actually presented at sentencing.” Hill v. Mitchell,
400 F.3d 308, 319 (6th Cir. 2005).
Third, Wesson contends that his counsel should have presented his brother’s criminal
record. Wesson claims that this would have weakened the State’s point that Wesson’s sister did
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not have a criminal record even after suffering through a similar traumatic childhood. The Ohio
appellate court found that this omission was not prejudicial. Wesson, 2012 WL 4480109 at *13–
14. It reasoned that, if the criminal record had been introduced, the State’s argument could have
been easily tweaked to make a similar (and arguably stronger) point: that Wesson was the only
one of his siblings who ever killed anyone, despite the fact that they were all raised in the same
circumstances. Id. And it added that the only evidence Wesson submitted regarding the criminal
record was unauthenticated online printouts. Id. The district court determined that the Ohio
appellate court’s decision reasonably applied Strickland. Reasonable jurists could not debate the
district court’s resolution of this claim.
Fourth, Wesson argues that his counsel should have presented better expert testimony on
the link between Wesson’s limitations and his crimes. In support, Wesson presents the affidavit
of a psychologist who agreed with Smalldon’s diagnoses but thought that Smalldon should have
focused more on Wesson’s antisocial personality disorder. The Ohio appellate court concluded
that both psychologists reached essentially the same conclusions and that it was reasonable for
counsel to rely on Smalldon’s approach, especially because the Ohio Supreme Court has frequently
concluded that evidence of antisocial personality disorder has limited mitigation value. Wesson,
2012 WL 4480109 at *18. Wesson challenged this decision in his habeas appeal, arguing that the
Ohio appellate court made an unreasonable determination of fact when it concluded that both
psychologists reached the same conclusions, because the court did not explain the differences in
their testimony, including that Smalldon did not sufficiently explain how Wesson’s limitations
contributed to his crime. The district court rejected this argument, pointing out that the distinct
emphases and levels of detail did not render unreasonable the factual finding that their conclusions
were the same. And it pointed out that Smalldon did testify about the link between Wesson’s
limitations and his crimes. The court cited Smalldon’s testimony that Wesson’s mental and
physical impairments, including his antisocial personality disorder, meant that Wesson was
“vulnerable to overreacting to things that he perceives as slights or challenges to his very fragile
sense of personal competence, and in that sense I certainly think that all of those factors . . .
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combine to compromise his ability to conform his conduct to the requirements of the law.” R.13-
26 at 141–42. The district court also agreed with the Ohio appellate court that counsel was
effective, adding that just because Wesson believes Smalldon could have testified in a slightly
different manner does not make counsel deficient. Reasonable jurists could not debate the district
court’s resolution of this claim.
As for the parts of the claim deemed procedurally defaulted, Wesson must show that
reasonable jurists could debate both the underlying merits of the claim and the district court’s
procedural ruling. Slack, 529 U.S. at 484; Dufresne, 876 F.3d at 254. Wesson fails the threshold
requirement, as no cognizable claim of ineffective assistance exists.
First, Wesson argues that his counsel should have had more lay witnesses testify about
Wesson’s life. Here are the witnesses and what they would have said in abridged form:
• Sharon Clark, Wesson’s second cousin, would have testified that Wesson had an unstable
home life and was a poor student, but was respectful and behaved himself.
• Randall Wesson, Wesson’s cousin, would have testified that Wesson’s extended family
has a history of alcoholism, that Wesson’s parents were neglectful, and that Wesson began
drinking at a young age.
• Stephen Wesson—another cousin—would have testified similarly, but only from his
younger years when he lived near Wesson. He also would have testified about an incident
when young Wesson threw rocks at other children, apparently for no reason.
As before, this testimony is largely cumulative of Wesson’s sister Yvette’s testimony about his
home life, and its omission thus did not prejudice Wesson. Reasonable jurists could not debate
that this ineffective-assistance claim lacks merit.
Second, Wesson contends that he received ineffective assistance because his counsel did
not present evidence of Wesson’s efforts to redeem himself by participating in a substance abuse
program for several months leading up to the crime. In the months before the murder, Wesson
attempted to treat his alcohol addiction at a community health center. He was sober for a time, but
relapsed about a month before the murder. Because Wesson’s efforts on this front failed, counsel
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reasonably decided that emphasizing them would do more harm than good. Reasonable jurists
could not debate that this claim for ineffective assistance of counsel lacks merit.
Third, Wesson claims that he received ineffective assistance because his counsel did not
call an expert to testify about fetal alcohol spectrum disorder (FASD). Dr. Smalldon’s testimony
on this topic came up short, he explained, because it lacked a definitive diagnosis and connection
to Wesson’s crime. True, Smalldon did not diagnose Wesson with the disorder, but he did
diagnose Wesson with fetal alcohol effect, and he explained that Wesson’s impairments would be
similar to FASD: an inability to assess behavioral consequences and respond to social and personal
cues. Smalldon added that Wesson’s fetal alcohol effect “contribut[ed] to the formation of
personality dysfunction,” included “another risk factor that often plays a major role in the person’s
adaptation to his or her life circumstances,” and affected the way Wesson “respond[ed] to
developmental stressors.” R.13-26 at 135. That Wesson believes Smalldon should have testified
in a slightly different manner does not make counsel deficient. Any mitigating difference between
FASD and fetal alcohol effect is sufficiently minor that its omission did not prejudice him.
Reasonable jurists could not debate that this claim for ineffective assistance of counsel lacks merit.
Because reasonable jurists could not debate that these parts of Wesson’s claim for
ineffective assistance of counsel lack merit, we will not disturb the district court’s dismissal of
them as procedurally defaulted. Just as reasonable jurists could not debate the district court’s
resolution of the two claims Wesson asks us to add to his COA, they also could not conclude that
the claims are adequate to deserve encouragement to proceed further. So Wesson has not made a
substantial showing of the denial of a federal constitutional right.
Accordingly, we DENY Wesson’s application to expand his COA. The Clerk’s Office
shall issue a briefing schedule.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
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